by which he could cure certain diseases. In pursuance of the information, thus obtained, he prepared a disc about an inch and a quarter in diameter, which he sold for a dollar. He cautioned the purchasers not open it as it would thereby lose its efficacy, which had been imported to it by much meditation and loss of power on his part and he directed that the parties, using it, should place it over the heart, concentrate the mind on it and repeat slowly and solemnly the word "Tetragrammaton." Complaints were made to the Postoffice Department that this scheme was a fraud and its promoter was denied the use of the mails. The officials of the Postoffice Department dissected the disc and it was found to be made of a circular piece of paste board, with tin foil on each side and covered with chamois skin, the whole cost of material and work being about five cents.

Sec. 205. Another case of this class is U. S. vs. Fay, 83 Fed. Rep. 839. Fay pretended that he had some mysterious, superhuman power,, among other things, to penetrate, with mental reason into the bowels of the earth and discover the location there of supposed hidden treasures. He wrote to one Howard, advising him of his possession of these powers, which he represented to be higher than mortal and assuring him for $50, he would positively find certain treasures supposed to be hidden away somewhere on Howard's farm. The money was paid, the treasures were not found and Fay was indicted in the U. S. District Court at St. Louis. That court held that was not a scheme to defraud under section 5480 R. S., U. S., on the ground that the scheme was visionary, irrational and stupid, and as not being calculated to deceive a rational being possessed of ordinary sagacity. The judge said: "There is a marked distinction between a case of this kind involving, as it does, a physical impossibility and one related to religious, moral or ethical tenets. A scheme to defraud, planting itself upon, and seeking to take advantage of such tenets entertained as they are by a large number of people, has been held to be within the contemplation of the

federal statutes and with this class of cases I have no fault to find."

Sec. 206. This ruling is in conflict with the spirit of the law as interpreted by other courts, by the Postoffice Department and by the Supreme Court of the United States. With all due deference to the opinion of the learned judge in this case it may be assumed as unquestionably the intent of Congress in this legislation to protect the unwary and simple from the fraudulent machinations of the crafty and unprincipled. As was stated by the promoter of a fraudulent scheme a few years ago to the postal authorities at Washington, it is not the wise, shrewd business men and women, whom these schemers hope or expect to fleece, but the unwary and foolish.

If the test made by the court in this case be applied to the facts in the Durland case the conclusion of the Supreme Court would have been the reverse of what it was. In that case Durland set forth his plan of operations with great precision and particularity and anyone, with ordinary business capacity, could have soon discovered, by investigation, that inevitable loss must come to a very large number of the investors in the scheme and yet the court held the scheme came within section 5480, because the jury had found Durland divised it to defraud and used the mails in conducting it. The court in the Fay case says that while the freedom of religious opinion and thought should be scrupulously maintained, yet a scheme to defraud, planting itself upon and taking advantage of religious tenets, should be held to come within the contemplation of the Federal Statute. Why? There are hundreds of millions of people in the world to-day who have opinions relative to the supernatural, that other hundreds of millions of people regard as visionary, irrational and stupid. If taking advantage of these opinions to perpetrate a fraud brings the scheme within the Statute, why should not taking advantage of the opinion, entertained by a large number of people and intelligent people too, that there are men who possess the supernatural power of locating water or treasure hidden beneath the earth's surface? These men are known among the people as water or

treasure witches. To the ordinary mind such a power seems visionary and even stupid but to the person who has faith in it, it is a reality-a verity.

Not long since an old negro was swindled out of $4,000, money he had earned by hard labor and a life of frugality, because he had implicit faith in this power. A schemer told him that some Indian traders, at the beginning of the present century, had buried $250,000 in silver on his land and that it could be found by putting some dirt, taken from the grave of one of the traders, into a vessel and carrying the vessel over the land; that when the party carrying the vessel came to the spot where the treasure was hid, the dirt in the vessel would move. The negro, who was regarded as a good business man, though without education, put up $4,000 against the advice of a banker in the neighborhood to carry out this scheme, which involved an impossibility as it presented itself to the ordinary man. The negro related the facts of the case, after he discovered that his money was lost, to his attorney and when asked if he believed the story told by the swindler he replied that he did. Should that negro not be protected simply because he had faith in an impossibility? Was he insane on this point? If so he was clearly entitled to the protection of the law. Whether sane or insane the taking of his hard earned money by an appeal to his superstition or whatever it may be called was a hideous crime that deserved not only the severest punishment but the execration of mankind.

In the Fay case Howard no doubt believed what Fay told him as simplicity as the negro believed the nameless swindler. To the judge of the United States Court for the Eastern District for Missouri Fay's claimed power appeared visionary, irrational and stupid but Howard probably thought it was a veritable reality. Indeed it must have been a reality to him or he would not have put up any money to test it.

In determining whether a scheme comes within this Statute or not the question is not what the intended dupe ought to believe but what he does in fact believe. The question is

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simply whether the party has devised a scheme or artifice to defraud and has used the mails to carry it cut. Nor does it make any difference that the scheme presented may appear visionary or impossible to many or a large majority of people. As stated by the judge himself in the Fay case when a scheme is carried out by the swindler by taking advantage of a religious opinion entertained by his entended dupe, it should be held to come within the Federal Statute. And this is the effect of the decision in United States vs. Reed, 42 Fed. Rep. 134. Sec. 207. There the defendant, advertised that, by an unknown power, he was able to answer sealed letters addressed to spirit friends. He directed his would-be-customers to write the full name or names of their spirit friends on slips of paper -to address them by terms of relationship or friendship-to ask questions which it was desired should be answered, to sign their own full names and place the slips in envelopes and seal them and then place these in larger envelopes directed to the party advertising the scheme. He claimed he could obtain answers to the questions without opening the inner letters. His charge for each answer was one dollar, which he proposed to return if no answer could be obtained which he admitted was sometimes the case.

Numerous statements of the promoter of the scheme were shown tending to prove that sometime previous to his trial he acquired a knowledge of the trick of opening sealed letters by an exchange of tricks with another party. He offered to show that in particular instances he had satisfactorily answered sealed letters and that the questions answered were of such a character that he could not have answered them except by supernatural power. This testimony was excluded. He also asked the privilege of giving an exhibition or test of his power in open court This was also denied. Judge Severens, charging the jury, said: "The defendant, in this case, founds his defense upon the claim, as urged by his counsel, that this was not a scheme to defraud. The question of fact is upon the first head what was the intention or more precisely what was the belief of the defendant as to his capacity or power to get

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answers to questions contained in sealed letters from the spirits of the departed? Now, gentlemen, every man has an absolute right to believe what he will. It is a phase of religious privilege which is guaranteed by the fundamental law of the land to every citizen. This right of belief and the right of association for its promulgation is complete and the party, holding any belief may engage in any practice founded upon it unless he, thereby, injures the peace and welfare of the public. man may not carry his belief into conduct which is injurious to the public and contrary to law. This is a distinction of great importance in view of the guaranty of religious freedom and of opinion in all matters of belief which is guaranteed by the constitutions of the several states and in large measure by the Constitution of the United States. It is the difference between belief and action, of opinion and conduct in practical matters. If a man carries his belief into a practice or a business involving a fraud and known to him to be such, he is liable to be dealt with by the law; and if he also uses the mails to promote such business he is liable to indictment and punishment in the Courts of the United States. The interests of society require that every man's conduct should conform to the law; and while it protects him in his freedom of opinion and belief in all religious and spiritual matters, it will not permit him, under the guise of that belief, to do a thing which the laws of the country condemn. To permit this (to employ the language of the Supreme Court of the United States in dealing with an analogous question) would be to make the professed doctrines of religious belief superior to the laws of the land, and, in effect, to permit every citizen to become a law unto himself. There could be no improvement under such circumstances and it could not be tolerated. Upon the question of an intent to devise a scheme to defraud the rule. is this: If the scheme be adapted in its plan to work a fraud upon others and the defendant knew that a material representation therein contained and calculated to deceive was not true or if he did not believe it was true, then the intent is made out. So that the material question here is, did the defendant