The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-05

not used to prohibit all that class OF gaming whero
chance alone determines the result leaving free all
games IN which skill on the part Of players is also
required The latter description Of gaming is by
far the most mschievous II is evident, from these
considerations, that the constitution aimed ut a
lnr.enlar evil practice 1t is to be construed as
ferrpg 10 and restraining that evil only, leaving
in Others TO occasional correction by temporary
Jaws; az may from time to time be found necessary
or 6pediene lottery" in ..h..s constitution. is
a term Of art, The history of the times in which
constitution was adopted may properly be resorted
to Tor the purpose OF ascertanngnthe object OF the
fundamental law; and n liberal and enlarged con-
struotion will always be adopted, according to the
intent thus ascerained. (Gifard VS.. Livingston, 2
DEMO, $3.50. Constitution of 1921, art. z, sec. y.
lrby vs.. Wilson, Dew and Bat. Eq. r. 579). Both
in England and in the States Of this Union, private
lotteries have been restrained from very early Pc
Rod by the most stringent prohibitions and there
was not, IN 1921, when this prohibition was first
adopted any evils resulting from the liberation OF
such lotteries. q II. l.. Of 1913, p 1873, and mar
ginal notes. But the immoral practice of raising
IL revenue by public lotteries, Of the precise form
which was in common use in 1921, either for the
benefit of the government itself, some civil di-
vision Of the State, some public object, having
become inveterate in England and in this country,
be suppressed From l7o5 to 1924, one or more pub
lie lotteries were authorized at every session Of Par
Lament. g Encyclo. Am. So. 10 Encyclo. Brit.
27. Specimen Rufh. Stat. at large, 1922
prior W convention OF loAI, the pOllcy OF
suppressing this vicious legislation was discussed
in the British Parliament; and the measure
of suppression was finally adopted in 1924. The
debates in the convention of 1921 show that
public lotteries for pecunary prizes, as means of
raising revenue, were alone within the contempla-
ton Of that body. (Goulds Debates, PIP. ago, 46l.
Ib. Up. 566 to 512. Phalen v. Virginia, 8 Howard,
1851 The Art Union distribution, even if it were
vicious in itself, and constituted an unlawful ga
ming, would not come within the legal definition
of n lottery Estate v. Pnchbeck, Const. Rep.
Of $. 9. for 1918, p 1913 or 297) Second Point
The 30th and 3lst sections Of the statute relative
to railing and lotteries, alone denounce forfeiture
Of the specific property and they apply only to
offer for the sale. dis,ibution or disposition of
property by lot or chance, that shall BIO depend
ent upon the drawing Of u lottery. This is pc
culiar species Of gaming, having no analogy to the
offence imputed to the Art Union. The penalties
Tor direct lottery rattle are contained in S. %,
%, and some others and a forfeiture of the spe-
cifc thing is not among them. Penal statutes are
to be strictly construed, and nothing can be i'm.
piled or inferred in support of forfeiture. Third
Pont.-A partition into unequal shares, any
other method Of serving their joint or common in
terest in lands chattels, adopted by co-owners,
is not an illegal lottery within the true intent and
meaning Of the English or New York lottery acts;
even though the result be effected by lot chance,
and though it may wholly exclude from benefit
some OF the owners, by cxtinguishing their interest
~ the common property (O,Connorv. Bradshaw,
] Engl Law Eq. Is. 46o, ~ Geo. z. II, ch. -
Union ID not lottery, o rattle, nor in any sense
gaming institution. Gaming il resort to some
game defiance skill. including both, for lucre.
" Art Unions have no purposes OF this sort what
ever. They make no appeal to the love OF gain
(Trans. Phil. Art Union, 1873, p. ib) Lotteries
made up OF pecuniary prizes. and minister to
the love OF gain only; their schemes address them
selves, in the grossest and most revolving form,
directly to that sordd passion, and to other senti
ment. The prizes and the tickets
ceptible of minute subdivision, and are adapt
cd to seduce into gaming every class Of soci-
ETY. down to the poorest sweeper Of cross
walk. The managers are allowed to take
pccuniary profit, which is the motive for the under
taking. and this ensts corps Of active scduccrs to
draw the weak and unwaiy into the purchase of
tickets, by glowing pictures Of the great and sudden
gains to be acquired thereby. In art unions on the
contrary, the managers derive profit; the only
advantages held ont to contributors, or which they
can contemplate without personal dishonor are the
promotion of tho hne arts, the means of instruction.
the cultivation OF refined taste, and the enjoyment
Of its pleasures in superior degree, at cheaper
rate, than their associates. The picture Of master
has no fixed market price, and is not easily CONVEX
tble into money. In pecuniary sense, its value is
little else than imaginary and is generally incapa-
bic Of realization The lottery advertisement is an
artfu appeal to cupldity; the arr union prospectus
invoices only the best and purest impulses. people
v: Sergeant, : Cow. lsl.) Tia. the love Of pecu-
mary gain may in some instances, inpel ,ndividu-
ais to purchase membership; and that picture
obtained thereby may sometimes have been sold i'm
mediately, would prove nothing against art unions
The best institution may be, to come extent per-
verted to unworthy purposes. The primitive Church
was defled by simcny TIE most eminent Judges
ard lawyers, and the most eminent members Of
socetyf in every department.. have given their
approval OF art unions, ne not being repugnant to
the laws against lotteries or games of chance, and
being beneficial TO the public in all their results.
(sirF. Kelly and Sir r, Sugden, London Art Union,
lsd3, p. 81. Irish bench and bar, ID. p. los and
note. Report Of H. Com. on Art Unions ID.
Ie yeaTs s b. Isa F isS 2 poas g1 AND aa
illiberal and technical view of the subject could
otherwise have drawn the art union within the
letter Of the statute against rafting, the act Of
1874 has rendered such a provision impracticable.
He referred to the opinion pronounced by Recorder
Tillou in criminal court, and to the origin of the
present proceedings. Were art UNIONS vicious and
immoral institutions, and were they not supported
and encouraged by men of high moral character!
There was no positive statute enacted for the pur'
pose Of condennng them on the grounds Of policy.
He proceeded to argue that tho word ''lottery'
should not be taken in its confined and isolated
sense Lottery pervaded some of the most sacred
institutions. BY it Jurors were seected and the
constitution and statutes contained several refer
ences to the casting Of lots. That showed that the
word lottery" was not intended to embrace every
thing. The constitution and the Legislature, IL
they desired to condemn these institutions, should
have more appropriate word than that of SLOT
terry" The learned counsel drew distinction
between lotteries which absorbed the whole
Of mans means, and his body and mind, and
lotteries in which this was not the case, and
others, in which there was skill and chance en-
ployed together, holding up the tenor of his
gument, the policy Of the question Of pernicious
and vicious effects. There should be broad and
liberal construction put upon the words used by
trainers Of these acts, and the constitution itself
should be construed in that wide sense which was
due to its lofty and extensive character He cited the
history Of the Banking Act, and several decisions
in reference to IT, in support OF this view, aud also
alluded to the history and effect of lotteries in Eng
land before they were prohibited. In the Of the
Art Union there was q combination OF persons all
mutually interested, and it was not, therefore, got
up for the benefit Of any one Interested individual
He referred to the employment of distribution
by way of lot under wills. and in many
other cases, in which it was necessary TO prevent
i'll feeling and TO secure mutual accommodation
The act Of 1914, he centended, dispensed with
the prohibitory statutes. He reviewed the feeling
that prevailed in England in favor of art unions by
eminent lawyers, and the encouragement they re.
ccived from the patrons Of art--thus cheering an
invigorating the efforts many an artist, who would