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 AR01413112 
 
 ARGUMENT 
 
 OF 
 
 JOHN K. PORTER, 
 
 COUNSEL FOR THE DISFRANCHISED CORPORATORS 
 OF TRINITY CHURCH, 
 
 DELIVERED BEFORE THE 
 
 SELECT COMMITTEE OF THE SENATE, 
 
 MARCH 2, 1857. 
 
 REPORTED BY T. S. GILLETT. 
 
 ALBANY : 
 
 WEED, PARSONS & COMPANY. 
 
 1857. 
 
Digitized by the Internet Archive 
 in 2013 
 
 http://archive.org/details/argumentofjohnkpOOport 
 
ARGUMENT 
 
 OF 
 
 JOHN K. PORTER, 
 
 COUNSEL FOR THE DISFRANCHISED CORPORATORS 
 OF TRINITY CHURCH, 
 
 DELIVERED BEFORE THE 
 
 SELECT COMMITTEE OF THE SENATE, 
 
 MARCH 2, 1857. 
 
 REPORTED BY T. S. GILLETT. 
 
 ALBANY : 
 
 WEED, PARSONS & COMPANY. 
 1857. 
 
,L2b 
 
After G. M. Ogden, Esq., and Hon. Amasa J. Parker, the 
 counsel for Trinity Church, had concluded their arguments, Mr. 
 Porter addressed the Committee in reply as follows: 
 
 In behalf of the great body of the Episcopalians of New- 
 York, who for forty-two years have been precluded, by an act 
 of legislative suspension, from the exercise of their corporate 
 rights, I appear to ask that the barrier to the enjoyment of 
 those rights may now be removed. If we were to rest our 
 case upon a simple comparison of the second section of the act 
 of 1S14, with even those portions of the charter and subsequent 
 grants, read by my learned friends in aid of the exclusive 
 claims of Trinity, in the course of the able arguments which 
 have just been closed, no room would be left for doubt that 
 the claimants would still be in the undisturbed possession 
 of their franchises, but for this act of legislative exclusion ; an 
 act procured on the application of Trinity Vestry in fraud of the 
 beneficiaries of the trust, and operating as a great wrong, un- 
 intended indeed by the Legislature, but none the less unjust to 
 those whose rights were shorn away, none the less disastrous 
 to the interests of the church at large, none the less at war 
 with the provisions of the State and Federal Constitutions. 
 
 But we do not rest our case here. We shall, in the course 
 of the argument against the act of exclusion, refer to those ma- 
 terial and controlling provisions of the successive grants, which 
 our adversaries could not cite without exposing the fallacy of 
 their entire argument. We find Trinity in possession of over 
 five millions of property, which she claims to hold in her own 
 right, and to the exclusion of the cestuis que trust, under the 
 authority of the charter of 1697. Here is the charter. Let us 
 recur to it for a moment at the threshold of the discussion. It 
 invests a class of the inhabitants of the city of New-York with 
 corporate rights. It creates a trust. It grants and confirms to 
 
4 
 
 the trustees the property now known as Trinity church and 
 churchyard. It makes the trust perpetual, and declares the 
 uses to which the property shall be applied in all time to come. 
 Who are the grantees designated in the charter? "The rector 
 " and inhabitants of our said city of New-Yorke, in communion of 
 " the Protestant church of England."* On what trust was 
 the property granted? Read the declaration of uses. " The 
 " same is hereby declared to be forever separated and dedicated 
 " to the service of God, and to be applyed therein to the use and 
 " behalfe of the inhabitants from lime to time inhabiting and to inhabit, 
 "within our said city of Ncw-Yorke, in communion of our said 
 " Protestant church of England as now established by our laws, 
 " and to no other use or purpose whatsoever '."f These are the 
 answers recorded in the charter under which she claims, by 
 William of Orange, and his governor-general, to the present 
 pretensions of Trinity. 
 
 The claim now made in her behalf is, that this charter, and 
 the subsequent grants to the same uses, vested no rights in the 
 Episcopal inhabitants of the city of New-York ; that they were 
 designed to create a close corporation, responsible neither to 
 the church nor the government ; that the trust was intended 
 for the benefit of the trustees, and not of the cestuis que trust — of 
 the vestry for the time being, and not of the corporators for all 
 time to come ; that the officers of Trinity can hold the property 
 under the grant as their own, and repudiate the trust upon 
 which it was granted ; and that even if this were otherwise, 
 though there is no warrant for a breach of trust in the charter 
 itself, though the chartered rights of the corporators and benefi- 
 ciaries were secure down to 1814, yet the Legislature then lent 
 its sanction to the proposed fraud, and absolved the vestry of 
 Trinity from the obligations previously imposed by contract, 
 and declared by law. If this be so, the act of 1814 has remain- 
 ed too long upon the statute book. No man can believe that 
 the Legislature would, with a full jnowledge of the facts, have 
 sanctioned a wrong like this. It would have been equally op- 
 posed to its sense of justice, and to its respect for constitutional 
 
 * Charter Book, page 8. f Charter Book, page 7. 
 
5 
 
 rights. If the effect of the act of 1S14 be what the counsel for 
 Trinity claim, it should at once be repealed, or so amended as 
 to restore the rights it divested. 
 
 Its practical operation has been to disfranchise over 7000 
 Episcopal communicants of the city of New-York ; to deprive 
 them of their rights as voters, beneficiaries and corporators, 
 and to enable 92 qualified communicants, and 221 pew-holders 
 of Trinity, to lay their hands upon a fund of more than five mil- 
 lions, and hold it, to the exclusion of their brethren, though dedi- 
 cated to the use of the whole by the original charter, by the suc- 
 cessive royal grants, by the colonial statute of 1704, and the 
 state laws of 1784 and 17S8. This is not all. Emboldened 
 by success, the vestry of Trinity plant themselves upon the law 
 of 1814, and tell you that the wrong is not theirs, but yours. 
 Forgetting that you enacted it on their representations, they 
 insist upon retaining the benefit, while they shift the burden of 
 injustice from their shoulders to your own. They claim that 
 they are not responsible because the act was yours ; and that 
 you have no power to repair the wrong, even if it was procured 
 by fraud, and though it clove down the vested rights of thou- 
 sands, against the terms of the charter and the plain mandate of 
 the constitution. 
 
 The Vestry of Trinity go farther still. They hold themselves 
 absolved by their character as trustees from all responsibility to 
 the government, at the same time that they repudiate the trust 
 as between themselves and the beneficiaries. They deny the 
 right of the Legislature to investigate corporate abuses in mat- 
 ters of public concern, and defy your authority to make inquiry 
 into official maladministration, though affecting the rights of 
 over 7000 citizens, who seek redress for wrongs inflicted under 
 color of legislative sanction. 
 
 You are told, in effect, by the learned counsel, as the Senate 
 was previously told by Trinity Vestry, that you are intruders 
 and intermeddlers ; that the legislative supervision of the vested 
 rights of over seven thousand of your citizens is a matter in 
 which you have no concern ; that the Senate should ascertain 
 
G 
 
 the pleasure of the Vestry before it presumes to inquire into their 
 official conduct and . corporate management of a trust fund. 
 But finding that the Legislature did not yield with becoming 
 modesty to this cool rebuff, Trinity condescended in the end to 
 return to the Senate what purported to be a response to its 
 inquiries; suppressing, in part, the information demanded, and 
 in part misleading the Senate by seeming answers and evasions. 
 Trinity finally carried her condescension still farther, and, after 
 finding that her suppression of the information required, did not 
 deter the committee from ascertaining, by other evidence, the 
 facts she chose to withhold, she came at length of pure grace 
 before your body to testify in her own behalf, not, however, 
 without again, through her counsel, administering her stern 
 rebuke to the committee and the Senate for their presumption, 
 and warning both of her severe displeasure if they finally failed 
 to surrender in her behalf their legislative prerogative. The 
 Vestry of this corporation have evidently been deluded into the 
 belief that they are above the law and the constitution. They 
 are mistaken. Under our form of government, corporate abuses, 
 by which thousands of citizens are sufferers, are not beyond the 
 reach of legislative inquiry. Wrongs persisted in, under color 
 of unjust and unconstitutional laws, are not beyond the pale of 
 legislative relief. As well might the other corporations of the 
 state defy your authority to investigate their abuses. When 
 has the bold claim been advanced by your insurance companies 
 that they could exclude your committees of investigation? 
 When has it been claimed in behalf of the banks, some of whose 
 charters date far back toward the colonial times, that the offi- 
 cers, by statutory aid, could exclude the stockholders and usurp 
 their property, without power on the part of the Legislature to 
 undo its own wrong? The plea of Trinity Vestry to your 
 jurisdiction, on the ground that they are absolved from allegiance 
 to the government, is equally novel and groundless. They do 
 not venture to stand upon it themselves. They deny your 
 authority, but recognize it. Trinity church at last interposes 
 her answer; and surely, when that august body condescends to 
 testify in reply to questions propounded by the state govern- 
 
7 
 
 merit, we may expect to learn the truth, the whole truth, and 
 nothing but the truth. 
 
 Let us recur to the resolutions of the Senate — the first answer 
 of Trinity — the supplemental answer with its apology for the 
 provisions of the first, and its admissions of facts previously sup- 
 pressed — and to that portion of the facts established by the other 
 evidence which is undisputed by Trinity. I prefer to confine 
 myself chiefly to that part of the evidence, as I had not, like my 
 learned adversaries, the advantage of being present when the 
 testimony was taken, but was first engaged in the case on the 
 very eve of the argument. I am content to rest the issue mainly 
 in regard to questions of fact involved, upon the reluctant testi- 
 mony of Trinity herself, and the leading facts proved by other 
 witnesses, which stand entirely undisputed — which my friends 
 admit to be true, by failing to controvert them by evidence. 
 
 The Senate resolutions were adopted on the 13th of April, 
 
 1855. The first resolution required the vestry of Trinity 
 church to report to the Senate, on or before the 7th of January, 
 
 1856, the number and the names of the persons entitled under 
 the act of 1814 to vote at the annual elections of the corpora- 
 tion, specifying both communicants and pew-holders, and stating 
 the names of all who actually voted at the last three preceding 
 elections. 
 
 The 7th of January came, but no answer came from 
 Trinity. At length on the 15th of February, 1856, a report was 
 received from Comptroller Dunscomb, in which " the vestry 
 " beg leave respectfully to aver that they furnish the information 
 "requested by the Senate."* The vestry were mistaken in their 
 averment. They did not "furnish the information requested by 
 the Senate." They stated " that the total number of the cor- 
 " porators is 305, of whom 92 are communicants, and 213 are 
 " pew-holders ;"t and they suppressed the names of both, though 
 specifically demanded in the resolutions prefixed to their re- 
 port.j: Was this suppression a mere blunder of the vestry, or 
 was it a part of the intentional policy of concealment which 
 
 * Answer, page 3. f Answer, page 4. % Answer, page 1. 
 
8 
 
 has been adopted by this church under shelter of the act of 
 1S14? Ten months afterwards, Trinity herself answers the 
 question in her written communication to the committee, and 
 by her own admission let her be judged. " In the report above 
 " referred to, this corporation designedly refrained from giving the 
 " names."* Might she not, with entire propriety in the same 
 report, have '-'•designedly refrained" from begging leave respect- 
 fully to aver that she furnished the information requested by the 
 Senate ? The apology of Trinity in the supplemental report 
 for the concealment of the names of the corporators, if it means 
 anything, means this, for it is twofold : 1. That she intended to 
 keep the names secret, from an apprehension that Episcopalians, 
 who were not corporators, might learn the names of those who 
 were, and appeal so strongly to their sense of justice, as to in- 
 duce them voluntarily to surrender the control of a fund of five 
 millions, and to recall the interdict against their excluded 
 brethren. 2. That Trinity did not really suppose the Senate 
 was serious in asking for the names, as everybody knew who the 
 corporators were, and if the Senate did not, they might as well 
 have asked any one else as the Vestry of the corporation. The 
 names of those who voted at the last three preceding elections 
 were also suppressed in the first report for reasons not disclosed, 
 but still more cogent as the sequel proves. 
 
 The committee, at its session in New-York, on the 2d of De- 
 cember renewed in writing the demand for the names of the 
 corporators ; and finding that in the absence of information 
 from Trinity, they were proceeding to ascertain the fact by 
 other evidence, the Vestry, at length, on the 18th of December, 
 reluctantly complied with the demand. If you could entertain 
 doubt that concealment, even of the names of her own corporators, 
 was a part of the settled policy of Trinity, after her disobedi- 
 ence of the original requisition of the Senate — after her subse- 
 quent delay in complying with the renewed demand — after her 
 own admission in the last report, that the suppression was de- 
 liberate and designed — all doubt would be removed, by the re- 
 
 * Report, page 63. 
 
9 
 
 maining uncontradicted evidence. One of the witnesses, an 
 assistant clergyman for 18 years in Trinity Church, was unable, 
 during all that period, by diligent exertion, to obtain access to 
 the list of corporators. The Rev. Dr. Wamwrighl was equally 
 unsuccessful, until his elevation to the bishopric. Mr. Wolfe 
 for ten years a vestryman of Trinity, never saw the list, and proves 
 that this was a privilege not accorded, even to the body of the 
 Vestry. One of the present vestrymen, who has been six years in 
 office, was favored, on a single occasion, with a sight of the list 
 in the hands of the rector at an election, but whether before or 
 since the adoption of the Senate resolutions does not appear. 
 One of the clergy of Trinity, when seeking to obtain access to the 
 list, found that it was in the joint charge of the rector and comp- 
 troller, showing that the secret was deemed of too great impor- 
 tance to be exposed, without the concurrence of the heads, both 
 of the secular and the ecclesiastical departments. And even 
 this concurrence seems to have been insufficient to warrant the 
 revelation of the names of those whom Trinity recognized as 
 entitled to vote ; for when her comptroller was before the com- 
 mittee, under oath, he coupled his promise to disclose the secret 
 with the condition, ** if the committee of the vestry authorize me. 11 
 Who constituted that committee of secrecy, his evidence does not 
 reveal. 
 
 But the Senate was obdurate ; Trinity was astonished at 
 your curiosity, and shocked at your presumption; she had 
 " designedly refrained' 1 '' from giving the names, but you would not 
 refrain from examining her vestrymen ; and at length she con- 
 descended to disclose the list of those entitled to vote for the 
 custodians of this fund, and also the list of those who were 
 aware of this right, and permitted to exercise it. 
 
 The second report musters from Trinity Church and her 
 three chapels 305 names of corporators entitled to vote, by em- 
 bracing in the list communicants and pew-holders, non-residents 
 and residents, the living and the dead. Of these 304 corpora- 
 tors the return shows that 23 elected the vestry of 1S50 ; 29 
 
10 
 
 the vestry of 1852; 26 the vestry of 1854; and 32 the vestry 
 of 1855. The practical effect of the new policy introduced by 
 the act of 1814 is, that the vestry is elected and re-elected by 
 less than one-tenth of the corporators of Trinity alone, and that 
 of this one-tenth the 22 vestrymen themselves constitute a de- 
 cisive and controlling majority. 
 
 The second report brings to light the fact established by the 
 evidence beyond all controversy, that the vestry and comptroller 
 knew so little of the corporators, as to certify to the Senate com- 
 mittee the dead of their own church, as pew-holders and electors 
 of Trinity. It brings to light the memorable fact, that of nearly 
 8000 Episcopal communicants in the city of New- York, the 
 original beneficiaries of the trust, Trinity, with the aid of all 
 her chapels and churches, and with nine officiating clergymen, 
 has been able to muster at most but 92 communicants qualified to 
 vote even for a churchwarden. This is the share, on her own 
 showing, which Trinity, with the aid of a fund of five millions, 
 is able to exhibit, in the one hundred and sixtieth year of her 
 existence, as her reapings from the harvest of the present gene- 
 ration, in a city numbering half a million of souls! When you 
 find, on the production of the list of communicants, that she is 
 compelled to resort to her nine clergymen and twenty-two 
 vestrymen to swell the array to the meagre number of ninety- 
 two, you will have no difficulty in understanding one of the 
 reasons why she preferred to withhold the names, and not to 
 take glory to herself over a net balance of sixty-one untitled and 
 qualified communicants, making an average of less than sixteen 
 for each of her magnificent churches and chapels in the 
 metropolis of the western world. This number becomes still 
 more significant, when we find, on reference to the reports of 
 Trinity, that she has been compelled to expend, within the last 
 few years, some $600,000, in the erection of princely palaces, 
 to allure even the ninety-two to her sumptuous couches on the 
 Sabbath Day, being at the rate of over six thousand dollars for 
 each of her qualified communicants. And, while over half a 
 million of the trust money dedicated by charter and by law, to 
 
11 
 
 the use of all the Episcopal inhabitants of New- York, has been 
 thus applied by Trinity Vestry to the purposes of costly and 
 luxurious worship. The reports of the corporation, in conjunc- 
 tion with the other evidence, have developed the fact that, in 
 four wards of that city, embracing over one-fifth of the entire 
 population, there is not, even now, a church or chapel for the 
 worship of God, according to the faith of Trinity. Such has 
 been the result of the maladministration of this consecrated and 
 noble fund, in a city more populous than either of the thirteen 
 lesser states of the Union. Nay, the population of the portion 
 of the city thus neglected by Trinity, with her trust fund of 
 five millions, exceeds the number of inhabitants returned at the 
 last census for either of the four smaller states, or for all the 
 territories in the aggregate. If this property had been properly 
 administered — if it had been applied to the use of the benefi- 
 ciaries at large, Trinity would indeed have been, what her 
 eloquent advocate (Judge Parker) has imagined her to be — an 
 " Alma Mater. 11 Episcopal churches would have sprung up in 
 every ward of that noble city, where the rich and the poor 
 would have been welcomed together to the ministrations of a 
 common altar. 
 
 Another aspect of the case has been brought to view by the 
 reports of the Vestry and the facts disclosed by the witnesses. 
 While over 7000 Episcopal inhabitants of the city of New- 
 York have been excluded and disfranchised by Trinity, under 
 color of the act of 1S14, she now, in an official report, in viola- 
 tion even of the terms of that act, recognizes and returns to 
 the Senate, as corporators and electors, those who are neither 
 communicants of the churches or chapels of Trinity, nor in- 
 habitants of the city of New-York. We have here another 
 explanation of the reluctance of the corporation to disclose to 
 the Senate the names of the present corporators. 
 
 But the policy of concealment and exclusion has been still 
 more strikingly developed in the course of this investigation. 
 The claim put forth by Trinity is, that while the act of 1S14 
 disfranchised the great body of the corporators, it left the rights 
 
12 
 
 of its own particular communicants and pew-holders unimpaired, 
 and secured them at least against encroachment. Yet, in viola- 
 tion of that act, even upon her construction, we find her 
 engaged in a systematic effort to disfranchise the corporators 
 and pew-holders, even in her own chapels. You have the proof 
 before you of the subterfurge of 1S55 ; you have in evidence 
 the leases to her pew-holders, in which she clips three days 
 from the yearly term, for the purpose of depriving the lessees 
 of their right to vote. She annexes to the leases, as a part of the 
 contract, a schedule of regulations, providing for the same clip- 
 ping process in the renewals. Lest this should not suffice to 
 defeat the act of 1S14, and disfranchise her own pew-holders, 
 she adds the further clause, that " the above agreement, or the 
 " occupation of a seat, does not give to any person the right and 
 "privilege of a corporator."* But the counsel say this was only 
 intended for the then current year. They are in error. The 
 regulations appended to the leases provide for renewals on the 
 same terms of disfranchisement. But the counsel say that 
 Trinity intended to disfranchise them at most for only two 
 years. Here also they are in error. The body of the leases 
 contains the receipt in advance for the first year, commencing in 
 April, 1S55, and annexed are the printed receipts of the Comp- 
 troller in blank, for similar advance payments in the three 
 ensuing years, each year clipped in the same way, so that at 
 each annual election, between Easter day and the first Sunday 
 after Easter, the pew-holders should cease to be corporators 
 until the election was closed, though declared to be corporators 
 and voters even by the act of 1S14. But the learned counsel 
 claims that Trinity afterwards repented and rescinded this 
 anomalous regulation. True ; but she neither repented nor re- 
 scinded until after the Senate adopted the resolutions of investi- 
 gation, and demanded from her the names of those entitled to vote 
 at her elections. Then repentance was prudence. Then it be- 
 came her interest to swell the number of her corporators. 
 
 But this policy of systematic disfranchisement and exclusion 
 even of her own congregation was no novelty of 1S55. A fact 
 
 * Report, page 32. 
 
13 
 
 is disclosed on this subject which is not remembered, indeed, 
 by the rector of Trinity, but which others have not forgotten* 
 A gentleman of high character, for ten years prior to 1848 a 
 leading Vestryman of the corporation, testifies to the mode in 
 which elections were then conducted by the officers of Trinity, 
 in disregard of the rights of the corporators, as declared even by 
 the law of 1814. " In addition to the requirements of the law, 
 " they required that all persons desiring to vote should give previous 
 " written notice of such desire to the rector. I objected to that require- 
 " ment when a Vestryman. I considered it an obstacle to voting 
 " — contrary to law."* What became of the vestryman you can 
 readily imagine. In the pithy phrase of the witness, he " was 
 omitted" at the next election. What became of the rule we do 
 not know, for Trinity is a close corporation. It may have 
 shared the fate of another, which is tersely given in the testi- 
 mony of one of the assistant ministers of Trinity: "There 
 was an ordinance of the vestry, interfering, in some respects, with 
 the privilege of voting in Trinity chapel for a time, which was 
 subsequently rescinded*"! 
 
 Though Trinity so long eluded your inquiries, you have 
 been enabled to arrive at some leading and controlling facts. 
 How many more have been sheltered from your view by this 
 policy of close concealment must remain matter of mere con- 
 jecture. It is enough to know that her own Clergy and Vestry 
 were not permitted to learn who were the corporators and 
 electors, and that under cover of the law of 1S14 matters were 
 so managed in the secret councils of Trinity that in 1854 only 
 26 men voted for the 22 vestrymen who were to control a 
 charity fund of over $5,000,000 ; one of them, Comptroller 
 Dunscomb, who would not give you, on oath, the names of the 
 corporators, unless the Committee of the vestry would consent to 
 his revealing the secret; one of them, Vestryman Skidmore, of 
 the standing committee, who refused even to be sworn when 
 you required it, though ready and willing at the call of Trinity; 
 not to speak of the other vestrymen, who were of course im- 
 
 * Report, page 113. f Report, page 83. 
 
14 
 
 partial judges of their own merits, and amiably voted to con- 
 tinue each other in office. 
 
 There was pith and point in the inquiry of the Senate, 
 Whom do you recognize as corporators, under the legislative 
 act of 1814? Who are entitled to vote for your vestrymen? 
 Who elect them in factl Trinity declines to answer. She 
 respects you personally, but defies your authority. She will 
 give you numbers. She cannot indulge you with names. You 
 were not impressed with a suitable feeling of reverence and sub- 
 mission. You quietly put her Comptroller and her Vestrymen 
 under the rude constraint of an oath, and Trinity concluded that 
 if she must either answer on oath, or without oath, she prefer- 
 red to waive the oath. She made her supplemental report. 
 In this, the names returned correspond with the number previously 
 returned. It so happens, unfortunately, that the number of cor- 
 porators is verified even by her only by embracing non-residents, 
 and exhuming the dead. But of the 305 voters in name, who are 
 the voters in fact? Who voted in 1854 and 1855, the two years 
 preceding this investigation? Twenty-six in 1854. Thirty- 
 two in 1855. The Vestry, themselves, in each case, were the 
 majority of the whole. Is it strange that they were re-elected? 
 So much is disclosed. How much more is probably undisclos- 
 ed ? The policy inaugurated in 1814 is fully ripe, and these 
 are its fruits. Until that time every churchman in New-York 
 was both a corporator and a beneficiary. Now, the church re- 
 pudiates the trust. The vestry are at once the corporators and 
 the corporation, the electors and the elected. 
 
 The Senate, in its second resolution, required Trinity to re- 
 port, among other things, the amount expended by her within 
 the five preceding years in building, or assisting to build "free 
 churches in the destitute portions of the parish" with the names of 
 such churches, and the amount expended upon each. The 
 question admitted of no evasion. The answer may be antici- 
 pated. She had expended nothing. There was no such church 
 to name. But she had dohe what was better far — she had built, 
 at an expense of about a quarter of a million, another magnifi- 
 
15 
 
 cent chapel, not free indeed, but more convenient than Trinity 
 church for the accommodation of up-town millionaires, and 
 eminently useful in diminishing the wear and tear of carriages 
 belonging to wealthy corporators on the way to church upon 
 the Sabbath day. 
 
 The third resolution required the vestry to report " what ap- 
 propriations have been made by them during the last three 
 years to institutions of charity, benevolence and learning in the city 
 of New-York." You find the answer at page 17 of the first 
 report of the vestry — not one dollar. To these institutions Trin- 
 ity has tendered decent burial, and that is all. To Christ 
 Church — I do not know under which of the three heads she 
 proposes to classify it, whether as u an institution of charity, 
 benevolence or learning" — to Christ church she has given a 
 " plot to be selected'''' in a graveyard. To the society for the relief 
 of Aged and Indigent Females she has bountifully set apart, in 
 her spacious cemetery, 300 square feet to bury them in. For 
 the inmates of " the Orphan's Home" she has made gracious pro- 
 vision, that even these poor children may have Christian graves, 
 in a plot to be selected, of which those unfortunates will of course 
 have the full benefit, if they take the precaution, before death, 
 to bargain with a hearseman to drive their bodies a mile and a 
 half beyond Manhattanville. The warm heart of Trinity yearns 
 toward these noble " institutions of charity, benevolence and 
 learning ;" but her sympathies are stronger, her care is more 
 provident for the dead than the living, for the corpse than the 
 soul. 
 
 The fourth resolution required the Vestry to report " the esti- 
 " mated value of each lot and parcel of land owned by the said 
 " corporation in the city of New-York, irrespective of the leases 
 " thereon." You will find the answer of Trinity, in her first 
 report to the Senate, at the foot of the sixth page, in these 
 words : " The Senate will perceive that the whole present value of 
 the landed estate of T/inity church is $1,446,371.71." What was 
 the truth, as since ascertained by the most clear and conclusive 
 
16 
 
 evidence? The actual valve was $5,874,023.00 * The apology 
 of Trinity is, that though she did not tell the Senate the truth, 
 she did not tell it a deliberate falsehood. After the valuation 
 in the first report was proved to be untrue, and after the Senate 
 committee made a renewed demand in writing for the "real 
 value" of the property, Trinity, in her second communication, 
 told the Senate that she made the first statement, " expecting 
 " it to receive such credit, and such credit only, to which it might 
 •« be justly entitled."! She coolly assumed that the Senate did 
 not know what it was inquiring for, and that when it asked the 
 Vestry for the value, what it really meant was merely to send 
 them on an errand to find out what the assessors thought it 
 should be taxed for, as between the city and the tenants. But 
 the second demand of the committee left no room for this 
 evasion. The question must be answered, or some other mode 
 devised to elude the inquiry. Trinity was equal to the emer- 
 gency. Her second answer is before you : " The vestry are 
 unable to agree upon any estimate of their own." They had no 
 difficulty in agreeing upon the under valuation of third parties, 
 but they could not possibly agree upon their own valuation. 
 Did they try ? When before did the Vestry disagree, since 
 vestryman Wolfe objected to the rule excluding the communi- 
 cants of Trinity from voting, unless they gave previous notice 
 in writing to the rector that they intended to exercise their legal 
 rights ? If they were unable to agree, why not select a competent 
 man to make the valuation? In a Vestry, having the control 
 of over five millions, would they have us believe that they had 
 not a single man of sufficient capacity to estimate the value of 
 their own real estate? They do not even sign their own 
 reports. Comptroller Dunscomb answers in their names. 
 Could they not trust him to estimate the property in bis charge ? 
 Would the comptroller have had any difficulty in agreeing with 
 himself? They admit, in the second answer, that they under- 
 stood the question of the Senate, when they interposed the first 
 You asked for the value and not for assessors' estimates. If 
 they did not design to anawer, why did they profess to do so ? 
 
 * Report, page 12. f Report, page 6*7. 
 
17 
 
 Why return what was confessedly an under valuation ? The 
 obvious design was to evade — the obvious effect to mislead. 
 Did they not leave you to infer that they had given what you 
 demanded — the true value of the property? But while they 
 fail to answer what you ask, they volunteer what you did not 
 ask. You inquired as to gross value. They profess to return net 
 value. You called for the value, irrespective of the leases. They 
 make a deduction from the value on account of the leases, as if 
 they were really worth nothing, though Trinity holds and owns 
 them, as if the rents received were no consideration for the 
 tenants' occupancy. They profess to give you the value of all 
 their property, real and personal. They claim to have involved 
 the corporation in debt to the amount of $648,913. The fol- 
 lowing is their own language, which you will find at page 7 of 
 the report of the vestry to the Senate : 
 
 " Thus the whole productive estate of Trinity church is cor- 
 " rectly stated as follows: 
 
 "Real estate, $1,446,371 71 
 
 " Bonds and mortgages, 199,469 41 
 
 " Cash in bank at the end of the last financial 
 
 "year, 19,399 46 
 
 $1,665,240 58 
 
 "Deducting the debt, 648,913 00 
 
 " Shows the whole net value to be $1,016,327 58" 
 
 What did they mean the Senate should understand from 
 these distinct and unqualified averments? Did they make this 
 statement, if I may borrow a peculiar phrase from their 
 second report, " expecting it to receive such credit, and such 
 " credit only, to which it might justly be entitled?"* To what 
 credit was it justly entitled? The fact is established, by clear 
 and uncontradicted evidence, that the net value of their pro- 
 perty, making the precise deductions cjaimed in their report, is 
 in fact $5,221,293,47.t The Senate was left to suppose the 
 
 * Report, page 97. \ Report, page 12. 
 
 2 
 
18 
 
 amount to be only $1,016,327.58. The actual amount is over 
 five times the sum returned by Trinity. There was a trifling 
 error in their report to the Senate of $4,204,965.89 ; and this in 
 giving a simple answer to a plain question addressed to a corpo- 
 ration by the state government ! The statement was not made 
 in haste. Trinity took nine months to deliberate upon the 
 question and to prepare her answer. We are willing to con- 
 cede, if the corporate officers prefer it, that this blunder of four 
 millions was not falsely intended, but was merely an attempt at 
 evasion. The attempt was futile. The truth is at length dis- 
 closed. The fact is proved, and no longer open either to denial 
 or concealment — that after making the deduction, not only of her 
 whole indebtedness, but of the value of her leases as returned by 
 her to the Senate, she has a property in her possession of over 
 five millions in net value. 
 
 The next attempt is to evade the force of the fact. Trinity 
 asks your leave to restate the account. She claims now that 
 she did not deduct enough. And on what pretext? Why, 
 that the amount which she returned to the Senate, as the value 
 of the unexpired leases, is not the true value ! If not, why did 
 she so return it? If not, why does she not disprove its truth? 
 Here, at least, she cannot invoke the old pretext of taxable 
 valuation. The assessors never estimated the value of these 
 terms. It was her own valuation. Her counsel ask you now 
 to swell the deduction from a million and a quarter to two 
 millions and a half. Have the leases doubled in value in ten 
 months? On the contrary, they diminish precisely as they ad- 
 vance toward expiration. On what pretext can Trinity claim 
 that, in her former return, she placed a false valuation upon 
 these leases? She adduces no reason for distrusting, in this 
 respect, the truth of her own reports. You will at once per- 
 ceive the absurdity of the claim, by putting the proposed ad- 
 ditional deduction side with the whole net value of the property 
 as stated in her former return. The additional deduction 
 exceeds the entire estate as before returned, and would leave 
 Trinity bankrupt to the extent of some $200,000. The attempt 
 
19 
 
 to escape from her own written statements, without proof of 
 their falsity, is futile and unavailing. 
 
 How, then, does Trinity explain her return to the Senate of 
 " the whole net vahte" of the property as $1,016,327.58, when 
 the actual net value was $5,221,293.47? My learned friends 
 tell us the error was undesigned. Doubtless it was a mistake. 
 But was it not one of those mistakes which are apt to occur in 
 close corporations ? It was the error of secrecy and evasion. 
 In any view, it was a gross mistake. Take two or three illus- 
 trations from the many disclosed by the evidence. No attempt 
 is made to explain or excuse the strange fact that in her report 
 to the Senate she stated the value of lot No. 275 Greenwich- 
 street, at only $6840.40, when she had already sold it a few 
 days before at $20,000. Equally significant is the fact that 
 she returned the value of the Chambers-street lots at only 
 $28,827.40, when but a few weeks before, in the course of a 
 business contract with the Hudson River Railroad Company, 
 she fixed the value at $100,000. Still more gross is the error 
 which occurs in returning to the Senate the value of the two 
 lots in Hudson-street as only $1964.44, for which, a few weeks 
 after, she exacted and received the sum of $20,000. These illus- 
 trations are sufficient, without further pursuing the evidence, 
 to show the frankness with which Trinity dealt with the Senate 
 in answer to the fourth resolution. Her excuse is, that she did 
 not intend to falsify ; she merely intended to evade. 
 
 But though Trinity is slow to answer, in her reports, the 
 questions asked, she is a swift witness in her own behalf as 
 to matters in regard to which the Legislature made no inquiry. 
 She lauds herself for her munificence. She is lost in admira- 
 tion of her own boundless charity. This opened to the Senate 
 a broad field of inquiry. The counsel complain that they were 
 not permitted to pursue this branch of the investigation alone. 
 The incautious challenge of Trinity has led to strange develop- 
 ments. Of these, it is for you and not for me to speak. I was 
 not present when the evidence was taken, though I believe I 
 understand its effect. It will be for you to state in your report 
 
 ♦ 
 
20 
 
 the convictions it must have forced upon your minds in regard 
 to those branches of the investigation in which Trinity indis- 
 creetly led the way. 
 
 Thus far I have dealt only with the leading and undisputed 
 facts which illustrate the practical effects of the encroachment 
 upon the rights of the original corporators and beneficiaries, 
 under color of the act of exclusion procured in 1814 by the 
 vestry of Trinity from the State Legislature. Until that scheme 
 was devised, the corporation was faithful to its trust. From 
 that period its policy changed. It is only another illustration 
 of the lesson taught by the history of all human governments, 
 that when irresponsible power is conferred even on great and 
 good men, it does not tend to make either great men greater or 
 good men better. 
 
 The act of exclusion made Trinity irresponsible, and gave 
 her dominion over the Protestant Episcopal church. From 
 that time her policy was reversed. Before 1S14 she gave 299 
 lots for pious uses; in the next twenty-two years she gave 
 nineteen; in the last twenty years none, except five plots in her 
 cemetery, in which to bury the dead, who are beyond the reach 
 of charity. Her wealth has multiplied, and her endowments 
 are at an end. Before 1814, the rising churches of New-York 
 claimed and received from the trust fund such aid as they 
 required, as matter of undisputed right. Since then, Trinity 
 has treated them as beggars asking for charity. To some, 
 with grudging bounty, she gave annual stipends, terminable at 
 pleasure and dependent on good behavior. Before 1814, she 
 applied the fund to the purposes of the trust. Since then, she 
 has turned broker on her own account. She borrows and 
 lends — making her debt a pretext for refusing to give, and 
 claiming her loans as charities ; taking mortgages for dona- 
 tions — mortgages on the independence of the churches and the 
 altars of her faith ; boasting of her munificence, concealing her 
 resources, and rebuking her sister churches as importunate 
 beggars ; turning her heel upon some and permitting them to 
 perish because they were poor ; smiling graciously upon others 
 
21 
 
 which were orthodox and rich ; lavishing $600,000 of trust 
 money in erecting gorgeous cathedrals for millionaires; and 
 leaving, without a place of worship for her episcopal brethren, 
 a portion of New-York, embracing a greater number of inhabi- 
 tants than the aggregate population of all the cities above her 
 upon the Hudson, Troy and Albany included. 
 
 What has been the practical effect of the new policy of Trin- 
 ity, under color of the act of 1S14, on her financial prosperity ? 
 If you could rely upon her own testimony you would be com- 
 pelled to say that her real estate, which, even if stripped of the 
 buildings, would, upon the undisputed proof, sell to-day, at the 
 merchants' exchange for over five millions, is, in her hands, 
 worth less than a million and a half. She now asks you to 
 make a deduction of a million and a quarter more, on the ground 
 that she has impoverished herself by leasing her property, and 
 yet the proof discloses the fact that she persists in thus impov- 
 erishing herself by renewing these leases as fast as they expire. 
 She keeps herself in debt. She keeps her sister churches in 
 debt, and loads them down with mortgages. With five mil- 
 lions of net proporty she pays over $45,000 a year as interest 
 money, to find an excuse for meeting, with rude rebuffs, the ap- 
 plications for relief by the feebler churches of her own faith. 
 How this ample fund has been mismanaged is disclosed in the 
 evidence of General Dix, an able advocate, but an unfortunate 
 witness for the Vestry he represents. He testifies, in effect, 
 though not in terms, that under the present management of 
 Trinity this vast property has become literally a sinking fund; that 
 though he found " the financial condition of the corporation," 
 when he became a Vestryman, in 1849, " very unsatisfactory" it 
 has been growing worse ever since ; that in each of the last ten 
 years she has improvidently permitted her expenditures to ex- 
 ceed her income by sums varying from $9226.94 to $51,368.46; 
 and that the aggregate of the deficits in the last ten years alone 
 is $273,597.25. How long this trust fund will be able to en- 
 dure the present policy of depletion, this system of shriveled 
 revenue and swollen expenditure, the Committee can judge by 
 
22 
 
 reference to the statement of General Dix. Take, for instance, 
 the first year of the decade embraced in his table. " Reve- 
 " nue $68,49S.47— expenditure $94,791.93— deficit $26,293.46." 
 With a revenue of only $68,000 we can understand why Trinity 
 should be willing to lead the Senate to suppose that the princi- 
 pal was but little over a million of dollars. But when we find 
 the net principal to be $5,221,293.47, and the income less than 
 $69,000, we may well inquire how it is that under the new 
 policy of 1S14, a property, which, properly managed, would 
 yield, even at five per cent, an annual income of over $260,000, 
 yields, in the hands of Trinity Vestry, but a fraction over one 
 per cent a year. 
 
 When we find that the new policy, adopted under color of 
 the act of 1814, has been so disastrous to the objects of the trust 
 and to the financial interests of the corporation, we are met by 
 the argument that it has at least promoted the spiritual welfare 
 of Trinity. We will not judge her as unkindly as she judges 
 those I have the honor to represent, when she denounces them 
 through her counsel as "Reverend persecutors" and "Covetous 
 and rapacious laymen." We rest the case upon her own testi- 
 mony, as to the effect of this unfortunate policy upon the 
 religious interests of the church. She tells us that in her four 
 magnificent cathedrals, in the most populous city on the conti- 
 nent, with the aid of her nine clergymen and her numerous 
 vestrymen and churchwardens, and embracing them in the 
 number, she has succeeded in gathering, in all, aside from 
 women and children, only ninety-two communicants as her 
 qualified quota of the 8000 Episcopalians of New-York. 
 
 If the new policy of Trinity, under the act of exclusion, has 
 been fatal alike to her own secular and religious prosperity, do 
 we find any countervailing advantage to the public at large, to 
 reconcile us to the continuance of the exclusion? On this 
 question there is no controversy. It is not denied that the 
 peculiar system of Trinity in the management of her leasehold 
 property overhangs the city of New-York like an incubus; 
 keeping the occupants dependent upon the favor, caprice and 
 
23 
 
 exactions of a close corporation ; deteriorating the value of 
 adjoining property, and clogging the general progress of local 
 improvement. But there is a greater interest involved. The 
 prosperity of every great religious denomination is a part of 
 the riches and glory of the commonwealth. If this trust fund 
 was restored to the Episcopal corporators at large, if its man- 
 agement was again open to public scrutiny, if its income was 
 applied to the pious uses for which it was designed, how much 
 would it contribute to the cause of benevolence and charity, 
 of good morals and religion, of private happiness and public 
 prosperity ! 
 
 Are these objects unworthy of legislation — unworthy of the 
 attention of lawgivers and statesmen? The disfranchised cor- 
 porators appeal to the Senate, not for favors but for justice. 
 They are corporators by the original charter of 1697, by the 
 colonial charter of 1704, by the royal grant of 1705, by the 
 recognition of Queen Anne, in 1714, by the renewed legislative 
 charter of 17S4, by the subsequent state law of 1788. Their 
 rights were unquestioned until 1812. They were unimpaired 
 until 18 L4. The corporators were then divested of their fran- 
 chises by a mere act of legislative will, on the application of 
 the trustees to exclude the beneficiaries of the trust. The 
 exclusion was without their consent and without cause. Resis- 
 tance was made, but it was unavailing. By the rule of 
 exclusion adopted by Trinity in IS 12, she had, for the time, 
 acquired the control both of the vestry and the fund. The 
 corporators were numerous, but they were without concert, 
 and they were at home. Trinity was a unit, and she was 
 at the capitol. In Col. Troup, she had an agent of con- 
 summate tact, great ability and indomitable will, a worthy 
 predecessor of the present agent of Trinity, who honors the 
 committee with his presence. The work was to be done, 
 and he did it. The majority of the Council of Revision 
 were against approving the law. He neutralized that ma- 
 jority. As the act was neither approved nor rejected, it took 
 effect at the next session under the then existing rule. From 
 that time to this, no excluded corporator could vote, ex- 
 
24 
 
 cept by violating, at his peril, a public statute of the state. 
 From that time to this, the churchmen of New-York have 
 steadily asserted their right, protested against the exclusion, 
 and refused to acquiesce in this flagrant wrong. The Legisla- 
 ture, by the act of 1814, had erected an imposing barrier be- 
 tween them and the courts, by declaring that they were not 
 corporators. The contest of an individual in the courts, with 
 the wealth, the influence and the power of Trinity, and with 
 this law to give to her a color of right, would be life-long and 
 ruinous, even if successful. Hopeless as it seemed, two at 
 tempts were made to induce the Legislature to investigate the 
 facts and to repair the wrong. But Trinity was here, and 
 laughed the efforts of the corporators to scorn. At length, 
 confident in her strength, overweening in her pride, she pre- 
 sumed so boldly upon public forbearance, that she has finally 
 subjected herself to a scrutiny which she cannot bear, and can- 
 not escape. She has heaped indignities upon those she has 
 wronged, until she has roused the indignation of the Episcopa- 
 lians of New-York, of the laity at large, of the public authori- 
 ties and the people of the state. The clergy had long felt and 
 complained of the wrong; but in secular affairs, the clergy are 
 for the most part powerless. But the laity became aroused, 
 and determined to make a renewed effort to reclaim their rights, 
 and reinstate the corporators in the enjoyment of their fran- 
 chises. Eminent, philanthropic and distinguished citizens felt 
 it due to themselves and to the church, that an appeal be made 
 to the justice of the state. 
 
 What are the pretexts of Trinity for resisting this appeal? 
 That she has persisted in the wrong for forty-two years against 
 all remonstrances ; that she has hitherto defeated all efforts to 
 repair it, and, therefore, it should endure forever; that the 
 clause of exclusion in the act of 1814 was constitutional, 
 though it clove down vested rights ; that even if unconstitu- 
 tional in 1814, it has grown constitutional by growing old; that 
 though it was unconstitutional to enact it, it would be unconsti- 
 tutional to repeal it ; that the Legislature of 1814, by passing 
 an unconstitutional act, lifted Trinity not only above the law, 
 
25 
 
 but above the constitution. She certifies to you her own virtue 
 and purity and charity. She warns you against the body of 
 the church, save her own communicants, pew-holders and pro- 
 teges, as avaricious, rapacious and greedy for plunder. She 
 charges eminent clergymen with being " malignant traducers," 
 on oath ; and Episcopal laymen of New-York, outside of her 
 congregation, with being " covetous of spoil," " a lawless mob," 
 unfit even to vote within the walls of Trinity for the trustees 
 of a religious fund. She publicly denounces and maligns gen- 
 tlemen of her own faith, who, individually, from their private 
 fortunes, have contributed more liberally for the cause of re- 
 ligion and charity, than Trinity with her five millions ; men 
 of unsullied honor, who scorn injustice and aim only at the 
 prosperity of the church, which the policy of this corporation 
 overhangs like a nightmare. Men like these are charged in your 
 presence, by the representatives of Trinity, with a scheme of 
 " church robbery," and a design to seize and divide her millions 
 of " trust property." She alternately remembers and forgets 
 that it is trust property. Who ever proposed to divide it ? 
 Neither the claimants of redress nor the witnesses in their be- 
 half, neither clergyman nor layman within the limits of the 
 diocese. No honest man in the state ever dreamed of such a 
 division. Trinity loves false issues. We cannot gratify her by 
 accepting them. 
 
 The question, and the only question is, who shall elect the 
 Vestry, the trustees of the fund ? To whom shall they be re- 
 sponsible for the administration of the trust? Shall they elect 
 and re-elect themselves, as they did in '54, as they did in '55? 
 Or shall they be elected by and responsible to the beneficiaries 
 of the trust? The Episcopalians of New-York wish a Vestry 
 who will not divide, but preserve the fund, who will permit the 
 property to augment with the growing wealth of New-York ; 
 who will bring up the annual revenue in just proportion to the 
 capital; who will sacredly apply the income, and the whole 
 income, to the service of the church, and to charitable and 
 pious uses; who will apply it impartially, without reference to 
 high church or low church, without favoritism to the rich or 
 
26 
 
 cold rebuffs to the feeble, without incurring debt as a pretext 
 for refusing to give, or loading churches with mortgages for 
 charitable donations. 
 
 These ends were defeated by an act of legislative disfranchise- 
 ment, excluding the corporators at large, on the petition of 
 Trinity Vestry. They. can be accomplished by simply removing 
 the legislative ban, and restoring to the corporators their char- 
 tered rights, secured by six government grants. While Trinity 
 controls the electors, she controls the elected. All we ask is to 
 restore the constituency^ She can perpetuate her disastrous 
 policy only by the continued exclusion of the corporators at 
 large. She can be a close corporation no longer, when her 
 Vestry become responsible again to the Episcopal inhabitants 
 of New-York. To this extent, and to this extent alone, have 
 Trinity and her Vestry ground for apprehension from the resto- 
 ration to the corporators of their vested rights. But when they 
 profess to fear that the Episcopal communicants would prove a 
 lawless mob, if permitted to deposit their ballots for the trus- 
 tees of a religious fund, they do gross injustice to the character 
 of the churchmen of New-York. When they profess to fear 
 that a board of Vestrymen, representing the Episcopal com- 
 municants at large, will force some obnoxious rector on Trinity 
 when a vacancy occurs, we need only to say they do not know 
 their brethren. When they profess to apprehend that a Vestry, 
 elected by the whole Episcopal body, will feel less interest 
 than they in the jrrosperity of the country churches, we can only 
 say that the assumption is unjust and revolting. A Vestry so 
 elected, will be willing and able by a wiser management of the 
 fund, to contribute to the aid of the country churches tenfold 
 the amount now doled out by Trinity; and this, without con- 
 verting donations into money changers' loans, by taking mort- 
 gages for charities. 
 
 But Trinity professes to be in terror, lest a Vestry represent- 
 ing the Episcopalians of the city at large might prove unfaithful 
 to the trust. She forgets that from 1697 down to 1S12 the trust 
 was faithfully administered by a Vestry representing the whole 
 
27 
 
 Episcopal body ; and that from the adoption of the rule of ex- 
 clusion and the policy of a close corporation, the administration 
 of the trust has been a signal failure. Both modes have been 
 tried, and the advantage of the former is not matter of specula- 
 tion, but of history. The Vestry representing the general body 
 was tried and found faithful. The Vestry representing Trinity 
 corporation alone has been tried and found wanting. I cannot 
 consent to be as uncharitable to the gentlemen composing either 
 at this or any former period the Vestry and officers of Trinity, 
 as my learned friends have been toward the Episcopal body T 
 have the honor to represent. I assume and believe them, each 
 and all, to be upright, honorable and christian men. T am not 
 here to question either their motives or intentions. They may 
 denounce us at their pleasure. My friend, the junior counsel 
 of Trinity (Mr. Ogden), threatened to be severe, and he re- 
 deemed his pledge. We have made no such threats, and have 
 no such pledges to redeem. We shall not denounce them in 
 return. We feel no inclination to retaliate, and would not be 
 willing to do them injustice. Our controversy is not with them, 
 but with the corporation which withholds from us our just 
 rights, and with the unfortunate policy which has so seriously 
 impaired the growth and expansion of the Protestant Episcopal 
 church. The individual officers of Trinity, as well as her cleigy, 
 doubtless are, and have been, gentlemen of personal integrity. 
 But we claim that they have, in their collective action and their 
 corporate character, greatly erred as to the nature of their trust, 
 and the true policy of the corporation. They are worthy men, 
 but they are representative men. As a class they probably sin- 
 cerely believe that it will be better for the present and succeed- 
 ing generations, that in the city of New-York Trinity should be 
 permitted to act as the general almoner, and with that view 
 she should continue to absorb the wealth, the power, the very 
 life-blood of the church. But whatever may be the prospect 
 for the future, there is no longer room for controversy as to the 
 past. From 1814 to 1S56 the administration of Trinity, as her 
 warmest friends concede, has been a miserable failure. From 
 the date of the act of exclusion her course has been steadily 
 downward. The remedy is obvious. Repair the wrong. Let 
 
28 
 
 the Legislature restore to the corporators at large the rights it 
 divested on the petition of the Vestry of Trinity. 
 
 The matters developed in the course of this investigation 
 leave no room for doubt that the law of 1814, so far as it was 
 an act of confiscation and disfranchisement, was unconstitutional 
 and void. It excluded corporators from their chartered rights 
 without their consent, thus directly impairing the obligation of 
 contracts in violation of the federal constitution, and depriving 
 citizens of their property and franchises without due process of 
 law in violation of the state constitution. It was an act of 
 naked judicial legislation, and not only assumed to pass judg- 
 ment upon the rights of private citizens who had no opportu- 
 nity to be heard, but pronounced a judgment directly at war 
 with their rights as declared by the deeds of trust, and guaran- 
 teed by previous laws. 
 
 The idea of restitution Trinity utterly abhors. She inter- 
 poses her high authority and sternly vetoes a repeal of the law. 
 The Senate is refractory. She then lowers her lofty tone and 
 sends three learned, astute and able lawyers to entangle you in 
 the net of forms. Sharp in legal casuistry, she pus forth her 
 seven pleas in defence of the wrong she seeks to uphold. 
 Stripped of needless verbiage, these are her allegations: 1. 
 That the corporators at large had no rights even before the act 
 of exclusion: 2. That they had already forfeited them : 3. That 
 they were, at all events, lawfully despoiled by the act of 1S14, 
 for the corporation consented to rob them though the corpora- 
 tors did not consent to be robbed : 4. That the Legislature has 
 power to enact an unconstitutional law, but no power to repeal 
 it: 5. That the act, though unconstitutional when adopted, has 
 since become constitutional : 6. That the omission of the As- 
 sembly committee, on a former occasion, to recommend its 
 repeal, has deprived the Legislature of the power of repeal : 
 7. That the Legislature is barred from doing justice by some 
 unwritten statute of limitations, if the wrong to be redressed has 
 for twenty years eluded the power of the government. These 
 are the grave pleas by which the Vestry seek to uphold this 
 act of confiscation and exclusion. 
 
29 
 
 The first issue presented is, whether the beneficiaries of the 
 trust were the Episcopalians of the city of New-York or only 
 the congregation of Trinity. We prove, by six government 
 grants, that all the Episcopal inhabitants were beneficiaries, 
 voters and corporators, and we show that their rights were 
 never questioned until the Vestry sprung upon them the rule of 
 exclusion and the act of 1814. Each of the successive titles of 
 the corporation recognized the Episcopal inhabitants of the city 
 as corporators down to 1814'; and accordingly one of the ob- 
 jects of that act was to change the name, so that it should not re- 
 main as a living rebuke to the proposed scheme of spoliation. 
 Let me call your attention to the several grants. In the original 
 charter of 1697 the grantees were designated as " the said Rec- 
 tor and Inhabitants of our said city of New- York in communion of 
 the Protestant Church of England." In the colonial act of 
 1704 they were designated as " the Rector and Inhabitants 
 of the city of New -York, in communion of the Church of 
 England." The designation " was the same, verbatim, in the 
 Queen's grant of 1705, and in the royal act of recognition 
 and confirmation in 1714. In the act of 17S4 they are recog- 
 nized by the State Legislature as " the Rector and Inhabitants 
 of the city of New -York, in communion" — not of Trinity Church, 
 but " of the Church of England." In 1788 the Legislature 
 again unmistakably designated the beneficiaries, by changing 
 the title to " the Rector and Inhabitants of the city of New- 
 York in communion of the Protestant Episcopal Church in the 
 State of New -York " But when Trinity contrived the scheme 
 of disfranchising and excluding the Episcopal inhabitants of 
 the city at large, it was necessary to change names as well as 
 things, and at her particular request she was rebaptised by the 
 Legislature of 1814, in the new name of " the Rector, Church- 
 wardens and Vestrymen of Trinity Church, in the city of New- 
 York." My learned friends claim that the title given to the 
 corporators is not conclusive evidence that the persons described 
 were intended as the beneficiaries. True, but they will not 
 deny that the title furnishes strong presumptive evidence in favor 
 of those so designated, when we find that in all the successive 
 changes of name down to 1814, in a period of 117 years, the 
 
30 
 
 Episcopal inhabitants of the city were thus denoted as corpora- 
 tors ; and especially when we find Trinity so restive under it, 
 that she repudiated the name, at the same time that she repudi- 
 ated the corporators. 
 
 But we have higher and more controlling evidence. Whether 
 we look to the donees of the grants, or to the express terms of 
 the successive trusts, we find the rights of the corporators at 
 large declared in language which none can mistake. Let me 
 again ask your attention to the charter which called this corpo- 
 ration into existence. The donees are "the Rector and inhabi- 
 tants," &c. But my friends say this is the mere corporate 
 name. Then I refer them to the declaration of uses. There we 
 find, after a specification of all the then property of the corpo- 
 ration and the confirmation of the title, these memorable words, 
 which must be expunged from the charter before Trinity can 
 lawfully exclude her Episcopal brethren : "And the same is 
 " hereby declared to be forever separated and dedecated to the 
 "service of God, and to be applyed therein to the use and be- 
 " halfe 1 ' — Of whom ? Of the congregation of Trinity church ? 
 No. Of the corporation aggregate ? No. Of " the Rector 
 " and inhabitants, &c?" No. " Of the inhabitants from time to 
 "time inhabiting and to inhabit'" — Where? Within Trinity 
 Parish? No. "Within our said city of New-Yorke in com- 
 "munion" Of Trinity ? Oh, no. "Of our said Protestant 
 " Church of England, as now established by our laws, and to no 
 " other use or purpose whatever." Every Episcopal inhabitant of 
 the city of New-York, from that day to this, comes within the 
 very words of the declaration of trust. The act of 1704 rati- 
 fies the former grant and confirms it to " the uses ajoresaid." 
 Here again we find the same broad distinction between the 
 corporation and the corporators, the donees and the beneficiaries. 
 The act designates the corporation as " the Rector and inhabi- 
 " tants of the city of New-York in communion of the Church of 
 "England;" and after referring to the uses and trusts attached 
 to the property, it proceeds in the sixth section to declare who 
 thereafter, in each Easter week forever, shall be entitled to vote 
 for its officers. And in whom does it invest that right? In 
 
31 
 
 the pew-holders and communicants of Trinity, like the confis- 
 cation act of 1814 ? No, but in "the inhabitants aforesaid'''' of the 
 city of New-York, in communion of the Church of England. 
 This act, though superseded afterwards by the law of 1784, fur- 
 nishes the highest historic evidence of the rights of the Episco- 
 pal corporators at large. We find the same rights recognized, 
 and the same uses confirmed in Queen Anne's grant of 1705, 
 and in the royal recognition of 1714. Thus far the evidence of 
 the clear right of the whole Episcopal body in the city of New- 
 York is overwhelming. 
 
 We come now to the new charter of the corporation granted 
 by the state government in the act of 1784. That act, it will 
 be remembered, was passed after the storms of the revolution 
 had rolled away, and when the new government was engaged 
 in remoulding its institutions and laws, with a view to the preser- 
 vation of vested rights and the shaping of our future policy. 
 It was passed before the adoption of the federal constitution, 
 and when the limitations upon the power of the Legislature, 
 under our then state constitution, were so slight that it might 
 almost be said to be endued with the omnipotence of Parlia- 
 ment. Our adversaries admit this law to be constitutional, and 
 when they make that admission their whole case is gone. 
 Even if we had failed to show the antecedent rights of the 
 corporators, if Trinity could blot out all these older records, 
 we could take our stand on the law of 1784, and rest the 
 claims of the Episcopalians of New- York upon this as a sure 
 foundation. The purposes of the act appear upon its face. It 
 was designed to adapt the charter to the new condition of 
 things; to declare the severance of the connection between the 
 corporators and the established church of England ; to bring 
 them in connection with the Protestant Episcopal church of the 
 State of New-York ; to save the property of the corporation 
 for the purposes of the original trust, and to declare and secure, 
 for all time to come, the rights of the corporators and beneficia- 
 ries in this noble property, dedicated by charter and by law to 
 the use of the Episcopal inhabitants of New- York. 
 
32 
 
 Accordingly the first section repeals so much of the charter 
 as authorized the corporation to make levies from year to year 
 on all the inhabitants of the city of New-York for the support 
 of the Episcopal form of worship ; substituting, according to 
 our republican theory, the principle of voluntary contribution 
 for coercive support by the taxpayers. The third section was 
 passed to settle a mooted question, as to the effect under the 
 charter, of the severance of the colonies from the crown, in 
 regard to the declaration of trust in favor of all the inhabitants 
 of the city of New-York in communion with the church of 
 England. It was claimed by some that, notwitstanding the 
 revolution, the inhabitants must continue their connection with 
 the English church or forfeit their rights as beneficiaries under 
 the charter. The better opinion was that the former relation 
 of the corporators to that ecclesiastical body was merged in 
 their present relation to the Protestant Episcopal church of the 
 State of New- York, and that their connection with the latter 
 preserved all the rights as corporators and beneficiaries to 
 which they had previously been entitled as communicants of 
 the mother church. It will be perceived by reference to the 
 second section, that it was not a question between two Episco- 
 pal churches in New-York. There was then but one church of 
 that denomination in the entire city. The only question was, 
 whether the corporators, to retain their rights, must be commu- 
 nicants of the English church or of the Episcopal church of 
 the State of New- York. The third section accordingly declared 
 that 11 all persons professing themselves members of the Episco- 
 " pal church" &c, "being inhabitants of the city of New-York, 
 " shall be entitled to all the rights, privileges, benefits and 
 " emoluments which, in and by the said charter and law first 
 " above mentioned, are designed to be secured to the inhabitants of 
 " the city of New -York in communion of the Church of England" 
 
 This provision vested with the rights of corporators and 
 electors every person embraced in its clear, broad and compre- 
 hensive terms. When the federal constitution took effect, in 
 1789, it attached to those rights and guaranteed them against 
 encroachment forever. Yet there are now over 7000 Episco- 
 
33 
 
 palians in New-York who are excluded from the enjoyment of 
 franchises thus secured, under color of the law of 1S14. How 
 then shall Trinity continue to lock out these corporators? for a 
 close corporation never willingly opens its doors. There stands 
 the law of 1781, declaring those rights inviolable which she 
 has persisted in violating for forty-two years. You have seen 
 how she meets that law in the course of this investigation. 
 She deals with it gently and gingerly. We all know that 
 Trinity is a capital reader. She reads the act of exclusion admi- 
 rably, but when she gets back to the act of 1784 her eyesight 
 fails. Even when you call her attention to the very section 
 which affirms the rights of those whom she excludes, she reads 
 but cannotcomprehend. Forced at length to understand, one last 
 resort remained, a poor quibble, which melts away at the touch. 
 She is not quite certain, in looking at the third section of the 
 act of 1784, but the legislature, when they declared the rights 
 of all the inhabitants of the city "professing themselves mem- 
 bers of the Episcopal Church" &c, may have really meant only to 
 declare the rights of some persons " professing themselves mem- 
 bers of the (Trinity) church." She is not sure that the words 
 Episcopal Church denote a great religious denomination ; for 
 aught she knows the legislature may have had in view merely a 
 tall building which stands like a sentinel overlooking the princely 
 money-changers of Wall-street. She rather thinks that when 
 the legislature declared that these were chartered rights "de- 
 " signed to be secured to the inhabitants of the city of New-York 
 " in communion with the Church of England" they meant to 
 say they were secured only to some of those inhabitants in 
 communion with a particular building on the west side of Broad- 
 way. To see that this is but a feeble quibble, which cannot 
 stand alone, we need only look to the act itself. The question 
 to be settled was, to which church these corporators should 
 recognize allegiance, the Church of England or the Episcopal 
 Church of the State of New-York? The words " Church of 
 England" and " Episcopal Church" are used in the section as 
 correlative terms. They are used not to describe two buildings 
 but to designate religious bodies and religious forms under two 
 3 
 
34 
 
 political governments, once united, now divorced. But why 
 need I discuss this idle issue? If you will turn to the last 
 clause of the fifth section of this very act of 17S4, you will 
 find the legislature itself declaring in what sense they used 
 these words in the act: "The Episcopal Church, ox thai mode 
 "of worship commonly called the Church of England." Nay, 
 Trinity and the legislature loth agreed as to the import of the 
 words, when the one presented and the other granted the 
 petition to change the corporate name, by the act of 1788, to 
 " the Rector and Inhabitants of the city of New-York in com- 
 " mmiion, of the Protestant Episcopal Church in the State of New- 
 York" instead of the Church of England. Even in that memo- 
 rable resolution adopted by Trinity Vestry on the 28th of March, 
 1812, when they first dared to deny the rights of their own 
 corporators, they used the words "Episcopal Church" in the 
 same manner as the legislature did in the act of '84, as em- 
 bracing all Episcopalians; but to accomplish their object super- 
 added the bold condition in violation of the act of 1784, that 
 the corporators nevertheless should not be permitted to vote, 
 unless they were also pew-holders or communicants of Trinity. 
 
 You will remember that the Vestry do not even pretend to 
 sustain the exclusion on any authority other than the act of 
 1814 and the original charter. As the act of 1814 could not 
 lawfully divest pre-existing rights of the corporators, they are 
 driven to fall back on the charter of 1697. And when they get 
 to the charter they are met by the overwhelming facts, that the 
 Episcopal inhabitants of the city, then and thereafter, were 
 designated in the title as corporators, were in terms donees of 
 the property, and were expressly stated to be beneficiaries of 
 the trust in the declaration of uses. They are thus driven to 
 the absurd proposition that though all these inhabitants were 
 made corporators, donees and beneficiaries, in express terms, 
 by the charter, yet this was not the design of those who granted 
 it. The argument to support this proposition is, that as there 
 was then but one parish in the city, you are at liberty to ex- 
 punge the word city wherever it occurs in the charter, and write 
 the word parish in its place, so that it will read " inhabitants of 
 
35 
 
 Trinity parish," &c. When you have so altered the document 
 they say you will find that the design was to make the parish- 
 ioners of Trinity the sole beneficiaries; and that thus Trinity 
 may alter her parish at pleasure, and thereby cut off her cor- 
 porators by simply reducing her imaginary limits. All this is 
 very beautiful in theory, but the difficulty of Trinity is that she 
 cannot change the words of the charter. The rights are secured 
 to the Episcopal inhabitants of the citify not of Trinity parish , 
 and it makes no difference, so far as their claim is concerned, 
 whether in 1697 there was one parish or twenty in New-York, 
 nor whether there were five thousand, or fifteen thousand inhabi- 
 tants. But this pretence of Trinity, like the others, is annihi- 
 lated by the act of 17S8. That act states the design of the origi- 
 nal charter, and disposes of the whole question, in a clause of 
 the third section previously read for another purpose. Refer- 
 ring to the rights, privileges, benefits and emoluments of the 
 corporators and beneficiaries, it declares that all these, " in and 
 by the said charter and law first above mentioned, are designed 
 to be secured to the inhabitants of the city of New -York, in com- 
 munion of the Church of England." Thus, so far as relates to 
 the chartered rights of all the Episcopal Inhabitants of the 
 city, the act of 1784, which both sides admit to be constitution- 
 al, puts an end to all debate. On these chartered rights, as de- 
 fined and confirmed by the act of '84, we take our stand. 
 
 But Trinity tells us that though these were our rights in 
 1781, we must prove that we did not forfeit them by non-user 
 previous to the adoption of the rule of exclusion by the Vestry 
 of 1812. The proposition is utterly unsound in law. For- 
 feiture is never presumed. It is to be proved by the party 
 alleging it, not to be disproved by the party whose rights are 
 invaded. If Trinity alleges a forfeiture, she holds the onus, and 
 must establish it by clear and affirmative proof. Her claim is, 
 that so long as she interposed no impediment to the enjoyment 
 of their rights by the Episcopal corporators, if they omitted for 
 twenty years to vote, they waived and forfeited the right to 
 vote forever. Aside from the legal absurdity of the proposi- 
 tion, it is utterly untrue in fact. There is not a scintilla of 
 
3G 
 
 evidence that any corporator ever omitted to vote for twenty 
 years prior to the act of 1814, or the exclusion rule of 1S12. 
 A feeble attempt was made to sustain this allegation by the 
 evidence of Dr. Berrien and Mr. Verplank, but their testimony 
 discloses the fact, that neither of them was even connected with 
 the parish until 1811 ; that they had no knowledge who did or 
 did not vote previous to that time ; that there was no record of the 
 corporators previous to that date ; that so far as they were aware, 
 no list had been kept of those who had voted at previous elec- 
 tions, and if there was any such list in existence, they had not 
 even been at the trouble to examine it. They both admit that 
 they never knew the right of any Episcopal voter to be ques- 
 tioned until 1812, and then only on the occasion of an exciting 
 election. Then, for the first time, the Vestry denied the right, 
 and adopted, in defiance of the law of 1784, that bold rule of 
 exclusion, upon which even they dared not rest, until they had 
 beset the Legislature, and procured the confiscation act of 1S14. 
 Thus the pretence of non-user, by the corporators for twenty 
 years prior to 1814, is utterly exploded. Failing in establish- 
 ing the forfeiture by her witnesses, Trinity next proposes to 
 prove the fact by her own impartial evidence. She insists that 
 she made a like pretence in her petition to the Legislature in 
 1814, and therefore it must be true. 1 think she does herself 
 no injustice in claiming that she made the same unfounded pre- 
 tence then, though it was in language so cautious and guarded, 
 and so qualified by the antecedent matter and the ambiguous 
 phrases used, that it was evidently intended to elude the prompt 
 denial to which it might have been exposed if it had been made 
 openly and unblushingly. But does Trinity suppose that she 
 commends the law of 1814 to greater favor, by showing that it 
 was obtained by covert and groundless pretences? Above all, 
 does she mean to claim that what she said for the purpose of 
 excluding her corporators, is to betaken as evidence against the 
 corporators she thus excluded ? She did not send her petition to 
 them. She placed it quietly on the legislative files, and ninety- 
 nine one hundredths of the corporators first heard of the petition, 
 when the act of exclusion fell upon them like a blow from the 
 
37 
 
 headsman's axe. But we see in another respect how idle is the 
 pretence that the Episcopalians, in communion with churches 
 other than Trinity, had forfeited their rights by twenty years 1 non- 
 user prior to 1814. Only sixteen years had then elapsed since 
 the first church of that denomination, other than Trinity, was 
 reared in the city of New- York. You will remember that my 
 friend (Mr. Ogden), at once Vestryman and counsel of Trinity, 
 at the close of an argument worthy of his honored father, 
 limits even his own claim in her behalf to the period " since 
 " 1798, the time of the first establishment of another church." 
 By what process does Trinity propose to establish a forfeiture 
 against the communicants of other Episcopal churches, by a 
 twenty years' non-user, when they had existed but for sixteen 
 years? 
 
 But this entire theory of the forfeiture oj a statutory right to vote, 
 by any omission to vote, whether for one or fifty years, is 
 utterly illusory and unfounded. It is a doctrine which never 
 did and never could receive the sanction of my eloquent friend, 
 (Judge Parker), on the bench of the Supreme Court which he 
 so eminently and so long adorned. He suggests, indeed, for 
 your consideration, the views entertained on this subject by 
 Trinity, but I do not understand him, even as her advocate, to 
 argue the extraordinary proposition that an unlimited statutory 
 grant of the right to vote can be forfeited by omission to 
 exercise it. The elective franchise is, in all cases, a privilege. 
 The right to vote involves the right not to vote. If it were 
 otherwise it would cease to be a privilege. It is in the very 
 nature of the right, that the elector may exercise it without 
 incurring penalties; may omit to exercise it without incurring 
 forfeitures. As well might it be claimed that the great body of 
 the Society of Friends in the State of Pennsylvania, by omit- 
 ting to vote at the elections prior to that of President Harrison, 
 had forfetted their rights as electors. As well might Trinity 
 claim that the rest of her few remaining corporators have for- 
 feited their rights as churchmen by permitting the Vestry to 
 do their voting, and to reelect themselves, year after year, prior 
 to the present investigation. It is a new doctrine, first put 
 
38 
 
 forth by Trinity. Non-user of the elective franchise never dis- 
 franchised an elector who, by statute, was entitled to vote. 
 The pretence of forfeiture by the Episcopalians of New-York, 
 is untrue in fact and unfounded in law. 
 
 [The hour having arrived for the evening meeting of the 
 Senate, the committee adjourned its session to the following 
 day, when Mr. Porter resumed his argument.] 
 
 Since the adjournment my attention has been called to two 
 of the scurrilous pamphlets circulated during your session by 
 those acting in behalf of Trinity ; in one of which the author, 
 anonymous, but not unknown, does not content himself with 
 maligning the committee of the Senate, but assumes to argue a 
 question of law which I have omitted to consider. Since Trinity 
 is of opinion that it is worthy of an answer, I will defer to 
 her judgment, and refer to it at this time before resuming the 
 general argument. The topic was alluded to by Judge Parker, 
 but so little stress was laid upon it that I supposed he regarded 
 it as I did, as one of those trivial make-weights sometimes intro- 
 duced in aid of discussion, but scarcely worthy of serious con- 
 sideration. The pretence in this pamphlet is that the original 
 charter was not intended, as it declares, for " all the inhabitants 
 "from time to time inhabiting and to inhabit in our said city of 
 " New-Yorke, and in communion of our aforesaid Protestant 
 " Church of England," but only for so many of these as the Ves- 
 " try should choose to select from the whole body of beneficiaries. 
 You will see, on referring to the charter, that after expressly 
 declaring that all the Episcopalians inhabiting the city, or there- 
 after to inhabit it, should be beneficiaries of the trust, it pro- 
 ceeds to confer power on the corporators to admit other Episco- 
 palians, though not inhabitants of the city of New-York ; and 
 this Trinity pamphleteer gravely infers that because the cor- 
 poration were empowered, if they so desired, to admit Episco- 
 palians not residing in the city, it follows that they were at lib- 
 erty, in direct violation of the trust, to exclude resident Episco- 
 palians from their chartered rights. The clause on which — 
 dissevered from the antecedent matter — this clerical logician 
 
39 
 
 relies, even when thus dissevered, falsifies his deduction. It 
 will be found at page 14 of the charter book. " And we do of 
 " our like speciall grace, certaine knowledge and meer motion 
 "give and grant unto the said Rector and inhabitants of our city of 
 " Ncw-Yorke in communion, &c, full power and authority'' 
 (among other things) to choose, nominate and appoint no many 
 "others of our liege people as they shall think fitt, and shall be 
 " willing to accept the same to be members of the said church and 
 " corporation and body politicque." To choose, nominate and 
 appoint so many others! others than whom ? others than inhabitants 
 of the city of New -York, in communion, &c. This charter was 
 granted in colonial times. There were English churchmen on 
 the civil list and the army list, who would be temporarily in 
 New-York from time to time in the discharge of their duties, or 
 from other causes, though not inhabitants of the city, and it 
 was intended to leave it optional with the corporation to admit 
 these and other non-residents, if they desired, though not em- 
 braced within the general terms of the charter. The donees 
 were " the Rector and Inhabitants in communion," &c. The 
 beneficiaries were all the Inhabitants in communion, &c, and to 
 these grantees was given the further right to admit others, not 
 inhabitants in communion, &c. And when any pamphleteer, 
 stipendiary of Trinity or otherwise, undertakes to distort a 
 clause like this into an authority to exclude the Episcopal In- 
 habitants of New-York, he proves his own weakness, and 
 maims the cause of which he assumes to be a champion. It 
 would be better if he had come to the field with his visor down. 
 So much injustice to the committee, whom this anonymous 
 worthy so loftily rebukes for the independent discharge of a 
 public duty under the authority of the Senate. Let us return 
 to the main discussion. 
 
 The act of 1814, as our adversaries claim and as we admit, 
 assumed, either rightfully or wrongfully, to exclude and dis- 
 franchise all the Episcopal inhabitants of the city of New-York ? 
 except the little groups of communicants and pew-holders, whom 
 Trinity was so reluctant to name. We have shown that the 
 parties so excluded had been secured, both by the charter and 
 
40 
 
 the act of 1784, in the perpetual enjoyment of their rights. 
 This disposes of the first plea of Trinity. We have shown 
 that the pretence, that previous to 1814 these rights had been 
 forfeited by twenty years' non-user, is worse than frivolous ; 
 and the second plea shares the fate of the first. The third plea 
 of Trinity is one equally unfortunate. We all agree that the 
 act of 1814 was unconstitutional, if it divested chartered rights 
 without the consent of those whose rights were divested. Whose 
 rights did it assume to divest? If those of the corporation ag- 
 gregate, the only consent required was that of the corporation 
 aggregate, as represented by the Vestry and other corporate 
 officers, and without such consent the law would be unconsti- 
 tutional. If the rights divested were those of individual corpora- 
 tors, whether few or many, their individual consent was neces- 
 sary, and without such consent the law was unconstitutional. 
 Trinity resorts to her usual policy of evasion. She coolly 
 assumes that it was her rights that the Legislature took away, 
 and therefore her consent is to be deemed the consent of the 
 corporators. This would be true in a limited sense, if the 
 Legislature had taken her rights or her property, and these 
 alone. But the rights divested in this case were not those of 
 the corporation, but those of the corporators. The chartered 
 right of an Episcopal communicant to vote at the annual elec- 
 tions, was the right not of the corporation, but of the commu- 
 nicant. The act of 1814 took away the right to vote for Vestry- 
 men, a right which the corporation could not exercise, never 
 possessed before, and could neither lose nor acquire under the 
 law of 1814. The law disfranchised the corporators, not the 
 corporation. Again, the rights of property divested by this act 
 were not those of the corporation. The Legislature took 
 nothing from Trinity church. It merely confiscated the rights of 
 the corporators in the trust fund. The right of the corporator to 
 his interest in the corporation is not the property of the corpo- 
 ration. It is the right of the corporator as against the corpora- 
 tion. The interest of the trustee is entirely distinct from the 
 interest of the cestui que trust. Trinity is a subtile casuist ; but 
 will she convince the Senate that when a trustee asks leave of 
 
41 
 
 the Legislature to rob his ward and pocket the fund for his own 
 benefit, this will operate as a consent by the ward to the rob- 
 bery? You own stock in the Bank of Commerce. According 
 to the logic of Trinity, your stock belongs not to you, but to 
 the bank. And when the ethics of Trinity shall have pervaded 
 Wall-street, and the board of directors petition the Legislature 
 to confiscate the stock of all the corporators but themselves, 
 and leave them in undisturbed possession of the whole as their 
 own, you will require higher authority than that of two church- 
 wardens and twenty Vestrymen to satisfy you that the consent 
 of those who betray a trust binds those who are to be plun- 
 dered by the betrayal. The act of 1S14, passed on the petition 
 of Trinity Vestry, assumed to take from each Episcopal inhabi- 
 tant of New-York, unless he belonged to that particular congre- 
 gation, his franchise as an elector, and to confiscate his interest 
 as a corporator and beneficiary in the trust property, though 
 both were vested rights, and though he had consented to part 
 with neither. 
 
 The proposition that the Vestry were alone concerned in the 
 question whether they might be permitted to despoil the corpo- 
 rators, finds no sanction in the decisions of the state and federal 
 courts on these high questions of constitutional law. In the 
 Bowdoin College case, reported in 1 Sumner, 314, Judge Story 
 takes occasion to rebuke this false idea that aboard of officers can, 
 by their concurrence, legalize a wrong to the corporators and 
 the public at large. " If the acquiescence of the Boards could 
 "be construed into an approval of the act, as I think it ought 
 " not to be, still that approval cannot give effect to an unconstitu- 
 <; tional act. The legislature and the board are not the only parties 
 " in interest upon such constitutional questions. The people 
 " have a deep and vested interest in maintaining all the consti- 
 " tutional limitations upon the exercise of legislative power, and 
 "no private arrangements between such parties can supersede 
 " them." In the case reported in 9 Watts and Sergeant, 27, 
 the Supreme Court of Pennsylvania go much farther in defence 
 of vested rights than is necessary for my purpose. They hold 
 that the officers for the time being are precluded from surren- 
 
42 
 
 dering, not merely the rights of the corporators, but even the 
 rights of the corporation aggregate; that " the franchises and 
 "corporate rights of a company, and the means vested in them 
 " which are necessary to the maintenance of the object for 
 " which they were created, are incapable of being granted away, 
 11 even by the company itself 11 In a memorable case decided by 
 our own Court of Appeals as late as 1852, that learned tribunal 
 made a decision, disposing in principle of the very question on 
 which we and our adversaries are at issue in respect to the law of 
 1814. In that case Trustees under a will had petitioned the legisla- 
 ture for leave to alienate the trust property professedly for the ben- 
 efit, but without the actual consent of all the ccstuis que trust. The 
 legislature in 1837 passed a law authorizing the trustees to make 
 the alienation ; but the court of last resort unanimously held 
 the law to be an unconstitutional invasion of the vested rights 
 of the beneficiaries. In the opinion reported in 2 Selden, 367, 
 the broad principle is announced, that 44 if the legislature should 
 "pass an act to take private property for a purpose not of a 
 " public nature ; as if it should provide through certain forms 
 " to be observed to take the property of one, and give it, or 
 " which is the same thing in principle, to sell it to another, or 
 " if it should vacate a grant of property, under the pretext of 
 " some public use, such cases would be gross abuses of the 
 "discretion of the legislature, and fraudulent attacks on private 
 " rights, and the law would clearly be unconstitutional and void. 11 In 
 the course of the same opinion the Court of Appeals expresses 
 its entire concurrence in the language of the Supreme Court of 
 the United States; "we know of no case in which a legislative 
 " act to transfer the property of A. to B., without his consent, 
 " has ever been held a constitutional exercise of power in any 
 " State in the Union " My learned friend seemed in the course 
 of his argument to suppose he would escape the force of this 
 rule of constitutional protection, if he could show that the cor- 
 porators, though entitled to the rights divested by the law of 
 1814, had not been in their actual possession. He failed in his 
 proof of the fact. But if the fact had existed, and he had 
 proved it, it would be of no avail. Here, too, he would 
 have been confronted by a still later decision of the court of 
 
43 
 
 last resort, reported in 2 Kernan, 208, where it is held that the 
 rule of protection from encroachment, applies equally to rights 
 in actual possession, and to rights secured by law, but not yet 
 reduced to possession. The court say, "they are both equally 
 " vested rights. The one is a vested right to obtain the thing, 
 " with a certainty of obtaining it by resorting to the necessary 
 " proceedings, unless there be a legal defence, and the other is a 
 " vested right to the thing after it has been obtained." The 
 favorite idea of Trinity that her consent to the spoliation of her 
 corporators legalizes the spoliation is utterly at war with the 
 decision of the Supreme Court in the case of Corning vs. 
 Greene, which was recently announced in another room of the 
 capitol ; where Judge Wright, in the course of one of those 
 masterly opinions which have given him so distinguished a 
 reputation as a jurist, diccusses the policy of an analogous con- 
 stitutional restraint for the protection of private rights. I read 
 from page 29 of the printed opinion of the court : " The con- 
 stitutional provision does not except bills passed on condition 
 " that the corporation shall consent, but applies universally to every 
 " bill altering a body politic or corporation. The object of the 
 <; provision was not merely to secure corporations from legisla- 
 " tive attacks, but also to protect the corporators and the public, 
 " and it would be rendered comparatively useless by excepting 
 " cases where those who wield the corporate power for the time being 
 " consent." Profoundly impressed as we all are with reverence 
 for the legal opinions of Trinity, even she will excuse us for not 
 deferring to them when they are directly at war with those 
 not only of our own Supreme Court and Court of Appeals, but 
 with those of the Supreme Court of the United States. 
 
 Even aside from these considerations, no American statesman, 
 lawyer or jurist could entertain a doubt, in view of the facts 
 to which your attention has been called in the course of this 
 investigation, that the act of 1814 was unconstitutional as an 
 act of judicial legislation. We do not deny the right and duty of 
 the Legislature in proper cases to confirm pre-existing rights. 
 Beyond all doubt, the Legislature would in this instance, if 
 they had been frankly informed by Trinity of the facts as they 
 
44 
 
 actually existed, have confirmed the rights secured to the cor- 
 porators at large by the original charter, and reaffirmed by the 
 act of 1784. But Trinity stated only what suited the purposes 
 she had in view. She referred to the antecedent grants, but in 
 such terms as could not fail to mislead, and to divert the Legis- 
 lature, the Attorney-General and the Council of Revision from 
 the true character of the questions at issue. 
 
 But the law in question was not one of confirmation ; it was 
 simply one of confiscation and exclusion. If it was, as we allege, 
 an act of judicial legislation, I do not understand our adversaries 
 to claim that it could be upheld as constitutional. Whatever 
 doubts prevailed on that subject in 1814, the question has since 
 been finally settled both in the State and the Federal courts. Is 
 there any room for controversy as to the jact that it was an act 
 of judicial legislation ? Was it anything else than a decision 
 on the petition of Trinity that she might disfranchise her own 
 corporators? It purported upon its face to be not a confirma- 
 tion of pre-existing rights, but an act to remove doubts as to what 
 those rights were, as you will perceive by reference to the recital 
 in the law itself. The petition of Trinity, which you will find 
 at page 31 of the Charter Book, requested the legislature to 
 obviate and settle by a judicial law "doubts respecting the 
 " persons entitled to vote for churchwardens and vestrymen 
 and the petition admits that these doubts were so grave in their 
 character that it had " become essential to the peace and 
 " harmony of the church," that they should be adjudged with- 
 out a trial by judicial legislation. Dr. Berrian, the Rector of 
 Trinity, admits that Col. Troup, then a Vestryman and member 
 of the committee of seven, represented Trinity at Albany in 
 1813 and 1814, u with full power to make application to the 
 " legislature and in the letter of Col. Troup to the Council 
 of Revision to induce them to waive their objections to the law 
 as unconstitutional, he urges the necessity of judicial legislation 
 to settle controverted rights; as you will see by reference to that 
 document at pages 14 and 69. In view of these facts it is vain 
 to deny that the second section of the act of 1S14 was a judgment 
 in a law suit, by a body without jurisdiction, pronounced on 
 
45 
 
 the petition of Trinity, on her own unsworn and ex parte testi- 
 mony, against some thousands of citizens, without even the form 
 of legal process. 
 
 In every aspect, then, the law of 1814 was unconstitutional, 
 as impairing the obligation of contracts, as divesting vested 
 rights, as an act of confiscation and disfranchisement, as an act 
 of judicial legislation. We are next met with the pretext that 
 the constitutionality of the act was never questioned until 
 now. Unfounded as this pretext is, abandoned as it is even 
 by the counsel who represent Trinity here, the reiteration of 
 the statement, in the publications she issues with such fecun- 
 dity, seems to demand a reference to a few historical facts. 
 The petition of Trinity was presented to the Senate on the 
 17th of March, 1813. The same day a bill was introduced and 
 passed to a second reading. On the 20th it was engrossed, and 
 on the 25th it passed, nine of the Senators refusing, even then, 
 to sanction it by their votes. The Assembly referred it on the 
 30th of March, considered it on the 31st, and passed it two 
 days afterwards, nearly one-third of the house voting against 
 the bill. (Charter Book, pp. 36, 37.) But I need not remind 
 you how it was hurried through both houses ; how objections 
 to its injustice, when suggested by members, were borne down 
 by the strange pretence that the Episcopalians of New-York 
 were anxious to be disfranchised ; how attention was diverted 
 from the material issues by the omission, in the petition of 
 Trinity, of all allusion to these portions of the various grants 
 which designated the corporators and declared their chartered 
 rights; how investigation was eluded by formally sending to 
 the Attorney-General, on the afternoon of one day, a book 
 which Trinity had printed for his benefit, and on the following 
 day smothering discussion by introducing his ofT-hand opinion, 
 given in haste, and after hearing but one side. It is enough to 
 allude to subsequent facts. The law went to the council of 
 revision for approval. That approval it never received. Even 
 upon the showing of Trinity, without the advantage of hearing 
 both sides, without the aid of those material and controlling 
 facts which have now been disclosed in the course of this inves- 
 
46 
 
 tigation, without even recurring to the declaration of uses in the 
 charter, Chancellor Lansing interposed objections to the pas- 
 sage of the law, from which he could only be induced to recede 
 by the adroit expedient of Colonel Troup, the agent of Trinity. 
 He published, for the benefit of the council of revision, one of 
 those extraordinary pamphlets to which Trinity so uniformly 
 resorts as approved weapons of guerilla warfare. It served, 
 with Chancellor Lansing, the purpose of the author. And 
 now, when the strange misstatements of that pamphlet, and its 
 still more strange suppressions are exposed, Trinity seeks to 
 repudiate him as her agent until she is confronted by the oath 
 of her own Rector, swearing to the authority of Colonel Troup 
 as her vestryman, her committeeman, and her representative 
 at Albany. Failing in this, she claims that his representations 
 and promises are not binding upon her because the pamphlet 
 was not published until he had piloted the law through the two 
 houses. But the printed statements of Colonel Troup are strong 
 presumptive evidence of the character of the previous unprinted 
 statements by which the Legislature were misled. At all 
 events, even Trinity concedes that the rejection of the law was 
 averted, and its final passage secured as an unapproved law, by 
 the pamphlet she now seeks to disclaim. Chancellor Lansing 
 yielded, and carried with him, for the time, the votes of Judges 
 Kent and Van Ness. But the other three members of the coun- 
 cil of revision did not yield even to the subtle plausibilities 
 and smooth diplomacy of the agent of Trinity. Two eminent 
 Judges of the Supreme Court united with Governor Tompkins 
 in condemning the law as unconstitutional even upon Colonel 
 Troup's own showing. But the pamphlet had done its work. 
 It had produced a tie vote (a). It saved the bill from prompt 
 and ignominious condemnation. It enabled it to creep into the 
 statute book without either approval or rejection. But Trinity 
 claims too much when she invokes the authority of even half 
 that council in favor of the law. The fact is now disclosed, in 
 the evidence of a distinguished layman, himself an intimate 
 friend of Chancellor Kent, that this great jurist, though voting 
 
 (a) Charter Book, pp. 34, 35. 
 
47 
 
 for the law on the representations of Colonel Troup, subse- 
 quently investigated the question and arrived at the clear and 
 undoubting conclusion that the law was unconstitutional. What 
 was the final conclusion of Judge Van Ness we have no means 
 of knowing. But one thing is established beyond all contro- 
 versy, that of the six members of the council of revision, Chan- 
 cellor Lansing has left on record his written condemnation of 
 the law as evidence of his own deliberate judgment upon the 
 face of the act itself ; Judge Yates pronounced it unconstitu- 
 tional and voted with Daniel D.Tompkins and Ambrose Spencer 
 for its unconditional rejection ; and to their high authority 
 Chancellor Kent afterwards added the weight of a still greater 
 name, once held in respect even by Trinity, and now, at least, 
 honored by all mankind. 
 
 But we are told that the authority of these great men on 
 questions of constitutional law is overborne by the contrary 
 opinion of a Mr. Burnell, who, in 1847, as chairman of an 
 Assembly committee of seven, wrote a report for Trinity, in 
 which he differed from Kent and Yates and Spencer and Tomp- 
 kins, though not venturing to meet the arguments by which 
 their conclusions are sustained. Trinity furnishes you with the 
 pamphlet, and is evidently astonished that it does not impress 
 you with a suitable feeling of awe. Certainly my friends will 
 not claim it as a statement of the views of the committee at 
 large, for, though in some form the seven signatures appear, it 
 seems but two united with the chairman in affixing their names 
 directly to the report; one signed a certificate below that he 
 concurred in the resolution, omitting, however, to concur in the 
 report ; the remaining three were good natured enough to 
 certify that, though prevented from attending the argument, 
 they had come to a similar conclusion from examining certain 
 papers. It would have been gratifying if they had left us a list 
 of the then pamphlets of Trinity. We do not know Mr. Bur- 
 nell, whose opinion is cited by our adversaries as so conclusive, 
 and have no information in regard to him, except that he was 
 a member of the Assembly of 1S47 ; but we do not propose to 
 abandon our case, though we entertain great respect for one 
 
48 
 
 whom Trinity approaches with so profound a reverance. If 
 our friends deem the opinions of men like Duer and Bradish 
 and Ketchum and Clark entitled to no consideration as opposed 
 to that of Mr. Burnell, we shall venture to fall back on the 
 authority of James Kent, Ambrose Spencer, and their illustrious 
 associates; fortified as it is by the decisions of the Court of 
 Appeals and the Supreme Court of the Union, which, since the 
 act of 1S14, have settled these questions of constitutional law, 
 in direct opposition to the expressed views of Mr. Burnell and 
 Col. Troup. 
 
 The next claim of Trinity is that though the act of 3S14 is 
 unconstitutional, it should neither be repealed nor amended. 
 In other words, the effect of the proposition is, that the legisla- 
 ture may enact but not repeal an unconstitutional law. We 
 claim on the contrary that the unconstitutionality of an act is the 
 strongest possible reason for its repeal. Such a law is neces- 
 sarily unjust. It is powerless for good. Its tendency is evil 
 and only evil continually. It remains upon the statute book 
 not to instruct but to mislead. It gives to wrong the false sem- 
 blance of right. It professes to be a law, when it is in truth no 
 law. It fosters litigation, makes property uncertain and justice 
 insecure. Trinity tells us the courts have clear power to declare 
 it unconstitutional. Our answer is, the legislature have clear 
 power to repeal it at once. Or they may so amend it as to 
 obviate the objections and make the act constitutional. An 
 unconstitutional statute does mischief because it drives men to 
 law. Not many are willing to wage war in the courts against 
 a fund of five millions. Litigation involves delay. With this 
 law to give color to the claim of Trinity, half the corporators 
 now living would be dead before the final decision. Again, 
 each corporator must bring his own lawsuit. Shall a thousand 
 corporators bring a thousand lawsuits? Trinity gives you 
 notice that as many as are brought she will litigate, so long as 
 you leave this law unrepealed. If we fail we must pay the 
 costs of both sides, and the costs of both sides if we succeed. In 
 the first case the expenses must be paid from our private means ; 
 in the last from the trust fund which belongs to us in common 
 
49 
 
 with Trinity for nobler purposes than to be squandered in law. 
 Repeal the act or amend it, and the excluded corporators are 
 reinstated in all their rights, and this without delay, without 
 cost to them, without cost to the fund. Suppose a faithless 
 guardian under some specious pretence procures a statute, 
 investing him with the property of an infant heir. When you 
 ascertain the facts, will you leave that statute unrepealed to 
 give color to his possession? Will you tell the child to grow 
 to manhood, and go to law if he will to reclaim his own, which 
 has been taken from him only under color of your authority ? 
 
 But Trinity tells us she has vested rights under the law, and 
 it will do you no good to repeal it, for the repealing law would 
 be itself unconstitutional. We might, if we chose, retort her 
 own argument : " If it is unconstitutional it can do you no 
 harm, for the courts are open and will declare it void." But 
 we shall put forth no such miserable pretence, but do what 
 Trinity fails to do, meet the argument on its merits. Even if 
 the act was constitutional, it could be lawfully repealed, for 
 the rights it assumed to take from us it neither vested nor pro- 
 fessed to vest in Trinity. It found her congregation corporators 
 and electors and hft them so. It divested our rights, but gave no 
 new rights to them. We ask you to restore ours but not to take 
 theirs from them. We do not seek and will not consent to confis- 
 cate any right, to disfranchise any voter. We ask you only to 
 restore to us our own, which you took from us, but never gave 
 to Trinity. If the law had been constitutional you could repeal 
 it, because it vested no new rights ; you would repeal it, because 
 it invaded old rights. If, however, it had been what it was 
 not, if it had assumed to vest in others what it tore from us, it 
 would not avail Trinity. It is idle to talk of rights vested 
 under an unconstitutional law. Such a law can vest no rights. 
 It has no creative power. No man can set it up as a muniment 
 of title. It is as powerless as a forged deed. It may cloud 
 the rights it seeks to divest, but it can do no more. The first 
 duty of the courts is to annul it, the first duty of the legislature 
 to blot it out. 
 
 4 
 
50 
 
 The next plea of Trinity is, that though the law was uncon- 
 stitutional when enacted, it has since grown constitutional. 
 The proposition, upon its face, is too preposterous for grave 
 discussion. Which has changed, the law or the constitution ? 
 They stood in open conflict then. They stand in open conflict 
 now. You can no more reconcile the law with the constitu- 
 tion, than you can make the opposing parts of a contradiction 
 harmonize. 
 
 It is said that on a former occasion a few of these corporators 
 sent memorials to the Assembly, asking an investigation, with 
 a view to repeal; but that Trinity was shielded by Mr. Burnell's 
 report, and the prayer of the memorialists was not then granted. 
 The argument seems to be that as relief was not granted, it 
 cannot be granted ; that the power of the Legislature on this 
 subject was then spent. Is legislative justice, because once 
 denied, to be denied forever? The proposition is at war with 
 the whole theory of our government. On no such plea can a 
 claimant of justice be turned back from the capitol. 
 
 We come now to the last of the pleas of Trinity. According 
 to her view the Legislature is barred of its power to do justice 
 by the statute of limitations. What statute of limitations ? 
 When, where and by whom was it enacted ? You do not find 
 it in the constitution. You do not find it in the statute book. 
 The Legislature, which makes laws, can repeal them, unless 
 restrained by the constitution, but this unwritten law, which 
 Trinity invokes, can hardly be repealed, for it has never been 
 enacted. Who ever heard of a statute of limitations on the 
 power of State legislation ? Remember that for the purposes 
 of this plea, Trinity concedes that these claimants were voters, 
 corporators and beneficiaries under the charter ; that their 
 rights were confirmed by the act of '84, secured forever from 
 invasion by the federal constitution ; never forfeited, never re- 
 leased, suspended in 1814, by an unconstitutional law, and held 
 in abeyance ever since, because you commanded them to refrain 
 from exercising them. And now you are told you have been 
 holding them out of their rights so long you must keep holding 
 
51 
 
 them out forever ; and this by virtue of a statute, which the 
 counsel cannot find, for the reason that it never existed. Who 
 ever heard of the justice of Legislatures and Parliaments being 
 tied up by limitation acts? Who ever heard that while a 
 wrong continues, under the sanction of a legislative act, it is too 
 late to repeal the act and redress the wrong? Our complaint 
 is not to Trinity, it is to the Legislature. It is your act by which 
 we suffer. It is at your hands that we ask relief, and no con- 
 tinuance of injustice is an excuse for continuing it longer. 
 
 But if you had been tied up by the constitution to the rules 
 you make for litigants in courts of law, it would not have 
 availed Trinity in her struggle to uphold this act. Even 
 waiving for the purpose of the argument the clear principle of 
 law, that non-user shall not be taken as evidence of acquies- 
 cence, when the exercise of the right is suspended by statute, 
 I can safely challenge my friends to search the laws of this 
 state from the beginning of the government, to find a statute 
 of limitation declaring a forfeiture of a voter's franchise, by 
 non-user, whether for twenty or fifty years ; and until such a 
 statute is formed, their whole argument falls. At a former 
 stage of the discussion I had occasion to allude to the fact 
 that non-user of the right to vote never involved a forfeiture 
 of the right. Since then I have been indebted to the kindness 
 of my friend, Judge Wendell, for a reference to the case of 
 The King vs. Wynn, in 2 Barnardistone, 391. In that case 
 the freemen at large of the city of Chester asserted their right to 
 vote for city aldermen, under a charter granted in the 16th 
 year of the reign of Charles II. In 1689 they were, as they 
 claimed, illegally divested of the right by a new charter granted 
 by James II. They continued to complain more or less of 
 the deprivation untill 1698 ; but after that time, down to 1733, 
 there had been not only a continued non-user but an absolute 
 acquiescence in their own disfranchisement for thirty-five 
 years, as admitted by them and their counsel ; yet it was held 
 unanimously by the Court of King's Bench that the right was 
 not barred by the acquiescence, and that a criminal informa- 
 tion should issue to restore to the freemen the franchises of 
 
52 
 
 which they had been unlawfully divested by the crown. Of 
 the numerous cases to the same effect I need only allude to 
 that cited by Lord Hardwicke, chief justice, in 7 Modern R., 
 198, and the case of The King vs. Jones, reported in 8 Modern 
 R., 201, when it was held that non-user and acquiescence, in 
 one instance for sixty years and in the other for a hundred 
 and fifty years, did not bar the inhabitants or their descendants, 
 even in a court of law, from reclaiming their chartered rights. 
 There is another answer, if there was occasion to resort to it, 
 equally fatal to the plea of Trinity. Even in the courts be- 
 tween private litigants statutes of limitation are uniformly held 
 to be entirely inapplicable to cases of this class, arising on direct 
 trusts as between the trustees and their cesiuis que trust. But 
 in this case all these questions made by Trinity are matters of 
 idle speculation ; as the testimony of Gov. Bradish and other 
 witnesses for the claimants shows beyond all controversy that 
 there has been no acquiescence ; but through the entire period 
 the act of exclusion and confiscation has been the constant 
 subject of denunciation, complaint and remonstrance by the 
 great body of the Episcopal inhabitants of New- York. Ac- 
 quiescence is assent. We dissented, objected, protested. We 
 asserted our rights. We denied the justice of the exclusion 
 and the validity of the act. What more should we do to 
 avoid penal forfeitures. Should we have resisted by force a 
 public statute ? Should we have gone to law with Trinity 
 and the state ? Surely the Episcopal communicants were not 
 bound, at the peril of forfeiture, to commit an assault and 
 battery either upon the Vestry or the legislature. But who 
 are charged with acquiescence? You are bound in justice to 
 grant relief unless all the claimants are barred. The Episco- 
 pal inhabitants of the city, then living and now surviving, 
 are cestuis que trust. The Episcopalians thereafter "to in 
 habit" the city, who have since been born, are cestuis que trust. 
 When before has it been heard among men that the rights of 
 a beneficiary, under a perpetual trust, could be barred before 
 his birth, and by an unconstitutional law ? 
 
53 
 
 But failing in all these pleas, there is one more pretence of 
 Trinity to which it is difficult to refer in terms of becoming 
 respect. It is, that conceding that the Episcopal inhabitants 
 of NewYork were by charter and by law beneficiaries and 
 corporators, that they were unconstitutionally deprived of their 
 rights, that they have never acquiesced in the deprivation, yet 
 those of them who are either pew-holders or communicants in 
 any Episcopal church of the city other than the four chapels 
 of Trinity have thereby forfeited their right to vote and their 
 interest in this trust fund. How? Why, by becoming mem- 
 bers at once of two corporations. We put the question to our 
 learned friends, how does that entail forfeiture? Does a man 
 by becoming a corporator in two banks forfeit his stock in 
 either or in both? My friend shakes his head; he does not 
 mean that : well then the forfeiture is incurred by being a 
 member of two religious organizations, though both are 
 Episcopal, and each in harmony with the other for the promo- 
 tion of a common object. Is it true then that if a communi- 
 cant hires a pew in two churches, he loses each by paying for 
 both? If he partakes the communion in two churches of his 
 own faith, does he forfeit his right to partake it in either? If 
 he attends a diocesan convention, does he forfeit his pew in 
 Trinity and his right to commune at her altar? If besides 
 being a communicant in an Episcopal church, he is also a 
 member of an Episcopal Bible society, tract society, and mis- 
 sionary society, does he thereby forfeit his right to vote for 
 vestrymen and churchwardens? Above all, does he lose his 
 interest in a great religious trust fund, handed down through 
 successive generations to him and his brethren, for the use of 
 the church at large? We call upon our friends for some 
 authority for the infliction of civil forfeitures on grounds like 
 these. Do you find it in*fehe constitution? No. In the laws? 
 No. Where then ? Nowhere. But they tell us that by the 
 28th canon of the English church, and the 13th canon of 
 the Episcopal church, there is an ecclesiastical regulation that 
 a clergyman cannot be compelled against his will to administer 
 the sacrament to persons not claiming to be members of his 
 
54 
 
 parish. But where is the forfeiture? We do not find it in the 
 canon. Besides, the matter in issue is not whether Dr. 
 Berrian could be compelled to administer the sacrament to his 
 Episcopal brethren. They make no such petition. They 
 simply ask that Trinity Vestry may not be permitted to divest 
 them of their civil rights, secured by law and neither forfeited 
 nor released. 
 
 One of my learned friends has even ventured to suggest that 
 Trinity might, by her own act, have forfeited the rights of her 
 corporators by changing the bounds of her parish, thus leaving 
 them the agreeable alternative to sink or swim at their election. 
 It would be a novel doctrine that Trinity could, by her own 
 act, subject a third party to forfeiture. But no matter by whom 
 done, an act like this entails no forfeiture. This word "parish" 
 is the eternal theme of Trinity. She has never yet settled 
 exactly what it means. She will not define it herself, and will 
 not allow us to define it for her. She has never changed her 
 parish bounds — and if we wish to ascertain them, we find by 
 the charter that they embrace the whole city of New-York. 
 She puts her chapels where she will. Her two noblest churches 
 are nearly three miles apart. The episcopal brethren she seeks 
 to exclude are within the bounds of her parish as fixed by her 
 charter, and unaltered by law. Even upon her own showing 
 she is without a shadow of right to disfranchise them as voters 
 or despoil them as beneficiaries. 
 
 After thus reviewing the grounds on which Trinity rests her 
 claim to perpetuate this injustice which she deems no injustice, 
 we can more readily appreciate the lofty tone she assumes in 
 rebuking the effrontery of the legislature. She thought she 
 had done with you when she obtained through your aid the 
 confiscation act of 1S14. It is not strange that from that time 
 she grew T rich and strong and defiant. She supposed she had 
 relieved herself from responsibility by getting rid of the bulk of 
 her corporators. She was taken by surprise at this unexpected 
 claim of a legislative right to investigate public grievances com- 
 mitted under color of State laws. She is now beginning to 
 
55 
 
 learn that even she is subject to the authority of government, 
 and that even against Trinity 7000 men may in the end obtain 
 a hearing when they appeal to the legislature for protection and 
 for justice. 
 
 She complains in bitter terms of this investigation, forgetting 
 that what the corporators have been struggling so long to accom- 
 plish has been attainted at last only through her own malad- 
 ministration. But if she had frankly admitted the truth, and 
 the whole truth, when you gave her an opportunity to testify 
 in her own behalf, she would at least have occupied a more 
 elevated position. The questions addressed to her by the Senate 
 were plain, simple and easy to be understood. They asked for 
 answers. They asked for the truth. She admits in her second 
 communication that she did not in the first disclose it, and her 
 apology is that she did not intend to. Pursuing the policy of 
 a close corporation, she evaded the truth by a quibble, and ob- 
 tained the benefit of untruth, without incurring either its guilt 
 or its odium. In her secular relations, and in her dealings with 
 the government, she seems to disclaim the ethics, both of the 
 church and the law, and very properly keeps her conscience 
 clear, by avoiding the suggestio falsi, and contenting herself with 
 the suppressio veri, when it serves the purpose equally well. By 
 a device no less ingenious, yet probably equally free from cen- 
 sure, so far as intentional wrong is concerned, she makes gifts 
 for pious uses, in obedience to the provisions of the trust; and 
 then takes mortgages for them, to the end that the scripture may 
 be fulfilled, and that now, as of old, the giver be more blest than 
 the receiver. 
 
 She complains that the testimony received prior to your first 
 report was taken against her ex parte. Here, again, we have an 
 illustration of the peculiar views of a close corporation. You 
 held your session at New-York for her accommodation. You 
 gave her written notice of the time and place of your meeting, 
 and asked her aid in making the investigation. She gave a 
 written admission of notice to her Vestry, signed at her corpo- 
 ration office, attested by her own comptroller. She chose not 
 
56 
 
 to appear, and yet she now coolly rebukes the Senate for taking 
 testimony against her ex parte. 
 
 She complains of the witnesses against her. Who were 
 those witnesses? They were thirty-three in number. Eleven 
 of them were business men of character and standing, who 
 were called to prove facts in relation to her property, which 
 are entirely uncontradicted by her own answering testi- 
 mony. All the rest were churchmen of New-York. Ten 
 of them were laymen, some from her own, some from other 
 congregations, all gentlemen of the highest character; em- 
 bracing men of eminence as churchmen and philanthropists, 
 as statesmen and civilians. Nine of the witnesses were Rectors 
 of other Episcopal Churches in New-York, embracing clergy- 
 men who have exalted the character not only of the Episcopal 
 church, but of the American pulpit, both at home and abroad. 
 One of the witnesses against her was her own comptroller. 
 Three of them had received the endorsement of her corporators 
 as vestrymen, two of them consenting, and the third refusing 
 to be sworn, when called on the part of the State, but after- 
 wards coming twice as a witness to Albany when the Vestry 
 needed his aid. You found the truth locked up, but Trinity, it 
 seems, held the key. The three remaining witnesses were 
 clergymen of Trinity Church. These were all; and these are 
 the men whom, through her representatives, she now maligns. 
 She is unjust to her church and her faith, when she would have 
 you discredit her own clergy and office bearers as unworthy 
 of belief, and when she stands before a Senate committee to 
 denounce such laymen as Luther Bradish. Robert B. Minturn, 
 Stephen Cambreling and Frederic S. Winston as church rob- 
 bers and plunderers, and to stigmatise divines like Taylor and 
 Tyng and Howland as rapacious and covetous slanderers, on 
 oath. 
 
 But there was another witness against Trinity — an ex parte 
 witness — whom even she dare not impeach. It was Trinity 
 herself, testifying through her own Vestry, and recording her 
 own condemnation. If her ex parte testimony is to be credited, 
 
57 
 
 her administration of this trust fund from 1S14 down, in the 
 light of the surrounding facts, has been one continued malad- 
 ministration. 
 
 When these facts were developed by the report of your com- 
 mittee, the Senate inquired what action you recommended. It 
 seemed that you had been originally required merely to inves- 
 tigate and not to recommend. The Senate promptly invested 
 you with full powers. Then Trinity changed her lofty tone of 
 independence and defiance, and condescended to appear before 
 you. You gave her the advantage of a long, laborious and 
 patient hearing. She has had the benefit of all the testi- 
 mony she ventured to offer, including legends, hearsay and 
 tradition. She did not give you access to her ample vault and 
 the records it contained, but she has unlocked it herself. 
 She has withheld what she pleased and produced what she 
 pleased. 
 
 And so with her witnesses. She summoned whom she 
 would, and whom she would she withheld. She saw fit to 
 examine sixteen in all. Her Rector, Dr. Berrian, it was of 
 course safe to produce. He had already committed himself, if 
 public journals are reliable, in regard to the merits of the ad- 
 ministration of this great trust by himself and his Vestrymen, 
 when at the opening of Trinity Chapel, on the 22d of April, in 
 speaking of the property of Trinity, he announced to the audi- 
 ence that it was " a great trust which had been administered 
 with an uprightness, liberality and wisdom, which, even in this 
 country, had never been surpassed." It was clear, then, that if 
 anything was wrong on the part of Trinity, it was unknown to 
 the Rector, and no hazard was incurred by putting him on the 
 stand. It was thought prudent also to call six others of the 
 nine clergymen of Trinity. This being a question affecting the 
 temporalities of the church, and their labors having been mainly 
 engrossed in promoting its spiritual welfare, Trinity judged 
 wisely, as they could of course do but little harm to the corpo- 
 ration, even if subjected to cross-examination. But with the 
 Vestry who |had charge of its secular interests, a well-wisher 
 
58 
 
 of Trinity would advise more caution. Of the whole twen- 
 ty-two, churchwardens included, six only were found, whom 
 it was deemed prudent to produce. With regard to the 
 testimony of these clergymen and Vestrymen, the judicious- 
 ness of the selection is apparent, when you consider how 
 little they saw, and how much they heard. Their know- 
 ledge of facts was limited, but their faith in the wisdom 
 and purity of Trinity was unbounded. The counsel also re- 
 called and cross-examined the Rev. Mr. Pound, but were 
 so little satisfied with his testimony that I do not understand 
 even him to be excepted from the class so bitterly denounced 
 as avaricious conspirators against the peace and wealth of 
 Trinity. Where were the other sixteen Vestrymen? They 
 were, perhaps, by some unfortunate coincidence, detained by 
 other simultaneous engagements in this hour of trial and of 
 peril to Trinity. Probably as an apology for their non-pro- 
 duction, two Reverend Bishops were summoned to the stand. 
 These gentlemen, of course, could not refuse their attendance. 
 It was, perhaps, supposed by those who had in charge the 
 secular interests of Trinity, that the exalted character and 
 deserved eminence of those honored prelates would be regarded 
 as furnishing, even by their attendance as witnesses, a quasi 
 endorsement of Trinity, as at least ecclesiastically orthodox. 
 As Bishop Potter had only recently removed to New-York, he 
 could not speak to any extent from personal knowledge of the 
 secular affairs of Trinity, and with the ingenuous frankness 
 which all who know him have learned to honor and respect, 
 somewhat aided perhaps by a cross-examination, he stated to 
 the committee why it was that he was compelled to rely mainly 
 upon hearsay and inference in regard to the facts as to which 
 he was interrogated, and that he had no control whatever over 
 the secular concerns of the corporation. Surely my learned 
 friends will not seriously contend that a contribution of S1600, 
 from a fund of five millions, toward the support of the Bishopric 
 of her own diocese, was such extravagant liberality that Trinity 
 need call him to prove her munificence to the church at large. 
 Bishop Pe Lancey, if I rightly understand the effect of his 
 
59 
 
 testimony, seems to have been called mainly for the purpose of 
 proving that he knew nothing material as to the temporalities 
 of Trinity, except that to Geneva College, with which he is 
 honorably connected. She had promised $50,000 — a promise 
 which to this time she has failed to fulfill, though she makes 
 for the present an allowance of $3000 a year, thus keeping 
 that institution in the condition of the New-York church, which 
 my friend Mr. Ogden told us was '* dependent, and 'properly dc- 
 " pendent on Trinity.'' 1 
 
 What then do these sixteen witnesses prove ? Do they meet 
 the great facts established against Trinity by the evidence ? 
 Do they explain or excuse her high-handed disfranchisement of 
 the great Episcopal body of New-York ? Do they show on 
 what pretence of right she procured the confiscation of the 
 chartered interests of thousands of corporators and benefi- 
 ciaries in a great trust fund ? Do they explain the revolution 
 in her policy which followed hard at the heel of that memo- 
 rable act of exclusion? Do they show how it is that she has 
 blasted the hopes, and disregarded the promises made by her 
 agent to the council of revision ? Do they explain her reluc- 
 tance to disclose, even at the call of government, the amount 
 of her property and the names of her corporators ? Do they 
 show how it is that a fund of five millions in her hands yields 
 only an annual income of less than two per cent ? Do they 
 explain her extravagant expenditures in magnificent edifices 
 against the remonstrances even of her own leading Vestrymen ? 
 Do they explain her permitting feeble churches of her faith 
 to starve at her side, and refusing them even the coldest gifts 
 of charity ? Do they contradict or excuse her refusal to aid 
 even private munificence in the erection of churches for the 
 poor ? Do they make any apology for tive meagre amount of her 
 contributions in aid of the country churches? Do they furnish any 
 explanation of her cold and grudging bounty in dispensing 
 this trust fund, to aid the Episcopal Church at large in the 
 State of New-York? Do they show why she leaves one-fifth 
 even of her city and "parish," with its half million of souls, 
 without an Episcopal church? Do they explain how it is that 
 with charities so stinted as she herself admits, there has 
 
60 
 
 been an increasing debt and a heavy annual deficit for each of 
 the last ten years, as disclosed by her own vestryman, General 
 Dix ? Do they show why it is that, under this new system, 
 she has become at once a money borrower and money lender? 
 Do they explain how it is that she converts even her gifts into 
 loans, and exacts mortgages for religious charities? Do they 
 furnish any apology for her strange policy of subterfuge, con- 
 cealment and evasion, in matters which should be open as day 
 to the church and to the world ? Do they explain the fact that 
 a trust for the benefit of all the Episcopal inhabitants of New- 
 York has fallen into the hands of 305 men; that Trinity can 
 only muster the 305 by counting together the living and the 
 dead; that even the living do not vote for the administrators 
 of a fund of five millions, but from year to year vestrymen are 
 permitted to elect and reelect themselves? Do they explain 
 the strange fact, revealed by Trinity herself, that, aside from 
 women and children, she can count, under her present policy, 
 in all her churches, but ninety-two communicants, embracing 
 her clergy and her vestry, if not the living and the dead ? 
 
 In view of these facts, established by overwhelming evidence, 
 we appeal to you to restore to the churchmen of New-York 
 the rights of which your predecessors divested them on the 
 petition of Trinity. Seven thousand Episcopalians appeal to 
 you for justice. They produce the muniments of their title. 
 They show that they are disfranchished, and their property 
 confiscated, under color of a law which the constitution con- 
 demns. They show that the act of exclusion has not only 
 cloven down their rights, but has impaired the progress of the 
 church at large, and has even blasted the prospects of Trinity 
 herself. I am aware that you are engaged in no agreeable 
 duty. You will be assailed hereafter as you have been hereto- 
 fore. The weapons of corporate warfare will not be permitted 
 to rust unused. But if the Legislature, by an act of simple 
 justice, shall forfeit the favor and smiles of Trinity, you will 
 at least have the consolation of knowing that you have restored 
 this great fund to the noble purposes of the trust, that you 
 
61 
 
 have relieved thousands upon thousands from the pressure of 
 unmerited wrong, that you have restored the prosperity and 
 harmony of a great religious denomination, and that you have 
 performed a noble act, at once of justice and beneficence, not 
 only for the present but for succeeding generations. 
 
i£x HtbrtH 
 
 SEYMOUR DURST 
 
 When you leave, please leave this book 
 
 Because it has been said 
 " Sver'tbing comes t' him who waits 
 
 Except a loaned book." 
 
 Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library