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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 29 of 87)
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guage, or by their circumstances taken in illustration of the language and the charac-
ter of the fund, at its original establishment, in connexion with the uses to which it
is designed to be applied. I, therefore, remark, concluding upon the point of the
peculiarities of this fund, it was a profit from the services of the travelling preachers,
as an earned profit of common labour. This book fund was nothing but a profit from
this bookselling, and this bookselling was conducted by the preachers. The books
were selected and supplied by the preachers. The preachers were accountable for
the debts in the first instance. If they were not careful, if they were guilty of any
neglect of duty, they stood responsible to their community for a breach of trust.

During the time that they were rendering this service what were they getting 1 ?
Two hundred dollars a year, if married, to support themselves and their wives. Be-
sides this they were allowed " travelling expenses," not for the expenses when the
travelling was terminated, but for the actual travelling expenses. If they had to go
from New- York to Boston the expenses on the journey were paid, but those were all
that were included under " travelling expenses." Upon this system this community
lived, and flourished, and prospered. Now, was there anything for these men to de-
pend on 1 To what could they look in futurity for themselves in old age, for their
wives when they became too old to labour, for their children in their infancy, and for
their widows 1 What was that which would permit a man, with any regard to his
obligations to his family, to go into this missionary service, except that he thought
he might be provided for by a miracle 1 It was this, substantially this, fund ; for



157

excepting the Chartered Fund growing out of donations, and that not a very large
one, this fund was the only hope of infancy and old age, and the only means of the
discharge of all that parental duty, and that duty of economy which every man
owes to himself in making some provision for the future, and not presumptuously
tempting Providence to supply him by a miracle. That is the character of this
fund.

When you come to dispose of it, your Honours surely are not going to take it like
a fund for the propagation of certain doctrines where the slightest deviation from the
doctrine will forfeit it. If it were a question of that kind, I am sure no Court could
ever sit in judgment upon this subject which would not struggle in every way possi-
ble, if a struggle were necessary, which would not consider it the plainest of its
duties, to see that there should be no forfeiture of such, a fund without the gravest,
and clearest, and most perfectly-established breach of a substantial obligation ; no
breach of some trifling thing, no breach of a thing merely technical in its character
would be permitted to forfeit that which was the common patrimony of the old, be-
reaved, and fatherless. These classes of persons all stand together. There is no
provision applicable to the preachers, superannuated and supernumerary, different
from that which applies to the widows and orphans. And if the. conference is out
of the pale of this Methodist Church, so that it has no right to the fund, the orphans
and widows go with them. That is the doctrine of our friends on the other side.
It comes to this ; and I therefore submit to your Honours, when you come to examine
this subject, that upon this question of forfeiture my learned friends must make the
sun shine brightly. It must be a noon-day sun which will enable you to see any for-
feiture by which the rights of such beneficiaries to the fund thus established shall
ever be thought of. It was in no respect a mere gratuitous and charitable fund
growing out of donations to maintain a particular faith or mode of ecclesiastical
government. It was a retiring pension, or savings' bank, for the supernumerary and
worn-out preachers, and their widows and orphans. I do not deny that a connexion
with Methodism, that good standing in a Methodist Episcopal Church, was probably
an implied condition in the establishment of this fund. I say an implied condition,
because it is not expressed; it is implied from the fact that the provision in the Dis-
cipline of the Methodist Church speaks of these superannuated and worn-out
preachers ; but it is merely implied, and the extent and degree to which it is to be
implied is very much in the judgment of the Court taking into view the nature and
character of the fund.

Let us ask ourselves, if any of these men, when they were at their labours, should
have had it put to them : " Well, my friend, by-and-by you will become feeble and
decrepit, and perhaps you may go to a Baptist or a Presbyterian Church, do you
mean, now, that if you do that, you shall have no share in this fundl" perhaps, if
he was a very zealous man, he would say, " Yes, I mean that." But I think men in
general would say, " Well, that is a thing which I did not think of ; I do not know : it
would be very hard, in my old age, to visit my infirmity in that way." My learned
friends have, on this subject, it seems to me, a heavy task to make out, that the most
strict, and perfect, and literal conformity to everything is necessary before this fund
can be partaken of by these beneficiaries. Certainly, the exact conformity could not
apply to widows and children. The establishment of this fund had for its primary
object, (as the most of these charitable funds have,) the spreading of religious faith
and the supplying of religious instruction. But it was not established to preach
Methodism after a dividend had accrued. It was retroactive. Its benefits were
thrown backward ; it was for past services ; the benefits lay before them to be sure,
but the services out of which they became entitled to them were behind, and the



158

contribution every year was not for the services of the preacher who preached this
year, but for th services last year.

Let us look a little now into the application of this question as it arises. Here
are the widows, and the old and wom-out preachers of the Methodist Church of the
South of the present day. This fund began to be established in 1800 fifty years
ago. It seems most probable that a vast majority of all those who can now partici-
pate in this fund are the very persons who have become worn-out ; that is to say,
taking the whole Connexion of the North and the South, the supernumerary and su-
perannuated preachers, who would now partake of the fund, are the men who were at
work from 1800 to 1840, or 1845, and who became superannuated and worn-out. So
you will see what a sacred trust it is, what a sacred charity, if it is to be called
a charity ; with what rights those come whom we represent, when they come on the
ground that here has been a divided dominion when the question has been put,

" Under what Prince, Bezonian ? Speak, or die,"

and they are charged to have made an unfortunate answer. I am sure, when you
come to examine this subject, you cannot examine it as stoics. You cannot do it
but as men, Christian men, men used to the instruction of the pulpit, and who cannot
but admire the self-denial of those who have gone about disseminating Christianity
among the poor and ignorant of this country, and for such a paltry consideration in
money.

I submit that there was in it the nature of a common property of earnings, not of
gifts, and it can only be called a charity by reason of the technical manner in which
it is to be administered.

I come now to another feature of this plan. That which is relied upon to forfeit it
from our beneficiaries, is the act of the annual conferences in the South. Those
conferences, our learned friends say, have done that which made them seceders.
Well, what had they to do with this fund 1 What right had they 1 The supernu-
merary and wom-out preachers belonged, nominally, to those conferences ; they had
a right to be present, but I suppose, in point of fact, that those who were too old
to preach would not very extensively mingle in those warlike acts to which our
friends, in the report of 1848, on the state of the Church, which I understand is to be
referred to, allude. Are the wives, and the widows, and the children, to be affected
by the action of the annual conferences 1 If the forfeiture is to be enforced accord-
ing to the doctrine of our learned friends, then it attaches not to the absence of the
Methodistical character, because any one of these beneficiaries may be as orthodox
as can be, may be perfect as a Methodist, yet if the annual conference has gone off
h is forfeited. Is an annual conference to forfeit it when it has no more right to the
fund, than has the clerk of a bank to the money which passes through his hands 1 It is
the act of that body which is relied upon as the forfeiting act. I shall be glad to
hear the argument which shall establish any right of forfeiture by the action of a mere
agent. At any rate, it must be established by something exceedingly clear, because
it certainly is a thing the most revolting in the world, not only to every legal, but to
every common idea of justice. A man can hardly begin to apprehend what justice is,
and not see that such a thing as this would be most grossly unjust. It would be equal
to the laws of Draco, excepting that instead of dealing in blood it dealt in starvation.

One other proposition on the subject of this fund to show how sacredly it was re-
garded by this Church itself. I say it was distributed by the annual conferences, but
belonged in actual right to the beneficiaries, and, as such, was and is protected by
the sixth restrictive rule. This is the second point which I have submitted to your
Honours. A word now as to the general character of these rules, which I shall



159

afterwards more particularly examine. They are on pp. 28 and 29 of Book No. 1.
The General Conference, prior to the establishment of these restrictive rules, con-
sisted of all the Methodist preachers, who, instead of meeting in annual conferences,
met in the General Conference. Their power was unlimited. But when they came
to act by delegations, the power, as we contend, remained equally unlimited, except
as it was restricted by the restrictive articles. When they came to put these rules in,
the Court will notice in what connexion they put in this provision for retiring preachers
and their families. They provide in the sixth rule the following :

" They shall not appropriate the produce of the Book Concern, nor of the Char-
tered Fund, to any purpose other than for the benefit of the travelling, supernume-
rary, superannuated, and worn-out preachers, their wives, widows, and children."

This is put as a restriction, and it is the only money restriction in these articles.
As to all matters of finance and of money, the General Conference can do every-
thing except in this single particular. They put this restriction alongside of the
articles of religion. They put it alongside of their episcopacy. They put it along-
side of the general rules of their United Societies which form their Church. They
put it alongside of the trial of preachers and members. They invested it, indeed,
with the most sacred sanctions. They do not say anything about being in connexion
with the society, or continuing in it. All that can be said on the subject is, that
it is implied, from the rule being a rule of this Church, that it applies to persons who
hold the relations of preachers to the Church. And in what relation of preachers to
the Church 1 Preachers who are to be deprived of everything when any change or
difficulty may occur hi the working of so extensive a system as this, whereby a man
may remain a most perfect Methodist, and yet change his allegiance 1 For instance,
if instead of our taking Texas, Texas had taken Mississippi, and it had been a con-
quered country, and conferences had been forbidden, so that the Church could not be
held in that country, would it be held that, in such a case as that, entirely unforeseen,
and not expressly provided for, a Methodist preacher who still lived in the conquered
country, with his wife and children, was cut off from a participation in this fund,
because Methodism in his country had become extinct 1

When your Honours come to carry out this charity, you will be glad to be guided
through all its difficulties, if they are difficulties, by the consideration of the great
equity, the great humanity, and the great justice which pertains to the original
institution of this fund. This Church, in this most simple way, provides this fund
" for the benefit of the travelling, supernumerary, superannuated, and worn-out
preachers, their wives, widows, and children." That is the trust. It is not con-
nected, except impliedly, with the ecclesiastical connexion ; and the extent to which
it is to be thus connected, is a matter which will be afterwards discussed. But
what I mean to say, and rely upon as having established, I am sure in your hearts,
and I trust hi your judgments, is, that that which is to defeat this claim, and that
which is, hi the language of the answer, to forfeit it, is not to be any technical
departure from one or another mode of government. It must apply to the sub-
stantial elements and quality of Methodists, as men of faith and practice, conforming
to the faith and practice, to the substantial elements of the Methodist faith rather than
to the mere elements of a particular shape of a hierarchy. In this aspect of the case
in the aspect in which the gentlemen on the other side claim it as a forfeiture it
is emphatically an Indian war. It does not spare the old man. It does not spare
the wife, nor the widow, nor the orphan. It scalps every one. But it is an Indian
warfare, not in their intentions. I am very sure that the gentlemen, even the most
heated of the partisans in this warfare, would never carry this principle out if they



160

had seen the extent to which the doctrine necessarily led. I absolve them, from all
my heart, from any such thought. Nothing in the history of this society shows that
they would ever have thought of or done such a thing ; and if the necessary conse-
quence is, that it is to be an Indian warfare, nothing more need be said to estab-
lish the fact, that it was not originally intended. For I venture to say, it is not in-
tended by the most heated men of the present day, that that should be the operation
of what they claim to be the system of forfeiture which they would apply to it.

One other word upon this part of the case. In illustrating a little, in anticipation
of an argument which I shall presently lay before you, I would now explain that
they do not set up any deviation of faith on our part, or any deviation of discipline.
All they set up is, that we are not in harmony with their General Conference, and
that they are the real, true General Conference. Now I suppose no Methodist will
deny, that it is essential that the preachers should be in connexion with an annual
conference as with a General Conference. I find in the Methodist Book of Disci-
pline that the annual conference is as necessary a body as the General Conference ;
nay, four times as essential. It is the primary body, and the power of the General
Conference is only the powers of the annual conferences assembled together. What
shall we say of all the Southern country, where, according to the learned gentlemen
on the other side, there is not a single man, woman, or child, in connexion with an
annual conference as they put it ; because they say these annual conferences are not
annual conferences. Certainly, it is a most extinguishing doctrine. Suppose we
had every heart and desire to continue with the annual conferences ; suppose, instead
of there being an almost unanimous vote of the Southern conferences in favour of
division, there had been close majorities, then the minorities of every conference
overruled by the majorities, according to my learned friends, must form a seceding
conference, or they would have no right to the fund. Now, can it be that that was
in the contemplation of those who established this fund, or shall it be in the contem-
plation of those who take it up in a new and unforeseen case, and undertake to say
what would have been the decision of those who established it, if they had foreseen
the case 1 Can it be that those are to be excluded who are in connexion with the annual
conferences 1 Here are annual conferences adopting every principle of Methodism ;
th primary governing bodies of the Methodist Church. These people are in firm, and
in close connexion with them, but merely differing from a certain number of those
who represent the other conferences in a General Conference. Can you conceive
of a slighter ground of forfeiture than that 1 That is what is set up in the answer.
They do not say that we make ourselves unworthy recipients of this charity ; it is,
that admitting us to have rights, we forfeit them, and that the forfeiture is by reason of
our remaining in connexion with the primary governing bodies, submitting to the Disci-
pline, adopting the doctrines, and conforming to the practices and usages in every
respect, but that our conferences think it necessary, for the harmonious action of the
Methodist Church, for its action as a Christian body giving light in the Southern
country, that they should act separately ; and that that act of independence is a
schism, a secession, and such a departure from faith and doctrine, as to strip even
the widows and children of a provision made for them by their husbands and
fathers in their better days. I cannot conceive that such a doctrine can be
established.

This being the character of the fund, I now propose to inquire into the grounds on
which the defence say it has been forfeited. The first ground they set up is, that
the General Conference had no power to sanction a division. They say, that sup-
posing the General Conference had undertaken in the most explicit way to sanction a
separation they never had any power to do it. In the second place, they say that this



161

grant of the power of separation as actually assented to, was contingent upon the
experiment being made in the Southern Churches of whether they could be ruine'd
first and repaired afterwards, or whether they should prevent the ruin and go on with-
out it. They say : " You should have gone on and experimented, to see whether you
would have been ruined ; because you should not go to this until you were nearly
ruined." That is the second ground of forfeiture not stated, to be sure, in that form,
but such is the substance of it. They say : " You should have tried an experiment ;
and not having experimented, you have not taken the proper means of carrying out
your grant, supposing that the General Conference had a right to make it." The
third ground is, that we violated the borders as laid down in that Plan of Separation.
And the other ground is, that it was all conditioned on the passage, by the annual
conferences, by the requisite vote, of an alteration of the sixth restrictive article.
In other words, it comes to one of these two propositions : First, they say the Gene-
ral Conference could not grant it ; and secondly, if they could and did grant it.
it was conditional, and the condition has not occurred or has been broken. I pro-
pose to examine these several questions hi detail. I have discussed my third and
fourth points that the title of the beneficiaries at the time immediately before the
separation of the Church into two parts was perfect, and it cannot be defeated or
forfeited without a clear proof of breach of condition by the beneficiaries. And even
if a breach of condition by the annual conferences, by whom the fund was to be
distributed, could forfeit, there has been no forfeiture ; because the General Confer-
ence of 1844 had the power to consent to an amicable division of the conferences on
grave causes touching the general efficiency of the Church.

The question presented here is entirely uncovered, so far as my inquiries have ex-
tended, by any precedent ; nor have I seen any principle laid down by any writer on
the subject which covers it, except in one case in Kentucky, to which reference will
hereafter be made. The question that I shall first discuss, must be disembarrassed
of all those questions of whether they did it on condition or not, or whether the con-
dition has been complied with or not. I first wish to discuss the question of whe-
ther, suppose they had in express terms enacted, " Be it resolved, by this General
Conference, that the slaveholding conferences (naming them) and the Northern
conferences (naming them) shall hereafter hold their sessions separate, and they
shall be the General Conferences of the Methodist Church called for in the Disci-
pline, and applying to the extent of country in which these annual conferences have
jurisdiction," it would have been binding. That is the first plain proposition into,
which this subject is to be distributed, and which must be examined.

I remark, hi the first place, that this case is unprecedented, because here is no
dispute at all as to doctrines. It is not set up hi the answer that we are heterodox
by the shade of a hair. It is not set up that we have violated even the least rule
about dress. There is no sort of pretence of any deviation in doctrine, nor anything
in morals, in practice, or in Methodist usages. We have adopted their Book of Dis-
cipline, word for word, except where alterations are called for by the mere change
of the meeting of the General Conference, our meeting being of thirteen annual confer-
ences ; then- Discipline has nothing about that. In every other case that has occurred
in this branch of the law, there has been a claim that there was a departure in doc-
trines, and the Courts have always said, that although at law we only look to the
regularity of the organization and succession, yet in equity, let the organization be
ever so regular, let the succession be ever so regular, if there be a deviation in doc-
trine it is a misapplication of the trust, if it be held for the diffusion of that doctrine.
But here the case is disembarrassed of any such consideration. There is no deviation
in morals or doctrines ; in rites, ceremonies, or usages. They have classes ; so






162

have we. They have circuits ; so have we. They have elders; so have we. They
have travelling preachers who travel all around ; so have we. They have bishops ;
so have we. They elect their bishops ; so do we. We institute bishops by the
same form of service as they do. In everything we are alike. They are governed
by a General Conference ; so are we. Our General Conference have the same
powers as theirs, they have no more power than they had before the separation.

You now see how peculiar this case is. It is a mere question as to the right of
these two bodies, while one, to divide and govern themselves by a duality instead
of a unity. If that is a thing which forfeits every right depending on this matter, it
would not come up upon one side of this question merely. Both sides would
forfeit ; that is to say, the Northern Methodist Church would have no more right
to this book fund than the Southern Methodist Church. So long as there was a
Northern and Southern Methodist who stood opposed to this division, they two would
form a whole Church, and all other Northern and Southern men would stand ex-
cluded ; because the doctrine which I am now considering, and which my friends
must either abandon, or adopt in the strongest manner, is, that the Conference had
not the power to consent to a division of it into two bodies. If it had not, is the
party who gave the consent any better off than the party who took it 1 Was it
one body who gave the consent and another who took it 7 No, it was the same body
who gave it, and the two parts of the body who took it ; and the fund would stand
without an owner, unless it should be some stray, worn-out preacher, who had not
voice enough to give any dissent, but who had sense enough to employ counsel and
claim the whole fund. If the General Conference had not the power, that would
be the result.

Again : here is no dispute as to the supreme ecclesiastical body to which sub-
mission is due. In all these disputes which have heretofore arisen in this country,
it has been as to adherence to this General Assembly or that General Assembly
which claims to be the only one, and by its mode of succession establishes the right
to be the only one. This is not a claim of that sort. It is a claim of this sort :
the parties consent that the general body should act in two parts, and each part be



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 29 of 87)