Chapter IV: Gaming Houses

In Bacon’s Abridgment (title “Gaming”) it is stated “that by the Common Law the playing at cards, dice, etc., when innocently practised, and as a recreation the better to fit a person for business, is not at all unlawful; yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at Common Law and fined and imprisoned. So, also a common player at hazard and using false dice may be indicted for it at Common Law and set in the pillory. An information against a person using the game of cock-fighting may be at Common Law. Also all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood.” Instances are then given of cases in which the Courts have relieved against liabilities incurred by excessive gaming.

In Hawkins’ Pleas of the Crown, Book I., cap. 75, section 6, it is said: “all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but because they draw together great numbers of disorderly persons.”

Blackstone (vol. iv.) who classifies gamblers as (1) those who are led into it by passion, (2) those who play from a greed of gain, (3) those who are drawn into it by their surrounding, states the legal objections to gambling as tending to promote idleness and debauchery among the lower classes and among the upper classes frequently attended with ruin and desolation.

It is clear from this statement that the essence of illegality at Common Law was fraud and excess, and that all establishments which were kept for gaming purposes necessarily led to excess. This being so, it would seem that in point of principle, the Statutes 16 Charles II. and Anne and 18 Geo. II., of which mention has been made in Chapter I. of this work was only declaratory of the Common Law, seeing that they only dealt with fraudulent and excessive gaming, though no doubt they laid down particular tests which did not exist before, as to what should constitute excessive gaming.

[Sidenote: Gaming houses illegal at Common Law.]

In _Reg._ v. _Rogiere_[322] defendants were indicted “for that they did unlawfully keep and maintain a certain gaming house, and in the said common gaming house did cause and procure divers idle and ill-disposed persons to frequent and come to play together at a certain unlawful game called _Rouge et Noir_, for divers large and excessive sums of money.” The Court held that the keeping a house of this description was an offence at Common Law—HOLROYD, J., adding that in his opinion it would have been sufficient merely to have alleged that the defendants kept a common gaming house, [Sidenote: 25 Geo. II., c. 36, sec. 5.] The Statute 25 George II., c. 36, s. 5, confirmed this view of the Common Law; for after reciting the prevalence of disorderly houses, enacts, that to encourage prosecutions against persons keeping gaming houses, &c., it should be lawful for any constable, upon information from two inhabitants of the district, to take proceedings as therein specified. [Sidenote: 2 & 3 Vict., c. 47, sec. 48.] Finally, in 2 & 3 Vict., c. 47, s. 48, we find an enactment that the Commissioners of Police in the Metropolis may authorise constables to enter houses suspected of being used as common gaming houses and arrest persons found therein. _Provided_ that nothing should prevent the prosecution by indictment of any person having the care or management of any gaming house.

Both these statutes clearly regard the keeping a gaming house as an indictable offence; both prescribe certain methods of procedure; one even goes so far as expressly to preserve the Common Law remedy. It is, however, remarkable that in none of the writers or cases is any definition of a common gaming house attempted.

[Sidenote: Test of a gaming house.]

It seems, however, clear from the dicta of text writers just quoted and also from late authorities that any house where a number of people habitually congregate for gaming purposes where the play was excessive, either in the sense of being ruinous, or as tending to become a sole absorbing interest to the players and to distract them from the ordinary business of life, or where the gaming led to turbulence and disorder, such house, even if in form a mere ordinary social club, would be a common gaming house.

[Sidenote: Gaming.]

It seems now to be settled that to constitute gaming at all there must be either playing some unlawful game or playing a game, whether of skill or chance, for money. _Reg._ v. _Ashton_, 1 E. and B. 286, _Dyson_ v. _Mason_, 22 Q. B. D. 351.

[Sidenote: Houses for unlawful games.]

There is also a series of statutes dealing with houses kept for playing unlawful games.[323]

Thus, 33 Henry VIII., c. 9, prohibited the keeping of any common house or place of dicing table or carding, or any other manner of game then prohibited or thereafter to be invented. 13 George II., c. 19, s. 9, inflicts penalties on any person keeping any office, table, or place for the games of passage or games with dice, except backgammon. 18 George II., c. 34, prohibits the keeping of any house, room, or playing roulet, or roly-poly, or any game with cards or dice already prohibited by law. It is stated in Hawkins (Pleas of the Crown, I. 725) that these statutes did not aim at occasional gaming for recreation at an inn which was not kept for the purpose. The games, too, were only unlawful _sub modo_, and were not prohibited in a man’s private grounds. Finally, there are the provisions against keeping houses for lotteries, the principal statute on this subject being 42 George III., c. 119, which, as has been shown above, makes it penal to keep any “office or place” for “Littlegoes.”

[Sidenote: Unlawful games.]

In some few cases particular games have been declared unlawful.

Thus the Statute 12 Richard II., c. 6, made tennis, football, quoits, dice, unlawful when played by artificers and labourers. But this Statute was repealed by Statute 21 Jas. I. Section 16, of 33 Henry VIII., prohibited the same games with the addition of cards, dice, talles, and bowls, to labourers and mariners or any serving man.

[Sidenote: 18 Geo. II., c. 34.]

By 2 George II., c. 28, power is given to justices to commit all persons to prison found playing at any unlawful game.

12 George II., c. 28, s. 2, made the games of faro, ace of hearts, basket and hazard, illegal as lotteries, inflicted the same penalties as for setting up a lottery, and £50 on the players.

The Statutes 13 George II., c. 19, and 18 George II., c. 34, in adding other games to the list, [Sidenote: Players.] expressly imposed the same penalties on the players or adventurers in the games prohibited.[324] As has been suggested above, in dealing with these matters under the head of lotteries, to which they more properly belong, it is difficult to escape the conclusion that persons playing a friendly game of roulette in a private house or a club would be liable under these statutes, although by 46 George III., c. 148, proceedings must be taken in the name of the Attorney-General. From the recent decision in the case of _Turpin_ v. _Jenks_,[325] that any which is a game of chance or of chance and skill combined is now an unlawful game, if not in the sense of being penal, at any rate so as to make it unlawful to keep a house for the purpose of such games. There would then seem to be three legal consequences of a game being unlawful;

(1) Where the statute inflicts a penalty;

(2) A house kept for the purpose is constructively a common gaming house or _primâ facie_ evidence of it.

(3) No prize to be awarded to the winner can be recovered, as we saw when we were discussing section 18 of 8 & 9 Vict., c. 109.

All these three subjects, keeping gaming houses, keeping houses for unlawful games, and playing at unlawful games, [Sidenote: 8 & 9 Vict., c. 109.] were in some measure dealt with by the important Statute 8 & 9 Vict., c. 109, by s. 18 of which, it will be remembered, all wagers were declared void. This statute now forms the basis of the modern legislation on the subject of gaming houses.