University of Virginia Library

14. CHAPTER XIV.
THE LAWS AGAINST GAMING IN VARIOUS COUNTRIES.

1. ANCIENT ROME.

IN ancient Rome all games of chance, with the exception of five which had relation to bodily vigour, were absolutely prohibited in public or private. The loser could not be sued for moneys lost, and could recover what he might have paid, such right being secured to his heirs against the heirs of the winner, even after the lapse of 30 years' prescription. During 50 years after the loss, should the loser or his heirs neglect their action, it was open to any one that chose to prosecute, and chiefly to the municipal authorities, the sum recovered to be expended in that case for public purposes. No surety for the payment of money for gambling purposes was bound. The betting on

lawful games was restricted to a certain amount, beyond which the loser could recover moneys paid, and could not be sued for the amount. A person in whose house gambling had taken place, if struck or injured, or if robbed on the occasion thereof, was denied redress; but offences of gamblers among themselves were punishable. Blows or injuries might be inflicted on the gambling house keeper at any time and anywhere without being penal as against any person; but theft was not exempted from punishment, unless committed at the time of gambling — and not by a gambler. Children and freedmen could recover their losses as against their parents and patrons.

Cicero, in his second Philippic, speaks of a criminal process (publicum judicium) then in force against gamblers.

The laws of ancient Rome were, therefore, very stringent on this subject, although, there can be no doubt, without much effect.

2. FRANCE.

At the time of the French Revolution warlike games alone conferred the right of action, restricted, however, in cases of excessive losses; games

of strength and skill generally were lawful, but were considered as not giving any right of action; games of mere chance were prohibited, but minors alone were allowed to recover moneys lost.

By the present law of France no judicial action is allowed for gambling debts and wagers, except in the case of such games as depend upon bodily skill and effort, foot, horse, and chariot races, and others of the like nature: the claim may be rejected if the court considers it excessive; but moneys paid can never be recovered unless on the ground of fraud. The keepers of gaming houses, their managers or agents, are punishable with fine (100 to 6000 francs) and imprisonment (two to six months), and may be deprived of most of their civil rights.

3. PRUSSIA.

By the Prussian Code all games of chance, except when licensed by the state, are prohibited. Gaming debts are not the subjects of action; but moneys paid cannot be sued for by losers. Wagers give a right of action when the stakes consist of cash in the hands of a third person; they are void if the winner had a knowledge of the event, and

concealed it. Moneys lent for gambling or betting purposes, or to pay gambling or betting debts, cannot be sued for. Gaming house keepers and gamblers are punishable with fine; professed gamblers with imprisonment. Occasional cheating at play obliges to compensation; professed swindlers at play are punishable as for theft, and banished afterwards. Moneys won from a drunken man, if to a considerable amount, must be returned, and a fine paid of equal value.

4. AUSTRIA.

In Austria no right of action is given either to the winner or the loser. All games of chance are prohibited except when licensed by the state. Cheating at play is punished with imprisonment, according to the amount of fraudulent gain. Playing at unlawful games, or allowing such to take place in one's house, subjects the party to a heavy fine, or in default, to imprisonment.

5. ITALY.

The provisions of the Sardinian Civil Code are similar to those of the French, giving an action for moneys won at games of strength or skill — when

not excessive in amount; but not allowing the recovery of moneys lost, except on the ground of fraud or *minority, a provision taken from the *old French law.

6. BAVARIA.

By the Bavarian Code games of skill, and of mixed skill and chance, are not forbidden. The loser cannot refuse to pay, nor can he recover his losses, provided the sport be honestly conducted, and the stakes not excessive, having regard to the rank, character, and fortune of the parties. In cases of fraudulent and excessive gaming, and in all games of mere chance, the winner cannot claim his winnings, but must repay the loser on demand. In the two latter cases (apparently) both winner and loser are liable to a fine, equal in amount, — for the first time of conviction, to one-third of the stakes; for the second time, to two-thirds; and for the third time, to the whole: in certain cases the bank is to be confiscated. Hotel and coffee-house keepers, &c., who allow gambling on their premises, are punished for the first offence by a fine of 50 florins; for the second, with one of 100 florins; for the third, with the loss of the license. The punish

ment of private persons for the like offence is left to the discretion of the judge. *Unlawful games may be *legalized by authority; but in such case, fraud or gross excess disables the winner from claiming moneys won, renders him liable to repayment, and subjects him to arbitrary punishment. *Immoral wagers are void; and *excessive wagers are to be reduced in amount. Betting on indifferent things is not prohibited, nor even as to a known and certain thing — when there is no deception. No wager is void on account of mere disparity of odds. Professed gamblers, who also cheat at play, and their accomplices, and the setters-up and collectors of fictitious lotteries, are subject to imprisonment, with hard labour, for a term of from four to eight years.

Although, therefore, cheating gamblers are liable to punishment in Bavaria, it is evident that gambling is there tolerated to the utmost extent required by the votaries of Fortune.

7. SPAIN.

Wagers appear to be lawful in Spain, when not in themselves fraudulent, or relating to anything illegal or immoral.

8. ENGLAND.

In England some of the forms of gambling or gaming have been absolutely forbidden under heavy penalties, whilst others have been tolerated, but at the same time discouraged; and the reasons for the prohibition were not always directed against the impropriety or iniquity of the practice in itself; — thus it was alleged in an Act passed in 1541, that for the sake of the games the people neglected to practise *archery, through which England had become great — `to the terrible dread and fear of all strange nations.'

The first of the strictly-called Gaming Acts is one of Charles II.'s reign, which was intended to check the habit of gambling so prevalent then, as before stated. By this Act it was ordered that, if any one shall play at any pastime or game, by gaming or betting with those who game, and shall lose more than one hundred pounds on credit, he shall not be bound to pay, and any contract to do so shall be void. In consequence of this Act losers of a less amount — whether less wealthy or less profligate — and the whole of the poorer classes,

remained unprotected from the cheating of sharpers, for it must be presumed that nobody has a right to refuse to pay a fair gambling debt, since he would evidently be glad to receive his winnings. No doubt much misery followed through the contrivances of sharpers; still it was a salutary warning to gamesters of the poorer classes — whilst in the higher ranks the `honour' of play was equally stringent, and, I may add, in many cases ruinous. By the recital of the Act it is evident that the object was to check and put down gaming as a business profession, `to gain a living;' and therefore it specially mulcted the class out of which `adventurers' in this line usually arise.

The Act of Queen Anne, by its sweeping character, shows that gaming had become very virulent, for by it not only were all securities for money lost at gaming void, but money actually paid, if more than £10, might be recovered in an action at law; not only might this be done, within three months, by the loser himself, but by any one else --together with treble the value — half for himself, and half for the poor of the parish. Persons winning, by fraudulent means, £10 and upwards at any game were condemned by this Act to pay five times the

amount or value of the thing won, and, moreover, they were to `be deemed infamous, and suffer such corporal punishment as in cases of wilful perjury.' The Act went further: — if persons were suspected of getting their living by gaming, they might be summoned before a magistrate, required to show that the greater portion of their income did not depend upon gaming, and to find sureties for their good behaviour during twelve months, or be committed to gaol.

There were, besides, two curious provisions; — any one assaulting or challenging another to a duel on account of disputes over gaming, should forfeit all his goods and be imprisoned for two years; secondly, the royal palaces of St James's and Whitehall were exempted from the operation of this statute, so long as the sovereign was actually resident within them — which last clause probably showed that the entire Draconian enactment was but a farce. It is quite certain that it was inoperative, and that it did no more than express the conscience of the legislature — in deference to *principle, `which nobody could deny.'

After the lapse of many years — the evil being on the increase — the legislature stirred again dur

ing the reign of George II., and passed several Acts against gaming. The games of Faro, Basset, Hazard, &c., in fact, all games with dice, were proscribed under a penalty of £200 against the provider of the game, and £50 a time for the players. Roulette or Roly Poly, termed in the Act `a certain pernicious game,' was interdicted, under the penalty of five times the value of the thing or sum lost at it.

Thus stood the statute law against gaming down to the year 1845, when, in consequence of the report of the select committee which sat on the subject, a new enactment was promulgated, which is in force at the present time.

It was admitted that the laws in force against gaming were `of no avail to prevent the mischiefs which may happen therefrom;' and the lawgivers enacted a comprehensive measure on the subject. Much of the old law — for instance, the prohibition of games which interfered with the practice of *archery — was repealed; also the Acts of Charles II., of Queen Anne, and a part of that of George II. — Gaming houses, in which a bank is kept by one or more of the players, or in which the chances of play are not alike favourable to the players — being declared unlawful, as of old. Billiards, bagatelle, or

`any game of the kind' (open, of course, to legal discussion), may be played in private houses, or in licensed houses; but still, in the case of licensed houses of public resort, the police may enter at any time to see that the law is complied with. `Licensed for Billiards' must be legibly printed on some conspicuous place near the door and outside a licensed house. Billiards and like games may not be played in public rooms after one, and before eight, o'clock in the morning of any day, nor on Sundays, Christmas Day, Good Friday, nor on any public fast or thanksgiving. Publicans whose houses are licensed for billiards must not allow persons to play at any time when public-houses are not allowed to be open.

`In order to constitute the house a common gaming house, it is not necessary to prove that any person found playing at any game was playing for any money, wager, or stake. The police may enter the house on the report of a superintendent, and the authority of a commissioner, without the necessity of an allegation of two householders; and if any cards, dice, balls, counters, tables, or other instruments of gaming be found in the house, or about the person of any of those who shall be found

therein, such discovery shall be evidence against the establishment until the contrary be made to appear. Those who shall appear as witnesses, moreover, are protected from the consequences of having been engaged in unlawful gaming.'[151]

The penalty of cheating at any game is liability to penal servitude for three years — the delinquent being proceeded against as one who obtains money under false pretences. Wagers and bets are not recoverable by law, whether from the loser or from the wager-holder; and money paid for bets may be recovered in an action `for money received to the defendant's use.' All betting houses are gaming houses within the meaning of the Act, and the proprietors and managers of them are punishable accordingly.

The existing law on the gaming of horse-racing is as follows. Bets on horse-races are illegal; and therefore are not recoverable by law. In order to prevent the nuisance which betting houses, disguised under other names, occasioned, a law was passed in 1853, forbidding the maintenance of any house, room, or other place, for betting; and by the new Metropolitan Traffic Regulation Act, now

in force, any three persons found betting in the street may be fined five pounds each `for obstructing the thoroughfare' — a very odd reason, certainly, since it is the *betting that we wish to prevent, as we will not permit it to be carried on in any house, &c. These *legal reasons are too often sadly out of place. Any constable, however, may, without a warrant, arrest anybody he may see in the act of betting in the street.

The laws relating to horse-racing have undergone curious revisions and interpretations. `The law of George II.'s reign, declaring horse-racing to be good, as tending to promote the breed of fine horses, exempted horse-races from the list of unlawful games, provided that the sum of money run for or the value of the prize should be fifty pounds and upwards, that certain weights only might be used, and that no owner should run more than one horse for the same prize, under pain of forfeiting all horses except the first. Newmarket, and Black Hambledon in Yorkshire, are the only places licensed for races in this Act, which, however, was also construed to legalize any race at any place whatever, so long as the stakes were worth fifty pounds and upwards, and the weights were of the

regulated standard. An Act passed five years afterwards removed the restrictions as to the weights, and declared that any one anywhere might start a horse-race with any weights, so long as the stakes were fifty pounds or more. The provision for the forfeiture of all horses but one belonging to one owner and running in the same race was overlooked or forgotten, and owners with perfect impunity ran their horses, as many as they pleased, in the same race. In 1839, however, informations were laid against certain owners, whose horses were claimed as forfeits; and then everybody woke up to the fact that this curious clause of the Act of George II. was still unrepealed. The Legislature interfered in behalf of the defendants, and passed an Act, repealing in their eagerness not merely the penal clauses of the Act, but the Act itself, so far as it related to horse-racing. Now, it was supposed that upon the Act of the thirteenth of George II. depended the whole legality of horse-racing, that the Act of the eighteenth of George II. was merely explanatory of that statute, which, being repealed, brought the practice again within the old law, according to which it was illegal. By a judgment of the Court of Common Pleas it was decided, however, that the words of the eighteenth of George II. were large enough to legalize all races anywhere for fifty pounds and upwards, and that the Act was not merely an explanatory one. Upon this basis rests the existing law on the subject of horse-racing. Bets, however, as before stated, on horse-races are still as illegal as they are on any of the forbidden games — that is to say, they are outside the law; the law will not lend its assistance to recover them.'[152]

The extent to which gambling has been carried on in the street by boys was shown by the following summary laid before the Committee of the House of Commons on Gaming, in 1844: —

Boys apprehended for gaming in the streets —

• Convicted.
• Discharged.
• 1841
• .. ..
• 305
• .. ..
• 68
• .. ..
• 237
• 1842
• .. ..
• 245
• .. ..
• 66
• .. ..
• 179
• 1813
• .. ..
• 329
• .. ..
• 114
• .. ..
• 185
• — —
• — —
• — —
• 879
• 278
• 601

Only recently has any effectual check been put to this pernicious practice. It is however enacted by the New Gaming Act, that — `Every person play

ing or betting by way of wagering or gaming in any street, road, highway, or other open and public 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 of gaming or means of such wagering or gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond within the true intent and meaning of the recited Act, and as such may be punished under the provision of that Act.'

On this provision a daily paper justly remarks: — `A statute very much needed has come into force. Persons playing or betting in the streets with coins or cards are now made amenable to the 5th George IV., c. 83, and may be committed to gaol as rogues and vagabonds. The statutes already in force against such rogues and vagabonds subject them, we believe, not only to imprisonment with hard labour, but also to corporal punishment. In any case the New Act should, if stringently administered, speedily put a stop to the too common and quite intolerable nuisance of young men and boys sprawling about the pavement, or in corners of the wharves by the waterside, and play

ing at “pitch-and-toss,&” “shove-halfpenny,&” “Tommy Dodd,&” “coddams,&” and other games of chance. Who has not seen that terrible etching in Hogarth's “Industry and Idleness,&” where the idle apprentice, instead of going devoutly to church and singing out of the same hymn-book with his master's pretty daughter, is gambling on a tombstone with a knot of dissolute boys? A watchful beadle has espied the youthful gamesters, and is preparing to administer a sounding thwack with a cane on the shoulders of Thomas Idle. But the race of London beadles is now well-nigh extinct; and the few that remain dare not use their switches on the small vagabonds, for fear of being summoned for assault. It is to be hoped that the police will be instructed to put the Act sharply in force against the pitch-and-toss players; and, in passing, we might express a wish that they would also suppress the ragged urchins who turn “cart-wheels&” in the mud, and the half-naked girls who haunt the vicinity of railway stations and steamboat piers, pestering passengers to buy cigar-lights.'