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legislature would not have given such a sanction to the commission R. v. Rogier of that offence, by exempting persons residing in the royal palaces and Humphrey. from the penalties imposed by statutes. Inasmuch, then, as gaming is not per se an offence at common law, and the game

rouge et noir has not been declared illegal by the legislature, this indictment is bad, and the judgment must be arrested.- Abbot C. J. I have no doubt that the facts stated in this indictment constitute an offence at common law. Hawkins, in the passage which has been cited, observes, “ It has been said that common gaminghouses are nuisances in the eye of the law;" and then he assigns the reason, viz. that they tend to produce certain evil consequences, which is not very different from saying, that they are nuisances if those consequences are produced. Since his time many parties have been convicted upon indictments, in which the keeping of such a house has been charged to be an offence at common law. If any confirmation of the authority of Hawkins were wanting, it is to be found in the enactments of the legislature. The 25 G. 2. c. 36. § 5., after reciting that, in order to encourage prosecutions against persons keeping bawdy-houses, gaming-houses, or other disorderly houses, enacts, “ That if any two inhabitants of any parish give notice in writing to a constable, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, the constable shall go with such inhabitants to a justice of the peace, and shall, upon such inhabitants making oath that they believe the contents of the notice to be true, enter into a recognizance to prosecute such offence, and the constable is to be allowed the expenses of the prosecution, and each of the inhabitants is to receive 101.” And sectio 8. recites, “ That by reason of many subtle and crafty contrivances of persons keeping bawdy-houses, gaming-houses, or other disorderly houses, it is difficult to prove who is the real owner or keeper thereof, by which means many notorious offenders have escaped punishment;' and then enacts, “ That any person who shall appear, act, or behave himself as master, or as the person having the care or management of any such house, shall be deemed to be the keeper thereof, and shall be liable to be prosecuted as such, although he be not the real owner.” These provisions are a legislative declaration that the keeping of a gaming-house is an indictable offence. Besides, the 9 Ann. c. 14. § 2. makes playing at any game unlawful, if more than 101. shall be lost. Now in this case the indictment states, not only that the defendants kept a common gaming-house, but that they permitted persons to play there for divers large and excessive sums of money. The playing for large and excessive sums of money would of itself make any game unlawful; and if so, there can be no doubt that this is an offence at common law.

Bayley, Holroyd, and Best Js. concurred, and Holroyd J. further added, that in his opinion it would have been sufficient merely to have alleged, that the defendants kept a gaming-house. - R. R. (a)

common

(a) In Rer v. Dixon, 10 Mod. 336., it was held that the keeping of a gaminghouse was an offence at common law as a nuisance, In Rex v. Mason, Leach's C. C. p. 548. Grose J. seemed to be of opinion, that the keeping of a common gaming-house mighl be described generally. See also 2 Hawk. c. 25. § 59.

Persons con- By stat. 3 G. 4. c. 114. persons convicted of keeping a common victed of keep- gaming-house may be sentenced to imprisonment, with hard ing a gaming labour, for any term not exceeding that for which such court may house inay be sentenced to

now imprison for such offence, either in addition to, or in lieu of hard labour. any other punishment which may be inflicted on any such

offenders by any law in force before the passing of this act (5th Aug. 1822), and every such offender shall thereupon suffer such sentence, in such place, and for such time as aforesaid, as

such court shall think fit to direct. 33 H. 8. c. 9. By stat. 33 H. 8. c. 9. Ø 11., no person shall, for his gain, Gaming-houses lucre, or living, keep any common house, alley, or place of prohibited by bowling, coyting, cloysh, cayls, half-bowl, tennis, dicing-table, the 33 H. 8.

carding, or any unlawful game then or thereafter to be invented,

on pain of forfeiting 40s. a day. Does not ex- But it was resolved upon this clause, in the third year of J. 1., tend to private that if the guests in an inn or tavern call for a pair of dice or play.

tables, if the house be not kept for gaming, lucre, or gain, but they play only for recreation, and for no gain to the owner of the house, this is not within the statute, nor is such person that plays in such house, that is not kept for lucre or gain, within the penalty

of that law. Dalt. c. 46. Haunting gam- And moreover, by the same stat., § 12., it is further enacted, ing-houses.

that every person using and haunting any of the said houses and

plays, and there playing, shall forfeit 6s. 8d. Power of the § 14. And all justices of the peace in every shire, mayors, justices as to the sheriffs, bailiffs, and other head officers in every city, town, and keepers of such borough, may enter all such houses, places, and alleys, where such houses, and those found

games shall be suspected to be holden, exercised, used, or occu. pied, and as well the keepers of the same, as also the persons there haunting, resorting, and playing, may take, arrest, and imprison, and keep in prison until the keepers and maintainers of the said plays and

games

have found sureties to the king's use, to be bound by recognizance or otherwise, no longer to use, keep, or occupy any such house, play, game, alley, or place; and also that the persons there so found be in like case bound by themselves, or with sureties, no more to play, haunt, or exercise from thenceforth, in,

at, or to any of the said places, or at any of the said games. And of officers § 15. And the mayors, sheriffs, bailiffs, constables, and other in cities and head officers, within every city, borough, or town, shall make due

search weekly, or at the furthest once a month, in all places where any such houses, alleys, plays or places shall be suspected to be had, kept, and maintained; and if they shall not make such search at the furthest once a month, if the case so require, every such

person offending shall forfeit 40s. for each month. Artificers and § 16. By the same act, no manner of artificer, or craftsman of

any handicraft or occupation, husbandman, apprentice, labourer, servant at husbandry, journeyman, or servant of artificer, mariners, tishermen, watermen, or any serving man, shall play at the tables, tennis, dice, cards, bowls, clash, coyting, logating, or any other unlawful game, out of Christmas (a), on pain of 20s. for every time; and in Christmas to play at the said games in their masters' houses, or in their masters' presence; and also no person shall at any time

there.

towns.

servants.

1

(a) See R. v. Clarke, 1 Cowp. 35.

play at bowl or bowls in open places out of his garden or orchard, Punishing ofon pain of 6s. 8d. for every time of offending. And all justices of fenders using

unlawful peace, mayors, bailiffs, sheriffs, and other head officers, and every of them finding or knowing any person using unlawful games,

games. contrary to this act, may commit every such offender to ward, there to remain without bail or mainprize till he be bound by obligation to the king's use, in such sum as by the discretion of the said justices, mayors, bailiffs, or other head officers, shall be thought reasonable, that they shall not from thenceforth use such unlawful games.

$ 22. But any master may license his servant to play at cards, Masters may dice, or tables, with himself

, or with any other gentleman repair- license such. ing to his said master openly in his house, or in his presence.

23. And any nobleman or other person having manors, lands, Also certain tenements, or other yearly profits for life, in his own or his wife's persons may. right, of 1001. a year, may command or license his servants, or family of his house, to play within the precinct of his house, garden, or orchard, at cards, dice, tables, bowls, or tennis, as well among themselves as others repairing to the same house.

By stat. 2 G. 2. c. 28. $ 9., where it shall be proved on the oath 2 G. 2. c. 28. of two witnesses before any justice of the peace, as well as where he Justices may shall find upon his own view, that any person hath used any un- commit, unless lawful game contrary to the said statute of H. 8., the said justice parties give shall have power to commit him to prison without bail, unless and security pur,

suant to 33 H.8. until he shall enter into one or more recognizance or recognizances with sureties, or without, at the discretion of the justice, that he shall not from thenceforth play at or use such unlawful game. And by stat. 33 A. 8. c. 9. § 18., where any of the forfeitures

33 H. 8. c. 9. above mentioned shall be found within the precinct of any fran- Application of chise or leet, the lord shall have one half, and the other half shall the penalties. be to him that shall sue in any of the king's courts; and elsewhere they shall be half to the king, and half to him that shall sue in like manner.

But by stat. 31 El. c. 5. $ 7., all suits to be pursued upon any 31 El. c. 5. statute that is, any statute then force) for using any unlawful How to be game shall be sued and prosecuted, or otherwise heard and deter- recovered. mined, in the general quarter sessions or assizes of the county where the offence shall be committed, or in the leet within which it shall happen, and not in anywise out of the county.

And by stat. 18 G. 2. c. 34. § 7., no privilege of parliament shall 18 G. 2. c. 34. be allowed to any person, against whom a prosecution shall be No privilege of commenced for keeping any public or common gaming-house, or parliament. any house, room, or place for playing at any before or now pro

By stat. 25 G. 2. c. 36. $ 2., any house, room, garden, or other 25 G. 2. c. 36. place kept for public dancing, music, or other public entertain- Houses of ment of the like kind in London and Westminsier, or within 20 public amusemiles thereof, without licence from the last preceding Michaelmas ment within quarter sessions, under the hands and seals of four or more justices 20 miles thereof there assembled (except the theatres of Drury-lane, Covent-garden to be licensed. and Haymarket, and other entertainments exercised by letters patent or licence of the crown, or of the lord chamberlain, $ 4.), shall be deemed a disorderly house or place; and the keeper thereof shall forfeit 1001. with full costs to him who shall sue (in six months) in any of the courts at Westminster, and be otherwise

hibited game.

offence at com

C. 46.

& common

and for lucre

III. Of Lotteries.

[10 & 11 W.3. c. 17. - 9 Ann. c. 6.-10 Ann. c. 26.—

8 G. l. c. 2.-9 G. 1. c. 19.—6 G.2. c. 35.–12 G.2. c. 28.-13 G. 2. c. 19. - 18 G. 2. c. 34.—27 G. 3. c.l.

- 34. G. 3. c. 40. — 42 G. 3. c. 119.] Gaming not an

MR. Dalton says that playing at cards and dice, and the like,

are not prohibited by the common law; neither are they mala mon law.

in se of their own nature, but only prohibited by statute. Dalt. Gaming-houses But it is clearly agreed, that all common gaming-houses are nuisances.

nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness, and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the good of the com

munity. 1 Haw. c. 25. § 6. 1 Russ. 299. The keeping of R. v. Rogier and Humphrey, H.3 & 4 G. 4. 1 B. & C. 272. This

was an indictment against the defendants, and charged, that they gaming-house, unlawfully did keep and maintain a certain common garning-house; and gain un

and in the said common gaming-house, for lucre and gain, unlawlawfully caus

fully and wilfully did cause and procure divers idle and eviling and pro

disposed persons to frequent and come to play together, at a cercuring divers

tain unlawful game at cards, called “ Rouge et Noir ;” and in the idle and evil disposed per

said common gaming-house unlawfully and wilfully did permit sons to frequent

and suffer the said idle and evil-disposed persons to be and remain and come to

playing and gaming at the said unlawful game, called “ Rouge et play together at Noir,” for divers.large and excessive sums of money, to the great

damage and common nuisance of all the liege subjects of our lord “ Rouge et

the king. Plea, not guilty. A verdict having been found against noir," and permitting the

the defendants, Curwood and Platt now moved to arrest the said idle and judgment. The keeping of a common gaming-house is not an ofevil-disposed fence at common law: it is not necessarily a nuisance; but may, persons to re- like a playhouse, become so, if it draw together such numbers of main playing at people as to become inconvenient to the places adjacent. In for divers large 1 Hawk. c. 75. § 6., 7th edit., there is this passage:

" Also it has and excessive been said, that all common stages for rope-dancers, and also all sums of money, common gaming-houses, are nuisances in the eye of the law, not is an indictable only because they are great temptations to idleness, but also offence at com

because they are apt to draw together great numbers of disorderly Semble, that

persons, which cannot but be very inconvenient to the neighbouran indictment

hood.” This indictment does not shew that any inconvenience would be good had accrued to the neighbourhood, by numbers of disorderly merely charg- persons collected together; and, therefore, it does not come within ing the defend the reason, in respect of which Hawkins states, that it had been ant with keep said that a gaming-house was a nuisance. At common law gaming gaming-house. is not any offence. In Bell v. The Bishop of Norwich (Dyer, Per Holroyd J. 254. b.) it was held, that it was not sufficient cause for a bishop to

refuse to admit a presentee to a living, that he was a haunter of taverns and unlawful games. Besides, the legislature have, by different statutes, 33 H.8. c.9. $$ 11. and 12., 12 G. 2. c. 28. S$ 2. and 3., 13 G. 2. c. 19. § 9., and 18 G. 2. c. 34. $$ 1. and 2., declared certain specified games to be unlawful, and rouge et noir is not one of them; and, in several of these statutes, royal palaces, during the residence of the sovereign, are exempted from the operation of the acts. Now, if gaming were an offence at common law, the

a game called

the said game

mon law.

legislature would not have given such a sanction to the commission R. v. Rogier of that offence, by exempting persons residing in the royal palaces and Humphrey. from the penalties imposed by statutes. Inasmuch, then, as gaming is not per se an offence at common law, and the game of noir has not been declared illegal by the legislature, this indict. ment is bad, and the judgment must be arrested. — Abbot C. J. I have no doubt that the facts stated in this indictment constitute an offence at common law. Hawkins, in the passage which has been cited, observes, “ It has been said that common gaminghouses are nuisances in the eye of the law;” and then he assigns the reason, viz. that they tend to produce certain evil consequences, which is not very different from saying, that they are nuisances if those consequences are produced. Since his time many parties have been convicted upon indictments, in which the keeping of such a house has been charged to be an offence at cominon law. If any confirmation of the authority of Hawkins were wanting, it is to be found in the enactments of the legislature. The 25 G. 2. c. 36. § 5., after reciting that, in order to encourage prosecutions against persons keeping bawdy-houses, gaming houses, or other disorderly houses, enacts, “ That if any two inhabitants of any parish give notice in writing to a constable, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, the constable shall go with such inhabitants to a justice of the peace, and shall, upon such inhabitants making oath that they believe the contents of the notice to be true, enter into a recognizance to prosecute such offence, and the constable is to be allowed the expenses of the prosecution, and each of the inhabitants is to receive 101." And section 8. recites, “ That by reason of many subtle and crafty contrivances of persons keeping bawdy-houses, gaming-houses, or other disorderly houses, it is difficult to prove who is the real owner or keeper thereof, by. which means many notorious offenders have escaped punishinent; and then enacts, “ That any person who shall appear, act, or behave himself as master, or as the person having the care or management of any such house, shall be deemed to be the keeper thereof, and shall be liable to be prosecuted as such, although he be not the real owner.” These provisions are a legislative declaration that the keeping of a gaming-house is an indictable offence. Besides, the 9 Ann. c. 14. § 2. makes playing at any game unlawful, if more than 101. shall be lost. Now in this case the indictment states, not only that the defendants kept a common gaming-house, but that they permitted persons to play there for divers large and excessive sums of money. The playing for large and excessive sums of money would of itself make any game unlawful; and if so, there can be no doubt that this is an offence at common law. - Bayley, Holroyd, and Best Js. concurred, and Holroyd J. further added, that in his opinion it would have been sufficient merely to have alleged, that the defendants kept a common gaming-house. — R. R. (a)

rouge et

(a) In Rer v. Dixon, 10 Mod. 336., it was held that the keeping of a gaminghouse was an offence at common law as a nuisance. In Rex v. Mason, Leach's C. C. p. 548. Grose J. seemed to be of opinion, that the keeping of a common gaming-house might be described generally. See also 2 Hawk. c. 25. § 59.

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