CONTINUED FROM PART 1....

At this point Hataus, who was the chief spokesman for Kriste, proposed to leave the matter of a selection to the angels.  The convention, worn out with speech-making and balloting, readily accepted this plan. Kriste, who, under his former name of Looeamong, still retained command of the angels, (for he had prudently declined to surrender one position until he had been elected to the other,) together with his hosts, gave a sign in fire of a cross smeared with blood; whereupon he was declared elected, and on motion his selection was made unanimous.

We think this part of the exhibit ought to have been excluded from the jury, because it is an attack in a collateral way on the title of this man Looeamong, who is not a party to this proceeding, showing that he had not only packed the convention (council) with his friends, but had surrounded the place of meeting with his hosts, a thousand angels deep on every side; thus violating that principle of our laws which forbids the use of troops at the polls.

After thus endeavoring to demonstrate that Christianity had its origin in fraud, and thus to prepare the minds of its disciples for the new gospel, the Oahspe proceeds to unfold the beauties and the simplicity of the new faith. Passing over many interesting features contained in this exhibit, such as the birth of Confucious, the rise and fall of Mohammedanism, the discovery of America by Columbus, etc., the record brings us to the discovery and settlement of the Land of Shalam, which forms the subject of this controversy.

As already seen, the record shows that a tract of land in the county of Dona Ana was selected. This was bought and paid for by the appellant Howland, and conveyed in trust for the use of the society. Among other conditions attached to the trust, one was to the effect that:

“... no meat nor fish nor butter nor eggs nor cheese, nor any animal food save honey, shall ever be used upon any part of the premises, except that milk may be given to children under five years old.”

It is admitted that this, among many other conditions of the trust, was violated; so that on the 13th day of March, 1886, the trustees, among whom was the appellee, made a reconveyance of the property to the said Howland….

Much proof was taken as to the conduct of the society or community which was incorporated under the name and style of the First Church of the Tae. They organized also a general co-operative system; established what they called the Faithist Country Store, - an institution, as we are advised, that did well as long as it kept on hand a good stock of faith.

There was an outer and an inner council, and contributions were received, to be devoted to the care and education of orphan children.

It was charged in the declaration that the members did not practice that degree of morality which was set forth in their circular, and proof was introduced with a view to show the questionable relations existing between one of the promoters of the scheme and one Miss Vandewater, alias Miss Sweet; but as the plaintiff remained on the premises 18 months, and as he assigned no such reason for leaving, and as he made no demand at the time for compensation for work and labor done, nor for his injured sense of morality, we think this is an after-thought.

This society of Faithists, while communistic in theory, agrarian in habits, and vegetarian in diet, was not altogether void of sentimentality nor in different to the Muses.  One of the fair members of the society, inspired by the poetic surroundings of this fair Land of Shalam, composed some beautiful lines...  They are as follows:

For all things are held in common,
Hooray! Hooray!
Thus everything belongs to all,
And peace abounds in Shalam;
Away, away, away out west in Shalam!

The authoress of these beautiful and touching lines is Nellie Jones, a member of the society. She is not made a party to this action, however, and therefore no judgment can be rendered against her.

The lines were, by direction of one of appellants, Dr. Newbrough, sung to the air of Dixie. We cannot give our assent, however, to the views of the able counsel for the appellee that causing these lines to be sung to the air or “tune of Dixie” was of itself such an act of disloyalty as to entitle the plaintiff to a verdict. The writer of this opinion, like the appellee, is himself a native of the land of Dixie, that

“Fair land of flowers,
And flowery land of the fair.”

And, as he reads these lines of Nellie Jones, memory carries him back to the days of his boyhood, and to the land of the “magnolia and the mocking bird.”

O, glorious Land of Shalam! O, beautiful Church of Tae!

When the appellants, the appellee, Ada Sweet, and Nellie Jones, aforesaid, formed their inner circle, and like the morning stars sang together, it matters not whether they kept step to the martial strains of Dixie, or declined their voices to the softer melody of Little Annie Rooney, the appellee became forever estopped from setting up a claim for work and labor done; nor can he be heard to say that:

“... he has suffered great anguish of mind in consequence of the dishonor and humiliation brought on himself and children by reason of his connection with said defendants' community.”

His joining in the exercises aforesaid constitutes a clear case of estoppel in Tae. There is another reason, however, why this act of disloyalty on the part of the appellants should not prejudice them; and that is that the plaintiff himself joined in the chorus when the “tune of Dixie” was sung…. The plaintiff himself being upon the witness stand: “Question. You all sang this with a good deal of lustiness? Answer. No, sir; we sang it to the tune of Dixie. Q. All joined in the chorus? A. Yes, sir; all that could.”

Pretermitting any expression of opinion as to whether it would, under any circumstances, be competent to allege and prove in this court that the ode to Shalam had been sung to the tune of Dixie, it is in proof, as we have seen, that the parties were in pari delicto, and therefore neither can avail himself of the other's wrong.

It is insisted, however, that the appellee was deceived by the appellants; that they did not carry out the purposes set forth in their circular and manifestos; and that they did not live up to the doctrines contained in their Bible.

The plaintiff admits that he had read their books thoroughly before he joined them. He belonged to the inner circle; was one of the trustees; joined in the worship; sang in the choir; and listened to the soul-enrapturing voice of Nellie Jones. Moreover, he had entered into the Holy Covenant. That covenant is found in chapter 5 of the Book of Jehovah's Kingdom on Earth. The twenty-fourth verse of the covenant is as follows:

“I covenant unto Thee, Jehovah, that, since all things are thine, I will not own nor possess, exclusively unto myself, anything under the sun, which may be intrusted to me, which any other person or persons may covet or desire, or stand in need of.”

Under the terms of this covenant, he cannot maintain his suit, for the defendants insist, and the proof is clear, that they covet or desire or stand in need of the $10,000 for which the plaintiff sues.

This is a complete answer to so much of plaintiff's cause of action as is laid in assumpsit, just as his participation in the church exercises, music, etc., was an estoppel to his right to set up anguish of mind and ruined reputation and other matters founded in tort.

It is insisted, however, that the appellee has a right to recover for a deceit practised upon him; that he was misled by the Oahspe and other writings of the society.

On the contrary, the defendants maintain that the appellee is a man who can read, and who has ordinary intelligence, and this the appellee admits. This admission precludes any inquiry as to whether appellee's connection with the Faithists, their inner and outer circles, their music and other mystic ceremonies, their general warehouse and co-operative store, and other communistic theories and practices, gave evidence of such imbecility as would entitle him to maintain this suit.

Admitting, therefore, that the appellee was a man of ordinary intelligence, we find nothing in the exhibits which in our opinion was calculated to mislead him. True, the Oahspe, like other inspired writings, such as the Koran, Bunyan's Pilgrim's Progress, and other works of like character, deals largely in figures and tropes and allegories. But, read in the light of modern sciences, they are beautiful in their very simplicity. We would be glad to embody the whole of plaintiff's Exhibit A, but must confine our self to such citations as will, in our opinion, be sufficient to sustain this view. A careful examination of appellee's Exhibit A, the New Bible of Oahspe, leads us to the inevitable conclusion that its splendid exhibitions of word painting were not confined to the Mesilla valley, although it is in proof, and, indeed, is not denied, that a much larger volume might be written, and yet not exhaust the subject of that valley's many attractions.

But, while there are many descriptive features in the record that unquestionably apply to the section in controversy, there are others that bear on their face a very different application. As a specimen of the former, we cite the following:

“Next south lay the kingdom of Himalawowoaganapapa, rich in legends of the people who lived here before the flood; a kingdom of seventy cities and six great canals, coursing east and west, and north and south, from the Ghiee mountain in the east, to the West mountain, the Yublahahcolaesavaganawakka, the place of the king of bears, the EEughehabakax. (grizzly.) And to the south, to the middle kingdom, on the deserts of Geobiathhaganeganewohwoh, where the rivers empty not into the sea, but sink into the sand, the Sonogallakaxkax, creating prickly Thuazhoogallakhoomma, shaped like a pear."

As an illustration of that portion of the exhibit which, in our opinion, was not designed as a description of the Land of Shalam, we cite the following:

“In the high north lay the kingdom of Olegalla, the land of giants, the place of yellow rocks and high spouting waters. Olegalla it was who gave away his kingdom, the great city of Powafuchswowitchahavagganeabba, with the four and twenty tributary cities spread along the valley of Anemoosagoochakakfuela. Gave his kingdom to his queen, Minneganewashaka, with the yellow hair, long hanging down.”

This unquestionably refers to Chicago.

The author, after giving a general description of many lands and cities, leads his disciples to some high point, most probably Sierra Blanca, New Mexico (from whose snow-covered summit the summer breezes fall like a gentle cascade over the valley of the Pecos,) and spreads out before them a vast system of irrigation:

“Beside the canals mentioned, there were seven other great canals, named after the kings who built them, and they extended across the plains in many directions, but chiefly east and west.”

Speaking of the vast canals that formed a net-work of the beautiful valley, the record says:

“Betwixt the great kings and their great capitals were a thousand canals, crossing the country in every way, from east to west and from north to south, so that the seas of the north were connected with the seas of the south. In kanoos (canoes) the people travelled, and carried the productions of the land in every way.”

We are of the opinion that a proper cause of action was not set out in the declaration, and that there was no evidence to sustain the verdict of the jury awarding the plaintiff $1,500; that the refusal of the trial judge to set aside the verdict was error; and therefore the judgment of the district court should be reversed.

Epilogue

Every good biblical story needs an epilogue. Ellis was not the only one to suffer great anguish of mind in the aftermath of Freeman's judgment. Shortly after the judgment, in the Fall of 1891, John Newbrough died of influenza. His widow, Frances Van de Water Sweet, married Howland two years later but constant flooding of the Rio Grande soon doomed the Shalam-Faithist colony, which closed in 1901.

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