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

. (page 46 of 87)
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 46 of 87)
Font size
QR-code for this ebook

Southern friends if when they got home they found such an excited state of feeling,
would help to maintain the connexion that this would operate in some measure as
oil on the troubled waters, and thus anticipate, and prevent in some measure, the
catastrophe which had arisen. They adopted what has been called the Plan of Sepa-
ration, not as a measure of division but as a preventative. I do not think this quite
relieved the minority from all responsibleness in that behalf. It was still their
duty td have endeavoured to prevent a state of feeling which in the Conference they
undoubtedly seemed to fear, and for their opinion we had great respect. Their
counsels guided. I admire their abilities, and appreciate their patriotism, and love
them well enough, with all my heart, to wish them back again in the same Church
with my clients, and I do not know that I could breathe them a better wish. As to
the act itself, if I may not call it, in the language of Mr. Burke, " the fond election
of evil," was it not, in the language of the same great man, " the unforced choice of
evill" I escape with great pleasure from matter connected but remotely with the
merits of the case, and come to those immediate merits.

The case actually stated in the bill is very simple and very clear. The learned
counsel who opened, states or intimates in his argument another case totally distinct
from that stated in the bill, as I understand it, which creates some confusion in my
own mind. Before I raise the real question which I wish to present to the Court, I
would seek for myself a clear idea of the equity on which the plaintiffs claim. Look-
ing, then, to the bill, the case put is exactly that a body of persons and of annual
conferences, heretofore members of the Methodist Episcopal Church, have, by their
own act or concurrence, and volition, under a certain Plan of Separation, separated
themselves from that Church, and formed themselves into another totally distinct and
independent Church. The- case stated in the bill, in other words, is, that the Metho-
dist Episcopal Church has been divided in twain by a geographical line, and that they
have attached themselves voluntarily to the Church on the Southern side of the line,
and that this has taken place under such circumstances that they still remain entitled
to their share of the original fund. This case thus stated in our general way is a
perfectly intelligible one. It is a case of voluntary separation. It raises the mere
question of the effect of such separation on the rights of the separatists to the original
common property. But your Honours will, perhaps, have observed that, in the course
of his argument, my learned brother perpetually kept introducing another case, not
stated in this bill, and not before the Court, to derive from that case some aid to the
one stated and argued. He said there were widows and orphans who were to lose
their rights on the doctrines of this defence, without any act of their own, and there-
upon he pressed us to know if we would put such a class of non-combatants as these
to the scalping-knife and the tomahawk, whatever we might be inclined to do with
the great body of the plaintiffs whom we have to encounter. In regard to that, I
have to say, in the first place, that no case is before this Court but that of voluntary
separatists, or those whom other volunteers have separated from the Church. If
there are widows and orphans on the Southern side of this line, who have not volun-
tarily separated from the Methodist Episcopal Church, or who have not been carried
away from that Church by the acts of other persons, themselves volunteers, with
whom they are ecclesiastically connected, then the defence which we make to the
plaintiffs' bill excepts such a case and no such case is stated in this bill, or prepared
in argument for the consideration of this Court. This bill is for voluntary separatists,
not for those who have not participated in the act of separation ; and therefore the
defence we here make has no application to the class of people for whose title to the
sympathies, not to say the justice, of this Court, my learned brother seemed desirous



to borrow some kind of advantage. I hardly know that I need say anything as to
that limited and anomalous description of persons further than this.

If the Court will look into the journals of the General Conference of 1848, to the
action of that Conference upon petitions of thousands from the South who have
sought to return to the body of the Church, they will see that the doctrine which we
have there declared on record is, that everybody who has not withdrawn, or who has
not been expelled, is still a member of this Church. Therefore, if it be true of these
widows and orphans, or any of them, that they have not acted at all, they still re-
main, for aught I know, within the pale of the Church ; and we should be but too
happy, so far as they are concerned, to apply the fund to them. But their case is not
stated on the record, it is not presented in the bill, it is not argued substantially by
counsel. To their case our defence has no application whatever. I object, there-
fore, to my learned friend drawing to his banner, and bringing to his aid such a
description of parties as these. He will give us leave to say, that it is hardly fair,
although it is very skilful warfare in him to do so, to come to us at the head of some
500,000 Southern combatants, less or more ; and when we turn -round to fire upon
them, to say, " Take care ; you will kill some widow or some orphan, and these
widows and orphans are no combatants, no marks for you." Our answer to that is,
that with that class of parties we have no encounter, and if his clients would avail
themselves of the immunities of orphans, they had better begin by clothing them-
selves with the innocence of orphans. It is with the voluntary separatists of the bill
alone that we deal.

Turning then to the case, as it is exactly stated, and taking it under its most for-
midable aspect, that is to say, of an income for these beneficiaries, which is, perhaps,
the most formidable and most plausible aspect in which the learned counsel presents
the case, and by preachers, I mean the limited description of preachers to whom
the fund is directed, our answer is, that they have no claim, because they have
lost by their own act the one fundamental and indispensable qualification of continu-
ing membership in the Methodist Episcopal Church. To maintain this, we shall
submit, that the acts of the plaintiffs worked a simple secession from the Church,
without lawful authority, terminating their own membership, and yet leaving the
identity of the Church altogether unaffected. If so, we sey, it can scarcely be
denied that they have lost the right in losing the qualification. To open our gene-
ral answer to the bill a little more broadly, if we should suppose that the plaintiffs
had succeeded in establishing the position that they left the Church and terminated
membership, which was the qualification under which they held the title, by lawful
authority, leaving the original Church, in fact, in its associated .identity, still we
submit that they have not carried with them a particle of right to any portion of this
fund, principal or interest ; because, on such secession and termination of membership
as this, it is a universal proposition of law, as we understand it, that the secedcr
takes nothing, unless at the time of secession, or before, or afterwards, the act is at-
tended and qualified by a grant of property from a body competent to make such a
grant. In this case we say, that even if the plaintiffs have left the Church under
the sanction of competent ecclesiastical authority, they have no such grant of autho-
rity : 1st. Because the General Conference had no power to make it ; 2d. Because it
did not assume the power to make it, if it had it ; and 3dly. Because both the Gene-
ral and annual conferences together, could not take it away from the uses to which
it was originally devoted ; the travelling supernumerary and superannuated preachers
of the Methodist Episcopal Church remaining members in it.

It will be convenient for me however, instead of now adverting to the fund, to ad-
vance at or,ce to the proposition that the plaintiffs' act in leaving the Church was a


simple, bold, and unauthorized act of secession, unauthorized by any ecclesiastical
authority whatever ; and, therefore, according to the universal law, as we apprehend
it, the right of property terminated by the act of secession.

We say, then, in the first place, that the proceedings of the plaintiffs were a simple,
unauthorized secession, and that they leave the identity of the old Church entirely
unaffected. I suppose it will be hardly controverted on the part of the plaintiffs,
certainly it is entirely and perfectly clear, that independently of the proceedings of
the General Conference of 1844, the act of the plaintiffs, and of everybody who
participated in the proceedings of the Louisville Convention, would be a simple and
unauthorized secession from the Methodist Church. Prima facie, I mean to say,
that unless they shall be qualified by the action of the General Conference, called the
Plan of Separation, the proceedings of the plaintiffs, and those with whom they are
associated and act, work a simple and mere secession from the Church. If your
Honours will glance at the resolutions of that Louisville Convention, as they are
stated in the plaintiffs' bill, p. 6, fol. 20, you will find that they in terms declare, and
then proceed to achieve a separation from the Methodist Episcopal Church. They
in terms proceed to renounce the jurisdiction of the General Conference in all its
terms, and in all its forms, and to impede the organism through which that jurisdic-
tion could be exerted. They then proceed to constitute the portion of the Church
which acts in and through them into a separate and distinct ecclesiastical association
and organization, for whose government, and faith, and discipline, and indefinite ex-
istence, they go on to make complete and independent provisions. Now, of course,
the effect of all this unqualified, as I have said, by the act of the General Confer-
ence, to the influence of which I shall have occasion to proceed in a moment is se-
cession and nothing else. In its effect, it is exactly as if, instead of five hundred
thousand persons, five persons had turned from Methodism to Presbyterianism or
Congregationalism, and had gone off by themselves from the body. I take it to be al-
together too clear to discuss, that the number of those who go, their continuing
Methodism, their simultaneous organization of themselves into a Methodist Episco-
pal Church, the farewell words of kindness with which they take their leave, and
the protestations which we find scattered over the proceedings of the Louisville Con-
vention, to the effect -that they do not intend to separate or secede, do not control
the matter in the slightest degree. Actions, here as elsewhere, overrule words ;
and no protestations, and no declaration of the purity of their course can possibly ex-
tricate their case from the influence of a conclusive presumption of law, prima facie,
unless they can qualify it and transform it by resorting to the Plan of Separation.
They have deserted the Church in the boldest possible form and most intense ex-
tent. I may perhaps anticipate, though not in the immediate course of my intended
discussion at this time, so far as to say, that I understand it to be perfectly clear,
according to the doctrine universally accepted on this subject, that a simple secession,
such as this would be but for the vote and plan of the General Conference, is per-
fectly futile to claim the property asserted in this bill, however that property may
be holden, whether it belonged to the society in the aggregate, or was held by
certain of its members in trust as a charitable use for certain other members. I
understand it to be universally holden by the jurisprudence of all civilization, that
euch a secession as this would be, upon that hypothesis, secession unauthorized by
ecclesiastical property, and forfeits the title as a matter of course. Indeed, I sup-
pose it is just as clear it is one of the points which we have presented to the
Court this morning on our brief that, even if the secession were completely autho-
rized by competent ecclesiastical authority, but leaving the old organism in its local
identity, it works the very same consequences on the title. I suppose it entirely true


tk.V; if a religious association, incorporated or unincorporated, holds a fund by any
title oebnging to the society in the aggregate, or held by a part in trust for the rest,
and thereupon a secession takes place by their consent, the seceder carries no inte-
rest in the fund. I understand that to be universally true of all incorporated or un-
incorporated associations. This is a common case, and we have referred the Court
to many cases of it. In New-England, if a portion of a city or town is set off into a
separate town, it does not carry with it any portion of the funds of the old corpora-
tion without a special agreement to that effect. There was a strong illustration of
it in a case reported in the 16th of Massachusetts Reports, where the old county of
Berkshire was divided into three counties, and the legislature, inadvertently at the
time of making the act of division, perhaps, forgot to provide for a division of the
corporate property, and the very next legislature undertook to correct the mistake.
In that case it was holden to be unconstitutional, as there was no provision made for
a division of property in the act authorizing the division of the county. So that I
understand it to be a universal proposition, that upon a secession, authorized or un-
authorized, as the general rule, the seceder carries no property in the fund which
before belonged to the whole association, unless his act be attended and disarmed
of its consequences by an accompanying grant of a share of the property by the
competent authority. Not, however, to anticipate, but to confine myself for the
present merely to the act of secession, to qualify the prima facie influence of this
secession, and the consequences of that act, the plaintiffs have, of course, the burden
of proof ; and to encounter it, they invoke the vote of the General Conference,
called the Plan of Separation. That Plan, as well as I can, with all the attention I
have been able to give it, understand it, the plaintiffs assert divided the Church in
two, and by some operation or other, that I am not quite confident to this hour I dis-
tinctly understand*, even without the assent of the annual conferences, it enabled
them to depart, and yet to carry with them a portion of the original common

Upon this a great many questions arise ; but the first to which I wish to call the
attention of your Honours is, whether or not this act of the General Conference is not
a more nullity in the contemplation of ecclesiastical law, in so far as it was an act
assuming to divide the Church under which, of course, the plaintiffs take no right.
My first proposition is, that it is an entire and perfect nullity, for want of authority
in the body called the General Conference to divide the Church according to the
Methodist ecclesiastical polity. This, then, raises two general questions, 1. What
is the nature of the act 1 and 2. What are the powers of the body that did this

It is to be observed, in the first place, with regard to the nature of the act, that in
in order to avail the plaintiffs in the slightest degree, it must be held to be an act
whereby the General Conference divides the Church into two everybody agrees it
must do that, and whereby it divides the Church in two, but wholly destroys the
old association, and produces two new ones in its place. I have already indicated,
and I shall by-and-by have occasion to submit more at length, that if the act does
not go to this extent if it goes no further than a mere setting off a part from the
whole, leaving the identity of the original whole unaffected, and does not at the same
time accompany it by a grant of any portion of the estate then it does not avail the
plaintiffs. Therefore, I submit, though in the bill they confine themselves to the
mere allegation, that this act has divided the Church in two, without advancing so
far as to say whether it has destroyed the original Church and made two new ones,
in order to avail themselves of the act in the slightest degree, they must go that
extent. Therefore, they must establish the two constituents of the Ovidian meta-


morphosis, not merely the forma mutata, but also the novum carpus, or their case
fails. If, however, it does not go so far as the~destruction of the old Church, and
the production of two new ones, it is at least a division of the Church ; and it is in
that aspect of the act that I desire for a moment to consider it, and then to inquire
whether or not this Conference had the constitutional competence to do such an

It is, then, a division of the Church ; it is so urged in terms, and is unquestion-
ably so in every view of the case. To avail the plaintiffs, however, it must be made
out in matter of fact that it is a division of the Church ; that it divided an existing
Church theretofore one, established to be one, organized completely, and covering
jurisdictionally and spiritually, sccundum subjcctam materiam, a certain territory, into
two Churches, separated by one geographical line running directly through the origi-
nal territory, and each Church totally distinct, and totally independent. That is the
nature of the act. It is not a mere dismission of a single member from the Church
in malam partcm, or in bonam partem. It is not the excommunication of a party ;
not the dismissal of a party with letters of recommendation ; it is not the calling in
of a missionary on a lying-out frontier, ascertained to be too far distant for the prose-
cution of his enterprise of benevolence ; nor is it, as was the case between this
Church and Canada, the dissolving of a treaty, or the terminating of a compact be-
tween two Churches theretofore existing legally independent, but united by a tempo-
rary tie. On the other hand, it is a division of an existing substance into two. It is,
ecclesiastically and in fact, precisely such an act as it would be politically, if the
general government were to-morrow to assume to divide the United States by Mason's
and Dixon's line prolonged from sea to sea. and proceed to establish two indepen-
dent nations on the different sides of the line, and then to go on indicating a plan for
dividing the buildings, the ships, the arsenals, and the flag equally between us. May
that omen at least be averted ! It is a division, and nothing less nor more than a
division of the Methodist Episcopal Church.

I ask the Court, before I proceed to inquire into the powers of this body constitu-
tionally to do such an act, to pause for a moment in the still further contemplation
of the act itself. This is a division of a Church which had existed in 1844, called
the Methodist Episcopal Church. It was one Church. At that time it had been one
sometime longer than these States in this Union had been one under the constitu-
tion of the general government. Methodism, as I have read in these proceedings,
had its birth and baptism in an upper chamber somewhere in the city of New-York,
in 1766. Thence it spread and grew, embarrassed somewhat by the troubles that
preceded the breaking out of the revolutionary war, and still more by the ftvolution-
ary war itself, until at last, in 1784, its hymns were sung, and its fervid oratory
spoken, in the pine woods and upon the river banks, in some seven States, and in the
hearing of some 14,000 or 15,000 members. That was in 1784. Still, down to that
tune, it recognised a certain British tie. Its founder and its ruler was Wesley, who
was an Englishman to the last day of his life. Its preachers were, I believe, all of
them, down to that time, of British ordination. Its sacraments were denied to it
through the agency of its own service, and could be enjoyed only by leaving the
Methodist meeting, and seeking for them within the walls of an Episcopal Church
by the English law, to which Wesley all his life, certainly as late as that period, con-
tinued to adhere. In 1784, sympathetic with the new American national life, Me-
thodism, the Methodism of the United States, the collective general will of American
Methodism, expressed by the preachers and by the laity, assembled in an extraordi-
nary Convention, for that was the true character of it, expressly on that subject, con-
vened under a letter from Wesley recommending that proceeding, decided to form


itself into one Church one independent and indivisible by the terms of its creation
The Court will see that it was expected to be a Church in and for these United
States, that it was expected from its origin to grow with their growth, and to expand
with their area, to breathe over their gigantic frame its spiritual culture, to contri-
bute to their amelioration, to consolidate their unity, and to attend their various for-
tunes through the corporate, and associate, and connected life of both. I pray your
Honours' attention, in this immediate connexion, to the letter under which the Con-
ference was called by which the Church was formed. And it is very striking to
remark how the Church, in its very origin, had a national character and a. national
tie, and might very well expect to survive and perform a series of national service
as long as there was a Church to work or a nation to serve.
On pp. 3 and 4 of Proofs No. 1, Wesley, in his letter, says

" By a very uncommon train of providences many of the provinces of North Ame-
rica are totally disjoined from the British empire, and erected into independent
States. The English government has no authority over them, either civil or eccle-
siastical, any more than over the States of Holland. A ciyil authority is exercised
over them, partly by the congress, partly by the State assemblies. But no one either
exercises or claims any ecclesiastical authority at all. In this peculiar situation some
thousands of the inhabitants of these States desire my advice, and in compliance
with their desire I have drawn up a little sketch," &c.

Your Honours will observe the exigency. In consequence of the independence of
a new nation, Mr. Wesley advised the establishment of a Church for that nation.
He says that thousands of its inhabitants solicited his advice, and he proceeds to re-
commend the creation of a "new Church for the new independence. He constitutes
Coke and Asbury joint superintendents over the American brethren. By turning to
pp. 5, 6 and 7, your Honours will observe that it is certain citizens of the United
States, who, under this letter, they having undoubtedly formed part of the thousands
who solicited his advice, proceed, in contemplation of the same crisis the erection
of a new nation to independence to found a Church for it. I beg leave to read a
passage from page 5 :

" To carry into effect the proposed organization, a General Conference of preachers
was called, to meet in Baltimore at Christmas, 1784. Sixty, out of the eighty-three
preachers then in the travelling connexion, attended at the appointed time. ' At this
conference,' say the annual minutes for 1785, ' it was unanimously agreed, that cir-
cumstances made it convenient for us to become a separate body, under the denomi-
nation of the Methodist Episcopal Church.' "

Turning from that, I ask attention to some of the questions in the Discipline of
1784, page 6 :

" Quest. 2. What can be done in order to the future union of the Methodists T

" Ans. During the life of the Rev. Mr. Wesley, we acknowledge ourselves his
sons in the Gospel, ready, in matters belonging to Church government, to obey his
commands. And we do engage, after his death, to do everything that we judge con-
sistent with the cause of religion in America, and the political interests of these
States, to preserve and promote ouf union with the Methodists in Europe.

" Quest. 3. As the ecclesiastical as well as civil affairs of these United States
have passed through a very considerable change by the revolution, what plan of
Church government shall we hereafter pursue?

" Ans. W T e will form ourselves into an episcopal Church, under the direction of
superintendents, elders, deacons, and helpers, according to the forms of ordination

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 46 of 87)