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 81 of 87)
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Mr. Gaines read the letter, as follows :

NASHVILLE, TENN., March IS, 1897.

Member House of Representatives, Washington, D. C.

DEAR SIR : Inclosed herewith you will find copy of Senate bill 2962, designed to
confer jurisdiction on the Court of Claims in the case of the Book Agents of the
Methodist Episcopal Church South against the United States. You will also find
herewith a pamphlet explaining the nature of this claim.

A claim for the use of the Publishing House by the Army was presented to Con-
gress in 1872. Bills were introduced at different sessions, and at six different times
reports were made favoring the payment of $288,000. At the last session of Con-
gress, when the matter was being considered by the Senate Committee on Claims,

S. Eep. 1416 '8


there was some question raised as to the amount that ought to be paid, and rather
than have the church placed in the attitude of securing the payment of a sum which
might be considered by some as not due, it was agreed to submit the matter to the
Court of Claims, and the bill herewith was drafted by the committee, unanimously
reported, and passed by the Senate without opposition, in May, 1896, transmitted to
the House and reported favorably by the House committee, which, it is proper to
say, had, previous to the action of the Senate recommended a bill for a direct appro-
priation of $288,000.

The claim was originally about $450,000, but the friends of the church, in the
hope of being able to secure payment in 1877, agreed to accept $288,000. We do not
think that we ought to be asked to accept any less than that. Really, we feel that
we ought to have more, but we are willing to let the question as to the amount be
determined by the Court of Claims. We should have undoubtedly been able to
secure the passage of this bill through the House at the last session but for the fact
that it was low down on the Calendar and could not be reached in the regular order,
thus requiring special recognition from the Speaker, which the Speaker did not
seem disposed to give, alleging that it would involve recognition on a large number
of other claims aggregating millions of dollars, which, in our judgment, was a mis-
taken notion, since the unpaid claims of this nature, as shown by the pamphlet here-
with, aggregate less than $1,000,000, and the passage of our bill, therefore, would not
have involved the Government to any great extent.

We know you are a friend of the church, and as the Representative of this Con-
gressional district we hope you will take this matter in hand, introduce this bill,
have it promptly referred and promptly reported by the committee, so that it may
be put on the Calendar early. The importance of having it put on the Calendar as
one of the first reported bills is apparent, in view of the indisposition of the Speaker
to allow such bills to come up -out of the regular order. There is really no reason
why the committee should not make a report on the first day of its session, and if
you can secure such a result there will, in our judgment, be no trouble about the
passage of the bill. Mr. McMillin and Mr. Richardson both understand the nature
of the measure very fully, and we feel assured they will aid you to any extent in
their power to secure a prompt report from the committee on the bill. We have
written them to-day, asking them to cooperate with you.

Mr. Stahlman, who, in connection with a large number of other matters, has been
giving our measure some attention, will be in Washington again within the next
few days, and he will be glad to talk with you about the matter. Our Dr. Barbee
will likewise be in Washington within the nextten days, and will take pleasure in con-
ferring with you. In the meantime we hope you will see your way clear to have the
bill introduced promptly, sent to the committee, and reported, so that it may be
entered on the Calendar as one of the first bills.

If for any reason you do not feel that you can introduce and give this bill your
active support, we will thank you to hand it to Mr. McMillan, who, we are sure, will
take pleasure in introducing it promptly. In this connection let us say that we
endeavored to reach you on Friday, so as to have a conference with you on the sub-
ject, but found, much to our regret, that you had left for Washington.

Believing that you will comply with our request, we beg to thank you in advance
for the efforts you make to secure the passage of the measure.
Sincerely, yours,


The CHAIRMAN. You may state what you did in that connection.

Mr. GrAiNES. The bill which they inclosed I took bodily and intro-
duced it as a bill of the session, referring the matter to the Court of
Claims. Here is a printed statement of fact relating to the claim one
of the inclosures sent me in this letter.

The statement is as follows :

Statement of facts relating to Senate bill 2969 to confer jurisdiction on the Court of Claims
in the case of the Book Agents of the Methodist Episcopal Church South.

The facts with respect to this claim are taken mainly from House Report 352, sub-
mitted by Mr. Lester, from Committee on War Claims, to Fifty-fourth Congress,
and, briefly stated, are substantially as follows :

"The Book Agents of the Methodist Episcopal Church South" is a corporation
chartered by the legislature of Tennessee in 1854. The object of this institution is
"to advance the cause of Christianity by disseminating religions knowledge and use-
ful literary and scientific information in the form of books, tracts, and periodicals."

The net proceeds of the publishing house, established at Nashville by and under
the control of this corporation, are, as provided under the organic law of the church,


set apart "for the benefit of the traveling, supernumerary, superannuated, and worn-
out preachers, their wives, widows, and children."

Under this organization, and with this object in view, large sums of money were
accumulated through contributions and other sources for the purpose of establish-
ing an extensive publishing house plant in Nashville, Tenn., and such a plant was
established and was in full and successful operation when the war between the
States broke out in 1861, and up to the time the Federal army, under General Buell,
reached Nashville in February, 1862.

When, after the fall of Fort Donelson, the army of General Buell reached the
vicinity of Nashville, and was camped on the opposite side of the river from the
city, it appears that the mayor of Nashville, with city officials and citizens (includ-
ing among the latter the present chairman of the book committee of this publishing
house), met General Buell and informed him of the city's condition, and invited him
to occupy and protect the city, and that General Buell "expressed gratification at
the proceeding," and assured the deputation "that protection to both persons and
property of all peaceable citizens would be fully extended by the Army of the United
States," and requested the mayor to so inform the people by proclamation. Where-
upon the mayor, on the 26th of February, 1862, issued his proclamation, stating,
among other things, that "the committee representing the city authorities and the
people have discharged their duty by calling on General Buell in Edgefield on yes-
terday. The interview was perfectly satisfactory to the committee, and there is
every assurance of safety and protection to the people both in their persons and their
property. I therefore request that business be resumed and all our citizens of every
trade and profession pursue their regular vocation."

On the same day (February 26) General Buell issued a proclamation, in which,
among other things, he said:

" We are in arms not for the purpose of invading the rights of pur fellow-country-
men anywhere, but to maintain the Union and protect the Constitution. * * *
Peaceable citizens are not to be molested in their personal property; all wrongs to
either are to be promptly corrected, and the offenders brought to punishment," etc.
"If the necessities of the public service require the use of private property for public
purposes, compensation is to be allowed," etc.

General Butler, in his proclamation upon entering New Orleans, stated that "all
rights of property of whatever kind will be inviolate, subject only to the laws of the
United States."

The Supreme Court in the case of "The Venice, "decided that this clause "only
reiterates the rules established by the legislative and executive action of the National
Government in respect to the portions of the States in insurrection, and occupied
and controlled by the troops of the Union ;" and that "wherever the national troops
have established order under national rule the right of person and property has
been in general respected and enforced."

There was no formal surrender at New Orleans or Nashville, but in Nashville there
was formal submission, while in New Orleans the mayor refused to give the pledge
of submission.

The orders or proclamation of General Buell were much broader and more definite
than General Butler's; they reached to the conduct of officers and men, enjoining
them against all interference with property, etc., and expressly provided for com-
pensation for property taken for public use.

There can be no doubt but what the proclamation and order of General Buell
were intended and should have the effect of giving a "full measure of protection to
persons and property consistent with a necessary subjection to military govern-
ment," and that from and after February 26, 1862, citizens of Nashville who remained
peaceable could not be regarded as enemies or their property as enemies' property.

The people of Nashville after that period and until the close of hostilities engaged
freelj in their business pursuits; the courts were open; the civil administration of
the law prevailed; there was no disturbance of the relations which should exist
between the military and civil authorities, and it is owing to this condition of affairs,
satisfactorily established by history in connection with this property and the use of
it by the Army, that furnishes abundant foundation for this claim. There can be no
doubt but what the property was protected by the proclamation of General Buell.
This fact derives additional force from th proclamation of the President, dated
August 16, 1861, in which he declares certain States and parts of States in rebellion
and exempts States and parts of States and such territory as "may be from time to
time occupied and controlled by forces of the United States engaged in the dis-
persion of said insurgents." And in this connection it may be stated that during the
entire time from February 26, 1862, to the close of the war the city of Nashville was
in undisturbed possession of the Army of the United States.

On the 24th of May, 1862, a libel of information was filed by the United States dis-
trict attorney in the circuit court of the United States to sequester, condemn and
sell, and to confiscate the proceeds of the property, real and personal, of the corpora-
tion known as "The Book Agents of the Methodist Episcopal Church South." On


the 3d of June, 1862, the corporation interposed its claim to the property, gave
security for costs, arid asked to be allowed to intervene for its rights of property and
possession. The bond to replevy the property was filed on the 4th of June, 1862.
Motions were made and argued, pleas and demurrers were tiled in the cause. The
case was continued several terms 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 regu-
larity 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 Nashville the same protec-
tion 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 of 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' prop-
erty, 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 mili-
tary 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 Con-
federate Government or under one of the States composing it. In no one of the six
classes of persons whose property was by the act of 1862 declared subject to confisca-
tion 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.

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 Fed'eral 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 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 Ohio."

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 Buell's 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 neces-
sity did not apply. A publishing house is in no respect a part of Army equipment.
The protection given by General Buell's proclamation, and the custodianship of the
United States court, placed this property beyond the reach of the ordinary rules
which apply to 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 ia. 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
abandoned 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 domain."

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, 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 Nashville by
the Federal Army carried with it "the full measure of protection to persons and

to military government." ("The

property consistent with a necessary subjection
Venice/' 2 Wallace, p. 258.)

Second. That the property of the Book Agents of the Methodist Episcopal Church
South was not subject to confiscation, and especially was this true of this institution
as a corporation. (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
circumstances, this publishing house corporation is entitled to compensation for the
use, occupancy, and injury inflicted upon its property by the Army.

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

[Report JSo. 1783, House Committee on "War Claims, third session Fifty-third Congress, pp. 18 to 21,




Date of

$2. 600. 00
3, 600. 00
2, 450. 00
3, 640. 00
1, 200. 00
4, 599. 46
5, 000. 00
227. 20

June 20, 1865
Jaii. 5, 1867
June 11, 1866
Sept. 9,186 r
Feb. 3. 1866
Jan. 23,1867
Sept. 5,1866
May 20,1865
Nov. 29, 1865
Apr. 4,1866

Methodist Episcopal Knoiville, Tenn

Temperance Hall, Knoxville, Tenn.........

Methodist Church, Carthage, Tenn

Presbyterian Church, ^Nashville, Tenn

First Baptist Chnrch, Nashville. Tenn -


This rale 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 hy disseminating
religious knowledge and useful literary and scientific information," and one which,
under the organic law of the church, sets apart and devotes 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
thirty-three States and Territories of this Union, and the net proceeds of the pub-
lishing 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? Is he a Repub-
lican, Democrat, Populist, or Prohibitionist? That all funds have heen 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
membership of the Methodist Episcopal Church South may have sustained to it, or
the inhibition which exempts the property of the. book agents' corporation from con-
fiscation, or other disabilities 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 nations, 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 Wash-
ington and Lee University, destroyed by the United States troops, by appropriating
the sum necessary to secure the restoration of these institutions. From the use of
these grounds and buildings the United States received no material benefit, and yet
Congress, very properly, appropriated money to restore them. How much more
essential and proper, therefore, for the Government to provide for the restoration 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 Government."

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 81 of 87)