covered with water, and that he had no knowledge of the obstruction, until his boat was hard on: That the State Scow, Elias Richards, master, assisted him in getting off; after which, they took the log out of the canal. He also states the particulars of the damage sustained in the loss of salt, of time, and the injury done the boat, which your committee think it unnecessary to recapitulate, as they have come to a conclusion adverse to the prayer of the petitioners.

Stephen B. Crane, lock-tender at lock number nine, middle section of the Erie canal, swears in an affidavit annexed to the peti tion, that the boat was sunk about a mile and a half west of said lock number nine, and that he had previously heard from boatmen that there was an obstruction in the canal near or at that place, and that another boat had stuck fast upon it for about two hours; but the hands did not discover what the obstruction was.

Your committee are informed by one of the Canal Commissioners, that the middle section of the Erie canal terminates near lock number nine, and east of the place where the boat was sunk. It might, therefore, perhaps be a sufficient answer for the State to say that the obstruction was not within the territorial supervision of this lock-tender, and that no knowledge of its existence had reached the officers whose duty it would have been to remove it. But if it be allowed that it was the duty of Crane to transmit to the proper agents the information he had derived from the boatmen, yet it is not proved that sufficient time had elapsed to allow him to do this. Whether the first notice got from the hands was received on the day the Three Partners sunk, or previously, does not appear.

The only principle upon which the State regards itself as responsible for damages arising from causes of this nature, is the neglect of its agents to remove them.

Your committee being of opinion that the evidence in this case falls short of establishing that point, have instructed their chairman to introduce the following resolution.

Resolved, That the prayer of the petitioners be denied.

No. 321.

IN ASSEMBLY,

May 12, 1836.

REPORT

Of the Commissioners of the Land-Office, on the memorial of Wm. Cochran, John William Fay, and sundry other inhabitants of the city of New-York, in relation to Trinity Church.

TO THE ASSEMBLY.

The Commissioners of the Land-Office, to whom was referred the memorial of William Cochran, John William Fay, and sundry other inhabitants of the city of New-York, in respect to Trinity Church in that city, have the honor to present the following

REPORT:

The memorial was referred to the Commissioners on the 30th March, 1835, and the report has been delayed to this time by the desire of the Commissioners to afford to the parties concerned, an opportunity to be heard, if they should so desire, and by other circumstances which it was not in their power to control. A day was appointed for the hearing during the recess of the Legislature, and the proper notices were given, as well to the memorialists as to Trinity Church. The latter appeared by counsel, from whom a paper was subsequently received, stating the legal grounds on which the church claims to hold its corporate property.

The memorialists suggest that there is in the city of New-York, an ecclesiastical body called "The Rector, Church Wardens and Vestrymen of Trinity Church in the city of New-York;" that [Assem. No. 321.]

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said "church is in possession, and receives the profits, of a very extended landed estate;" that the revenue of said church was formerly limited by the Legislature of this State, "to the sum of twelve hundred pounds per annum of the then currency," "which would amount to three thousand dollars of the present currency;" but that its present revenue "very much exceeds the sum to which it is limited" by law, and that the immense wealth of Trinity Church gives it "a preponderating influence, not only in the affairs of the Protestant Episcopal church in this State, but in those of the United States." That in the opinion of the memorialists, the possession of so great wealth by this society, is inconsistent with the spirit of the government and Constitution of this State; and that, in permitting it so to be held, the government give a preference to "a particular religious denomination." The memorialists, therefore, pray that "the whole of said real estate, or so much thereof as creates the excess of revenue, beyond the amount limited, may be taken to and for the people of this State; and that the Legislature will take such proceedings in the premises as may seem proper."

On the sixth of May, 1697, William III. King of England, granted a charter of incorporation to a rector and certain inhabitants of the city of New-York. This charter recites, amongst other things, that certain inhabitants of said city had, by their petition, represented that a church had been built within said city, at the charge of the governor of the then province of New-York, and several other inhabitants of said city, and prayed that said "church might be made parochial and incorporate into one body politic, in fact and in name;" and that a yearly maintenance might be appropriated unto said church, and also that his majesty would make a royal grant of a piece of land near adjoining to said church, for the use of said church and corporation; wherefore in consideration of the premises, and of the great charge which must accrue in finishing said church, &c. and in erecting and providing a parsonage house, &c. his majesty granted and declared that said church, "situate in and near the street called Broadway," in the city of New-York, "and the ground thereunto adjoining, inclosed and used for a cemetery or churchyard," should be the parish church and church-yard of the parish of Trinity Church, within said city, and dedicated to the service of God, and applied thereunto for the use of those who might from time to time be inhabitants of the city of New-York, in communion of said Protestant church of England, as then established by

the law, and to no other use or purpose whatever; and that there should be a rector, and a perpetual succession of rectors in said parish, the Bishop of London being thereby constituted the first rector. The charter, also, declared and provided, that said Bishop and his successors, rectors of said parish, and the inhabitants of said city, in communion as aforesaid, should be a body corporate and politic, in fact and in name, by the name of "The Rector and Inhabitants of our said city of New-York, in communion of our Protestant church of England, as now established by our laws," with perpetual succession, and power to have, acquire and purchase lands, goods and chattels, and to use, lease and dispose of the same as other liege people, "or any corporation," within the realm of England or said province, might lawfully do, "not exceeding the yearly value of five thousand pounds." It was also declared by said charter, "that the said church, cemetery or church-yard," should be the sole and only parish church and church-yard of" said city of New-York; and a certain yearly maintenance of one hundred pounds, directed by an act* of the general assembly of said province, was in and by said charter granted to said rector and his successors forever, to be levied and collected according to said act; the said premises, rights, &c. to be holden by said corporation in free and common soccage, at the yearly rent of one pepper corn, if demanded.

This is an epitome, so far as is deemed to be material, of the original charter of Trinity Church, in the city of New-York.

An act of the Legislature of the province of New-York, passed the 27th of June, 1704,† recites that Trinity Church had been erected by the voluntary contributions of sundry inhabitants of the city of New-York, who had also purchased and procured, and held and enjoyed "the said church, with the cemetery or burying place, and a certain tract of land belonging thereto." The act then proceeds to declare that the rector of said church, and the inhabitants of said city, in communion of the church of England, as by law established, and their successors, should possess corporate powers, and as such corporation, might "hold, use, exercise and enjoy," the said church, burying place and land thereto belonging, by whatsoever name or names the same were purchased and had, and "in as firm and ample a manner, in the law, as

* This act was passed 24th March, 1693. Livingston and Smith's edition of the Provincial Laws, p. 18.

↑ Livingston and Smith's edition of the Provincial Laws, p. 60,

if the said rector and inhabitants had been legally incorporated" before the purchasing, taking, receiving and holding the same.

It is probable that the title of the corporation to the church, burying place and land adjacent, had been called in question before the passing of this act, and that a principal object of the provision which has been recited, was to confirm that title, and render it incontestable. The first step in the origin and progress of Trinity Church, appears to have been the erection of the church by voluntary contribution, and the acquisition of a title of some description to the land on which the church was erected, and the land adjacent thereto. In whom this title was vested, does not appear; but by the sixth section of the act last referred to, it ap pears that the title had been conveyed by the corporation of the city of New-York, "for the use of Trinity Church." The church, however, had not then been incorporated, and was therefore incapable of taking a legal title. The charter of incorporation was subsequent to this grant, and to the erection of the church; but this, although it gave to the body thereby created, a capacity to acquire and receive title to the church property, did not in fact, invest it with that title. That could only be effected by a subsequent legal conveyance to the corporation, or in case the title had previously been transferred in an informal manner, for the benefit of those who were thus incorporated, the Legislature might correct such defects and informalities, and thus vest the title accordding to what had been the real intention of all parties. This is what the act of 27th June, 1704, was intended to effectuate, and hence it provided that the corporation should have and hold said church, burying place and land, by whatsoever name the same were purchased or granted, in as ample a manner as if said corporation had been created before such purchase or grant had been made.

The act of 27th June, 1704, also declares that said corporation may acquire and purchase lands, tenements and hereditaments, goods and chattels, and lease and improve such lands, &c., in amount, however, "not exceeding five hundred pounds yearly rent or income."

This corporation was, therefore, not only originally created by the King's charter, but it was subsequently declared by the Provincial Legislature, to be a corporation and to possess such general powers as the original charter had assumed to confer upon it.