Notice of appeal was given.
The appeal was brought on May 26 and 27, and in giving judgment, Sir Henry Hawkins (afterwards Lord Brampton), after saying that the facts were undisputed—there was no profit except on the gaming, though from the admirable printed rules one might well conclude that the Club was a sociable Club, where a gentleman might dine and have his rubber at whist, whilst not on any account allowed to gamble. The rules in question were, however, nightly disregarded, and looking at the nightly doings, it was impossible for any man in his senses to doubt that the house was really opened and kept for the purpose of gaming at the game of baccarat as its main and principal object.
He now had to consider the illegality of the gaming and not merely the illegality of the game—the common law did not prohibit the playing at cards and dice, which were not unlawful games, but the keeping of a common gaming-house was at common law an indictable offence.
Sir Henry Hawkins, after some comments on what constituted a gaming-house, went on to say that in his judgment it was not necessary for a gaming-house to be a public nuisance, which the Park Club was not:—a common gaming-house being itself a nuisance, though the gaming there was limited to the subscribers and members of the Club. The keeper of such a house could always admit or exclude whom he chose, and the committee elected whom they pleased, provided the list of members did not exceed 500. It might be 5000 and yet still not be a public, but a common gaming-house.
As to unlawful games—no games had been in so many words declared by name unlawful, though the Legislature intended to cover some games which, being lawful in themselves, were only unlawful when played in particular places or by particular persons. The Act of 1845 enacted that a house is proved to be a common gaming-house which is kept for playing any unlawful games and a bank is kept by one or more of the players, exclusively of the others, or where the chances of any game played are not alike favourable to all the players.
He divided unlawful games into two classes:
First, those absolutely forbidden by name, to the gaming at which a penalty is attached. This class included "ace of hearts," "pharaoh or faro," "basset," and "hazard," and any other game with a die or dice except backgammon.
Second, a number of games not altogether prohibited under penal consequences, nor declared to be altogether illegal, but which, nevertheless, have been declared unlawful by the Legislature, because the keeping of houses for playing them, and the play in them therein by anybody, were rendered illegal.
The unlawful games of the Acts of Henry VIII. were "bowls," "quoits," "dicing," "tennis," and "carding," most of which would seem to have been games of mere skill. The Acts in question were all repealed by 8 and 9 Vic.
The present unlawful games, then, were "ace of hearts," "faro," "basset," "hazard," "passage," "roulette," and every game of dice except backgammon, and every game of cards which was not a game of "mere skill." He was inclined to add any other game of "mere chance."