Part 9

The charge against the defendants was that they were concerned in keeping a common gaming-house, and permitting a game of chance to be played called "baccarat." For the prosecution Mr. Wontner quoted some rules of the game. He said that the regulation bank at this Club was fixed at £50, an open bank at £1000. As a rule, the banks varied from £25 to £300, but were often larger. Mr. Wontner quoted a printed description of the game of baccarat, and submitted that it was purely a game of chance of a dangerous character, at which excessive gambling took place. Playing cards for amusement was not prohibited, but it was contended that excessive gambling was punishable by law.

Sir J. Ingham inquired as to the definition of the word "excessive." Mr. Wontner submitted that the Legislature had defined excessive gambling as criminal, while moderate gaming was not. So the proprietor of a place where excessive gaming was allowed, and who received the profits, was guilty of the offence at common law of keeping a gaming-house, and habitual users of the house were also liable.

An ordinary Club-house, where the profits went to the members, would be equally a gaming-house if excessive and habitual play were allowed.

Mr. Wontner quoted several decisions, and referred to various Acts dealing with gaming, dating from the reign of Henry VIII., when all games except archery were declared illegal. A subsequent Act repealed that Act, as far as games of skill went, but the old enactment still held as to games, and he contended that whether unlawful gaming went on in a house, the proprietor of which admitted members on payment of subscription, or whether it took place in an ordinary Club, the offence was just the same.

Inspector Swansen, of Scotland Yard, had had interviews with Jenks as to particulars respecting the Club. Jenks told him the Club was open in 1882, and he had bought the lease of the premises. He explained the game of baccarat. After two o'clock the banks were put up to auction. Each bank paid one per cent, and each player five shillings for card-money up to 2 A.M. After that time, five shillings until 5 A.M., when £1 an hour was charged, in order to make the game prohibitory. The profits so derived went to the proprietor. One per cent was also charged for cashing cheques. The rules of the Club prohibited the introduction of any stranger to the card-room. The profits realised were from the subscriptions and the card-money. The kitchen had been a loss, and wine and cigars were sold at cost price. On a subsequent occasion, Mr. Jenks told witness that members' cheques were cashed, and one per cent was charged as an insurance against bad cheques. He stated that he did not cash cheques beyond a reasonable amount, which he estimated at £300. In cross-examination by Mr. Russell, witness admitted that Jenks had given all information freely. The Club, of which he was the proprietor, consisted of from 200 to 300 members, comprising gentlemen well-known in society.

The night steward of the Park Club was called, and gave evidence as to the play in the card-room. Baccarat was not played there until Mr. Jenks took possession of the Club. Play began about 4.30 in the afternoon, and a break would be made about half-past seven for dinner, after which play was resumed and kept up till two, three, four, and sometimes eight o'clock in the morning. The average bank would be about £100.

After further evidence had been taken, and speeches made for and against the defendants, Sir James Ingham, in giving his decision on the summons, said that Jenks was substantially charged with keeping a house for unlawful gaming, and the other gentlemen were substantially charged with aiding and assisting him in doing so. The first question to determine was why and for what purpose Jenks kept this house open. Was it an ordinary Club at which gambling was casually introduced, or was it substantially a gaming-house? The question could be answered by the evidence, as the profits arising from the wines, spirits, and tobacco were admitted to be trifling, while the profits from food were absolutely nothing, the kitchen being carried on at a loss. The subscriptions received from 250 members at six guineas per year produced annually £1711, which was subjected to very large deductions for rent, taxes, etc. It must be clear to everybody that as a Club for social purposes, the business would not be worth the care and attention which it would require. What was the case with respect to gambling? Jenks received one per cent upon all banks, and contributions from all players who stayed after certain hours. Without going into particulars he calculated on consideration of the number of games that would be played ordinarily in the course of an evening, that Jenks must realise from £45 to £50 per night, and that his annual profits must be £10,000 to £12,000, or perhaps many thousands more. Therefore, no one could doubt that the house had been kept and used for the purpose of gambling, for its character as a social Club was absolutely ancillary to its business as a gambling-house. The statute, however, required that there should not only be gambling, but gambling at an unlawful game, and the main question was whether the game of baccarat was an unlawful game. It must be admitted that although a great many games had been prohibited by the Legislature, baccarat had not, and whether it was unlawful or not, must depend on other considerations. Baccarat appeared to be a game of chance, tempered by a certain amount of skill and judgment. Many games of mixed chance and skill might be innocently played. It was important to glance at the state of the old law. Sir J. Ingham then quoted from Baker's abridgment on the subject of gaming for recreation and common gaming-houses, "which promote cheating and other corrupt practices, and incite to idleness and avariciousness persons whose time might otherwise be employed to the general good of the community."

The principle to be extracted was that gaming productive of the above evils ought to be considered unlawful, and he (Sir James) considered that the game of baccarat was not "a game played for recreation, whereby a person is fitted for the ordinary duties of life." A great deal had been said upon the subject of large and excessive gambling, and the argument had been advanced that games which would be large and risky and excessive for a man who was in the position of a shop-keeper, would be nothing, trifles infinitesimal, in the eyes of a man of large property. Granted that was so, still there might be cases in which the law could be easily applied, and he thought this was one. Referring to the rules of the Park Club, which was to consist of noblemen, members of the learned professions, officers of the Army and Navy, and gentlemen, Sir James observed that a man at the game in question might lose, with consistent bad luck, £1000 before dinner, and a considerable sum in addition afterwards. Would there be any difficulty in saying that that was large and excessive gambling in the case of members of the learned professions, clergymen, bishops, great leading counsel of the day, or even judges with the largest salaries, physicians, and so forth? Gaming such as had been proved to exist would be large and excessive for any of those classes of men, and still more so for officers of the Army and Navy. He had no hesitation in saying, with reference to the gentlemen composing the Club at Mr. Jenks's house, that gaming had been large and excessive, and that it came within the principle of the law laid down by Chief Justice Abbot in the case of "King _v._ Rosier." But he considered the case did not stop there, and proceeded to refer at great length to the Act of Queen Anne, limiting gambling.

In conclusion, the learned Magistrate held that all the parties, with the exception of Mr. Dalton (secretary), had been guilty of gaming. He fined Mr. Jenks £500, the members of the committee £500, and each of the players £100.

Notice of appeal was given.

The appeal was brought on May 26 and 27, and in giving judgment, Sir Henry Hawkins (afterwards Lord Brampton), after saying that the facts were undisputed--there was no profit except on the gaming, though from the admirable printed rules one might well conclude that the Club was a sociable Club, where a gentleman might dine and have his rubber at whist, whilst not on any account allowed to gamble. The rules in question were, however, nightly disregarded, and looking at the nightly doings, it was impossible for any man in his senses to doubt that the house was really opened and kept for the purpose of gaming at the game of baccarat as its main and principal object.

He now had to consider the illegality of the gaming and not merely the illegality of the game--the common law did not prohibit the playing at cards and dice, which were not unlawful games, but the keeping of a common gaming-house was at common law an indictable offence.

Sir Henry Hawkins, after some comments on what constituted a gaming-house, went on to say that in his judgment it was not necessary for a gaming-house to be a public nuisance, which the Park Club was not:--a common gaming-house being itself a nuisance, though the gaming there was limited to the subscribers and members of the Club. The keeper of such a house could always admit or exclude whom he chose, and the committee elected whom they pleased, provided the list of members did not exceed 500. It might be 5000 and yet still not be a public, but a common gaming-house.

As to unlawful games--no games had been in so many words declared by name unlawful, though the Legislature intended to cover some games which, being lawful in themselves, were only unlawful when played in particular places or by particular persons. The Act of 1845 enacted that a house is proved to be a common gaming-house which is kept for playing any unlawful games and a bank is kept by one or more of the players, exclusively of the others, or where the chances of any game played are not alike favourable to all the players.

He divided unlawful games into two classes:

First, those absolutely forbidden by name, to the gaming at which a penalty is attached. This class included "ace of hearts," "pharaoh or faro," "basset," and "hazard," and any other game with a die or dice except backgammon.

Second, a number of games not altogether prohibited under penal consequences, nor declared to be altogether illegal, but which, nevertheless, have been declared unlawful by the Legislature, because the keeping of houses for playing them, and the play in them therein by anybody, were rendered illegal.

The unlawful games of the Acts of Henry VIII. were "bowls," "quoits," "dicing," "tennis," and "carding," most of which would seem to have been games of mere skill. The Acts in question were all repealed by 8 and 9 Vic.

The present unlawful games, then, were "ace of hearts," "faro," "basset," "hazard," "passage," "roulette," and every game of dice except backgammon, and every game of cards which was not a game of "mere skill." He was inclined to add any other game of "mere chance."

The question was, did "baccarat" come within this category?--the description of the game given by Mr. Russell satisfied him that it did.

Baccarat was a game of cards--a game of chance--and though, as in most other things, experience and judgment might make one player or banker more successful than another, it would be a perversion of words to say it was in any sense a game of mere skill. It was, therefore, in his opinion an unlawful game within the meaning of the statute.

It was said that it was a modern game--assuming it to be so, it was just what the Legislature intended to include in the phraseology of one unrepealed section of the law of Henry VIII., which mentioned "any new unlawful game hereafter to be invented."

With regard to excessive gaming since the repeal of the statutes of Anne and George II., he did not think excessive gaming at any game would in itself render the game unlawful, for excessive gaming _per se_ was not any longer a legal offence. Nevertheless, though excessive gaming was no longer _per se_ unlawful, the fact that it was habitually carried on in a house kept for the purpose of gaming was a cogent piece of evidence to be offered to a jury or other tribunal called on to determine whether a house was a common gaming-house so as to make the keeper of it liable to be indicted for a nuisance at common law.

Seeing that Mr. Jenks was the occupier and kept the house open for the purpose of gaming, at, amongst other games, baccarat, an unlawful game within the meaning of the Statute, he was of opinion that he was properly convicted.

As to the four members of the committee, the only question was whether these appellants had the care or management of the house--he thought they had--they could not but have been cognisant of the rules and of the true character of the Club. The second rule of the Club placed its internal management in their hands--he thought there was abundance of evidence to warrant their conviction.

As to the three players, he found no evidence that they did more than play at baccarat in the house, by which it might be that they somewhat enhanced the profits, but they took no part in the management. Adding to the profits was not a legal offence, as assistance in conducting the establishment was--the conviction with respect to the three players ought to be quashed.

Mr. Justice Smith followed, and his summing up entirely coincided with that of Sir Henry Hawkins. This lucid judgment is of considerable interest as affecting games played in English Clubs, and did much to clear up all ambiguity as to how far a Club might allow gambling. It put an end to all open baccarat, though the game was shortly afterwards played for a time at "The Field Club," near St. James's Street, an establishment which much resembled the defunct Park Club in its diversions, members, and methods, but the police soon interfered, and with its demise Club gambling at games of chance has become a thing of the past, except in the low dens of Soho, where faro intermittently calls for the intervention of the authorities. Police raids upon bogus Clubs mainly frequented by foreigners of a low class are often reported in the newspapers.

As regards respectable Clubs, a certain amount of bridge, usually for very moderate stakes, is indulged in, but gambling for high stakes is strongly discountenanced. Members inclined to indulge any tendencies in this direction generally do so elsewhere than in a Club. From time to time small Clubs in which there is some high play have sprung up and had a brief existence. When bridge first began to capture London, a bridge Club was started in the West End where very high stakes were the rule. It lasted but a short time, owing chiefly to the fact that a young and not very astute member lost a very large sum, which created considerable scandal and broke up the Club.

High bridge is now played in London mostly by wealthy people, well able to take care of themselves. The outcry raised some time ago about young girls being compelled to join in playing for large stakes is not based upon any solid foundation of truth, for as a rule high players are not fond of running the chance of drawing a novice as a partner. A bad player spoils the game.

Though there is practically no gambling in West-End Clubs, a good deal of baccarat and poker is occasionally played in private houses, ladies being not infrequently amongst the players, and here gaming assumes its most undesirable form. Temper as well as money is generally lost, whilst the winners are exposed to a by no means remote probability of never being paid. Private gambling is especially dangerous to young men, and without doubt a thousand times more harm is done by play of this sort than by all the properly conducted public tables in the world.

FOOTNOTES:

[Footnote 5: The love of money compels.]

V

Talleyrand whilst at cards announces the death of the Duc d'Enghien--"The curse of Scotland"--Wilberforce at faro--Successful gamblers--The Rev. Caleb Colton--Colonel Panton--Dennis O'Kelly--Richard Rigby--Anecdotes--Strange incidents at play--Aged gamesters--A duel with death--General Wade and the poor officer--Anecdote of a caprice of Fortune--Stock Exchange speculation--A man who profited by tips.

The history of card-playing is connected with many dramatic incidents. If the story be true, one of the most striking of these was when Talleyrand, who had been playing very late at "_la bouillotte_" with the Duchesse de Luynes, suddenly laid down his cards, and in his cold, impassive voice asked, "Has the Prince de Condé any other grandchildren than the Duc d'Enghien?" Receiving an answer in the negative he calmly said, "Then the house of Condé has come to an end."

At that very moment the ill-fated Duc was being led out to be shot at the château of Vincennes.

A grim historical interest is also generally supposed to be connected with the nine of diamonds, which is known as "the curse of Scotland," the reason assigned being that the Duke of Cumberland wrote his sanguinary orders on the back of such a card in 1746. Notwithstanding this popular tradition, the nine of diamonds had been known as "the curse of Scotland" as far back as thirty years before Culloden--perhaps because a somewhat similar design formed the arms of Colonel Packer, who was on the scaffold when Charles I. was executed. Another reason given is that there were nine lozenges resembling diamonds in the arms of the Earl of Stair who made the Union.

Cards have at times attracted the most saintly persons. The first time the philanthropic Wilberforce was at Brooks's he joined in playing faro--according to his own account--from mere shyness. A friend of his, very much surprised, called out to him, "What, Wilberforce, is that you?" George Selwyn, who was keeping the bank, resented the interference, and said in his most expressive tones, "Oh, sir, don't interrupt Mr. Wilberforce, he could not be better employed."

Oddly enough, one of the most remarkable instances of a really successful gambler was an English clergyman, the Reverend Caleb Colton. A man of considerable learning, he was originally a fellow of King's College, Cambridge, and curate of Tiverton. In 1812 he created some slight stir with two poems entitled "Hypocrisy" and "Napoleon." His literary reputation was further enhanced in 1818, when the author had become Vicar of Kew, by the publication of a volume of maxims called _Lacon: or Many Things in Few Words_. This work, however, was not absolutely original, being in a great measure founded upon Lord Bacon's _Essays_, Burdon's _Materials for Thinking_, and the well-known aphorisms of La Rochefoucauld.

About this time Mr. Colton began to speculate, and, having dabbled rather recklessly in Spanish bonds, his affairs became involved. This frightened the reverend gentleman, and, though there appears to have been no pressing reason for taking such a step, he absconded.

His affairs were subsequently put in order, after which Mr. Colton for a time betook himself to America, eventually returning to Europe and settling down in Paris. Here he took up his abode in the Palais Royal, at that time the head-quarters of dissipation and amusement--surely the queerest spot ever selected by an English clergyman for his abode.

Colton now began to make an exhaustive study of the intricacies and mysteries of the gaming-table, every facility for putting theory into practice being at his very door. Unlike most searchers after infallible methods of winning, he was completely successful, and in the course of a year or two won over £25,000 by some method of staking, of which no reliable record seems to exist. More wonderful still, the Reverend Caleb kept his winnings, part of which he devoted to the purchase of pictures. He was a cultivated man, and published an ode, which was privately circulated, on the death of Lord Byron.

The end of Mr. Colton was a tragic one, for in 1832 he blew out his brains at the house of a friend living at Fontainebleau. The act in question was, of course, attributed to the effect of gambling losses. A thrilling story was told which described how the unfortunate clergyman, after ruinous losses at Frascati's, had blown his brains out in the forest of St. Germain, and, as always follows in such cases, an outcry arose, demanding the suppression of the tables in the Palais Royal and at Frascati's. Gambling, however, was in no way responsible for Colton's end, the real cause of his suicide having been a disease necessitating a painful operation, to which the successful gambler preferred death.

A very fortunate gamester was Colonel Panton, who in the early part of the eighteenth century suddenly realised a considerable fortune by keeping a gaming-house in Piccadilly. Though by nature a confirmed gambler he then exhibited extraordinary common sense, and, having invested his winnings in house property and land, entirely abandoned the card-table and the dice-box. His name is still preserved in Panton Street, Haymarket.

Another sporting character who amassed a large fortune by gambling and the Turf was Colonel Dennis O'Kelly,[6] the owner of the famous race-horse Eclipse.

The rank of Colonel which this Irishman was entitled to assume was procured by him in a characteristically curious way. In 1760, when the county of Middlesex was very backward in raising sufficient men for its militia, a well-known Scotch adventurer, MacGregor by name, whose family had suffered a good deal for the Stuarts in 1745, seeing a good opportunity of making some money, set about raising a regiment in Westminster which the Government promised to recognise as soon as three-fourths of the commissions should be filled up. He found, however, difficulty in obtaining officers and had to ransack the town and hold out commissions to all sorts of people, amongst whom was O'Kelly, who became an ensign, in due course of time rising to be Lieutenant-Colonel. O'Kelly, though totally ignorant of discipline, is said to have presented the most soldierly appearance of any officer in the regiment. This was not saying much, for the third captain was a tea-dealer, the fourth a tailor, and the fifth a boatswain's mate who had bought an ale-house with prize-money and could just sign his name. The most junior officer was a crippled creature of foreign extraction.

When O'Kelly became a major, he is described as having put his regiment through certain military evolutions to the entire satisfaction of the King and his staff, whilst his Lieutenant-Colonelcy was celebrated by a splendid entertainment which many of the aristocracy of Leicestershire attended. O'Kelly was sometimes known as Count O'Kelly, a title which was supposed to have been conferred upon him by his fellow-prisoners during a sojourn in the "Fleet" when he was a young man. Here he met Catherine Hayes, who lived as his faithful companion through life. Though she was never married to him, her position was more or less recognised, and O'Kelly left her an annuity which she continued to enjoy till she died, in the second decade of the nineteenth century, at the age of eighty-five.

Among many racing successes O'Kelly won the Derby twice--in 1781 with Young Eclipse by Eclipse, and three years later again with Sergeant by Eclipse out of Aspasia.

His racing colours were scarlet and black cap.

Whilst there is no doubt but that O'Kelly was very lucky in much that he undertook, his originality and penetration were largely responsible for a success which, however, never gained him admission into fashionable circles.