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Subject Area: Law
Topic: The American Revolution and Constitution

§ 116.: Wagering contracts prohibited.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 116.

Wagering contracts prohibited.—

At all times in the history of the English and American law, gambling of every variety has been the subject of police regulation. The lower and more common forms of gambling, when conducted as a business, are now uniformly prohibited and the prosecution of them made a penal offense. Ordinarily, however, wagers or bets are only so far prohibited or regulated that the courts refuse to perform the contracts. Independently of statute, no wager of any kind constitutes a penal offense. It requires statutory legislation to make betting a misdemeanor. Indeed, such legislation would be open to serious constitutional objections. Gambling or betting of any kind is a vice and not a trespass, and inasmuch as the parties are willing victims of the evil effects, there is nothing which calls for public regulation.1 But when they pursue gambling as a business, and set up a gambling house, like all others who make a trade of vice, they may be prohibited and subjected to severe penalties.2 And so, also, if they apply to the courts for aid in enforcing the contracts made in the indulgence of this vice, the courts can properly refuse to assist them.

A wager or bet, according to Mr. Bouvier, is “a contract by which two parties or more agree that a certain sum of money or other things, shall be paid or delivered to one of them on the happening, or not happening, of an uncertain event.” Employing the word in this sense, it is pretty well settled that all wager contracts were not void at common law. The distinction between the legal and the illegal wagers seems to rest upon the good or evil character of the event or act, which constitutes the subject-matter of the wager. If the wager was about a harmless and legal act or event, the wager was itself legal, and the wager contract could be enforced.1 But if the wager has reference to the happening or doing of some act which is illegal or against good morals, the wager is void and will not be enforced.2 In no part of the civilized world are contracts for the insurance of life or property against accidental destruction held to be invalid.

The English doctrine is clearly sustained, as a part of the common law, by the decision of some of the American courts.3 But, except in the matter of insurance contracts, all wager contracts are declared to be invalid in Maine, Massachusetts, New Hampshire, Vermont, and Pennsylvania, whatever may be the character of the event or act, which constitutes the foundation for the wager.4 In many of the States, the common law is changed by statutes which prohibit all wager contracts, and forbid their enforcement by the courts. Thus, by the New York Revised Statutes,1 “all wagers, bets, or stakes, made to depend upon any race, or upon any gaming by lot or chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for, or on account of, any money or property or thing in action so wagered, bet or staked shall be void.”2 It is to be observed, that in all of these judicial and legislative determinations of the illegality of wagering contracts, although they differ in respect to the legality of particular wagers, they all rest upon the proposition that the prohibited wagers tend to develop and increase the spirit of gambling and at the same time serve no useful purpose. For these reasons all contracts, based upon such wagers, are declared to be illegal. Inasmuch as insurance contracts serve a useful purpose, they are not prohibited; and it is not likely that a law, prohibiting them, would be sustained. It is, therefore, the evil effect of betting, coupled with its practical uselessness, that justifies its prohibition; for all unobjectionable contracts have, as an incident of property, an inalienable right to some effective remedy in the courts of the country.3

[1]See, ante, § 60.

[2]See, post, § 120. See contra State v. Roby, 142 Ind. 168; State ex rel. Matthews v. Forsythe, 147 Ind. 466; Wooten v. State, 23 Fla. 335; State v. Donovan (Nev.), 15 Pac. 783.

[1]Thus it was lawful at common law to bet that A. has purchased a wagon of B. (Good v. Elliott, 3 T. R. 693); or to bet on a cricket-match. Walpole v. Saunders, 16 E. C. L. R. 276. See, also, generally, in support of the position taken above, Sherborne v. Colebach, 2 Vent. 175; Hussey v. Crickell, 3 Campb. 168; Grant v. Hamilton, 3 M. L. 100; Cousins v. Mantes, 3 Taunt. 515; Johnson v. Lonsley, 12 C. B. 468; Dalby v. India Life Ins. Co., 15 C. B. 365; Hampden v. Walsh, L. R. 12 B. D. 192.

[2]Thus, wagers are void, which rest upon the result of an illegal game (Brown v. Leeson, 2 H. Bl. 43); which involve the abstinence from marriage (Huntley v. Rice, 10 East. 22); which refer to the expected birth of an illegitimate child (Ditchburn v. Goldsmith, 4 Campb. 152); or to the commission of adultery. Del Costa v. Jones, Cowp. 729. See also, to the same effect, Shirley v. Sankey, 2 Bos. & P. 130; Etham v. Kingsman, 1 B. & Al. 684.

[3]Bunn v. Rikes, 4 Johns. 426; Campbell v. Richardson, 10 Johns. 406; Dewees v. Miller, 5 Harr. 347; Trenton Ins. Co. v. Johnson, 4 Zabr. 576; Dunman v. Strother, 1 Tex. 89; Wheeler v. Friend, 22 Tex. 683; Monroe v. Smelley, 25 Tex. 586; Grant v. Hamilton, 3 McLean (U. S. C. C.), 100; Smith v. Smith, 21 Ill. 244; Richardson v. Kelley, 85 Ill. 491; Petillon v. Hipple, 90 Ill. 420; Carrier v. Brannan, 3 Cal. 328; Johnson v. Hall, 6 Cal. 359; Johnson v. Russell, 37 Cal. 670.

[4]See Lewis v. Littlefield, 15 Me. 233; McDonough v. Webster, 68 Me. 530; Gilmore v. Woodcock, 69 Me. 118; Babcock v. Thompson, 3 Pick. 446; Ball v. Gilbert, 12 Met. 399; Sampson v. Shaw, 101 Mass. 150; Perkins v. Eaton, 3 N. H. 152; Clark v. Gibson, 12 N. H. 386; Winchester v. Nutter, 52 N. H. 507; Collamer v. Day, 2 Vt. 144; Tarlton v. Baker, 18 Vt. 9; Phillips v. Ives, 1 Rawle, 36; Brua’s Appeal, 5 Sm. 294.

[1]1 Rev. Stats. N. Y. 661, § 8.

[2]Similar legislation is to be found in New Hampshire, Virginia, West Virginia, Wisconsin, Missouri, Illinois, Ohio and Iowa, and other States.

[3]See, post, § 178.