Page:EB1911 - Volume 11.djvu/465

Rh 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 puissance of the same, to the great comfort of strangers and detriment of this realm.” Accordingly penalties are imposed on all persons keeping houses for unlawful games, and all persons resorting thereto (s. 8). The games specified are dicing, table (backgammon) or carding, or any game prohibited by any statute theretofore made or any unlawful new game then or thereafter invented or to be invented. 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, logating 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” (s. 11). 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. No distinction is made between games of skill and games of chance, and no reference is made to playing for money or money’s worth. The Book of Sports of James I. (1617), republished by Charles I. (1633), was aimed at encouraging certain sports on Sundays and holidays; but with the growth of Puritanism the royal efforts failed. The Sunday Observance Act 1625 prohibits the meeting of people out of their own parishes on the Lord’s Day for any sports or pastimes whatsoever. It has been attempted to enforce this act against Sunday football. The act goes on to prohibit any bear-baiting, bull-baiting, interludes, common plays or other unlawful exercises or plays on Sunday by parishioners within their own parishes. According to Blackstone (iv. Comm. c. 13) the principal ground of complaint leading to legislation in the 18th century was “gambling in high life.” He collects the statutes made with this view, but only those still in force need have been mentioned.

The first act directed against gambling as distinct from playing games was that of 1665 (16 Car. II. c. 7) “against deceitful, disorderly and excessive gaming” which deals with games both of skill and chance at which people cheat, or play otherwise than with ready money, or lose more than £100 on credit. In 1698 (13 Will. III. c. 23) legislation was passed against lotteries, therein described as “mischievous and unlawful games.” This act was amended in 1710 (9 Anne c. 6), and in the same year was passed a statute which is the beginning of the modern legislation against gambling (9 Anne c. 19). It includes within its scope money won by “gaming or playing” at cards, &c., and money won by “betting” on the sides or hands of those who game at any of the forbidden games. But it refers to tennis and bowls as well as to games with cards and dice.

The following list of lawful games, sports and exercises is given in Oliphant on Horses, &c. (6th ed.): horse-races, steeplechases, trotting matches, coursing matches, foot-races, boat-races, regattas, rowing matches, golf, wrestling matches, cricket, tennis, fives, rackets, bowls, skittles, quoits, curling, putting the stone, football, and presumably every bona-fide variety, e.g. croquet, knurr and spell, hockey or any similar games. Cock-fighting is said to have been unlawful at common law, and that and other modes of setting animals to fight are offences against the Prevention of Cruelty to Animals Acts. The following are also lawful games: whist and other lawful games at cards, backgammon, bagatelle, billiards, chess, draughts and dominoes. But to allow persons to play for money at these games or at skittles or “skittle pool” or “puff and dart” on licensed premises is gaming within the Licensing Act 1872. The earlier acts declared unlawful the following games of skill: football, quoits, putting the stone, kails, tennis, bowls, clash or kails, or cloyshcayls, logating, half bowl, slide-thrift or shove-groat and backgammon. Backgammon and other games in 1739 played with backgammon tables were treated as lawful in that year. Horse-racing, long under restriction, being mentioned in the act of 1665 and many 18th-century acts, was fully legalized in 1840 (3 & 4 Vict. c. 35). The act of 1541, so far as it declared any game of mere skill unlawful, was repealed by the Gaming Act 1845. Billiards is legal in private houses or clubs and in public places duly licensed. The following games have been declared by the statutes or the judges to be unlawful, whether played in public or in private, unless played in a royal palace where the sovereign is residing: ace of hearts, pharaoh (faro), basset and hazard (1738), passage, and every game then invented or to be invented with dice or with any other instrument, engine or device in the nature of dice having one or more figures or numbers thereon (1739), roulet or roly-poly (1744), and all lotteries (except Art Union lotteries), rouge et noir, baccarat-banque (1884), chemin de fer (1895), and all games at cards which are not games of mere skill. The definition of unlawful game does not include whist played for a prize not subscribed to by the players, but it does include playing cards for money in licensed premises; even in the private room of the licensee or with private friends during closing hours.

The first attack on lotteries was in 1698, against lotteries “by dice, lots, cards, balls or any other numbers or figures or in any other way whatsoever.” An act of 1721 prohibited lotteries which under the name of sales distributed prizes in money, advowsons, land, jewels, &c., by lots, tickets, numbers or figures. Acts of 1722, 1733 and 1823 prohibited any sale of tickets, receipts, chances or numbers in foreign lotteries. The games of cards already referred to as unlawful were in 1738 declared to be “games or lotteries by cards or dice,” and in 1802 the definition of lottery was extended to include “little-goes and any game or lottery not authorized by parliament, drawn by dice, lots, cards, balls, or by numbers or figures or by any other way, contrivance or device whatsoever.” This wide definition reaches raffles and sweepstakes on races. The advertisement of foreign or illegal lotteries is forbidden by acts of 1836 and 1844. In 1846 art unions were exempted from the scope of the Lottery Acts. Attempts have been made to suppress the sale in England of foreign lottery tickets, but the task is difficult, as the post-office distributes the advertisements, although, under the Revenue Act 1898, the Customs treat as prohibited goods advertisements or notices as to foreign lotteries. More success has been obtained in putting down various devices by newspapers and shopkeepers to attract customers by instituting “missing word competitions” and “racing coupon competitions”; by automatic machines which give speculative chances in addition to the article obtained for the coin inserted; by distribution of prizes by lot or chance to customers; by holding sweepstakes at public-houses, by putting coins in sweetmeats to tempt street urchins by cupidity to indigestion; or by gratuitous distribution of medals giving a chance of a prize from a newspaper. An absolutely gratuitous distribution of chances seems not to be within the acts, but a commercial distribution is, even if individuals who benefit do not pay for their chance.

As already stated, the keeping of a gaming-house was at common law punishable only if a public nuisance were created. The act of 1541 imposes penalties on persons maintaining houses for unlawful games. Originally licences could be obtained for such houses, but these were abolished in 1555 (2 & 3 Phil. and Mar.). In 1698 lotteries were declared public nuisances, and in 1802 the same measure was meted out to lotteries known as little-goes. Special penalties are provided for those who set up lotteries or any unlawful game with cards or dice, &c. (1738, 1739, 1744). In 1751 inhabitants of a parish were enabled to insist on the prosecution of gaming-houses. The act of 1802 imposed severe penalties on persons publicly or privately keeping places for any lottery. This statute hits at the deliberate or habitual use of a place for the prohibited purpose, and does not touch isolated or incidental uses on a single occasion, e.g. at a bazaar or show; but under an act of 1823 the sale of lottery tickets is in itself an offence. The Gaming Act 1845 facilitates the search of suspected gaming-houses and the proof that they are such. 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 act also 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 most recent statute dealing with gaming-houses is of 1854, which provides summary remedies against the keeper and makes further provisions to facilitate conviction. It may be added that the Gaming Act 1845 makes winning money by cheating at any game or wager punishable in the same way as obtaining money by false pretences. At the present time proceedings for keeping gaming-houses in the sense in which that word is commonly understood are comparatively rare, and are usually against foreigners. The statutes hit both public and private gaming-houses (see the Park Club case, Jenks v. Turpin, 1884, 13 Q.B.D. 505, the leading case on unlawful games). The proprietor and the person who keeps the bank at an unlawful game are both within the statute: the players are not, but the act of Henry VIII. is so far alive that they can be put under recognizance not to frequent gaming-houses. Under the Licensing Act 1872 penalties are incurred by licensed victuallers who suffer any gaming or unlawful game to be played on their premises. A single instance of playing an unlawful game for money in a private house is not within the statutes (R. v. Davies, 1897, 2 Q.B. 199).

In England, so far as the general public is concerned, gaming at cards is to a large extent superseded by betting on sports and pastimes, or speculation by means of lotteries or like devices. The legislation against betting eo nomine began in 1853. In the Betting Act 1853 it is described as a kind of gaming of late sprung up to the injury and demoralization of improvident persons by the opening of places called betting houses and offices, and the receiving of money in advance by the owners or occupiers or their agents on promises to pay money on events or horse races and like contingencies. This act strikes at ready money betting as distinguished from betting on credit (“on the nod”). It was avowedly framed to hit houses open to all and sundry as distinguished from private betting clubs such as Tattersall’s. The act seeks to punish persons who keep a house,