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History of Orange County
Town of Newburgh
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A large majority of the inhabitants now on the patent, are not episcopalians; and if every male inhabitant, of the age of 21 years, without regard to his religious profession, be allowed to vote, the church may be forever kept vacant, and the intention of the charter thereby defeated. It would be absurd, to allow persons to vote under the charter, who are interested and disposed to vote in such a way, as to defeat the very object of that charter. If all the inhabitants have a right to vote, and will not vote, for episcopalians, then a mandamus may be necessary, to compel them to vote for such trustees. In 1803, the inhabitants petitioned the legislature to divest the land, and appropriate it solely to the use of schools. But if the land, had not once vested in trustee, under the charter, it became vested again in the trustee, elected in 1805; and they could do no more than to set it apart, pursuant to the charter, for the use of an episcopal minister and a school.
According to the true and legal construction of the charter, then, none but Episcopalians had a right to vote, or if, before the constitution was formed, all the inhabitants of the patent had a right, yet since that time, no persons but such as belong to, or are of the communion of that particular church I have a right to vote, or act in regard to the management of its temporal and religious concerns.
Have the rights of the plaintiff been divested by the act of 1803? It can never affect the rights of the episcopal inhabitants, as they did not join in the petition. If it be granted, that the legislature have power to interfere and direct the mode in which the charter officers are to be elected, it does not follow that they can take away the property of the grantees. In the preamble to the act, Hugh Walsh and Levi Dodge, are stated to be trustees, when in fact they were not trustees. It would be strange and unjust, if mere strangers might, by a petition to the legislature, obtain a grant of the property of others. The legislature had no right to make such a grant; and if the act had been passed under a mistake, or through misrepresentation, it cannot operate against those who were strangers to the act, and who did not join in the petition.* The land having once vested in the grantees, under the charter, it could not be lawfully taken away from them, without their consent.
J. Radcliff and T. A. Emmet, contra. The original charter was to certain palatines, who were German Lutherans.— On their removal from the tract, the remaining inhabitants, being of the church of England or episcopalians, met together, elected trustees, surrendered the original patent, and obtained a new charter to them and their successors. If none but persons of the same religious denomination, with those named in the original grant, had a right to vote; then the episcopalians in 1752 had no right to elect trustees. There is as much ground to object to the charter of 1752, under which the plaintiff claims, as to the act of 1803, under which the defendant holds. The episcopalians, in 1752, acted in the same manner towards the Lutherans, as the presbyterians in 1803, have acted towards the episcopalians. No evidence was offered under the first and second demises; and the claim of the plaintiff rests on the two last demises. There are two sets of trustees, one of the parish of Newburgh, elected pursuant to the charter under which the plaintiff claims; the other created by the act of 1803.
1. It is said that none but episcopalians have a right to vote for trustees. But the words of the charter are, that all the male inhabitants of the tract, of the age of twenty-one years, are to elect trustees, and that the trustees with the consent of a majority of the freeholders of the tract, are to call and present a minister, and appoint a schoolmaster.— There is nothing in the charter which says, that the persons entitled to vote, shall be episcopalians. Admitting the fact, that at the time the charter was granted, all the inhabitants were episcopalians, it would not follow, that the right of voting was to be always confined to persons of that religious denomination; since it was not to be presumed, that persons of the same religious sect would forever continue on the patent, when it was the well-known policy of the parent country to encourage protestants, of all denominations, to settle in the colonies. The grant was not solely for a religious object, but for moral and commercial purposes, the support of a school, and the upholding of a fair or market. In the latter objects, every inhabitant was interested, whatever might be his particular tenets of religion. According to the intent of the charter, at least in respect to a school and fair, every inhabitant had a right to vote for the trustees. If so, the election in 1805, in which none but episcopalians were allowed to vote, was illegal.
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* Jackson v. Catlin, 1 Johnson, 253.