THE PARK CLUB JUDGMENT.
THE judgment of the Queen's Bench Division in the "Park Club" case is in some points satisfactory. For one thing, it shows that the law is not impotent, as it must have been had it forbidden gambling-houses, and yet allowed the Park Club to go on. For another, it shows that, in this matter of gambling, there is not one law for the rich and another for the poor. Not, be it observed, that there would have been any inconsistency in forbidding gambling in one class, and allowing it in ariother. On the contrary, such a dis- tinction would be quite in harmony with the principle of paternal government. That principle is to give most pro- tection to those who most need it ; and as the poor need it more than the well-to-do, they get more of it. But then, protection against temptation may be looked at from two points of view. It is protection—but it is also prohibition. The subject of it is prevented from doing what is bad for him ; but he is also prevented from drying that which he wants to do. So long as protection is given to no one, it is chiefly regarded in the former light. The poor man is pitied because he has to pass so many public-houses on his way home, or because the odds on every race are published in the daily newspapers. But if once public-houses were closed, or the publication of the odds forbidden, it would certainly be said that the law was bearing hardly on the poor. Why should the tavern be shut up when the club-house remains open Why should rich men be allowed to risk their thousands when poor men are
not allowed to lose their shillings As regards the play at
the Park Club, at all events the judges of the Queen's Bench Division cannot be charged with undue leniency. They do not ask whether those who take part in it can bear their losses well or ill ; they simply compare it with the statute, and find that it is there plainly forbidden. Sir James Ingham had convicted the proprietor of the Club and the members of the Committee on two grounds—that they had kept a gaming-house, and that in this house they had played, or allowed to be played, an unlawful game. It was argued for the defence that the Park Club was merely a place for social intercourse, and that the baccarat played there no more gave it any special character than the whist played at the Athenmum or the Reform. The only thing, however, that at all bore out this theory was the rules ; and the judges were of opinion that these rules were intended not to discourage gambling, but to deceive any too curious per- son who might happen to imagine what the purpose of the Club was. Hazard and the use of dice were forbidden, and only £1 points allowed at whist. But from a Club devoted to baccarat, hazard and dice may safely be excluded ; nor does it involve any serious sacrifice to prescribe moderation at the whist table. And that the Park Club was devoted to baccarat there can be no question. Indeed, it was devoted to nothing else. Baccarat began at 4.30 in the afternoon, and went on till dinner-time. It began again at 10.30 p.m., and went on as late as 8 a.m. Twelve hours is not a bad slice from the solid day, and from 3 to 8 a.m. is not a time commonly devoted to social intercourse. Again, the relations existing between the proprietor and the Club threw further light on its character. The owner of a proprietary club commonly looks to make a good deal of money by his venture. He does not value his fellow-creatures so highly as to risk his own fortune, in order to make life a little pleasanter for them. Apart from baccarat, Mr. Jenks could hardly have made any profits at all. The kitchen was carried on at a loss, the wine and cigars were sold under cost price, and the amount received in subscriptions probably did not more than cover the rent and other expenses. But for baccarat, therefore Mr. Jenks might claim to be regarded as a disinterested and therefore,
caterer for the enjoyment of some 270 of his friends. But when baccarat is taken into account, a more common-place theory of Mr. Jenks's motives comes into view. He caters, in- deed, for the enjoyment of his 270 friends ; but he is not above making a handsome livelihood by the process. He receives 1 per cent, on the amount of each" bank" or deal in the game ; and as there is a fresh bank every twenty minutes, and each will not uncommonly amount to £300, it is reckoned that the pro- prietor's profits are from £45 to £50 a night. The Judges consequently had no difficulty in coming to the same opinion as that to which Sir James Ingham had already come,—that the Park Club was a common gaming-house, kept by the pro- prietor and managed by the members of the Committee. Although, however, Mr. Jenks and the members of the Com- mittee might on this ground be indicted at common law for a nuisance, something more is necessary to bring them within the terms of the statute. For this purpose, they must not only keep a common gaming-house, they must keep it for unlawful gaming ; and it was contended for the defence that baccarat is not an unlawful game. This plea rested partly on-its having been invented subsequently to the Statutes directed against gaming, and partly on its being a game of skill.
Both Mr. Justice Hawkins and Mr. Justice A. L. Smith held that the former contention was immaterial. If a game is of the same nature as those forbidden by the Statutes—if, that is, it is either a game of chance, or a game into which chance enters so largely as to make it a mixed game of chance and skill, and not a game of skill only—it is unlawful. The pretence that baccarat is not a game of chance went for• nothing with the Judges. "It is a game of chance," says Mr. Justice Hawkins ; "and though, as in most other things, experience and judgment may make one player or banker more successful than another, it would be a perversion of terms to say that it is in any sense a game of skill." Probably skill enters into it in much the same proportion as it does into " vingt-et-un." A cool head stands the player in some stead ; but a full pocket is a far more valuable ally. If a game in which sums ranging from £50 to £1,000 were habitually won and lost every twenty minutes had not been an unlawful game, the definition of the Statutes against gaming would clearly have needed redrafting.
The unsatisfactory thing about this judgment is, that it does not give, and in the present state of the law could not have given, a perfectly workable rule by which to determine what
is an unlawful game. The excuse for this defect on the part of the law is the acknowledged difficulty of making such a rule. Some forty years ago, Parliament thought that it had found a middle course between over-strictness and over- leniency in exempting from the prohibition all games of skill. But it is exceedingly doubtful whether, even with this limita- tion, the most popular and universal of games is not unlawful. Whist is certainly not a game of pure skill. The chances of the deal count for more than any amount of ability that the best players can bring to bear on them. Yet to forbid whist would be to make the law ridiculous. On the other hand, if the law were so amended as to allow games of mingled chance and skill, we should be exempting from the prohibitions directed against gaming the game at which, taking the country through, more money is lost than at any other. Yet what is the object of forbidding gambling except to prevent the loss of money by those who cannot afford to lose it, and must consequently play at the risk of causing misery to those dependent on them, and possibly throwing the support of them on the community ? Why should we trouble about the precise distinction between one game and another, when the results of playing them—which are all that it is worth while to care about—are precisely the same ? Probably, if gambling becomes more and more common, as seems not im- probable, and if, in consequence, a need for further legislation presents itself, we shall find some rough-and-ready way out of the dilemma, but it will hardly lie within the four corners of the judgment of the Queen's Bench Division about the Park Club.
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