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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 53 of 87)
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if a testator had left a legacy for building a church for a parish, or an apartment in a
hospital, and it happened either that before his death the said church or said apart-
ment had been built out of some other fund, or that it was no ways necessary or use-
ful the legacy would not, for all that, remain without any use, but it would be laid
out on other works of piety for that parish or for that hospital, according, to the direc-
tions that should be given in this matter by the persons to whom this function should
belong.

" ' Since legacies for works of piety and charity have a double favour, both that of
their motive for holy and pious uses and that of their utility for the public good, they
are considered as being privileged in the intention of the law.' "

Your Honours see all the elements of a charitable use as it exists in our courts of
equity, and as it exists independent entirely of the statute of Elizabeth. It was de-
rived from the civil law, into which it was introduced by the emperors after Chris-
tianity became the law of the empire. It exists in the nature of things wherever
Christianity exists, because wherever Christianity does exist there will be charity,
there will be the founders of these public charities for the benefit of individuals who
may come into being long after the founder is laid in his grave. Therefore, to abolish
this law, to undertake to destroy it, would be nothing more nor less than placing this
kind of property beyond the pale of the law. That would be the effect and the only
effect.



300

You find that when the court in Kentucky is freed from the influence of this par-
ticular subject, and is called upon to decide on these cases, it applies this doctrine
very fully and very forcibly. I will refer the Court to a case in 7 Ben. Monroe's
Reports, 611, 618, and 621, where you will find the doctrine fully developed. That
was a case of a devise of property for the dissemination of the Gospel. Well, now
every lawyer knows that such a devise, such a disposition of property, according to
any other law, would be invalid, for want of the requisite certainty as to persons.
But it was protected there under the law of charitable uses, and devoted to those
public and religious purposes, and a court of equity would see that it was administered
according" to some scheme devised to carry the charity into effect.

I therefore submit to your Honours that the view taken of this subject on the othei
side, that here is property which has been acquired by these beneficiaries, that they
have a vested right to it, and that they can divide it among themselves, as so many
tenants in common, is without any foundation, and that they must, in order to claim
this property, take it as beneficiaries answering the description contained in the
foundation of this charity. Some of these may, perhaps, have contributed a little,
many of them have contributed nothing at all. Many of these ministers who have
contributed may never receive any of the bounty. In order to entitle these plaintiffs,
as representing the beneficiaries of this Church, to recover any portion of this fund,
they must make out, to your satisfaction, that they answer the description of that
charity ; that they are the representatives of travelling, supernumerary, superan-
nuated ministers, their wives, widows, and children, belonging to the Methodist
Episcopal Church, the institution which originally created this charity, under which
it is protected, and according to the original principles upon which the charity was
founded. It will not do for them to say they are Methodists. It will not do for them
to say that they have adopted all the laws, and regulations, and discipline, and
government, and all the faith and doctrines that were acknowledged in the Methodist
Episcopal Church, which was in existence when this charity was formed, and under
whose auspices it has been accumulated to the immense amount it has. It will not
do for them to advance any doctrine of that kind. But they must make out that at
the time they filed the bill they were members of this Methodist Episcopal Church,
and that they are entitled, as members of this Church, to a portion of this fund, or
that they, as agents, represent them, and that in the administration of that charity
they stand in that position.

Now, they tell us that they do stand in that position. There is no difficulty here
about the fundamental doctrines of the Church. The question arises upon topics re-
lating to the discipline and government. There has been no split in this Church
upon any fundamental rule of faith, or Christian belief. There is nothing of that
kind. But they claim that they are a portion of that same Methodist Episcopal
Church divided, and that although they are divided, yet they are sufficiently identified
to entitle them to a portion of the corpus of this estate, and to entitle the persons an-
swering the description of being supernumerary or superannuated ministers, their
wives, widows, and children, as beneficiaries, to take it. According to the argument,
eo far as I have been able to gather it, they claim on two grounds : First, on the
ground of an agreement between the members of this Church, thus constitutionally
representing the whole Church, and composing its head the General Conference
to divide the Church, to form two separate institutions, and yet identical with the
Church, each party representing it in succession and continuance, and each party en-
titled to its ecclesiastical privileges and private rights of property. In the next place,
they contend, that if the agreement does not amount to this, and independent of the
agreement there has been a division in this Church, that that division and separation



301

of this body from the other, the majority, was rendered necessary and indispensable
by the misconduct of the defendants, and therefore they are entitled to a portion of
this fund in equity. These I take to be the two grounds upon one or the other of
which they must rest their claim.

Now, in the first place, I assume there was an absolute agreement to divide this
Church. That agreement, they tell us, is contained in the report of the committee
of nine, which was made in the General Conference of 1844, and adopted by that body.
Under that agreement they say they are entitled to set up the Southern branch,
which they call a division of the same Church, and under which they are entitled, in
equity, to claim a relative proportion of the corpus, and of course a relative propor-
tion of the profits of this fund. I may here remark, that your Honours have no-
thing to do with the ecclesiastical privileges any further than as they are connected
with the subject of property ; but wherever a trust is created, which trust is in some
measure identified with or dependant upon the ecclesiastical institutions, you will
inquire into the subject of these institutions, in order to settle the question properly.
It is in that way and in that point of view that you get jurisdiction over that branch
of the subject. You are aware that in all cases where the Court has a jurisdiction
over a particular subject, if it becomes necessary, in order to settle the right of pro-
perty, to inquire into some collateral matter over which the Court has no direct juris-
diction at all, they will investigate it in order to settle that right of property ; and in
that point of view a court of common law will inquire into a maritime subject when it
becomes necessary to do it, as a collateral matter, to settle some question of property
over which the common law court has direct jurisdiction. Mere ecclesiastical ques-
tions you have nothing to do with directly, and in themselves, and there are no tri-
bunals in this country connected with the government of the country which have any
control over them. There is in this country a complete separation of Church and
State. But you will inquire into ecclesiastical matters wherever a trust is created
which is dependant in any measure upon the existence and character of the ecclesi-
astical institutions. Here there is this complete connexion. This property is placed
under the control and direction of this Methodist Episcopal Church. They are to be
the managers of this fund. Well, in order to settle the question, when two parties
claim the property, or claim the control over any portion of it, you must inquire into
that Methodist Episcopal Church, where it is, who compose it, and who are the per-
sons entitled to the direction of it. In no other way can you settle this question of
property. You are therefore led, necessarily, to investigate it collaterally, with the
view to settle the question of jurisdiction over the property. You must find out who
compose the Methodist Episcopal Church now, and at the time this suit was brought.
Who are they 1 Are they the plaintiffs or the defendants 1 Has it been legitimately
and legally divided in reference to the matter of property, so that both can claim it ?
Or is the Methodist Episcopal Church still connected and identified with the defen-
dants in this case 1 If it is, the plaintiffs are entitled to nothing. They can claim
nothing.

Hence, you inquire into this matter, and you will observe in this case that there
is something more than a connexion arising from the management of the property,
because you find out that these beneficiaries must be members of this very Church
to entitle them to take. It often happens that the management of a charity is in the
hands of persons who are in no way connected with the beneficiaries, otherwise than
merely as individuals to conduct it, and to distribute the profits among the benefici-
aries. But here you see a complete connexion. The Methodist Episcopal Church
is entitled to the management of this charity, and not only so, but it is to be distributed
among beneficiaries, which beneficaries are to be, and continue to be from time to






302

time, members of that very Methodist Episcopal Church. They are, therefore, com-
pletely identified with it ; and there is another important consideration, whenever a
a charity is given to pious purposes to be distributed among the officers of the Church,
it is considered as given in ease of the Church. You will find that doctrine very
fully illustrated in the case of McGurr vs. Aaron, in 2 Pennsylvania Reports, to
which I have already referred. If property is given to a charity to be distributed in
support of the ministers of a Church and their successors, it is intended and is con-
sidered as being given by the founders for the benefit of the entire Church, and in
ease of it. There is, therefore, that connexion between the Church in this case and
the beneficiaries, and it is indispensable, to come to a right decision of this case, that
you should find out who are this Methodist Episcopal Church which was in existence
at the foundation of this charity, which has been in existence during its accumulation
and continuance, and which was in existence at the time this suit was brought.

Now, as to the agreement to divide the Church, I may say, in the first place, that
I might take this objection which has already been laid before the Court, that this
agreement is prospective and contingent, and has never been consummated ; and the
further objection, that the General Conference, as a delegated body, has no power,
without the concurrence of the annual conferences, to make such a division. When
I say they have no power to divide the Church, I speak in reference to this property,
because the annual conferences are managers of this charity as well as the General
Conference. But waving for the present the further consideration of this branch of
the case, and assuming that there had been a present agreement instead of one that
was executory, and that it has been consummated, then an inquiry arises, Has there
been a division of the Church 1 has there been any agreement to that effect 7 This
split in the Church may have been effected by an agreement in two ways : it may
have been an agreement to divide the Church into two separate branches, creating
two new Churches in the place of the one which before existed ; or it may have been
an agreement that the Methodist Episcopal Church should remain, and that this
other portion should be detached from it, and should form a separate independent
Church. Your Honours will see at once that there is a vast difference between
these two modes of proceeding. The first would necessarily destroy that Methodist
Episcopal Church which was previously in existence, and would form two new
Churches in the place of it. The last would leave that Church in existence already
formed and operating, and there would be a mere division or separation from it, to
form a new and separate Church, leaving the old body to stand, and leaving the new
to be formed and created into a separate, distinct, and new body. There is just the
difference in this case that there would be between cutting off a man's leg, leaving
the person remaining, and dividing the body, and thus destroying it ; the difference
between maiming a man and killing him.

If this matter of agreement is allowed to speak for itself, there is no difficulty in
discovering what was intended. I will refer your Honours to the first volume of
these Proofs, p. 129, where we have the so-called " Plan of Separation." It is upcn
this that the plaintiffs stand, and must stand, if they can stand at all, and if I com-
prehend it, they leave the old Church remaining, and they separate from it, and form
a new Church. I read the 2d resolution :

" 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."

" They may remain in that Church, or, without blame, attach themselves to the
Church, South." Can anybody misunderstand this 1 ? Did they not intend that that



Methodist Episcopal Church should still continue in existence, that it should remain,
and that they, in case their Southern conferences found it necessary, should form a
new and separate Church, to be the Church, South 1 Read the 4th resolution :

" That whenever the annual conferences, by a vote of three-fourths of all
their members voting on the third resolution, shall have concurred in the re-
commendation to alter the sixth restrictive article, the agents at New-York and
Cincinnati shall, and they are hereby authorized and directed to deliver over to any
authorized agent or appointee of the Church, South, should one be organized, all
notes and book accounts against the ministers, Church-members, or citizens within
its boundaries, with authority to collect the same for the sole use of the Southern
Church, and that said agents also convey to the aforesaid agent or appointee of the
South all the real estate, and assign to him all the property, including presses, stock,
and all right and interest connected with the printing establishments at Charleston,
Richmond, and Nashville, which now belong to the Methodist Episcopal Church."

And you will find that throughout this whole agreement they speak of the Methodist
Episcopal Church as intended to remain, and treat themselves as separated from it,
and as forming a new Church, South. Well they go on. At Louisville they form
this Church, and how do they consider it ? Let us look at the 2d volume of Proofs,
p. 59. They resolve,

" That it is right, expedient, and necessary, to erect the annual conferences repre-
sented in this Convention, into a distinct ecclesiastical Connexion, separate from the
jurisdiction of the General Conference of the Methodist Episcopal Church, as at pre-
sent constituted; and accordingly, we, the delegates of said annual conferences,
acting under the provisional Plan of Separation adopted by the General Conference
of 1844, do solemnly declare the jurisdiction exercised over said annual conferences,
by the General Conference of the Methodist Episcopal Church, entirely dissolved ;
and that said annual conferences shall be and they hereby are constittited, a separate
ecclesiastical Connexion, under the provisional Plan of Separation aforesaid, and
based upon the Discipline of the Methodist Episcopal Church, comprehending the
doctrines and entire moral, ecclesiastical, and economical rules and regulations of
said Discipline, except only in so far as verbal alterations may be necessary to a
distinct organization, and to be known by the style and title of the METHODIST
EPISCOPAL CHURCH, SOUTH."

Can anybody read this without seeing what the design is 7 that they mean to
leave the old Methodist Episcopal Church to stand, and that they mean they will
separate from it and form a new Connexion, speaking of themselves as separatists
and taking the new name of The Methodist Episcopal Church, South.

Well, now, we have their agreement. The purpose is too plain to be mistaken.
It speaks for itself. I am aware it has been stated in that Maysville case, that a
Church may change its name, and that, therefore, the name is a matter of very little
importance. But I apprehend, that when a Church does not change its name ;
where the name remains, and where a portion goes off, separates, and takes a new
organization and a new name, leaving the old name and old organization to remain,
that is a circumstance of very considerable importance, and ought to be attended to
in all cases of this kind. And I think the Court will have no hesitation in coming to
the conclusion, that the intention here of the parties in this agreement, and as carried
out by the Southern conferences, at the Louisville Convention, was that the Church
should remain the Methodist Episcopal Church, and that a new Church should be
formed, and that they should be looked upon as separatists, and take a new name.
Well, what is the effect of such a separation by agreement between the parties '
If any subject can be considered as settled, I apprehend this is settled by the law
of the land, that they leave behind them, under such an agreement, the property of
the Church, which belongs to the body that remains. I will take the liberty of reading



304

a passage from a case which was referred to by the counsel concerned with me, the
case of Baker vs. Fales, 16 Massachusetts Reports, p. 503 :

" If a Church may subsist unconnected with any congregation or religious society,
as has been urged in argument, it is certain that it has no legal qualities, and more
especially that it cannot exercise any control over property which it may have held
in trust for the society with which it had been formerly connected. That any num-
ber of the members of a Church, who disagree with their brethren, or with the minis-
ter, or with the parish, may withdraw from fellowship with them, and act as a Church
in a religious point of view, having the ordinances administered and other religious
offices performed, it is not necessary to deny ; indeed this would be a question pro-
per for an ecclesiastical council to settle, if any should dispute their claim. But as
to all civil purposes, the secession of a whole Church from the parish would be an
extinction of the Church ; and it is competent to the members of the parish to insti-
tute a new Church, or to engraft one upon the old stock, if any of it should re-
main, and this new Church would succeed to all the rights of the old, in relation to
the parish. This is not only reasonable, but it is conformable to the usages of the
country ; for although many instances may have occurred of the removal of Church
members from one Church, or one place of worship to another, and no doubt a re-
moval of a majority of the members has sometimes occurred, we do not hear of any
Church ceasing to exist, while there were members enough left to do Church ser-
vice. No particular number is necessary to constitute a Church, nor is there any
established quorum, which would have a right to manage the concerns of the body.
According to the Cambridge platform, chap. 3, <J 4, the number is to be no larger
than can conveniently meet together in one place, nor ordinarily fewer than may
conveniently carry on Church work. It would seem to follow from the very struc-
ture of such a body as this, which is a mere voluntary association, that a diminution
of its numbers will not affect its identity. A Church may exist, in an ecclesiastical
sense, without any officers, as will be seen in the platform ; and without doubt, in
the same sense, a Church may be composed only of femmes-cmert and minors, who
have no civil capacity. The only circumstance, therefore, which gives a Church any
legal character, is its connexion with some regularly constituted society ; and those
who withdraw from the society cease to be members of that particular Church, and
the remaining members continue to be the identical Church. This is analogous to
the separation of towns and parishes the effect of which, by law, is to leave the
original body politic entire, with its powers and privileges undiminished, however
large may be the proportion which secedes. And so it is of all voluntary societies,
having funds to be disposed of to charitable uses, in any particular place. A re-
fusal of a majority of the members to act, would devolve all power over the subject
upon those who might choose to persevere."

This shows that in all these cases where there is a separation, if the old Church
remains, even if the majority go away, it still continues the old Church, and, as you
find it decided in that case, retain all the rights and all the property of the Church.
A number of other cases might be cited from the Massachusetts Reports, but I ap-
prehend it would be unnecessary, and that the doctrine is firmly settled without
dispute. In the case in 9 Barr's Pennsylvania Reports, part 321, you will find the
same doctrine laid down, that the Church property belongs to those who adhere to
the ecclesiastical government, though they are in the minority. Those who depart
from the government of the Church are not to take the funds along with them.
It is perfectly immaterial whether it is done by agreement or without agreement. If
they leave the Church by consent they leave the property behind. It is very common
in the case of corporations, to pass acts to separate a portion of a town, or a portion
of a corporation. This is all done legitimately, just as strong as if there was a for-
mal agreement ; but the new town, the new parish, the new Church, does not take any
portion of the property with them. They leave that behind, and in all cases where
there is a separation from the government, or departure from the doctrine of the
Church, they also leave the property behind with the Church that remains, and thev



305

cannot call for a division of property. I will call the attention of the Court to the
case of the Attorney-General vs. Pearson, in 3 Merivale, beginning at p. 367. It
is a very long case, and runs through a considerable portion of the book.

" In this case the defendants set up a plea that they were a majority of the con-
gregation, and that they had united in the choice of another parson who was a Uni-
tarian. They had for many years been Trinitarians. In 1813, they made choice of
a Unitarian clergyman, Steward, who afterwards, in 1816, became a Trinitarian
clergyman. In consequence of this change an information was filed by the attorney-
general. The chancellor decided that it being a trust for religious purposes, a
court in equity would take complete jurisdiction that in the formation and endow-
ment of a chapel for religious worship, in which the kind was not mentioned, the
Court would for explanation resort to usage that it was not in the power of indivi-
duals to change the purposes of such an institution, if only established for Trinitarian
purposes it could not be converted to purposes anti-Trinitarian and that the Court
had nothing to do with religious doctrines, except to ascertain the purposes of the
trust, and the Court is bound to determine that question."

Here the original purposes of the trust were inquired into, if it were necessary to
inquire into religious doctrines in order to ascertain them, and that party who seceded
from the doctrines of the Church had no right to claim any portion of the funds.
You will find the same doctrine in 2 Bligh's Reports, 529, further in 2 Jacobs and
Walker, 427, and in the case of Field vs. Field, 9 Wendell, 394, in the Supreme
Court of this State, where there was a separation. That portion, though a minority,
who adhered to the course of discipline and mode of proceeding marked out by the



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 53 of 87)