Gaming And Wagering

The earliest English legislation against games was passed in the interests of archery and other manly sports which were believed to render the lieges more fit for service in war. A statute of Richard II. (1388) directed servants and labourers Games, lawful and unlawful. to have bows and arrows and to use them on Sundays and holidays, and to cease from playing football, quoits, dice, putting the stone, kails and other such importune games. A more drastic statute was passed in 1409 (11 Hen. IV. c. 4) and penalties were imposed in 1477 (17 Edw. IV. c. 3) on persons allowing unlawful games to be played on their premises. These acts were superseded in 1541 (33 Hen. VIII. c. 9) by a statute passed on the petition of the bowyers, fletchers (fléchiers), stringers and arrowhead makers of the realm. This act (still partly in force) is entitled an “act for maintenance of archery and debarring of unlawful games”; and it recites that, since the last statutes (of 3 & 6 Hen. VIII.) “divers and many subtil inventative and crafty persons have found and daily find many and sundry new and crafty games and plays, as logating 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 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 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, office, room or other place for the purpose (inter alia) of any person betting with persons “resorting thereto” or of receiving deposits in consideration of bets on contingencies relating to horse-races or other races, fights, games, sports or exercises. The act especially excepts persons who receive or hold prizes or stakes to be paid to the winner of a race or lawful sport, game or exercise, or to the owner of a horse engaged in a race (s. 6). Besides the penalties incurred by keeping such places, the keeper is liable to repay to depositors the sums deposited (s. 5).

By the Licensing Act 1872 penalties are incurred by licensed persons who allow their houses to be used in contravention of the Betting Act 1853. There has been a great deal of litigation as to the meaning and scope of this enactment, and a keen contest between the police and the Anti-gambling League (which has been very active in the matter) and the betting confraternity, in which much ingenuity has been shown by the votaries of sport in devising means for evading the terms of the enactment. The consequent crop of legal decisions shows a considerable divergence of judicial opinion. The House of Lords has held that the Tattersall’s enclosure or betting ring on a racecourse is not a “place” within the statute; and members of a bona-fide club who bet with each other in the club are not subject to the penalties of the act. But the word “place” has been held to include a public-house bar, an archway, a small plot of waste ground, and a bookmaker’s stand, and even a bookmaker’s big umbrella, and it is difficult to extract from the judges any clear indication of the nature of the “places” to which the act applies. The act is construed as applying only to ready-money betting, i.e. when the stake is deposited with the bookmaker, and only to places used for betting with persons physically resorting thereto; so that bets by letter, telegram or telephone do not fall within its penalties. The arm of the law has been found long enough to punish as thieves “welshers,” who receive and make off with deposits on bets which they never mean to pay if they lose. The act of 1853 makes it an offence to publish advertisements showing that a house is kept for betting. It was supplemented in 1874 by an act imposing penalties on persons advertising as to betting. But this has been read as applying to bets falling within the act of 1853, and it does not prohibit the publication of betting news or sporting tips in newspapers. A few newspapers do not publish these aids to ruin, and in some public libraries the betting news is obliterated, as it attracts crowds of undesirable readers. The act of 1853 has been to a great extent effectual against betting houses, and has driven some of them to Holland and other places. But it has been deemed expedient to legislate against betting in the streets, which has been found too attractive to the British workman.

By the Metropolitan Streets Acts 1867 any three or more persons assembled together in any part of any street in the city of London or county of London for the purpose of betting and deemed to be obstructing the street, may be arrested Street betting. without warrant by a constable and fined a sum not exceeding £5. The Vagrancy Act 1873 (36 & 37 Vict. c. 38) provides that “Every person playing 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 gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.” This act amended a prior act of 1868, passed to repress the practice of playing pitch and toss in the streets, which had become a public nuisance in the colliery districts. The powers of making by-laws for the peace, order and good government of their districts, possessed by municipal boroughs—and since 1888 by county councils—and extended in 1899 to the new London boroughs, have in certain cases been exercised by making by-laws forbidding any person to “frequent or use any street or other public place, on behalf either of himself or any other person, for the purpose of bookmaking, or betting, or wagering, or agreeing to bet or wager with any person, or paying, or receiving or settling bets.” This and similar by-laws have been held valid, but were found inadequate, and by the Street Betting Act 1906 (6 Edw. VII. c. 43), passed by the efforts of the late Lord Davey, it is made an offence for any person to frequent or loiter in a street or public place on behalf of himself or of any other person for the purpose of bookmaking or betting or wagering or agreeing to bet or wager or paying or receiving or settling bets. The punishment for a first offence is fine up to £10, for a second fine up to £20, and the punishment is still higher in the case of a third or subsequent offence, or where the accused while committing the offence has any betting transaction with a person under the age of sixteen. The act does not apply to ground used for a course for horse-racing or adjacent thereto on days on which races take place; but the expression public place includes a public park, garden or sea-beach, and any unenclosed ground to which the public for the time have unrestricted access, and enclosed places other than public parks or gardens to which the public have a restricted right of access with or without payment, if the owners or persons controlling the place exhibit conspicuously a notice prohibiting betting therein. A constable may arrest without warrant persons offending and seize all books, papers, cards and other articles relating to betting found in their possession, and these articles may be forfeited on conviction. Besides the above provision against betting with infants the Betting and Loans (Infants) Act 1892, passed at the instance of the late Lord Herschell, makes it a misdemeanour to send, with a view to profit, to any one known by the sender to be an infant, a document inviting him to enter into a betting or wagering transaction. The act is intended to protect lads at school and college from temptation by bookmakers.

Scotland.—A Scots act of 1621 c. 14 (said still to be in force) forbids playing at cards or dice in any common house of hostelry, and directs that sums over 100 marks won on any one day at carding or dicing or at wagers on horse races should be at once sent to the treasurer of the kirk session. The Lottery Acts, except that of 1698, apply to Scotland; and the Betting House Act 1853 was extended to Scotland in 1874. The Street Betting Act 1906 extends to Scotland, and gaming houses can be suppressed under the Burgh Police Act 1892, and street betting, lotteries or gaming under that of 1903.

The Scots courts refuse to try actions on wagers, as being sponsiones ludicrae, unbecoming the dignity of the courts. 9 Anne c. 19 and 5 & 6 Will. IV. c. 41 extend to Scotland, but the weight of judicial opinion is that the Gaming Act 1845 does not.

Ireland.—The British Acts against lotteries were extended to Ireland in 1780, and the general law as to gaming is the same in both countries.

British Possessions.—Certain of the earlier imperial acts are in force in British possessions, e.g. the act of 9 Anne c. 19, which is in force in Ontario subject to amendments made in 1902. In the Straits Settlements, Jamaica and British Guiana there are ordinances directed against gambling and lotteries, and particularly against forms of gambling introduced by the Chinese. Under these ordinances the money paid for a lottery ticket is recoverable by law. In the Transvaal betting houses were suppressed by proclamation (No. 33) soon after the annexation. An invention known in France as the pari mutuel, and in Australia as the totalizator, is allowed to be used on race-courses in most of the states (but not in New South Wales). In Queensland, South Australia, Tasmania and Western Australia the state levies a duty on the takings of the machine. In Tasmania the balance of the money retained by the stewards of the course less the tax must be applied solely for improving the course or promoting horse-racing. In Victoria under an act of 1901 the promoters of sports may by advertisement duly posted make betting on the ground illegal.

Egypt.—By law No. 10 of 1905 all lotteries are prohibited with certain exceptions, and it is made illegal to hawk the tickets or offer them for sale or to bring illegal lotteries in any way to the notice of the public. The authorized lotteries are those for charitable purposes, e.g. those of the benevolent societies of the various foreign communities.

United States.—In the United States many of the states make gaming a penal offence when the bet is upon an election, or a horse race, or a game of hazard. Betting contracts and securities given upon a bet are often made void, and this may destroy a gaming note in the hands of an innocent purchaser for value. The subject lies outside of the province of the federal government. By the legislation of some states the loser may recover his money if he sue within a limited time, as he might have done in England under 9 Anne c. 19.

Authorities.—Brandt on Games (1872); Oliphant, Law of Horses, &c. (6th ed. by Lloyd, 1908); Schwabe on the Stock Exchange (1905); Melsheimer on the Stock Exchange (4th ed., 1905); Coldridge and Hawksford, The Law of Gambling (1895); Stutfield, Betting (3rd ed., 1901).