EXAMINATION 
 
 OF A 
 
 MINORITY REPORT 
 
 MADE BY THE 
 
 HON. ORYILLE CLARK, 
 
 TO THE 
 
 SENATE OE THE STATE OF NE¥-Y0RK, 
 
 ox THE 
 
 MEMORIALS 
 
 OF INHABITANTS OF THE CITY OF NEW-YORK, IN RELATION TO 
 
 TRINITY CHURCH. 
 
 ALBANY: 
 
 PRINTED BY C. VAN BENTHUYSEX AND CO. 
 
 1846. 
 
Digitized by 
 
 the Internet > 
 
 Archive 
 
 
 
 in 2013 
 
 
 
 
 http://archive.org/details/examinationofminOOdurs 
 
EXAMINATION 
 
 OF A 
 
 MINORITY REPORT 
 
 MADE BY THE 
 
 HON. ORVILLE CLARK, 
 
 TO THE 
 
 SENATE OF THE STATE OF NEW-YORK, 
 
 ON THE 
 
 MEMORIALS 
 
 i 
 
 OF INHABITANTS OF THE CITY OF NEW-YORK, IN RELATION TO 
 
 TRINITY CHURCH. 
 
 ALBANY: 
 
 POINTED BY C. VAN BENTHUYSEN AND CO, 
 
 1846. 
 
Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
EXAMINATION 
 
 Of a minority report made by the Hon. Orville Clark, to 
 the Senate of the State of New-York, on the memo- 
 rials of inhabitants of the city of New-York, in rela- 
 tion to Trinity Church. 
 
 The committee on charitable and religious societies of the Senate of 
 the State of New-York, to which were referred the memorials and re- 
 monstrances on the subject of legislative interference with the charter 
 of Trinity church, having disagreed in their conclusions, two reports 
 have been made by its members. One, by a majority of the committee 
 recommending " that no legislative action be had on the subject, and 
 that the prayer of the petitioners be denied;" the other by the Hon. 
 Orville Clark, a senator from Washington county, recommending the 
 repeal of the act of 1814. This report of Mr. Clark's occupies thirty- 
 five pages, and contains so many extraordinary statements, and what are 
 deemed erroneous representations of facts and documents, and so many 
 inferences believed to be entirely unwarranted, as to require an exposi- 
 tion of its errors and fallacies by some one whose leisure will permit that 
 thorough examination which it is hardly possible for a member of the 
 Legislature to bestow, amid the numerous and various subjects which at 
 this time occupy attention. 
 
 With the design, and in the hope of throwing some light on what 
 Mr. Clark has rendered obscure, and of assisting an intelligent and im- 
 partial judgment, these pages have been prepared and are respectfully 
 submitted for candid consideration. They will be confined to an exami- 
 nation of Mr. Clark's positions, and any repetition of the very able 
 views of the majority of the committee will, as far as possible, be avoid- 
 ed. Nor will an attempt be made to notice many remarks and state- 
 ments in Mr. Clark's report, which seem calculated rather to excite and 
 inflame prejudice than to aid judgment, and which have a very remote, 
 if any, bearing upon the questions at issue. This course is adopted to 
 avoid excessive prolixity, with entire confidence in the intelligence of 
 those for whose use these pages are intended, and in tneir determina- 
 
4 
 
 tion to decide and act uprightly and conscientiously. In the style of 
 these remarks, an effort will be made to imitate the modest and unassu- 
 ming manner of the report of the majority of the committee, rather 
 than the somewhat positive tone of Mr. Clark's report ; and care will be 
 taken not to affirm that to be undeniable, which admits of serious ques- 
 tion, or to pronounce that impossible, which may have actually occurred. 
 
 Although the other members of the committee have differed from 
 Mr. Clark so entirely in their conclusions, yet, a casual reader would 
 infer from the language of his report, that the committee had really 
 agreed on every important point, and concurred in the rseults. Thus 
 in p. 7 it is said "your committee have no doubt or hesitation in 
 stating the necessary effect of the treaty of peace of 1783," &c; at 
 p. 10, " But your committee are unable to admit the force or even 
 the propriety of these observations." In p. 12, the language is quite 
 inaccurate " your committee will state the grounds on which they recom- 
 mend the entire repeal of the act of 1814." Surely the committee has 
 made a very different recommendation. And the report at p. 35, thus 
 closes: "your committee in conformity to the views they have express- 
 ed, ask leave to introduce a bill." Without pursuing these references 
 further, sufficient appears to show the carelessness with which the re- 
 port has been ushered before the public, and to excite a doubt whether 
 there may not be similar carelessness in other equally important 
 portions of it. # 
 
 It is quite remarkable that Mr. Clark wholly repudiates the grounds 
 on which the memorialists placed their case and solicited the interven- 
 tion of the Legislature, and utterly denies the sufficiency of those 
 grounds to justify the repeal of the act of 1814. He says " that the ques- 
 tions which they involve are precisely those that the Legislature have 
 no right to determine or [even] consider." (p. 33.) " If the memorial- 
 ists really possess the right that they claim, they should bo left to assert 
 and vindicate them in a court of justice, since it is the exclusive pro- 
 vince of a court of justice to establish the validity of their claims." (p. 
 33.) As this is the same conclusion expressed by the majority of the 
 committee in their report, it would after all, seem that the committee 
 were in fact unanimous. Still, Mr. Clark proceeds to say that " the 
 
 • It is due to the Hon. Senator to state, that the newspapers containing the account of 
 the presentation of the minority report, added that Mr. Clark before reading it, apo- 
 logised for its being in the form of a majority report, and engaged to alter it in that 
 respect before delivering it to the printer. And the bill reported by him, purported 
 to be brought in by Mr. Clark from the minority of the committee. Still, to readers 
 who may never see the bill or the newspaper account, the report as printed is calcu- 
 latedto convey an entirely erroneous impression. 
 
5 
 
 committee are of opinion that the access of the memorialists to a court 
 of justice should no longer be barred, and that the impediment to the 
 proper assertion of their rights, created by the act of 1814, should be 
 removed." 
 
 The majority of the committee expressly deny that any obstacles exist 
 to the legal assertion of the rights of the memorialists, because if the 
 act of 1814 is unconstitutional, the courts will so declare. Mr. Clark 
 has not stated with explicitness, or indeed at all, how the act of 1814 
 bars the access of the memorialists to a court of justice, or how it is an 
 impediment to a proper assertion of their rights. This is a point which 
 has been again and again presented to the memorialists and their advo- 
 cates, and their attention invited to it. They have been asked, the Le- 
 gislature has been asked, why interpose at all, when there is no occasion 
 for it ? And yet no answer is given — no necessity for the interposition 
 is shown. The elaborate argument of Mr. Clark furnishes none, except 
 that the act of 1814 is, in his opinion, a bad precedent of judicial 
 legislation. He contends that it transcended the legitimate powers of 
 the Legislature, that it violated rights secured by compact, but asserts 
 that the memorialists should " be left to assert and vindicate them (those 
 rights) in a court of justice and yet he would repeal an act which, if his 
 argument proves any thing, is a perfect blanK, is no bar, and presents no 
 impediment whatever to the legal assertion of those rights. There are 
 doubtless many bad precedents on the statute book, and some laws which 
 our courts have pronounced unconstitutional. But, until the present in- 
 stance, it is confidently believed no bill has been reported to expunge 
 those precedents or to repeal those laws, merely because they were 
 " mischievous in their effects," as examples, and therefore should be 
 rendered "harmless by removal." Confidence in subsequent legisla- 
 tures has been felt, that their own reason and intelligence would prevent 
 their being led astray by unsound precedents or void laws. Mr. Clark 
 does indeed say, (p. 27,) that "were it certain that courts of justice 
 would give no effect to the act of 1814, the protection of the memo- 
 rialists could not be said to require its repeal." But, he says it is con- 
 tended that the act is an absolute judgment of a court of competent ju- 
 risdiction and ultimate authority ; and then he says, the question arises 
 whether such an effect can be given to the act without a violation of the 
 principles of our constitution?" And he concludes that if this question 
 must be answered in the negative, that is, if the act of 1814 be uncon- 
 stitutional, — the only effectual mode of preventing an unjust application 
 of it, is, to repeal it. With great deference this course seems to be quite 
 a non sequitur. If the act be so clearly unconstitutional, there is no 
 
6 
 
 danger whatever of its being unjustly applied by the courts. And the 
 very ground on which he thus recommends the repeal of the act, in- 
 volves the necessity of this Legislature deciding that it was unconstitu- 
 tional, and ought not therefore to be applied to the case for which it 
 was intended ; that is, for the Legislature to assume the functions of a 
 court. How this is to be reconciled with the declaration at p. 33 of 
 the same report, already quoted, that the Legislature has no right " to 
 determine or consider" the question whether the act of 1814 was un- 
 constitutional, must be left for others to determine. But the object of 
 these remarks is not so much to exhibit what are supposed to be 
 the contradictions of Mr. Clark's report, as to show that Mr. Clark 
 himself cannot urge the repeal of the act of 1814 without calling upon 
 the Legislature to act judicially. 
 
 This part of the subject ought not to be dismissed without a comment 
 upon the extraordinary assertion above quoted from p. 27, that the re- 
 monstrants and their counsel contend that the effect to be attributed to 
 the act of 1814, is that of an absolute judgment of a court of compe- 
 tent jurisdiction and ultimate authority. In no one of the published 
 papers is any such principle contended for, and the gentlemen who 
 attended before the committee absolutely deny that they ever advanced 
 such an idea."* The argument was, and has been throughout, and is 
 still, that it was competent to the Legislature, in its legislative capacity, 
 ivith the consent of the other 'party lo the compact, so to amend it, as to 
 remove doubts, and prevent difficulties growing out of a change in the 
 state of things. Any further exposition of this argument is postponed 
 until we come to consider that subject distinctly, in a subsequent part of 
 these remarks. 
 
 Dissatisfied, apparently, with the ground thus assumed, that the act 
 was unconstitutional, and therefore should be repealed — a ground, as 
 already stated which he repudiates in another part *of his report, Mr. 
 Clark proceeds to state in a formal manner, somewhat imposing, the 
 grounds on which as he says the committee, but in fact himself only, 
 recommends the repeal of the act of 1814. The first reason given at p. 
 12, 13, &c, is that the consent of the Legislature to the act of 
 1814, was induced by a misrepresentation of material facts ; that the 
 Legislature was misled — that both the fact and the law of the case 
 
 * It was urged by one of them who last addressed the committee, that whether the 
 law of 1811 was or was not unconstitutional, was a question of law proper for the 
 decision of the judicial department of the government; and he thought it strange 
 that the Legislature should now be called upon to make this judicial decision by those 
 who complained of the act of 1814, upon the ground that it was a judicial act which 
 the Legislature ought not to have performed. 
 
7 
 
 were misunderstood in consequence of the improper manner in which 
 they were presented. 
 
 This is a very grave accusation, and ought to he sustained by proofs 
 the most incontrovertible. 
 
 The misrepresentation — the deception, consists, according to Mr. 
 Clark's report, in the applicants for the act of 1814, omitting to refer in 
 terms and distinctly to the colonial act of 1704, as the charter, and the only 
 subsisting charter of Trinity church ; or as stated at p. 16, that the act 
 of 1704 was "virtually suppressed" that it was not referred to in the 
 petition of Trinity church, nor in the pamphlets of Bishop Hobart or 
 Col. Troup, except that it was mentioned in a note, in the latter; and 
 that the Legislature were induced to suppose that it had been repealed, 
 and that the charter of 1697 was operative until the act of 1784. 
 
 Each of those positions will be briefly examined in its order. 
 
 1st. As to the fact, what representations were made, and what evi- 
 dence is there that the Legislature knew of the colonial act of 1704? 
 
 The petition of the corporation of Trinity church, embodied in their 
 remonstrance to the present Legislature, and printed at p. 28 of a 
 pamphlet containing the charter and other laws and proceedings relating 
 to Trinity church, (and which will be herein referred to as charter 
 'pamphlet,) states the historical facts of its first incorporation, giving the 
 date of 1697, and that it was the only parish church until some time 
 after the revolution ; it then recites the passage of the act of 1784, and 
 quotes the provision it contains descriptive of the corporators. It 
 then states that other Episcopal churches have been organized, and that 
 some individuals belonging to such separate congregations have claimed 
 a right to vote for wardens and vestrymen of Trinity church. It further 
 represents that their corporate name has thus become inapplicable — it 
 asks for an act altering the name, and to settle and obviate the ques- 
 tions that might arise in consequence of other Episcopal congregations 
 in New-York being incorporated. The petition is brief, but explicit, 
 and fairly and truly presents the evils for which a remedy was sought 
 It will be seen that there was a distinct and unequivocal reference to the 
 act of 1784. 
 
 The law passed upon this petition in 1814 contains a preamble re- 
 citing the act of 1784 by its title in full; and also reciting the act of 
 10th March, 1788, enabling the corporation to take a different name, 
 and which name, it recites they pray may be altered : and it makes 
 alterations in both those acts. 
 
 Here then is indubitable evidence that the acts of 1784 and 1788 
 
8 
 
 were before, and known to, the Legislature which passed the law of 
 1814. 
 
 Now the act of 1788 has a preamble, reciting the colonial act of '27th 
 June 1704, and stating that it was repealed in 1784, but that the corpo- 
 ration had continued to use the name therein specified, and thereupon it 
 enacts that the corporation may take and use a new name, 
 
 And the preamble to the act of 1784 recites the charter of 1697, it recites 
 and gives in full the title of the colonial act of 1704, it declares that provi- 
 sions in both the charter and the colonial act were inconsistent with the 
 spirit and letter of the constitution of this state, and the act amends and 
 alters both of them. Again, the preamble to the sixth section recites in full 
 the title of the colonial act of 1704, with the date of its passage, and in 
 the body of the same section again repeats the title of that act, and re- 
 peals it absolutely. 
 
 After this how can it be said that the colonial act of 1704 was un- 
 known to the Legislature of 1814, that it was virtually suppressed ? It 
 was impossible for any member of the Legislature to vote upon the bill 
 understandingly without recurring to the acts of 1784 and 1788, which 
 it professed to amend and alter. And he could not look at those acts 
 without seeing that the colonial act of 1704 was five times recited or 
 distinctly referred to. If this be a mode of suppressing a fact, it would 
 be desirable to know by what means it shall be made known. 
 
 But, says Mr. Clark, the Legislature was misled by having their 
 attention drawn to the charter of 1697 by the pamphlets of Bishop 
 Hobart and Col. Troup, and by the omission of those pamphlets to re- 
 fer to the colonial act of 1704. It must have escaped Mr. C's observa- 
 tion that the pamphlet of Col. Troup was never before the Legislature 
 at all, previous to the passage of the bill through the two houses. It 
 was written and published after Chancellor Lansing had reported his 
 objections to the bill, to the council of revision — for it contains those ob- 
 jections at large, and its object was to answer and remove them. If. 
 therefore, it misled the Legislature in the passage of the bill, it must 
 have been by some singular ex post facto operation of which there is 
 probably no other instance on record. 
 
 As to the pamphlet attributed to Bishop Hobart, an examination of it 
 will show that he discusses the question solely and exclusively as it 
 arose upon the 3d section of the act of 1784, and upon the act of 1788. 
 There is not one single idea or remark founded upon the charter of 1697, 
 and indeed that charter is not mentioned, nor is there any allusion to it. 
 except that in the commencement of the pamphlet, the fact is stated that 
 
9 
 
 "since the year of our Lord 1697 a corporation in the city of New-Yonc 
 styled the corporation of Trinity church, have enjoyed a charter," &c. 
 The idea of its being possible for Bishop Hobart to make an attempt to mis- 
 lead the Legislature, would require the strongest proof to satisfy any one 
 acquainted with the character of that estimable man; and when an in- 
 spection of his pamphlet shows how utterly destitute of foundation such 
 an idea is, his friends and the friends of truth, justice and fair dealing, 
 will lament that it should have been so inconsiderately avowed. 
 
 Before dismissing this point let us enquire how far the principle itself 
 is tenable, that a law should be repealed, because the applicants for it 
 took a wrong view of their case, presented facts and arguments conform- 
 able to that view, made no mistatement of any fact, perverted none, but 
 omitted to bring into view a law on the public statute book, which they 
 honestly supposed to be repealed, and which law must necessarily come 
 under the examination of any one seeking to inform himself on the 
 subject? Stripped of all exaggeration and amplification, this is really 
 the sum and substance of Mr. Clark's complaint, assuming the correct- 
 ness of all his representations on the subject. And the mere statement 
 of the case, would seem to be sufficient, without further answer. 
 
 The analogy which Mr. Clark institutes at p. 23 between acts of the Le- 
 gislature and private contracts being avoided by misrepresentation or con- 
 cealment of material facts, is unfortunate for his position. As to misre- 
 presentation of any fact, it is out of the question; it is not pretended that 
 there was any ; the only allegation is that there was a concealment of a law. 
 Chancellor Kent in his 39th lecture, thus states the principle: "If there 
 be an intentional concealment or suppression of material facts in the 
 making of a contract, in cases in which both parties have not equal 
 access to the means of information, it will be deemed unfair dealing and 
 will vitiate and avoid the contract." "As a general rule, each party is 
 bound to communicate to the other his knowledge of material facts, 
 provided he knows the other to be ignorant of them, and they be not 
 open and marked, or equally within the reach of his observation." Even 
 this rule, the learned chancellor in a note admits to be too broad, and 
 should be qualified so as to require that the party in possession of facts, 
 must be under some special obligation, by confidence reposed, or other- 
 wise, to communicate them truly and fairly. But take the rule in its 
 broadest sense, and it will be seen how decisive it is against the position 
 of Mr. Clark. For no one will pretend that the Legislature "had not 
 equal access to the means of information," with the applicants, or that a 
 
 2 
 
10 
 
 printed and published statute "was not equally within the reach" of the 
 Legislature as it was of every citizen. 
 
 There are some collateral matters under this head, which it may be 
 well to notice, although they have a slight bearing, if any, upon the 
 point. 
 
 At p. 14, it is remarked, that " it is evident from the report made by the 
 Attorney-General to the Assembly, that his opinion ws founded solely on 
 the charter of 1697 and on the acts of 1784 and 1788." The language of 
 the Attorney-General is this : " that he has examined a printed copy of 
 the charter granted in 1697 to the Rector, &c, and the acts altering the 
 said charter, together with the bill, &c, and that he is of opinion that 
 the passage of the said bill will not defeat or vary any existing vested 
 rights under the said charter and acts." The plain inference from this 
 language, strengthened by the reflection that no honest attorney-general 
 would give an opinion upon any subject, without examining all the laws 
 bearing on it, is that Mr. Van Vechten looked into the colonial act of 
 1704, as well as the acts of 1784 and 1788. 
 
 It must excite some surprise to witness these labored efforts to show 
 that the highly respectable applicants for the law of 1814 made a misre- 
 presentation, by a very foolish and necessarily futile attempt to conceal a 
 public law, — that the Attorney-General neglected the duty of investigat- 
 ing the matter referred to him, by omitting to look for or consider a law 
 having connection with that matter, and to stultify the whole Legislature 
 by the supposition that they were not only ignorant of a law now said to 
 be so material, but that they were hoodwinked and prevented from look- 
 ing at it, by the omission of the petitioners to quote it and spread it be- 
 fore them. 
 
 2. If the applicants presented their case to the Legislature of 1813, 
 under the belief that the colonial act of 1704 was not in existence, — that 
 it had been repealed and had no influence upon the existing rights of 
 the corporation, and if the Legislature acted under the same impres- 
 sion, — they were correct in law and in fact ; and the representation was 
 true, and the arguments, if any, founded upon it, were just and sound; 
 in other words, assuming all that is alleged by Mr. Clark, to have been 
 represented to the Legislature, there was no misrepresentation — no 
 deception. Aware that the settlement of this question of fact must dis- 
 pose of the first reason given by him for the repeal of the act of 1814, 
 Mr. Clark labors with great ingenuity to establish the position that the 
 colonial act of 1704 was not wholly repealed by the act of 1784. Let us 
 take his own statement of the law : "The 6th section of that law" (of 1784,) 
 he says, at p. 84, " enumerates the colonial act of 1704 in the list of those 
 
I J 
 
 that it expressly repeals, and this repeal, looking merely at the words 
 there used, is absolute and total." One would suppose that after such 
 an admission, the question would be at rest. But the report under con- 
 sideration is remarkable for the alacrity with which the most obsti- 
 nate facts and the clearest provisions of law, are combatted and wrestled 
 with. In this instance, it is said that this absolute and total repeal is to be 
 restrained by what is assumed to be the manifest intention of the Legisla- 
 ture to repeal only such parts as were inconsistent with the provisions of 
 the constitution ; and as some of the provisions of the act of 1704 were not 
 of that character, a court of law would hold that they were not included in 
 that repeal. If courts of law adhere to what they have already said, they 
 will hold a very different language. The fundamental maxim quoted by 
 Chancellor Kent in his 20th lecture, seems peculiarly adapted to this case : 
 Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra rerba 
 expressa, fienda est. Co. Lift. 147. Wing. 24; thus translated in Branch's 
 Principia: When in the words there is no ambiguity, no exposition con- 
 trary to the words is to be made. The judges said in Edrick's case, (5 
 Rep. 118,5,) "that they ought not to make any construction agains 1 
 the express letter of the statute ; for nothing can so express the meaning 
 of the makers of the act, as their own direct words." In 1 Term Rep. 
 51, Justice Ashurst sa}'S, " it is safer to adopt what the Legislature have 
 actually said, than to suppose what they meant to say." These authorities 
 might be multiplied almost indefinitely to show that interpretation ac- 
 cording to a supposed intent, is not to be indulged against the plain 
 words of a statute, and that it is only when the words are in themselves 
 ambiguous, or where they would produce manifest injustice, or be ab- 
 surd, that it is allowable to examine the intent. 
 
 A further reason given by Mr. Clark for denying that the colonial act 
 of 1704 was repealed by the act of 1784, is that the latter act would 
 thereby be rendered contradictory in its various provisions. The first 
 section, after repealing certain parts of the charter of 1697, and of the 
 colonial act of 1704, declares that " nothing in this law shall be in any 
 wise construed to annul, injure, repeal or make void the said charter or 
 the said law, where the same are not inconsistent with the constitution 
 of this State." And yet, it is admitted by Mr. Clark that in a subse- 
 quent section, the 6th, the colonial act of 1704 is repealed by words that 
 are " absolute and total," and that the repeal is " entire and absolute in 
 its terms."* To prevent this manifest contradiction, which however 
 
 * If it were at all necessary to account for this contradiction in the act of 1784, it 
 might be done by reference to the Assembly Journals of that year, p. 47, where it ap- 
 pears that the bill was amended in committee of the whole of that house; and by re- 
 
12 
 
 is beyond the power of human ingenuity, he would restrict the "absolute 
 terms," and make that a "partial" repeal which he admits to be entire. 
 But a contradiction in a statute is a much less evil, than a defiance of 
 the expressed, explicit and undenied will of the Legislature; and the 
 rule in such cases has been settled for centuries, and adhered to with- 
 out ever being questioned by any judicial decision. That rule was given 
 in the case of the Attorney-General vs. The Governor and Company of 
 Chelsea Water -works, reported in Fitzgibbon, p. 195 ; it is that a proviso 
 directly repugnant to the body or provision of the act, shall stand, and 
 be held to be a repeal of the preceding enactment, by analogy to the 
 well known rule of construction applicable to testamentary instruments — 
 that a later clause, if inconsistent with a former one, expresses the last 
 intention, and revokes the preceding expressions. The rule as quoted 
 from Fitzgibbon is given in Bacon's Abridgement, title Statute, and in 2 
 Dwarris Stat. 675, as the undoubted law. In the case of the King vs. 
 the Justices of Middlesex, 2 Barn, and Ad. 818, Chief Justice, Lord 
 Tenterden quoted and referred to the same decision in Fitzgibbon as the 
 existing law, and he applied the principle that the latest enactment 
 speaks the last intention of the makers, to the case before the court, 
 where two contradictory acts w r ere passed in the same session of parlia- 
 ment, to come into operation on the same day; and the court accordingly 
 held that "the act which last received the royal assent must have the 
 effect of repealing the other." 
 
 The same principle was again recognized and applied by the English 
 court of common pleas, as late as 1835, in the case of Paget, and 
 another vs. Foley, reported in 2 Bingham's New Cases, p. 679. Hence 
 it will be seen that courts do not regard contradictions in the same 
 statute, or betw r een different statutes, as any reason for disregarding the 
 plain words of an act. They have regarded consistency in acts as much 
 less important than the certainty arising from a firm and well settled 
 rule. 
 
 ference to p. 117, where it appears that the bill had also received amendments in the 
 Senate. \\ e have no direct evidence of the nature of those amendments, but there 
 are strong reasons which would occupy too much space here, for believing that the 
 6th section was added in the Senate, without adverting to the incongruity of a total 
 repeal of an act which in a previous section had been repealed in part. 
 
 It is worthy of note that three of the acts repealed by the 6th section of the act so 
 often emoted, chap. 33, which was passed 17th April, 1784, were also repealed by 
 their titles in full, by the act chap. 38, which was passed on the 20th of April 1784, 
 and that another act, apart of which was repealed by the above chap. 33 was wholly 
 repealed by chap. 38. These acts were pending at the same time, as appears by the 
 Journal. Thus showing that it was not deemed extraordinary to repeal wholly an act 
 that was already partially repealed, or to repeat the repeal of other acts. 
 
13 
 
 h is not deemed necessary to add any thing to this authorative rule. 
 It speaks for itself, and shows, it is believed, beyond the reach of dis- 
 pute, that the colonial act of 1704 was repealed absolutely, by the act 
 of 1784, notwithstanding the declaration in a previous part of the same 
 statute. Still, it may be proper to refer to the act of 1788, which re- 
 cites explicity that the colonial act of 1704 was repealed by the law of 
 1784. As the almost contemporary opinion of a whole Legislature, it is 
 entitled to at least as much respect as that of a single Senator, given 
 sixty years afterwards. 
 
 Of course if any representation was made to the Legislature of 1813, 
 that the colonial act of 1704 was repealed — such representation was true, 
 and any inferences which were drawn from the fact were fully justified. 
 
 And thus, it would seem certain that the first reason assigned by Mr 
 Clark for the repeal of the act of 1814, that it was procured under a 
 misrepresentation, or a " suppression " of the colonial act of 1704, falls 
 to the ground. 
 
 Mr. Clark contends (p. 7 and 8) that the charter of Trinity church, 
 whether it consisted of the letters patent issued in 1697, or of the colo- 
 nial act of 1704, became extinct by the revolution, and that the act of 
 1784 was necessary "to reanimate a lifeless corporation." The point 
 has so little practical bearing on the questions at issue, as scarcely to 
 justify an extended discussion, and yet the position is deemed so unsound 
 that it ought not to pass without comment. The Supreme Court of 
 this State and that of the United States, have by a series of decisions 
 established beyond all controversy, that the division of an empire does 
 not in any manner impair or affect private or corporate rights ; that our 
 revolution left the corporations created under British authority in full 
 vigor and possessed of all the franchises which could be enjoyed con- 
 sistently with our forms of government. Terret vs. Tayler, 9 Cranch 43, -50, 
 was a decision to that effect, relating particularly to Episcopal churches 
 in Virginia; and the Society for propagating the gospel vs. New Haven, 
 in 8 Wheaton 481, as well as Dartmouth College vs. Woodward, 4 
 Wheaton, 706, were repetitions of the same doctrine applied to other 
 corporations. See also 1 John. Cases, 29, 32 ; 3d do. 109. The idea 
 broached by Mr. Clark, that it was a condition of the charter of Trinity 
 Church that the corporators should remain in the communion of the 
 church of England as established and governed by the laws of England, 
 is believed to be a mere assumption without any foundation other than a 
 vivid fancy. It might be said with far greater plausibility, that the 
 political charters of the cities of New- York and Albany, were subject 
 to the condition of being under the government of Great Britain. 
 
14 
 
 Trinity Church was a religious corporation ; the religious denomination 
 of its corporators was described, not prescribed, as being in communion 
 of the church of England as by law established. This was a commu- 
 nion of faith, doctrine and worship, exclusively religious, and without 
 any necessary connexion with the civil government. In the preface to 
 the Book of Common Prayer of the American Episcopal church, after 
 speaking of the alterations that had been made, which it says will ap- 
 pear, upon a comparison with the book of Common Prayer of the 
 church of England, proceeds thus: "In which it will also appear that 
 this church is far from intending to depart from the church of England 
 in any essential point of doctrine, discipline or worship; or further than 
 local circumstances require." This communion may and does exist be- 
 tween citizens and subjects of different countries, without the least 
 reference to their respective civil governments ; as in the case of the 
 Friends or Quakers in England and America ; Presbyterians in Scotland 
 and in our country ; Methodists m the two countries, &c, &c. — and it 
 may exist even when the respective nations are at war. The connexion 
 of the Episcopal church in England with the civil government was a 
 mere incident, in no way necessary to the religious character or com- 
 munion of the church, as is evident from the fact that in Scotland the 
 Episcopal is not the established church, and yet its members are in com- 
 munion with the church of England, and the latter are in communion 
 with the Scottish church. The same relations exist between the Epis- 
 copal church in America and that in England; our ministers preach in 
 their churches; theirs officiate in ours ; the members of both reciprocally 
 partake of the communion in the churches of both nations — and there 
 never has been an interruption of that communion with the church of 
 England, by the corporators of Trinity church from 1697 to this day. 
 The object of Mr. Clark in the remarks which have just been quoted, 
 was to exhibit the necessity of the act of 1784, " to reanimate, as he terms 
 it, a lifeless corporation." The propriety of such an act and the neces- 
 sity of some of its provisions are admitted, and it was certainly desirable, 
 considering the circumstances in which the corporation had been placed 
 by the Avar of the revolution and the occupation of the city by British 
 troops, that the now independent State should, by a legislative act, remove 
 all doubts, settle conflicting claims, and enable Trinity Church to 
 execute its high mission. The act of 1784 was passed for this purpose. 
 It does not contain any terms of incorporation, but it attains the object 
 of reviving that which had been in abeyance, and of imparting to it 
 new vigor, by appointing of its own authority a set of wardens and ves- 
 trymen, (sect. 4,) by declaring who should thereafter be corporators, (sect. 
 
♦ 
 
 15 
 
 3,) and by confirming its original charter after amending and modifying it 
 to the altered circumstances. (Sec. land 2.) This revival, recognition and 
 establishment of the charter of 1697 was effected by the first section of the 
 act, which, after reciting that charter and the colonial act of 1704, provides 
 that "nothing in this law, and no non-user or mis-user, &c. shall be con- 
 strued to annul, injure, repeal, or make void the said charter, or the said 
 law, &c. where the same are not inconsistent with the constitution of this 
 State." Can language be more explicit in recognising the existence of the 
 charter, and the validity of all its provisions, excepting those inconsistent 
 with the constitution of this State ? 
 
 How needless was the exception if the other provisions were invalid ? 
 Is this not precisely the case in which the sound and venerated maxim 
 of the common law and of common sense applies with irresistible force ? 
 Exceptio probat regulam de rebus non exceptis; 11 Co., 41. An excep- 
 tion proves the rule in things not excepted. 
 
 If then, the position of Mr. Clark at p. 5, be correct that it was indis- 
 pensable to enable Trinity Church to continue a living and active corpo- 
 ration, that an act of the Legislature should be passed designating the 
 corporators, and defining the mode of their action ; and that this was the 
 object of the act of 1784, it will be seen at once by an inspection of 
 that act that it wholly fails in this object unless it be coupled with the 
 charter of 1697, or the colonial law of 1704 ; for the act itself contains 
 nothing defining the mode of action of the corporators ; it confers no 
 corporate powers in direct terms ; it does not even fix the number of ves- 
 trymen, nor the time of their election, nor does it prescribe any of their 
 duties or powers. But it couples itself with the charter of 1697, as already 
 explained, corrects its defects and engrafts its own provisions upon it, and 
 thus sets the machinery in motion. It is submitted that this is a fair, just 
 and reasonable view of that act, and the only one which renders it what Mr. 
 Clark says it should have been and was intended to be. 
 
 In a note to his report at p. 19, Mr. Clark says "if the charter of 1697 
 were superseded or abrogated by the subsequent act of the Assembly, 
 (the colonial law of 1704,) express words were palpably necessary to 
 create or restore its validity. The mere repeal of the colonial act would 
 not have that effect." It is utterly denied that the colonial law of 1704 
 either suspended or abrogated the charter of 1697. On the contrary it 
 is maintained that it did not create anew any corporation. It contains no 
 expressions of that character usual in acts of incorporation ; but in the 
 very first section, recognized one as then existing, by enacting that " the 
 rector and inhabitants of the said city of New-York in communion of 
 the church of England, as by law established, and their successors, shall 
 
16 
 
 be capable of suing, &c, by the name of the rector and inhabitants of 
 the city of New-York, in communion of the Church of England, as by 
 law established.'" It thus describes a rector as already existing, which 
 could not be without a lawful church, of which there could be a rector. 
 In truth it describes the corporation created by the charter of 1697, 
 which, it is therein declared, shall be a body corporate, by the name of 
 " the rector and inhabitants of our said city of New-York, in communion of 
 our Protestant Church of England, as now established by our laws." It 
 is obvious that these were not intended as the very words of the name, as 
 the phrases "our city of New-York," "our protestant church," and "estab- 
 lished by our laws," could not be used with propriety in any instrument 
 executed by the corporation, or in any contract with it by any other party 
 than the crown, or in any act by a third party. In such cases, the word 
 "our" must necessarily be omitted, and the word " the" substituted. 
 With that change, which was obviously proper in an act of the colonial 
 legislature, it will be seen that the name recited in the commencement 
 of the first section of the colonial act of 1704, is identical with that by 
 which the corporation is described in the charter, with the exception of 
 the word "protestant," which was a pleonasm, as the church of England 
 was notoriously protestant. It is supposed that if the same name had been 
 used in a grant of property to the corporation, or in a contract with it, no one 
 would have doubted that it was well and sufficiently described. "The name 
 of a corporation frequently consists of several words, and the transposition, 
 interpolation, omission or alteration of some of them, may make no es- 
 sential difference in their sense." 1 Kyd, 227. In Angel and Ames on 
 Corporations', p. 55, a variety of cases are collected, showing the settled 
 law that any such omissions or alterations are regarded as immaterial. 
 If to these considerations be added the established rule that the law 
 does not favor repeals by implication, and that two statutes are to stand 
 together if possible, (9 Cowen, 437,) it will be a very fair conclusion that 
 the colonial act of 1704 did not supersede or abrogate the charter of 
 1697 any further than as their provisions were inconsistent, which was 
 the case in a very few and not important particulars. 
 
 But Mr. Clark, assuming that the charter was already abrogated by the 
 colonial act of 1704, says that " express words were palpably necessary to 
 create or restore its validity. The mere repeal of the colonial act would 
 not have that effect." To this it is replied that there is no doctrine bet- 
 ter settled by a uniform current of decisions, and by the acknowledgment 
 of all the elementary writers than this, which is thus given in the words 
 of Blackstone : "If a statute that repeals another is itself repealed 
 aftenvnrds, the first statute is hereby revived without any formal words 
 
17 
 
 for that purpose." 1 Comm. 90. If the rule had been drawn up ex- 
 pressly to negative Mr. Clark's position, it could not have been more 
 direct. In 7 Cowen, 536, 537, the rule is recognized and applied ; and 
 probably hundreds of cases might be cited where it has been adopted 
 and enforced. 
 
 It may be expected in this connexion, that some remarks should be 
 made upon the observations of Mr. Clark, at p. 5, 6, &c, intended to 
 show that the colonial act of 1704 was regarded by the government and 
 the corporation itself as the only law which governed the corporation 
 previous to the act of 1784. So far as any practical results could follow 
 from the admission, it might with perfect safety be admitted. For it 
 has been shown, it is hoped satisfactorily, that the colonial act was re- 
 pealed in 1784, and if the charter of 1697 had been overshadowed by 
 or merged in it, it was revived and restored in full force by the same act 
 of 1784. It therefore becomes quite immaterial to enquire how it was 
 regarded during the time it was in operation. But the statements of 
 Mr. Clark upon this point are deemed so erroneous, that a brief space 
 may properly be devoted to their correction. It is said at p. 6, that the 
 grant made in 1705 is made to the exact corporate name that the act of 
 1704 imposed, and that the preamble of the grant refers to this act as 
 the sole origin of the corporate power of the corporation. This is be- 
 lieved to be an exaggeration of the language of the preamble. It was 
 natural that the reference should be to the more recent charter, which 
 had passed but a year previous, conferring full powers to take and hold 
 real estate ; which reference was sufficient for all the purposes of the 
 recital, and it would have been mere surplussage to refer to the charter 
 of 1697. Surely it is a strained inference to draw from the mere nam 
 ing of one out of two, or out of a dozen, acts of incorporation, that the 
 others were obsolete or extinct; and as to the name of the corporation, 
 it has already been shown that it was sufficiently identical in the two in- 
 struments, to prevent any ambiguity. 
 
 It is said in the same page that the right of voting for wardens and 
 vestrymen of Trinity Church was limited in its actual exercise to the 
 communicants of the church. And then it is averred that this limitation 
 is to be found only in the act of 1704. Now it is asserted with great 
 confidence that the limitation of the electoral right, so far as it required 
 the voters to be communicants was the same in the charter of 1697, and 
 in the colonial act of 1704 ; and that at all events there was great reason 
 for such a construction — which would of itself account for the practice, 
 and be sufficient to preclude the inference attempted to be drawn from 
 the fact. 
 
 3 
 
18 
 
 In the charter of 1697, (p. 9, Charter Pamphlet,) the qualifications of 
 voters is thus described, " by the majority of the inhabitants of the said 
 parish in communion as aforesaid" — the communion thus referred to, is 
 described in an antecedent part of the same clause as that of " our pro- 
 testant church of England." Mr. Clark says, at p. 6, that " according 
 to the well known doctrines of that church, its communion embraces all 
 its members ; in other words all belong to the communion of the church 
 who have been baptized or confirmed therein, and have not explicitly 
 renounced its doctrines." This statement is far from being correct. By 
 the doctrines of that church, all who have been baptised in it are mem- 
 bers of the church ; but it is not essential to membership that they 
 should be communicants. Members, not communicants, are not de- 
 scribed in any of its offices or by its accredited writers, as being in com- 
 munion with it. The term " communion " in a religious sense, is pe- 
 culiar to the episcopal church, and is not used in the same sense in the 
 written religious devotions or services of any other denomination. Its 
 prayer book denominates as the " holy communion " that sacrament 
 which other churches call " the Lord's supper." 
 
 This word " communion " may be used in various senses : that which 
 is intended by its use in the charter and in the colonial act, is the one 
 very accurately given by Dr. Webster, " the act of communicating the 
 sacrament of the eucharist ; the celebration of the Lord's supper." 
 This will appear from an examination of different parts of the colonial 
 act of 1704. The 3d section of that act, (p. 18, Charter Pamphlet,) 
 provides that the right of presentation to the rectorship, shall belong 
 " to the church wardens and vestrymen of the said church, annually 
 elected or to be elected by the inhabitants aforesaid, in communion as 
 aforesaid" The 5th section declares that the rector and inhabitants in 
 communion as aforesaid, may have a common seal. The 6th section 
 enacts " that it shall and may be lawful for the inhabitants aforesaid, (as 
 yet described only as being in communion) to assemble and meet to- 
 gether, &c, and choose wardens and vestrymen, communicants of the 
 said church, by the majority of the voice of the said communicants so 
 met, and not otherwise." Here the word " communicants" is for the 
 first time introduced, and is applied to inhabitants in communion assem- 
 bled and met together. A subsequent part of the same 6th section pro- 
 vides as follows : " and in case the church wardens or vestrymen, or any 
 of them, happen to die within the year, it shall be lawful for the inhabi- 
 tants aforesaid in communion as aforesaid, at any time upon such emer- 
 gency to meet at the said church, upon notice given by the rector to elect 
 and choose others so qualified as aforesaid, in their room," &c. It will 
 scarcely be contended by any one, that the act intended to prescribe a 
 
19 
 
 particular qualification for electors in the choice of vestrymen at the 
 annual election, and a different one for the choice of the same officers at 
 a special election to supply vacancies. A view of all these sections would 
 induce a very satisfactory conclusion that the same description of persons 
 were intended, whether described as "communicants" or as being " in 
 communion " with the church of England. The same expression in the 
 charter of 1697, being " in communion " doubtless referred to the same 
 description of persons. The view which Col. Troup takes of this ques- 
 tion in his pamphlet, p. 31, 32, is evidence at least of the construction of 
 intelligent men of that day. " The language of the charter and law, 
 (colonial law of 1704,) is no less intelligible than its meaning is clear, 
 and the mind that could doubt whether communicants alone are entitled 
 to vote, must have been incurably diseased with skepticism." 
 
 Mr. Clark has himself furnished the means of presenting a very satis- 
 factory argument why the Legislature should not interpose to repeal the 
 act of 1814, even if it were founded upon misrepresentation and sup- 
 Xrc^ion of fact. He refers, at p. 23, 24, to the provisions of the Re- 
 vised Statutes, authorizing a scire facias to be issued against any corpo- 
 ration for the purpose of vacating and annulling any act creating, &c, 
 such corporation, " on the ground that the same was passed upon some 
 fraudulent suggestion or concealment made by the persons incorporated 
 by such act, or made with their consent or knowledge." {2d Rev. 
 Stat., p. 479, § 13, 2d edition.) This section is doubtless, merely in 
 affirmance of the common law, by which a scire facias may issue out 
 of Chancery to repeal any patent. Comyri's Dig. Patent, F, 6. At 
 all events the power of the Court of Chancery over the subject 
 cannot be denied. 5 Cruise's Dig., 53, 55. In one of the modes 
 stated, either by scire facias or by bill in chancery, the question 
 of misrepresentation, of suppression of facts, can be tried if the 
 Legislature desire it, and the consequences be visited upon those by 
 whose instrumentality it was produced. 
 
 If then, the memorialists are convinced by Mr. Clark's remarks, of 
 the evidence of such an extraordinary fact, that the Legislature of 1813 
 were by some species of mesmerism, or other unaccountable influence, 
 kept in profound ignorance of a law on the printed statute book, referred 
 to in the act which they were amending — a fact which, it is presumed, 
 the memorialists had not themselves discovered when they prepared and 
 presented their petitions for the repeal of the act of 1814, (for those peti- 
 tions contain no allusion whatever to it ;) if they are satisfied of this 
 fact, and believe that it ought to vitiate the legislation which was predi- 
 cated on such profound ignorance and consummate folly, let them ask 
 
20 
 
 the Legislature to authorize legal proceedings to ascertain it. It is be- 
 lieved that they will meet with no opposition from the corporation of 
 Trinity Church or their friends. 
 
 II. The second reason given by Mr. Clark for a repeal of the act of 
 1S14, (p. 12, 24, &c.,) is that it was the exercise of a judicial power, un- 
 warranted and dangerous. He says, " it is admitted that if it altered 
 the existing rights of the corporators, it was a plain violation of the Con- 
 stitution of the United States," for which he refers in a ?wte to the pre- 
 face to the re-print of remarks on Trinity Church bill, by Col. Troup. 
 Now that preface has been examined again and again, with the utmost 
 care, and no such admission, nor any approaching it, can be found. 
 Judge Troup had contended in his pamphlet that it was competent to the 
 Legislature to alter the elective franchise in corporations without advert- 
 ing to the distinction between public corporations, employed in the ad- 
 ministration of the government, and private eleemosynary institutions. 
 It was to correct this omission that the preface in question called attention 
 to this distinction, as established in cases decided since the appearance of 
 the pamphlet, and as prohibiting the intervention of the Legislature in 
 relation to private corporations without their consent. The only question 
 discussed was the right of the Legislature to interfere against the will of 
 the corporation, for that is the only case to which the constitutional pro- 
 hibition applies. If the contract be modified by the consent of the con- 
 tracting parties, the obligation is not impaired — the obligation no longer 
 remains, it has been removed by the parties. This is a principle which 
 seems to be kept entirely out of sight in Mr. Clark's report. He no 
 where notices the all-important fact that the act of 1814 was passed upon 
 the application- of Trinity Church after full notice, and that the law was 
 assented to by them. Here, then, were the two parties to the original 
 compact — the Legislature representing the sovereign power of the State, 
 and the corporation, whose rights were to be effected, concurring in an 
 act modifying that compact. Although this view was most distinctly pre- 
 sented in a pamphlet, to which Mr. Clark has referred at p. 18 ; yet, 
 has he strangely overlooked it, and has discussed the whole question as 
 if the act of 1814 had been passed, under the same circumstances as that 
 of the Legislature of New-Hampshire in relation to Dartmouth College, 
 against the will and consent of the corporation. 
 
 The corporation of Trinity Church represented to the Legislature that 
 in the progress of events, a new state of things had arisen for which the 
 existing compact between the government and the corporation had not 
 provided, or that the provision, if any, was imperfect, and gave occasion 
 to doubts and controversies. That state of things was, "that distinct 
 
21 
 
 corporations had been formed, each having its own peculiar endowments 
 and places of worship, with rectors and other officers of their own choice, 
 totally independent of any control or interference of your petitioners;" 
 and further, " that individuals belonging to such separate congregations, 
 have pretended to claim" the right of voting in the elections and regula- 
 ting the affairs of Trinity Church. They therefore pray for an act " to 
 alter the name of this corporation, and also to obviate and settle the 
 questioiis that might arise in consequence of incorporating other Episcopal 
 congregations in the city of New- York." Let it be observed that the 
 petition asked for no law that could affect any other Episcopalians than 
 those who belonged to such separate corporations, and the question and 
 the only question upon that point, on which legislative interposition was 
 asked, related to the individuals helonging to the other corporations. And 
 such as will be shown presently, was the only effect of the law of 1814, 
 and that it left other Episcopalians precisely where they were before the 
 passage of the act. 
 
 Now, with what propriety can it be said that an act passed for such a 
 purpose, to obviate and settle questions arising out of an imperfect previ- 
 ous act of the Legislature, was not legislative and was judicial? It was 
 an amendment of a legislative act in particulars, which subsequent cir- 
 cumstances had rendered ineffectual. It is the province of all sound 
 legislation to protect citizens in the free and undisturbed enjoyment of 
 their rights whether natural or acquired. There was an evil threatening 
 the peace and prosperity of a respectable body of citizens having corpo- 
 rate rights. That body, by its legitimate representatives, proposed a 
 modification of the compact to the other contracting party, which was 
 assented to and adopted. Is this the manner in which courts of justice 
 proceed ? 
 
 The very act of 1784, which it was asked to amend, had been passed 
 in the same way. Can it be said that that act was judicial? 
 
 An act to remove doubts respecting the charter rights of the ministers, 
 elders and deacons of the Reformed Dutch Church of the city of New- 
 York was passed in the same year, which confirmed elections and appoint- 
 ments, notwithstanding their want of conformity to the charter, and which 
 abrogated an important power of assessing upon the members of the church, 
 the expenses of maintaining its ministers and officers, and repairing it, 
 &c. 
 
 Numerous acts of a similar character are found in the laws of almost 
 every session since the organization of the government. Charters of 
 every description, charitable, religious, banking, insurance, library, manu- 
 facturing — have been, from time to time, amended to explain or correct 
 
22 
 
 ambiguities or errors ; to enlarge, to modify, and to diminish the corporate 
 powers in matters affecting the interests of stockholders ; upon the applica- 
 tion of the trustees, directors or other official representatives of such corpora- 
 tions. They more or less give construction to previous acts, and generally 
 supply their deficiencies. Was the power thus exercised judicial, or 
 was it legislative ? A distinguishing feature of a judicial act is, that it 
 declares what the law has been and is, while a legislative act operates 
 prospectively and declares what the law shall be. The judicial act 
 affects cases of the like nature which have already occurred and declares 
 the law by which they are to be governed. 
 
 Of the same general character are the statutes to be found in our ses- 
 sion laws so profusely, confirming official acts of justices and other officers, 
 irregularly elected, or qualified, and acts confirming titles of heirs and 
 widows or of purchasers from them. 
 
 In the cases of corporations, the contract is made between the govern- 
 ment and the body corporate, in its corporate charter, and not with its 
 individual members. They are not known individually; they are merged 
 in the body politic, and are represented by its officers, and necessarily 
 bound by their acts. The very principle of their organization is, that 
 the majority control and regulate the body; and the officers chosen by 
 the majority, are its agents. 
 
 In the Bank of Augusta vs. Earle, 13 Peters 587, Ch. J. Taney giv- 
 ing the opinion of the court, says, "Whenever a corporation makes a con- 
 tract it is the contract of the legal entity ; of the artificial being created 
 by the charter; and not the contract of the individual members." 
 
 Mr. Willcock in his treatise on corporations, p. 202, says, " The cases 
 which have been determined on the presumption that the right of ejec- 
 tion may be restricted by a new charter, are so numerous that the ques- 
 tion seems to be no longer controvertible." 
 
 In the case of The Lincoln and Ken. Bank vs. Richardson, 1 Green- 
 leaf 's Rep. 7. : held by the Supreme Court of Maine, that the 
 stockholders c k ure bound by every act which amounts to an 
 acceptance of the terms of the charter, on the part of the directors. 
 
 Upon no other principle than this, that those representing a corporation 
 by virtue of their election, may assent to modifications of the charter, in 
 good faith, can any one justify the numerous laws to be found extending 
 acts of incorporation, enlarging or diminishing the capitals originally au- 
 thorized, and in a variety of ways affecting the interests of individual 
 stockholders. To dsr.y the principle, would be to sweep from the statute 
 books a large portion of the laws they contain. 
 
 As acts of :;.ec-7^-&t:on of private eleemosynary institutions, are ad- 
 mitted on all hands to be contracts between the government and the cor- 
 
23 
 
 poration, they are subject to the provisions of the constitution of the 
 United States, which forbids any State from impairing the obligation of 
 contracts. The effect of this, is to create an entire dissimilarity between 
 charters granted by the British parliament and those given by our State 
 Legislatures, in respect to the power of repeal or modification. While 
 the parliament by its constitution has such power, t does not pos- 
 
 sess it, without the assent of the corporation. ice Story in 
 
 Dartmouth College vs. Woodward, 4 Wheaton, . When a pri- 
 
 vate eleemosynary corporation is thus created by the charter of the crown 
 it is subject to no other control on the part of the crown, than what is 
 expressly or implicitly reserved by the charter itself. Unless a power be 
 reserved for this purpose, the crown can not by virtue of its prerogative, 
 without the consent of the corporation, alter or amend the charter, or di- 
 vest the corporation of any of its franchises, or add to them, or add or 
 diminish the number of the trustees, or remove any of the members, or 
 change or control the administration of the charity, or compel the corpo- 
 ration to receive a new charter. This is the uniform language of the 
 authorities, and forms one of the most stubborn and well settled doctrines 
 of the common law." 
 
 It is submitted that this is a full and accurate description of the limita- 
 tions of the power of our State Legislatures under the constitution of the 
 United States, and that whatever may be predicated of the power of the 
 crown in reference to the corporations created by it, may be of the State 
 Legislatures. Now, in the case of the King vs. Miller, in 6th Term 
 Rep. 276, Lord Kenyon, giving the opinion of the King's bench says, 
 "Where a corporation takes its rise from the King's charter, the King by 
 granting and the corporation by accepting another charter, may alter it, 
 because it is done with the consent of all the parties who are competent 
 to consent to the alteration." This consent may be given by the corpo- 
 rators, or a majority of them, expressly by some formal act ; or it may be 
 presumed and inferred from repeated acts under the alterations, evincing 
 their acquiesence and sanction. In the case of The Bank of the U. S. 
 vs. Danbridge, 12 Wheaton, 70, 71, the judge delivering the opinion of 
 the Supreme Court of the U. S., says: "In short we think the acts of 
 artificial persons afford the same presumptions, as the acts of natural 
 persons. Each affords presumptions from acts done, of what must have 
 preceded them, as matters of right, or matters of duty." " So in rela- 
 tion to the question of the acceptance of a particular charter by an exist- 
 ing corporation, or by corporators already in the exercise of corporate 
 functions, the acts of the corporate officers are admissible evidence from 
 which the fact of acceptance may be inferred. It is not indipensable to 
 
24 
 
 show a written instrument or vote of acceptance on the corporation books. 
 It may be inferred from other facts, which demonstrate that it must have 
 been accepted." In the present case, the acts not only of the corporate 
 officers, but of the corporators, in acquiescing in the provisions of this 
 act of 1814, and in a uniform course of electing wardens and vestrymen 
 according to those provisions, for more than thirty years, afford the most 
 satisfactory and conclusive evidence of the acceptance of that act. 
 
 In most cases it must be impracticable to obtain the previous concurrence 
 of all the corporators, to any modification of a charter, and the consequence 
 of requiring it, would be to prevent the most salutary amendments, benefi- 
 cial to the corporators themselves. To avoid such consequences, the 
 constant practice has been to amend and modify charters upon the appli- 
 cation of the officers of the corporation, in the first instance ; and these 
 alterations are deemed to have been assented to by the whole body of 
 corporators, unless objections by a majority of them, are made at the 
 time, or within a reasonable period afterwards. 
 
 The Legislature has repeatedly acted upon this principle, in requiring 
 the assent of the corporation under its corporate seal, to alterations in its 
 charter, instead of requiring any expression from the individual corpora- 
 tors ; thus recognizing the authority of the corporation by its officers, to give 
 a valid and binding consent. Thus in 1829, after the passage of the act 
 to create the safety fund, some thirty bank charters were renewed, and in 
 all the acts of renewal the following clause is found : " The charter of 
 the said corporation shall not be extended by virtue of this act unless the 
 said corporation shall, on or before the fourth day of January next, 
 cause to be filed with the comptroller of this State, a certificate under its 
 corporate seal and signed by its president and cashier, setting forth that 
 the said corporation assents to become subject to all the provisions of this 
 act." Session Laws of 1829, p. 465. 
 
 The act of 1837, suspending certain provisions of law respecting 
 banks, and containing important restrictions upon their powers, has a si- 
 milar provision in sec. 8, that it should not take effect in relation to cer- 
 tain banks until they should signify their assent to its provisions, by an 
 agreement under their corporate seals, to be filed with the Secretary of State. 
 
 Indeed, so far as the legislation of this State bears upon the question, 
 there has been one uniform invariable course, of which numerous 
 instances might be cited like those already given, and there is not a soli- 
 tary case to be found, where the assent of individual corporators to an 
 alteration of the charter, has been required. Surely such a legislative 
 construction, not questioned by any and acquiesced in by all, is entitled 
 to great respect and consideration. 
 
25 
 
 In this country the power of a corporation to dissolve itself by the act 
 of a majority, seems admitted by all judges who have spoken on the 
 point ; see the cases collected in Angel and Ames on corporations, p. 
 507. But in this State the question has been put to rest by a legislative 
 act. The 3d article of title 4, chap, 8, part 3 of the Rev. Stat., (vol. 2, 
 p. [382,] 468,) provides, that whenever the directors, trustees, or other offi- 
 cers who have the management of the concerns of any corporation, or a 
 majority of them, shall for any reason deem it beneficial to the interests 
 of the stockholders, that such corporation should be dissolved, they may 
 apply to the Chancellor for that purpose, who is authorized on such appli- 
 cation to dissolve it accordingly. This law was originally passed in 
 1817. It is not prospective, but in terms includes existing corporations. 
 Thus the principle is most distinctly recognized that the directors and 
 trustees of corporations may affect the rights and interests of stockholders 
 by giving up their charter without their assent to the particular act, or 
 without any other assent than what is implied from the nature of corpo- 
 rate organizations and from the election of directors. It is true the Le- 
 gislature did not think proper to extend this particular law to library socie- 
 ties, to religious corporations, or to select schools or academies. But the 
 act proceeds upon the assumption that the power exists in all corporations, 
 and regulates its exercise. If it did not exist, the act could not confer 
 it, especially in reference to corporations then in being. Indeed this 
 power of dissolution by surrender seems admitted in all the cases which 
 have occurred in this State. She vs. Broom, 19 John., 456. Briggs vs. 
 Penniman, 1 Hopkins, 300 ; 8 Cowen, 387. 
 
 An extraordinary remark occurs at p. 26 of Mr. Clark's report, which 
 certainly must have been made without due reflection. It is, that the act 
 of 1814 was passed " without any investigation of the facts, any exami- 
 nations of the law, or any hearing of the parties." Now it appears from 
 the extracts from the proceedings of the two houses, appended to the 
 memorial, and to which Mr. Clark has referred in another part of his 
 report, that a remonstrance against the bill was presented to the Senate 
 on the 18th of March ; that it was discussed in committee of the whole 
 both in the Senate and Assembly ; that it was referred to the Attorney- 
 General for his opinion on the law of the case ; that it was again debated 
 in the Assembly, when a motion to reject it was negatived by a vote of 
 66 to 23. It would be difficult to furnish stronger evidence respecting 
 any statute which has ever passed the Legislature, that the parties were 
 heard, that the facts were investigated, (indeed, there was not a single 
 fact in dispute,) and that the law had been fully and thoroughly ex- 
 amined. 
 
 4 
 
'20 
 
 III. The third reason given by Mr. Clark, as stated at p. 12, for recom- 
 mending a repeal of the act of 1814, and as expanded at p. 29, 30, &c, 
 is, that the terms of that act dispense with certain qualifications of the 
 corporators, that were deemed essential to the character and purity of Tri- 
 nity Church, and may change the location and character of the corpora- 
 tors. 
 
 The members of Trinity Church and other episcopalians, will probably 
 be astonished to learn from Mr. Clark's report that the act of 1814 " aban- 
 doned all the securities" for preserving the religious character of Trinity 
 Church.* One of these securities is said in the report of Mr. Clark, to 
 have been found in the name given to the corporation by the act of 1788, 
 of " the rector and inhabitants, &c, in communion of the protestant 
 episcopal church in the State of New-York." A name would be but a 
 slight and feeble security against a church abandoning episcopal doctrine 
 and worship, when its members had renounced them. If there be such 
 virtue in a name, the colonial act of 1704 must come under condemna- 
 tion. For the charter of 1697 had called the corporation " the rector and 
 inhabitants, &c, in communion of our protestant church of England, as 
 now established by our laws ;" but the colonial act suppressed the word 
 " protestant," that all-important and emphatic word which has found such 
 favor in Mr. Clark's report, and entirely omitted it in designating the 
 corporation. 
 
 Another " security " for the character and purity of Trinity Church, 
 Mr. C. thinks is found in the 3d section of the act of 1784, which de- 
 scribes the persons who shall be deemed corporators, as those " professing 
 themselves members of the Episcopal church." This security, Mr. C. 
 says (p. 29) is forfeited by its not being required in the act of 1814. 
 Mr. Clark would not venture on the positive assertion that this qualifica- 
 tion is repealed by the act of 1814, but his whole argument on this point 
 is founded on that assumption. There is nothing in the act of 1814 at 
 all inconsistent with the qualification in the act of 1784, requiring the 
 corporators to profess themselves members of the Episcopal church. The 
 well settled rules of construction (which will be more fully noticed here- 
 
 • On this subject as well as in reference to the charge against the committee of the ves- 
 try, who procured the passage of the act of 1814, that they either through ignorance or 
 mistake, omitted to inform the Legislature that the act of 1704 was yet (as Mr. Clark 
 supposes,) a valid, existing law, it may be proper to copy from the printed remonstrance 
 the names of the gentlemen who were members of it, viz: Richard Harison, David M. 
 Clarkson, Thomas Barrow, Robert Troup, Jacob Le Roy, Peter Aug. Jay and Thos. 
 Ludlow Ogden. Not a few of the memorialists themselves must be surprised to learn 
 t hat however recreant to their duty the others might have been, Mr. Jay could have 
 consented to accept a law (hat abandoned all the securities of Protestantism. 
 
27 
 
 after) require that all statutes on the same subject shall be considered tor 
 gether, and full effect be given to each ; and the application of them to 
 this case would require that a person offering himself to vote under the 
 act of 1814, should possess all the qualifications required by all the acts 
 on the subject, except those which had been repealed. 
 
 The position heretofore advanced, is also maintained, that the -phrase 
 "forming part of the same religious corporation " contained in the act of 
 1814, in itself prescribes the condition that the persons offering to vote 
 shall be corporators according to the laws then in force. It is insisted 
 with entire confidence, that the expression "forming part of the same 
 religious corporation" applies to the first antecedent in the same 2d 
 section — "all male persons," and not to "the chapels belonging to 
 the same " — on account of the manifest absurdity of saying that a 
 chapel forms a part of a corporation. But it is unnecessary to spend time 
 in the discussion of that question, because the position already established 
 is sufficient — that the provision in question in the act of 1784 is not repealed 
 by the act of 1814. It is to be hoped that this view will relieve Mr. Clark, 
 and all others from their painful apprehensions arising from their suppo- 
 sition that Trinity Church is released from the obligation of being a pro- 
 testant church. Upon the principle already stated, of considering all the 
 charters and laws bearing upon the subject, and giving them full opera- 
 tion, from the charter of 1697 to the act of 1814, Trinity Church must 
 not only remain a protestant church, but must continue an episcopal 
 church, in communion with the protestant episcopal church in the State 
 of New-York and in the United States ; neither the corporation nor its 
 members can renounce the authority of bishops or the canons or rubrics of 
 the church — nor can they dispense with or mutilate the prayers and 
 order of religious worship set forth in the book of Common Prayer. All 
 the securities which ever existed to protect the corporation and its mem- 
 bers from popery on the one hand and from the doctrines and forms of 
 worship of other religious denominations on the other, are still maintain- 
 ed in their original vigor and strength. 
 
 It is hoped that it may be permitted, without disrespect to the senato- 
 rial character, to express deep regret that an official public document like 
 the report of a member of a committee of one branch of the Legislature, 
 should contain statements and intimations in relation to the differences on 
 theological questions, known to exist in the episcopal church, exceedingly 
 offensive to a portion of that denomination, and which as they have no 
 bearing whatever on the legal or constitutional questions involved, are in- 
 troduced without any necessity or excuse. Had the report been prepared 
 by one of the heated zealots who have made themselves conspicuous for 
 
2S 
 
 their intolerance and arrogance — who assume the very infallibility which 
 they deprecate, and seek to proscribe their brethren for an adherence to 
 what they conscientiously believe to be the true and sound doctrines of their 
 church in the days of its greatest purity — had the report been prepared 
 by one, who in a whole life of religious controversy had evinced anything 
 but charity, it could not have contained more unjust, or more intolerant 
 reflections. Our Constitution has wisely prohibited all discriminations on 
 account of religious belief, and hitherto our Legislative assemblies have 
 adhered to the spirit of this provision, and have scrupulously avoided all 
 discussions of such topics as calculated only to excite intolerance, disorder 
 and contention. 
 
 It is believed that there are very few instances in which legislative 
 reports have been of a different character, previous to that under consid- 
 eration. The same Senator did indeed indulge himself in allusions of a 
 similar description in a report presented by him to the Senate in 1845, in 
 relation to changing the name of a public school society, 
 
 Trinity Church has no concern with these contentions, and as her rights 
 are in no way connected with them, they should not be made dependent 
 on them. The corporation has taken and will take no part in them. 
 Individual members will espouse such views as their consciences dictate, 
 and whether they be right or wrong, the corporate authorities have neither 
 right nor pretension to enquire. It is insisted that such discussions 
 are improperly mingled with the matters before the Legislature. They 
 divert attention from the true merits of the controversy, and substitute 
 feeling and prejudice for judgment and discretion. Their introduction is 
 therefore deprecated as improper in itself and unjust to the corporation — 
 and to those who are assailed. The latter are entitled under our blessed 
 constitution to " the free exercise and enjoyment of their religious pro- 
 fession and worship without discrimination," and without molestation 
 from any source, whether they belong to either extreme of the opposing 
 parties, or are between the two. "When Trinity Church or any other 
 corporation diverts the funds entrusted to its care, to uses and purposes 
 variant from the intentions of the donors or the policy of the State, the 
 judicial tribunals will be found armed with abundant powers to deprive 
 the offending corporation of all control over those funds, and to declare 
 its dissolution for any abuse of its franchises. It cannot be pretended 
 that the repeal or the continuance of the act of 1814, would either pre- 
 vent such abuse, or add to, or diminish, the powers of the courts to correct 
 it. How then could the apprehension, real or affected, of such abuse, in- 
 fluence the action of the Legislature upon the memorials presented to it ? 
 Those memorials presmtrd no such ground for legislative interposition. 
 
29 
 
 .\nd it may be supposed without questioning the astuteness of Mr. Clark, 
 that those who prepared the memorials and the accompanying argument, 
 were at least as well acquainted with the appropriate grounds on which 
 their application was to be sustained, as he could be. The}' had no such 
 apprehensions, or if they had, they considered them unfit to be presented 
 to the consideration of a legislative body. 
 
 There is another omission in the act of 1814, which Mr. Clark's report 
 presents as a reason for its repeal, and which he considers not quite so 
 alarming in its possible consequences as that last mentioned, and this is 
 stated at p. 31, to be the omission to re-enact in the description of the 
 corporators, that they must be inhabitants of the city of New-York. The 
 report says that this limitation is retained in the acts of 1784 and 17S8, 
 but is not found in the act of 1814. The answer already given covers 
 this objection. All the statutes in relation to Trinity Church are to be 
 considered and construed together, being in pari materia, and no provi- 
 sion in one is repealed, unless by express words, or by necessary implica- 
 tion in consequence of its repugnancy to a subsequent provision.* It 
 might with equal propriety be said that the wardens and vestrymen had 
 no authority to choose a rector, because no such provision is found in the 
 act of 1814, or that no election could be had, because neither the number 
 of wardens and vestrymen to be chosen, nor the time of the election, were 
 provided, either in the act of 1784 or in that of 1814. These acts were 
 supplements to those previously existing, and provided for the special cases 
 for which they were intended. 
 
 •These principles seem so entirely to have escaped Mr. Clark's recollection; and 
 the whole of his third reason for the repeal of the act of 1814, being- founded on the 
 misapprehension that the provisions of the charter of 1697 and of the act of 1784, are 
 not to be regarded in determining the qualifications of voters uuder the act of 1814, 
 that it seems advisable to quote a few leading authorities on the subject. In his 20th 
 lecture, Chancellor Kent says: "Several acts in pari materia and relating to the same 
 subject, are to be laken together, and compared in the construction of them, because 
 they are considered as having one object in view, and as acting upon one system; 
 and the rule applies, though some of the statutes may have expired or are not referred 
 to in the other acts." 
 
 In McCartec vs. Orphan Asylum, 9 Co wen, 437, it was held by the court for the Cor- 
 rection of Errors, that " Two statutes shall stand together and both have effect, if pos- 
 sible; for the law does not favor repeals by implication; and all acts in pari materia 
 should be taken together, as if they were one law." 1 Black. Comm. 89, 90. "And 
 an old statute gives place to a new one. But this is to be understood only when the 
 latter statute is couched in negative terms, or where its matter is so clearly repugnant 
 that it necessarily implies a negative." "But if both acts be merely affirmative, and 
 the substance such that both may stand together, here the latter does not repeal the 
 former, but they shall have a concurrent efficacy." 
 
30 
 
 The act of 1814 was passed to obviate and settle doubts in relation to a 
 particular qualification of persons who claimed to be corporators and 
 electors, and it left all other qualifications as it found them, with the 
 exception of dispensing with the requisite of having paid for the support 
 of the church. 
 
 There is not a word to be found in it inconsistent with the qualifications 
 that the voters should be inhabitants of the city of New-York, and that 
 they should profess themselves members of the Protestant Episcopal 
 Church. If these were qualifications before the act, they remain so still. 
 The fundamental error of the report has been, that it considered the 2d 
 section of the act of 1814 a repeal of all former provisions on the same 
 subject; whereas, it is not negative but affirmative in its character, and 
 specifies certain qualifications, which those claiming to vote, should pos- 
 sess. It dispenses with none that were previously required, except the 
 single one before mentioned, of paying to the support of the church. It 
 is submitted then, that Mr. Clark's third reason for the repeal wholly fails, 
 because the fact on which it is founded does not exist. 
 
 The affirmative provision which it contains requiring voters to be mem- 
 bers of the congregation of Trinity church or of one of its chapels, may 
 be defended and justified upon general grounds without reference to any 
 previous charter or law. The meaning of the phrase is sufficiently 
 given in Mr. Clark's report, p. 17, which says, "it denotes all persons 
 who usually assemble for public worship in the same church." Can it be 
 supposed that any church of any denomination could be maintained, in 
 which the trustees, vestrymen, rector, and other officers were to be cho- 
 sen or appointed by any others than those who " usually assemble in it 
 for public worship," and who form the body for whose use the society 
 and all its incidents were created ? Are clergymen in our churches to 
 be called by persons who are not to hear them, and who are to take no 
 part in the services of the sanctuary where they are to officiate ? Are 
 strangers, though belonging to the same general denomination, to select 
 preachers for congregations to which they do not belong? Is it not neces- 
 sarily implied from the very nature of any society or association, that 
 those only are to control its affairs who belong to it ? And shall a con- 
 gregation of a christian church be the only exception ? It is affirmed 
 with entire confidence,- that in the absence of any provision on the sub- 
 ject in any act of incorporation, common sense and common justice would 
 prescribe as the very first and elementary qualification to a person's exer- 
 cising any control in the affairs of any congregation, that he should be- 
 long to it, and be a member of it. And the act of 1814 therefore, very 
 properly inserted a declaration to that effect, that the members of other 
 
31 
 
 congregations might not presume to interfere with one to which they did 
 not belong. And this was the sole and whole effect of this provision. 
 It is not correct, as intimated at p. 27 of Mr. Clark's report, that " all 
 that class of Episcopalians in the city of New- York who are not members 
 of any congregation as such in the city," are excluded from voting by 
 the act of 1814. They have the same right to qualify themselves to be 
 voters which they had before that act ; and if they are excluded from 
 voting, it is because they do not choose to avail themselves -of the right. 
 It might with equal truth be affirmed that they were excluded by the act 
 of 1784, which required them to hold pews or be communicants. Any 
 qualification whatever that should be prescribed, would exclude them 
 until they complied with it. They are excluded by the act of 1814 pre- 
 cisely as presbyterians, methodists, and members of other denominations 
 are, and in no other way, namely : so long as they refuse to participate 
 in the privileges offered them, by refusing to become members of the 
 congregation. It is the result of their own choice — the law does not 
 exclude them. If they are episcopalians, they have but to become mem- 
 bers of the congregation of Trinity Church, "to worship usually" in that 
 church or in one of its chapels, and they at once become corporators and 
 voters upon complying with the other conditions prescribed by the several 
 acts. But from episcopalians who do not belong to any corporation, no 
 complaint is heard. The memorials to the Legislature, proceed wholly 
 from those who belong to other incorporated episcopal churches, and are 
 members of the congregations of those churches. These, and these 
 only, ask that all the guaranties which secure to the members of the 
 corporation of Trinity church, the government and control of their own. 
 affairs, should be swept away, and its elections thrown open to an indis- 
 criminate multitude, belonging to other churches, or belonging to none, 
 upon no other qualification than that they are inhabitants of New- 
 York, and profess to belong to the Episcopal church. This is in truth 
 the result which all their representations and arguments are calculated to 
 produce. 
 
 It is time to hasten to a conclusion. Mr. Clark's report urges the repeal 
 of the whole act of 1814 instead of the particular sections complained of 
 by the memorialists. The third section, confirming grants made by the 
 church, the report considers useless if such grants were originally valid ; 
 and if they were not valid, that then the Legislature had no right to con- 
 firm them. The best answer to this remark is furnished by the second sec- 
 tion of the bill which Mr. Clark has reported, which forbids the corporation 
 from disputing the validity of any of its grants before or since the passage 
 of the act of 1814, by which it would have been bound under that act ; 
 
32 
 
 which is but a circumlocutive manner of declaring that the grants shall 
 be valid ; thus re-enacting the identical provision he proposes to repeal. 
 A stronger admission of the propriety of the third section of the act of 
 1814 could not be made. The fourth section of the act of 1814, stands 
 upon the same ground, being only more particular in referring specially 
 to the grants to St. George's Church. It would also be saved by the 
 second section of Mr. Clark's bill. Would it not have been more simple 
 and direct not to repeal those sections at all, than thus to repeal and then 
 re-enact them ? 
 
 The 5th section of the act of 1814 authorizes an amicable separation 
 of the congregation of any chapel of Trinity Church, by the consent of 
 the congregation and the corporation, and provides that when such agree- 
 ment is made the members of such congregation shall cease to be 
 members of the corporation of Trinity Church, and may incorporate 
 themselves. This section also, Mr. Clark proposes to repeal. He would 
 not even permit persons voluntarily to renounce their connexion with Trinity 
 Church. He would bind them perpetually to that corporation. He says, 
 11 each of these sections, (the 3d, 4th and 5th,) involves a plain exercise 
 of judicial power, or such an alteration of the chartered rights of Trinity 
 Church, as it was not within the competence of the Legislature to 
 establish." It is not deemed necessary to waste a word on this idea of a 
 prospective judicial power in authorizing parties to make future arrange- 
 ments respecting the partition of their common property. And as to 
 chartered rights, it has hitherto been supposed that when an act is au- 
 thorized to be done, upon the consent of all persons interested, there 
 could be no question raised respecting the violation of the rights of those 
 parties. At p. 35 the report regards these sections as quite useless, and says, 
 that the validity of the separations by mutual consent would not be af- 
 fected by a repeal of them. But that is a small part of the question. 
 Future separations will be as necessary hereafter as the} r have been here- 
 tofore ; and the law which allows them in a peaceable, orderly and regu- 
 lar manner, and defines with precision the consequences, is in itself va- 
 luable, and can not be repealed without mischievous results. 
 
 The 6th section of the act of 1814 is a general provision applicable to 
 religious corporations in the cities of New-York, Albany and Schenec- 
 tady, and intended to exempt them from a very unnecessary and vexa- 
 tious burthen. By the 10th section of the general act for religious cor- 
 porations (3d Rev. Stat. p. 210) the treasurer or trustees of churches in 
 New-York, Albany or Schenectady, (and it is not required of churches in 
 any other place,) are required once in every three years to exhibit an ac- 
 count of their estate to the chancellor or a judge of the supreme court or 
 
33 
 
 of the county courts, and in case of omission to do so, the corporation is 
 dissolved. Now, the 6th section of the act of 1814 provides that this 
 account need not be rendered unless the church has acquired other lands 
 subsequent to the rendering of an account. Mr. Clark has entirely mis- 
 conceived the original act when he speaks of the religious societies hav- 
 ing been required by it to make an annual report to the Legislature. 
 There was no such provision. The judge to whom the account was de- 
 livered, if he found the amount of the estate owned by a church greater 
 than that allowed by law, was to report the inventory to the Legislature. 
 It is evident that the provision of the act of 1814 is just as effectual to 
 secure a knowledge of the fact that any church in the above mentioned 
 cities has exceeded its income, as the original law ; and there can be no 
 reason whatever for restoring that law. Still, if it is deemed necessary 
 or proper to do so, it can easily be done by a separate act. 
 
 An unwillingness is felt to close these remarks without adverting to 
 a singular omission in the report of Mr. Clark, to pay the least attention 
 to the argument which was pressed before the committee by those who 
 represented Trinity Church, and which has been reiterated on various oc- 
 casions and in various forms, that the long acquiescence for more than 
 thirty years in the provisions of the act of 1814 by those immediately and 
 directly affected, is in itself a sufficient reason why the Legislature should 
 not now interpose, and by an act of at least doubtful authority, throw open 
 the flood-gates of contention and litigation. Why Mr. Clark has not 
 thought proper to discuss this point, does not appear. 
 
 A brief recapitulation of the points presented in these remarks will be 
 convenient and perhaps useful. 
 
 L Mr. Clark repudiates and rejects the grounds presented by the memo- 
 rialists for the repeal of the act of 1814, as wholly insufficient, because a 
 repeal on those grounds would be a judicial act. 
 
 II. He nevertheless argues that the act was unconstitutional and should 
 be repealed in order to remove an impediment to the legal assertion of 
 the rights of the complainants ; and in effect calls upon the Legisla- 
 ture to act judicially in determining whether those rights have been in- 
 vaded. 
 
 III. He pays no attention to the fact that the act of 1814 was passed 
 with the assent and on the application of the corporation through their 
 legitimate representatives ; and does not discriminate between the power of 
 the Legislature to modify a compact with the consent of the other party, 
 as was done in 1814, and its power to change and alter the compact thus 
 modified, without the consent and against the remonstrance of the other 
 contracting party. 
 
 5 
 
34 
 
 IV. He omits all notice of the admitted fact, that all parties interested 
 in the matter have acquiesced in the act of 1814 for more than thirty 
 years. 
 
 V. He assumes grounds for recommending the repeal of that act 
 which never occurred to the memorialists, and which are wholly unfound- 
 ed in fact. 
 
 VI. The first reason assigned hy him for the repeal, that the act of 1814 
 was procured by the suppression of a statute printed among the public 
 laws, and by misrepresenting of that statute as being repealed, is incon- 
 sistent in itself, is contradicted by the facts, and could not be true. 
 
 VII. If any representations were made, and if the act of 1S14 
 was passed on the belief, that the colonial act of 1704 was repealed 
 by the act of 1784, they were perfectly true and accurate in all re- 
 spects. 
 
 VIII. The second reason assigned by Mr. Clark for the repeal, that 
 the act of 1814 was a judicial construction and determination of the 
 rights of the corporators, is unsound. It was strictly legislative, partak- 
 ing in no respect of the character of a judicial decision ; and it was en- 
 entirely within the competence of the Legislature, in order to cor- 
 rect imperfections and defects in former laws, which rendered them in- 
 applicable to a new state of things that had arisen. Such acts, 
 passed with the consent of the trustees or other officers representing the 
 corporation, and acquiesced in by the body of the corporators, are coeval 
 with our government, and a denial of the principle at this day would 
 overturn hundreds of statutes, affect vitally most important rights and 
 interests, and produce endless and intolerable confusion. 
 
 IX. The third reason given by Mr. Clark for the repeal is, that the 
 act of 1814 " dispenses with" qualifications of corporators, essential to 
 the preservation of the character and purity of Trinity Church, and may 
 change the location and character of the corporators ; — and that the 
 change in the name of the corporation also exposes it to lose its distinc- 
 tive religious character. 
 
 1. It is denied that a change of name can have any such effect, when the 
 peculiar character of the corporation is indicated by the provisions of its 
 charter ; and it is also denied that a single qualification of corporators that 
 existed before the act of 1814 is " dispensed with " by that act, except 
 the single one of paying to the support of the church ; but 
 
 2. On the contrary it is maintained upon the the clearest and best set- 
 tled principles of law, that all the acts and charters in relation to Trinity 
 Church form one body of laws upon the same subject, which are to have 
 full effect and operation in every particular in which they have not been 
 
35 
 
 repealed in express terms or by a subsequent repugnant provision. And 
 as there has been no such repeal of the qualifications referred to, of being 
 inhabitants of New-York and professing to be members of the episcopal 
 church, they are still required ; and all the securities and guaranties of the 
 religious character of Trinity Church and of the proper employment of 
 its funds, are retained in full vigor. That the remedy for any perversion 
 of its funds, is to be found in the courts of justice, and not in the repeal 
 of an act which in no way affects the guards or remedies against such 
 perversion.