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 51 of 87)
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This Church is not strict, this Church is not narrow ; and strict, or narrow, or other-
wise, while the membership remains undissolved by expulsion, the right remains.
My learned friend did not seem to consider that remaining a Methodist was neces-
sary to continue the right. Why, says he, he was to be a preacher, and nothing is
said about his being a Methodist. -He deduced it, however, that the object was to
promote Methodism, and he was a little shocked that a person should lose his right
because he was promoting another religion. Does my friend mean to say that in the
first instance a man can take* a right to the fund because he preaches Methodism 1 I


suppose he preaches it in Bermuda under the pine trees, or in Canada among the
regions of perpetual snow does he take title 1 It is perfectly clear that he does
not. I submit that it is not accurate to say this fund was created to promote Metho-
dism. It was created by the Methodist Episcopal Church to promote its own effi-
ciency and strength for good, and thus enable it to spread Methodism. That is the
object of the Methodist Episcopal Church and of this fund. Then it is not to pro-
mote Methodism generally, but to strengthen the Church, to enrich it, to make elo-
quent tongues, and touch lips as with fire, to the end that by the Church Methodism
shall be spread.

Why should I argue the matter at large when we have two such memorable con-
structions before us as the Canada case and the case of 1844 1 What was the Canada
case, as a property case 1 I have touched on it at considerable length as it bears on
the ecclesiastical question. I submit that it was settled on that occasion with great
deliberation, against every wish of every man's heart, that this fund was to be used
within these uses for travelling, supernumerary, and superannuated preachers ; and
that in departing, not merely in peace, but with every benediction of the Church, the
Canada Church could take nothing. That is the Canada case. Canada left this
Church in peace. Did not the members of the Canadian Church remain Methodists
still 1 Did they not continue to give, in Methodistical spirit, the advice of foreign
philanthropy about slavery, to show how affectionately they remembered us 1 They
went in peace, they remained Methodists, and yet you find this Church, by a unani-
mous and deliberate judgment, declaring that they were not entitled to a farthing.
That is the very question now before the Court. I am now departing from the case
of unauthorized secession, and speaking of the case of secession authorized, and at-
tended by the greetings of those who gave the leave. In that case it is settled.
Your Honours, by referring to the case, will find that there was a strong desire to
indulge the Canadians ; it was a struggle between conviction and inclination. Your
Honours, as men as well as learned judges, will appreciate the value of such a deci-
sion as that. It was a decision wrung from the Conference by a perfectly understood
sense of duty. We are on that very identical question, Who is within these uses 1
It is to be devoted to travelling preachers, supernumerary and superannuated. Where
and who ? Members of what 1 Members of this Church ; and that decision is that
if they cease to be such, although by consent of everybody, and affectionate dismissal
of everybody, the right was gone.

Have we not a still stronger case in this very proceeding of 1844;? Have we not
here all but the unanimous judgment of this body, that persons no longer members,
even if they depart in peace and by consent, cannot t$ke a dollar] Does not the
action of that body record the unanimous judgment of the body, that these uses fail
on failure of membership, and that this retirement, although peaceable, is a failure
of membership, and that therefore, unless the uses .could be enlarged, the retiring
member was no longer within them? Was not that the very reason why they
recommended to the annual conferences a change in the restrictive article 7 I sup-
pose then we have here the highest evidence of law ; we have the contemporaneous
exposition of its makers, under extraordinary circumstances, and they certainly re-
lieve me from the trouble of pursuing the argument further. I had intended to
trace the connexion between such an association as this and a partnership ; but
I remember by whom I am to be followed, on the part of these defendants, and I
gladly relieve the Court from the further consideration of this part of the case.

Then, if this be so, the case is ended, in every view. Authorized or unauthorized,
membership has gone, and with membership right is gone. The only answer: to
this, which we have been able to appreciate, is, that the old Church is destroyed, and


two new ones created upon its site, and upon that destruction everybody was remit-
ted to his natural rights the ship had gone ashore, and every man was to get a nail
or a plank as he could everybody upon that dissolution is remitted to his natural
right, as in a joint-stock company or in a partnership. That is the only case, as I
understand, which is left for the plaintiffs. To this there are four answers, each of
which is, I think, equally decisive. In the first place, I have already argued that the
General Conference has no power ecclesiastically to destroy the Church. I am not
now speaking of a division leaving the old identity untouched. I have argued that they
cannot destroy the Church, and raise two or two thousand Churches from its ashes.
In the next place, the General Conference in this great transaction did not assume
to destroy the Church, but on the contrary, the Plan of Separation, from beginning to
end, shows that what they intended to do was to authorize a departure, leaving the old
identity untouched. If your Honours will do me the favour to look into the Plan as
it is stated in the bill you will find : 1st. That the General Conference never
assumed, in terms, to destroy the Church. 2d. That they never assumed, in terms,
to divide the Church. On the other hand, it is quite striking to remark, that while
it speaks of a division of property, it never speaks of a division of the Church, but
simply and merely of a separation of parties from the Church ; it deals throughout
with a contemplated act of other persons, and calls that act a separation by them,
and all it authorizes is a separation by others leaving itself to exist. It calls itself
by the old name of Methodist Episcopal Church, and designates the new one, thus
to be erected, by the name of the Methodist Episcopal Church, South ; and I submit
that to retain the name is to retain the identity. I would call the attention of the
Court to a single section in the bill on page 4. It embodies the entire theory of
the Plan of Separation. Article 2 of the Plan of Separation says :

" That ministers, local and travelling, of every grade and office in the Methodist
Episcopal Church, may, as they prefer, remain in that Church, or, without blame,
attach themselves to the Church, South."

Your Honours will find the proof of my argument on pp. 4, 5, and 6 of the bill. In
that connexion, I may be permitted to say, that such is the view of this transaction taken
in 7 Ben. Monroe, p. 507, in the case which has been cited. (For extract, see p. 368.)

Let me add two auxiliary suggestions. The first is, That the Louisville Conven-
tion throughout all their resolutions say nothing at all of a division of the Church,
but characterize their own act as a separation from an identity already existing, and
which it leaves exactly as it was before, only abridged. 2d. The frame of the
plaintiffs' bill so treats the affair. They do not call us, or anybody representing us,
a new Church, nor these defendants the agents of a new Church ; but it is assumed
throughout that the old Methodist Episcopal Church exists ab eo nomine. If your
Honours will turn to pp. 10 and 11 of the bill, you will find this remark abundantly

In the third place, not only does the General Conference not assume to destroy,
and thus to allow the plaintiffs to interpose their theory of the natural right of all the
stockholders, but it goes further. It does not content itself with authorizing a sepa-
ration and stopping there, but it goes further, and takes care to ordain solicitously
that the party seceding shall have nothing at all on the ground of natural right,
nothing at all on the ground of natural equity, attaching to dissolution and growing
out of an old quantum meruit for work and labour about books, but that he shall have
nothing except according to the existing law of the society except the annual con-
ferences would give it. I think we find here evidence of the proposition. Then in
the bill to which I have been making reference, we find evidence of it also. The



work was consummated by the Conference, and I submit that no man is to take any-
thing on the ground of natural right no man is to take anything except under the
lex societatis, i. e., if the annual conferences will give it, and they recommend
them to do so. Instead of a dissolution, there was a withdrawal of parties ; and
it was ordained that everybody not withdrawing, should be subject to the still ex-
isting law of the society. Therefore, I submit that it is impossible, against this
reiterated question of intent, that the plaintiffs can imply a constructive equity on
which they can come in and insist upon remission to natural right.

Is it not perfectly plain, as a matter of meaning, that the General Conference in-
tends that nobody shall take a dollar by secession or natural right, unless the annual
conferences give it 1 Is it not absurd to suppose they would go on providing, that if
the annual conference do so and so, something shall follow, if they meant to ordain,
whether the annual conferences do so or not, that every man should have part of the
fund 1 Is it not perfectly obvious that they meant to recognise the law of the
society as hi force, to interpret it as giving the property only to members, and there-
upon to confine their action to the advisory alteration of the use without which no
right was to arise at all 1 Is it not then perfectly plain, that against this ordinance
of the General Conference on this express agreement no possible implication can be
raised 1 How can the plaintiffs take apart of this bill and reject the rest? Can
they take so much of it as suits them, and go for natural equity for the rest of it t
Would the Conference of 1844 have divided the Church, if the effect would be to
let hi natural right, on which the seceder should take as much as he that remained,
when they were sitting under a constitution expressly prohibiting them from com-
mitting any such act 1

Finally and fourthly, there is another answer to the suggestion that the division lets
the plaintiffs in on natural equity against the meaning of the Conference ; and it is,
that if such must be the effect, whether the General Conference can by express
declaration help it or not, we know they had no power to make a dissolution. Your
Honours will observe that it adds another element to the argument I had the honour
to submit yesterday, whether ecclesiastically they can divide or not. If it be so
that a division, in spite of the General Conference and everything they can ordain
to qualify it, must necessarily carry the property out of its use, by carrying it to one
not a member, we know they cannot make it, because they are a representative body,
with no power but what the constituent gives ; and we know by the terms of the
constitution under which they exist, that they are forbidden to do that act directly,
and they cannot do indirectly what they cannot do directly. Therefore, I say that
if the General Conference is so situated, that it cannot divide this Church without
the additional consequence that the property goes to one not entitled, it follows that
they cannot divide the Church, and that is no great harm in my humble judgment.
They cannot divide, if to divide is to break the constitution. They cannot grasp
doubtful ecclesiastical power with .the effect of violating plain civil right.

I need not, then, in conclusion, suggest the other point which, however, I believe,
stands on proof that the annual conferences and General Conference together could
not set this use at large. The general grant may be thus stated. The right is in
cestique and his continuing a member. Therefore, if the annual conferences had
acted on this recommendation, they could not have given the fund to the retiring
members. Such was the original grant. The use was created in 1792 or 1800, and
renewed in 1804, and it became the law of the Church, and thenceforward I suppose
remained the law of the Church. The authorities for the proposition are on the brief.
It is, however, a moot-point, and of no sort of consequence, as the annual confer-
ences did not unite in agreeing to the recommendation.



I have been too much indulged by the kindness of the Court to trespass for
another moment on your Honours' attention. I have certainly supposed that the
plaintiffs have no legal and no equitable right to the relief for which they ask, in any
of the forms in which they ask for it. I cannot admit that they have been misled
into their present position by any act of the defendants. The General Conference
did for them all it could ; it recommended to the annual conferences to rescind.
They did not rescind. The plaintiffs will give me leave to say that they knew per-
fectly well from the beginning, and at every step they took, that they took it under
the hazards of the action of the annual conferences, and that they ran the risk of an
unfavourable judgment, even if they themselves did not procure that unfavourable
judgment. One consolation and one certainty we have. We know that the law of
the case will be discerned and applied. We know perfectly well that whatever may
be the result of the case, or the result of the general controversy, it will vindicate and
exemplify, what needs neither to be vindicated nor exemplified the administration of
justice according to a settled rule. With the consequences of their judgments, this
Court is not in the habit of troubling itself in advance to inquire. But I may be
permitted to say for myself at the bar, looking a little beyond the immediate profes-
sional inquiry here involved, that I do not know that there is anything this day which
a wise man and a lover of his country should as much desire as the re-establishment,
in some good measure, of the Methodist Episcopal Church, one Church again for the
North and the South. Whether and to what extent one may surely entertain such a
hope as that, I am sure I have not a satisfactory means of determining. For myself,
let me tell the Court, however, before I take my leave of them, that my clients this
day are a Methodist Episcopal Church for North and South, shorn of some beams,
bereaved of some auxiliary talent, and impaired to some extent of their strength and
means of utility. These defendants are this day still a Church for the North and the
South. This Methodist Episcopal Church, the old organization, exists this day in
many a slave State. In Delaware, in Maryland, in Eastern Virginia, in Western Vir-
ginia, in Kentucky, in Missouri, in Arkansas, in Texas, it has thousands of attached
affectionate adherents. I rejoice to be able to believe that it is enlarging. I will not
deny that, and in addition to the reasons of gratification with which I believe the law
of the case is with the defendants, I feel also that a decision in their favour will do
something to enable this Church to enlarge itself in that direction, will add something
to its means of winning back, by its ample provisions and its ever open arms, the
whole ancient household of its faith.

MR. WOOD, May it please your Honours, so much time has already been occu-
pied in the investigation of this case, and the evidence has been so fully and so ably
sifted and detailed by the opening counsel on both sides, that I think it would be a
waste of time for the closing counsel to occupy much of your attention in going over
the evidence. I shall therefore condense the remarks which I propose to make on
that branch of the case in as narrow a space as possible, and confine myself principally
to the argument of the law of the case, considering the facts in a great measure as
already fully developed before the Court.

It is important that we should understand, at the very threshold of this argu-
ment, the precise issue between these parties. The plaintiffs in this case, claim, a
portion of this fund, corresponding in amount with the relative proportion of the
members who have gone off from the Methodist Episcopal Church, and formed the
new Church, South. They have brought this suit for the purpose of recovering this
property. There has been an actual separation of the ecclesiastical body. That is
not disputed ; and the question now is, whether that separation entitles them to


recover and receive a ratable proportion of the property, the income of which be-
longs to certain beneficiaries for the time being, who are attached to the Methodist
Episcopal Church. That is the important issue between the parties in this cause.
It certainly is a most unfortunate controversy for if there are any subjects which
ought to be kept out of dispute, which ought to be marked emphatically with the
spirit of peace, they are religious subjects. Every controversy of the kind has a
most deleterious effect upon the morals of the community. The rising generation
lose, in a great measure, their respect for religion, when they see the heads of the
Church quarrelling and dividing. We have seen the baneful influence of these con-
troversies in divisions of other Churches which have heretofore taken place ; and I
will venture to say that the Methodist Episcopal Church and the Church, South, will
soon discover it, by sad experience. But there is another point of view in which it
is unfortunate. This Methodist Episcopal Church, in its territorial jurisdiction, is
commensurate with the entire Union. It is one of the largest Churches in this coun-
try. It has been the pioneer of religion. It has gone on with the advance of civili-
zation and improvement in this country. It has carried religion along with settle-
ment and civilization, and has ameliorated the condition of the different classes of the
community upon our gradually extending borders. A division of this kind, therefore,
may be said, in some measure, to be a national concern ; and when we find in the
present condition of our country, that there has been, as is admitted on all hands, and
as many believe still to exist, serious danger threatening the unity of this federal
government, it is of importance that a controversy of this kind should, if possible,
be adjusted, and it is to be seriously regretted that such a controversy has arisen It
is seriously to be regretted that the Southern members of this Church have thought pro-
per to bring their claim into a court of justice, more especially while it was in a course
of amicable adjustment, and when, with a little more patience and forbearance,
there was every probability that it would be finally adjusted. But, unfortunately,
they have commenced this controversy, and it is our duty now to defend ourselves.

The counsel on the other side have mainly rested their claim upon grounds which
appear to me to be entirely fallacious. They seem to look upon themselves, or rather
upon the beneficiaries whom they say they represent, in what is called the Southern
branch of this Church, as having a sort of vested right to this property. They draw
a distinction between property which has been given to a Church, and property which
has been acquired by the labour of individuals belonging to a Church. They treat
this as property of the latter kind, and they claim they have a right to it, a vested
right ; and upon the division of this Church they are entitled, as in the case of a part-
nership or tenancy in common, to have a division of the property and receive a ratable
proportion. It appears to me that this is an entirely erroneous view of this subject.
I am aware they are somewhat warranted in this course of remark by the decision
which was made in the Maysville case, whch they refer to, and on which they mainly
rely. But I trust I shall be able to satisfy this Court that the principles upon which
that decision rests, and the principles upon which they now base their claim, are
entirely fallacious and unfounded.

I consider, and they admit, I believe, m their claim, that their rights in this case
depend upon the law of charitable uses. It is important, therefore, that we should
understand precisely the nature of that kind of property, and of the claim which they
make. A charitable use is a public use. It is called charitable mainly because the
largest portion of that kind of public property in every Christian country is based
upon a charitable foundation. There are four elements in every class of charitable
use. There are, in the first place, the founders of, and contributors to, the charity,
those who have created and bestowed the property or the funds to the charitable pur-


poses. There are, in the second place, the trustees of the charity, those who hold
the legal estate in trust. In the third place, there are the managers of the charity,
those who take charge of it, who conduct it, and who distribute it. Managers aie
essentially necessary, because there are no certain persons taking a temporal interest
in the property. And, lastly, there are the beneficiaries among whom the property
is distributed, according to the purpose of the charity, the use which was originally
impressed upon it. The management of the charity is according to the scheme or
plan which was originally impressed upon it by the founders, or where it is of a gene-
ral nature, and a charity at large as it is called, a court of equity which protects all
kinds of uses, takes charge of it and establishes a scheme. Such a scheme will be
found in the case of Mdgridge vs. Thackwell, in 7 Vesey's Reports.

These beneficiaries in this case have no vested estate, no fixed right, and hence
they have no power of alienation. They cannot dispose of this property. Suppose,
before any division of this Church took place, all the superannuated and supernume-
rary ministers of the Church for the time being, all who come within the description
of the beneficiaries of this charity, had undertaken to alienate, what would the alien-
ation have been good for 1 The attempt would have been perfectly visionary. They
would have had no right to do it. They have no right, except as they answer the
description of the beneficiaries, to receive from time to time the income or profits of
the fund, as it is dealt out by the managers in the administration of the charity.
Their right, therefore, is enforced and managed by the managers of the charity ac-
cording to the scheme, and their right too in a court of equity, wherever it comes
into dispute or difficulty, as between them and the trustees, managers or founders, is
protected by the attorney-general. Your Honours will find in the case of Duke vs.
Fuller, 9 New-Hampshire Reports, 536, a case which will fully illustrate this sub-
ject. That was the case of a charitable use, in which the beneficiaries of the charity
undertook to dissolve the institution altogether, and to divide the funds among them-
selves individually. A bill was filed by the attorney-general in order to deprive them
of the property which they had thus taken and appropriated among themselves, to es-
tablish the charity, and to have a plan devised and adopted for the administration of
it. The claim in that case was enforced by the Court. Well, if in the case cited,
as the counsel on the other side seem to think is the case 'here, the property really
belonged to these beneficiaries ; if they had acquired it, and they were to be con-
sidered as tenants in common of the fund, they would have had a right to divide it,
to dispose of it as they pleased, each individual to alienate his share. But if it is
\inder a charitable use, and if they are entitled to nothing more than a portion of the
funds as administered under the charity, then they take them whenever they are
doled out in that way ; and they have no other right, except what is derived in that
manner under the management of the charity.

This law of charitable use is enforced in this State and in this country. It has
been involved, I admit, in a good deal of doubt and difficulty heretofore But I 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 51 of 87)