The people of this country are generally convinced of this truth. So widespread is the conviction that, where a law “does not have for its object the prevention or punishment of a trespass upon rights, it is impossible to obtain for it an enthusiastic and unanimous support.” Besides, it is true of every community, when “public opinion is aroused to an activity that will enforce a law for the prevention of vice, the moral force alone will be ample to suppress it.” But it is sometimes urged that an otherwise ineffectual statute may serve to direct public opinion in the right direction. To this I reply that one unerring truth is taught by the history of legislation: “It is the utter futility, in a corrective sense, of a law whose enactment is not the unavoidable resultant of the forces then in play in organized society. Nothing so weakens the reverence for law, and diminishes its effectiveness, as still-born statutes.”
Certain matters are generally recognized to be within the police power of the state. For instance, the control of infectious and contagious diseases, of the insane, of habitual drunkards, spendthrifts, vagrants and mendicants. And finally, by forced construction, it has been extended to the liquor traffic. The law, it is said, may prohibit the sale of liquor to minors, lunatics, persons intoxicated, confirmed inebriates, and other persons with certain weaknesses of character. Courts maintain that while the liquor traffic is subject to the police power, yet it may not be entirely forbidden as necessarily injurious to the public in a legal sense. To quote the Supreme Court of Indiana, in Beabe vs. State: “Where injury does result (from the use of beverages) it is usually caused by the shortcomings of the purchaser, without any participation in the wrong of the seller. No business can be prohibited altogether, unless its prosecution is necessarily and essentially injurious. It is the abuse and not the use of beverages that is hurtful. The use of beverages is not necessarily destructive to the community.... Fire-arms and gunpowder are not manufactured to shoot innocent persons, but are often so misapplied. Axes and hatchets are not made and sold to break heads with, but are often used for that purpose. Yet who has ever contended the manufacture and sale of these articles should be prohibited as a nuisance. We repeat, the manufacture and sale of liquors are not necessarily hurtful, and therefore may not be entirely prohibited.”
So much for the “police power,” generally considered. But what of its relation to gambling, if any? If the practice is neither a crime nor a trespass, then it is not rightfully subject to public regulation. I have demonstrated to the candid judgment that, of itself, gambling is not essentially wrong. I insist that, at least, in the absence of fraud and chicane, it is neither sinful, nor criminal. To gamble with another is not to assault his person or property by main force. To wager or bet upon the laws of chance, deceit aside, is not to kill, maim, rob, or cheat your fellow man; the players freely participate in the hope of gain or for amusement. Then wherein is the action either felonious or tortious? Why should the police power interfere? That it cannot properly do so, under our institutions, is conceded by Mr. Tiedeman. He is an able and accomplished lawyer, and recognized by the profession as an authority on the subject. But it may be said, the effects are injurious, and for that reason the state may forbid the practice. That gambling is “necessarily and essentially” injurious to society, I deny. As a pastime, it is innocent, as a principle of action it permeates the business world. If an amusement, it may be abused to the detriment of certain individuals, but the abuse of a thing, innocent in itself, does not make that thing a crime. When an occupation, it is but natural that the laws of chance should operate unevenly: to the advantage of some and to the disadvantage of others. Uniformity of success in affairs is impossible.
Throughout the business world, in every department of human activity, the losers but bear a fixed proportion to the winners. Some must fail that others may succeed. Such is the law of existence, as society is constituted to-day. We are not now concerned with ideals. The realities suffice for my purpose. Chance is at present the great motive power of the world. It sustains hope, and stimulates endeavor. Through its operation men are enriched and nations aggrandized. That some meet with disaster and encounter misfortune does not prove that appeals to chance are criminal in their nature, nor that such appeals are “necessarily and essentially” injurious to the state. Consistently, therefore, gambling cannot be forbidden because in its pursuit some persons are fool-hardy and others unfortunate.
I may be asked, “What do you suggest?” I would license gambling, and place it under such restrictions as would tend to lessen its abuse. I am willing, for practical purposes, to concede this much to the police power. If this policy may be claimed for the liquor traffic, why not for gambling also? Is gambling more injurious than intemperance? No, the victims of alcohol outnumber the unfortunate gamblers a thousand to one. The habitual use of intoxicants is necessarily and uniformly injurious to the individual. This is not true of gambling, as a pastime. The player may win. Some of the players must win. Whatever can be said against the prohibition of the liquor traffic, applies with greater force to gambling. If there are reasons why the sale of intoxicants may be licensed, by the state and municipal authorities, such reasons serve but to demand a like privilege for gambling. Briefly, the rule laid down by the Indiana Supreme Court as to the liquor traffic, in Beabe vs. State, is clearly applicable to games of chance as a business. This is obvious from the whole tenor of my discussion. If the state is not willing to take this step, then leave the matter to “local option.” Leave it to the municipal authorities, whether gambling is to be permitted or not, in a given locality. Let it be a question of policy and toleration, if you will. Regulations may be imposed, as with the saloon. Recognize the existence of gambling as a fixed fact, but interpose a surveillance for the prevention of fraud. As with the saloon, also, provide for the protection of those weaklings who are ever wards of the law: “minors, drunkards, lunatics and spendthrifts.” This policy now obtains generally on the continent of Europe, and to a certain extent in several of the United States: notably, Arkansas, Texas and California.
“What! would you have gambling public?” Yes, rather than private; and that is the alternative presented to the wise. The experience of California, in this matter, is that of every state in the Union, and all may profit by her example. In the words of Judge Murray of that state: “The Legislature, finding a thirst for play universally prevalent throughout the state, and despairing of suppressing it entirely, attempted to control it in certain bounds, by imposing restrictions and burdens on this kind of business. The license operated as a permission, and removed, or did away with the misdemeanor as it existed.” The issue for practical men is: Shall gambling be in sight and subject to control, or shall it be out of sight and beyond control. The “situs” of public gambling is known to the authorities, and thus may its conduct be supervised and regulated: its every operation may be hourly inspected by the police, to the exclusion of those whom the law may with propriety protect from their own acts, and the prevention of cheating by dishonorable methods and devices. If gambling is public, in brief, its abuses can be reduced to a minimum. When repressed at known points, gambling is not thereby discontinued. It is thus distributed over a wider field, there, secretly to thrive in its worst features. Then it is that fraud and theft are triumphant: that “brace” gamblers “wax fat” and their conscienceless harpies pray in secret upon the unwary and the inexperienced. Public gambling is generally fair and honest. Secret gambling is too often but another name for a robbery that cannot be prevented by either police or magistrates. Again, the number of employees are few, comparatively, in the public gambling club, and it is without other allurements than naked chance may offer. Not so the private institution, the patrons of which may freely partake of most seductive viands and expensive liquors; rents are also higher, and more employees are required. The private club is costly in the extreme: an extravagant scale is necessary to its very existence. This is a severe test to the scruples of a proprietor. In some way he must meet expenses and insure a livelihood. For an honest gambler the maintenance of a private club is seldom possible.
“But public gambling would be a temptation to the poor man. You admit that poor men should not gamble?” I answer, who is the “poor” man? When you have found him, who is his keeper? Are you the custodian of his judgment and inclinations? I am of opinion he would repudiate your guardianship with indignation. “Consistency thou art,” indeed, “a jewel.” The rich and well-to-do may gamble, perhaps, but not the man of small resources. I ask, who has the right, for that reason, to say the latter nay? Not you, rich gambler in stocks and farm products; nor you, sir, who nightly gamble in the parlor of a comfortable home, or at the private club you assist in maintaining for that purpose. By what authority were you constituted the keeper of a less fortunate neighbor? All this aside, however, the suppression of public gambling will not deter any man from the pursuit, whether “rich” or “poor.” A thousand avenues are opened to him, despite the law and the authorities. In this matter, society must trust to the education of individual character and the gradual amelioration of mankind. Besides, if gambling were subject to regulation, as other pursuits, our laws could the better protect whomsoever it might desire.
Transcriber’s Notes
Punctuation, hyphenation, and spelling were made consistent when a predominant preference was found in the original book; otherwise they were not changed.
Simple typographical errors were corrected.