evils ought to be considered unlawful, and he (Sir James) considered
that the game of baccarat was not "a game played for recreation,
whereby a person is fitted for the ordinary duties of life." A great
deal had been said upon the subject of large and excessive gambling,
and the argument had been advanced that games which would be large and
risky and excessive for a man who was in the position of a shop-keeper,
would be nothing, trifles infinitesimal, in the eyes of a man of large
property. Granted that was so, still there might be cases in which the
law could be easily applied, and he thought this was one. Referring
to the rules of the Park Club, which was to consist of noblemen,
members of the learned professions, officers of the Army and Navy, and
gentlemen, Sir James observed that a man at the game in question might
lose, with consistent bad luck, £1000 before dinner, and a considerable
sum in addition afterwards. Would there be any difficulty in saying
that that was large and excessive gambling in the case of members of
the learned professions, clergymen, bishops, great leading counsel
of the day, or even judges with the largest salaries, physicians,
and so forth? Gaming such as had been proved to exist would be large
and excessive for any of those classes of men, and still more so for
officers of the Army and Navy. He had no hesitation in saying, with
reference to the gentlemen composing the Club at Mr. Jenks's house,
that gaming had been large and excessive, and that it came within the
principle of the law laid down by Chief Justice Abbot in the case of
"King _v._ Rosier." But he considered the case did not stop there, and
proceeded to refer at great length to the Act of Queen Anne, limiting
gambling.
In conclusion, the learned Magistrate held that all the parties, with
the exception of Mr. Dalton (secretary), had been guilty of gaming. He
fined Mr. Jenks £500, the members of the committee £500, and each of
the players £100.
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."
The question was, did "baccarat" come within this category?--the
description of the game given by Mr. Russell satisfied him that it did.
Baccarat was a game of cards--a game of chance--and though, as in most
other things, experience and judgment might make one player or banker
more successful than another, it would be a perversion of words to say
it was in any sense a game of mere skill. It was, therefore, in his
opinion an unlawful game within the meaning of the statute.
It was said that it was a modern game--assuming it to be so, it was
just what the Legislature intended to include in the phraseology of one
unrepealed section of the law of Henry VIII., which mentioned "any new
unlawful game hereafter to be invented."
With regard to excessive gaming since the repeal of the statutes of
Anne and George II., he did not think excessive gaming at any game
would in itself render the game unlawful, for excessive gaming _per se_
was not any longer a legal offence. Nevertheless, though excessive
gaming was no longer _per se_ unlawful, the fact that it was habitually
carried on in a house kept for the purpose of gaming was a cogent piece
of evidence to be offered to a jury or other tribunal called on to
determine whether a house was a common gaming-house so as to make the
keeper of it liable to be indicted for a nuisance at common law.
Seeing that Mr. Jenks was the occupier and kept the house open for
the purpose of gaming, at, amongst other games, baccarat, an unlawful
game within the meaning of the Statute, he was of opinion that he was
properly convicted.
As to the four members of the committee, the only question was whether
these appellants had the care or management of the house--he thought
they had--they could not but have been cognisant of the rules and of
the true character of the Club. The second rule of the Club placed its
internal management in their hands--he thought there was abundance of
evidence to warrant their conviction.
As to the three players, he found no evidence that they did more than
play at baccarat in the house, by which it might be that they somewhat
enhanced the profits, but they took no part in the management. Adding
to the profits was not a legal offence, as assistance in conducting the
establishment was--the conviction with respect to the three players
ought to be quashed.
Mr. Justice Smith followed, and his summing up entirely coincided with
that of Sir Henry Hawkins. This lucid judgment is of considerable
interest as affecting games played in English Clubs, and did much to
clear up all ambiguity as to how far a Club might allow gambling. It
put an end to all open baccarat, though the game was shortly afterwards
played for a time at "The Field Club," near St. James's Street, an
establishment which much resembled the defunct Park Club in its
diversions, members, and methods, but the police soon interfered, and
with its demise Club gambling at games of chance has become a thing of
the past, except in the low dens of Soho, where faro intermittently
calls for the intervention of the authorities. Police raids upon bogus
Clubs mainly frequented by foreigners of a low class are often reported
in the newspapers.
As regards respectable Clubs, a certain amount of bridge, usually for
very moderate stakes, is indulged in, but gambling for high stakes is
strongly discountenanced. Members inclined to indulge any tendencies
in this direction generally do so elsewhere than in a Club. From time
to time small Clubs in which there is some high play have sprung up
and had a brief existence. When bridge first began to capture London,
a bridge Club was started in the West End where very high stakes were
the rule. It lasted but a short time, owing chiefly to the fact that a
young and not very astute member lost a very large sum, which created
considerable scandal and broke up the Club.
High bridge is now played in London mostly by wealthy people, well
able to take care of themselves. The outcry raised some time ago about
young girls being compelled to join in playing for large stakes is not
based upon any solid foundation of truth, for as a rule high players
are not fond of running the chance of drawing a novice as a partner. A
bad player spoils the game.
Though there is practically no gambling in West-End Clubs, a good deal
of baccarat and poker is occasionally played in private houses, ladies
being not infrequently amongst the players, and here gaming assumes
its most undesirable form. Temper as well as money is generally lost,
whilst the winners are exposed to a by no means remote probability of
never being paid. Private gambling is especially dangerous to young
men, and without doubt a thousand times more harm is done by play of
this sort than by all the properly conducted public tables in the
world.
FOOTNOTES:
[Footnote 5: The love of money compels.]
V
Talleyrand whilst at cards announces the death of the Duc
d'Enghien--"The curse of Scotland"--Wilberforce at faro--Successful
gamblers--The Rev. Caleb Colton--Colonel Panton--Dennis
O'Kelly--Richard Rigby--Anecdotes--Strange incidents at
play--Aged gamesters--A duel with death--General Wade and the
poor officer--Anecdote of a caprice of Fortune--Stock Exchange
speculation--A man who profited by tips.
The history of card-playing is connected with many dramatic incidents.
If the story be true, one of the most striking of these was when
Talleyrand, who had been playing very late at "_la bouillotte_" with
the Duchesse de Luynes, suddenly laid down his cards, and in his cold,
impassive voice asked, "Has the Prince de Condé any other grandchildren
than the Duc d'Enghien?" Receiving an answer in the negative he calmly
said, "Then the house of Condé has come to an end."
At that very moment the ill-fated Duc was being led out to be shot at
the château of Vincennes.
A grim historical interest is also generally supposed to be connected
with the nine of diamonds, which is known as "the curse of Scotland,"
the reason assigned being that the Duke of Cumberland wrote his
sanguinary orders on the back of such a card in 1746. Notwithstanding
this popular tradition, the nine of diamonds had been known as "the
curse of Scotland" as far back as thirty years before Culloden--perhaps
because a somewhat similar design formed the arms of Colonel Packer,
who was on the scaffold when Charles I. was executed. Another reason
given is that there were nine lozenges resembling diamonds in the arms
of the Earl of Stair who made the Union.
Cards have at times attracted the most saintly persons. The first time
the philanthropic Wilberforce was at Brooks's he joined in playing
faro--according to his own account--from mere shyness. A friend of
his, very much surprised, called out to him, "What, Wilberforce, is
that you?" George Selwyn, who was keeping the bank, resented the
interference, and said in his most expressive tones, "Oh, sir, don't
interrupt Mr. Wilberforce, he could not be better employed."
Oddly enough, one of the most remarkable instances of a really
successful gambler was an English clergyman, the Reverend Caleb Colton.
A man of considerable learning, he was originally a fellow of King's
College, Cambridge, and curate of Tiverton. In 1812 he created some
slight stir with two poems entitled "Hypocrisy" and "Napoleon." His
literary reputation was further enhanced in 1818, when the author
had become Vicar of Kew, by the publication of a volume of maxims
called _Lacon: or Many Things in Few Words_. This work, however,
was not absolutely original, being in a great measure founded upon
Lord Bacon's _Essays_, Burdon's _Materials for Thinking_, and the
well-known aphorisms of La Rochefoucauld.
[Illustration: LA BOUILLOTTE.
From a scarce print after Bosio.]
About this time Mr. Colton began to speculate, and, having dabbled
rather recklessly in Spanish bonds, his affairs became involved. This
frightened the reverend gentleman, and, though there appears to have
been no pressing reason for taking such a step, he absconded.
His affairs were subsequently put in order, after which Mr. Colton for
a time betook himself to America, eventually returning to Europe and
settling down in Paris. Here he took up his abode in the Palais Royal,
at that time the head-quarters of dissipation and amusement--surely the
queerest spot ever selected by an English clergyman for his abode.
Colton now began to make an exhaustive study of the intricacies and
mysteries of the gaming-table, every facility for putting theory into
practice being at his very door. Unlike most searchers after infallible
methods of winning, he was completely successful, and in the course
of a year or two won over £25,000 by some method of staking, of which
no reliable record seems to exist. More wonderful still, the Reverend
Caleb kept his winnings, part of which he devoted to the purchase of
pictures. He was a cultivated man, and published an ode, which was
privately circulated, on the death of Lord Byron.
The end of Mr. Colton was a tragic one, for in 1832 he blew out his
brains at the house of a friend living at Fontainebleau. The act in
question was, of course, attributed to the effect of gambling losses. A
thrilling story was told which described how the unfortunate clergyman,
after ruinous losses at Frascati's, had blown his brains out in the
forest of St. Germain, and, as always follows in such cases, an outcry
arose, demanding the suppression of the tables in the Palais Royal
and at Frascati's. Gambling, however, was in no way responsible for
Colton's end, the real cause of his suicide having been a disease
necessitating a painful operation, to which the successful gambler
preferred death.
A very fortunate gamester was Colonel Panton, who in the early part
of the eighteenth century suddenly realised a considerable fortune by
keeping a gaming-house in Piccadilly. Though by nature a confirmed
gambler he then exhibited extraordinary common sense, and, having
invested his winnings in house property and land, entirely abandoned
the card-table and the dice-box. His name is still preserved in Panton
Street, Haymarket.
Another sporting character who amassed a large fortune by gambling
and the Turf was Colonel Dennis O'Kelly,[6] the owner of the famous
race-horse Eclipse.
The rank of Colonel which this Irishman was entitled to assume was
procured by him in a characteristically curious way. In 1760, when
the county of Middlesex was very backward in raising sufficient men
for its militia, a well-known Scotch adventurer, MacGregor by name,
whose family had suffered a good deal for the Stuarts in 1745, seeing
a good opportunity of making some money, set about raising a regiment
in Westminster which the Government promised to recognise as soon
as three-fourths of the commissions should be filled up. He found,
however, difficulty in obtaining officers and had to ransack the town
and hold out commissions to all sorts of people, amongst whom was
O'Kelly, who became an ensign, in due course of time rising to be
Lieutenant-Colonel. O'Kelly, though totally ignorant of discipline, is
said to have presented the most soldierly appearance of any officer in
the regiment. This was not saying much, for the third captain was a
tea-dealer, the fourth a tailor, and the fifth a boatswain's mate who
had bought an ale-house with prize-money and could just sign his name.
The most junior officer was a crippled creature of foreign extraction.
When O'Kelly became a major, he is described as having put his regiment
through certain military evolutions to the entire satisfaction of the
King and his staff, whilst his Lieutenant-Colonelcy was celebrated by a
splendid entertainment which many of the aristocracy of Leicestershire
attended. O'Kelly was sometimes known as Count O'Kelly, a title which
was supposed to have been conferred upon him by his fellow-prisoners
during a sojourn in the "Fleet" when he was a young man. Here he met
Catherine Hayes, who lived as his faithful companion through life.
Though she was never married to him, her position was more or less
recognised, and O'Kelly left her an annuity which she continued to
enjoy till she died, in the second decade of the nineteenth century, at
the age of eighty-five.
Among many racing successes O'Kelly won the Derby twice--in 1781 with
Young Eclipse by Eclipse, and three years later again with Sergeant by
Eclipse out of Aspasia.
His racing colours were scarlet and black cap.
Whilst there is no doubt but that O'Kelly was very lucky in much that
he undertook, his originality and penetration were largely responsible
for a success which, however, never gained him admission into
fashionable circles.
Though a hospitable man of a certain genial humour, O'Kelly was not
very open-handed to dependents. In spite of his affluence he was
even mean enough to keep jockeys of the poorer class out of their
money, season after season, being sometimes even sued by them in
the law courts, and personally dunned on the race-course stands. In
such a place, on one disgraceful occasion, an old sportsman made
the Captain look extremely small by apostrophising him as a mean,
low-lived, waiter-bred skunk. In spite of these failings O'Kelly
achieved a certain popularity by the good dinners and excellent wines
which he provided at his house at Epsom, his dry and truly Irish
facetiousness affording the highest zest to those entertainments. At
his country house he would never allow any betting or gambling. A
constant subject of jest amongst his familiars was the tone in which
at dinner he used to say, "John, bring the aaples," meaning the pines,
and the whimsicality with which he would apostrophise his servant on
certain occasions. The latter having announced the non-arrival of
fish, "Begorra," said his master, "and if you can't get any fish,
bring herrings." O'Kelly was a gentlemanly and even graceful man
in behaviour, a strong contrast to his bear-like figure, dark and
saturnine visage, with the accompaniment of his rough striped coat and
old round hat. A quite peaceable man, though a true-bred Milesian,
O'Kelly never had the smallest appetite for fighting with any weapon
whatever. He was a great contrast in this respect to the bullying
Dick England, with whom he once became involved in a law-suit. He
was ambitious of honour and distinction, a proof of which was his
successful pretension to military rank. In the darling object of his
life, however, capricious fortune left him in the lurch; the Jockey
Club, whose action in this matter was generally approved, steadily
refusing to admit among them a parvenu, not, perhaps, of unequivocal
character. This O'Kelly, so much of a philosopher in other things, did
not possess philosophy enough to forgive, but, in revenge, never failed
to characterise the honourable body which refused to admit him by the
very hardest professional names which his wit and bitterness could
devise.
Very much aggrieved at not being admitted into certain of the Clubs
at Newmarket and in London, which were frequented by aristocratic
sportsmen, he never lost an opportunity of retaliating on those whom he
deemed responsible for his exclusion.
On one occasion, when making an arrangement to retain the services of
a certain jockey, he told him he had no objection to his riding for
any other person provided he had no horse running in the same race;
adding, however, that he would be prepared to double his terms provided
he would enter into an arrangement and bind himself under a penalty
never to ride for any of the black-legged fraternity. The consenting
jockey saying that he did not quite understand who the Captain meant
by the black-legged fraternity, the latter instantly replied with his
usual energy, "Oh, by ---, my dear, and I'll soon make you understand
who I mean by the black-legged fraternity:--there's the Duke of G., the
Duke of D., Lord A., Lord D., Lord G., Lord C., Lord F., the Right Hon.
A.B.C.D., and C.I.F., and all the set of thaves that belong to their
humbug societies and bug-a-boo Clubs, where they can meet and rob one
another without detection."
This curious definition of the black-legged fraternity is a
sufficiently clear demonstration of how severely O'Kelly felt himself
affected by his rejection. He made a point of embracing every
opportunity of saying anything to excite the irascibility of the
sporting aristocracy, whilst shirking no difficulty or expense to
obtain that pre-eminence upon the Turf which he eventually enjoyed.
Dining at the stewards' ordinary at Burford races, in the year 1775,
Lord Robert Spencer in the chair, Lord Abingdon and many other noblemen
being present, matches and sweepstakes as usual, after dinner, were
proposed and entered into for the following year--amongst the rest,
one between Lord A. and Mr. Baily, of Rambridge, in Hampshire, for 300
gs. h. ft., when the Captain was once or twice appealed to by Mr. B.
in adjusting the terms, and Lord A. happened to exclaim that he and
the gentleman on his side the table ran for honour, the Captain and
his friends for profit. The match was at length agreed upon in terms
not conformable to the Captain's opinion, and consequently, when he
was applied to by B. to stand half, he vociferously replied, "No, but
if the match had been made cross and jostle, as I proposed, I would
have not only stood all the money, but have brought a spalpeen from
Newmarket, no higher than a twopenny loaf, that should (by ---!) have
driven his Lordship's horse and jockey into the furzes, and have kept
him there for three weeks."
His support of and attachment to Ascot was strikingly conspicuous.
During the races there he ran a horse each day for years, whilst his
presence and his pocket enlivened the hazard-table at night.
Here it was that, seeing him turning over a quire of bank-notes, a
gentleman asked him what he was in want of, when he replied he was
looking for a little one. The inquirer said he could accommodate him,
and desired to know for what sum. Upon which he answered, a "fifty, or
something of that sort, just to set the caster." At this time it was
supposed he had seven or eight thousand pounds in his hand, but not
a note for less than a hundred. He always threw with great success,
and when he held the box, was seldom known to refuse throwing for any
sum that the company chose to set him; and when "out" was always as
liberal in setting the caster, and preventing a stagnation of trade
at the table. On the other hand, his large capital and good luck not
infrequently captured the last guinea of the bank.
It was O'Kelly's usual custom to carry a great number of bank-notes
in his waistcoat pocket, wisped up together with the greatest
indifference. Playing at a hazard-table at Windsor during the races, as
a standing better (every chair being full), a strange hand was observed
by those on the opposite side of the table, furtively drawing two notes
out of his pocket. The alarm was given, and the hand as instantaneously
withdrawn, the notes being left more than half out of the pocket. The
company were eager for the offender to be taken before a magistrate,
and many attempted to secure him for that purpose, but the Captain
very philosophically seizing the thief by the collar, merely kicked
him downstairs with the exultant exclamation that "'twas a sufficient
punishment to be deprived of the pleasure of keeping company with
jontlemen."
On one occasion, when at Newmarket, O'Kelly offered to bet a
considerable sum with a gentleman who knew nothing about the
redoubtable Irishman. The stranger, half suspecting that the challenge
came from one of the black-legged fraternity, begged to know what
security he would give for so large a sum, if he should lose, and
where his estates lay. "O! Begorra, my dear creature, I have the map
of them about me, and here it is, sure enough," said O'Kelly, pulling
out a pocket-book, and giving unequivocal proofs of his property, by
producing bank-notes far exceeding in value the amount of the wager.