| Show ARGUMENTS IN THE CHURCH CASES the legal arguments in the church escheat proceedings were resu resumed wed wed wednesday afternoon before examiner in Ob chancery ancery judge loofbourow all aU the counsel representing the aft parties being present judge J A marshall on the part of the govern merit having his aadrew before the noon recess attorney W H dickson opened the arguments on behalf of the defendants defend anto antiL he commenced by referring to the dissolution of the corporation of the r church of jesus christ of latter day da y saints by not act of congress of march Marf fi 1887 and remarked that there being no one entitled to hold or manage its if A property this suit was brought tow to ascertain what property r real eal and personal sons there was which belonged to it I 1 at its d dissolution bissol ution and to take possession al of and hold bold the same for final dispo to that efte extent n t only did t the he 14 0 decree in the case go it being left thereby for future proceedings to determine what disposition should ultimately be made of the property the real estate which was acquired aad held in violation of the act of 1862 was forfeited to the united states and the disposition of all such property or its ita proceeds was fixed by the act of 1887 that was to say it was wae to be applied to the use and benefit of common schools in the territory the personal property however was not forfeited but eacho es cheated abed to the govern ment by force of the dissolution of the corporation and being property which was acquired and held by the tiou tion for religious and charitable purposes was to be disposed of under the arof of charities on as applied in such geee the case cam was now referred to a fe tater r to suggest and report a scheme biting and appointing the charitable uses lawful in their i sue each lar acter as might most moat nearly cot cor dond to those purposes to which ft As nally dest destined nea in n view of the magnitude of interest evolved here so far as liis his clients ore ere concerned he be could truly say that te approached the discussion of this estion with much misgiving giving and this he believed was the VA time in the history of this country inhere bore either the federal or any of the governments government men ta had undertaken to 10 states Ilia teel govern a religious or charitable cor Sra tion and having dissolved it had through its officers or otherwise from the members of wrest a ise U to ate corporation that property properly which wethe fruit of their own industry and awfully fully acquired by the late corpor ahon on and apply it to the use and bent of others who had nothing to alfi with the contributions and for benefit the fund was never jB ded it might be said t this was the first time in the histo of WS this nation that buy any such auch thing id been attempted he believed it kd never been attempted in england ince the dissolution of the monasee PM when the property of the roman ch was seized diate state bro ayad and he he mr would now broadly atily JL rould state confidently because he be eved be was right that there raould uld not be found in the law books of at this country or of Englan dany case N s in i which a court exercising merely its judicial power had ever sought to do what this cour court t was now asked to do by bv the officers representing the govern not believe there could 1 ent ile he did bhe be found a case from the earliest re ZU that we had ot of the admin adain tion of charities in england through the courts of chancery of that auntry vou ou or a case wherein the courts of this s bou country in any state ot of the union any such thing had been attempted council insisted that it was beyond tle the power of any court to do it even though it had the inclination cases in england bad arisen in an early day whre where some such thing as contemplated was done by w W now the lord chancellor not howe however verp by the power inherent in the chancery courts but by virtue of his power un der the sign manual of the crown exercised excised by the lord chancellor the questions now presented were somewhat novel in this country they were interesting they were sure of great importance they were not to be determined by prejudice or favor sr they were not to be controlled in the consideration of these questions by considerations 4 side rations of finance or expediency but determined by the law by well established precedents it if there were any ny by the eternal principles of right and justice this court was called upon to report to the supreme court of the territory a scheme limiting and appropriating this fund to such lawful purposes as should most nearly correspond with those to which it was originally destined by those whose industry created it it would be conceded duster ceded he took it that the master in chancery in devising a scheme and the nourt court in passing upon the same were to be guided and controlled by the principle or doctrine of oy cy pres pm as applied to charities and as exercised by a court of equity judicially by virtue of the power inherent in courts of chancery as distinguished from power or prerogative sometimes exercised by the chancellor of england under the sign manual so far as the courts of equity in this country at least east were concerned it had been proved that none of them possessed the power which was possessed by the lord chancellor of england when acting under the sign manual when the supreme court of the united states required the territorial supreme court to refer this matter to a master it must be clear that the understanding der and intention of the court was that the master being but a branch of the court should be bound by the limits which marked the jurisdiction and power of a court of equity it was waa never supposed that the court or br the master appointed by it would have any such authority as was waa exercised in england by the lord chancellor under the sign manual having pointed out the history of the fund in question which he be said mid was the offspring of innumerable petty contributions and donations made to the late corporation of the church of jesue christ of latter day saints by its members from time to time extending over many years and pointed out the real design ot of the donors to its application religious and charitable uses counsel remarked it was said by mr marshall counsel for the government in the course of his hift argument this morning that the fund was not in any way limited that it was devoted to religion and charity generally it occurred to him mr dickson that this was a singular statement in view of the evidence in this case his meaning no doubt was that those who had contributed to this fund designed arid and intended that it should be used under the direction of the first presidency of the church in the religious and charitable work of that church through all these years it had been applied not to religious purposes generally but to those of the cc mormon faith it had been applied so far as it had been used to the relief of the poor not to the poor generally but to the I 1 mormon poor except a small sum devoted to a little band of indians for a few years in teaching them agriculture and some of the smaller mechanical arts it seemed to him that it would be unfair and dis disingenuous ingenious to say there was any doubt here but that this fund was intended to be applied to the relief of the poor of that faith and for the religious purposes of that sect counsel cited the case of the attorney general of england vs clapham Clap bam and replied to the position taken by counsel for the government that the decree of the supreme court of the territory in this case had bad conclusively settled the question adversely to the defendants that this fund could not be vested in trustees for the benefit of the members of the church of jesus christ of latter day saints in any way either for the relief of the poor nor fur for any lawful religious work even though the court might see its way clear by which to limit it to such uses as would be strictly lawful in their nature not opposed to public aut policy iley but eminently praiseworthy but mr dickson Dicks held that the court hadtke had the power to apply this property to any ady charitable use lawful in its char acter although that use might be one and the same to which it was originally appropriated and there was nothing in the decree which denied it he was not on the part of the defendants demanding that that fund beset be set apart unconditionally and generally in trust for this church association they were asking the court simply to hy lay its hand upon the fund and keep control of it to appoint trustees requiring them to report at least annually as to their trust and as much oftener as called upon so that the court might all the time have super supervision virlon of the trustees correct abuses it if any existed anti and remove the trustees first chosen should they prove unfaithful at ary acy time they were asking that this fund be applied simply to certain specific purposes pointed out each of which was recognized as lawful on all sides purposes within the scope of the donors at the time they contributed counsel quoted a large number of cases in support of his argument mainly in reply to counsel for the government he referred to an english case that of the bishop of hereford vs adams in that instance the fund was found to be considerably more than was necessary for the relief of the parishes named in the will in the way directed by the testator after supplying the needy with food fuel clothing medi cal attendance etc and the surplus was applied to the education of whom the poor mentioned in the will the other side here did not propose to do that so far as the poor of the mormon faith were concerned they asked that the money be taken out of the hands of the poor altogether add devoted to the education of the children of the rich as well as the needy the case of the Camp campden tien charities reported in the english law books and other authorities were cited all the government desired all it had bad ever asked was that its lawa should be obeyed and respected the mormon conj people now came forward counsel cared not whether they rested on revelation or anything ese else one man main alter after another and swore that the practice of polygamy had been stopped that the intention of president wood buffs ruffs manifesto to the church was to that end not only to stop it temporarily a suspension merely but to stop it absolutely that was all the government asked it did not ask them to go farther not to go down upon their knees and say they were sorry for what they had bad done in the past and confess that they had been hypocrites and impostors the government did not require them to say we will bow down and admit as to the sanction of the practice of polygamy we never did believe thi li was a revelation from the almighty the mormon people said counsel might be misguided and mistaken and think they received revelations from god we might question and doubt talt but it mattered not so far as the government was con carped it the conclusion should be reached by the master in chancery that the mormons cormons had bad stopped the practice of polygamy it mattered not what prompted them to stop atop it the bald we believe the prophet joseph smith had bad a revelation which made it permissive or mandatory counsel did not care which if they hey believed that he be who stood at the head bead of their church had been permitted to receive a revelation sanctioning polygamy however much other people might scoff and deride and disbelieve was there anything very preposterous in their believing that another revelation had been received from god stopping the pra practice otice they said id god was moved to do this because of the suffering of the people it was apparent to them that the sentiment of the nation was such that this thing could not go on if it were persisted io in it was evident to the human mind that the result must be disaster and the disruption of the church and perhaps extermination gods god said they foresaw this and repealed to the church that the practice of polygamy must cease and that so long as existing conditions prevailed of course the same result would be reached if an attempt were made to reestablish it mr dickson here read from an address by president woodruff to the church setting forth his attitude in the circumstance if the court believed that these people were speaking sp eakins t the he truth and their sworn statements ments stood here then all the government could desire had bad been accomplished complis hed the people had bowed in submission to the majesty of the law jaw of the nation and the head of the church came there and said 1 I believe it was my duty and the duty of the people over whom I 1 preside to obey the law jaw I 1 have been brought to that conviction by experience and we leave events in the hands of god pl disguise it as they would here was a lawful and honorable purpose pose e in view on the part of these people for what more worthy example of charity was there under the sun than the relief of the poor and needy but if polygamy were still a doctrine of the church and its practice were still countenanced and encouraged and it further appeared that this fund had been devoted to the charitable and religious uses and purposes of the church and that it had been originally designed by the donors that the fund might be applied to the spread of or that doctrine or to some other and lawful charitable and religious use of the church it would not be permissible for the court to apply it to an en tinly different charitable use from that originally designed but the court should in auch such case so limit or appoint the fund as to confine its appropriation to such lawful 1 charities as were within the scope of the intention of the original donors the court had bad not the power to wrest the fund from the other and lawful charities provided for by the donor and apply it to other and different charitable uses counsel cited boyle on oa charities the attorney general vs parsons same vs hinxman same vs dixie jackson vs va phillips Phil lipset et al aad and other prominent authorities and said the time had bad long since passed when the sovereign authority whether king or legislature would exercise power in any such arbitrary and oppressive manner afa was here sought in conclusion mr dixon asked could the court fairly reach the conclusion that it was the intention of the donors to this fund to apply it to the common schools of this territory he answered no and when they departed from the intention of the donor they were not acting judicially while congress might apply a fund in a way opposite to that intended no other power in this country could he had nothing to say against the cause of public schools or education the latter was one of the most noble and praiseworthy of all causes it involved even the well being and stability of the state and should be the care of every good citizen but charity in its stricter sense made a more pressing demand upon all that was generous in the human mind counsel concluded his hie address at at which time the court adjourned until 10 this morning the argument was acknowledged on all sides aides to have been a most masterly one MR MB ARGUMENT when the court resumed its work thursday morning october mr varian on behalf of the government ern ment took up the argument he began by saying that the h history of the proceed proceedings I 1 commencing ng with the first brat attempt of the government to enforce its laws in this territory and culminating in the law of 1887 containing the provisions under which they were now acting set forth numbers of attempts on the part of those most directly and vitally interested to defeat the legislation and its effect through the court upon the very grounds ahat bat |
