GAMES, GAMING. Looking here at these in their legal aspects, it will be seen that from very early times the law of England has attempted to exercise some control over the sports and pastimes of the people—particularly those involving an element of gambling. Certain games were either prohibited altogether, or reserved for people of some position in society. The Act 33 Henry VIII. c. 9, increasing the severity of still older enactments, deals with the whole subject in great detail, and it is interesting to notice that the reason assigned for prohibiting unlawful games was that they interfered with other exercises more useful to the state. The Act is entitled a "Bill for the maintaining artillery and the debarring unlawful games;" and it recites that, since the last statutes, "crafty persons have invented many and sundry new and crafty games and plays, as loggetting in the fields, slide-thrift, otherwise called shove-groat, as well within the city of London as elsewhere in many other and divers parts of this realm, keeping houses, plays, and alleys for the maintenance thereof, by reason whereof archery is sore decayed, and daily is like to be more and more minished, and divers bowyers and fletchers, for lack of work, gone and inhabit themselves in Scotland and other places out of this realm, there working and teaching their science, to the pursuance of the same, to the great comfort of estrangers and detriment of this realm." Accordingly penalties are declared against all persons keeping houses for unlawful games, and all persons resorting thereto. It is further provided that "no manner of artificer or craftsman of any handicraft or occupation, husbandman, apprentice labourer, servant at husbandry, journeyman or servant of artificer, mariners, fishermen, watermen, or any serving man, shall play at the tables, tennis, dice, cards, bowls, clash, coyting, loggetting, or any other unlawful game out of Christmas under the pain of xxs. to be forfeit for every time: and in Christmas to play at any of the said games in their masters’ houses or in their masters’ presence; and also that no manner of person shall at any time play at any bowl or bowls in open places out of his garden or orchard" (§ 16). The social evils of gambling (impoverishment, crime. neglect of divine service) are incidentally alluded to in the preamble, but only in connexion with the main purpose of the statute—the maintenance of archery. Blackstone, commenting on this and subsequent statutes, declares that "the principal ground of modern complaint is the gambling in high life" (vol. iv. c. 13), and he cites the various statutes which, up to his time, had been passed against this pernicious vice. Some of these went so far as to make the mere winning or losing of money at play a criminal offence. By the Act 18 Geo. II. c. 34 (repealed by 8 and 9 Vict. c. 109), if any man be convicted upon information or indictment of winning or losing at play or by betting at any one time £10 or £20 within 24 hours, he shall be fined five times the sum for the benefit of the poor of the parish. And the evil of gambling, i.e., betting or wagering, is the ostensible object against which the later statutes on gaming are directed. A bet or wager was, however, at common law as valid as any other kind of contract, and the distinction between bets depending on gaming and bets depending on other contingencies was long retained, and has, in fact, not vet entirely disappeared. Besides the Act last mentioned, the Acts 9 Anne c. 14, 2 Geo. II. c. 28, and 13 Geo. II. c. 34 prohibited particular games.
The modern statutes are the following—8 and 9 Vivt. c. 109, 16 and 17 Vict. c. 119, and 17 and 18 Vict. c. 38.
The 8 and 9 Vict. c. 109 (Act to amend the law relating to games and wagers) repeals, inter alia, so much of the old law of Henry VIII. as makes it unlawful to play at any mere games of skill. And it provides that, to prove any house to be a common gaming-house, it "shall be sufficient to show that it 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." Gambling, it, will be noticed, is still in this definition connected with some kind of game; the later Act, 16 and 17 Vict c. 119, (for the suppression of betting-houses), enacts that any house used for the purpose of "betting with persons resorting thereto" shall be deemed to be a common gaming-house. To return to the former Act, it provides that proof that the gaming was for money shall not be required, and that the presence of cards, dice, and other instruments of gaming shall be prima facie evidence that the house was used as a common gaming-house. The keeping of houses for the game of billiards is to be authorized under licence from the justices to be granted at the general licensing sessions, and the conditions are in general the same as to time of opening, &c., as those of the victuallers’ licences. Any persons winning money by cheating at any game or wager shall be deemed guilty of obtaining money by false pretences. The 16 and 17 Vict. c. 119, besides bringing betting-houses within the statutory definition of gaming--houses, makes it a specific offence to publish advertisements, handbills, placards, &c., showing that any house is kept or opened for the purpose of betting. With reference to the definition of betting-house in this statute, "a place opened, kept, or used for the purpose of the owner, occupier, &c., thereof, betting with persons resorting thereto," it may be mentioned that it was avowedly framed for the purpose of hitting houses open to all and sundry, as distinguished from large but legally private betting-clubs like Tattersall’s. The reason for this distinction, of course, is that the former are frequented mainly by a poorer class of persons, who cannot afford the luxury of gambling, and will be tempted by their losses to defraud their employers. The Act of 17 and 18 Vict. gives additional facilities for enforcing the preceding Acts, and increases the severity of the penalties. The keeper of a gaming-house may be fined up to £50 and costs, and on default of payment may be sent to gaol for twelve months. Finally, the Vagrant Act, 1873 (36 and 37 Vict. c. 38), contains the following clause: "Every person play-ing or betting by way of wagering or gaming on any street, road, highway, or other open and public place, or in any open place to which the public have, or are permitted to have, access, at or with any table or instrument of gaming, or any coin, card, token, or other article used as an instrument or means of gaining, at any game or pretended game of chance, shall be deemed a rogue and vagabond." The original Act of 1868, of which this is an amendment, was passed to repress the practice of playing pitch and toss in the streets, which, it seems, had grown to the dimensions of a nuisance in the colliery districts.
The general result of all these enactments may be briefly stated thus. Apart from statute, no games are unlawful in themselves. Games were originally made unlawful in the interest of the more useful military exercises which they threatened to supplant. The prohibition has been retained and extended on account of the vice of gambling, and severe penalties have been enacted against houses at which persons can play unlawful games. Betting-houses in general were brought within the definition of gaming-houses, and finally betting or gamingwas prohibited in any public place. It must be admitted that these distinctions are based on a most invidious principle. Practically gambling is forbidden to the poor and connived at in the rich.
It may be asked, What games, as such, are lawful under these various statutes, and what are unlawful? The author of an excellent and amusing little work on Gaming and Gamesters’ Law, [Footnote 67-1] gives the following as the result of a careful examination of all the Acts. The following are lawful games:—backgammon, bagatelle, billiards, boat-races, bowls, chess, cricket, croquet, curling, dominoes, draughts, fives, football, foot-races, golf, knurr and spell, putting the stone, quoits, rackets, rowing, skittles, tennis, whist, wrest-ling. The following are doubtful—boxing, cudgel-playing, and single-stick. The following are absolutely unlawful-ace of hearts, basset, dice (except backgammon), hazard, lotteries (except art-union lotteries), Pharaoh (or faro), boulet (or roly poly). An Act of Goo. II., which prohibited horse-racing for prizes under £50 value, has since been repealed.
To turn now to the civil aspects of the case. Gambling apart from gaming, i.e., simple wagering or betting was not at common law illegal, and the Act of Anne did not affect wagers other than gaming wagers. In fact, the courts were con-stantly being called upon to enforce contracts by way of wagers, and were as constantly exercising their ingenuity to discover excuses for refusing. A writer on the law of contracts [Footnote 67-2] discovers here the origin of that principle of "public policy" which plays so important a part in English law. Wagering contracts were rejected because the contingencies on which they depended tended to create interests hostile to the common weal. A bet on the life of the emperor Napoleon was declared void because it gave one of the parties an interest in keeping the king’s enemy alive, and also because it gave the other an interest in compassing his death by unlawful means. A bet as to the amount of the hop-duty was against public policy, because it tended to expose, the condition of the king’s revenue to all the world. A bet between two hackney coachmen, as to which of them should be selected by a gentleman for a particular journey, was void, because it tended to expose the customer to their importunities. When no such subtlety could be invented, the law, however reluctantly, was compelled to enforce the fulfilment of a wager. Now, however, by the Act 8 and 9 Vict. c. 109, cited supra, all agreements by way of wager are void, and money lost on them cannot be recovered by action at law. There still remains, as hinted above, a dis-tinction between gaming and other wagers. The 5 and 6 Will. IV. c. 41 treats securities (e.g., promissory notes) given for money lost at gaming as being given for an illegal consideration; under the 8 and 9 Vict. c. 109, securities given for betting are held to be given for a void, or for no consideration. Thus a third person, coming into possession of a note given for a bet, would have to prove that he gave value for it if the bet was a gaming bet under the statute of Anne ; if it was not a gaming bet, he would be presumed to have given consideration for it until it was actually proved that he had not.
The 8 and 9 Vict. c. 109 exempts all subscriptions, or contributions, or agreements to subscribe or contribute towards any plate, prize, or sum of money to be awarded to the winner of any lawful game. (E. R.)
Footnotes
FOOTNOTES (page 67)
(67-1) By F. Brandt, London, 1872.
(67-2) F. Pollock, Principles of the Law of Contract.