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.
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, |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. |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.
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.
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.
Houses for unlawful games.