The Statutes of Anne and 18 George II., section 8, which laid down tests as to what was excessive gaming (by the former the loss or gain of £10 at one time or sitting, by the latter £10 at one time and £20 within twenty-four hours) were repealed by 8 & 9 Vict., c. 109, section 15, consequently excessive playing is no longer the test of illegality, but it may be some evidence of a house being used as a common gaming house. |The Committee.| His lordship held that the committee were liable for taking part in the management of the club.
The players.
The conviction against the players could not be sustained, though they might have been convicted of playing at unlawful games, but his lordship reserved this question. The words of the statute, “use the same for the purpose of unlawful gaming being carried on there,” only applies to a licensee to carry on the business.
A. L. Smith, J., delivered a judgment to the same effect, differing from Hawkins, J., only in one point, viz., as to excessiveness making a game unlawful. He considered that the dicta in Bacon and R. v. Rogiere were still good law, although the particular statutory limits of legality had been repealed.
It would seem that if the decision in this case were pushed to its utmost limits the law might be enforced in cases where games, though technically “unlawful,” were merely made the means of innocent recreation. It is not difficult to suppose cases in which a club, though it could not possibly be called a common gaming house, might still be, according to the strict letter of the law, a house kept for unlawful gaming, if a game, not being a game exclusively of skill—say, for example, whist—were one of the objects for which a club was formed. But this is only one out of many applications of the saying, “Summum jus, summa injuria.” The case of gaming houses presents no greater absurdity than the law of larceny, according to which the housemaid who abstracts a pin from her mistress’s pincushion is liable to the same punishment as a clerk who robs his master’s till. In the same way any person who gets up an ordinary sweepstakes for the Derby at a club brings himself in strictness within the Lottery Acts; but probably no magistrate would convict such person as a rogue and vagabond, as he might do under the statutes.
Players.
With respect to the players either in gaming houses or at unlawful games, the penal or restrictive provisions of the statutes are neither numerous nor stringent. 12 Rich. II., c. 6, forbad servants, labourers, apprentices, and artificers to play football or dice, but this was repealed by 21 James I., c. 28. 33 Henry VIII., c. 9, s. 16, forbad artificers and labourers to play at the tables, tennis, dice or bowls out of Christmas under a penalty of 20s. This section does not appear to have been totally repealed, except by 8 & 9 Vict., c. 109, s. 1, so far as games of skill are concerned.
The above provisions seem to have been directed against particular classes of persons. With respect to persons found playing in gaming houses, 33 Henry VIII., c. 9, s. 12, imposed a penalty of 6s. 8d. upon them, and s. 14 empowered justices to enter such houses to arrest the persons “there haunting, resorting, and playing,” and bind them over in recognisances with or without sureties. By 2 George II., c. 88, s. 9, this jurisdiction is extended to cases proved by two credible witnesses.
As to excessive gaming, the penal provisions contained in 16 Car. II., c. 7, 9 Anne, c. 14, and 18 George II., c. 34, s. 8, imposing penalties for winning over a specified sum within a given time, are repealed by 8 & 9 Vict., c. 109, s. 15. In Turpin v. Jenks,[[337]] it was held that the players could not be convicted for assisting in the management or business of the house (see ante p. 160.)
In some cases particular games have been prohibited under penalties; see ante at the commencement of the chapter on Lotteries, where these provisions are summarised. It will be observed that the particular game is always specified, there is no general prohibition against games of cards or chance; and the game is in each case prohibited as a lottery.