Some of the judgments in England were rendered by the greatest of judicial minds: Lord Mansfield, Lord Holt, Lord Hardwicke and Lord Kenyon. In the language of Lord Holt: “When considered in itself, there is nothing in a wager, contrary to natural equity, and the contract will be considered as a reciprocal gift, which the parties make of the thing played for, under certain conditions.” Lord Mansfield laid it down, that wagers are actionable: “and that the restraints imposed on certain species, by acts of parliament, are exceptions to the general rule, and prove it.” And Lord Kenyon declared in Good vs. Elliott: “Being bound by former decisions, not having the power to alter the law, not finding any one case against the legality of wagers in general, and finding cases without number, wherein wagers have been held to be good, and that the payment of them may be enforced, I adjudge the wager in the present case good at common law.” It was a wager that A. had purchased a certain wagon of B.
The source of our jurisprudence is the common law of England. Gambling was not a crime under this system, and here it would enforce the contract of wager. I therefore denounce as incongruous and irrational a statute which seeks to punish the wagerer as a criminal.
Crime, at common law is something essential, so, in its very nature; grounded in the Mosaic decalogue and the reason of things: murder, mayhem, adultery, robbery, theft, arson. The wager is akin to none of these, nor does it come within their spirit. The common law branded as a criminal him only whom God had thus branded. The wagerer was not of the number.
In a word, is gambling malum in se? In answer, the common conviction of men has never so regarded it. The common law has ever recognized a boundary line which separates the mala in se from the mala prohibita. In law, a thing is malum in se when absolutely evil in itself; “not, indeed, in a philosophical sense,” says the eminent lawyer, James C. Carter, “but absolutely, according to the universal conviction, in the political society which so views it; and mala prohibita are those things, otherwise innocent or indifferent, which the legislative power, having control over the subject, may declare to be offenses.” Although not malum in se, gambling may be malum prohibitum. If the latter, then it becomes merely a question of public policy whether or not the state shall license gambling, subject to such conditions as the police power might impose. At any rate, to the extent that government is a moral entity, it cannot rightfully punish gambling as being bad in itself.
“The King is Dead—Long Live the King.”
CHAPTER V.
“The King is Dead—Long Live the King.”
Expressive was the coronation ceremony in the ancient Dukedom of Carinthia. The ducal candidate, in a peasant’s garb, and with head proudly erect, walked towards the marble throne of his ancestors. But upon it was already seated a peasant, attended by the black bull and the lean horse—those sad and severe symbols of his class. Then was commenced between them this rude dialogue:
Peasant:—“Who so proudly dares enter here? Is he a just judge? Has he the good of the country at heart?”