Legal Notes
| Date | 01 April 1930 |
| Published date | 01 April 1930 |
| DOI | 10.1177/0032258X3000300214 |
| Subject Matter | Legal Notes |
LEGAL NOTES
GAMES,
LAWFUL
AND
UNLAWFUL.
IN recent years there has been much
"Criticism
of the law of England on the
subject of games and gaming.
This
criticism has been particularly directed
to the application of the law to ' whist-drives'
and'
progressive
whist'
where,
as the Lord Chief Justice said in a recent case, ' the partners are shuffled as
well as the cards.' Is whist, as so played, an unlawful game, or if it is not
unlawful in itself is it a game of chance the playing of which for money
prizes becomes unlawful when played in a common gaming house?
We do not propose to attempt any answer to these questions,
but
it
may be of some interest to inquire what are the underlying principles and
how the law grew into its present shape.
The
law of games and gaming has
its roots in a very distant age, when the reasons for putting some restraint on
the recreations of His Majesty's liege subjects were very different from those
by which such restrictions are now sought to be justified. By the common
law of England all games were lawful, except, possibly, cock-fighting (if one
can call cock-fighting a ' game '). But very early in the Middle Ages, the
executive
government-which
was then, for all practical purposes, the
Crown-thought
it necessary to make certain popular games and pastimes
unlawful by statute mainly because they took up time which ought to have
been devoted to the practice of archery.
The
makers of bows and arrows
no
doubt
prospered for a long time under this kind of protective legislation.
Their
craft became, indeed, asort of bounty-fed industry. But by the time
of Henry
VIn
its effect had begun to wear off and, according to the preamble
of the Act mentioned below, ' divers and many subtil inventative and crafty
persons
...
found many and sundry new and crafty games and plays, as
logating in the fields, slide-thrift otherwise called shove-groat,' whereby
archery became
'sore
decayed.' Accordingly, the resourceful guild of
bowyers and arrow makers successfully petitioned for more stringent legisla-
tion, and the Act of 1541 (33 Hen. VIII c. 9) was passed, one section of
which remains in force at the present day (see Stone's Justices Manual, 61st
ed. p. 727).
It
imposed penalties on persons keeping houses for unlawful
games and on all persons resorting thereto (except on Christmas
Day)-
unlawful games at that time being backgammon, tennis, dice, cards, bowls,
clash, coyting, and logating (a sort of quoits played by throwing little logs
or wooden pins
called'
loggats ' at a stake fixed in the ground).
This
Act is
the foundation of the existing law on the subject,
but
in so far as it declared
any game of mere skill unlawful it was repealed by the Gaming Act 1845.
As time went on the legislature discovered new and different grounds
for maintaining these and similar restrictions on
games;
workmen and
servants were seduced from their work, the Sabbath was not observed, the
games led to impoverishment, deceit and fraud, etc.
The
severity of the
law was, however, gradually relaxed in the direction of treating as lawful all
athletic games and games such as backgammon, billiards, chess, draughts
and
dominoes. As
regards
card-playing, the tendency was to regard certain
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