GAMING, the art of playing or practising any game, particularly those of hazard, as cards, dice, tables, and so forth.

Gaming was particularly remarked by Tacitus as distinguishing the ancient Germans. “They addict themselves," says he, in his treatise De Moribus Germ. c. 24, “to dice, as a serious employment, with such an extravagant desire to win or lose, that when everything else fails they will stake even their liberty and their very persons. The loser goes into a voluntary servitude: though younger and stronger than his antagonist, he suffers himself to be bound and sold; and this perseverance in so bad a cause they call the point of honour.” This passion we seem to have inherited; and by the ancient common law of the land it was not forbidden. Its pernicious consequences, however, are manifest; and both the legislature and the courts have interfered to restrain it.

In England there are three principal statutes on the subject, and a multitude of minor ones, the particular descriptions and prohibitions of the law being ever behind the inventions of sharpers and interested men. The first statute, 33 Hen. VIII. c. 9, was directed against the inferior classes, and prohibits to all but gentlemen the games of tennis, tables, cards, dice, bowls, and other unlawful diversions therein specified, unless in the time of Christmas, under pecuniary pains and imprisonment. But this was legislation at once unequal, cruel, and impolitic, and indeed, according to modern experience at least, it is gaming in high life which particularly requires to be restrained. Accordingly, by 16 Car. II. c. 7, it was enacted that if any person shall play at any of the games mentioned in the second section, namely, cards, dice-tables, tennis, bowls, skittles, shovel-board, or cock-fighting, horse-races, dogmatches, foot-races, or other pastimes or games whatsoever, or shall bet on the side or hands of such as play thereat, and shall lose any sum or sums of money or other thing exceeding L.100, at any time or meeting upon ticket, credit, or otherwise, and shall not pay down the same at the time of the loss, the value shall not be recovered; but all contracts for the same, judgments, statutes, recognisances, mortgages, &c. and all other acts, deeds, and securities for the same, shall be void, and the winner shall forfeit treble the value, in addition to the sum of L.100, half thereof to the king and half to the informer. At length came the gaming act (9 Anne, c. 14), which declares that all bonds and other securities given for money won at play, or money lent at the time to play withal, shall be utterly void; that all mortgagee and incumbrances of lands made upon the same consideration shall be and revert to the use of [7:10:312] the heir of the mortgager; that if any person at any time or sitting loses L.10 at play, he may sue the winner, and recover it back by action of debt at law; and in case the loser does not, any other person may sue the winner for treble the sum so lost; and the plaintiff may by bill of equity examine the defendant himself on oath. Moreover, if any person, by cheating at play, shall win any money or valuable thing, or shall at any time or sitting win more than L.10, he may be indicted thereon, and shall forfeit five times the value to any person who will sue for it, and shall be deemed infamous, and suffer such corporal punishment as in the case of wilful perjury. And this statute of 9 Anne is further enforced, and some deficiencies supplied, by 18 Geo. II. c. 34.

By the first of the above-named acts also (33 Hen. Vnl. c. 9), to which may now be added 58 Geo. III. c. 70, and

3 Geo. IV. c. 114, the keeping a gaming-house was declared a nuisance, which indeed it is held to be, and an indictable offence at common law; and the courts largely construing the word, have held a cockpit a gaming-house within the meaning of the statute (3 Keb. 510, 2 Burr. 1233). By 9 and 10 Will. III. c. 17, all lotteries were declared public nuisances; and all state-lotteries which had in the interval been allowed were to be discontinued after

4 Geo. IV. c. 60. As to private lotteries, they were prohibited by various statutes of the reign of George II. under heavy pecuniary penalties. In the same reign, to prevent or restrain horse-racing, another kind of gaming, it was enacted by 13 Geo. II. c. 19, that no plate or match under LAO value shall be run, under a penalty of L.200 to be paid by the owner of each horse running, and L.100 by such as advertise the plate, except at Newmarket and Black Hambleton, where a race may be run for a less sum than LAO: but though such horse-races are lawful, yet they are construed games within 9 Anne c. 14, and consequently wagers above L.10 are illegal. By 7 Geo. II. wagers relating to the present or future price of stocks are declared illegal and void; and it has been held that a wager between two electors upon the success of their respective parliamentary candidates is illegal, because it tends to corrupt the freedom of election (1 T. R. 56). The law of wagers is well and succinctly traced by Mr Christian in his note to 4 Blackstone, 173. Wagers, in general, says he, were by the common law lawful contracts; and all wagers may still be recovered in a court of justice which are not made upon unlawful games, or which are not such as are likely to disturb the public peace, or to encourage immorality, or such as will probably affect the interests, characters, and feelings of persons not parties to the wager, or such as are contrary to sound policy or the general interests of the community. And the recent editor of Blackstone subjoins to this note a case lately decided, to show the comprehensive ground on which one of these doctrines, that of public policy, rests. The case was this. In 1802 the defendant, in consideration of 100 guineas, agreed to pay the plaintiff one guinea a day during the life of Bonaparte. The defendant paid the money for some years, and then stopped. The action was brought to recover the arrears. The jury having found for the defendant, on a motion for a new trial it was contended in support of the verdict that the wager was illegal, inasmuch as it had a tendency to create an interest in the plaintiff in the life of a foreign enemy, and which in the case of an invasion might induce him to act contrary to his allegiance. The court being of opinion that the justice of the case had been satisfied, refused to disturb the verdict; and Lord Ellenborough, chief-justice, expressed a strong opinion against the legality of the wager, as well on the ground before mentioned, as also on the ground that the party suffering under such a contract might be induced to compass and encourage the horrid practice of assassination, in order to get rid of a life so burdensome to him ( 16 East. 150). So likewise, where a person had given L.100 on condition of receiving LA00 if peace were not concluded with France within a certain time, and he afterwards brought his action to recover the L.300, it was held that the wager was void, as being inconsistent with general policy; but he was allowed to recover the L.100 which he had paid, under a count for so much money received by the defendant to his use. Indeed we may remark frequent expressions of regret by the most eminent judges of England, that the law of wagers in that country is not the same with that of Scotland; and some, amongst whom was Justice Butler (3 T. R. 697), have thought it was not too late yet to retrace their steps, and to adopt the practice of the Scotch couru. So in Easter term 1825, Chief-Justice Abbot refused to allow a cause to proceed in which a person sought to recover L.100 which had been deposited as a stake on a dog-fight, observing that all such wagers were illegal. In like manner, the chief-justice discharged the jury from giving any verdict in an action to recover a deposit on a wrestling match (Kennedy, K. B. October 29, 1828).

The view taken in Scotland is, that courts of justice were instituted to redress wrong in the serious transactions of life; and that wagers and gaming debts do not partake of the character of serious business, but mere pastime and amusement. The judges therefore look upon such contracts as sponsiones ludicra, and will not allow action for the recovery of sums lost or won by wagering or betting in any form; and this is now settled law, and sanctioned by the judgment of the House of Lords in the case of Bruce v. Ross, 14th February 1788. Where, however, a civil injury arises, though it be out of gaming, the party will be heard. So, in the case of Paterson, 1830 (8 Sh. and D. 573), a party brought an action setting forth that he had fairly won money at cards from the defender, who paid it, but afterwards demanded restitution, alleging the pursuer was a cheat at play; and that the pursuer thereupon repaid the money on condition that the defender should preserve silence on the subject, which he failed to do; and the defender offered to prove the pursuer a cheat. The court found the action relevant, and remitted it to the jury court, where it was tried as a question of defamation.

Scotland is also distinguished from England by the paucity of its legislative provisions on gaming. By 1621, c. 14, it was enacted that none play at cards or dice in any common house, town, hostelrie, or cook’s house, and that it should not be lawful to play in any other private man’s house but where the master of the family playeth himself; and if it should happen any man to win a sum exceeding 100 merks within the space of twenty-four hours, or to gain at wagers upon horse-races any sum above 100 merks, the surplus should go to the poor of the parish. This act is not altogether in desuetude, as might be thought from an old case, but it is available only to the poor, and not to the winner (Straiton, 19th July 1688; Maxwell, 14th July 1774). To the above act of 1621 are to be added the acts 9 Anne anti 18 Geo. II. above noticed, which are received in Scotland, but have not always the same construction given them as in England. Thus, as remarked by Mr Brodie (Stair, b. i. tit. 10, sect. 8, note), it has been held in Nelson υ. Bruce, Mor. 9507, and Stewart V. Hyslop, Mor. 9510, contrary to the settled construction in England, that the nullity was not effectual against an onerous indorsee not aware of the bill being granted for a game debt. Mr Brodie gives it as his opinion that the two Scottish decisions are on principle, abstractedly from the words of the statute, most consonant to substantial justice; but the English construction appears quite indisputable. (u. u. u.) [7:10:313]Chance, or Hazard, in Gamiug. Hazard, or chance, is a matter of mathematical consideration, because it admits of more and less. Gamesters either set out upon an equality of chance, or are supposed to do so. This equality may be altered in the course of the game, by the greater good fortune or address of one of the gamesters, by which he comes to have a better chance, so that his share in the stakes is proportionably better than at first. This more and less runs through all the ratios between equality and infinite différence, or from an infinitely small difference till it come to be an infinitely great one, by which the game is determined. The whole game, therefore, with regard to the issue of it, is a chance of the proportion which the two shares bear to each other.

The probability of an event is greater or less, according to the number of chances by which it may happen, compared with the number of all the chances by which it may either happen or fail. See Probability.