The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-25
The Argument In the Art Union Case.
SUPERIOR COURr-sPBcsAL TERN

why the temporary order restraining them from the
Lutte and lasting Having observed, no said. ~ far
as was necessary the morris OF the case, he hal
been about to observe tho authorities against Art
Unions, at the adjournment Of the court Yesterday
The onytwo authorities stigmatizing Art Unions
gambling institutions, arc Sergeant TaIfourd in Eng.
land, and Mr.. Recorder Tillou nero Counsel could
discover any reason to justify Sergeant TalfourJs
opinion He believed that he had porished by th'
ettor forgetting the substance. As to the opinion
OF Recorder TilOu, II would be found to have oms
fatal and serious defect. He had treated tho ndiot-
ment on behalf of tho people as private action for
libel SANDER the part of the managers of the
Art Union. The truth of the fact is not sufficient
answer to an action of libel, which is brought 10
protect the peace and good order Of society What
justification the defendant IN case OF libel got
up! In tho first place, il is absolutely necessary
that the libel be true but the truth is not
bar or justification in some cases, because mon arc
not at liberty, by truths, which no public ntoross
require to be published, to exasperato tho public
mind against private individuals. Now, all this il
overlooked by Mr.. Recorder Tilou, and that must
detraot from tho weight of his opinion. On tho othM
side, were the authorities of Sir Fitzroy koIly
and Mr.. Clarke, barrsters at law who gave
It as their legal opinion. that the London Art
Unions did not come within the moaning of tho
English statutes against lotteries and gambling
Parliament treated tho subject with great consde
ration, and enacted statutes to protect them from
penaltios When Sir Edward Suyden was applied
to for his legal opinion he said the best he could give
them was three guineas, tho amount of years sub
scription For several years all tho ointment judi
cial and legislative personages in England ireland.
and Scotland, sanctioned and supported tho Art
Union, till tho jealousy of printsellor was raised.
and to meet all doubts on the subject, Parliament
legalized these Art Unions as they thon stood IL
neverhas been supposed that these Art Unions wore
vioatve of the spirit of the laws, that they might
be reprehended by the most chaste and cautious mo
rality. He, therefore, contendcd that those pro-
,cedings must fail. He would appeal to the oOm
mon law of reason, the common and unanimous con-
sent of the people, to tho legality and morality Of
this institution. He submitted that tho weight OF
authority was as great in the view he had taken Of
the case, it supported by the reason and com
mon sense of the community. Counsel on tho op-
pOsite side had referred TO the International Art
Union; but that was private speculation to dispose
of property by mode which was clearly rattle.
1t was private scheme to dispose Of property In
this case that element was wanting. Tho Art
Union had object in view for profit as it was tn,
members themselves who were engaged in it. and
who alone were entitled to draw. Ho c0ntsnded
that constitutions should receive broad and liberal
Interpretation. They framed not for . tom
porary purpose, but for all time and should DO ok
pounded on a large and liberal principle
Court--The constitution does not contain any
declaration that all lotteries are illegal, it only pro-
hbits the Legislature from authorizing them. And
if the constitution does not declare them illegal,
then tho rules of common law are applicable Tho
question, therefore, turns substantially on the con-
structiOn Of the statute, and whether the act of the
Legislature in l8i4-supposing the statutes to em.
brace this case-created any exception in favor Of
| the American Art Union.
Mr. O'Conor cited some authorities to support his
position that tho literal construction Of tho consttu
ton not to be taken but that the true principle
which meant to be carried out should only be kept
view. We thus he continued, that tho letter OF
the constitution is not to be taken, but the spirit
and intent. The constitution applies to specific
thing, and that is not before the Court. The sta
tstes apply to two things wiz to private lotteries
and to the setting up OF property to be disposed OF
| by chance. This case, therefore, does not come
| within the meaning Of the statutes, though he
would concede that the English schemes of disposng
Of prints and books-the international scheme al
| luded to- and others-dd fall within the meaning
Of the clause against rafting; but he denied that
there was an analogy between those cases and that
of the Art Union. No temptations to gambling ere
held out in the latter institution; and all the oppo
site party show p that it might possibly be per-
verified to evil uses. Counsel exhibited the engrsv-
ings given by the Art Union to its members which,
he submitted, were really double the value Of
the subscription 1t might as well be said of any
co-partnershp, wliNre some of the property had to
be distributed by lot that it was Illegal and that
the parties should have foreseen that termination
/ The managers of the Art Union did foresee it in
| their case; but he (counseD would ask what was
there culpablc in that termination The subscriber
| might possibly indulge in the hope that he might
have the fortune to transfer to his parlor one of
| those delightful works of art; but counsel could
| rot imagine any desire more praiseworthy than
| hat of being connected with such an institu-
ion. There is no faint or poison in them.
Counsel, therefore, trusted his Honor would come 10
i
minds Of the good and respectable people of this
county, who row labored under Unsuitable appre-
| henson that they may possibly have violated the
laws or deviated from the moral code itself If it
were true, he argued, that the mere words Of this
rafting and lottery section, in the general laws
ought to reach an institution of this description,
then there is no reason to doubt that the Legisa-
ture had repealed wotonto as respects these inst
buttons, those statutes by the act of 1874. 1t was.
therefore, altogether proper for his Honor to pre-
! sumo that member of the Legislature had any
idea that the sanction of this mode of distribution
was violation of the constitution. or of existing
statutes. The idea that the Legislature igno-
rant of it, is not supported by any fact 1t had been
| in existence quite number Of years before it
incorporated, and it could not be supposed that the
Legislature were Ignorant Of it. This society pro-
pared clause in their constitution providing for the
distribution by lot, and subsequently the Legislature
recognized the legality Of that clause by passing al
act changing the time of distribution. Therefore,
II 1T were possible to entertain doubt on this sl,s.
ject, his Honor had that explicit repeal of tho pre-
ceding statutes by the act of 1871. And counsel
| contcnded that tho free from all con-
ecivable doubt. All that was now required for
his Honor TO enable tho institution TO continue its
operations. and set at rest the very just iablc and
proper scrupes OF those respectable citizens who
found in the circle of its supporters
Mr.. sanford replied in support ofthc application
The argument in the case he said, had occupied
more time than he had anticipated, but not more
than its Importance demanded. He would proceed
TO address his views nrepy to those SGT forward by
the opposite counsel. He would call attention to the
nature of the institution: ii likcned on the
other side, TO elccmosynary associations, such "a
bible societies Sc He contendcd that there was no
similarity between hem. II falls within the defni
ton OF a civil private association, into which mem
bcrs enter for their benefit and the member ha
consequent right of transferring his rights and
privileges TO another. Counsel on the opposite sids
had stated that there was in this institution right
Of election, and consequently of selection; but this
was on the assumption of the institution being q
charitable or literary institution. He therefore
contended that the Art Union society entered
ests of the subscribers. There is no religious or
charitable use-no literary, scientific benevolent
purpose in its design or administration, and the be-
neft thererom to art and artists is merely incidental
The certificate Of membership consequently passes to
an assignee, any ether share in corporation passes
There were no personal privileges attached to mem
bership that involved in any respect, either social
hmm he of nh