GAMBLING or GAMING

GAMBLING or GAMING. The most important games are considered under their several heads, and therefore do not require particular notice in this place. It is here intended to treat of the department of jurisprudence and legislation, which deals with gambling as a vice. None of the practices which merge from harmless enjoyment to vice has perhaps afforded so difficult a problem to the moralist and legislator. The danger of encountering the gambling propensity with inflexible penal prohibitions has been too amply exemplified, and at the present day gambling is perhaps nowhere so ripe and dangerous as in those parts of the United States where the laws for its suppression are the most peremptory and severe. Legislation encounters the double danger of suppressing harmless and genial amusements because they are offensive to morbidly austere minds, and of aggravating vicious propensities by violent suppression instead of judicious discouragement. That much evil has been done by

ill-devised laws against gambling is too clear, but at the same time the most zealous advocate of civil freedom and non-intervention will hardly venture to say that penal laws against so desolating and so infectious a propensity as gambling are not necessary.

In Rome gambling was a conspicuous vice under the empire, but the civil law contains only a limited amount of legislation on this subject. Of the tenor of the few vestiges in the corpus juris, a succinct account is found in the Report of the Select Committee on Gaming, in 1844, where it is said that "All games of chance, with the exception of certain manly sports, five in number, were absolutely prohibited; and the lawful amount of the stakes were in all cases restricted to a certain sum. The loser could never be sued in case of non-payment; and an action was given for monies lost, during the space of fifty years to himself and his heirs, or, in their default, to any person who chose to prosecute. The municipal body in the town where the loss took place was specially enjoined to do so, and was to spend recovered money towards public purposes."—(P. 199.)

We have here the valuable principle of refusing legal remedy for obligations tainted with a gambling character, which has generally been tacitly adopted throughout the other countries of Europe, but was reluctantly, and as it were by force, dragged into the English law. One of the pervading technicalities of the English common law, which makes a "consideration" the most essential element of a sufficient contract, made it be "agreed that a person who wins money at gaming may establish a special indebitatus assumpt for it; for the contract is not unlawful in itself, and the winner's venturing his money is a sufficient consideration to entitle him to the action."—(Bacon. Abridg.) In Scotland the position taken from the beginning, as founded on the civil law, was, that the courts of law were created to do substantial justice in the serious business of life between man and man, and were not to be occupied with the enforcement of the fanciful and capricious, if not vicious, obligations of the gaming table and the betting stand. In England, by a laborious application of specialties, the protection of the law was by slow degrees removed from this class of obligations. Wagers, however, continued to be very troublesome, and somewhat scandalous to the courts of law; and in 1844 Mr Starkie, Q.C., stated to the committee of inquiry on gaming that "The general rule of the common law is that a wager is a valid contract; but there are many exceptions to it, founded upon the principle that the wagers so excepted are against sound policy and convenience." And he says further, "In modern times the courts have gone farther than formerly in making exceptions on grounds of policy; and it is probable that several cases of wagers which formerly were held to be valid, as within the general rule, would now be deemed to fall within the principle of exception." The committee recommended the adoption in England of the broad principle followed in Scotland; and accordingly the gambling act of 1845 provided that "all contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." (§ 17.)

From the reign of Henry VIII. downwards, several statutes were passed for the forcible suppression of gaming in England. The earlier acts in general applied only to artificers and humble people, but subsequently legislation was professedly levelled against all classes alike. It would be difficult to say whether the rich or the poor most effectually baffled and evaded these enactments. One incident in 1844 showed how little they were respected. By the statute of the 9th of Queen Anne, when any person gained in a wager a sum

Gamboge. exceeding £10, the loser was entitled to pursue for re-petition of the stake if he had paid it; and if he failed to take advantage of his privilege of restoration within three months, any stranger might pursue for treble the amount with costs. The provision had been forgotten, until in 1844 a body of professional informers resolved to act on it. They raised a crowd of actions against many affluent men eminent on the turf; and the alarm was so sensibly felt in parliament that an act was instantly carried through to stay the proceedings. It was fortunate that the legislature were then occupied with the whole question of the gambling laws in England, and in the following year they passed the act already alluded to (8th and 9th Vict., cap. 109), intended to furnish a complete code of the penal laws against gambling. On the narrative that "doubts have arisen whether certain houses alleged or reputed to be open for the use of the subscribers only, or not open to all persons desirous of using the same, are to be deemed common gaming houses," a definition is in this act afforded of the establishment which the law is to count a gaming house, and it is sufficient "that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any gain played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play, or bet."

For some years the peculiarly English practice of betting on horse-races had been rising to a climax, until, on the occasion of each of the great periodical races, it became a popular frenzy in which some classes of the community lost all sense of discretion and integrity. The metropolis was filled with ephemeral establishments called betting-houses, and the daily papers swarmed with the advertisements of their keepers, who professed to have private and authentic information to impart about the horses known by adepts to be certainly successful. In addition to their dissemination of a taste for gambling among the poor and the young, there was the minor evil that when the settling time came the establishment was often found to be closed, the owner appropriating all deposits. In 1853 an act was passed (16th and 17th Vict., cap. 119) "for the suppression of betting-houses," by which every such establishment was subjected to the gambling act already referred to, and rendered liable to be dealt with as "a common nuisance, and contrary to law." The act just cited does not extend to Scotland. The old statute law of that part of the empire is directed to the extermination of the practice of gambling; but, according to a principle different from anything known in England, the provisions are modified or neutralized by disuse. The act of 1621, cap. 14, provides that any sum above 100 marks gained within 24 hours at gaming, or gained in horse-racing, shall go to the poor of the parish, but practical difficulties have interfered with the recovery of the sums thus nominally forfeited. (J. H. B.)