It must be remembered that a club or private house may equally be a common gaming house as a public place of resort. This is clear from the recitals of section 2 just quoted. The matter is also put beyond all doubt by the late case of Turpin v. Jenks,[[331]] where Mr. Justice Hawkins says that to hold otherwise would lead to evasion by placing a wide limit on the numbers.
It would appear, also, from the same case that a house or club might still be a common gaming house, if it were kept for the double purpose of social pursuits and gaming, if gaming were one of the objects for which the club was formed, or a house kept open. |Excessive gaming evidence.| It is also expressly laid down that excessive gaming is evidence that a house is a common gaming house. Mr. Justice Smith considering that excessive gaming was unlawful in itself, in spite of the repeal of the provisions of the Act of Anne, and section 8 of 18 George II.
Keeping a house for public billiards.
By section 11 of 8 & 9 Vict., c. 109, any person keeping a house or place for public billiards without a license, or without a victualler’s license for the house, and without the words “licensed for billiards” written outside, is liable to be proceeded against as the keeper of a common gaming house.
In section 4 of the Act of 1854 we find, if not a new offence, at any rate a new phraseology. |Keeping a house for unlawful gaming.| The offence there spoken of is not keeping a common gaming house but keeping a house “for unlawful gaming.” What unlawful gaming consists in is not defined: the Legislature evidently supposing that the terms had already received judicial interpretation. The Act of 1845 and the previous sections of the statutes seemed to refer to common gaming houses; and it will be remembered that section 2 of the earlier Act made the playing of any unlawful game in a house evidence that the house was a common gaming house. It will be seen that the term “unlawful gaming” has just received a construction which places it on the footing of a generalization; embracing the two species of offence, viz., playing an unlawful game and keeping a gambling house. The effect and meaning of the term “keeping a house for unlawful gaming,” has of late been thoroughly discussed in the case of Turpin v. Jenks and others,[[332]] commonly known as the Park Club case. Jenks, the defendant in the Court below, was the proprietor of a club house in Park Place, St. James’, managed by a committee of four members, by whom the other members were elected. The subscribers were 270 in number, each paying a yearly subscription. By the rules of the club hazard and games with dice were forbidden, and points at whist were not to exceed £1. All games were to be played for ready money. It was proved by the night steward of the club that a game called baccarat was played nightly among the members. That play commenced at 4.30 p.m., and continued until 7.30, and began again at 10.30 and lasted till 3 or even 8 a.m. Baccarat is a fair game among the players, the chances being equal; it is a game both of skill and chance, but chiefly of chance, and there are no advantages to be derived except from skill or luck. It is played with three packs of cards, and banks are formed varying in amount from £50 to £1,000, the whole of which might be lost or won in about twenty minutes. It was from these banks that the profits of the proprietor, calculated to amount to at least £10,000 a year, were derived. There were no other profits made in the club except the banks; cigars and wine were sold at cost price; the kitchen was carried on at a loss; the subscriptions were barely enough to meet the club expenses. The number of members was limited to 500. The proprietor, the members of the committee, and some of the players were summoned before Sir James Ingham, at the Bow Street Police Court[[333]] for keeping a house for unlawful gaming, and were all convicted in penalties of varying amounts.
These convictions were affirmed in the Divisional Court, except in the case of the players. Hawkins, J., in giving judgment, said that the real question was whether this house was kept for the purpose of unlawful gaming. There could be no question that gaming was the chief object of the club. The social arrangements were quite ancillary to the gaming purposes. The club rules against gambling, though admirable on the face of them, were really intended to conceal the real objects of the club. Even if it had been a bonâ fide social club, for the double purpose of society and gaming, it would still be within the statute as a house opened and kept for unlawful gaming, provided the gaming that took place were unlawful. The Statute 17 & 18 Vict., c. 38, is not directed against a person who merely keeps a gaming house; it imposes penalties on persons who open or keep a house for the purpose of unlawful gaming, and those who assist in it.
The question then really is whether the gaming for which the house was opened was unlawful.
The magistrate put the matter on too narrow a footing in treating it solely as a question whether the games themselves were unlawful; whereas the statute is directed against unlawful gaming, and not merely against unlawful games. Gaming may be unlawful (1) by reason of the place wherein it is played; (2) by reason of the unlawfulness of the game itself. Now, cards are not unlawful, either at Common Law or by statute;[[334]] but it is illegal to keep a common gaming house, and if cards were played therein that gaming would be unlawful.
Two questions therefore arise: (1) Was this a common gambling house? (2) Is baccarat an unlawful game?
(1.) There could be no doubt that this was a common gaming house, and its practices were of the pernicious tendency alluded to by the different law writers and by the judges in Reg. v. Rogiere. |Club.| It is immaterial that the numbers of the club were limited; all gaming houses are; and if you allow a limit of 500, why not of 5,000? (2) As to the illegality of the game, the statutes, with very few exceptions, do not declare any games to be unlawful except when played by particular persons or in particular places. The earliest of the statutes was 33 Henry VIII., which prohibited any common house or alley being kept for the purpose of cards, or dicing, or any unlawful game then known or thereafter to be invented.[[335]] Some of the provisions of this statute, so far as they affected “games of skill,” were repealed. The test, therefore, seems to be whether a game be one purely of skill or not. Baccarat, therefore, being a game both of chance and skill, must be held to be an unlawful game.[[336]]