An eminent and respected physician once said to an enlightened audience: “Not a person before me, but has suffered from vices; indeed, that is what we mean by the imperfection of human nature. When we depart from perfection it is a vice. Everybody is guilty of vices. The people before me, forty years old, should not be so old at fifty or sixty. Their teeth are decayed, and they have imperfect digestion. They do not enjoy the full and happy play of all their powers and faculties, and the greater part of this waste comes from vices. There are certain secret vices which cannot be publicly named, which are doing more to break down our vital force, make us prematurely old, and fetter our souls, than all the crimes committed in the country, and the legislature can do nothing to cure them.
“Without doubt, gluttony is the most destructive of all our vices. It obtains among all classes, all ages, and both sexes. Eminent medical men, in England and America, declare that strong food can count ten victims, where strong drink counts one.
“Tobacco is doing more injury to the minds and bodies of our nation than all the murder, theft, burglary, and arson, and yet the legislature can do nothing to cure the tobacco curse.”
Dr. Lewis wisely continues: “It is not often possible to say of those acts that are called vices, that they are really vices except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point. The question of vice or virtue, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s—except each individual for himself—drawing any accurate line, or anything like an accurate line, between virtue and vice; that is, of telling where virtue ends and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself. Vices are usually pleasurable, at least for the time being, and often do not disclose themselves as vices, by their effects, until they have been practiced for many years, or perhaps for a life-time. To many, perhaps most, of those who practice them, they do not disclose themselves as vices, at all during life. Virtues, on the other hand, often appear so harsh and rugged, they require the sacrifice of so much present happiness, at least, and the results which alone prove them to be virtues, are so often distant and obscure, in fact so absolutely invisible to the minds of many, especially of the young, that, from the very nature of things, there can be no universal or even general knowledge that they are virtues. In truth, the studies of profound philosophers have been expended—if not wholly in vain, certainly with very small results—in efforts to draw the lines between virtues and vices.
“If then, it be so difficult, so nearly impossible, in most cases, to determine what is and what is not, vice; and especially if it be so difficult in nearly all cases to determine where virtue ends and where vice begins; and if these questions, which no one can really and truly determine for anybody but himself, are not to be left open and free for experiment by all, each person is deprived of the highest of all his rights as a human being; to wit: his right to inquire, investigate, reason, try experiments, judge and ascertain for himself, what is, to him, virtue, and what is, to him, vice; in other words, what, on the whole, conduces to his happiness, and what, on the whole, tends to his unhappiness. If this great right is not to be left free and open to all, then each man’s whole right as a reasoning human being, to liberty and the pursuit of happiness is denied him.” “It is now obvious, for the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices and punish them as crimes. Every human being has his, or her, vices. Nearly all men have a great many. And they are of all kinds: physiological, mental, emotional, religious, social, commercial, industrial, economical, etc. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all and punish all impartially. The consequences would be, that everybody would be in prison for his, or her, vices. There would be no one left to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested; we should be all under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious in prison than they ever have been out of it. A government that shall punish all vices impartially, is so obviously an impossibility, that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or, at most a few, of what he esteems the grossest of them.”
“But this discrimination is an utterly absurd, illogical and tyrannical one. What right has any body of men to say, ‘The vices of other men we will punish, but our own vices nobody shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our notion of it. We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness.’ Nobody but knaves and blockheads ever think of any such absurd assumptions as these. And yet, evidently, it is only upon such assumptions that anybody can claim the right to punish the vices of others, and at the same time claim exemption from punishment for his own. The greatest of all crimes are the wars that are carried on by governments to plunder, destroy and enslave mankind.”
It has been asserted that gambling is a vice. I deny that such is the case. The proposition cannot be established, as an absolute principle. If a man chooses to risk his money, on a game of cards, he has a perfect right to do so, in the abstract, and no man, or any body of men, has a right to forbid him. “It is his money, and he has a right to do what he chooses with it. He has a legal right to put it in a gun and shoot it away, or burn it up, or risk it on a game of chance, or make any other disposition of it, and no man, or body of men, has a right to interfere.” For my purpose, as a question of law, the real question is whether a man may dispose of his own as he chooses? If so, then he has a right to wager it on a game of cards, or at dice; and it is absurd to treat as criminal another man who may join in with him in gaming, as an antagonist. In other words, “If John has at any time or in any place, the right to wager his money on a game of chance, then it is absurd to treat as criminal the helping John to do what he has a right to do. If one participant in a transaction is guilty of crime, so is the other. But if one participant is guiltless, then the other is guiltless.”
The keepers of gambling resorts are denounced, as though they were responsible for the gambling propensity in mankind. Now, resorts for gambling do not cause the passion. It is a tendency to which all men are prone, more or less. “The essential fact is the existence of this passion. There can never be any great difficulty in obtaining the means for its gratification.” If not one way, then in another. If at all, attack the principle, in whatever guise or by whomsoever practiced. If some methods are denounced, then should all methods be denounced. If those who furnish certain “means to the end” are to be punished as criminals, then should all persons who furnish any “means to the end.” But to punish any such person is erroneous and very short sighted; for the primary cause of the trouble, if such it be, is the desire for gaming. It is impossible to prevent its gratification. As wisely attempt “to make one’s hair white or black” by virtue of “the statute in such cases made and provided.”
Suppose the law efficacious, with what consistency does our jurisprudence make gambling a crime? In general, at common law, all games are lawful, unless fraud has been practiced. Each of the parties must have a right to the money or thing played for. He must give his free and full consent, and the play must be conducted fairly. The mutual promises of the parties to the wager are held a sufficient consideration. A large number of such actions have been sustained by the courts of England and the United States.
For example, it was held that a wager of fifty guineas by one of the litigants that an appeal from a decree of Chancery would be reversed by the House of Lords, was not, of itself, void, there being no charge of fraud. So, wagers as to the time when a railroad would be completed; or, as to the name of a person whom one of the parties had seen; or, as to the age of one of the parties; or, upon the price of an article of commerce; or, as to who would die first, of two persons not privy to the wager; or, as to whether A. would hit a target; or, upon foot or horse races; were held valid. Indeed, the tendency of the courts to discourage wagers of every nature is relatively of recent date. In many of the United States, the doctrine has been abrogated by statute. Texas, Delaware, California, and some other states still adhere to the English rule.