$ 1. AT COM fit. In lawful bargains, the profit of the other. contracts which are enforced in civil fociety. In these the MON LAW. advantage of the one party depends not neceffarily on the No recipro- lofs of the other. This holds, not only in buying and fellcity of pro- ing, even finking money or annuities, but likewife in marine or fire affurances. The one obtains that fecurity, without which he could not have run the risk of the voyage; the of the one is other, by means of the premium, is aided in the carrying on not the lofs his trade of infuring, which, though hazardous, yet affords, on the whole, a likelihood of gain, from the number of velfels that arrive fafe exceeding those that are loft. But nei ther of them feeks the lofs of the other. On the contrary, the affured is as well pleafed as the underwriters, at the fafe In gaming arrival of the fhip. But, in wagers and gaming, the reverse the reverie holds. The gain of the one party muft, neceffarily, be the lofs of the other. Each of the parties, therefore, thinks only" of defpoiling his antagonist, like two duellifts, mutually aiming at each other's life . holds. Each can gain only by the other's lofs. ON these accounts, our common law is jealous of gam bling, even in its fairest and most concealed garb, refufing its countenance and protection to what it confiders as a fpecies of unlawful covenant. Whether lotteries for fell 2 Pothier, Tom. III, p. 116. "Dans ce contrat (de jeu) l'une des parties ne peut y trouver l'avantage qu'elle y recherche, qu'en dépouillant l'autre: chacun des joueurs ne cherche qu'à dépouiller celui contre qui il joue, comme deux duelliftes cherchent réciproquement à s'oter la vie. Le contrat du grofs jeu a donc une fin contraire à la charité, et directement oppofée aux principes de la fociété civile, qui n'a établi les commerces et les contrats que pour que les membres de cette fociété s'aidaffent mu tuellement et fe rendiffent mutuellement fervice. Le contrat du groß jeu, confidéré du côté de fa fin, eft donc contraire aux bonnes mœurs, et comme tel, doit être profcrit." b Even in eaftern countries, the laws do not appear more favourable to gaming, nor to clafs it in mort honourable fociety than the Scottish law does. Thus, in the chapter c education, the inftitutes of Hindoo law ordain the first order to abflain from gaming, from difputes, from detraction, and from falschood," & ing hard-ware, or other goods, are removeable as a nuisance at common law, has not yet been decided a. $1. AT COM MON LAW. § 2. SCOTTISH STATUTE II. CONSIDERING "the manifold evils and inconveniences which enfue upon carding and dicing, and horse races, which are now over much frequented in this country, to the 1621, c. 14. great prejudice of the lieges: and becaufe honeft men ought not to expect that any winning, had at any of the games above written, can do them good, or profperb," the Scottish legislature have farther interpofed to difcountenance. thefe practices by a pofitive enactment, the wifdom of which is commended by lord Gardenfton, as clashing little with thofe delicate notions of honour and fidelity among gamefters, which are the great bar againft the execution of fuch laws. In the first place, playing at cards and dice in any pub- Gaming in lic houfe is prohibited. The penalty for this offence is inflict- houfes prepublic ed on the mafter of the house, who incurs a fine of vented, pounds Scots for the first fault, and lofs of his liberties for the next. Sir Wm. Jones' Works, V. 1, p. 1o8.) And, in a fubfequent part of the Intutes on government, where there aan enumeration of the eighteen (or ree fets of) vices to be avoided, gaming again appears in very difcrediable company. (Ibid, p. 247.) The question occurred in the rale Frafer against Sprott, 7th July 196. Fraser advertising a fcheme of altery for difpofing of his goods, the procurator fiscal of the city of Linburgh applied to the magiftrates for an interdict against him, upon the ground of fuch lotteries being Aclared nuifances by law, particu. Vol. II. 40 larly by 27 Geo. III, c. 1 and 2. The The mistake here was, libelling James VI, parl. 4th, 1621, c. 14. N JAMES VI, PARL. 4, IN the fecond place, playing, even in a private house, is prohibited, unless the master of the family play himself. 1621, c. 14. No particular penalty is specified in this clause, and no ques Even in a private houfe, unlefs the mafter play. Only below 100 merks. tion relative thereto has ever occurred. IN the third place, if any man win "any fums of money, at carding or dicing, attour the fum of an hundred merks, within the fpace of 24 hours, or gain at wagers upon horfe races any fum attour the said sum of an hundred merks," it is provided, that " the fuperplus fhall be configned within 24 hours thereafter in the hands of the the faurer of the kirk, if it be in Edinburgh, or in the hands of fuch of the kirk feffion in the country parochines as collects and diftributes money for the poor of the fame, to be em ployed always upon the poor of the paroche, where fuch winning shall fall out." In the fourth place, full power and commiffion, to fue for the penalties, are given to the bailies and magistrates of boroughs, the sheriffs and juftices of peace, in the county"; who are bound, by their public duty, to attend to the execution of the ftatute, and cannot be fuppofed to be biaffed by thofe ideal principles of honour which might mislead the parties themselves. LASTLY. "In cafe the magiftrate informed thereof refufe to pursue for the fame, the party informer fhall have c Scottish money, equal to 51. 11S. 1.d. June 1775, Maxwell against Blair of Dunrod. Fac. Coll. At Dumfries a bet was taken, which of the parties would ride fooneft from that town to Kirkcudbright. The one was taken ill in the intermediate parish of Kelton; the other pushed on to Kirkcudbright. The poor of the town of Dumfries were found entitled to the money. e The court fuftained the kirktreasurer's title to pursue under this ftatute. Grant, Kirk-treasurer of the City of Edinburgh against fir Scipio Hill. Feb. 9, 1711. Fountainhall § 2. action against the said magiftrate for double the like fum; the one half whereof to be given to the poor, and the other half to the party informer." THIS act affords a defence in the cafe of a bond, or other document, taken for money won at play. It must be proved, by writ or oath, that the document was granted for a game debt 8. It was decided, " that the money loft be ing paid, and immediately lent back on bond, though poffibly the individual fpecies loft was not lent, that this alfo fell under the act of parliament "." JAMES VI, PARL. 4, 1621, C. 14, $.3. BRITISH III. IT does not feem neceffary to enter into any long detail of the multiplicity of enactments which the British STATUTES statute book prefents upon this fubje&t. Even in England, they scarcely appear to be in viridi obfervantia; and are fo technically expreffed in the phrafeology of the English law, that, whether meant to be limited to England or not, very few of them admit of execution in this country. However, "they have been understood to extend to Scotland, though of this" (fays lord Gardenstone) "I cannot help Do they entertaining a very great doubt... particularly because these Scotland? ftatutes are framed as much in the language and terms of Lord GarEnglish laws, as the ftatute concerning juftices of peace, opinion. which was found in the house of peers not to extend to Scotland, in the cafe of the duke of Douglas; and, indeed, fome of the penalties in thofe ftatutes concerning gaming, can "In a purfuit for payment of a money. The lords found it relevant bcco merks bond-Alleged for the to prove, fcripto or juramento, that the defender, that the money was won bond was granted for money lost at at dice, within the space of 24 hours, play within 24 hours, to make the and fo was not due by the 14th act bond fall under the act of parliament. parl. 1621. Answered, the faid act Harcarfe, 19th July 1688. Straiton.", affords only a defence against pay- Di&t. Vol. ii. Voce pa&um illicitum, ment when the money is pursued for, Ibid. but here there is a bond of borrowed h Ibid. extend to denstone's $3. STATUTES. only be recovered in the court of king's bench. If we judge BRITISH of those laws by their efficacy, we have no reason to regret Lord Gar that they fhould not be extended. It is well known, that denftone's the tranfgreffions against them are very prevailing, and yet their ineffi- we feldom hear of any execution upon them; and indeed, opinion of cacy. in my humble apprehenfion, the single and folitary Scots law, which is above recited, has a better tendency to restrain this practice, than all the severe prohibitions and penalties introduced by a multiplicity of English and British statutes. I fhall not, however, prefume to offer any pofitive opinion on this matter, especially as I find that lord Kaimes, in his abridgement of the ftatutes, has claffed thofe laws as extending to Scotland. Lord Bankton is of the fame opinion, in his Institutes i." PERHAPS the truth really lies between the two opinions; that is, as general enactments, these statutes naturally should, and are intended to have authority over the whole empire; while, on the other hand, there is scarcely any one of them that does not contain clauses which do not admit of execution in this country. In many of them, some of the claufes have force in this country, while others have not. i Lord Gardenstone farther obferves: "The great bar against execution of fuch laws is the notion which gamblers have propagated, like a tenet of faith, among gentlemen, that loffes of this nature are to be regarded as debts of bonour. Gentlemen, therefore, will rather be ruined, even by fharpers and pickpockets, fo ftrange is the influence of ideal bonour, than be perfuaded to plead, that they are not bound in law to pay fuch debts; far lefs can they be induced to take the advantage of pe nal laws against the affociates of their own extravagance, and the compa nions of their favourite pleasures. But the Scottish ftatute clashes lefs with thofe delicate notions of honour and fidelity among gamefters. It does not entitle the lofer, either to recover the fum he has loft, or to fue for penalties. If he take the benefit of this law, he can fall under no imputation of fordid motives, or ungenerous conduct. He must pay the debt; but all that exceeds a very moderate fum, must be applied to charitable purposes." MS. tit. Gaming. |