Copyright
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 56 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 56 of 87)
Font size
QR-code for this ebook


would have been proper to have put it in that shape ; and it is very probable that
some of these conferences did not concur in it, on account of the generality of the
proposition. What then ought to be done in a case like that 1 Why, wait until the
subject shall be laid before the annual conferences anew, until they shall have passed
upon it in its new shape ; and when they have passed upon it fairly and fully when
it is presented in a modified form, which will bring up the entire question, fairly and
distinctly, for their consideration then it will be time to pass on the final subject, in
the disposition of this property. And all they had to do at the South was to wait a
reasonable time until this matter could be fairly disposed of. They have not thought
proper, however, to do this. What is the consequence 1 The consent of the annual
conferences, necessary to enable them to take any portion of this property according
to the agreement between the parties, has not been obtained. This agreement,
stating the terms on which they shall take this property, necessarily involves the in-
terpretation, that without the consent of the annual conferences they should not take
it, and were not entitled to it. There has not been that consent. Then how are
they entitled to it 1 Are they entitled to it independently of this agreement 1
Then they can violate the agreement ; they are not bound by it ; they can set up
something in opposition to it, when it is made the plain rule of action for the parties
in this particular case. All must abide by the agreement in all its parts. It does
appear to me that this view is decisive upon this question. Why, suppose that in
the case of a township incorporated, having property, the legislature should pass an
act authorizing a portion of the town to be set apart to form a new one, and they
should make provision, that in case certain bodies in that township should concur, a
portion of the property should be given to the new town, could they take it without
such concurrence 1 I think not. In the absence of such a provision, as separatists,
though with the concurrence of all concerned, they would not be entitled to it at all.
With such a provision, there must be a compliance with it. That is the case here.
I have shown that this Southern Church are separatists ; that they leave the Metho-
dist Episcopal Church in all its identity and entirety behind them ; that they set up
a new Church, and in that capacity are not entitled to the property in question.
They set up that agreement in their favour. But it has not been performed ; its
terms have not been fulfilled. They did not wait until the fulfilment of it could be
obtained. They thought proper to go and carry out their new organization and es-
tablish a new Church, and then claim this property. The consequence is, they are
not entitled to it. In the absence of any agreement they would not be entitled to it.
The terms of the agreement have not been fulfilled, and they are not entitled under
the agreement. In any point of view, they are not legally entitled to any portion of
this property.

The Court adjourned until Wednesday.



EIGHTH DAY. WEDNESDAY, MAY 28, 1851.

MR, WOOD, I shall not detain your Honours a long while with this case, this
morning. In fact, if I had not been so much exhausted yesterday, I should have
claimed the indulgence of the Court for a short time, and then have finished. This
case, however, is too important to be slightly passed over ; important in its interests,
in the character of its interests and parties, and in its connexion with national con-
cerns ; for, I think, in the present crisis of our country, it has a most intimate
connexion with public affairs.

The proposition to which I now wish to call the attention of the Court is, that the
Church (in reference to its property I now speak) had no power to make such a divi-
sion as is contended for on the other side, and part with the property. I do not put
this now mainly upon the idea that this General Conference is a delegated body. I
am aware of the distinction between a delegated sovereignty and a delegated agency,
in a matter of business. In the latter case, the agent continues subject to -the con-
trol of the principal ; but in the case of a delegated sovereign power, the sovereignty
controls the constituency. That is a distinction, and is one which is too often lost sight
of even in our halls of legislation. I shall proceed to state, however, the grounds
of objection, on which I rely, to any attempt on the part of this General Conference,
or the General Conference in connexion with the annual conferences, in themselves,
to undertake to divide this Church, and divide the property along with it ; for it is
particularly in connexion with the property we are now to consider the case.

I must here draw the attention of the Court to a distinction which does not appear
to have been adverted to ; and that is, that these funds are not beneficially, and even
in the point of view in which an interest is taken in a public charity, the funds of the
Methodist Episcopal Church. That Church has a beneficial equitable control over
them as managers of the charity ; but that beneficial equitable control is for the be-
nefit of the classes of persons who are designated as the objects of the charitable use.
They are, as has often been repeated, the superannuated and supernumerary minis-
ters, their wives, widows, and children. Now the Methodist Episcopal Church, if
they owned the property, or had the equitable beneficial interest in it in themselves,
might exercise an influence over that property, which would be more extensive than
they could over property of which they had the mere management. But it would
not be such a vested interest in them if they held it in that sort of politic capacity,
if I may call it so, in which charitable uses are generally held, and in reference to
which ministers of the Church, for the time being, take simply the mere usufruct ; even
then they could not alienate it. But the books draw a distinction as to the powers of
beneficiaries in a charitable use even of that description, and the case of a religious
corporation or a religious institution which has simply a management of a charity. I
will refer the Court to a case upon this subject that of the Attorney-General vs.
Wilson, 18 Vesey, 519 ; also to be found in Shelford on Mortmain, 701, 702.

The Attorney-General, vs. Wilson.
[Rolls. 1812. April 20.]

Ceases of charity estates for twenty-one years, the lessors being not mere trustees, but having
also a beneficial interest, set aside as breaches of trust by undervalue.

" The information, stating the foundation of the free school of Pocklington in the
fifth year of King Edward VI., and indentures in the first, year of Queen Mary, giving
lands to the master and usher, and their successors forever, to hold in trust for the
maintenance of the school, complained of several leases of the charity estates, for
twenty-one years, at very low rents, viz. : The 13th of August, 1800, at the annual
rent of 3, the value to be let being 92 per annum ; the 3d of December, 1800, rent



319

2 13s. 4d., annual value 141 ; 12th December, 1800, rent 1 2*. 6d., value 35;
26th November, 1804, rent 1 13*. 4d., value 26 ; and 23d November, 1805, rent
5, value 132. On the death of the late master, in 1807, the relator was ap-
pointed.

" The information, charging that the whole of the rents, amounting to no more than
63 12*. 6d., is very inadequate to the support of the school, and that the granting
such leases was a breach of trust, prayed that the defendants may be decreed to de-
liver them up to be cancelled, and to account for the full value since the death of
the late master ; and a reference for a scheme for letting the estate agreeably to the
intention of the founder.

Sir Samuel Romely and Mr. Bell, in support of the information : Mr. Hart and
Mr. ShadweU for the defendants.

" The MASTER OF THE ROLLS, [SiR WILLIAM GRANT,] (preventing the reply,)
made the decree setting aside the leases, referring to his judgment in the Attorney-
General vs. Magicood, and observing that having then had much occasion to consider
this subject, he found several cases in Duke, Vernon, and modern reports, particularly
the Attorney-General vs. Gower ; that the short duration of the term was immaterial,
and the only distinction of this from the late case was, that in those the lessors were
mere trustees, and in this instance they had also a beneficial interest ; but such
leases are not to be encouraged on account of the inconvenience both ways, the
trustees not doing their duty, and the lessees getting the land at a low rent."

In that case, although they had a beneficial interest, yet the grant, or rather the
lease, was so unreasonable that the court of equity set it aside ; but at the same time
they recognised a distinction between cases where the managers of the charity have
a beneficial interest, and where they have merely the management for the benefit of
others who are the beneficiaries. Now, in this case, the Methodist Episcopal Church
are not the beneficiaries, they are the managers of this charity for the sake of others,
who are, it is true, in some sort connected with the Church, and who take the usufruct
in some measure in ease of the Church, but they are nevertheless distinct in point of
interest. I have already stated that there "is a connexion between the officers of the
Church, when the property is given for their benefit, and the Church itself; and I showed
you a case from the first Pennsylvania Reports, where the disposition was considered
in ease of the Church. But still there is a distinction. This Church, although this
property is given in ease of it, would have no right to divert it to any other portion
of the Church, or apply it to any other interest in the Church, or at least so much
of it as may be required to fulfil the end designed to supply the beneficiaries. It
must to that extent go according to the designation of the charity, for the benefit of
those who are marked out as the objects of the charity. I believe I have already
pointed out the distinction between the identity of the Church and the beneficiaries
of this charity, as connected with the Church and the Methodist Episcopal faith. I
have shown you that you could not apply this charity to objects which were not con-
nected with this Church itself, in its organization, in its discipline, in its identity.
That connexion must be observed ; and it will not do to say that the parties, or any
persons who have the management of it, have a right to apply it to other individuals
' who .may be ministers of some Methodist Episcopal Church, or who may answer the
description of wives, widows, or children of some ministers of some other Methodist
Church, happening to be of the same faith. They must, therefore, be entirely con-
nected, and, as I before observed, in addition, that organism must be preserved, and
it must be carried out by' the Court.

Now, the annual conferences in this case must concur with the General Con-
ference in reference to the management and disposition of this charity, when any dis-
position Qan be made, because, as I before remarked, they are concerned just as
much, in their respective spheres, in the general disposition of the proceeds of this



320

charity as the General Conference itself. But if all of them concurred, the power is
not complete to undertake to divide these funds ; and before I proceed to point out
my objections, I will meet the cases advanced on the other side for the purpose
of overturning the principle I state. We are referred to the Canada Conference.
You will recollect, however, the Canada Conference was no part of the Methodist
Episcopal Church. It was simply an appendage, and it has been so treated through-
out, and a connexion of a temporary character. I will call the attention of the Court
to one or two items upon this subject. In 1824 an attempt was made to divide this
from the Church, and in their memorial they point out the nature of this connexion :

" Sensible as we are of the advantages derived from the connexion with which you
have kindly favoured us, we are nevertheless constrained by the circumstances in
which we find ourselves placed to request a separation."

You there find that the Canada Conference is treated as being no integral part of
the Methodist Episcopal Church, but connected with it simply by a temporary union,
or a temporary alliance, if I may so call it. Well, now, in respect to all that class
of cases a distinction has been drawn. If your Honours will advert to the case of
Miller vs. Gable, 2 Denio's Reports, you will find great stress was laid upon the fact
that that particular Church formed no part, no integral part, of the German Reformed
Church, but that it was connected with it in the nature of a temporary alliance.
That was precisely the case in the Presbyterian Church controversy, in regard to the
Churches in the Western Reserve. It was there held and finally carried out in the
decisions in Pennsylvania, that it was not a constituent branch of the Church, but a
temporary alliance.

I apprehend, therefore, that that Canada case has no bearing upon the subject.
Besides, no part of the property, finally, was given to the Canada Conference. And
when you come to look at the votes upon that subject, you will find that the Southern
conferences, almost to a man, voted against their taking any portion of this property.
You will find that fact stated in page 47, First of the Proofs. It is certainly true
that the Church finally did make some allowance, and perhaps the remark made by
the counsel on the other side was correct, that if they were not entitled to anything
the General Conference was wrong in giving them such privileges as they did. The
answer to all that is, that it does not alter the principle. They can draw nothing
from that case to support them in regard to the power of this Methodist Episcopal
Church to cut itself in twain, and then, as managers of this charity, to undertake to
divide the funds in this way.

The counsel who is to close the argument on the other aide, has referred to a case
in 1 Peters, 542, as having some analogy to this subject. He refers to the Consti-
tution of the United States, which gives to the federal government the power of
regulating their territories, and then he says, it is claimed by the Supreme Court of
the United States, in this case in 1 Peters, that they were authorized to establish
4 over the territory acquired by treaty a territorial government, in virtue of that power
which is contained in the Constitution. That is all certainly true. Such a decision
was made, and I believe no sound jurist will ever attempt to impeach its correct-
ness. They had the power. It is in the very nature of the power granted. When
you look at the subject of the grant, which had relation to the exercise of a sovereign
power, it was in the very nature of things that that power should be exercised by
creating a subordinate delegated sovereignty. But what bearing has it upon the
present case 1 If this Methodist Episcopal Church, in the extension of her territory,
had created and set up a new annual conference under their control and jurisdiction,
there would have been some analogy. Then it would have been simply the creation;



321

of a subordinate government under their control, and it would have preserved the
unity and identity of the entire Church. But that is a very different affair from a
division of the Methodist Episcopal Church, creating a new jurisdiction altogether
and entirely independent of the Methodist Episcopal Church. Now, suppose, in
order to illustrate this case, that under this power to regulate territories, the government
of the United States should undertake to separate this territory, to declare it inde-
pendent, and to set up an entirely new and independent government free from their
control ; if they were to do that, there would be some analogy. But, I apprehend,
Chief Justice Marshall never would have undertaken to sanction such a proceeding,
on the ground that the Constitution in that passage referred to authorized such a
course to be taken. That would present a case somewhat analogous to this, and I
will venture to say, such a case never will occur. If ever this country should be
divided, if ever a portion of it should be separated from the rest, and it should finally,
in the course of events, come to be fully established, it must rest on some power,
some mode of proceeding, out of the Constitution and not there provided for ; and
if ever this Methodist Episcopal Church is divided, as it has been in fact divided,
and if ever they take the property in consequence of that division, without a positive
agreement between the parties on the subject, it must be by force of some principle
which you cannot find in any provision in the government and discipline of the
Church. It does not provide for any such case.

Now, I submit that there can be no such power; and the only way that I can see
in which an agreement to divide this property, after dividing the Church, can be car-
ried out by this Court, would be upon the principle of compromise ; and if these par-
ties had fairly and without precipitation gone on and carried out that compromise
if the opposite party had gone regularly on under the agreement, and waited until
the concurrence of the annual conferences had been obtained, pursuant to the terms
of that compromise, and had made the arrangement then I can see that this Court
could have carried it out ; but even then it would have required the sanction of this
Court to give it effect. Upon this subject I refer to Shelford on Mortmain, 608,
referring to the case of the Attorney-General vs. The Merchant Tailors' School,
7 Vesey, 233, and Andrew vs. Trinity Hall, 9 Vesey, 535.

" Trinity Hall in Cambridge, devisee in remainder after estates for lives, in trust,
for founding four new scholarships, for making additional buildings to that college,
and for founding four new fellowships, were held not to have accepted the devise, by
acts done merely for the preservation of the fund ; and upon their refusal to accept it,
after the death of the tenant for life, the Court directed the master to receive a pro-
posal in order to have it considered whether it could be executed cy-pres ; and the
testator having expressed in his will, that no person should be qualified for the
scholarships and fellowships he intended to found, unless they should have been edu-
cated in Merchant Tailors' School, the master was particularly directed to receive a
proposal on the part of that school, for the establishment of a charity within the terms
of the testator's will. A compromise afterwards taking place to apply part of the
fund to an establishment at St. John's College, in Oxford, with which college the
Merchant Tailors' Company are connected, and to give the rest to the next of kin, it
was, with the consent of the attorney-general, established by decree. And the next
of kin, after this compromise, having filed a bill against Trinity Hall, for an account,
the bill was dismissed, the Court holding the next of kin bound by the compromise."

And yon will find also in the case of Black vs. Ligan, Harper's South Carolina
Reports, 215, a case of this character and description, in which Chancellor De Saus-
sure advised and recommended a compromise, and even went the length of delaying
the decision of the Court to give the parties an opportunity of carrying it out. But
in all these cases it must be done under the sanction of the Court. In the case of an

21



822

ordinary alienation of property held for charitable uses, the sanction of the Court was
required, and for this plain reason : that parties beneficially interested have not such
an interest as will enable them to alienate it, and in all cases if a man purchases and
takes a lease from the trustees of the charity which is improvident and unreason-
able, the Court of Equity will set it aside, holding that a party taking a lease of such
property or land, takes it sub modo, and it ought to be set aside if the chancellor,
who represents the interests of the beneficiaries of the charity, should think that the
lease is improvident and unreasonable. I refer the Court upon this subject to Shel-
ford, 658 and 698.

The Court will find a striking case in the Attorney-General vs. Warren, which is
to be found in 2 Swanson, 291 ; a case of a charity lease which required the sanction
of the Court. I will refer you also to Shelford on Mortmain, 698. If in the case
of an ordinary alienation of property which is held for charitable purposes, the trus-
tees and parties having the management are bound to a provident alienation, if that
alienation is considered under the control and direction of the Court, and if an aliena-
tion without any fraud, without any mistake, can be set aside merely because it is
unreasonable or improvident, it shows how completely the disposition of property
which is set apart for charity and other public uses, is placed under the direction and
control of a court of equity ; and the reason to which I have adverted shows the pro-
priety of it. There are no beneficiaries to look after this charity none that have a
vested interest in it even in equity. If this is the case in ordinary alienations of pro-
perty held for such uses, how much more strongly must it be the case when you come
to a subject like this, which stands out of all ordinary rules of proceedings, which is
not provided for by the government and discipline. I mean the case of a division of
the Church, and a division taking place on account of disputes and difficulties arising
in the Church. In order to sanction such a division, I mean when you carry it into
the property, and more especially when you carry it to the case of property apper-
taining to a charity where that Church have simply the management of the charity,
how mucTi more important is it that every disposition of that kind should be made un-
der the sanction and under the control of a court of equity, whose office peculiarly
is required to protect this kind of charity.

Now I will venture to say, that if a little more time, and a little more patience,
had been exercised in this case, that compromise would have been fully carried out.
It is strange that in these religious cases, when the parties once get a little, heated,
they seem to be less disposed to exercise that patience and forbearance than even in
ordinary cases of controversy between private individuals. The same hot haste
occurred in that division in the Society of Friends to which I have frequently alluded ;
and Chief Justice Ewing, in his decision, at page 58, remarks, in substance, that if
either party had not fallen off from the ancient principles of the Church patience,
forbearance, brotherly kindness, and charity the meek and mild spirit which has
been beb'eved to characterize and adorn the genuine Friend would, under the bless-
ings of Providence, have wrought out a perfect reconciliation.

I really believe, that if the members of this Church had acted with a little more
caution, a little more forbearance, a little more of that charity which Saint Paul has
so beautifully described, and which, I believe, this society have generally striven to
act up to if they had carried that out in this controversy, I think I may venture to say,
that although they might not have united again, if the division had been consummated,
there would have been an arrangement not only as to the ecclesiastical separation,
but as to this property, which would have restored at least between them brotherly
kindness, and perhaps more of the unity of spirit than might be expected, considering
the condition of our public affairs, if they had actually continued together. But they

21*



323

did not take this course. Any man who will read that Plan of Separation, must see
that it contemplated a full and fair consideration of this subject in the respective
annual conferences of the South, and that upon such consideration, before any divi-
sion was actually to take place, they were to be brought to the conclusion that that
separation was necessary the strongest language which could have been used upon
that subject. The deliberations and decisions of those conferences would have
required time, and all great questions of this kind ought to receive time for their
settlement and adjustment. That would have given the General Conference, North,
and the leading men in that Church, an opportunity of going before the other annual



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 56 of 87)