WILLIAM LIVINGSTON’S PROTEST
OF A CHARTER BEING ISSUED TO KING'S COLLEGE

[Extracted from the Journal of the Assembly
of New York, November 1, 1754]

    The House being informed that William Livingston, Esq., one of
the trustees appointed in and by an Act entitled, An Act for vesting
in trustees the sum of three thousand four hundred and forty-three
pounds, eighteen shillings, raised by way of lottery, for erecting a
college within this colony, was attending at the door, he was called
in, and delivered to the House a paper entitled, The Report of
William Livingston, one of the trustees appointed by an Act
entitled, An Act for vesting in trustees the sum of 4443 pounds,18
shillings, raised by way of lottery for erecting a college within this
colony, in obedience to the order of the Honorable the General
Assembly, of the 25th of October last, signed by the said William
Livingston.

     Soon after, the House being also informed that Benjamin Nicoll
and James Livingston, Esqrs., two of the other trustees appointed
in and by the aforesaid Act [etc.] were attending at the door; they
were likewise called in, and delivered to the House a paper, entitled,
The Report of the Trustees appointed in and by an Act [etc.], signed
by John Chambers, Daniel Horsmanden, Edward Holland, James
Livingston, Benjamin Nicoll, and Abraham De Peyster, trustees
appointed in and by the aforesaid Act.
    Which two reports being severally read,
    A motion was made by Captain Livingston that the said two reports
be entered at large in the Journal of this House.
    [Here follows a short account of the debate and the vote on this
motion, which was carried. (The Editors.)]
    Which reports are m the words following, viz.—

    To the Honorable House of Representatives of the Province of New
York in General Assembly convened.
The Report of the Trustees, appointed in and by an Act [etc.],
Humbly showeth,

    In obedience to the order of the honorable House of the 25th of
October last, that they the said trustees, entered upon the trust reposed
in them by the said Act; and did in pursuance thereof advertise that
the said monies were to be let to interest, and have accordingly put
out the same, and also the monies raised by the third lottery, as will
appear to the honorable House by the schedule to this report annexed,
containing an exact account of the money set to interest by them, and
the interest received, and what is still due upon the securities, with the
dates of the same; to which, for brevity’s sake, they beg leave to refer.
They further show, that after the money was put to interest (in order to
procure payment of the interest), they ordered an advertisement to be
inserted in the public papers, requiring the persons who were indebted
to them to pay off the interest due on their securities; some of which
hath been accordingly received as by the said schedule will appear. They
further show that an offer or proposal hath been made to them by the
Rector and inhabitants of the City of New York in communion with the
Church of England, as by law established, to give any reasonable quantity
of the church farm (which was not let out) for erecting and use of a
college. And the said trustees further show that no proposal hath been
made to them by any other person, nor any donation given to their
knowledge. They further show that they have agreed and ordered that
an advertisement be published again in the newspapers to notify all
persons in arrear for interest on their securities to them, to discharge the
same without delay, or they may expect to have their bonds put in suit.
And that the said trustees have more money to let on the terms in their
former advertisement mentioned, being great part of the money raised by
the last lottery, very lately paid in by the managers of the said lottery.
They have further agreed and ordered that particular letters be wrote to
those persons whose securities appear in the least dubious to discharge
the same, or give better security, or that they must expect suits for the
recovery of what is due from them respectively.

    To the Honorable the General Assembly of the Colony of New York.

    The report of William Livingston, one of the trustees appointed in and
by an Act of the Governors, Council and General Assembly entitled [etc.], in pursuance of an order of this honorable House of the 25th of October last, ordering the said trustees to deliver an account of what has been done by the said trustees in pursuance of the powers and authorities given them by the said Act.

    Humbly showeth,

    That at a meeting of the said trustees on the 30th of October last, the said order of this honorable House having been read, it was agreed, that a report should be drawn up and delivered to this House, by Friday then next, and that it should consist of certain particular heads, then agreed on, as fully answering the order of the House; but the said William Livingston did then protest against the said report as being incomplete, for not containing the whole of the proceedings of the said trustees, in pursuance of the Act mentioned in the said order; and particularly a certain petition preferred by the said trustees to his Honor the Lieutenant Governor, for a charter of the said college, and the said William Livingston’s protest against the said charter and petition.

    Upon which the said William Livingston begs leave to remark,

    First, That considering the nature of the trust reposed in the said trustees, is such that they are not a body corporate and politic, but empowered to execute the trust as the majority of the said trustees should agree, and personally accountable to the Governor, Council and General Assembly, or either of them, when by them or either of them thereunto required, it was his undoubted right to protest against all such acts of the said trustees, as he conceived did exceed the powers reposed in them, and to have the same entered on the minutes of their transactions.

    Second, That the uses of such a protest were to enable the party making the same to exculpate himself to those to whom the said trustees were accountable.

    Third, That if the said trustees had exceeded their powers, or omitted to execute their trust, unless his dissent was reported, he might be equally
chargeable in the judgment of this House, with his fellows.

    Fourth, That therefore it would have been highly proper for the said
trustees to have reported the said Livingston’s protest against and dissent
from their transactions.

    Fifth, That their refusal to report the same in their report was an
infringement of his right as a trustee; and for this and the other reasons
assigned in the minute of said trustees of the 30th of October last, it
became necessary for him to make a separate report in the words following.

    That on the 12th of January, 1752, the trustees did order an advertisement to be published in the public newspapers for letting out the money, and receiving proposals touching the erection of the college, and that no sum should be let out under 200 pounds, and that on the bonds to be taken, be endorsed a warrant of attorney to confess judgment.

    That with respect to the state of the monies put out at interest, and the
several sums thereon received, the same appears by the schedule agreed
to be annexed to the report of the said trustees; to which the said
Livingston begs leave to refer.

     On the 8th day of April, 1752, the Reverend Mr. Henry Barclay,
acquainted the trustees (at one of their meetings) that it had been unanimously agreed at a meeting of the Rector, Church Wardens and Vestrynien of Trinity Church, to make a proposal to the trustees that they were willing to give a reasonable quantity of the church farm for the erecting of a college; and delivered the said agreement which is in the words following, to wit:

City of New York

    At a meeting of the Rector, Church Wardens and Vestry Men of
Trinity Church on Thursday, the 5th day of March, Anno Domini, 1752,

Present

The Rev. H. Barclay, Rect., etc.

    It being unanimously agreed by this Board that a proposal be made
to the commissioners appointed to receive proposals for the building a
college, that this Board is willing to give any reasonable quantity of the
church farm (which is not let out) for the erecting and use of a college;
it is ordered that the Rector, and Church Wardens be a committee to
wait on the commissioners, and make the aforesaid proposal to them,
and confer with them thereupon. A true copy.                          

Richard Nicoll, Clerk.

    Which being read, Mr. Chief Justice returned the thanks of the
trustees to the representatives of the church for said offer.
    Agreed, That the said trustees go and view the lands mentioned in
the above agreement and proposal, which was accordingly done.

    On the 22nd of November 1753, it was agreed (at a meeting of the
trustees) that a letter be wrote to Dr. Johnson, of Stratford, proposing
to call him for the Presidency of the Seminary of New York, and that
he be offered 250 pounds per annum for his salary, to commence from
the first day of May next; and that another letter be wrote to
Mr. Chauncey Whittelsey of New Haven, offering him the sum of 200
pounds per annum as second master of the said seminary, to
commence as aforesaid; and that Mr. William Livingston prepare
the draughts of the said letters.

    As the trustees are sensible that the salary proposed for Dr. Johnson
(though as much as they are enabled to offer) is inadequate to his merit,
and that the Vestry of Trinity Church will readily agree to make a
sufficient addition;

    Agreed, That the gentlemen of the Vestry who are trustees do
recommend it to the Vestry to make such additional proposals as
may induce him to accept the above proposal.

    On the 7th of January following, the several draughts of the letters
to Mr. Johnson and Mr. Whittelsey, were read, and  approved of
and ordered to be copied, sent and signed by William Livingston in
behalf of the trustees; which were accordingly copied, signed and
sent the day after, each inclosing a copy of the Act of Governor,
Council and General Assembly, of the 4th of July then last past, and
containing the several proposals before mentioned, and as a further
inducement to Dr. Johnson to accept the said proposals made to him,
the trustees in the said letter acquainted him that as they were informed
since the draught of the letter, by some of the trustees who were of the
Vestry, that the Corporation of Trinity Church had agreed to call him
as an assistant minister, they made no doubt that the additional
provision which they would allot him for that service, might be a further
inducement to him to accept the above offer, in case he should think
(as they themselves could not help imagining) that what was in their
power was insufficient.

    On the 11th day of February 1754 (at a meeting of the trustees) a
letter from Dr. Johnson dated the 7th of January preceding, in answer
to the before mentioned letter of the trustees was read, and contained
neither a positive acceptance nor refusal of the said offer and
proposal, but his request of further time to consider of the matter.

    At a meeting of the trustees on the 21st of February, 1754, a letter
from Mr. Whittelsey dated the 11th of the same month, in answer to
the above mentioned letter of the trustees to him, was read, containing
in substance that as the constitution of the college, or the particular
service expected from him, could not he but partially collected from
the letter he had received, or the Act of Assembly inclosed, he had
proposed a visit to Dr. Johnson in hopes to obtain a more full
understanding of these matters, but had hitherto been prevented by
indisposition, from which being in part recovered, he purposed as
soon as able, to pay the Doctor a visit, and perhaps (if his health
permitted) to do himself the honor to wait on them in New York,
and learn (unless otherwise informed) what would be expected
from him in the trust assigned him.

    It was at the same meeting agreed to, Mr. William Livingston
should prepare the draught of a letter to Mr. Johnson, and another
to Mr. Whittelsey, in answer to their letter to the trustees respectively:
and further that a copy of the list of the amount of monies raised by
the second and third lottery, paid into the treasury, for erecting a
college within this colony, drawn up by the treasurer, be made for
each of the trustees; which was accordingly undertaken to be done
by William Livingston and delivered to each of the trustees at their
next meeting.

    On the 13th day of March, 1754, the trustees wrote to Dr. Johnson
and Mr. Whittelsey mutatis mutandis, as follows, to wit:

New York, March 13, 1754.

Rev. Sir,
    In answer to your letter of the 16th of January, we should be glad to
have a conference with you in this city on the subject of the college and
the particulars contained in your letter, as early in the month of April
next as your affairs will permit you to do us that favor. We are, Sir,
            Your humble servants,
                    William Livingston
                            In behalf of the Trustees.

    At a meeting of the trustees on the 9th of May, 1754, also present
Mr. Murray, Mr. Watts and Mr. Paul Richard, it was agreed that a letter
be wrote to Mr. Whittelsey informing him that the trustees then hoped
speedily to open the college, and should be glad to know his resolution
in relation to their proposals, which was accordingly wrote and sent.

    At a meeting of the trustees on the 16th of May, 1754, a draft of a
charter for constituting the college and erecting the building on lands
belonging to Trinity Church in this city, was read, against which William
Livingston offered his protest in writing, containing twenty reasons, and
desired that the said protest might be entered on the minutes of the
proceedings of the trustees, which was refused. He then desired it might
be entered that he had offered such protest, and that the entry thereof
was refused, in which he was also opposed by the rest of the members,
who at last agreed that the entry be that he had offered such protest,
and that the members agreed to take the said protest into further
consideration before the same be entered on the minutes. The rest of
the members agreed to the draught of the said charter.

    Mr. Chambers, Mr. Mayor, and Mr. Nicoll acquainted the
trustees that the vestry of Trinity Church offered the vestry room
in the new school house to begin tuition, for so long time as they
shall think proper, which the trustees thankfully accepted of and
agreed that Dr. Johnson’s salary should commence from the time
he left his habitation on the service of the seminary, according to
the former proposal made by the trustees.

     It was then also agreed, that the scholars that shall be entered
into the seminary shall pay for tuition five shillings a quarter.

     On the 20th of May, 1754, Mr. Chambers and Mr. Mayor,
acquainted the trustees that they had waited on his Honor the Lieutenant
Governor who had given them leave to prefer a petition in the name
of the trustees for a charter for the college. and a petition having accordingly been prepared, it was ordered that the same be read,
which petition was in the words following, to wit: 

     To the Honorable James Delancey, Esq., Lieutenant Governor and
Commander in Chief of the Province of New York and Territories thereon depending in America, in Council.

     The petition of the trustees mentioned and appointed in and by an
Act passed in the 25th year of his present Majesty's reign entitled [etc.],

     Humbly showeth,

     That divers sums of money having been raised by several Acts of the
Governor, Council and General Assembly of this province of New
York for the establishing a college in the said province, your petitioners
by Acts afterwards made, were appointed trustees for putting the said
monies at interest, and to receive proposals, accept donations, and
procure masters and tutors, in order to make a beginning of the said
seminary, according to the trust reposed in them.

     Your petitioners further show unto your Honor that in pursuance
of the said trust, they have endeavored to get a proper master and
tutor for the said intended seminary, but find that as your petitioners
are enabled to give salaries for seven years only, that they are under
great difficulty to procure a fit and proper person to undertake the
office of master or head of the said seminary. Your petitioners further
show your honor that the Rector and inhabitants of the City of New
York in communion of the Church of England, as by law established,
being willing to encourage the said good design of establishing a seminary
or college for the education of youth in the liberal arts and sciences,
have offered unto your petitioners a very valuable parcel of ground
on the west side of the Broadway in the westward of the City of New
York for the use of the said intended seminary or college, and are
ready and desirous to convey the said lands for the said use, [italics added] on condition that the head or master of the seminary or college be a member of and in communion with the Church of England as by law established and that the Liturgy of the said church or a collection of prayers out of the said Liturgy be the constant morning and evening service, used in the said college ever. Which said parcel of land so offered by the said rector and inhabitants, your petitioners considering as the most proper
place for erecting the said seminary or college upon. And that their
obtaining his Majesty’s Charter to them or such others as your Honor
shall think proper for the said trust, will the better enable your petitioners
in conjunction with those your Honor shall appoint by his Majesty’s
Charter to provide a proper master or head of the said seminary, and
tutors for the education of youth, thereby greatly tend to promote
and further the intent and design of establishing a seminary or college
for the education of youth among us.

    Your petitioners therefore humbly pray that in order to promote so
good a design and the more effectual obtaining a grant of said parcel
of land, for the use and benefit of the said seminary or college, that your
Honor would be pleased to grant your petitioners, or to such other
persons as your Honor shall think proper his Majesty’s Charter of
Incorporation with such privileges as to your Honor shall seem meet,
the better to enable them to prosecute the said design of establishing
a seminary or college for the instruction of youth.

    And your petitioners shall ever pray.
William Livingston
In behalf of the Trustees

New York, May 20, 1754.
    Which being read, was approved of by the trustees exept William
Livingston and agreed that the same be preferred to his Honor by Mr.
Chambers and Mr. Mayor.

    It was further agreed that the protest offered at the last meeting by
William Livingston be entered on the minutes, and the said Livingston
did then protest again presenting the said petition for the reasons
contained in his protest aforesaid, from the entry of which protest Mr.
Mayor dissented, and prayed time for assigning his reasons in writing.

    The said protest was in the words following, to wit:

    Reasons offered to the trustees mentioned and appointed [etc.]; and
further authorized and impowered by another Act of the Governor,
Council and General Assembly of the said province passed in the 27th
year of his said Majesty’s reign, entitled An Act further to continue the
duty of excise, and the currency of bills of credit emitted thereon, for the
purposes of the former Act and herein mentioned, by William Livingston,
one of the said trustees, for protesting against the acceptance of, acting
agreeable to, or applying the money in the said Acts or either of them
mentioned, during the seven years in the last of the said Acts mentioned,
in pursuancee of his Majesty's Charter for erecting and constituting the
college in this province in and by the said Charter appointed and
described.

    I. Because the Church of England, the Liturgy of which is by the said charter to be established in the said college, is not established in this province of New York, in which the said Livingston conceives all his Majesty's Protestant subjects inhabiting the same are with respect to
the enjoyment of their religion, on a perfect equality; and therefore the
said establishment will be partial, a manifest encroachment on the
rights and privliges of all different denominations of Christians residing
in the province of aforesaid.

    II.  That even admitting (what is hereby absolutely denied)   that the
Church of England by law established in South Britain is also established
in this province, yet the establislunent of the Liturgy of that Church in the said college by charters, and without the consent of the representatives of the people, will be unjust and an invasion of their undoubted rights and privileges, seeing that if the money raised by the said two Acts of Assembly shall be applied to the support of the said charter college, all the inhabitants of the province will be obliged to contribute to its support and a vast majority of the province are Protestants dissenting from the Church of England.

    III. That the offer and proposal made to the said trustees in writing
by the rector, church wardens and vestry men of Trinity Church on
the 8th day of April, 1754, in the words following, to wit, [see above]
(in virtue of which offer, the Liturgy of the Church of England is now
claimed to be established in the said college, or the proposal and
offer threatened to be refused) is absolutely unconditional, no such
conference having been refused by the trustees, and ought therefore
to be complied with by the said Trinity Church without any condition,
or rejected the trustees as an artifice to purchase the rights and liberties
of the people under color of a generous and unconditional gratuity.

    IV. Because, that if the said Trinity Church doth insist on giving
the said lands on condition of the said trustees accepting of and
pursuing the said charter or any other condition whatsoever, the
trustees have no power by either of the said two Acts to accept
of the same, upon such or any other condition, without the previous
approbation and consent of the Legislature. Nor have they said
trustees in virtue of either of the said two Acts any authority to agree
to the placing or fixing the college in any particular place, or to
accept of the gifts of lands for that purpose, but only to receive
proposals relating thereto, to be laid before the Legislature who
have the sole power of accepting or refusing the same.

    V. Because the said trustees are sufficiently impowered and
incorporated by the last of the said Acts, to institute and manage
the said college, during the seven years therein mentioned,
aggreable to the intent and meaning of the said Act, without any
charter for that purpose.

    VI. Because that a charter, though never so speciously drawn,
and without any power to the trustees to advance one religious sect
above another, and thereby introducing universal confusion in the
province, would still be precarious and unsafe, as it might either be
surrendered by the trustees or repealed for abuse of privilege;
whence even the most unexceptionable charter would be no security
for the perpetual prosecution of the same plan thereby established,
it being so liable to be altered by a subsequent one.

    VII.  Because the monies which the treasurer of the said province
is by the last of the said Acts enabled to pay to the said trustees, to
be by them apportioned and distributed in salaries for the chief
master or head of the seminary, and for such and so many other
masters and officers, uses and purposes concerning the establishment
of the said seminary, as the said trustees shall from time to time in
their directions think needful, being intended for the masters and
officers of a free college, or the College of NewYork, the said
trustees taking the oath prescribed by the said charter to act
agreeable to and pursue the same, would be in fact obliging
themselves to defeat the design of and acting repugnant to the said
Acts; and to aid and abet the said Trinity Church in defrauding the
province out of the monies so as aforesaid to be paid to the trustees
for the use of the College of New York, and applying them to the
use of the College of Trinity Church as established by the said charter.

    VIII.  Because the said charter excludes from the office of president
all persons whatsoever who are not of the Church of England, which
not only tends to raise animosities among the good people of this
colony, by introducing a discrimination of privileges, and establishing
a superiority among the different sects of Christians hitherto unknown
among us, but is also likely to prove prejudicial to the education
of the youth to be brought up in the said College of Trinity Church,
by excluding persons from the said office every way qualified for
that important trust, though neither a member of the Church of Engiand
nor the said Trinity Church, and of electing others into the president’s
chair though confessedly worse qualified in every respect except the
aforesaid unqualifying qualification of belonging to either of the said
churches.

    IX.  Because the second of the said two mentioned Acts,
empowering the trustees to appoint the officers and masters of the
said College of New York prescribes no religious test whatsoever
nor was intended to exclude from the said office any member of the
Dutch Church, or any other Protestant denomination whatsoever.

    X.  Because the trustees appointed by the said charter being thereby
empowered to supply all vacancies of trustees by their own choice, have
reposed in them a power, which for want of proper restraints, may not
only prove subversive of those ends for which every college is or ought
to be erected, but also dangerous to the liberty of the people of this
colony.

    XI. Because it will reduce parents to the necessity of educating their
children at the said College of Trinity Church contrary to their own
sentiments and consciences, or of leaving them without an academical
educationin this province.

    XII. Because it will be a means of carrying out of the province sums
of money into the neighboring colonies for the education of our youth.

    XIII.  Because it is likely to be greatly obstructive to charitable
contributions by those to whom the College of Trinity Church will be
disagreeable, who are a vast majority of the province, and who would
cheerfully contribute to the College of New York, and in
advancement of literature. 

    XIV.  Because it is directly contrary to that great law of Christ
Matthew vi, verse 12. Therefore all things whatsoever that ye would
that men should do unto you, do you even so unto them, for this is
the law and the prophets. A maxim inculcated by the Head of all
Christian churches and which it would therefore be unbecoming the
dignity of the said Trinity Church thus publicly to counteract.

    XV. Because the application of the monies so as aforesaid by the
last mentioned Act to be paid to the trustees for the use of the New
York College to the use of Trinity Church College, hath manifest
tendency further to raise public disorder and animosity at a time
when his Majesty’s interest, by reason of the encroachments of the
French, requires the greatest concord and unanimity.

    XVI. Because if there was a necessity for the said charter it ought
to have been proposed to the General Assembly at their last session
or to be laid before them at their next meeting, in order for their
passing an Act, enabling the said trustees to execute the powers and
dispose of the monies aforesaid, to the purposes for which the said
charter is intended, which are very different from the purposes
intended by the said two several Acts. And conquently the said
trustees cannot, consistent with their duty, without oppugning those
Acts, apply the said money to Trinity Church College until further
impowered for that purpose by the Legislature.

    XVII. Because by the said Acts certain persons are appointed
for the application of the monies aforesaid, and the said charter
appointing other persons not in the said Act mentioned, those persons
cannot therefore have any voice in such application, nor can the
trustees appointed by those Acts consent to allow those appointed
by the charter in addition to themselves, any share in such application,
as that would be delegating or dividing their power, which by the
said Acts is neither divisible or transferable. And should the persons
appointed by the said charter exceed in number those appointed by
the said Acts, the latter may be overruled by such majority, and
consequently the said monies may be appropriated against the intention
of the Legislature and the consent of every person appointed by the
Acts for such appropriation.

    XVIII. Because as the College of Trinity Church will consist of
other trustees and be otherwise incorporated and enjoy other
powers than the College of New York, the said Livingston therefore
conceives them to be entirely distinct from each other; and is of
opinion that two colleges in this province are useless, and that the
said Trinity Church College is set up in opposition to the College
of New York and that his encouragement to the former while he
is intrusted with the interest of the latter would be a violation of
the trust reposed in him by the said two Acts of Assembly and
justly expose him to the popular odium and the censure of the
Legislature of this province, who have begun, carried on, and will
undoubtedly continue to patronize the College of New York.

    XIX. Because he verily believes that the several branches of the
Legislature of this province, reserve solely to themselves the establishment
of the plan of government to be exercised in the New York College, as
they have the disposition of its situation and the monies raised for it by
the several lottery Acts.

    XX. Because the trustees appointed by the said Acts, consenting to
or being instrumental in the appropriation of the said money to the use
of the said Trinity Church College may and ought to be accountable
for the same to the Legislature, out of their own pockets.

                                                                        William Livingston
16th May, 1754.
All which is humbly submitted to this honorable House,
                by their most humble and
                        most obedient servant
                                        William Livingston.
New York, November 1, 1754.

Ordered that the said reports be taken into consideration on
Wednesday next.

Source: Herbert and Carol Schneider, eds., Samuel Johnson: His Career and Writings, 4 Vols (Columbia University press, 19290 IV, 177-190