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H. B. (Henry Bidleman) Bascom.

The Methodist Church property case. Report of the suit of Henry Bascom, and others, vs. George Lane, and others, heard before the judges Nelson and Betts, in the Circuit Court, United States, for the Southern District of New York, May 17-20, 1851 online

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Online LibraryH. B. (Henry Bidleman) BascomThe Methodist Church property case. Report of the suit of Henry Bascom, and others, vs. George Lane, and others, heard before the judges Nelson and Betts, in the Circuit Court, United States, for the Southern District of New York, May 17-20, 1851 → online text (page 28 of 87)
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charity.

Now, supposing, for a moment, that I am right in this character of the title of these
beneficiaries, and that the women, the children, the supernumeraries, and worn-out
preachers of the Southern conferences had rights which the Court would regard
prior to that separation, the question comes up, and that is the great question we
are discussing, Have they those rights still 1 Why have they not 1 Are they not
Methodists 1 Have they departed one scruple in doctrine or in discipline ? I mean
the beneficiaries whom I represent ; they are not the bishops. Some of them are
members of conferences, and some of them are not, and the right is equal to them
all. But why have they not those rights still 1 Have they ever been tried ? The
gentlemen put it in their answer most distinctly and clearly on the ground that they
have forfeited the right. They use the term " forfeited " in their answer. They
say, they " forfeited " it by secession. Secession from what 1 That is the question,
and the question between us is to be, whether there is, in regard to this fund, any
such forfeiture as is set up by these gentlemen. And in saying " set up by these
gentlemen," I ought, perhaps, to explain myself, that I may not be misunderstood.
By " these gentlemen," I do not mean these defendants whom I conceive to be not
volunteers in this matter ; they are legal personages, representing, as I suppose I
may say without giving offence, a rather tumultuous body behind them, a changeable
body to whom they are accountable, and in regard to whom they must protect them-
selves by the most careful conduct. They, however, taking advice on the subject,
say we, the beneficiaries, have " forfeited" this right. We forfeit it ; by which I
understand, there is some implied condition which we have broken, or some term of
the grant which renders this charity no longer applicable to us.

Before going into the inquiry which I propose first to institute, I beg leave to say



151

one word on the subject of the mode of relief. There will be no difficulty on this
subject. There need be no apprehension of a difficulty in regard to the subject of
the dividing of the fund. I suppose it must be divided. I suppose the reasoning
which we shall adopt on this subject, will call for a division of the fund, of the capi-
tal itself ; but that does not necessarily embarrass our case ; for if these beneficiaries
for whom I speak are entitled, then the fund may remain in the hands of the agents
here, an undivided fund, and be administered by them ; and relief would be afforded
by ordering them to take the minutes of the conferences of the South, in regard to
the preachers and persons of the South entitled, and turn over the annual dividends
to them as long as there is a Book Concern yielding profits to be divided, that they
may thus be distributed. There is, as I conceive, no formal or technical difficulty of
that sort to be set up. I am sure, that if the relief to which I conceive beyond all
question we shall be adjudged to be entitled, if these beneficiaries shall have their
rights, it will be an advantageous arrangement all round, that the fund should be
divided, and I presume there will be no difficulty in law in doing it. But that is not
essential to the relief to which we are entitled under this bill. Nor is it essential
that the proper persons who are entitled to take the capital of the fund should now
be before the Court. You have the travelling preachers before you. You have
the supernumerary and worn-out preachers. You have no wives and children before
you. But these three descriptions of persons come before this Court, so that this
Court is bound, in acting, to declare that these persons are prosecuting in behalf of
themselves and of those who possess the same right with them ; so that the question
is not embarrassed by any formal difficulty of that sort. It comes up clearly, dis-
tinctly, and fairly, for the judgment and decision of this Court.

In the consideration of this subject, I propose to inquire into the character of this
fund. That is the inquiry in the first point which I have laid before your Honours.
In all these cases of charities, you are aware that there has been a vagueness in the
character of the trust which is designated for a charitable use. That vagueness
seems to be almost essential. It has almost always existed in regard to them.
Sometimes they exist only by implication ; for instance, the case of Lady Hewley's
charity, a leading case in modem days, in which the law has probably been finally
summed up. It was held that her gift of a piece of land, as a foundation for Pro-
testant Dissenters, in a very vague and general way, should be administered by a
Court of Equity, and they should inquire into the character of Lady Hewley's reli-
gious opinions, in order to ascertain whom she meant by " Protestant Dissenters."
That inquiry into the character of the fund, as growing out of the character of those
who contributed, of those who formed it, and, if a gift, of those who gave it, has
always been a material, necessary, and legitimate subject of inquiry in the administra-
tion of these charities.

I will give your Honours all the references to cases which bear on the subject. It
is not a controverted subject, as I believe ; but it may be convenient for the Court to
have the references, and I will give them all together. The first one to which I refer,
is that of Field vs. Field, 9 Wendell, p. 400, decided in October, 1832. That de-
cided the question at law. It went upon a mere question of actual organization. It
was not a question of equity as to the proper administration according to the intent
of the donor, but a question of the mere actual succession of one organization to an-
other. This subject was very fully canvassed in this State, in the case of the Lu-
theran Church, (Miller vs. Gable, 2 Denio's Reports, 518, in the Court of Appeals,)
decided finally in December, 1845. It had been previously discussed by the Chan-
cellor, (10 Paige, 646,) and prior to that by Vice Chancellor Hoffman in his reports,
to which I have no reference ; his opinion, however, went so much on the theolo-



152

gical parts of the question, that it does not enlighten us as much as the other. There
the whole subject was canvassed. That was a religious charity, and the question
arose in a double shape. One was the question of a departure from religious doc-
trines ; the other, a question of departure from adherence to the religious governing
body. In all these cases it was held that the adherence should be in point of doc-
trine, or a Court of Equity would reform or correct the abuse of the property ; and
when it was plain, and evident, and clear, that the charity was founded in connexion
with a religious government, they would always establish it in a Court of Equity ;
but they held that in that case it must be very clear. They also held, that if in the
origin of the charity, it was not so subject, but that those who administered the cha-
rity afterwards by agreement and voluntary connexion did subject it, that it was
not misapplied, although the body afterwards withdrew from that ecclesiastical con-
nexion, and it then stood only on the question of conformity of doctrines. However,
your Honours will no doubt find great instruction upon this subject from that case.

The other cases bearing on the subject I will give without comment. In 1814, the
case of Davis vs. Jenkins, 3d Vesey and Beame's, 152. You will find in this case
a very minute and careful inquiry, free from all collateral inquiries, into the character
and understanding of the founders of the charity. I cite it to show that this inquiry
into the character of the original foundation of the charity, the nature of the contribu-
tions, and the character of the men who contributed to it, goes to enlighten the Court
in ascertaining the character of the charity in order to execute it. The case of the
Attorney General vs. Pearson, 3 Merivale, 352. It also appears in 7 Simon's Reports,
290, republished in 10 English Chancery Reports, 61. That merely upholds the
principle that the doctrines of the founder of the charity, it being a religious one,
should be enforced, and that a majority of the trustees, a temporal body, should not
be permitted to use the property in deviation from those doctrines. Again : in the
case of Leslie vs. Burney, 2 Russell, 114, also reported in 3 English Chancery Re-
ports, 46, which was the case of a meeting-house in London of the Scotch Presby-
terian Church. There was an election by the elders and communicants, excluding
the seat-holders. That was contested, on the ground that these seat-holders had all
contributed ; but it was held that as that Church was founded by Scotch Presbyterians
this was right, and such a mode should be upheld. This shows that in going into
this inquiry, the character of the fund, the character of the donors constituting it, and
all that contribute to a fund which grows out of its origin, should be looked at and
regarded in the decision upon it. The case of the Attorney General vs. Shore, 7
Simon's, 290, note, was a similar case to that of the Attorney General and Pierson.
Another case, not however bearing very directly on the question, but to which I will
give a reference, is Milligan vs. Mitchell, 3 Milne and Craige, 77.

We contend, in regard to the character of this fund, that the capital arising from
the profits of the Book Concern was the result of the common labours and services,
of all the members of all the conferences. It was not a charitable fund merely from
donations. It was not a charity of that sort in which the beneficiary comes, without
any previous right, to beg alms. It was not a gift. It was a charity which grew,
as we shall attempt to show, out of actual, laborious, self-denying, beneficial services*
just as much as any Savings' Bank or Life Insurance. At the same time, from the
transitory character of the beneficiaries of the fund, it became in law one of those
things which must be administered as a charity. We say it was a fund of earnings
to make up the deficiency of compensation for services rendered, and to provide for
those who earned it, when they became incapable of labour, and for those who were
dependent on them.

Now let us look to the character of this fund ; and this, in my humble judgment,



153

is a very material inquiry in this case ; for the question of " forfeiting," as it is put
in the answer, is a very different thing from entitling yourself to alms. It is a ques-
tion here distinctly put as a question of forfeiture. A man comes to me for alms ;
it is a matter between me and my conscience whether I will give him alms he has
no right. But if a servant, who has rendered me services during the prime of his
days, upon the understanding fhat I should take care of him in his old age, and I
gave him no bond for it, and he has become old and decrepid, the Court will see how
different is the application he makes to me, from a man with whom I have had no
connexion at all. You cannot but see that in this case there is in the outset a na-
tural equity there is an appeal to the very foundation out of which the charity itself
springs. There is in the very nature of the subject, a light to guide us in the con-
sideration of this matter.

How did this fund arise ? Your Honours, in examining Emory's History, will find
that it had its origin with the preachers of the Methodist Church. They undertook
to see to the supplying of books, and they were to see to payment for the books.
Upon our book, No. 1, page 17, we find this extract from the " History:"

" Ezekiel Cooper is appointed the superintendent of the Book Concern," (Ezekiel
Cooper was in fact the founder of the profitable Book Concern,) " who shall have
authority to regulate the publications, and all other parts of the business, according
to the state of the finances from tune to time. It shall be his duty to inform the an-
nual conferences if any of the preachers or private members of the society neglect to
make due payment."

There you perceive the preachers and private members subject to ecclesiastical
jurisdiction. They are to see that these books realize money.

" He may publish any books or tracts which, at any tune, may be approved of, or
recommended by, the majority of an annual conference, provided such books or tracts
be also approved of by the book committee, which shall be appointed by the Philadel-
phia Annual Conference."

It was therefore the taste of the annual conferences which was to determine what
books were to be printed. Ezekiel Cooper had not the right of a common bookseller
to print what he pleased ; that was a right of the preachers, meeting in annual con-
ferences, which were composed of all the preachers, and were not delegated bodies.
In 1800, the General Conference was composed of all the members of all the annual
conferences. Their taste in the selection, their reading, their examination of sub-
jects, was that which led to the adoption of the books which should receive the im-
primatur which gave them a currency, and made their publication profitable.

" Let his accounts and books be examined by the Philadelphia Conference at the
tune of the sitting of the said conference.

" It shall be the duty of every presiding elder, where no book-steward is appointed,
to see that his district be fully supplied with books."

So your Honours will see that it did not merely mean that this community, which
perhaps lacked intelligence and information more at that day than at the present,
should be left without having the benefits which the press distributes over every com-
munity where it is known. There you have one of the elders determining that
matter ; but they did not leave it there.

" He is to order such books as are wanted, and to give directions to whose care
the same are to be sent ; and he is to take the oversight of all our books sent into
his district, and to account with the superintendent for the same."

" Our books." Whose books'! Why, the books of these preachers; their books
as a denomination ; those which they sanctioned, which they selected and caused to be
distributed, and in fact persuaded to be purchased. Again :



154

" He is to have the books distributed among the several circuits in his district,
and is to keep an account with each preacher who receives or sells the books ; and
is to receive the money, and to forward it to the superintendent."

Every preacher, therefore, was an agent in the diffusion of the literature of the
Church ; a wise, very wise plan wise for the people, and wise for the government
of the Church : but it was the act of the preachers ; it was the labour of the
preachers that made this the great Book Concern, which it ever came to be. The
preachers, we have already seen, selected the books ; the presiding elders had it in
charge to see that they were supplied to the preachers in their several circuits ; and
they were to sell them. Again :

" When a presiding elder is removed, he is to make a full settlement for all the
books sold or remaining in his district ; and is also to make a transfer to his succes-
sor of all the books and accounts left with the preachers in the district, the amount
of which shall go to his credit, and pass to the debit of his successor."

Thus it will be seen, that this was a business most strictly and directly connected
with the ministry of this Church, calling not only for activity and labour on their
part, but pecuniary accountability on the part of every preacher in every Methodist
circuit.

" It shall be the duty of every preacher, who has the charge of a circuit, to see
that his circuit be duly supplied with books, and to take charge of all the books which
are sent to him, from time to time, or which may be in his circuit ; and he is to ac-
count with the presiding elder for the same."

That does not mean that he is merely to bring the books, that his people may pur-
chase them, although that would be a meritorious participancy in this fund ; but it
meant, " Sir, in your preaching press upon your people the necessity of learning, as
well by the press as by the living voice, the doctrines, practices, morals, and virtues
of this religious faith which you preach to them." Again :

" When a preacher leaves his circuit, he must settle with the presiding elder for
all the books he has disposed of ; he is also to make out an inventory of all that are
remaining unsold, which shall be collected at one place ; the amount of which shall
go to his credit, and be transferred to his successor, who is to take charge of the
same. If the preacher who has charge of the circuit be negligent in dispersing the
books, the presiding elder shall commit the charge of the books to another."

What more distinct agency could be established 1 What more distinct services
called for 1 What stronger and more conscientious accountability upon a mortal
man than is by this system established upon all the preachers 1

" The superintendent of the book business may, from time to time, supply the
preachers with books in those circuits which are adjacent or convenient to Philadel-
phia, and settle for them with the same ; in such cases the regulations respecting the
presiding elders are not to apply."

That is, in the districts adjacent to Philadelphia, you need not go through the for-
mality of receiving the books from the presiding elder, but the superintendent may
supply you directly. Then again :

" Every annual conference shall appoint a committee or committees, to examine
the accounts of the presiding elders, preachers, and book-stewards, in their respective
districts or circuits. Every presiding elder, minister, and preacher, shall do every-
thing in their power to recover all debts due to the Concern, and also all the books
belonging to the Concern, which may remain in the hands of any person within their
districts or circuits. If any preacher or member be indebted to the Book Concern,
and refuse to make payment, or to come to a just settlement, let him be dealt with
for a breach of trust, and such effectual measures be adopted for the recovery of



155

such debts, as . shall be agreeable to the direction of the annual conferences re-
spectively.

" There shal 1 be no drafts made upon the Book Concern till its debts are dis-
charged, and a sufficient capital provided for carrying on the business ; after which,
the profits arising from the books shall be regularly paid to the Chartered Fund, and
be applied, with the annual income of the funded stock, to the support of the distress-
ed travelling preachers and their families, the widows and orphans of preachers," &c.

There was the foundation of this fund. And I ask if ever a fund exhibited, under
the name of a charity, so much of the aspect of the accumulations of a partnership ;
and if there ever was a fund which provided so equitably and justly a retiring pen-
sion for these men, who, for a trifling yearly salary, not enough to pay for a fashion-
able dinner, served year after year in the wilderness, and spent their best days in
toil 1 Have they not a right, above the ordinary beggar of alms, to a fund growing
out of their own exertions 1 We are to look at this matter in all its aspects. When
we look at the administration of this fund, to see how it is to be dealt with, your
Honours must not lose sight of the character and the services of the persons by
whom it was established. You see that the character of this fund is thus impressed
upon it by its establishment ; and nothing, it seems to me, can be clearer than that it
was intended to create a fund, so far as was practicable, for the first great object of
enlightening this Methodist community as to religious truth, as to their morals, and
as to their habits of life ; and that the second great object was, that when this insti-
tution should be carried out, the preachers themselves might have some little stimu-
lus for activity, and that they should be entitled to look for an absolute support from
this fund for the wants of old age, and the wants of their dependents, and the wants
of their poor and suffering brethren. This was first given to the " Chartered Fund."
That " Chartered Fund " it is not necessary to notice further than to say, that it was
an incorporation for the mere purpose that is expressed the support of distressed
travelling preachers and their families.

The next thing in the history of this fund is in the Conference of 1804 the last
General Conference before they became delegated bodies. There was then this
variation, that instead of being paid to the Chartered Fund, it was to be administered
through the annual conferences. The Conference of 1804 provided that,

" The profits arising from the Book Concern, after a sufficient capital to carry on
the business is retained, shall be regularly applied to the support of the distressed
travelling preachers and their families, the widows and orphans of preachers, &c.
The general book-steward shall every year send forward to each annual conference
an account of the dividend which the several annual conferences may draw that
year ; and each conference may draw for their proportionate part, on any person who
has book-money in hand, and the drafts, with the receipt of the conference thereon,
shall be sent to the general book-steward, and be placed to the credit of the person
who paid the same. But each annual conference is authorized, at all events, to draw
on the general book-steward for $100."

This continues to be the establishment of this fund up to the present tune. There
has been no change as to this. It is yet paid to the annual conferences, and by them
distributed.

Before I make any further remarks on this, I beg to call your Honours' attention
to the allowance made to the preachers of this communion during all this period. I
say, " during all this period ;" for though I quote the amount from the Discipline of
1840, you will see that it never could have been much less. On page 29 of Book
No. 1, I read,

" Of the allowances to the ministers and preachers, and to their wives, leidows, and

children.

" The annual allowance of the married travelling, supernumerary and superannu-
ated preachers, and the bishops, shall be 8200, and their travelling expenses."



156

Two hundred dollars is the entire allowance to travelling preachers, if they are
married ; it was the entire amount allowed these gentlemen who were travelling in
this wilderness, and disseminating Christianity. And if they were bishops, they had
the same allowance. Then we have another class of persons,

" The annual allowance of the unmarried travelling, supernumerary, and superan-
nuated preachers, and bishops, shall be $100, and their travelling expenses.

"Each child of a travelling preacher or bishop shall be allowed $16 annually, to
the age of seven years, and $24 annually from the age of seven to fourteen years ;
and those preachers whose wives are dead shall be allowed for each child annually a
sum sufficient to pay the board of such child or children during the above term of
years : Nevertheless, this rule shall not apply to the children of preachers whose
families are provided for by other means in their circuits respectively.

" The annual allowance of the widows of travelling, superannuated, worn-out, and
supernumerary preachers, and the bishops, shall be $100.

" The orphans of travelling, supernumerary, superannuated, and worn-out preach-
ers, and the bishops, shall be allowed by the annual conferences the same sums re-
spectively which are allowed to the children of living preachers. And on the death
of a preacher leaving a child or children without so much of worldly goods as should
be necessary to his, her, or their support, the annual conference of which he was a
member shall raise, in such manner as may be deemed best, a yearly sum for the sub-
sistence and education of such orphan child or children, until he, she, or they, shall
have arrived at fourteen years of age. The amount of which yearly sum shall be
fixed by a committee of the conference at each session in advance."

We should have printed in Book No. 1, an extract from the Discipline of 1840, to
show how the fund of the preachers is made up. I find on pp. 170 and 171 of the
Discipline of 1840,

" The more effectually to raise the amount necessary to meet the abovementioned
allowance, let there be made weekly class collections in all our societies, where it is
practicable."

Now this was a very peculiar charitable fund, and the question about all these
funds of charity is, how far is the intention of the founders established by their lan-



Online LibraryH. B. (Henry Bidleman) BascomThe Methodist Church property case. Report of the suit of Henry Bascom, and others, vs. George Lane, and others, heard before the judges Nelson and Betts, in the Circuit Court, United States, for the Southern District of New York, May 17-20, 1851 → online text (page 28 of 87)