although the evil there is an infant one as compared with ours, out of
which indeed it has arisen, thus adding one more to the responsibilities
of our nation for its gambling laxity. The occasion which aroused the ire
of the authorities of our neighbours was the distribution by _Le Petit
Parisien_ of £24,000 in prizes for guessing the number of grains in a
certain-sized bottle of wheat. The excitement was such that in ten days
the circulation of the paper more than doubled, and special shops were
opened in Paris and other large towns for the sale of bottles resembling
the sealed one in question.
_(f) Gambling Clubs._—Habitual gambling in the social clubs of wealthy
Englishmen has led to a very anomalous state of the law and of its
application. It is not worth while to go further back than the case
of _Downes_ v. _Johnson_ (Albert Club) to illustrate this. There was
no serious dispute as to this not being a betting club, or that the
purpose of its existence was not betting. No reasonable person could for
a moment doubt that if betting were stopped the club would collapse,
and the police authorities in 1895 made an attempt to bring about this
result. They had good reason for knowing the evil arising from it.
That provisions could be obtained, and were consumed in considerable
quantities, was shown; but any serious contention that such a club was a
social club would be dispelled by a visit to the premises, in an obscure
court turning out of Fleet Street. The judges, however, appeared to be
hampered by a desire to shield private betting, and the judgment remains
the charter for organised house betting under the protection of the
name of club. There are several other such large institutions in London
and elsewhere (besides innumerable smaller ones), the chief of those in
the metropolis being notorious gambling centres, where settling day is
carried on in the same business-like way as on the Stock Exchange. They
all owe their continued existence to the reluctance of the Courts and
Parliament to deal with the card and Turf gambling which goes on at the
well-to-do clubs, and thousands of gambling centres all over the country
are shielded by this unhappy partiality.
The above decision may be said to have broken up any efficiency of
existing legislation, and so pernicious has its effect been that a very
modest attempt to reduce the number of the poorer class institutions
was at last introduced as a makeshift in the Licensing Act for the
registration of clubs, which came into force on January 1, 1903. It is
true that it only applies to clubs selling liquor, but as betting men
are almost invariably drinkers it is probably comprehensive in this
sense. Its inefficiency was illustrated last May by a decision of Mr.
Justice Bucknill, by no means a lover of betting men, who presumably
considers himself bound by former decisions. The judge must have known
the extreme difficulty of the police getting evidence at all, and that it
probably could not be got except by the raid, which he approved, and that
a second raid after such a warning would almost inevitably be abortive.
Yet, although systematic betting was proved, he ruled that it was not
illegal, although it might have been so if it had been shown to go on day
after day. The false protection extended to the race-course rings by the
Powell-Kempton Park case would be incomplete if it were not to cover the
betting clubs, and no branch of the gaming laws is more defective than
with regard to these latter.
Last year the Grand Jury at Liverpool made a presentment in which they
called attention “to the large sums of money extracted from the public
by the so-called social clubs, which have formed the subject of several
of the prosecutions which have come before us, and we feel that much
harm must be done to working men and clerks belonging to the city by the
assistance of these clubs.” Unfortunately, while the Act in question
gives facilities for proceedings against such institutions, the police
are often bribed. The writer knows of more than one instance of notice of
a coming raid having been secretly given by police officers. In one case
in London the proprietor openly boasts his defiance of any attempt to set
the law in motion against him. Matters are no better in the provinces,
and are not likely to be anywhere until the police have been thoroughly
overhauled.
_(g) Petty Gambling._—A few only of the multifarious forms of petty
gambling can be mentioned here, principally with reference to the
temptations spread before the rising generation. Amongst them are the
automatic machines referred to above, which an ever-vigilant and not
too scrupulous commercial instinct has been busy in turning to account
for the purpose. Playing-cards figure also under this heading as a very
widespread source of demoralisation among the young, especially in poor
districts. Enormous quantities are sold in this country, as statistics
show, and now that they are made small and cheap they are to be found
everywhere. Amongst the young—where there is no bribery or but little—the
police are more active and unrestrained. Gaming with cards and in other
forms in a public place is prohibited, and prosecutions in connection
with them are frequently reported in the newspapers. It is consequently
often followed by juveniles in the poorer class refreshment-houses, and
the proprietors are liable if in any way conniving at it, as in the
case of a man at Hammersmith, where fifteen boys were found playing
nap, and it was shown that he charged each boy a penny by the half-hour
for the table. This sort of thing is going on all over the kingdom, and
between the example set by their elders and the difficulty of passing
more drastic laws while leaving gambling almost unfettered for rich
people, the coming race in Great Britain promises to be worse rather
than better, notwithstanding all the efforts of reformers. Sir W. H.
Stephenson said at Newcastle some time ago, in sentencing a group of
lads for gambling, that he did not know what would become of the rising
generation. Very numerous instances could be quoted of remarks showing
the astonishment and despondency felt by magistrates generally. At many
of the Courts hardly a week passes but what a batch of these young
offenders has to be dealt with. Organised Sunday gambling is very common
in numbers of districts, regular scouts and a system of signalling being
maintained to outwit the police.
N. _Gambling in the Stock, Produce, and other Markets_
It may be said that there is positively no effective legislation in
existence, if an exception be made of the Bank Act 1867, 30 Vict. c. 29,
which provides for contracts identifying the shares of banks bought and
sold. However thoroughly we may be convinced that much of the business in
the above marts is to a great extent a matter of gaming, it is impossible
to ignore the fact that there is a large amount of legitimate business
transacted in them, and that the commercial world could hardly exist
without them. There is, moreover, the great difficulty of drawing a line
between the commerce and the gambling. Of course the havoc and ruin
arising are known to all. The Stock Exchange is probably responsible for
as much loss and misery as even the Turf, and the suffering caused in
Lancashire by the recent cotton gambling is but one instance, and that
as it were a by-product, of the extravagant transactions of the produce
exchanges. Pages might be filled with instances, such as the sale on a
single occasion of two millions of a well-known railway’s stock, only
£500 of it being a genuine investment. Where a commercial element is
inherent, and of shifting and unascertainable proportions, difficulty
has hitherto been found in framing laws against gambling which would
not hamper legitimate enterprise; and consequently, in our country,
by leaving things alone, the gambler has been actually encouraged by
allowing him to go scot free of the moderate _pro rata_ dues exacted from
the investor. In this particular the present laws are most unhappily
defective, and when we come to deal with remedies on a later page
suggestions will be made upon the subject.
BETTING
In the forefront of existing legislation with regard to betting is the
great statute known as the Betting Act 1853, 16 & 17 Vict. c. 119. “This
most salutary Act,” as Lord Chief Justice Russell called it, was passed
when betting by the deposit of ready money was carried on to an enormous
extent in houses and offices in towns, and only to a very limited extent
in race-course enclosures; and the Attorney-General of the day, in
telling the House of Commons that the Bill was not intended to interfere
with Tattersall’s, was either unaware how rapidly the ready-money system
at the races was growing, or designedly suppressed allusion to it, as
an awkward question not absolutely necessary to be faced at the time.
The Act crushed the town houses, and the business was transferred to the
rings, and the question of the application of the Act to these open-air
betting-shops was not decided by the (Criminal) High Court until 1897,
in _Hawke_ v. _Dunn_ (1897, 1 Q.B.), when Mr. Justice Hawkins, whose
knowledge of the Turf was well known, delivered an unanimous judgment on
behalf of the five judges of the Queen’s Bench Division who heard the
case, holding the rings to be nothing but betting-houses or places. This
meant police raids upon the rings, and the writer was assured at Scotland
Yard that the police force would do its duty. But the stoppage of half
the race meetings in the country was involved, and the Jockey Club and
the bookmakers immediately trumped up a collusive civil case—_Powell_
v. _Kempton Park Co., Ltd._ (1897, 2 Q.B.)—which could be carried above
the (Criminal) High Court. The supposed plaintiff was a clerk in the
office of the business men of the Jockey Club. It could not be found
that he was either a householder or a ratepayer at the suburban address
endorsed on the writ. His only status was obtained by getting a single
share in the Kempton Park Co. from one of its directors, a bookmaker, and
within a month of the above decision a writ was issued by him under the
pretext that he wished to prevent the company permitting the illegalities
condemned in _Hawke_ v. _Dunn_, but for the real purpose of re-trying
the question in a form which might give a chance of overthrowing that
decision in the Court of Appeal and the House of Lords. In each case the
Courts were divided, but the majority of both went against the unanimous
judgment of the Criminal Judges, although the collusion and misstatements
were of so scandalous a nature that they were denounced by more than one
member of the latter tribunal. These cases were long, but for the general
public the question of whether the existing legislation of the Act of
1853 ought or ought not to have been held to apply to the rings can be
put in a nutshell. All the Courts agreed that the rings must be treated
as if they were capable of being “places.” How then could they be ruled
out of the Act? Everything turned upon the construction of the language
of sections 1 and 3; here it is, abbreviated but not altered: “Any person
who, being the owner or occupier of any place, or a person using the
same, shall open, keep, or use the same for the purpose of any money
being received, etc.; and any person who, being the owner or occupier,
shall knowingly and wilfully permit the same to be opened, kept, or used
by _any other person_ for the purpose of any money being received, etc.”
Everything turns upon the italicised words. Lord Chancellor Halsbury and
the majority of the judges took the only view under which it was possible
to protect the rings, by holding those italicised words to mean a person
having authority over the whole ring, a person analogous to and of the
same genus as the owner or occupier, and therefore as not applying to any
one of the various bookmakers carrying on business on his own account
within it. Three questions which were not asked should have disposed of
this view entirely:—
(1) If the _any other person_ is a person analogous to and of the same
genus as the owner or occupier, why is he in this second part of section
3 clearly considered to be in the subordinate position of a user by
permission? And if this second part of the section does not hit such a
person as the bookmaker, what possible person can it be aimed at, not
already struck by the first part of the section (other than those having
the care or management separately named later on)?
(2) Why did the Act immediately stop the business of the town houses?
For, under the construction now given to it, the proprietor had merely to
alter his arrangements, announcing that he himself would take no part in
the betting, but would get his profit by an entrance fee charged to all
comers alike, as the proprietors of the rings do.
(3) Under this construction, what is to prevent houses or rooms being
opened in towns by hairdressers, tobacconists, or others, charging an
entrance fee to all comers, but the proprietor taking no part in the
betting?
Briefly summed up, the House of Lords’ judgment comes to this. The
Kempton Park ring owners or occupiers are not responsible, because they
do not themselves carry on the business of betting in the ring; and the
bookmakers are not responsible, because, although they do this, they are
not owners or occupiers, or persons using the same in control of, or
authority in the place.
We have pointed out that the Act could have been shown to apply to the
bookmakers but for the disgraceful collusion of this case, in which
plaintiff and defendants desired the same result; but it is proper
to qualify this by saying that the professional men, upon one side
at all events, should be looked on as dupes rather than accomplices.
Unhappily, it must be added that such a black page of disgrace would not
have defaced our Law Reports but for private and influential pressure
brought to bear upon certain members of the Courts of such a nature as
to have outweighed with them the fearful responsibility of throwing open
every public-house in the kingdom—indeed, potentially, every private
house—as an authorised betting establishment; for the decisions finding
public-houses to be “places” because bookmakers carry on business in them
is absolutely contrary to the Powell-Kempton Park judgment, although
this is done occasionally by the Courts, most anxious as all of them
are to prevent the evils arising from public-house betting; but the
shifts to which they are driven to reconcile their decisions with the
Kempton judgment are almost as amusing as they are humiliating. Thus the
strong arm of the Act of 1853 has been temporarily paralysed, and these
peripatetic Monte Carlos all over the kingdom, the rings, have had their
lives prolonged for the present.
There are, however, two subordinate sections, 5 and 7, which are of
great importance, or rather have become so through the exertions of the
National Anti-Gambling League. By judgments obtained in the King’s Bench
Division, and confirmed by the Court of Appeal (_Lennox_ v. _Stoddart_
and _Davis_ v. _Stoddart_, C.A. 1902—2 K.B.), under sections 1 and 3 of
the 1853 Act, the deposit of money for betting is illegal, even though
not made direct to the house or place of business of the bookmaker. By
these judgments it will be seen that all bookmakers advertising from
offices in the United Kingdom and receiving deposits (before the issue of
the events betted upon) there _or elsewhere_, directly or indirectly, are
keepers of betting-houses, and their advertisements illegal under section
7; and that the newspaper proprietors admitting these advertisements are
also offenders under the same section. This has only recently become
clear in law, and still awaits application on a large scale. The same
remark applies to the operation of section 5, under which, by the Court
of Appeal decisions referred to, all such deposits can be reclaimed for
the senders by the special statutory right of the Act; in the words of
Lord Justice Matthew, as “a penalty, or mulct in the nature of a penalty,
for a violation of the terms of the Act of Parliament.” In many cases
considerable sums have already been refunded by the bookmakers, but,
while any loophole is left open by doubts as to the application of the
Act of 1853 to bookmakers ostensibly giving no address in the United
Kingdom, but carrying on business across the Channel, there is something
to be said for the policy of not pressing the application of sections 5
and 7 before other lines of the campaign against the professional betting
system.
Although the destructive judgment in _Powell_ v. _Kempton Park_ reduces
the public fear of betting in houses or places other than race-course
rings to little more than a popular superstition, provided such places
are arranged as indicated above, that fear still prevails, and has
consequently brought about a regular system of betting almost anywhere
and everywhere out of doors, commonly known as street betting. For many
years the association formed to combat the general evil has busied
itself, _inter alia_, in getting County and Municipal authorities to
pass bye-laws against this street system of betting, and these are now
in force in about 150 areas, including many of the principal cities
and counties, but the Acts sanctioning these bye-laws (Counties, sec.
16 Local Government Act 1888; Cities, Towns, etc., sec. 23 Municipal
Corporations Act 1882) only permitting a maximum fine of £5, without
powers of arrest and search, have been found unequal to the evil, so that
the fines are merely looked upon by the bookmakers as a tax on profits;
and to the despair of the authorities the effect is merely to enhance
the police fines by a small share of the profits of the trade. Wealthy
bookmakers employ several underlings, and drive round in a trap at stated
intervals to receive their takings, never appearing themselves before the
magistrates, but merely supplying the fines to their servants. Others
surround the exits of places of business of all kinds at the dinner hour,
or even collect deposits at the small houses of the workers, during their
absence, from their wives; and numbers of them adopt the subtle plan
of bribing foremen and forewomen on the business premises to act as
their agents by giving them a commission on the profits. Circulars have
been published in the _Times_, received from bookmakers by foremen in
the employ of mercantile firms of first class standing, offering 10 per
cent commission to influential employees. Convincing evidence was given
before the Select Committee of the House of Lords as to the deteriorating
effects of the professional betting system upon the character and work
of British artisans, and the information subsequently published by the
Moseley Commission strongly confirms this in making comparisons with
foreign workmen.
SUGGESTED ALTERATIONS IN THE LAW
BETTING
Having laid before the reader an account of existing legislation at
the commencement of the twentieth century with regard, firstly, to
Miscellaneous Gambling, and, secondly, Betting, suggestions shall now be
made as to how the law can be amended and made more operative; but as the
last of the two items, Betting, is freshest in the mind, the order shall
be reversed, and it shall first occupy our consideration.
It would be useless to confuse the reader’s mind by going through the
statutes relating to betting, other than the Act of 1853, which is the
reformer’s armoury; but it requires to be refurbished and enlarged, and
will then be capable, supplemented by the proposed Street Betting Bill,
of bringing about a great and beneficial change.
What is desirable must be subdivided into what may be considered now
practicable, in accordance with the position approached by public
opinion; and further reforms, to prepare the way for which social
reformers have still much to do.
It may be wise, and save time in the end, to confine attempts at
legislation to three short and simple improvements, viz.: (1) passing
the Street Betting Bill for largely increasing the fines and inflicting
imprisonment for that offence, as unanimously recommended by the Select
Committee of the House of Lords; (2) an amendment of section 7 of the
Betting Act of 1853, subjecting advertisements of foreign betting-houses
to the same penalties as those in the United Kingdom; and altering the
wording of the same, which now only condemns advertisements “whereby
it shall be made to appear,” which words were regretfully held by the
King’s Bench Division in _Ashley and Smith, Ltd._, v. _Hawke_, K.B.D.
1903 (_Sportsman_), not to cover the advertisements of notorious
betting-houses, as the advertisements on their face merely referred
to races, etc., and gave the necessary address for communications and
remittances. Such advertisements have always been considered as dubiously
lawful, and double charges are paid for their insertion. More than one of
the sporting, or rather betting, papers make profits of £5000 to £7000
a year out of them; and the Lord Chief Justice, in his judgment, spoke
of the necessity of legislation, as has been already stated; (3) making
payments of bets in public-houses illegal. A Bill of twenty lines might
cover the whole of the above.
With these three amendments of the law, and Scotland Yard enforcing the
present laws as expounded in the Court of Appeal cases above against the
betting-houses, great progress will be made. The bankruptcy authorities
should take advantage of these decisions to insist upon the return of all
monies sent to bookmakers by debtors within the statute of limitations,
under section 5 of the 1853 Act.
But these improvements, so long as the _Powell_ v. _Kempton Park_ case
remains unchallenged, or the law as to “persons using” unaltered, will
still leave all British sport grounds open to the baneful influence of
the bookmaker—indeed, as previously explained, every house, room, or
enclosed place in the kingdom. The time will surely come when the nation
will insist upon this scandal being removed. Reasons have been given for
thinking that the House of Lords’ judgment in _Powell_ v. _Kempton Park_
cannot possibly be the right interpretation of the Act of 1853; and that
it was differently interpreted by the racing world, and by the Jockey
Club itself, even twenty years after it was passed, may be shown by here
quoting from the notice in the _Racing Calendar_ published in 1874: “It
having come to the knowledge of the Stewards of the Jockey Club that
betting for ready money in the ring ... has taken place at Newmarket,
they hereby give notice that no such illegal betting is permitted either
in the enclosures or any part of their property at Newmarket.” Thus in
1874 deposit-taking by bookmakers was held to be illegal, for it is quite
impossible that the notice refers to persons in authority and control,
as Lord Halsbury now says the persons using are, for the controllers
were the stewards themselves or their managers, and these managers are
separately provided for in the Act. When it is determined to suppress
professional betting the alteration in the wording of the Act need be
only a simple one to free athletic sports of all kinds from the farce of
the immunity of the proprietor as not betting but taking entrance fees,
and of the bookmakers as betting but not being proprietors. But if the
awful consequences following from the professional betting system were
fully known, an Act making the calling itself entirely illegal would
appeal strongly to the public conscience. To license them would be as bad
as to return to the days of state lotteries, or to adopt the Continental
plan of taking special taxes in commutation of the offences of those who
trade upon other vices.
MISCELLANEOUS GAMBLING
N. _Gambling in the Stock, Produce, and other Markets_