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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 37 of 87)
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Northern majority, although not amounting to sufficient to warrant this distribution
of the funds by the agents themselves, is a majority of our friends. What we have
spoken in earnestness, we trust we have guarded so as to give no personal offence,
and not tend to aggravate any breach. We trust that the full discussion which this
matter will receive on the part of our friends on the other side, as well as ourselves,
may so enlighten this Methodist community, that it is to be hoped, whatever judg-
ment your Honours may form on the subject, the principles of equity and of right
which seem to us, and, I think, seem to every one, to be those principles of equity
and right which lie on the surface, will be most willingly adopted ; and that this
great controversy, under the enlightened judgment of the Court, may have its final
end.

JUDGE NLESON, Mr. Ewing, you had, perhaps, better put in your proofs now.
MR. EWING, Mr. Fancher will read our evidence in a few minutes.

MR. LORD, If your Honours please, there is one authority which, in the absence
of Mr. Johnson, I had forgot to quote. I intended to refer the Court to the reasoning of
the Court of Appeals of Kentucky, which passed upon this very subject, when a con-
troversy arose in relation to some of the preaching-houses. It was the case of Arm-
strong TS. Gibson. It has been published in pamphlet form.

MR. EWING, I think it has also been published in 9th Ben. Monroe.

MR. LORD, The Court in that case decided.

JUDGE NELSON, When was that 1

MR. JOHNSON, Since the separation.

JUDGE NELSON, Since 1845]

MR. JOHNSON, Yes, sir.



206

MR. LORD then read the following note of the case referred to, from a pamphlet
published by Mr. Bascom and others, on the subject of this controversy :

" Extracts from the decision of the Court of Appeals of Kentucky, in the celebrated
Mavsville case, in which opinion the whole ground of controversy between the
North and the South of the Methodist Episcopal Church, affecting the most im-
portant rights of the parties, is subjected to elaborate and careful examination by
the distinguished jurists composing the Court :

" The General Conference of 1844 having adopted measures which, by many
Southern delegates, were deemed injurious to the rights, and character, and useful-
ness of the Southern ministry of the Methodist Episcopal Church, a Declaration,
signed by the Southern delegates, and stating their apprehension of the necessity of
a separation, was presented to the General Conference, which thereupon passed a
set of resolutions providing for the manner and consequences of the anticipated sepa-
ration, should it be found necessary, and authorizing, in that event, a distinct
Southern organization.

" Under the sanction of these resolutions, a convention of delegates from fifteen
Southern conferences assembled in 1845, renounced by solemn act their connexion
with the pre-existing organization and the jurisdiction of the General Conference as
then constituted, and, retaining the same faith and doctrine, the same rules and disci-
pline, and the same form of constitution and government, established for themselves
a new and independent organization, under the name of ' the Methodist Episcopal
Church, South.'

" We are called on to apply to the consequences of a catastrophe which, if it had
not occurred when and as it did, must at some time have happened, the provisions
of a deed which, having been made when the Church was united and division not
contemplated, refers, as might be expected, to the existing name, and organs, and
action of a united Church. The one united Methodist Episcopal Church, referred to
in the deed, and extending its name and authority to the utmost limits of the United
States, having ceased to exist, by division into two Churches of distinct territorial
jurisdiction, there is, in fact, no such Church as is contemplated in the deed ; arid,
therefore, no General Conference of such a Church, no ministers and preachers of
such a Church, no members of such a Church.

" Does the fact that there still remains a portion, whether small or large, of the
original body, under the original name of the whole, invalidate the separation, or the
rights of the separating portion 1 Could the remaining portion of the original body
re-assert, in the name of the whole, the jurisdiction which had been renounced by the
whole, or revoke the assent which the whole body had once given to the indepen-
dence of the separating portion 1 Certainly, if the whole body had power, by assent
and co-operation, to legalize the separation and its independence of a part of itself,
the remaining portion of the original body, though retaining the original name of the
whole, would have no power, after such assent had been given and acted on, to undo,
by its own mere will, what the entire body had authorized. Whatever else may be
implied from the identity of name, it cannot give to the present Methodist Episcopal
Church a jurisdiction which the original Church had alienated.

" But it seems to us too evident to require illustration, that the rights and jurisdic-
tion of the Southern Church, and the rights of its members, are precisely the same
within its own organization, as if the present Methodist Episcopal Church were
called the Methodist Episcopal Church, North ; that if the Southern organization
has the sanction of the original Church, it can suffer no disparagement from having
been the separating portion, but its independence and jurisdiction are complete ; and
that, to the extent of its jurisdiction, it stands in the place of the Methodist Episco-
pal Church, and is to be so regarded, as well in giving construction and application
to these deeds, as in determining the rights and duties of its members.

" That a Church organization, a self-created body, subject, so far as its own con-
stitution and organization are concerned, to no superior will, cannot, by its own
assent, authorize and legalize its own dismemberment, is a proposition contradicted
by reason and analogy. That such a measure is inconsistent with the motives and
ends of its institution, is no more true with regard to such a body, than with regard
to other associations, private or national. Even in the case of states and empires,
the unauthorized separation of a part, though originally illegal, and subjecting the



separatists to reclamation and punishment by the remaining government, is legalized
by its subsequent assent, with the effect of establishing, in the separating portion, all
the rights of independence and self-government.

" It does not admit of question that such a power belonged to the Methodist Epis-
copal Church, and that prima facie the General Conference, the supreme active
organ of its government, clothed with powers of legislation almost unlimited, and
having alone, in case of unlawful secession, the right of recognition or reclamation,
might effectually exercise the power in advance. Indeed, the history of the Church
shows that many years since, the General Conference, without reference to its con-
stituents, assented to the separation and independence of the Canada Conference,
then forming an integral portion of the general organization, and having, or entitled
to have, its delegates in the General Conference itself. And although there seems
to have been some doubt on the question of power, we do not perceive that the
grounds of that doubt bring in question the power of the General Conference, any
more than that of the Church at large, which is unquestionable. The measure,
however, was adopted, and no doubt has been since entertained of the lawful inde-
pendence of the Canada Conference.

" We think it must be conceded that, in the absence of express provision to the
contrary, the General Conference has the right, on its own judgment of the necessity
of the case, to assent to, and thus to legalize the separation of a part of th*
Church.

" The evidences in favour of the validity of the act of the General Conference now
in question are so strong, as almost to preclude the possibility of a conclusive de
monstration against it, and certainly too strong to be overthrown by any doubtfu
construction.

" If the question of power were doubtful, we should be bound to regard the act
of the General Conference as the act of the Church, and therefore as effectual.

" The resolutions, constituting the Plan of Separation, do not expel any individual
from the society of which he was a member, nor deprive him of any privilege of
property or worship pertaining to that society. But as they propose and provide
for a complete separation, according to the organic or territorial divisions of the
Church, they necessarily involve a partition of the governing power between two
jurisdictions, each possessing, within its territorial limits, the same authority and
power as had previously belonged to the whole Church.

" To say that the Church could not be legally or rightfully divided, according to
its organic or territorial parts, without the unanimous consent of all the members
of the entire Church, or even of all the members of the part proposed to be sepa-
rated, would be to deny the power of division by any mode of action, since it would
subject it to an impossible condition.

" And although one or more annual conferences might be incompetent, by their
separate action, against the consent of the General Conference, to bind to an inde-
pendent organization the local societies connected with them, we are satisfied that
the joint and co-operative action of the General Conference and the several annual
conferences concerned, was fully competent to determine the question, and fix the
limits, of separation, and to establish, over the several societies within whose limits,
the jurisdiction of the new organization.

" In determining upon the legality of the actual state of things consequent upon
a great movement of this character, every part of the proceeding should be liberally
construed, to effectuate the apparent and reasonable intention of the parties ; and there
is no room for technicality. Then it is apparent upon the face of the resolutions,
that there is but one condition upon which the separation and the sanction of the
General Conference are to depend, which is, that the annual conferences in the
slaveholding States should find it necessary to erect an independent ecclesiastical
Connexion, &c. The distribution of the Book Concern and Chartered Fund is obvi-
ously intended to be a consequence of the separation, and not a condition on which
it is to depend. And the reference to the several annual conferences for a modi-
fication of the restrictive rule, was evidently for the purpose of authorizing the
intended distribution, and not of authorizing the separation. The slaveholding
conferences, referred to in the first resolution, are such as were situated wholly in
the slaveholding States. And the delegates from all these conferences assembled
in convention, having declared the necessity of separation, and erected an inde-
pendent ecclesiastical Connexion, the prescribed condition has been complied with



208

to the actual necessity for separation, that is, the existence of such a state of
things as justified it, or rendered it proper, this, if it could ever have been a judicial
question, is no longer so. It has been decided by the concurring judgment of the
General Conference and the Southern or slaveholding conferences, to which it was
referred, and by the fact itself of an actual separation by agreement between the
whole and the separating part, which is presumptively the strongest evidence of a
\pcdiency, amounting to necessity.

But the separation having, as we have seen, been effected by competent powers
in the Church, and under the condition and in pursuance of the Plan prescribed by
the General Conference, its legality, in view of the civil tribunal, can be in no degree
dependent upon the sufficiency in point of discretion or policy of the causes which
led to it. It is sufficient that the Church, through its competent agents, has author-
ized the separate organization and independent self-government of the Southern con-
ferences, and that they have so acted under the authority, as to clothe their movement
with the sanction of the Church. This being so, the Southern Church stands not as
a seceding or schismatic body, breaking off violently or illegally from the original
Church, and carrying with it such members and such rights only as it may succeed
in abstracting from the other, but as a lawful ecclesiastical body, erected by the au-
thority of the entire Church, with plenary jurisdiction over a designated portion of
the original association, recognised by that Church as its proper successor and repre-
sentative within its limits, commended as such to the confidence and obedience of all
the members within those limits, and declared to be worthy of occupying towards
them the place of the original Methodist Episcopal Church, and of taking its name.
Such, though not the express language, is the plain and necessary import of the reso-
lutions, in authorizing the formation of a Southern ecclesiastical Connexion or Church,
and prescribing a rule for ascertaining its limits ; in leaving to the unmolested care
of the anticipated Southern Church all the societies, &c., within its limits, and stipu-
lating that within those limits no new ones shall be organized under the authority of
the Methodist Episcopal Church ; in declaring that ministers may take their place in
the Southern Connexion without blame ; and in denominating the Southern Church
'the Church, South.' The provision made for a ratable distribution of the funds of
the Church, and the relinquishment of all claim to the preaching-houses, &c., within
the limits of the Southern Connexion, are of a similar character with the other features
of the resolutions, and attest the equity and magnanimity of the late General Con-
ference. That body had, however, no proprietary interest in the preaching-houses,
and could only transfer its jurisdiction over them, which is done by the resolutions
and the proceedings under them.

' The result is, that the original Methodist Episcopal Church has been authorita-
tively divided into two Methodist Episcopal Churches, the one North and the other
South of a common boundary line, which, according to the Plan of Separation, limits
the extent and jurisdiction of each ; that each, within its own limits, is the lawful
successor and representative of the original Church, possessing all its jurisdiction,
and entitled to its name ; that neither has any more right to exceed those limits
than the other ; that the Southern Church, retaining the same faith, doctrine, and
discipline, and assuming the same organization and name as the original Church, is
not only a Methodist Episcopal Church, but is in fact, to the South, the Methodist
Episcopal Church as truly as the other Church is so to the North, and is not the less
so by the addition of the word South, to designate its locality. The other Church
being, by the plan of division, as certainly confined to the North as this Church is to the
South of the dividing line, is as truly the Church, North, as the Southern Church is the
Church, South. The difference in name makes no difference in character or authority.

" That the resolutions constituting the law of the case, intended that the minority
should acquiesce in the determination of the majority, is manifest, not only from their
general tenor and objects, but more especially from the failure to make any provision
for a seceding minority, and from the express stipulation that the Church to which
such minority might desire to adhere, shall organize no societies within the limits of
the other.

" It is sufficient for the purposes of this case to have ascertained, that the Metho-
dist Episcopal Church, South, has within the limits of its organization, as fixed under
the rule prescribed by the General Conference of the original Church, all the rights
and jurisdiction of that Church, to the exclusion of the present Methodist Episcopal
Church.



209

" It has already been sufficiently shown, that the addition of the word ' South ' to
the name of the Southern Methodist Episcopal Church, cannot affect the rights either
of that Church or of its members ; and that the members of a local society, entitled
to the use of local property under this or other similar deed, before the division, do
not lose their right by adhering to the Methodist Episcopal Church, South, under the
resolutions of the General Conference of 1844."

MR. REVERDY JOHNSON, May it please your Honours, before the counsel for
the respondents proceed with the reading of their proofs, I rise for the purpose of
staring, that upon the main question of the case the question of the power of the
General Conference to authorize a separation under the authority of the Constitution
of that Conference I shall rely upon the case of the American Insurance Company
vs. Canter, in I Peter's, beginning at page 511. That part of the opinion on which I
shall more particularly rely, will be found as given by Mr. Chief Justice Marshall,
ou page 542. The language of the Constitution of the Church, as relates to the
powers of the Conference, is to be found on page 27 of Proofs, No. 1, and is in these
words :

" The General Conference shall have full powers to make rules and regulations
for our Church, under the following limitations and restrictions."

The power thus subject to .restrictions is a power to make rules and regulations for
the Church, or, in the language of the clause, " for our Church." The language in
the third section of the fourth article of the Constitution of the United States, upon
which the case in 1 Peter's turns, is, " Congress shall have power to dispose of, and
make all needful rules and regulations respecting the territory or other property be-
longing to the United States." This clause, so far as it is applicable to the power
of Congress over the territories of the United States, gives Congress power to make
all needful rules and regulations respecting the territory belonging to the United
States. The power of the General Conference is to make rules and regulations for
the Church. The counsel upon the other side will at once see the purpose for which
I cite the case. The question in that case was, whence did the government of the
United States derive the authority, from time to time, to govern the territories by in-
volving them all under one form of government, by dividing them from time to time,
as in the judgment of Congress a division might be thought expedient, or by admit-
ting them afterwards into the Union as States, under the authority of another clause
of the Constitution 1 ? The Chief Justice, in giving the opinion, says, that as they had
authority to declare war under another clause, and under another clause they had the
authority to acquire by treaty, the acquisition whether acquired by force or by treaty,
would necessarily carry with it the authority to govern, and it was unnecessary to
dispute as to the extent of the authority to govern, because it was to be found in the
very words of the third section of the fourth article of the Constitution, which con-
veyed to Congress the authority to make needful rules and regulations for the terri-
tory of the United States. If, therefore, under that power Congress may to-day
establish one territorial government, and may to-morrow divide it, if they may keep
that territorial government in existence until such time as they think proper to admit
its inhabitants into the Union as a State, I contend that the General Conference, as a
government for the Church, has the power to make any form of government for the
Church, subject to the restrictions imposed, and under the clause which gives to the
Conference the authority to make needful rules and regulations for the Church.

MR. E. L. FANCHER, May it please your Honours, I refer, in the first place, as
to the powers of the General Conference with respect to the bishops as to the system

14



210

and polity of the Church, which requires that the bishops travel through the Con-
nexion at large, to book of Proofs No. 1, pp. 131-134, "Extracts from the Address
of the Bishops to the General Conference of 1844," which is dated New- York, May
2d, 1844, signed by all the bishops, including Bishops Soule and Andrew, who are
now bishops in the Southern Church.

" It should never be forgotten that those fundamental principles which define and
limit the powers of the General Conference, and secure the privileges of every minis-
ter and member, were settled by the body of ministers assembled in conventional
form, with great unanimity, after long, deliberate, and careful investigation. And
it is equally worthy of regard, that the Church, with almost unanimous consent, and
with heart- felt satisfaction, looked to the system as a haven of safety, and a dwell-
ing-place of ' quietness and assurance.'

" In this happy state of things, embracing all the essential elements of the volun-
tary principle, the ministers dependant upon the people whom they served in the
Gospel word and ordinances, and the people united to their ministers by the bonds
of affection and esteem, the work of the Lord steadily advanced ; new and extensive
fields of labour were constantly opening before us ; the borders of our Zion were
oreatly enlarged ; and thousands and tens of thousands were brought under Divine in-
fluence, and joined in the communion of the Church. The events of each succeed-
ing year have afforded additional proofs of the soundness of the system, and of its
adaptation to the ends for which it was designed.

" The general itinerant superintendency, vitally connected, as it is believed to be,
with the effective operation, if not with the very existence, of the whole itinerant sys-
tem, cannot be too carefully examined or too safely guarded. And we have no
doubt but you will direct your inquiries into such channels as to ascertain whether
there has been any departure from its essential principles, or delinquency in the ad-
ministration in carrying it into execution ; and in case of the detection of error, to
apply such correction as the matter may require.

" There are several points in this system which are of primary importance, and on
that account should be clearly understood. The office of a bishop or superintendent,
according to our ecclesiastical system, is almost exclusively executive ; wisely limited
in its powers, and guarded by such checks and responsibilities as can scarcely fail to
secure the ministry and membership against any oppressive measures, even should
these officers so far forget the sacred duties and obligations of their holy vocation as
to aspire to be lords over God's heritage.

" So far from being irresponsible in their office, they are amenable to the General
Conference, not only for their moral conduct, and for the doctrines they teach, but
also for the faithful administration of the government of the Church, according to the
provisions of the Discipline, and for all decisions which they make on questions of
ecclesiastical law. In all these cases this body has original jurisdiction, and may
prosecute to final issue in expulsion, from which decision there is no appeal.

" With these safeguards thrown around them, we trust the Church has nothing to
fear from the exercise of that authority which has been committed to them in trust, to
be used for the conservation of the whole body, and for the extension of the Re-
deemer's kingdom, and not to oppress or afflict any. Without entering minutely
into the details of what is involved in the superintendency, as it is constituted in our
Church, it is sufficient for our present design to notice its several departments.

" 1st. Confirming orders, by ordaining deacons and elders.

"2d. Presiding in the General and Annual Conferences. But there is a marked
difference in the relations the president sustains to these two bodies. The General
Conference, being the highest judicatory of the Church, is not subject to the official
direction and control of the president any further than the order of business and the
preservation of decorum are concerned ; and even this is subject to rules originating
in the body. The right to transact business, with respect to matter, mode, and order
of time, is vested in the Conference, and limited only by constitutional provisions ;
and of these provisions, so far as their official acts are concerned, the Conference, and
not the president, must be the judge.

" II. Having noticed in what the superintendency chiefly consists, it is proper to



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 37 of 87)