jD^ 
 
 rk 35E.T 
 
 C97cl 
 
 Ui I "n 
 
 
 
 1854. 
 
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* 
 
 <N 
 
 ARGUMENT 
 
 Y' 
 
 MR. CUTLER. 
 
 Me. Chairman and Gentlemen of the Committee: 
 
 £Jl 
 
 The question upon which you are deliberating is of such 
 magnitude, that it relieves me from the apology I should 
 otherwise feel to be your due, for taking up ajay more of 
 your time, in an attempt to speak upon a topic already illus- 
 trated by the eloquence of my learned associate. But I do 
 not propose to repeat anything which has been so well said 
 by him. 
 
 You must pardon me for directing your attention for a 
 moment, at the outset of my remarks, to an expression of the 
 learned counsel of Mr. Boorman. He tendered me a happy 
 compliment, for which I should have felt all the more grate- 
 ful, if I were quite sure that it was designed to secure me a 
 more favorable consideration from your committee. In ad- 
 dition to the compliment, he was pleased to allude to my re- 
 mark, that I appeared for those who had a higher interest in 
 opposing the opening of this street than that represented by 
 mere property ; and then he said that he did not know what 
 that “ higher interest ” was ; but supposed it to be somewhat 
 akin to the “ higher law 
 
 1 
 
2 
 
 Let ns for a moment, then, examine the question, whether 
 there be any higher interest than that of property ? Is the 
 learned counsel furnishing us with a sound principle of legis- 
 lation, or an exalted rule of patriotic action, when he thus 
 ignores the existence of any “ higher interest ” than that of 
 mere money-producing property ? I had always supposed 
 that the “ rights of person” were of more appreciation in the 
 light of the law, of reason and of patriotism than the mere 
 “ right of property.” The u right of personal liberty” — the right 
 to the free enjoyment of life while we live — and certainly 
 no less the right to the narrow house to which the hands of 
 affection consign us when we die, involve a “ higher interest” 
 than that of property. ,If it be not so, then was our Ee volu- 
 tion a vain expenditure of blood and of treasure. Our fore- 
 fathers fought for liberty' — that religious liberty which they 
 were denied in the old world, and which they sought in the 
 forests of the new ; liberty of conscience, liberty of speech, 
 freedom of the press, and the right to enjoy their own do- 
 mestic hearth-stones free from molestation : and these 
 liberties they fondly believed they had secured. They 
 . sought, in a word, that freedom from oppression and those 
 liberties which secured them the unmolested enjoyment of 
 the inalienable rights of man — “ life , liberty and the pursuit 
 of happiness :” these were the liberties which our forefathers 
 sought, and for these liberties, and to preserve them as an 
 invaluable treasure for their posterity, the battles of the Eevo- 
 lution were fought. And shall it be said, in these degenerate 
 times, that “ there is no higher interest than that of property? 
 
 I confess, Mr. Chairman, that I believe that they who 
 cherish the memory and desire to preserve the remains of 
 the men who fought for the triumph of liberty over despot- 
 ism, and who venerate whatever may be regarded as a me- 
 mento of that triumph, have a “ higher interest” than that of 
 property in this question. If, however, the preservation of 
 property be the highest interest which we acknowledge, let 
 it be publicly proclaimed, that in the greatest republic of 
 modern times, personal liberty is discarded — that we have a 
 Venitian oligarchy ; and that the idea of property is alone 
 
3 
 
 regarded. And let it be proclaimed, too, that, to determine 
 the precise value of our patriots and the quantum of vene- 
 ration due to their memory, we employ learned men to make 
 such a chemical analysis of their remains, as the argument 
 here would necessarily suggest, and that we measure out our 
 gratitude in a precise mathematical ratio to the quantum of 
 bones which are found ; and, when the horror-stricken au- 
 dience shall sicken at the recital, let some republican arise 
 and attempt to prove that republics are grateful ; or rather 
 let the proud minion of monarchy proclaim the fact as a new 
 instance of the ingratitude — the alleged proverbial ingrati- 
 tude of republics. 
 
 There is one other observation which I desire to 
 make. The course this discussion has taken, forces it 
 irresistibly upon my mind. There is, Mr. Chairman, a 
 wide, very wide difference between solemn argument, and 
 ridicule, witicism, and sarcasm. Is ridicule argument? 
 How much logic is there in a sneer ? Everything holy may 
 be turned to ridicule. The infidels of France, in the eigh- 
 teenth century, •. ridiculed the doctrines of the Christian reli- 
 gion. Voltaire uttered the most biting satire on the truths 
 of the Bible ; and yet his sneers have not induced us to turn 
 infidels, nor have we been disposed to believe that they 
 proved our Bible false, or our religion unfounded. Believe 
 me, sir, that the holy sentiment of respect for the dead is too 
 well founded and too earnestly entertained by this com- 
 munity to be eradicated by a flippant jest. And I am glad 
 to be able to assure you, that if the learned counsel for Mr. 
 Boorman has indulged in any expressions which could be 
 construed by any one into disrespect for the memory of the 
 departed, or for the feelings of their surviving friends, he 
 must have been betrayed into them by his zeal for his client ; 
 for I can vouch for it, that he himself entertains a profound 
 reverence for the dead. Not to do so, would be to prove 
 false to his lineage — false to the generous impulses of his 
 heart — false to all those noble sentiments by which I know 
 he means to be guided. 
 
 Listen, for a moment, to the voice of his departed brother 
 
4 
 
 — a brother eminent at the bar, exalted upon the bench, and 
 one whose every-day life was an illustration of the truths of 
 the Christian religion : and while I read his sentiments, as 
 expressed in this book, believe me, sir, that I read the senti- 
 ments of the learned counsel himself — sentiments which he 
 would freely express in social life, and which nothing but his 
 position as Counsel could lead him even to seem to doubt. 
 That brother said, in the case of Windt v. The German Re- 
 formed Church , (4 Sandford’s Chancery Reports, 476:) 
 
 “ It is painful and deeply dbhorent to the sensibilities of our 
 nature to have the remains of our beloved friends and relatives 
 disturbed in their last homes , and removed by rude and careless 
 hands to a distant cemetery, not hallowed by any of the associations 
 which encircle the consecrated ground where we have deposited 
 them , in sadness and in sorrow. I confess that I have not be- 
 come so much of a philosopher as to regard the bodies of 
 deceased friends as nothing more nor better than the clods 
 of the valley : and that my sympathies were strongly enlisted 
 in behalf of these complainants vindicating the repose of the . 
 bones of their kindred.” 
 
 These are the noble sentiments to which every heart in 
 this assembly responds, and none more cordially, I am sure, 
 than that of my learned opponent. As an advocate, he may 
 be earnest in the defence of his client ; but, believe me, sir, 
 as a man, for I know him well, you cannot find one impell- 
 ed by more generous sentiments. 
 
 Perhaps nothing more need be said by me, by way of re- 
 ply to what has dropped from the learned counsel. He has 
 made a great many remarks, foreign to the discussion before 
 your committee, to which no reply is demanded ; such, for 
 instance, as that one of the assistant rectors of Trinity 
 Church, at the commencement of the Revolutionary war, 
 and only three months and twenty-seven days after the De- 
 claration of Independence, was opposed to Washington. 
 The letter of this assistant rector, to which the counsel re- 
 ferred, was written one month and seven days after Trinity 
 Church was burnt, and it was not rebuilt until after the close 
 of the war. 
 
5 
 
 The church was burnt on the twenty-first of September, 
 1776, and of course no services were performed there after 
 that time by the Rev’d. Mr. Inglis, and it is difficult to per- 
 ceive how he could in any manner have exerted an influence 
 over its affairs. The learned counsel might as well now at- 
 tempt to prove that Washington, himself, only a few months 
 before, was a kings-man and zealously supported the crown — 
 and from thence infer that he never commanded the Revo- 
 lutionary forces. If the counsel, in the course of his re- 
 searches, had looked into the 4th volume of the Document- 
 ary History, (p. 1077,) he would have discovered that, at 
 the earliest practicable moment, the church was placed in 
 the hands of a Whig vestry. But it is objected that this is 
 a Tory church. It is a grave argument, put forward with 
 all earnestness, that the street should be opened, because, 
 says the counsel, the political sentiments of the church were 
 adverse to those of Washington. Although I am unable to 
 perceive the logical sequence of the argument, let us for a 
 moment pause to examine the fact. I cannot find that 
 Trinity Church was in any other sense a Tory church than 
 was every other church, in the city of New York, during 
 the war of the Revolution. The Presbyterian Church, 
 Dutch Church, Methodist Church, Baptist Church, were 
 each and every of them, just as much Tory churches, for 
 aught that I can see in the page of history, as was Trinity. 
 When the city was occupied by the. British, all the churches 
 were, very probably, under the control of the royalists who 
 remained in the city, and it is fair to presume that a large 
 portion of the inhabitants, who remained in the city after 
 it had been evacuated by the American troops, in 1776, and 
 had fallen into the hands of the British, were adherents to 
 the crown. 
 
 It was a time of civil war. The contest raged fiercely. 
 Families were divided; churches were divided; brother 
 fought against brother, father against son ; and the divisions 
 on questions of politics depended in no respect, that I can 
 perceive, upon the phase of sect. 
 
 I find among the names of the vestry, from 1772 to 1777, 
 
6 
 
 that of the Honorable James Duane," and he was a warden 
 from 1784 to 1794. Mr. Duane was a member of our Con- 
 tinental Congress, and a consistent adherent to the cause of 
 America. Robert R. Livingston, an undoubted Whig, was 
 a vestryman from 1764 to 1775, and a warden from 1784 
 to 1785. Mr. James Desbrosses was a vestryman from 1774 
 to 1779, and a warden from 1779 to 1784. Peter Yan 
 Schaick, LL. D., an eminent lawyer and accomplished 
 scholar, was a vestryman from 1776 to 1779; and in 1780. 
 William Laight was a vestryman from 1777 to 1784, and 
 from 1788 to 1802. Robert Watts from 1778 to 1785, and 
 a warden in 1783, and from 1790 to 1804. Richard Har- 
 rison was a vestryman in 1783. He was recorder of the 
 city from 1797 to 1801 : was a fine classical scholar, and 
 was appointed by Washington to the office of District At- 
 torney of the United States. Richard Morris was a vestry- 
 man from 1784 to 1785. He was Chief Justice of the 
 Supreme Court of New-York in 1779; and, of course, a 
 staunch Whig. Francis Lewis was a vestryman from 1784 
 to 1786, and no one can forget that he was one of the signers 
 of the Declaration of Independence. What then becomes 
 of the objection that this was peculiarly a Tory church. That 
 there were Tories in the church, I frankly admit ; that there 
 were Tories in all the churches in the City of New-York, my 
 learned friend would be compelled to admit, if indeed he 
 admitted anything ; but where is the evidence that Trinity 
 was peculiarly the Tory Church in the City of New-York, or 
 any more inclined to Toryism than the Dutch Church for 
 example, or any other church in the city, during its occu- 
 pation by the British ? 
 
 Mr. Boorman, however, objects that it was “ a formerly 
 regal hierarchy.” What an argument in favor of opening 
 the street ! Is it true ? Yes : in the same sense in which it 
 may be said that the Dutch Church was a formerly regal 
 hierarchy. In 1774, every church in New-York was under 
 the protection of the Crown of Great Britain ; and, if that be 
 an argument against them, then tear down the churches, 
 and declare a general proscription of Christianity : for if the 
 
7 
 
 argument means anything, it is as good against the obser- 
 vances of religion generally, as it is for the purpose for 
 which it is invoked. 
 
 But this is trifling with the great topic before you. 
 Whether Whig or Tory were in the church during the Be vo- 
 lution is a matter which has no relevancy to the present 
 question. We need have nothing now to do with the 
 church; and an argument directed against it necessarily 
 raises a collateral issue which has nothing to do with the 
 People’s Burying Ground, as this has emphatically always 
 been, and in which no power could prevent or ever did 
 prevent the interment of the people’s friends. It is the poor 
 man’s final resting-place which you are now besought to 
 desecrate. They ask you to exhume the remains of the 
 poor of two centuries. Arguments addressed against the 
 Custodians of the cemetery have in fact nothiug to do with 
 the question. The inference which the learned counsel 
 hangs upon the fact that the Assistant Bector was opposed 
 to the war when the Bevolution broke out, is an inference 
 far-fetched, and positively refuted by reliable testimony. If, 
 indeed, the church had been in possession of this Assistant 
 Bector, it would furnish strong confirmatory evidence that 
 the British did inter the bodies of the deceased patriots 
 there. They were the prisoners of the British, and they 
 died in the sugar-houses near the grave-yard. In short, it 
 was the very place of all others where they would be buried 
 if either British or Americans had charge of their interment, 
 and the place where many concurring sources of evidence 
 prove they were in fact interred. Of course the American 
 prisoners were buried by their British captors, and it is most 
 natural to suppose that they buried them in the City Bury- 
 ing Ground ; especially when that ground was nearest the 
 place of their captivity and death. J. Barnitz Bacon,* the 
 sexton, and the Hon. F. B. Tillou, your recorder, a man 
 whose name is alone a sufficient guaranty for the truth of 
 any statement he may make; and the affidavit of General 
 
 * See petition A at the end of the argument, p. 30. 
 
8 
 
 Haight, the commander-in-chief of the Veterans of the 
 second war of Independence, show that some, at least, of the 
 faithful soldiers of the Kevolution lie interred in the line of 
 the proposed street.* The same thing is repeated in the 
 report of a Committee of your Board in March, 1847.f 
 It is stated in the life of General Lamb that he was buried in 
 Trinity Church-yard, and I am iu formed, by Mr. Bleecker, 
 that he was buried on the north side of the church. See 
 Leakes admirable life of General Lamb, page 356, where it 
 is stated that, — 
 
 “ General Lamb had been Vice-President of the Cincin- 
 nati ; once while Baron Steuben was President ; and after- 
 wards under George Clinton. He was borne to the grave in 
 Trinity Church-yard , followed by the members of that so- 
 ciety. He was buried with the military honors which he 
 had so well deserved. And the long array of citizens, as 
 they attended him to the tomb, attested the respect which 
 his virtues, his bravery, and worth had universally com- 
 manded.” 
 
 Tlic iollowing obituary notice, ascribed at the time to the 
 pen of Dr. Peter Irving, is extracted from Denniston’s paper : 
 
 “ How sleep the brave who sink to rest ; 
 
 With all their country’s wishes blest.” 
 
 “ On Saturday morning departed for a better world, our 
 much respected fellow-citizen, General John Lamb ; who, to 
 the unbending honor and martial spirit of a soldier — to the 
 unshaken integrity of a real patriot, added the humane and 
 benevolent virtues of a philanthropist. 
 
 “ He distinguished himself throughout our revolutionary 
 struggle. He lost an eye at Quebec, where the gallant but 
 ill-fated Montgomery fell ! He was, otherwise severely 
 wounded ; was captured and suffered the hardships of im- 
 prisonment in assisting the cause of freedom and his country. 
 
 “ General Lamb has from early manhood trod the rugged 
 
 * See note B at the end of the argument, p. 31. 
 
 f See note C at the end of the argument, p. 33. 
 
9 
 
 paths of life in public view ; and though fortune has not 
 smoothed his descent into the vale of years, nor scattered 
 roses in his path ; yet he has ever preserved a purity of 
 character, which even the breath of detraction has not dared 
 to sully. 
 
 “Peace be to his ashes ! He is gone into the presence of 
 that Being who will reward his virtues. The blessings of 
 misfortune’s children waft his spirit onward, while the tears 
 of the veteran patriots who fought and conquered by his 
 side, embalm his memory.” 
 
 “Peace be to his ashes /” said the voice of his surviving 
 friend as the remains of General Lamb were committed to 
 what that friend fondly supposed was their final resting- 
 place. But those who desire to open Albany Street de- 
 clare that there is no final resting-place, no “ peace to the 
 ashes ” of the patriot dead. “ He was buried with the mili- 
 tary honors he had so well deserved ,” says the biographer. 
 How strangely would it have sounded in the ears of “ the 
 long array of citizens ” who gathered round his tomb, if some 
 prophetic voice had declared that those “ military honors ” 
 should not avail to protect his bones from exhumation. 
 
 I have referred to the biography of General Lamb merely 
 to prove that officers of the Revolution have been buried in 
 Trinity Church-yard: that many such were buried there 
 during the war is proved by tradition, as well as the other 
 evidence before your committee ; and a tradition so gene- 
 rally believed in by the people would of itself be sufficient 
 to establish any historical fact. But if it were admitted 
 that no such officers or soldiers were interred there during 
 the war, it is beyond all controversy that many such were 
 buried there after the close of the struggle. This is not de- 
 nied, and is undeniable. 
 
 But the counsel suggests that there is no tombstone bear- 
 ing an inscription showing that the remains of Revolutionary 
 soldiers were interred there. 
 
 Where is the tombstone of the poor soldier ? Where is 
 the marble slab that marks the last resting-place of Sir John 
 Moore? Who is there living that can point out the place 
 
 2 
 
10 
 
 where Leonidas and the Spartan band who fell at Thermopylae 
 were sepultured. What living witness can state that he saw 
 the battle of Pharsalia, and can designate the tombs of the 
 Roman Republican soldiers who fell there? By the same 
 course of argument which the counsel pursued, it might be 
 proved that the great battles of antiquity were never fought. 
 It would be difficult to prove, by such a standard of evi- 
 dence, that George Washington ever lived; that the artil- 
 lery of the Revolution itself ever flashed upon the midnight 
 of despotism, and harbingered the dawn of liberty; that 
 Waterloo ever trembled beneath the tread of British legions, 
 or resounded with the thunder of Napoleon's cannon. In- 
 deed, the argument would go much further, and prove the 
 non-existence of everything but the present. All the re- 
 cords of the past are but traditions : history itself is but writ- 
 ten tradition — and shall we therefore deny its teachings? 
 The unepitaphed heroes of the Revolution, slaughtered by a 
 ruthless enemy, buried in dishonor, will live forever in the 
 hearts of their countrymen : — and the fact that no marble, 
 with its storied inscriptions, marks their final resting-place ; 
 that, no pillar rough with sculpture points out the spot where 
 the old veterans’ deathless acts were displayed, is a cogent 
 argument against disturbing their remains — remains which 
 consecrate every inch of ground where they lie interred. No 
 power on earth can divest that ground of the hallowed asso- 
 ciations with which it is embalmed in the hearts of the people. 
 
 ' But it is objected that this is an avaricious corporation. I 
 deny it, sir. The benefactions of this Church have been almost 
 unbounded. They have contributed towards the spread of 
 the Gospel not only, but towards almost every object em- 
 braced within the term, city improvement. They have given 
 to the city — -freely given , lands for streets , piers, markets , ferries , 
 colleges , and churches. (Yide Dr. Berrien’s History of Trinity 
 Church, 367-8 — 370 to 386.) In 1771 they contributed 
 towards building a market on Hudson river. In 1775, they 
 appropriated two lots on the north side of Yesey street, for 
 a pier and slip. In 1765, two lots were given to the city to 
 establish a ferry from Roosevelt street to Paulus Hook, 
 
11 
 
 which lots are now, I am told, occupied by James Boorman 
 under a claim of title ; but I find that the original grant was 
 “ for the use of said ferry ; but for no other use or purpose 
 whatsoever, upon condition that the ferry is to be established 
 and fixed there forever.’ 7 And as that condition has not 
 been observed, it may well be doubted whether his title — 
 the title upon which he vaunts himself — and upon which he 
 now makes his ungenerous attack on Trinity Church — 
 is altogether above question. 
 
 In 1786, Trinity Church gave three lots of ground for the use 
 of the senior Pastors of the Presbyterian Congregations of the City. 
 These were Lots Nos. 255, 256, 257, Park Place. 
 
 But time will not allow me to enumerate all the benefac- 
 tions of this church. In 1800, they contributed towards a 
 market. In 1810, two lots of ground for a free school — and 
 in 1815, a further grant was made to a free school. In 1742, 
 this church granted the land between Murray and Barclay 
 streets, extending from Church street to the river, for the 
 erection and endowment of a college — and old Columbia 
 still stands there as a proud memorial of their beneficence, 
 not only, but of the early introduction of science and learn- 
 ing into the colony of New York ; and its records present a 
 lively history of the humanizing influences which have been 
 exerted by that noble institution upon the sons of this 
 Metropolis. In a word , the benefactions of this, church amount , 
 according to the best estimate which can now be made , rating the 
 lands at their present prices , to the enormous sum of Two Mil- 
 lions of Dollars. (See Dr. Berrien’s History, p. 886.) 
 
 This, then, is the use which the church makes of its 
 wealth. And does it present a topic for Mr. Boorman’s re- 
 proaches ? 
 
 Who is it that demands that this Street should be 
 opened? James Boorman and his associates. I shall 
 not attempt to dispute the respectability pf Mr. Boorman, 
 his wealth, nor his charities. With these considera- 
 tions neither you nor I have anything to do. He may be 
 rich as Croesus, munificent as a prince, benevolent as How- 
 ard, for aught I know : but I have a rule laid down for me 
 
12 
 
 which I deem it always safe to pursue, and that is to con- 
 sider the act proposed to be done, and from that judge the 
 qualities of the actor, so far as they relate to that very trans- 
 action, and to none other ; for it would be doing violence to 
 my duty as a man, to my obligations as counsel, to turn aside 
 from the particular act under consideration to consider the 
 general tenor of any man’s life, either to bepraise or censure 
 it. Chaucer says : — 
 
 “ Loke who is most vertuous alway 
 Prive and apert and most entendeth ay 
 To do the gentle dedes that he can 
 And take him for the greatest gentleman.” 
 
 If Mr. Boorman comes up to this standard, as his counsel 
 asserts, and I do not deny, then he is a true gentleman. 
 But how does that demonstrate that this street should be 
 opened. The argument would seem to be, “ Mr. Boorman 
 is a gentleman, therefore the street should be opened through 
 the Church-yard.” 
 
 Mr. Boorman is, I am told, an English gentleman, who 
 has been in this country many years, and has, during his 
 stay here, amassed great wealth. Be it so. He is the very 
 man whom I should expect to be foremost in such a project 
 as this. He has no relative, I presume, who distinguished 
 himself in the battles of the Revolution. Ho patriot an- 
 cestor of his lies mouldering in that sacred ground — no 
 wife over whose corse his tears of sorrow were shed, — no 
 brother, no sister, no mother buried there. Nor can it be 
 expected that his bosom should swell with patriotic emo- 
 tions for the remains of the warrior dead. I have yet to 
 learn, that in England, in her cottages or in her palaces, any 
 praise was ever yet bestowed upon the heroes of our Revo- 
 lution. In all places, there, among high and low, they are 
 alike regarded and, often spoken of as successful rebels. Eng- 
 land can never forget that once we were England’s colonies, 
 and would have been England’s colonies still, but for the 
 efforts of the very men some of whom rest in yonder church- 
 yard. Nurtured where such feelings are prevalent, and seek- 
 
18 
 
 ing our shores after the Revolution had been successful, it 
 would not be at all surprising if Mr. Boorman entertains no 
 hallowed feeling for the memory of the patriots whose lives 
 were sacrificed in our struggle for liberty. 
 
 What participation, Mr. Chairman, had Mr. Boorman in 
 the proceedings of the Protestant Society to secure the re- 
 spectful interment of deceased Americans abroad ? ' I ask 
 because I am told that he attended the meeting of that so- 
 ciety at the Tabernacle and was particularly solicitous that 
 our government should take measures to procure a place of 
 sepulture in consecrated ground for Americans who die abroad? 
 Is he not now soliciting our government to take measures for 
 the accomplishment of that object? What a picture of con- 
 sistent, disinterested benevolence is presented by this devo- 
 tion of Mr. Boorman to the accomplishment of so desirable an 
 object as the procurement of a place of sepulture in consecra- 
 ted ground for our countrymen who die in France, Austria 
 and Italy, while he is at the same time proposing a measure 
 which involves the necessity of digging up the bones of our 
 Revolutionary patriots at home ! Is this a fair specimen of 
 Mr. Boorman’s benevolence ? I hope not. I trust there is 
 some mistake in regard to the matter. Suppose Trinity 
 Church had proposed to erect stores on the ground which is 
 now desired by Mr. Boorman for this street : how clamorous 
 would then have been the objections to the proposed dese- 
 cration of the sacred remains of the dead. Is it not fair to 
 presume that Mr. Boorman would have employed counsel 
 to appear before a Committee of your Board and protest in 
 thunder tones against the threatened outrage. And then 
 you would have heard the indignant denunciations of his 
 eloquence, demanding that the act should be arrested as one 
 which, if consumated, would outrage all the better senti- 
 ments of humanity and do violence to the settled, fixed, un- 
 alterable will of the people. 
 
 And who are Mr. Boorman’s fellow petitioners? I know 
 not. A long list was once presented to me as the names of 
 those who were said to have petitioned for the opening of this 
 street ; but, so many of those gentlemen have declared that 
 
14 
 
 r 
 
 their names were either in effect forged to the petition, or, if 
 they had really signed such a document, that it was without 
 a knowledge of its contents, and either false pretences or a 
 suppression of the truth must have been used to procure 
 their signatures, that I know not who are now his associ- 
 ates. A fraud so base as that, is worthy only of an- 
 other genius than that of Mr. Boorman. I can scarcely 
 believe that the frank, plain spoken old Englishman would 
 do such a thing. It is at war with the traditions by which 
 an English gentleman is governed. Wrong he may be — 
 obstinate he may be ; but he never can be otherwise than 
 frank, plain and straight-forward in what he does. He never 
 can stoop to so low a felony as that of procuring signatures 
 by false pretences, or even by a suppression of the truth. 
 
 Who opposes the opening of the Street ? First, Trinity 
 Church. And here be it remarked that Trinity Church has 
 refused a large sum of money to allow the Street to be 
 opened. If she had been selfish, unprincipled and vile, as 
 she is represented, would she not have accepted $62,000 in 
 1834, to allow that to be taken which is of no possible pecu- 
 niary valiie to her, and which in effect belongs to the rela- 
 tives and friends of those who are interred in f.her vaults. 
 This one fact is a sufficient refutation of all the calumnies 
 uttered against her. She opposes her own pecuniary inter- 
 ests. She refuses a large sum of money, and still proves 
 faithful to her trust. For it is plain enough that if, in 1834, 
 the property of Trinity Church was assessed at $62,000 — it 
 would now, owing to the immense appreciation of lots in 
 that neighborhood, be estimated at $200,000 at the least. 
 And think you, Mr. Chairman, that the property holders 
 in that neighborhood would be willing to pay such a sum 
 for opening this street ? If they objected to the payment of 
 $62,000 in 1834, as too onerous then , think you that they 
 will deem $200,000 now ) any less burdensome? Sir , the 
 property holders will be among the most zealous opponents of the 
 measure , and the expensive proceedings to open this street must 
 ultimately be discontinued , and the costs incurred charged to the 
 City ) under the auspices of the Reform Administration. 
 
15 
 
 In the second place, the application is opposed by such 
 men as the Hon. F. R. Tillou, your Recorder, — the noble, 
 public spirited, patriotic reformer, Tillou ; ever in the van of 
 whatever movement for the public good, — and of such men 
 as Capt. Tillou, General Haight, Mr. Townsend, and many 
 others who have friends and relatives buried there. The 
 Recorder has twenty -two relatives who are buried in the 
 line of the proposed street. These men oppose it on the 
 ground that it would be an unnecessary and ruthless dese- 
 cration of the dead. 
 
 Again, it would cost, according to the estimates made, 
 nearly $100,000 to disinter and remove the bodies buried 
 there. This, too, whatever it be, must be added to the 
 assessment to be paid by the property holders, or by the 
 City. Will they thank you for such an additional burden? 
 
 Having said thus much negatively by way of reply to the 
 argument of the learned counsel for the applicants, for the 
 opening of the street, and of the persons who ask for, and 
 those who oppose the measure, permit me now to say a few 
 words by way of affirmative argument against that measure. 
 
 And now, Mr. Chairman, I propose, in my own humble 
 way, to offer some suggestions, to show — 
 
 Firsts That the proposed opening of Albany street would 
 be an act in derogation of the grant made by the city of 
 Hew York to Trinity Church in 1703, and that it would be 
 a repudiation of a solemn compact between the city as gran- 
 tor and the church as grantee. 
 
 Second , That it is not demanded by public necessity. 
 
 Third , I shall endeavor to show that it would be a viola- 
 tion of the policy of the law to open this street. 
 
 Fourth , I shall, in conclusion, urge that Christianity is a 
 part of the law of the land, and that it would be a violation 
 of the precepts and the spirit of Christianity thus to scatter 
 to the four winds of heaven the ashes of the dead. 
 
 Nor shall I offer any apology for presenting such conside- 
 rations to gentlemen selected, as you have so recently been, 
 from the body of your fellow-citizens, to occupy the high and 
 honorable positions you now hold — selected because of your 
 
16 
 
 known probity and true moral worth in the community. 
 Why are we not discussing the question before the Board of 
 Aldermen of 1853 ? Is it not because the spirit of the hon- 
 est masses was aroused during the recent election in this 
 city, and because that spirit demanded that honorable men 
 should be selected to fill the places you now hold, in the 
 stead of those in whom they could no longer place confi- 
 dence. You are not at all embarrassed by the action of the 
 Board of Aldermen, whose places you now fill ; any act of 
 theirs, instead of furnishing evidence of the right in this 
 community, is the rather regarded as cogent evidence of the 
 contrary. To prove that any act of theirs was right, re- 
 quires an argument ; to show that it was wrong, but the sug- 
 gestion that they were its authors. I speak, of course, of 
 the majority of the late Common Council. There were men, 
 in both Boards, of great moral wworth — men as highly es- 
 teemed as any others in the city, and who have passed 
 through that ordeal, unscathed. But it is needless to pro- 
 nounce their praises. Their worth has been appreciated by 
 the unerring instincts of their constituents, and they have 
 already assumed important and influential positions in the 
 newly organized government. As well might it be urged, 
 that the resolutions of the late Common Council in favor of 
 a Broadway railroad, and their resolutions taunting the 
 courts, were binding upon their successors, as that the ephe- 
 meral expressions of opinion embodied in the resolutions 
 before you, possess any binding force. 
 
 Gentlemen, your predecessors, in the full tide of their 
 power, derided all control, threw off all restraint, seized 
 upon things sacred as well as things secular, and at last, as 
 a fitting termination of their ever-memorable labors, like the 
 proud prince of Babylon, they seized upon the appurte- 
 nances of God’s house ; and, while revelling in vain boasts of 
 their power, an unseen hand was writing on the wall with a 
 pen bathed in vivid lightning, in characters of fire, “ Mene, 
 mene , tekel upharsin ” — “ Thou art weighed in the balances 
 and found wanting.” Do you wish to complete their de- 
 signs ?— -i to follow their example ? I will not add, to share 
 
17 
 
 their fate ; for I know that consequences to themselves will 
 not be regarded by members of this Common Council, and 
 that they will seek only the good of their constituents, al- 
 though they will disregard alike the public admonitions and 
 the private interests of busy members of dictatorial, self-con- 
 stituted committees of interference. 
 
 Let us, then, approach the consideration of the question 
 with no feeling of embarrassment, that we are called on to 
 repeal a law — for no law has yet been passed. The matter 
 now stands before you as a new proposition. It has no 
 prestige of authority to commend it to your favorable con- 
 sideration. What, then, is it which is sought on the one 
 hand to be done, and which, on the other hand, we strenu- 
 ously resist. You are called upon to lend your sanction to 
 a proposition to exhume the bodies of some thirty or forty 
 thousand persons, among whom there are many officers and 
 soldiers of the Revolution, whose ashes lie mouldering with 
 their mother earth. A proposition to do an act, the mere 
 mention of which is so startling, demands careful scrutiny 
 into the rights with which it interferes, and the grounds on 
 which it is urged. 
 
 I. The opening of this street would be a violation of a 
 solemn grant and compact. The ground proposed to be 
 taken, was used as a common place of burial for all deno- 
 minations, for nearly a century before Trinity Church was 
 built. It was set apart by the Dutch, and by them conse- 
 crated as a place sacred to the last rites which separate the 
 dead from the living. Here, without the walls of the city, 
 beyond the sound of the active pursuits of life, where no 
 voice of revelry was heard, our Dutch forefathers selected a 
 sequestered spot, in a deep valley, as the last resting-place 
 for the honored dead. The affectionate mother, the honored 
 father, were here placed side by side; the tender, loving 
 wife and the devoted husband, whose remains were here 
 interred, were deemed safe from Yandal hands; and their 
 humble graves bespoke at once the poverty of their origin 
 and their devoted regard for the sanctity of the tomb. And 
 here let us not forget, that these were not members of the 
 
 3 
 
18 
 
 Episcopal Church. No sir : their associations were with that 
 glorious band of Hollanders who sought civil and religious 
 liberty on the newly settled shores of New Amsterdam. 
 For these, then, I plead — for the dead, who cannot speak. 
 Not for Trinity Church — not for the vestry of that church 
 — but for those who were alien to its services — nurtured in 
 the faith of our venerated Reformed Dutch Church, and 
 whose mortal remains were committed to their mother earth, 
 consecrated by services performed in a language unknown 
 to the church now called Trinity — and whose tombs were 
 inscribed nearly a century before Trinity Church had an 
 existence. Now, sir, let me remind your honorable com- 
 mittee, that even if Trinity Church were obnoxious to all 
 the objections which have been urged against it here — even 
 if this abusive pamphlet were true as it is false, it would in 
 no respect invalidate the considerations I press upon you. 
 Those who were buried nearly a century before Trinity 
 Church was built, cannot, by any sophistry, be made res- 
 ponsible for its acts or omissions. For the honored dead I 
 speak, and in their name I protest against the threatened ex- 
 humation — in the name of the tens of thousands, who, if you 
 could call them from their dark charnel-house, would appear 
 in their white robes and protest against this act. And how 
 would such an objection appear in the face of such an audi- 
 ence? Would an argument that, a century after their inter- 
 ment, another class of men had arisen who had erected a tem- 
 ple near the remains of the dead, and that temple had since 
 then not been in proper hands,' be regarded as an answer to 
 their appeal ? No, sir : no. But, lest by implication it may be 
 said that I admit the force of the objections urged against Trin- 
 ity Church, permit me to say, on the contrary, that I think that 
 church worthy of all honor ; entitled to unmeasured praise 
 for the firm course it has uniformly taken, no matter at what 
 pecuniary loss, to protect the remains of the dead ; and I 
 for one, as a member of the Dutch Church, thank them on 
 behalf of the old Dutch families, whose remains they have 
 guarded with such commendable fidelity. Nor do I per- 
 ceive, in the long history of the various proceedings to open 
 
19 
 
 an avenue through the bones of our Manhattanese ances- 
 tors, that Trinity Church has pursued any other course than 
 that pointed out by the pole-star of religion. 
 
 To resume my history of the ground. After it had been 
 occupied by the Dutch and their successors, as a city bury- 
 ing-ground, for nearly a« century, the city of New 5Tork, in 
 1703, granted it, under the broad seal of the corporation of 
 New York, to the corporation of Trinity Church, to be held 
 by the grantees as a perpetual place of sepulture for the peo- 
 ple of the city of New York, of all denominations, and irre- 
 spective of the condition or circumstances, race or lineage of 
 those whose bodies were to be committed to that consecrated 
 ground. To provide against the possibility of the rejection 
 of the poor, a very small sum was prescribed as a stated bu- 
 rial-fee, upon the payment of which the sexton was bound 
 to commit earth to earth and dust to dust, or the estate of 
 the church in the grounds would have been forfeited. In 
 consequence of the facility for making interments there, and 
 the low rates to be paid for such interments, it became the 
 common and most usual place of burial, and so continued 
 down to 1823, when the ordinance of this city was passed, 
 forbidding further burials. It is generally estimated, that 
 from thirty to forty thousand persons have been interred 
 there. I know that the estimate is disputed by the appli- 
 cants for this measure, but, so long as I can vouch for my 
 statement, the report of the committee of the Board of Aider- 
 men, made in 1847, and the other evidence before your 
 committee, I may well assume the accuracy of the state- 
 ment without stopping to prove it. Now let us revert, for 
 a moment, to the grant. The grant of the city to the church 
 expresses, substantially, that the ground shall be held by the 
 church in fee-simple for ever, as a general burying-ground. 
 In derogation of that grant, the same city now seeks to seize 
 the property which it once solemnly granted, and appro- 
 priate it to the aid of a private speculation; or, if you please, 
 for the sake cf the argument, for the purpose of opening an 
 unnecessary street. In other words, it is proposed to this 
 city to repudiate the grant so solemnly made, and treat it as 
 
20 
 
 though its corporate faith were not irrevocably pledged to 
 the literal fulfilment of all the terms of that grant. To illus- 
 trate : Suppose, Mr. Chairman, a gentleman were to convey 
 to you a piece of ground, upon trust that you should hold it 
 for the benefit of the living poor, and apply its proceeds to 
 their support, and afterwards the grantor should himself seek 
 to evade the grant. Would not all the world deem the act 
 dishonorable, and execrate his memory ? But that is just 
 what it is now proposed to the corporation of New York to 
 do in this matter ; the only difference being, that the corpora- 
 tion created a trust for the benefit of their dead the trust 
 in the case supposed being for the benefit of the living. 
 Shall such an act of bad faith receive the sanction of honest 
 men? To repudiate a bond was thought to imply pecu- 
 liar dishonor in the state of Mississippi, and fastened an 
 indelible blot on her fair escutcheon ; and shall we be 
 so illiberal as to pronounce Mississippi infamous for re- 
 pudiating her bonds, whilst we at the same time repu- 
 diate our deeds? Sir, you will not tolerate a distinc- 
 tion between Mississippi and New York. The bonds 
 of Mississippi were issued for contemplated public im- 
 provements, the repudiation was placed on grounds ofi 
 public policy. Such was the shallow pretence ; and be as- 
 sured that no arguments were wanting to show, in quite as 
 specious language as any which can be used here,/ that when 
 public policy demands repudiation, the people must repu- 
 diate. So here it is said, that public policy demands that 
 the city should repudiate its grant for the benefit of this 
 pseudo improvement ; but believe me, sir, that public policy 
 which demands the sacrifice of the honor of a state or a city, 
 must be more palpable, more urgent, more strikingly impera- 
 tive than any presented by this application. Public policy, 
 the law and the dictates of morality — I will not add, of com- 
 mon honesty — concur to condemn the proposed act. Sir, this 
 is no ordinary repudiation. It is not merely repudiating a 
 compact with the living , but a solemn compact with the 
 dead. For the sum paid as a burial-fee, the city, through 
 its custodian Trinity Church, entered into a solemn compact 
 
21 
 
 with eleven generations of men who have now long since 
 ceased to mingle with the affairs of the living, that the re- 
 mains resting in that ground, should lie there without 
 molestation, and the burial-ground should be forever a 
 sacred place of deposit for their ashes. These parties are 
 the beneficiaries of the trust vested in Trinity Church, and 
 to open this street would be to repudiate that solemn com- 
 pact between the living and the dead. Shall such a compact 
 be repudiated with impunity ? But it is said, that the great 
 interests of commerce demand it. Believe me, sir, 
 
 “ It is an impious greatness, 
 
 And mixed with too much horror to be envied.” 
 
 II. But, sir, I deny that the interests of commerce demand 
 it. The public does not demand it. You are called upon by 
 a few private individuals only. What great public interest 
 demands it? Do the merchants demand it? Ho, sir; they 
 ask not for it. Do the carmen ask for it ? The grade of 
 Thames street and Hector street — and the grade of Albany 
 street would be the same — is so steep as to unfit them for 
 their use, and they ask it . not. Our carmen are men who 
 would scorn to travel over the bones of the sacred dead ; 
 and if this street were made, they would avoid it as a plague- 
 spot. 
 
 Do the people demand it? No, sir. No. A thousand 
 times no ! They do not ask a new street within forty feet of 
 another street. And Albany street, if opened, would be 
 within forty feet of Thames street, with a single house be- 
 tween them. 
 
 Try this question of utility by another standard: Sup- 
 pose the ground, proposed to be taken for this street, be- 
 longed to any private citizen, Mr. Boorman, for example, 
 and that it had no grave-yard upon it. Would any one then 
 think the public interests could be subserved by taking it 
 for the street? Then, of course, its full value of $200,000 
 for building-lots would be placed upon it. And would any 
 one, in such a case, venture to suggest that the public could 
 be so much benefitted as to warrant the payment of such a 
 sum of money ? No, sir. It would then be seen that the 
 
22 
 
 opening of the street could not benefit the public, and the 
 price to be paid would be too great to forward the interests 
 of the lot-speculators. Mr. Boorman would then object to 
 the taking of the lots, upon the ground that it would be 
 taking his private property for private uses, and the scheme 
 would be frustrated. 
 
 The plain truth of the matter is simply this : the persons 
 who claim to open this street, think, what their counsel ex- 
 presses, that they can take this church-yard for nothing ; that 
 it will not cost a cent by way of assessment, and the open- 
 ing of the street will be a very handsome speculation. It 
 will open an avenue to their lots; give the lots desirable 
 fronts to make them saleable ; and that this great object can 
 be accomplished for just nothing. The speculation is cer- 
 tain ; the loss, they think, cannot be a penny. Did they not 
 know, when they purchased these lots, that the church stood 
 there ? Has the church deceived them by closing an avenue 
 to their property ? That is not pretended : all they ask is, 
 that the church will give away its lands ; or, rather, they 
 modestly ask, that you should forcibly confiscate the ground 
 of this church — that lots, which have been purchased at low 
 prices, may, in Mr. Boorman’s words, “be materially enhanc- 
 ed in value.” In other words, you are asked to dig up the 
 bones of our ancestors to aid a city lot-speculation. It is a 
 bold, bad project, for which no excuse, no apology can be 
 offered. 
 
 Believe me, sir, popular sentiment is opposed to the opening 
 of this street. A more unpopular measure could not be sug- 
 gested. Submit the question to the people, and nine-tenths of 
 the whole population would vote against it. This, of itself, is 
 sufficient to show that the public interests do not demand it. 
 I am one of those who believe that the instincts of the people 
 are sure to be right. Hear what the unbiassed expression of 
 the press is in regard to it. And when I speak of the press, 
 allow me to remind you that our newspapers present a true 
 mirror of popular sentiment. The history of the world, for 
 a day, is contained in each issue. I speak not now of cards 
 inserted in the newspapers by the parties interested in this 
 
23 
 
 measure, but of editorial articles, written in newspapers 
 above the taint of suspicion — newspapers which the parties 
 to the controversy cannot influence, much less control ; and 
 whose editors are men too pure to listen to anything but the 
 dictates of duty. Such, for example, as the Commercial Ad- 
 vertiser, and the other papers which have contained editori- 
 als on this question. An attempt has been made to impart a 
 sectarian character to this controversy, but it is signally out 
 of place. It is not a war of sects. The unanimous expres- 
 sion of whatever sect is against the measure — Catholics, Me- 
 thodists, Presbyterians and Baptists, members of the Dutch 
 and Episcopal Churches alike protest against it. Hear what 
 the editor of the Freeman's Journal says on the subject: 
 “But on the score of human decency, we protest against a 
 needless, and, as far as the public at large are concerned, a 
 profitless outrage upon the mortal remains of multitudes of 
 the honest and respectable dead of this city in its earlier 
 times.” — (Freeman's Journal, of 22d February, 1854.) And 
 the Citizen , with the warmth and earnestness which ever 
 glow in the honest hearts of Irishmen — men illustrious for 
 a self-sacrificing devotion, almost unknown to any other 
 single race — thus utters the sentiment of its large circle of 
 readers: “This attempt to violate the resting-place of the 
 dead has excited general indignation.” ( Citizen , 26th Feb- 
 ruary, 1854.) I have selected these two newspapers, be- 
 cause no man who has any knowledge of the gentlemen by 
 whom they are conducted, will venture to suggest that they 
 could be influenced by any other motive, in penning such 
 articles, than to express an honest indignation at the threat- 
 ened perpetration of such an outrage against the deep-seated 
 conviction of all classes, of whatever lineage, race or sect. 
 
 ISTor does this application come commended by a compli- 
 ance with the rules of law in regard to devoting property 
 to the use of a street. It is not an application to take pri- 
 vate property for public uses ; to do which it is only neces- 
 sary to show that public convenience requires it : but it 
 presents itself in a totally different aspect. Instead of being 
 an application to take private property for public uses , it is an 
 
24 
 
 attempt to take property already dedicated to public uses 1 for the 
 purpose of subjecting that public property to forward the inter- 
 ests of a mere private speculation. In other words, to take 
 property already solemnly appropriated to the nse of the 
 public, and devote it to the purpose of enhancing the value 
 of city lots, and bringing them into market ; and this, too, 
 not at the behest of the public, but upon the application of 
 a few individuals. If, however, this cemetry is to be regard- 
 ed as private property, then it is equally objectionable ; for 
 then it seeks to take private property for private uses , in vio- 
 lation of the constitution. u The constitution, by authoriz- 
 ing the appropriation of private property to public use, im- 
 pliedly declares that, for any other use, private property 
 shall not be taken from one, and applied to the private use 
 of another. It is in violation of natural right. If it is not 
 in violation of the letter of the constitution, it is of its spirit, 
 and cannot be supported.” (Opinion of the Supreme Court 
 in the matter of Albany street , 11 Wend. 150.) 
 
 The right of eminent domain, whatever it may be — and I 
 shall not stop to define it — has no application to such a case 
 as this ; for there is no great state or public necessity requi- 
 ring it, no public convenience to be subserved by it : and the 
 existence of either the necessity or the convenience must be 
 demonstrated to exist to justify its seizure in pursuance of 
 the right of eminent domain. {American Print Works agt. 
 Lawrence , Ch. J. Greene’s Opinion, p. 270.) 
 
 III. It would be a violation of the policy of the law to 
 open the street. (See Beatty v. Kerrs , 2 Peters’ Rep. 566, 
 7 Term Rep. 723.) In the case of Hunter agt. The Trustees 
 of Sandy Hill , reported in the 6th vol. Hill’s Reports, p. 407, 
 Judge Beardsley said: 
 
 “ Dedication, as the term is used in reference to this sub- 
 ject, is the act of devoting or giving property for some pro- 
 per object, and in such manner as to conclude the owner. The 
 law which governs such cases is anomalous. Under it, 
 rights are parted with and acquired ir^ modes and by means 
 unusual and peculiar. Ordinarily, some conveyance or writ- 
 ten instrument is required to transmit a right to real pro- 
 
25 
 
 perty, but the law applicable to dedication is different. A 
 dedication may be made without writing, by act in pais as 
 well as by deed. It is not at all necessary that the owner 
 should part with the title which he has ; for dedication has 
 respect to the possession, and not to the permanent estate. 
 Its effect is not to deprive a party of title to his lands, but 
 to estop him, while the dedication continues in force, from 
 asserting that right of exclusive possession and enjoyment 
 which the owner of property ordinarily has. ( Cincinnati 
 agt. Lessee of White , .6 Pet. Rep., 431, 438.) The principle 
 upon which the estoppel rests, is, that it would be dishonest, 
 immoral or indecent, and, in some instances, even sacriligious, 
 to reclaim at pleasure property which has been solemnly 
 devoted to the use of the public, or in furtherance of some 
 charitable or pious object. The law , therefore , will not per - 
 mil any one thus to break his own plighted faith to disap- 
 point honest expectations thus excited, and upon which reli- 
 ance has been placed. The principle is one of sound morals 
 and of most obvious equity, and is in the strictest sense a 
 part of the law of the land. It is known in all courts, and 
 may as well be enforced at law as in equity. 
 
 “ The land in question was dedicated as a grave-yard , and 
 a the ashes of the dead should be allowed to repose in undisturbed 
 “ solitude and quiet. The grave is hallowed. This sentiment is 
 “ deeply seated m the human heart , and is all but universal. It 
 “ exists with scarcely less intensity of strength in the breast of the 
 u savage than in that of civilized man , repelling any rude approach 
 11 to the resting-place of the dead , and forbidding , as sacriligious , 
 “ its use for any of the secular ,and common purposes of life. A 
 11 just deference to this sentiment , and a proper respect for the feel- 
 u ings of those whose friends have been buried in the ground now 
 a in contest , are wholly incompatible with the<right to exclusive pos- 
 11 session set up by the plaintiff T 
 
 This is the language of one of the ablest jurists of this 
 state. Nothing that I could say would a^dd to its force. Why, 
 does it not emphatically apply to this ground ? Has it not 
 been solemnly dedicated and devoted “to the use of the pub- 
 lic? ” Will the law, therefore, permit any one to break the 
 
 4 
 
26 
 
 plighted faith of the city, and disappoint the honest expecta- 
 tions excited by this pledge of that faith, upon which it has 
 been “used for this pious object” — and should not “the 
 ashes of the dead be allowed to repose in undisturbed soli- 
 tude and quiet? ” Turn, for a moment, from this language 
 of the courts, to the expressions of the legislature. What 
 does our statute say in regard to the removal of dead bodies 
 from their graves ? (2 R. S. 683; § 13 :) “ Every person who 
 shall remove the dead body of any human being frorii the 
 grave or other place of interment, for the purpose of selling 
 the same, or for the purpose of dissection, or from mere wan- 
 tonness , shall, upon conviction, be punished by imprisonment 
 in a state prison not exceeding five years, or in a county jail 
 not exceeding one year, or by a fine not exceeding five hun- 
 dred dollars, or by both such fine and imprisonment.” Let 
 us mark the language of this section, and we may gather 
 thence the legislative intention and policy of the law. It 
 denounces exhumation as a crime, whether the motive be 
 mere gain by selling, or when the person is even impelled 
 by a desire to promote medical science, or when “ mere wan - 
 tonness ” actuates him. In each case the act is alike pro- 
 nounced unlawful, and a penalty declared upon the offender. 
 Think you the law would have been thus strict if the law- 
 giver had not been persuaded of a deep-seated conviction, that 
 the act denounced was abhorent to the universal sentiment 
 of mankind ? He who, “ from mere wantonnessf removes 
 the dead, is declared by the laws to be a criminal. This ap- 
 plication to open Albany street I cannot view in any other 
 light than an attempt to disinter the dead from “ mere wan- 
 tonness,” or a worse motive, the desire of gain. 
 
 Who is it that asks for the opening of Albany street ; and 
 for what object? James Boorman, a rich English gentle- 
 man, asks that it may be opened, that his property may 
 thereby appreciate in value. In his communication to the 
 Journal of Commerce , Mr. Boorman concedes that “it is 
 undoubtedly true” that his property will be materially 
 enhanced in value by opening the proposed street. His 
 counsel here informs us that, if opened, he shall con- 
 
 i 
 
27 
 
 tend that Trinity Church will be entitled to no assessment 
 for the land ; because, says the counsel, the ground is dedi- 
 cated to the purpose of a cemetery, and on the authority of 
 the Albany street case, in the eleventh volume of Wendell’s 
 Eeports, page 150, he believes this church would not be en- 
 titled to a cent of the assessment. Mark this bold project 
 then displayed in its true colors. Mr. James Boorman asks 
 for the graves of our fathers, that his land may be rendered 
 more valuable, and he asks that the land of the chnrch may 
 be taken for nothing, that he may be made all the richer. 
 No gentleman, occupying Mr. Boorman’s position in this 
 matter, has a right to assail the motives of Trinity Church, 
 as he certainly has done, directly and indirectly, in his own 
 person and by his representatives. 
 
 Try the motives of that body by a very simple standard : 
 
 Trinity Church, in 1834, was offered sixty-two thousand 
 dollars for the ground proposed to be taken, to which the 
 church has a merely legal title, as custodian for the sacred 
 dead interred in her vaults. Now, if the church were so 
 wicked, one would suppose that the most natural thing in 
 the world would have been for her to have accepted the 
 offer of $62,000, prove recreant to her trust, and consent to 
 the opening of the street, which, in no pecuniary sense, could 
 injure her a penny. On the contrary, the church refused 
 the tempting bribe, and preferred, and still prefers to retain, 
 in lieu thereof, the bones of the poor who have been buried 
 in her ground. And, notwithstanding all this, the pamphlet- 
 eer representing and advocating Mr. Boorman’s interest, 
 whoever he may be, charges this church with avarice, pride, 
 and all the deadly sins. To my mind, the self-denying con- 
 stancy of the church, in refusing that large sum of money, 
 and continuing faithful to her trust, is above praise. 
 
 IY. There is another source of law to which I must beg 
 to call your attention. It is found in a book of paramount 
 authority — the Bible. But some may say, that the Bible is 
 not the law of the land. Hear what Lord Chief Justice Best 
 says on the subject. I read from the case of Bird v. Hol- 
 brook, (4 Bing., 638.) “It has been argued,” (says that emi- 
 
28 
 
 nent judge,) “ it has been argued that the law does not com- 
 pel every line of conduct which humanity or religion may 
 require ; but, there is no act which Christianity forbids, that 
 the law will not reach. If it were otherwise, Christianity 
 would not be, as it has always been held to <be, part of the 
 law of England.” And I would remind you, sir, that, by 
 our constitution of 1777, the common law of England was 
 adopted and made part of the law of the state of New York, 
 and has ever continued to be, and now is, the law of this 
 state, coAstantly acted upon in our courts. 
 
 That Christianity forbids the desecration of the dead, re- 
 quires no argument. Ever since the introduction of Chris- 
 tianity, the remains of the dead have been held sacred. The 
 advent of religion marked an entire revolution in the mode 
 of disposing of the dead. 
 
 The Romans kindled the funeral pyre under the remains of 
 deceased friends, but when Paul preached to them, in thrilling 
 tones, the resurrection of the body and the life everlasting, the 
 converts to the new faith were carefully placed in the Tufa, in 
 subterraneous caverns, where the solemn rites of sepulture 
 were performed by the primitive Christians over their mar- 
 tyred brethren in days of persecution and of danger. These 
 caverns still remain, as the catacombs near Rome bear wit- 
 ness. The elaborately-wrought sarcophigi, the proud mau- 
 soleums, which meet the eye of the beholder on every hand 
 in the old world, all bear silent evidence of the universality 
 of this sentiment. In a word, he who can exclaim, “ I know 
 that my Redeemer liveth, and that he shall stand at the 
 latter day upon the earth : and though, after my skin, worms 
 destroy this body, yet in my flesh shall I see God,” — he who 
 believes this momentous truth must respect the remains of 
 the dead. But this branch of the subject more appropriately 
 belongs to the pulpit than the forum. Permit me, therefore, 
 to dismiss it with the remark, that the eloquent sermon of 
 the learned divine, Mr. Weston, has developed all that is 
 necessary to be said on that subject, in its true light. His 
 very text is sufficient without a sermon, and is peculiarly 
 apposite to the present occasion. Abraham, the venerable 
 
29 
 
 patriarch, purchased land from the children of Heth, for a 
 perpetual burying-place. It received the mortal remains of 
 his wife not only, but of Abraham, Isaac, Jacob and Joseph. 
 The children of Heth were true to their grant, observed it 
 faithfully, and to this day the burial-place is kept sacred. 
 Our forefathers have also purchased a perpetual burial-place 
 in Trinity church-yard, and it is now sought to be taken 
 from us, not by one of ourselves, but by a stranger. One, 
 to whom all the glorious associations of our land are un- 
 known, bids us yield up the bones of our fathers to aid 
 him as a legitimate source of profit. Shall we yield ? No 
 sir, never ! I appeal to you, then, not to allow this street to 
 be opened. By all the glorious memories of the past, by all 
 your brilliant hopes for the future of our country, do not 
 destroy the graves of our revolutionary patriots — by every 
 consideration of public utility, let that one green spot re- 
 main. Let old Trinity stand intact, and teach the sublime 
 truths of our holy religion to the two hundred thousand in- 
 habitants within its precints ; and may the daily sermons 
 preached there be continued, and may her dead repose in 
 peace beneath the shadows of her lofty spire, till the mighty 
 archangel shall come down from heaven, and shall open the 
 books, and shall set his right foot upon the sea, and his left 
 foot upon the land, and swear, by Him that liveth for ever 
 and ever, that time shall be no longer. 
 
30 
 
 [ Note A.] 
 
 History of Trinity Church, in a Petition from a descend- 
 ant of a Revolutionary Officer. 
 
 To the Honorable , the Common Council of the City of New York : 
 
 The undersigned respectfully joins in the prayer of many of his fellow-citizens to 
 your honorable body, asking for the repeal of the ordinance of the late Common 
 Council relative to the extension of Albany street through Trinity Church-yard. 
 
 In support of his petition, the undersigned begs leave to present the following 
 facts connected with our Revolutionary history: 
 
 Among the earliest of the patriotic spirits who marched from their homes to de- 
 fend the city of New York against the armies of Great Britain in 1776, were the 
 regiments contributed by the counties of York and Lancaster, in Pennsylvania. 
 They were composed almost entirely of young men, the majority of them of Ger- 
 man descent, and animated by the hatred of oppression, and enthusiasm in the cause 
 of freedom, which distinguish their race at the present day. 
 
 Five regiments marched from the county of York to New Jersey in July, 1776, 
 and, of these, two were detached to form part of the “flying camp” — a corps of 
 10,000 men, voted by Congress on June 3, 1776. These two regiments were sta- 
 tioned in the vicinity of the city of New York. A portion of them were killed, or 
 taken prisoners, at the battle of Brooklyn Heights, and the balance either fell on 
 the field of battle at the taking of Fort Washington on the 16th of November, 1776, 
 or were captured on that disastrous occasion and marched down to the city. Here 
 they, in common with thousands of their fellow patriots, suffered unheard-of cruel- 
 ties in the prisons and sugar-houses of New York. 
 
 The regiment of Col, Michael Swope, consisting of eight companies, suffered se- 
 verely at Fort Washington. Death on the field, or by wounds, or from the horrors 
 of the prisons, left but few to return to the green hills of the Codorns. 
 
 Ensign and Adjutant Barnitz, of this regiment, then but 18 years old, fell at Fort 
 Washington, with a musket ball in each leg. Being carried to the city prisons with 
 the survivors of his regiment, he was soon afterwards removed to more comfortable 
 quarters in the old house formerly standing at No. 9 Bowery, in consequence of the 
 severity of his wounds, and at the intercession of an old family friend, Major-Gen- 
 eral William Alexander — Lord Stirling, who was then also a prisoner, having been 
 shortly before captured on Long Island. Adjutant Barnitz here lay w T ith unhealed 
 wounds for fifteen months; but during that time he was not insensible to the still 
 greater sufferings of his companions in arms, and, with the help of the noble-heart- 
 ed officer just mentioned, he was enabled to alleviate their captivity, and to care 
 for their remains when dead. 
 
 Being generally of the Lutheran faith, the grave-yard of that denomination, ad- 
 joining Trinity Church, (subsequently the site of Grace Church,) would have been 
 their appropriate place of burial, but the church had been destroyed in the confla- 
 gration which occurred shortly after the occupation of the city by the British army, 
 and the burial ground was unprotected. 
 
 A successful effort was, therefore, made to obtain a place of sepulture in Trinity 
 Church-yard. Adjutant Barnitz was attached to Captain Christian Stake’s compa- 
 ny, of Swope’s regiment, composed of young men of the best families of the town 
 of York. To these more particularly, as being his more immediate comrades, such 
 care as he could afford was given. 
 
 Of this company the followif!^ were buried in the north-western portion of the 7 
 grounds, at that time bordering on the water, viz: Sergeant Peter Haak, Sergeant 
 John Hinks, privates, Hugh Dobbins, Henry Hoff, David Parker, and probably one 
 or two others. Captain McCarter (of Col. Richard McMaster’s regiment, from the 
 same county,) died of wounds received at Fort Washington, and was also buried at 
 Trinity yard. 
 
 It may be proper to state that these facts are derived partly from the History of 
 the County of York, by. A. J. Glossbrenner, Esq. ; (now sergeant-at-arms of the Sen- 
 
31 
 
 ate of the United States,) and partly from the papers and reminiscences of the old 
 veteran, who, in the early days of the writer, was wont to relate the story of his 
 battles, and “to shoulder his staff and show how fields were won.” 
 
 To the soldier, the last resting place of his comrade is consecrated by the memory 
 of the trials, the conflicts, the sacrifices and the sufferings which they have, shoul- 
 der to shoulder, encountered. He feels that his honor rests by that mound of earth, 
 and must guard it from violation while life shall last. He bequeaths its care to his 
 countrymen, as a place of sacred memories, and never for a moment dreams that 
 future years may bring spoilers of the tomb, who will forget their duty to the blood 
 which cemented the foundations of-the republic. 
 
 The Mexican war was prolific in instances where those who fell were exhumed 
 by committees sent by their surviving comrades, and received a soldier’s burial at 
 home. 
 
 Permit me to relate a fact in this connection. 
 
 At the call for volunteers for the Mexican war, William Eurich marched with his 
 company from the town of York, and joined the Pennsylvania Regiment. In the 
 battle which occurred before the walls of Peubla, Eurich, with others of his com- 
 pany, having charged close up to the Mexican lines, saw his friend and comrade 
 shot dead by his side. A superior force compelled them to retreat, but Eurich 
 paused, and, shouldering his friend’s body, was bearing it off to a place of safe sepul- 
 ture, when a ball struck him, and the brave fellow sank in death by the body of his 
 much loved friend. Eurich was the grandson of Michael Eurich, one of the captur- 
 ed soldiers of Port Washington. 
 
 Shall the stern heart and rough nature of a soldier beat with so hallowed a feel- 
 ing, and shall the citizen, the merchant, and the legislator repudiate it? 
 
 Shall it be said that the city of New York desecrates the graves of her defenders, 
 and, at the bidding ol the money-god, scatters to the winds the ashes of the soldiers 
 of liberty ? 
 
 These patriot soldiers, who now repose in the church-yard of Trinity, died far 
 from friends and home. They laid down their lives in their youth. They left no 
 sons to speak for them. Their silent dust cannot plead to you for rest. 
 
 It, therefore, becomes my duty and privilege to address you. 
 
 I was born where they were born. Their friends were my friends, and my early 
 days were familiar with the green hills which they last looked upon when they 
 marched to defend your city. 
 
 My earnest petition to the Common Council of the city of New York is, that the 
 remains oT these martyrs of our Independence may be left in peace in the graves 
 where their comrades laid them. 
 
 Respectfully, 
 
 No. 1 61 Broadway, Peb. 9, 1854. 
 
 J. Barnitz Bacon. 
 
 :o: 
 
 [Note B.] 
 
 DESECRATION OF TRINITY CHURCH- YARD. 
 
 Copy of a Letter from His Honor the Recorder to Alderman Francis. 
 
 Dated, New York, May 28, 1853. 
 
 Dear Sir : — I did not receive your note mentioning a meeting of the Committee 
 of your Board, in relation to Trinity church-yard, until after the time designated. It 
 is painful to me to discover that renewed efforts are making to desecrate that holy 
 ground ; for there lie multitudes of the dead, including relatives, connexions, friends 
 and ancestors of almost every family of long standing in our city, including, too, many 
 of those who died in that struggle, the success of which established those mighty 
 principles and institutions of human liberty from which flow the happiness, the bless- 
 ings and prosperity of this country and its people. 
 
32 
 
 I have not examined the papers connected with the present application, but should 
 like to do so the moment I can obtain sufficient time from my other duties. I under- 
 stand that it is the same, and, with some few exceptions, by the same leading per- 
 sons who took an active part in the applications made in 1846 and 1847, which, I 
 believe, in effect, was to make a street in continuation of Pine street opposite to 
 it, through Trinity church-yard — the north part 58 feet 1 1 inches wide on Broadway, 
 and 55 feet 8 inches on Trinity-place, and to be continued to Greenwich street, op- 
 posite Albany street, 50 feet wide. The street proposed, on its northerly side on 
 Broadway, would approach to within 40 feet of Thames street which is 20 feet 1 
 inch wide on Broadway, and 21 feet 2 inches on Greenwich street, and, by a diagonal 
 line, would be within 58 feet 8 inches of Thames street at Greenwich street. 
 
 The ground, as I understand, has been employed as a cemetery since 1676 — the 
 north part for all denominations — confirmed by deed from the city in 1703. Origi- 
 nally, that part was a gully about *16 feet deep; and successive surfaces from the 
 original one, by successive filling to the present surface, have been used for inter- 
 ments, until, in truth, the land chiefly for the whole depth is now composed of 
 human ashes. 
 
 To accomplish the desire of the applicants it would be necessary to remove the 
 remains of a vast number of persons. 
 
 I see no advantage in recapitulating the arguments used on the former occasions 
 in this letter, but solicit you to have the kindness to read the message or veto of 
 Mr. Havemeyer, the Mayor in 1846, made on the lltli of May of that year, and re- 
 ceived in the Board of Assistants, and the report of the Comrdittee of the same 
 Board, made on the 22d of March, 1847. (Doc. 33 of that year.) 
 
 The truth of the views of that Committee we are now, I think, in some respects real- 
 izing. The sale of the grave-yards and churches and removal of the dead in various 
 parts of the city, and the closing up of those green and venerated spots by covering 
 them with buildings have deprived us, to a large extent, of what may be regarded 
 as necessary openings for ventilation ; nay, more, have removed so much of the 
 moral influence which religious worship carries with it, that vice and crime in the 
 lower wards of the city have been deprived of one of their material preventives. 
 The idea, no doubt, has its opponents, but I think examination will prove its truth. 
 
 Besides, I am interested in the measure, because I have twenty-two relatives and 
 connections lying in that portion of the yard. Some of them were interred previous 
 to and some since the revolution. A headstone of one who died in 1762 is yet ex- 
 tant. 
 
 We are a family of Huguenots. Our ancestors, to escape persecution and oppres- 
 sion, fled from comfort and good condition to this country — when here it was almost 
 a wilderness — and met loneliness and poverty. They did this for conscience’s sake ; 
 and, to worship the Deity, according to their tenets, would walk on Saturday night 
 from New Rochelle to this city to their church, and return on Monday morning. 
 
 The French church in Pine street, to which they once went, and its grave-yard, 
 have, as well as others, been sold for money, and the remains of the congregation 
 there interred, been taken up and carried away. 
 
 Generations of this family lie in Trinity church-yard, and it is now impracticable 
 to separate their ashes from the earth which surrounds them. Such is the case with 
 thousands of others. 
 
 One of the family is Peter V. Tilyou, who died in 1846, at the age of 91 — the in- 
 dividual of the body-guard of Washington, who, it is said, on the entrance of the 
 American army into this city, at the close of the war, took down the British and run 
 up the American colors, at the spot where is now the corner of Grand street and the 
 Bowery. He, when he heard of the application in 1846, before his death, to open 
 the street through the cemetery, remonstrated against the act in the newspapers of 
 the day, and exclaimed that when he and his comrades were fighting the battles of 
 their country, he little thought he would ever live to see their bones so scattered, 
 and that he had a father, a mother, and wife, and ten brothers and sisters, lying 
 there. 
 
 * The Report of the Committee of the Board of Assistant Aldermen says “30 feet.” The Re- 
 corder, probably, takes the average depth. 
 
33 
 
 i 
 
 The disturbance of the dead is a revolting act, only excusable by extreme neces- 
 sity. The instincts of nature and the behests of the Almighty forbid it. The abode 
 of the dead is consecrated — is sacrod in the eye of all nations, and linked, as this 
 home of a mighty nation of the past is, by tradition, relationship and recollection, to 
 nearly all the older families of this city — beautiful, though solemn in its appearance 
 and inspirations — can it be, that any considerations short of vital necessity can war- 
 rant its being broken into ? 
 
 But enough ; excuse these remarks : they are involuntarily drawn from me on 
 thinking over the matter. If you will inform me when you shall have your next 
 meeting, I will endeavor, though I may not be able, to be there. Should I not, I 
 pray you take the grounds of my opposition into consideration. Yery respectfully 
 yours, &c. F. R. TILLOU. 
 
 Alderman Francis. 
 
 :o: 
 
 [Note G] 
 
 TRINITY CHURCH- YARD. 
 
 Report of the Special Committee in the Board of Assistant Aldermen, March , 1841, to 
 whom was referred the resolution in relation to opening an extension of Albany street 
 to Broadway , through Trinity Church- Yard, adverse to the same : 
 
 The Special Committee to whom was referred the resolution in regard to the ex- 
 tension of Albany street to Broadway, through Trinity Church-Yard, respectfully 
 report, that they have examined the matter in all its various bearings, and in order 
 to obtain the opinion of those interested therein, the applicants and remonstrants, 
 as well as the people at large, many of the latter of whom regard the ground 
 through which it is intended the street shall be opened, as sacred, your Committee 
 have held public meetings, and given audience to all who might come forward to 
 speak in favor of, or in opposition to the measure. The subject has been ably and 
 thoroughly discussed at such meetings, and your Committee have derived great 
 information from the different discussions held before them, and have maturely con- 
 sidered all the arguments advanced on both sides. Your Committee have also ex- 
 amined all the documents which have been referred to, or placed before them — 
 have personally inspected the ground through which the proposed opening or ex- 
 tension would pass, and have made all such other examination, inquiry and research, 
 as appeared to be material or useful to the end above mentioned. 
 
 The street proposed commences on Broadway, partly in a line with Pine street, 
 forty feet south of Thames street, — is fifty-eight feet eleven inches wide on Broad- 
 way, and is continued until it strikes Trinity Place, forty-six feet one inch south of 
 Thames street, where it becomes gradually diminished in width to fifty-three feet 
 eight inches.' It is then continued, — commencing on the west side of Trinity Place, 
 fifty -three feet four inches south of Thames street, and is there fifty feet in width, 
 and is continued to Greenwich street, which it strikes partly in a line with Albany 
 street, fifty-seven feet eight inches south of Thames street, where the width is dim- 
 inished to forty-nino feet ten inches. The block from Broadway to Trinity Place is 
 in length about two-hundred and fifty-six feet, and the block from Trinity Place to 
 Greenwich street about two hundred and thirty-five feet. 
 
 The Petitioners in this matter complain that they have no thoroughfare from the 
 north to the east river, and that for the want of one they suffer much in the winter 
 time, and are obliged, on account of the steepness of ascent in Rector and Thames 
 streets, and the narrowness of the latter, to cart their goods through Marketfield 
 street or Battery Place to Broadway, in order to reach the east side of the City; 
 but it appears strange to your Committee that the merchants and others doing busi- 
 ness on the east side of Broadway, and who carry on the chief part of the business 
 which is done below Liberty street, make no demand whatever for such an opening ! 
 Many of our European Packet Ships have their berths in the North river, above 
 
 5 
 
84 
 
 below, and about the dock at the foot of Albany street, in which ships, large car- 
 goes of goods are imported by merchants in Pine, Wall, Cedar, Water, Front, Pearl, 
 South, Broad, and Liberty streets; and many transient ships also land their cargoes 
 in the region afore-mentioned : but your /Committee have not heard of any person 
 doing business as an importer on the east side of Broadway, who desires or is in 
 favor of the proposed extension of Albany street. Moreover there are more streets 
 running from Broadway to the North river than to the East river already: for in- 
 stance, on the east side there are Maiden Lane, Wall, Pine, and Liberty streets; 
 and on the west within the space there are Rector, Thames, Cedar, Liberty, and 
 Courtlandt streets. From which it appears there are five openings from Broadway 
 to the North river, and only four from that great thoroughfare to the East river; 
 and yet we heir no complaint from those engaged in business on the east side about 
 the want of a passage from one river to the other, though they are in number as 
 twenty to one compared with those on the West side. The actual necessity, there- 
 fore, of extending Albany street in the manner proposed, is a matter of doubt; and 
 to run it through the time-honored cemetry which stands as a barrier to the com- 
 pletion of the project, the Petitioners must prove that the necessity is extreme — 
 that the contemplated opening would be a great public benefit, and that they are 
 actuated by no other motive than the promotion of the public good. 
 
 That section of Trinity Church-yard through which the contemplated street must 
 pass, is the most ancient cemetery in this City, and probably in this country. It 
 was established by the Dutch on their first settlement, and as a burial-ground it is 
 nearly a century older than the other sections of the yard. It was originally a valley 
 about thirty feet lower at its extreme depth than the present surface, and has under- 
 gone successive fillings, as the density of interments rendered it necessary, to raise 
 the land until it reached the present surface; so that the earth now, to a depth of 
 several feet below the original , and thence to the present time of interment , is in , truth 
 filled with human remains , or rather composed of human ashes. The bodies buried 
 there were those of many thousand persons of several generations, and of all ages, 
 sects, and conditions, including a large number of the officers and soldiers of the revo- 
 lutionary war , who died whilst in British captivity , and almost every old family that 
 is or ever was in this city has friends, relatives, or connexions lying there. 
 
 Your Committee are of the opinion that this burih'l-place is peculiarly entitled to 
 the protection of our authorities, and they cannot but think that if it be invaded and 
 desecrated, not another cemetery in the city is safe from the spade of the innovator. 
 Its claims to respect are as follows: 
 
 First. For its antiquity : this portion of it being nearly a century older than 
 Trinity Church itself, and the burial-place of the city when first founded by the 
 Dutch, and laid out by them just beyond the City Wall. 
 
 Second. It has always been emphatically the City burying-ground, without refer- 
 ence to religious sect or condition, and was deeded by the Common Council of the 
 city to Trinity Church, April 22d, 1703, conditioned that it should continue to be 
 used forever, as a general burying-ground, (the price of interment being fixed at five 
 shillings for an adult, and two shillings and sixpence lor a child under twelve years 
 of age, shows it to be the poor man’s resting-place,) and Trinity Church bound to 
 Keep it in good fence, repair and condition. In fact it belongs to the people gener- 
 ally of the city, the church aforesaid being merely its guardian, and absolutely and 
 inevitably bound in conscience to protect it. 
 
 Third. The immense number of interments, particularly in that part of the city 
 now sought to be turned into a highway, which alone is estimated to contain the 
 remains of between thirty and forty thousand human beings; embracing, as afore- 
 said, many of our most distinguished citizens and patriots of other days. 
 
 Fourth. The parties who were interred in this spot : — During the time this city was 
 in possession of the British troops , the American prisoners who perished by thousands 
 were all thrown in trenches into this very ground , and as soon as the city was evacuated , 
 were , by Trinity Church , given in that place a decent sepulture , where - tomb-stone and 
 tablet still mark the spot in which many a Revolutionary officer lies buried. Your 
 Committee, therefore, feel assured that hardly an American citizen can be found who 
 would hesitate a moment to declare that it must be an urgent , nay a dire necessity , that 
 
 * 
 
35 
 
 would justify the scattering of the ashes of those so deservedly dear to us, who are now 
 enjoying the liberty and happiness, which they laid down their lives to secure. 
 
 Fifth. When the Common Council on the 22nd of April, 1703, as before mention- 
 ed, conveyed this piece of land to Trinity Church, describing it then as an ancient 
 burial place of the city, and conditioning that it should continue to be so used for 
 that purpose to the end of time, did they not guarantee under the solemnity of the 
 city seal, to all who were subsequently interred there, that they should there con- 
 tinue to repose for ever ? A question here arises, as to whether or not the Common 
 Council can, by their own act, legally take away those rights which they have so 
 solemnly declared should never be infringed, and on the faith of which declaration 
 and assurance so many paid for that ground in which they now repose in the deep 
 sleep of death ; but it is a question which requires not much ingenuity nor the aid 
 of counsel to answer in a manner satisfactory to all who are not pecuniarily inter- 
 ested in the extension of Albany street. Apart from “ the question” however, do 
 we not take great pride in our magnificent city, and in the integrity op her seal, 
 which has never yet been violated ? And shall we not continue to preserve it as 
 •pure and unsullied as the ermine of Justice itself? As servants of the people, it is 
 our bounden duty, to keep the faith of the city inviolate, and that alone should 
 prompt us to deny the prayer of the petitioners; but your Committee have other 
 reasons to offer why their prayer should not be granted. 
 
 It appears that the application now-under consideration is supported by one 
 hundred and twenty-three persons; of whom fifty-three are represented as owners 
 of property interested, and the remainder as lessees, packet-owners, and persons 
 who do not define the position and capacity in whfch they apply : That is opposed 
 by upwards of sixteen hundred persons; that is to say one hundred and thirty, in- 
 cluding Trinity Church as owners of the property in interest, and the residue as re- 
 latives of the dead : That such of the applicants as appear to be owners , represent 
 altogether, about, but not exceeding, seventy-one lots ; that such of the opposers, 
 including Trinity Church, as appear to be owners , represent altogether, about, but 
 not exceeding, twenty-nine acres ; or, at twelve lots per acre, three hundred and 
 forty-eight lots; and, at sixteen lots per acre, (which is the correct estimate, as the 
 land is exclusive of streets,) four hundred and sixty-four' lots: in addition to which 
 are the large numbers of the dead lying there, whose interest is not only repre- 
 sented by the church aforesaid, but by the immense number of their relatives and 
 friends. 
 
 Your committee, although it is. rather beyond their duty, seeing the opening or 
 extension of Albany street to Broadway through Trinity Church-yard, is the sub- 
 ject of their labors, begs leave respectfully to suggest that the widening of Thames 
 street from Broadway to Greenwich street would make a much better thoroughfare 
 than the one desired by the applicants, inasmuch as the street, proposed by them, 
 ddes not average fifty feet in width from Trinity Place to Greenwich street, where- 
 as the widening of Thames street would give a width on Broadway of sixty feet 
 one inch, and on Greenwich street, gradually widening from Broadway down, seven- 
 ty-eight feet ten inches. This wohM not only make a handsome street, but would ob- 
 viate the necessity, and quell the desire of having another cut through and running 
 parallel with it only forty feet distant. The petitioners allege that this would be too 
 expensive ;' but your committee are of the opinion, that if it he absolutely necessary 
 for the public good that a new street be opened in that quarter , those interested would 
 rather pay double the amount Of their own estimates, than disturb the ashes of the 
 patriotic dead entombed in Trinity Church-yard. The widening of Thames street 
 would, in the opinion of your committee, answer a better purpose than the exten- 
 sion of Albany street, inasmuch as it would be a great deal wider, and, of course, 
 much easier of ascent from Greenwich street to Broadway. Your committee might 
 also suggest the opening and extension of Albany street to Trinity Place, and the 
 widening of Thames street between Broadway and Trinity Place by the removal of 
 those buildings on Thames street opposite the City Hotel; by which means Albany 
 street could be brought within the gorge of an inlet to Broadway, and the necessi- 
 ty of cutting through the chambers of the dead be entirely obviated. However, as 
 
36 
 
 your committee are not empowered to report in more than one case, it is proper 
 that they confine themselves to their legitimate duty. 
 
 Your committee are of the opinien that the prayer of the petitioners ought not to 
 be granted: 1. Because it is manifest that a large majority in amount of those who 
 will be interested by assessment for benefit and award for injury are opposed to it. 
 By the law of 1839,* it is in substance declared, that on the application to the Su- 
 preme Court to confirm the report of commissioners of estimate and assessment be- 
 ing made, in case such majority shall appear and object to further proceedings, the 
 proceedings shall be discontinued — and your committee have no doubt that the Com- 
 mon Council, in considering this application, are bound to be governed by the same 
 rule ; for otherwise they would wilfully subject parties to certain though useless and 
 unjust expense and injury. 
 
 2. Because the contemplated street would be a deformed one of different widths, 
 while Thames street, widened as herein before recommended, will expand gradually 
 and by regular lines on both sides to Greenwich st., where its width should be the 
 greatest, as it will be, and would present an elegant improvement. 
 
 3. Because the law of the lltli of April, 1842, f in effect, declares the act by a, 
 church or religious corporation or its officers, of removing any human body or re- 
 mains from any burying-ground, for the interment of which compensation shall have 
 been received, with intent to convert the ground to any other purpose , without the con- 
 sent in writing of three-fourths of the congregation or society , a misdemeanor , and sub- 
 jects the offender to fine and imprisonment. The spirit of these laws cannot be mis- 
 taken, and none will doubt, who have examined the subject, that it is in accordance 
 with the feelings and sentiments of the whole community, and of the whole nation ; 
 and the Common Council cannot give their official sanction to an act so broadly a 
 violation of the statutes and of the rights and feelings of the community, because it 
 would be aiding men to commit, in the name of the public, an act which the -public 
 have, by its laws, declared t© be Criminal. The demoralizing effect of these desecra- 
 tions is plainly disclosed in the bold assertions made before your Committee during the 
 discussion of the subject, by those in favor of the proposed extension, that the feeling 
 against the breaking up and appropriating of Cemeteries to secular purposes, is “ an 
 obsolete idea;” and your Committee believe that a compliance with the application 
 now under consideration, will, upon the same principle of reason, give a firm ratifi- 
 cation to the revolting sentiment. As conservators of the public morals, the Com- 
 mon Council are bound to refuse their sanction to such a monstrous doctrine. 
 
 4. Because the extension applied for is against public policy; inasmuch as it 
 would contract the open space which Trinity Church-yard affords, now not more 
 than sufficient for the necessary ventilation of that part of the city. Besides that 
 spot, the Bowling Green and the Battery are the only places of the kind in the First 
 "Ward. How necessary, then, to the public health it is to preserve Trinity Church- 
 yard entire, and how injurious to contract or diminish it! That ground is suscepti- 
 ble of high and exquisite embellishment as an elegant ornarflent. Linked with so 
 many endearing associations, so many interesting memorials, rich in its evergreens 
 of memory as well as of fact and reality, attached to the magnificent Cathedral that 
 stands within it, what can be more healthful or beautiful. * 
 
 Your Committee consider that sound policy and regard for the public health for- 
 bid that the proposed opening should be made; and that the ultimate failure of the 
 several previous applications to former Common Councils proves that the des gn of 
 the applicants is radically objectionable. Your Committee will close their report 
 by recommending for adoption the following resolution : 
 
 Resolved , That it is inexpedient, improper, and unnecessary to extend Albany 
 street to Broadway through Trinity Church-yard, or that any street whatever should 
 be opened through or over that ground ; and that the prayer of the Petitioners be, 
 and is hereby denied. 
 
 All of which is respectfully submitted. • CHARLES WEBB, 
 
 New York, 184*7. ISAAC B. SMITH. 
 
 * Laws of the State of New- York, page 182, chap. 209. 
 
 tLaws of the State of New York, page 259, Chap. 215. 
 
 % 
 
37 
 
 I cannot adopt all the reasoning of the foregoing report, but from the evidence 
 presented to me that the opening of Thames street would afford the necessary facili- 
 ties to the public, I concur in the resolution that it is inexpedient to open Albany 
 strict 
 
 THOMAS McELRATH, 
 MOSES W. S. JACKSON, 
 
 Committee. 
 
38 
 
 APPLICATION 
 
 FOR A 
 
 MONUMENT IN TRINITY CHURCH- YARD. 
 
 At a Meeting of Citizens held at the City Hall of the City of New York, on the 
 8th of June, 1852, the following Preamble and Resolutions were adopted: 
 
 Whereas, the remains of a large number of those heroic men who sacrificed their 
 lives in achieving the Independence of these United States, many of whom died 
 whilst in captivity in the old Sugar-house, are interred in Trinity church-yard in 
 this City, and, from the uniform attention and respect to the dead which Trinity 
 Church has observed, it is believed that, on suggestion, it will cheerfully erect a 
 suitable Monument to their memory, therefore — 
 
 Resolved , That the erection of a becoming Monument, with appropriate inscrip- 
 tions, to the memory of those great and good men, by the Church, will be an act 
 gratifying, not only to the attendants of this meeting, but to every American citizen. 
 
 Resolved , That the proceedings of this Meeting be communicated to the Yestry 
 of Trinity Church. 
 
 A. C. KINGSLAND, President. 
 
 CHAS. W. SANDFORD, Vice-President. 
 
 R. T. COMPTON, > s . . 
 
 JONA.' TROTTERS, J * ecretanes - 
 
 We fully concur in the above. 
 
 Wm. Hatt, 
 
 F. A. Tallmadge, 
 
 John McKeon, 
 
 Geo. P. Morris, 
 
 Aaron Platt, 
 
 N. Bowditch Blunt, 
 
 Wm. Y. Brady, 
 
 James M. Bard, 
 
 Robt. H. Morris, 
 
 A. A. Denman, 
 
 C. W. Lawrence, 
 
 S. L. H. Ward, 
 
 Anthony Lamb, 
 
 A. L. Alvord, 
 
 W. F. Havemeyer, 
 
 Jacob F. Oakley, 
 
 S. B. McGown, 
 
 Wesley Smith, 
 
 Pat.’k Breaden, 
 
 Wm. J. Brisley, 
 
 C. H. Ring, 
 
 Danl. F. Tiemann, 
 
 J. W. Brown, 
 
 Abraham Moore, 
 
 Thos. J. Barr, 
 
 H. M. Wells, 
 
 William H. Cornell, 
 
 Wm. M. Tweed, 
 
 Joseph R. Taylor, 
 
 John Doherty, 
 
 Oscar W. Sturtevant, 
 
 John Boyce, 
 
 D. Banks, 
 
 C. Francis, 
 
 A. H. Mickle, 
 
 F. R. Terron, 
 
 Campbell P. White. 
 
39 
 
 i 
 
 REPORT OP THE COMMITTEE 
 
 Proposed Monument to the Heroes of the Revolution. 
 
 The Committee to whom was referred the annexed Resolutions adopted at a 
 Meeting of Citizens, at which his Honor the Mayor presided, and the President of 
 the Board of Aldermen acted as Secretary, on the subject of the erection of a Mon- 
 ument by the Corporation of Trinity Church, to the memory of the Officers and 
 Soldiers of the Revolutionary War, who died in captivity in this City “and are 
 interred in Trinity Church-yard,” 
 
 Respectfully Report, 
 
 That, in addition to the Officers of the Meeting, the Resolutions are subscribed by, 
 and concurred in by six of the former Mayors of the City, the Recorder, and two 
 ex- Recorders, the President and Members of both Boards of the Common Council, 
 together with several of our oldest and most respected Citizens. A communication 
 thus made will at all times command the respectful consideration of the Yestry of 
 Trinity Church. Prom the best information the Committee have been able to pro- 
 cure, the following statement, from the Recorder of the City, is probably the most 
 correct : 
 
 “ In relation to the circumstances connected with the events of which you inquire 
 in your note to me, I can of my own knowledge only, so far as applies to the Revo- 
 lutionary Patriots w’ho died in British captivity, and whose remains lie In Trinity 
 Church-yard, state, what has been handed down by my ancestors and others of that 
 generation, by tradition and what is known as part of the history of that period. 
 By this, I believe is established the fact, that large numbers of those who are in- 
 terred in the north section of Trinity Church-yard, died in the building afterwards, 
 as well as before, known as the ‘ Sugar House,’ in Liberty Street. The remains 
 of many others of the brave men who were in that great struggle lie also there. 
 It is said that a portion of the yard where the most of those brave men lie, was 
 below the present surface, some sixteen feet, about, at, or on a line with or oppo- 
 site Pine street; and, by subsequent successive fillings as the ground became full of 
 human remains, it has reached its present height ; thqt, in fact, in that part of the 
 yard, for more than sixteen feet, the ground is composed of human remains, 
 quite decomposed nearly all to dust. Ground, so peculiarly consecrated, — ground 
 thus formed of all that is of past generations, including not only those who, in the 
 ordinary path of life’s chequered scene, had their votaries for their virtues, but those 
 also distinguished, and to be distinguished justly, in all ages, for their devotion to 
 their country, and their sacrifices, even unto death, to secure its present blessings, — 
 surely is, emphatically, holy ; and the many memories associated with it truly sacred. 
 The memento proposed is particularly appropriate. 
 
 Prom this statement, it may be considered that a portion of the burying ground of 
 Trinity Church, on or near to the line opposite to Pine street, contains the remains 
 of a large number of the Revolutionary Patriots, who died in captivity in the prisons 
 of this City during the War of the Revolution. Some, as the Committee are informed, 
 
40 
 
 ■were buried elsewhere: the present site of Stuart’s marble store haying been, at that 
 time, a cemetery principally for blacks, in which were also interred a portion of the 
 Heroes of the Revolution. Although nearly three-fourths of a century has elapsed 
 since the martyrdom of these men in the cause of human freedom, strange as it may 
 seem, there is no authentic record of their death, and nothing to designate their se- 
 pulchre. 
 
 The Committee do not stop to inquire whose especial duty it may be to repair, at 
 this late day, this seeming injustice. The Corporation of Trinity Church, in whose 
 keeping many of these sacred relics are deposited, are applied to, in an imposing man- 
 ner, to erect a monument to their memory, and the Committee recommend a favor- 
 able response to the adoption of the following resolution : — 
 
 Resolved , That a suitable monument be erected, by this Corporation, in memory 
 of the Officers and Soldiers of the Revolution, who died in British captivity in the 
 City of New York, many of whom are buried in the North part of Trinity Church- 
 yard, opposite to Pine street, and that Dollars be appropriated therefor, 
 
 and that a Committee be authorized to procure plans and estimates to be submitted 
 to the Yestry. 
 
 JOHN R. LIVINGSTON, 
 ROBERT HYSLOP, 
 alex. l. McDonald. 
 
 New York, Nov. 6, 1852.