That a vice which causes so much wretchedness should not merely be per mitted and superintended by the govern ment, but that it should contribute con siderably to the public revenue, has been a subject of loud complaint in Frances and at last the ministers, in compliance with the desire of the Chamber of Depu ties, determined to grant no more licences after the 1st of January, 1838.
In this and in many other difficult ques tions, as to how far and in 1 hat manner a state should interfere with the acts of its citizens, many zealous advocates for change and reform do not perceive the great distinction between making an enactment or establishing some practice with reference to a certain end, and re pealing the same enactment after it has long in force. The reasons which would be good reasons for not making such enactment, may also, either in their whole extent or to some extent, be good reasons for not repealing such enact ment when once in force, or not dis continuing such practice when once esta blished.
In England, before the passing of 8 & 9 Vict. c. 109, the law considered wagers in general as legal contracts, and the winner of a wager could enforce his claim in a court of law. The exceptions to this rule were, where the wager was an incitement to a breach of the peace or to immorality ; where it affected the feelings or interests of third persons, or exposed them to ridicule or inconvenience ; or where it was against sound policy or prohibited by statutory enactment. In cases not com prehended within the above exceptions the judges frequently refused to try ac tions respecting wagers when they con sidered the matter to be of a frivolous or of an improper nature.
In Scotland the courts followed an opposite rule to that which prevailed in England. They held that " they were instituted to try adverse rights, and not to determine silly or impertinent doubts or inquiries of persons not interested in the matters in question ;" and they de cided " that their proper functions are to enforce the rights of parties arising out of serious transactions, and not to pay regard to Sponsiones ludicrae." In 1844 a select committee of the House of Commons on gaming recommended that " wagering in general should be free and subject to no penalty ;" and they also expressed an opinion in favour of the law of England being assimilated to that of Scotland.
In the session of 1845 the act 8 & 9 Vict. C. 109 was passed, which enacts " That all contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void ; and that no suit shall be brought or main tained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made : provided always, that this enactment shall not be deemed to apply to any sub scription or contribution, or agreement to subscribe or contribute, for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise."
By 16 Charles H. c. 7, any person who won any sum of money by fraud, cosenage, or deceit was to forfeit treble the value won. tinder 8 & 9 Vict. c. 109, cheating at play is to be punished as obtaining money under false pretences.
The act 16 Charles II. c. 7 was also designed to repress excessive gaming by restraining it to playing for ready money. By § 2 it was provided that if any person shall play or bet, &c. other than with or for ready money, and shall lose any sum, &c. exceeding 100/. at any one time or meeting, upon ticket or credit, or other wise, and shall not pay down the same at the time, the party losing shall not be compelled to pay ; any contract or se curities for the payment are declared void ; and the person winning shall for feit treble the value. This act is repealed by 8 & 9 Vict. c. 109.
The act 9 Anne, c. 14, also prohibits all gaming or betting on any game on credit, and enacts that any person who shall at any one time or sitting, by play ing at cards, dice, or other game what soever, or betting on the sides of such as do play, lose to any one or more persons in the whole the sum or value of 101., and shall pay the same or any part thereof, may within three months sue fbr and recover the same; and if the loser do not within three months sue for the same, any other person may sue and recover with treble the value of the wager, and costs. This act made void all notes, bills, bonds, mortgages, and other securities or conveyances whatever given for gaming debts ; but by 5 & 6 Wm. IV. c. 41, bills and mortgages given for such debts were not void, but were made recoverable by action at law as if they had been given for an illegal consideration. Other de scriptions of securities mentioned in 9 Anne, c. 14, and also in 16 Charles II. c. 27, were not affected by the act 5 & 6 Wm. IV. c. 41.