277 



GAMING. 



GAMING. 



278 



it to active exertion, the excitement of gaming, which is nothing more 

 than the mixed pleasure and pain arising from the alternations of hope 

 and fear, success and failure, is a necessity which all men feel, though 

 in different degrees according to the difference of temperament. The 

 Germans, says Tacitus, stake their own persons, and the loser will go 

 into voluntary slavery, and suffer himself to be bound and sold, though 

 stronger than his antagonist ; and many savage nations at the present 

 day are notoriously addicted to gambling. 



Gaming (alea) among the Romans was played with dice. The 

 earliest enactment against it is referred to by Plautus and Cicero ; but 

 it is not certain what the penalty was. Under the later republic and 

 the empire gaming was a common vice, but it was considered to be 

 disreputable. The little that is known of the penalties against gaming 

 is contained in the Digest (11, tit. 5) and the code of Justinian (iii. 

 tit. 43). The prsetor in this, as in many like cases, placed the encou- 

 rager of gaming under disabilities. If a man lent his house for gaming, 

 and, while the gaming was going on there, was beaten or had anything 

 stolen from his house, the prsetor refused him all remedy. A senatus- 

 consultum, the name and time of which are not mentioned, prohibited 

 all playing for money, except the stake was made upon the five athletic 

 exercises enumerated, and, as we must infer, by the persons who joined 

 in the exercises. If a slave, or a son in the power of his father, lost 

 money at gaming, the father or owner of the slave might recover it. 

 If a slave won money, there might be an action for it against the 

 master ; but the demand against the master could not exceed the 

 amount of the slave's peculium, that is, the property which the slave 

 held as his own, according to Roman custom, with the permission of 

 his master. The prater's edict also allowed an action against parents 

 and patrons in respect of money lost (to children or the patrons' freed- 

 men, as we must understand it). Justinian made several constitutions 

 against gaining. A man who lost money at gaming was not bound to 

 pay it ; and if he did pay, it could be recovered by him or his succes- 

 sors (in the Roman sense) from the winner or his heredes any time 

 within thirty years. If they did not choose to recover it, the father or 

 defender (defensor) of the town in which the money was lost might 

 recover it, or any other person might. The money, when recovered, 

 was faid out for public purposes. Gamblers were also liable to a fine. 

 Spiritual persons who violated the gaming laws, or were present at 

 gambling, were suspended for three years and confined in a monastery. 

 (' Novell.' 123, c. 10.) 



In England, gaming was very early the subject of penal enactments, 

 but as a proof how futile legislative measures may be, we need only 

 mention, and we do so without fear of contradiction, that there are, or 

 at least were, until recently, more of those infamous places of resort, 

 appropriately denominated " hells " in London, than in any other city 

 in the world. The handsome gas lamp and the green or red baize 

 door at the end of the passage (as well known a sign as the Golden 

 Cross or Spread Eagle) were recently conspicuous objects in the 

 vicinity of St. James's, and of St. George's, Hanover Square. 



It appears that the playing at cards, dice, &c., was not punishable at 

 common law ; and an action might be maintained at law for money 

 won at play ; for the contract was not void in itself, and the winner's 

 venturing his money was a sufficient consideration to entitle him to 

 the action. 



But if a person wag guilty of cheating, as by playing with false dice, 

 cards, &c., he might be indicted for it at common law and punished by 

 fine or imprisonment (2 Bac. Abr. 620). All common gaming-houses 

 were nuisances in consideration of law. By the statute of 33 Hen. 

 VIII., c. 9, "no person shall for his gain, lucre, or living, keep any 

 common house, alley, or place of bowling, coyting, cloyth, cayls, half- 

 bowl, tennis, dicing-table, carding, or any unlawful game, then or there- 

 after to be used, on pain of forfeiting 40. a day ; " and the same 

 statute enacted that every person haunting and using the said houses, 

 and playing, shall forfeit 6*. 8rf. 



By 16 Charles II. c. 7, any person who won any sum of money by 

 fraud, coseuage, or deceit, was to forfeit treble the value won. Under 

 the statute 8 ft 9 Viet. c. 109, repeating the statute of Henry VIII. so 

 far as relates to the prohibition of games of skill therein mentioned, 

 together with the statutes of Charles II., and Anne, and several 

 others, cheating at play is punished as obtaining money under false 

 pretences. 



Jiy U Anne, c. 14, any person who " at any one time or sitting, by play- 

 ing at cards, dice, or other ijame tc/iattoever, or by betting on the sides 

 of such as do play," lost to any one or more persons, in the whole the 

 sum or value of 101., and paid the same or any part thereof, might 

 withjn three months sue for and recover the same in any court of 

 record, and after three months any other person might sue for and 

 recover the same and treble the value thereof, with costs of suit. It 

 is curious that gambling in the palace where the sovereign is residing 

 for the time being is excepted from the statute of Anne. 



An act 5 ft 6 Wm. IV., c. 41, repealing several old statutes, altered 

 the law relating to securities given for gaming transactions. It enacts 

 MI case any person shall make, draw, or execute, any note, bill, or 

 mortgage for a gaming debt, and shall actually pay to any in 

 holi lor, or assignee of such note, bill, or mortgage, the sum thereby 

 gecured or any part thereof, such money shall be deemed to be ].:ii<l <.n 

 account of the person to whom such note, bill, or mortgage wan 

 originally given (upon the illegal consideration), and shall be deemed 



to be a debt due from such last-mentioned person to the person who 

 shall so have paid such money, and shall be recoverable by action at 

 law in any court of record. 



The acts 8 & 9 Viet. c. 109, and 17 & 18 Viet. c. 38, greatly facilitate 

 proceedings against any common gaming-house. The first mentioned 

 statute enacts that in default of other evidence it shall be sufficient 

 to prove that a 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 game 

 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 ; and 

 every such house or place shall be deemed a common gaming-house. 

 It is not necessary under this act to prove that any person found 

 playing at any game was playing for any money, wager, or stake. The 

 act dispenses with the necessity of obtaining the allegation of two 

 householders that any house is a common gaming-house ; and empowers 

 justices of the peace in places beyond the metropolitan police district, 

 to authorise constables, and commissioners of police, within such dis- 

 trict, to authorise superintendents by a written order to enter any 

 suspected house or room with constables, and, if necessary, to use 

 force for the purpose of effecting such entry, whether by breaking open 

 doors or otherwise, and to take into custody all persons who shall be 

 found therein, and to seize and destroy all tables and instruments of 

 gaming found in such house or premises, and also to seize all money 

 and securities for money found therein. If any cards, dice, balls, 

 counters, tables, or other instruments of gaming used in playing any 

 unlawful game be found in any house or room which the police have 

 entered as a suspected gaming-house, or about the person of any of 

 those who shall be found therein, it is evidence, until the contrary be 

 made to appear, that such house or room is used as a common gaming- 

 house, and that the persons found in the room where such instruments 

 of gaining shall have been found, were playing therein, although no 

 playing was actually going on in the presence of those who made the 

 entry. Before this act was passed, persons found in a gaming-house 

 could not be searched ; and proof of play was necessary before entry. 

 Notwithstanding this act, the keepers of gaming-houses contrived by 

 fortifying the entrances, and by other means, to keep out the officers 

 of justice until the instruments of gaming were removed or destroyed, 

 so that no sufficient evidence could be obtained to convict the offenders. 

 To render the law more efficient in this and other respects, the act 

 17 & 18 Viet. c. 38, was passed (1854), by which penalties and im- 

 prisonment was imposed on persons obstructing the duty of constables, 

 and obstructing their entry made evidence of the house being a common 

 gaming-house. Persons who have been concerned in unlawful gaming 

 and who give evidence on the trial of any owner or keeper or person 

 who has had the management of a common gaming-house, may obtain 

 a certificate from the magistrate or judge of the court, which frees 

 them from all criminal prosecutions, penalties, &c. 



The punishment which may be inflicted on gaming-house keepers 

 is, a penalty not exceeding 500A, or imprisonment with or without 

 hard labour for a term not exceeding twelve months. 



By 8 & 9 Viet. c. 109, public billiard and bagatelle boards are not to 

 be kept without a licence, and the places where they are kept may be 

 visited at any time by constables and officers of police ; and such places 

 are to be closed entirely on Sundays, and on other days at midnight, 

 except Saturday, when the hour of closing is fixed at eleven o'clock. 



Gambling is nevertheless carried on in the metropolis at those places 

 where billiard-tables are kept, at public-houses, and also at cigar-shops. 

 The evidence taken before the select committees on gaming in 1844, 

 contains a mass of information on the subject of gaming and gambling 

 both in London and elsewhere. 



In England, before the passing of 8 ft 9 Viet. c. 109, the law con- 

 sidered wagers in general as legal contracts, and the winner of a wager 

 could enforce his claim in a court of law. The exceptions to this rule 

 were, where the wager was an incitement to a breach of the peace or 

 to immorality; where it affected the feelings or interests of third 

 persons, or exposed them to ridicule or inconvenience ; OP where it was 

 against sound policy or prohibited by statutory enactment In cased 

 not comprehended within the above exceptions, the judges frequently 

 refused to try actions respecting wagers, when they considered the 

 matter to be of a frivolous or of an improper nature. 



In Scotland the courts followed an opposite rule to that which 

 prevailed in England. They held that " they were instituted to try 

 adverse rights, and not to determine silly or impertinent doubts or 

 inquiries of persons not interested in the matters in question ; " and 

 they decided " that their proper functions are to enforce the rights of 

 parties arising out of serious transactions, and not to pay regard to 

 Spomionet ludicrcc." 



The provisions of the statute of Anne, so far as they applied to bets 

 exceeding 101., was so much a dead letter, that its existence appears to 

 have been almost forgotten, until in 1843 a number of actions were 

 brought by common informers against several noblemen and gentlemen 

 who had violated the law by betting sums of more than 101. on horse- 

 races. A bill was brought in for the relief of these persons, and was 

 rapidly passed through its several stages. Select committees were 

 appointed in both Houses of Parliament to inquire into the laws 

 respecting gaining, and another act (7 Viet. c. 7) was passed to indemnify 



