Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-09-24
The LotterY.Bks es

| The Lottery sassses. T
The case of thesBnited States against
John L! RapseSahd two cases of the United
| States yat8eorge Dupree will come up for
| aSsa1kdeM at the, elctohee. ssfafof I've United
| in an application for discharge by writ yff
| habeas corpus from arrest for an alleged
violation of the anti-lottery Legislation of
! the United states.
The charge against Rapier and against
Dupree in one Indictment was thf mailing
OF newspaper containing an adYrtisement
| of the Louisiana lottery, and tbe other in
dictment for mailing letter cahcerning the
| lottery. The judgments of tH lowelseourt
1sWsre against the defendadts, ..0fd the
ases were appealed e,.,1 tx ~. ~ supreme
pared brief which he YF submit in vs.
half of the governmentg men the cases IRE
ton.
He begins his briets6y saying that nearly
fifteen years ago thyeXact question mooted
| fp these cases, arikng in the same way,
vas fully consfdered and unanimously
fdecided by th supreme court. Since
that time thasbrinciple of that decision has
been accepSed by the people, by congress,
by the e,ecutive officers of the government
and kyTthe courts as the settled law of the
laad. In making that decision this court
iesaid: "The only question for our determina-s
ton relates to the conStitutionaiity OF thd
act, and of that we have no Doubt
Ordinarily under such circumstances
the Encouragement says it would seem
that the question of the constitutionality of
legislation involved should be deemed set
tied. 1t seems, however, otherwise. Rev
enuSspoured into the Golfers of the Louisi-
"a lottery company by its widest victims,
Pare too large to be surrendered without
another struggle. As was to be
expected in such a case, the main effort of
the counsel for the petitioners IN each of
the briefs seems to be to becloud the issue.
To this end their entire arguments
assume that the refusal of the
general government to be the in
strumentality for the circulation of lot
terry literature is the same thing as
forbidding the publication or circulation of
such literature. That the only escape from
the violation of the prohibition in the first
amendment to the Federal constitution
ing the freedom of the press" is
for every official Of the postoffice
department to become the servant and every
carrier the errand boy of the Louisiana lot
terry company. They totally ignore the fact
that the sole effect of the act of congress is
that the general government, its officers,
employees and agencies shall in no way
aid or abet this business, that its mail bags
and the hands of its servants shall not be
used in spreading and manipulating suares
tor its unwary victims, that it simply says
to federal officers, Hands off.
The Encouragement then says that as
the same questions substantially are pre-
sented in the briefs of the counsel for each
of the defendants, his argument will be adj
dressed to that of Mr.. Carter, the most
elaborate.
The argument of the first fifteen pages of
the brief, he says, eliminates in the propo-
sition that because congress has no
ticular crime within one of the
states, therefore it cannot deny those
engaged in the preparation of that crime
the use of the mails because that would be
doing indirectly what might not be done di-
rectly, and in this there is no distinction
between mala prohiblta and mala in Sc
If congress may forbid the use of the mails
for ill-literature tending to promote mala
in Sc, which it could not leg slate against
directly, thereby disfavoring, and if posi-
BILE SURPRISING the same, what becomes of
the principle that congress can not enact
laws that indirectly touch offenses they
could not punish Directly Regarding
defense that the right to operate
lottery is one of the fundamental rights OF
man, like a right to exercise his profession
as physician as trade, as laundryman,
the attorney general says it would seem
hardly worth while to spend time upon an
argument resting upon such an assumption
If it can be demonstrated that to prey
upon ones fellowmen by means of lottery
is a fundamental human right, the decalogue
and sermon on the mount, not to mention
thd Declaration of Independence, ought to
be rewritten atfonce. With reference 10 the
contention of the counsel that the only
plausible defense of lottery legislation is
that lottery is alleged to be of
an immoral and injurious tendency,
the Encouragement says that in
doing this counsel again assumes
as his fundamental proposition
that inasmuch as congress cannot pass a
law directly suppressing lotteries in
state, therefore it cannot indirectly sup
press them, and therefore it must aid them
in the transaction Of their business through
the mails. We have already seen that this
position is wholly untenable, because it is
conceded that congress may refuse the use OF
the mails and thus indirectly ''disfavor and
if possible suppress" many practices against
which it cannot legislate directly, there
fore clearly if congress cannot refuse mail
facilities to lotteries. its inability to do so
must rest upon some other principle than is
involved in this argument of direct or in
direct legislation.
I'm BRIEF says the encouragement II
maintain without fear of successful contra
diction, that whatever acts or enterprises
congress has power to make criminal in the
District of Columbia or the territories, it
may refuse directly or indirectly to aid, en-
courage or abet in any state without viola
ton of any obligation to either citizen or
state. Any state may make the practice of
this lottery company or even the possession
of its ticket within its borders
with intent TO sell, crime
In the exercise of this power of legislation
in regard to mails, as in the exercise of
many of its other legislative powers, the
Encouragement holds that congress has
very broad discretion as to W ether it shall
act at all, and if so, when and to what ex-
tent and for what purpose it shall act. The
United States government, like an individ-
ual or private corporation, or an ordinary
municipal corporation, is subject to the
great rule which pervades all well ordered
society, that no one shall so use his own
property, franchises or powers, as that In
so doing he shall infiict needless injury
upon the property or personal rights of an
individual or upon the wellbeing Of society.
The encouragement then argues to show