The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-25


fsre, gaming scheme, and successful only by that
means, and is itself of the most efhcent means
Of stimulating the passion for gaming IN the com
munty Counsel would ask any gentleman what
induced him 10 pay his subscription! was love OF
arti No; it was the mere hope Of getting one of
the valuable pictures held out as prizes. They say
il IL their object to promote art; but he would ask
NY what means were tney DONG 30! by means OF
t6e Generalization of the community. The Art
Union is system based on the love of gambling in
human nature, and is only a modification of that
perncious evil which led to Legislative prohibition
thirty years ago. Let the love Of art be the basis
on which this society is established, and all good
men in the society will support it; but let
IT not rest for patronage on the principle OF
the subscriber having chance to draw a prize
Of great value their prospectus holds out.
Will the law permit association OF persons TO adj
vertse to the public that they about to acquire,
say $4,000 Of property, to be distributed by lot;
that TO raise the money requisite to make the pur-
chase OF this property, they propose to receive sub
seriptions Of five dollers each that each subscriber
shall have ticket for the paid, and chance
10 obtain portion of this property, for each s.
contributed by him. Can they receive the money
under these proposals. buy the property under this
promise, aud put it up for distribution as prizes
among these contributors in execution Of the origi-
nal contract, by the turn of the wheel of fortune,
without violating the constitution and laws of this
State Simple and easy of answer as this question
may appear TO be, it is the which has been 80
deliberately argued, by judges, lawyers and clergy
nen by their written opinions and oral discussion,
before this Coart, and which his Honor was
now called upon to decide. As said by
hate distinguished member of this bar, if we may
appeal to those perceptions of right and wrong,
which are independent of all learning we may do SO
on this occasion; and man can hesitate 10 decide
that such disposition of property is invalid But
we are not left TO the mere natural meaning an [
force of words. Legislature after Legislature, for
period of one hundred and three years before tn,
convention OF 1921 met to deliberate on this qucs
iron, had recorded their preceps, and the people o.
the colony and of the State, had sustained and ap
proved Of the nunctions of the law givers, and de-
elared that no lottery for any disposition of private
property should be set on foot and private pro-
1crty should be put up to be disposed Of by means
any lot, game, device Of chance, within this State
In the view of this well settled and universally sus-
tanned public policy and public law, prohibiting all
lotteries except such as should be authorized by the
State, and declaring them to be u common and pub
bic nuisance, is it to be argued, that when the
tinued existence of that portion of the nuisance
which was sanctioned by State authority became
TOO injurious to public morals to be longer borne,
and the trainers of the constitution found ii neces-
sary TO make n prohibition Of this species of gam
bling part Of the fundamental law,-that they
only intended to destroy that portion of the
nuisance which then existed, and to leave it
open to future Legislative discretion to visit
upon the community all the evils of all species
Of lotteries to which the State should not be
party and which should be unregulated by law!
Did any member of the convention OF 1921 plead as
against the sweeping language Of the prohibition
proposed TO be inserted in the constitutions the
Of printed lotteries and the proprety of leaving the
question of their existence open to future. huctuat
ing legislation! Did any member Of that conven-
ton suggest that when several parties have com
mon interest in property which is incapable of
physical division or enjoyment among all Of them,
that it would be convenient means of dispOsing of
it, to devise some game of chance, through which
of them should become sole owner of the whole,
and the others should be deprived Of all their inte
rest in it Was it suggested that this might be the
emily means of disposing Of the family pictures or
IntCStatcS.
tributipg the final results Of copartneship or joint
stock trading; that in such cases no owners were
playing against the contributors, nothing was de-
Quoted from the prizes by way of profit to others ;
that nothing sold by means of the lottery; that
it was only a mode Of PARTITION among common
owners! Was it suggested that minor goods and
shattels might be easily distributed but that pieces
Of property more valuable than any one share, and
fewer in number than all the shares, might exist,
and they could not be parttioned except by lot, by
means Of which the large parcels should be given to
q few, and the many be deprived of their property
therein Was it suggested that these modes Of par
titiOning among several owners, property held in
common ought to be legal! If not, it must have
been known that the able counsel of the Art Union
did not occupy a seat in that convention. He has
declared his deliberate connection only that these
things ought to be legal, but that they lawful.
There in that convention apoogists for lotteries
then existing, not for any kind of lottery which had
been prohibited during all their life time. There
was member who, not approving of existing lot
teries thought an occasion might arise when
a lottery might bcneft-as to build a church, or to
promote art. sc. But on that occasion, his Honor,
M q member of that convention, answered the
suggestion in language which it cannot be doubted
win be the language of this court, in constituting the
provision which it then designed to insert in the
constitution. 1t does not make any difference with the
character Of the institution. that by the economical
direction Of their funds, they able to give to
each of its members the full value than the
value of the sum subscribed. That does not alter
its character. Counsel has endeavored to show the
holding out the chance of uncertain contingency,
did not effect the lottery character of this trans
action, that it was affected by the prints en-
cravings given to each member being the full value
Of amount subscribed. He contended that q
distribution of the pictures, by lot otherwise
not necessary for the promotion Of art. The pic
lures might be kept in public gallery in this city,
or they might be sold by public auction. and the
proceeds given to purchase new works. But it Is
said that the sales would not bring nearly much
as they had paid for them. That might be true,
but it would tend to promote art by regulating the
fair value of these pictures, and showing the mana
gers with what discrimination they should after
wards purchase paintings and also bring prices to
a fair reasonable figure Counsel submitted. there
FORE that the reasons shown on the opposite side,
that institutions of this kind were not intended to
be embraced in the constitution, were not in ac-
eordance with the reasonable deductions from the
arguments made use of in the debate. Counsel then
viewed the acts of legislation in England, on the
subject of lotteries. He admitted there no
doubt that many gentlemen, both in England and
here. gave their annual subscriptions without any
thought of deriving any personal benefit from this
investment Of their money Some observations had
been made the accuracy of Judge Tiou's de-
cison, but he did not think it necessary to review
them, or defend the legality of such decision.
Court.--The argument is sufficiently extensive,
without going into that matter.
Counsel acceded To the propriety OF this remark
and submitted, that it is quite clear, however unde
signing these gentlemen may have acted that they
have been mised in reference TO the scope and effect
Of the appeal which they have been making to the
community, and that they have been msled in
reference the true character of this distribution
and its consequences on the rights and interests Of
society well in relation to it, being in violation
Of that system Of both constitutional and legislative
action, which has sought to preserve public morality
from all species of indulgence in gaming. Counsel
therefore submitted, that the Court do decide that
the distribution proposed TO be made is not author
lied by the constitution and laws OF the State and
whether the court commend the object which these
IL lcui ,r II