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 72 of 87)
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Motions were made and argued, pleas and demurrers were filed in the cause. The
case was continued several times upon application of the United States district
attorney. Finally, after numerous continuances by the Government, the cause was
dismissed at the November term, 1865, by direction of the Attorney-General of the
United States.

"The proceedings in the case for confiscation were conducted with as much
regularity and as little interruption as if they had been instituted in a court of
New York. Judge Catron, one of the Supreme Court judges of the United States,
held the court and presided with as little obstruction or threat from the enemy as
he did in the Supreme Court at Washington, and the national authority was
enforced there through the courts, and they administered the laws, local and
national, so far as applicable to controversies between citizens, as completely and
effectually within the territory protected by the Federal armies as could have been
done in any loyal State. This condition of the country gave the people at Nash-
ville the same protection under the laws of the United States that is so distinctly
provided for in the order of General Buell, viz: 'If the necessities of the public
service should require the use of private property for public purposes, compensation
is to be allowed.'

"On the 24th day of May there was nothing in Nashville to prevent the United
States, through its courts, from endeavoring to assert its right to confiscate this
property, and when the property was seized and taken possession under such pro-
ceedings, and while it continued in the custody of the court, it was not liable to
seizure or capture by the Army.

" But the Government never claimed this property as captured. In both instances
when the Government seized the property, first under confiscation proceedings and
then under order of General Thomas, it was seized for confiscation under the penal
statutes of the United States, and not as property the Government had acquired in
any other way.

" These statutes provide for condemnation after trial had in the courts. They
furnish no authority for taking property, even of rebels, without due course of law.
The Army can not enforce these statutes. It certainly had no right to take jurisdic-
tion under confiscation and oust circuit courts of the United States."

Again, neither a military commandant nor the courts had the right to confiscate
the property of this corporation. "Confiscation was possible only to the extent
and in the manner provided by the acts of Congress. These acts were passed on the
6th of August, 1861, and on the 17th of July, 1862. No others authorized the con-
fiscation of private property, and they prescribed the manner in which alone confis-
cation could be made. They designated Government agents for seizing enemies'
property and they directed the mode of procedure for its condemnation in the
courts. The system devised was necessarily exclusive. No authority was given to
a military commandant, as such, to effect any confiscation. And under neither of
the acts was the property of a banking institution (a corporation) made confiscable.
Both of them had in view the property of natural persons who were public enemies,
of persons who gave aid and comfort to the rebellion, or who held office under the
Confederate Government, or under one of the States composing it. lu no one of
the six classes of persons whose property was by the act of 1862 declared subject to
confiscation was an artificial being included." (Planters' Bank v. Union Bank, 16
Wallace, p. 483.)

The decision of the court that property is not confiscable is a decision that the
persons or corporations who own such property have the right to enjoy it.

S. Eep. 1416 4


The error into which the United States district attorney had fallen in his endeavor
to confiscate the property of this publishing house corporation was recognized in
the subsequent dismissal of the proceedings.

After General Buell had entered Nashville the corporation of book agents con-
tinued its business of publishing books, tracts, etc., and doing job work for its cus-
tomers, until the property was taken possession of under the confiscation proceedings,
and after the property was replevied it still continued business and remained in the
possession and custody of the book agents until December, 1863, when the entire
establishment was taken possession of by the Army.

There is no contention that this publishing house or any of the agents authorized
to represent said corporation did anything, after the Federal Army took possession
of Nashville, not in perfect keeping with their obligations as law-abiding citizens.

On the 28th of December, 1863, while the confiscation proceedings were pending,
General Thomas issued an order, addressed to Col. J. L. Donaldson, United States
quartermaster at Nashville, stating :

"It has been for a long time in contemplation at these headquarters to make an
army printing office of the Methodist Publishing House in Nashville. The house has
been confiscated by the United States Government and is represented as being in
every way eligible for the printing of blanks and orders and the binding of the
same, and by being run by the Government would save from $25,000 to $30,000 per
year to the Government, without counting loss of time in getting work beyond the

.This order asserts that the house "has been confiscated." Such was not the fact.
Proceedings had only been instituted to confiscate, and it was in the custody of the
court when General Thomas ordered its seizure.

It is clear, then, that the property was not taken possession of as captured prop-
erty. General BuelFs order protected it. General Thomas did not withdraw this
protection. On the contrary, he assumed that it had been confiscated.

It was not seized, with reference to its usefulness, in any tactical or strategic
sense for the Army. It was seized to save money in printing for the Army, and as a
convenience for the civil department of the Government. The law of military
necessity did not apply. A publishing house is in no respect a part of army equip-
ment. Only the protection given by General Buell's proclamation and the custodian-
ship of the United States court placed this property beyond the reach of the
ordinary rules which apply to the enemies' property. When the Government gives
such protection to property, it assumes to pay for it, if any urgent necessity requires
it to apply the property to the public use.

The court alone can render judgment of forfeiture in such cases, and can alone
condemn and confiscate it; and when it is proceeding to adjudicate in such a man- '
ner no other authority can take the matter out of its hands and confiscate it. Con-
gress could not do so much, and it is not possible that a military government can
lawfully exercise such authority; and yet this is the precise attitude of this matter.
The property was seized by order of General Thomas as confiscated property while
the United States was suing in its courts for its condemnation.

The Government admitted by its refusal to prosecute the suit, and the court
decided, that this property never was forfeited to the United States by the crime of
its owner. The military authorities never seized the property as " captured or aban-
doned property." In any view of the case the property remained the property of the
"Book Agents of the Methodist Episcopal Church South" corporation, and was not
changed by either its legal or military custody. It follows, therefore, that the
order of General Buell, stating that " if the necessities of the public service should
require the use of private property to public uses, compensation is to be allowed,"
applies in its fullest sense to the claim of this corporation, and especially since this
"law of compensation declared by General Buell is the same that is found in the
Constitution of the United States and in all States regulating the right of eminent

It is clear, therefore :

First. That even though the publishing house might have been considered enemy's
property prior to the occupation of Nashville by the Federal Army, that from
and after February 26, 1862, when General Buell took possession of Nashville and
issued his proclamation, it could not be so considered ; that the occupation of Nash-
ville by the Federal Army carried with it " the full measure of protection to persons
and property consistent with a necessary subjection to military government." (" The
Venice," 2d Wallace, p. 258.)

Second. That the property of the Book Agents of the M. E. Church South was not
subject to confiscation, and especially was this true of this institution as a corpora-
tion. (Planters' Bank v. Union Bank, 16 Wallace, p. 483.)

Third. That in view of the protection vouchsafed to the citizens of Nashville under
the proclamation of General Buell and the laws which govern under such circum-
stances, this publishing house corporation is entitled to compensatiou for the use,
occupancy, and injury inflicted upon its property by the Army.



This -was understood to be the rale applied by the War Department in the payment
of church claims, on the dates specified, at various points in Tennessee, for use, occu-
pation, and injury inflicted upon said churches by the Army, as follows, to wit:


Amount of


Presbyterian, Knoxville, Tenn

$2, 600. 00

June 20, 1865

Methodist Episcopal, Knoxville, Tenn

3, 600. 00

Jan. 5, 1867


June 11,1866

Baptist, Knoxville, Tcnn

1, 200. 00

Sept. 9, 1867

Cumberland Presbyterian, Chattanooga, Tenn

2, 450. 00

Feb. 3, 1866

3, 640. 09

Jan. 23, 1867

Methodist Church, Carthage, Tenn ......... ..

1, 200. 00

Sept. 5, 1866

Presby tarian Church, Nasn ville, Tenn

4, 599. 46

May 20, 1865

First Baptist Church, Nashville, Tenn

5, 000. 00

Nov. 29, 1865

Second Baptist Church, Nashville, Tenn .. ...... ..................


Apr. 4, 1866

(Report 1783, House Committee on War Claims, third session Fifty-third Congress,
pp. 18 to 21, inclusive.)

This rule should apply in all cases, and certainly none the less in dealing with a
corporation representing a great charity a purely eleemosynary institution, one
" created for the purpose of advancing the cause of Christianity by disseminating
religious knowledge and useful literary and scientific information," and one which,
under the organic Jaw of the church, sets apart and devote* its entire net proceeds for
"the benefit of the traveling, supernumerary, superannuated, and worn-out preachers,
their wives, widows, and children."

The membership of the church represented by this publishing house extends over
33 States and Territories of this Union, and the net proceeds of the publishing house
are distributed over the same territory, and the statement of the book committee on
file with the War Claims Committee shows that "in the distribution of its charities
no discriminations are made; that the questions have never been asked, Was he loyal
or disloyal? Was he a Federal or Confederate soldier t Is he a Republican, Demo-
crat, Populist, or Prohibitionist? That all funds have been distributed without
reference to such matters, upon a just and equitable basis, giving to the needy of
Illinois, Indiana, and other States and Territories of the North the same pro rata that
is accorded to the needy of Kentucky, Tennessee, and other States of the South."

Without reference, therefore, to the war or the relations that a portion of the mem-
bership of the M. E. Church South may have sustained to it, or the inhibition which
exempts the property of the Book Agents' corporation from confiscation or other dis-
abilities arising thereunder, it is due to this great charity to aid in its restoration,
and such action should be taken by Congress as will be productive of this result.

Congress in its wisdom has applied the apparently universal law of natioas, as
embraced in General Order, No. 100, issued by the Adjutant- General and approved by
President Lincoln in 1863, which, as a general rule, throws the garb of protection
around " the property belonging to churches, to hospitals, or other establishments
of an exclusively charitable character," and gone somewhat beyond it in dealing
with the claims presented on behalf of the William and Mary College and the
Washington and Lee University, destroyed by the United States troops, by appro-
priating the sums necessary to secure the restoration of these institutions. From
the use of these grounds and buildings the United States received no material bene-
fit, and yet Congress, very properly, appropriated money to restore them. How much
more essential and proper, therefore, for the Government to provide for the restora-
tion of the charity represented by this publishing house, which the Army of the
United States occupied and which, as shown by the statement of Colonel Wills, the
United States officer in charge, enabled him, in the " use of the large and ample
machinery, extensive buildings, type, and printing materials of said publishing
house, to furnish the Army printing at an enormous saving of money to the

The petitions laid before Congress some twenty years ago, as shown by H. R. 352,
submitted to Fifty-fourth Congress, "represent that many of the people of the
United States, of all sections, earnestly desire that Congress will give just relief in
this matter. It is believed that no private claim was ever presented to Congress that
was so extensively and earnestly supported by various memorials and recommenda-
tions. That four are from State legislatures; one from the general conference of the
Colored Methodist Church; others from eight of the bishops of the Methodist Epis-
copal Church, viz, Bishops Morris, Janes, Simpson, Ames, Bowman, Merrill, Peck, and
Haven, and many other ministers of that church ; others from the mayor and council
of Nashville, and of Edgefield, Tenn., another from the governor and most of the
officials, national and State, and municipal of Nashville; another from all the judges


of the supreme court of Tennessee, with its entire bar; another from about two hnn-
dred merchants, bankers, and business houses of Nashville; another from the chiefs
of the Indian nation west of Arkansas; others from all the annual conferences of the
Methodist Episcopal Church South ; others from many of the leading ministers of
the Methodist Episcopal Church, chiefly iu New York, Baltimore, Washington, etc. ;
and others from nearly a hundred colleges and high schools in many parts of the
country ; and still others from about three thousand individual petitioners in about
one hundred cities and towns in twenty-five States. These last include about one
hundred and twenty governors, ex-governors, judges, and Members of Congress, and
full fiye hundred other prominent men in civil office, the remainder being mostly
lawyers, doctors, and clergymen of all denominations, and other substantial citi-
zens, white and colored, and including all religions beliefs, Jews, Catholics, and

Need anything be added f If so, the numerous petitions and urgent letters of
earnest appeals from all classes of people, representing the various church denomi-
nations ; and all classes and shades of political opinion presented to Congress at
this session, and written to Senators and Representatives, will attest the earnest aim
to have Congress give the relief prayed for by such action as may be necessary to
restore this charity.

These memorials, letters, and petitions, it may well be said, " indicate a sentiment
which is honorable to the people and most gratifying to all who desire that onr past
differences may cease to be remembered as causes of present or future discord, but
may only be adverted to as admonitions to warn us against like evils."

Congress, it may with regret be said, has not been able to agree upon a sum satis-
factory either to the claimants or itself, which ought to be paid, and it is because of
this inability to agree that S. 2962 has been submitted. This bill refers the find-
ing of the sum to be paid to the Court of Claims, with authority to render judg-
ment, in the hope and belief that speedy and proper relief may be thus afforded, and
that the sum thus found shall be just alike to the United States u.nd the 'audable
charity the claimant represents.


Mr. STAKLMAN (continuing). That statement was sent out just before
the Fifty- fifth Congress convened. I have not the second circular here
which was sent out at the same time. In that second circular special
attention was called to the number of new Members and Senators-elect,
and the intervention of our friends was asked. The result was that
when the Fifty- fifth Congress met there was a very decided feeling here
in favor of the passage of the bill. I may say that in addition to these
circulars I had written to a large number of my railroad friends all over
the country and to my newspaper friends also (because I own a news-
paper), transmitting to them the printed statement of the case and asking
them for help, and to use their influence and good will to help us to get
a hearing which would promote the consideration of the claim. They
responded. I will say to you very frankly that one of the strongest let-
ters written in behalf of the claim was written by Collis P. Huntington.
He is probably not a churchman. I do not know that he cares much
about the church ; but he was impressed with the statement. He knew
me personally, and lie knew that I was decent, or at all events he
thought so, and he said, " When Stahlman asks me to consider a ques-
tion, I will do it." And he did it, and probably the strongest letter
written on the subject was written by Mr. Huntington. Other railroad
men did the same thing, and many of the newspaper men likewise. The
Fifty-fifth Congress met, and I came here. The Senate committee in
the extra session had again passed the Court of Claims bill.

These publishing house people did not know how. long it might hang
fire in the Court of Claims, and they preferred a direct appropriation,
although they believed the Court of Claims would have allowed them
more money than the direct appropriation would give them. The House
committee reported again in favor of a direct appropriation. Barbee
& Smith, at my suggestion, wrote to every Senator. I did not seek to
make myself conspicuous or offensive and I do not think there are more


than two or three Senators on the committee whom I know personally.
Barbee and Smith wrote to Senators asking them to place the claim
upon the omnibus appropriation bill for a direct appropriation of
$288,000, and the Senate committee did so. The House committee had
reported two bills, one sending the matter to the Court of Claims, and
the other making a direct appropriation of $288,000. On consideration
of all the matters in connection with it, and from what I knew of the
situation in the Court of Claims, the delays incident to it, and the
amount of interest which would be lost by the de'ay, the Representative
from the Nashville district, Mr. Gaines, was requested to have the direct
appropriation bill substituted for the Court of Claims bill when it came
up in the House. That matter was discussed in the House for three
consecutive Fridays. Finally the bill, upon its merits (I say upon its
merits, for no question was raised as to a fee or anything like it), passed
the House, notwithstanding the opposition of the Speaker, by a vote
of 190 to 67. It came to the Senate just as soon as it passed the House.
I did not worry the chairman of the Senate Committee on Claims ; I did
not worry any members of that committee ; I have not made myself disa-
greeable about the matter to Senators. I have acted the part of a dig-
nified gentleman. As soon as that bill passed the House I dictated a
telegraph message to Barbee and Smith asking them to invoke the aid
of Senator Bate and Senator Pasco to secure the passage of the House
bill independent of the omnibus bill, because I had doubts as to whether
the omnibus bill covering such a large volume of claims could pass the
House. I was not advised whether that request was carried out. Prob-
ably it was. But I will say this, that in addition to that request I wrote
letters (I did it as the attorney of these people, realizing the situation)
to the honorable chairman and members of this committee; sent them
to Barbee and Smith at Nashville: asked them to look them over, and
if they approved of them to transmit them to the Senators who were
members of the committee, asking them to please report the bill favor-
ably as an independent measure, because they were of the opinion that
the claim in the omnibus bill might not pass. The following is a copy
of the letter in question :


Chairman, United Slates Senator, Washington, D. C.

DEAR SIR: In November last we had occasion to write you respecting the claim
of the Book Agents of the Methodist Episcopal Church, South, and the Committee on
Claims of the Senate, of which you are chairman, appeared to appreciate the justice
of our cause and recommended the insertion of a provision in what is known as the
omnibus bill for an appropriation of $288,000 to reimburse us for the use of and
injury inflicted upon the publishing house by the Federal Army during the war.

A bill similar to the provision inserted by the Senate committee in the omnibus
bill passed the House to-day. In view of what your committee has already done
for us respecting the matter we are persuaded that it will not hesitate to recommend
the House bill favorably and to ask the Senate to pass this bill.

The fate of the omnibus bill in either the House or the Senate can hardly be pre-
dicted and it is therefore desirable that our bill, which has already passed'the
House by such a large majority, shall have the opportunity of being considered by
the Senate upon its own merits. We are satisfied that you will be willing to give it
this direction.

Inclosed herewith yo*u will find a pamphlet covering all of the points relating to
the merits of the House bill, which we trust you will read and after its perusal we
hope you may see your way clear and that it will be your pleasure to aid us in this
matter; being assured in advance that whatever service you may render to the
church shall be made known and greatly appreciated by the entire membership of
the church.

Very truly, yours, BOOK AGENTS.

The CHAIRMAN. Were these letters signed by Barbee and Smith t
Mr. STAHLMAN. Yes, sir. Pending the action of the Senate com-


mittee, I do not recollect having spoken to a solitary member of the
committee, except to the distinguished chairman in a casual way in
the restaurant of the Senate. He recognized me and said, k ' Do not
trouble yourself any more about that bill. The committee, in my judg-
ment, will report it, and the Senate, in my judgment, will pass it."
That is my recollection of the conversation.

The CHAIRMAN. I do not recollect any conversation about it myself.
I do not recall your ever saying anything about the claim except when
you brought Mr. Tate's letter, at the time you appeared before the com-

Mr. STAHLMAN. It was a casual conversation. You were just pass-
ing by. It made an impression on my mind.

The CHAIRMAN. It was after we had the bill before us, I suppose?

Mr. STAHLMAN. Exactly. I think I said something to Senator Clay
about it; that it was important to get the bill reported speedily and
that I hoped he would use his efforts in that direction, and my recol-
lection is that he said he would.

The CHAIRMAN. Come down to the passage of the bill.

Mr. STAHLMAN. I have just one little addenda to make to what I
have stated before, and then I will come to the time of the vote, or a
day or two prior to it. Before the holidays in 1897 I knew that the
bill was on the Calendar so that it would be reached.

The CHAIRMAN. You mean on the Calendar of the House?

Mr. STAHLMAN. Yes. All that we would require was a direct inter-
est to be taken in the bill by the men who claimed to be friendly to it.
I talked with several on whom we relied for support, but who seemed
to be indifferent. I wrote Barbee and Smith a letter dated December
16, 1897, stating all the facts as I saw them at the time, and Barbee and
Smith sent these people the facts in a circular letter dated December

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 72 of 87)