Part 11

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_

When in any system of business the element of commerce and gambling are inextricably mixed, it is wise to adopt a line of expediency. The gambler should at least pay the same dues as the genuine investor. To ensure this no contract should be made enforceable or legal unless made upon Government stamped paper. The real buyer of £500 would not complain of having to pay 2s. or say 1s. per £100 to the National Exchequer; but the dealers in a £2,000,000 gambling contract would think twice before incurring a first definite outlay of £2000 or even £1000 cash down. A similar regulation would be desirable for the Produce, etc., Exchanges. In this way, by a perfectly equitable legal enactment, the wings of outrageous speculation would be clipped. An additional improvement would be an extension to all stocks and shares upon the lines of the principles of the Bank Act 1867, 30 Vict., c. 29. Prior to its passing, gambling in the shares of Banks had become a scandal, and a danger to credit. It provided for contracts setting forth the distinctive numbers of Bank shares, so as to prevent sales of shares of which the sellers were not possessed. In the produce markets similar requirements could be insisted on to bring about a corresponding result.

N. _Industrial Gaming unconnected with Trade_

_Illegal Games._—The legislative remedy here should be to abolish the old interdict of certain special games, and to make all games of combined skill and chance illegal when played for money. But this would be a counsel of perfection which, in the present state of public opinion, would have no chance of being carried out. If, however, the words were added, “_by players of unequal experience and skill_,” it would give the Courts power to penalise the rooks in all such glaring cases as their victims should place in the hands of the authorities. Nor does there seem to be any reason why the old idea of restrictions as to amount should not be made good use of. There would be an enormous balance of advantage if it were declared illegal for a person to obtain during any one day a sum exceeding £10 by gaming, or for minors to gamble at all. The flocks of pigeons would to some extent be protected, however little the rook minority liked it, and society should benefit in every way. Such a regulation would sweep away the scandalous immunity enjoyed by rich men’s clubs; and, considering the widespread ruin for which they are responsible, and the present disgraceful unfairness of the law as between the poor and the wealthy, its application should work an incalculable improvement.

_Playing with Gaming-Machines._—The Courts now seem disposed to construe the question of a modicum of skill more severely in this connection as children are so largely affected, and from what has been said above it may be hoped that the automatic machines are doomed. The above remarks, however, with regard to combined skill and chance and restriction of amount, apply here also to a certain extent, especially with regard to their use in clubs. The difficulties will be great of applying such regulations to gambling in private houses until the moral sense of the community becomes more keenly alive to the penalties of sorrow, ruin, and degradation which are the sad sequel of its neglect.

_Lotteries and Sweepstakes._—The Lottery Acts now existing might have been fairly efficient if it were not for the difficulty, delay, and expense in having to obtain in certain cases the leave of the Attorney-General before proceedings can be taken. This especially applies in the matter of newspapers which benefit by advertising the lotteries. They are protected by 8 & 9 Vict. c. 74, the provision in which needs modification. There is still much, however, to be desired in the efficiency of administration, which cannot be fully attained until the farcical practice of allowing the law to be broken for charitable purposes is given up. Some years ago the Scotch authorities openly stated in reply to a remonstrance that in such cases no interference would be made. This lache has been to a large extent followed in England, and when the National Anti-Gambling League pointed out to the late Mr. Adrian Hope, the Secretary for the Hospital for Sick Children in Great Ormond Street, that the great raffles intended to be held at the Coronation Bazaar at the London Botanical Gardens were in contravention of the law, he merely declined to drop them, and said that one of the Judges had bought the first ticket for the chief lottery. Questions had to be asked in the House of Commons before they could be stopped, after the illegality had been acknowledged by Ministers.

To sum up under this head, the Post Office should have increased powers and inducements to destroy lottery matter, and to confiscate and appropriate for the benefit of the Rowland Hill Memorial Fund, in which the Post Office is so much interested, all lottery remittances, whether British or foreign; the question of the Attorney-General’s fiat for prosecutions should be reconsidered; and the police authorities should be stimulated to institute a regular and impartial campaign. How grossly the weapons of the law in regard to lotteries have been neglected may be illustrated by a statement made in a Treasury prosecution at Clerkenwell Police Court in June 1904, to the effect that one of the most important statutes, 4 Geo. IV. c. 60, was extremely difficult to find, not being printed in the ordinary book of statutes, and was not found in any magisterial text-book.

_Press Competitions and Coupon Gambling._—So numerous are the devices of the baser organs of the press, and even of some which find it difficult to hold out against their competition, that no reform of the law is likely to be effective without some enactment making the offering of prizes illegal beyond a certain small amount; which compromise can hardly be avoided, because the best of these newspaper competitions offer undoubtedly some educational inducements. Those which are merely gambling vehicles should be suppressed. The bad position here again rests upon the foolish old dictum as to a modicum of skill covering a quantity of gambling. For instance, an unfortunate decision of the High Court in _Hall_ v. _Cox_ (1 Q.B. 1899), held that guesses at the numbers of the next Registrar-General’s return (although any competitor could purchase any quantity of the newspaper, filling in a different number for each one, thus making it an extensive gamble at will) did not constitute a lottery, because a certain amount of skill could be exercised by the study of previous returns. This led to numerous imitations, one of which was guessing at the future circulation of a paper, which had the additional journalistic merit of acting as a good advertisement. Amongst many, one poor and foolish artisan acknowledged that he had purchased considerable numbers of the newspaper, and its great increase in circulation by the device shows how many credulous persons were willing to gamble under the shelter of the law.

Two brief sections should meet the difficulties under this heading:—

1. Make all such competitions in which there is a material element of chance illegal.

2. Make it illegal for any publication to offer in any one edition a prize or prizes of the aggregate value of more than £5 for any purpose whatever.