Mr. Gresham to Mr. Patenôtre.
Washington, April 16, 1895.
Excellency: I have the honor to acknowledge the receipt of your note of the 19th ultimo, touching the complaint of Mr. Dermigny that certain copies of French newspapers containing lists of drawings and information concerning premiums in connection with loans of the city of Paris and of the Credit Foncier, had been denied circulation in the mails.
I called the attention of the Postmaster-General to your request that the Post-Office Department confirm the instructions, which it appeared from a note addressed by Mr. Blaine to your predecessor, Mr. Roustan, under date of April 30, 1891, had been given to the postmasters at seaport cities, to deliver all newspapers, including the French, that did not contain the advertisements of regularly organized and well-known lottery schemes, and to leave undisturbed newspapers containing advertisements of premium Government and municipal bonds. In his reply Mr. Bissell informs me that in December, 1890, and February, 1891, the general question was very fully examined, in order to determine the action of the Post-Office Department under the then recently amended and enacted lottery act, with regard to foreign journals containing advertisements and drawings of the Austrian lottery premium bonds.
Prosecutions under the penal clause of the act in question were then pending in some of the United States district courts, which evidently involved the constitutional features of the law. Indictments were pending in United States district courts of several of the States, based on the use of the mails by dealers in and agents for the sale of European premium bonds by circulating newspapers and circulars advertising those schemes, and this led to the refusal of the postmaster at New York to deliver at that time to Mr. Dermigny certain issues of Le Petit Journal, containing lists of prizes awarded at the drawing of bonds in the city of Paris, against which act Mr. Roustan remonstrated. It was then thought that in at least one important case, that of E. H. Horner, of New York, all of the questions involved in Mr. Roustan’s objections would receive judicial construction, but the case of Mr. Horner was carried on appeal to the Supreme Court of the United States. This circumstance delayed answer to Mr. Roustan, but as Mr. Dermigny announced that the Petit Journal had omitted from the issues of the paper sent to this country the objectionable lottery advertisements, Mr. Tyner, the Assistant Attorney-General for the Post Office Department, wrote, under date of March 14, 1891, to the postmaster at New York city, as follows:
This induces me to suggest that, for the present and until the whole matter can he discussed and decided upon, it would be wise to deliver to Mr. Dermigny any issues of that paper reaching your office that do not contain the advertisements of regular lottery companies—that is to say, that if the advertisements be that [sic] of only premium city bonds or of premium Government bonds, although the lottery attachment may be connected with each, the papers shall be delivered to him.
Upon this letter of Mr. Tyner Mr. Blaine appears to have based his informal note of April 30, 1891, to Mr. Roustan, but no record is found showing that general orders had been given to postmasters at “all seaport cities.” Mr. Bissell further states that the question whether premium bonds issued by a foreign Government or city with lottery features attached came within the purview of the antilottery act of September 19, 1890, had not then been finally settled judicially, and pending its settlement [Page 117] such matter was permitted to be delivered. On January 30, 1893, nearly two years later, Horner’s conviction was sustained, and the scheme of the premium bonds issued by the Austrian Government was declared to be a lottery. In that case it appeared that the Austrian Government “offered to every holder of a 100-florin bond, if it was redeemed during the first year, 135 florins; if during the second year, 140 florins, and so on, with an increase of 5 florins each year until the sum should reach 200 florins; and she also offered the holder as a part of the bond a chance of drawing a prize, varying in amount from 400 florins to 250,000 florins.”
In speaking of this scheme the court said:
Whoever purchases one of the bonds purchases a bond in a lottery, and within the language of the statute an “enterprise offering prizes depending upon lot or chance.” The element of certainty goes hand in hand with the element of lot and chance, and the former does not destroy the existence or effect of the latter. What is called in the statute a “so-called gift concert” has in it an element of certainty and also an element of chance, and the transaction embodied in the bond in question is a “similar enterprise” to lotteries and gift concerts.
That advertisements of government or municipal bonds where prizes, differing in amount and determinable by chance, in addition to par value of the bonds with interest, are offered the holders, are, under the rule laid down in the Horner case, forbidden by the act of September 19, 1890, to be carried in the mails is beyond question, and I do not see that any discretion exists with the Post-Office Department in regard to the imported journals to which your note relates.
I return herewith the original printed inclosure with Mr. Dermigny’s letter of March 18 last, left personally by you at the Department.
Accept, etc.,