VOLUME XI SLICE IV G to Gaskell Elizabeth (continued 7)

The net effect of the common law and the game laws is to give the occupier of lands and the owner of sporting rights over them the following remedies against persons who infringe their right to kill or take wild animals on the land. A stranger who enters on the land of another to take any wild animals is liable to the occupier for trespass on the land and for the animals started and killed on the land by the trespasser. He is also criminally liable for game trespass if he has entered on the land to search for or in pursuit of “game” or woodcock, snipe, quail, landrails or rabbits. If the trespass is in the daytime (whether on lands of the subject or in royal forests, &c.), the penalty on conviction may not exceed 40s., unless five or more persons go together, in which case the maximum penalty is £5. If a single offender refuses his name or address or gives a false address to the occupier or to the owner of the sporting rights or his representatives, or refuses to leave the land, he may be arrested by them, and is liable to a penalty not exceeding £5, and if five or more concerned together in game trespass have a gun with them and use violence, intimidation or menace, to prevent the approach of persons entitled to take their names or order them off the land, they incur a further penalty up to £5.

If the trespass is in search or pursuit of game or rabbits in the nighttime, the maximum penalty on a first conviction is imprisonment with hard labour for not over three months; on a second, imprisonment, &c., for not over six months, and the offender may be put under sureties not to offend again for a year after a first conviction or for two years after a second conviction. For a first or second offence the conviction is summary, subject to appeal to quarter sessions, but for a third offence the offender is tried on indictment and is liable to penal servitude (3-7 years) or imprisonment with hard labour (2 years). The offenders may be arrested by the owner or occupier of the land or their servants, and if the offenders assault or offer violence by firearms or offensive weapons they are liable to be indicted and on conviction punished to the same extent as in the last offence. In 1844 the above penalties were extended to persons found by night on highways in search or pursuit of game. If three or more trespass together on land by night to take or destroy game or rabbits, and any of them is armed with firearms, bludgeon or other offensive weapon, they are liable to be indicted and on conviction sentenced to penal servitude (3-14 years) or imprisonment with hard labour (2 years). By “day” time is meant from the beginning of the first hour before sunrise to the end of the first hour after sunset, and by “night” from the end of the first hour after sunset to the beginning of the first hour before sunrise (act of 1828, s. 12; act of 1831, s. 34). The time is reckoned by local and not by Greenwich time.

The penalties for night poaching are severe, but encounters between the owners of sporting rights and armed gangs of poachers have often been attended by homicide. It is to be observed that it is illegal and severely punishable to set traps or loaded spring guns for poachers (Offences against the Person Act 1861, s. 31), whereby any grievous bodily harm is intended or may be caused even to a trespasser, so that the incursions of poachers can be prevented only by personal attendance on the scene of their activities; and it is to be observed also that the provisions of the Game Laws above stated are, so far as concerns private land, left to be enforced by private enterprise without the interference of the police, with the result that in some districts there are scenes of private nocturnal war. Even in the Night Poaching Act 1844, which applies to highways, the arrest of offenders is made by owners, occupiers or their gamekeepers. The police were not given any direct authority as to poachers until the Poaching Prevention Act 1862, under which a constable is empowered “on any highway, street or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of ‘game,’ or any persons aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of gun, or nets or engines used for the killing or taking game; and also to stop and search any cart or other conveyance in or upon which such constable or peace officer shall have good cause to suspect that any such game, or any such article or thing, is being carried by such person.” If any such thing be found the constable is to detain it, and apply for a summons against the offender, summoning him to appear before a petty sessional court, on conviction before which he may be fined not more than £5, and forfeits the game, guns, &c., found in his possession. In this act “game” includes woodcock, snipe and rabbits, and the eggs of game birds other than bustards; and the act applies to poaching either by night or by day. In all cases of summary conviction for poaching an appeal lies to quarter sessions. In all cases of poaching the game, &c., taken may be forfeited by the court which tries the poacher.

Close Time.—On certain days, and within periods known as “close time,” it is illegal to kill deer or game. The present close times are as follows:—

England. Ireland. Scotland.

Hare None April 21 to Aug. 11* None

Red deer (male) None Jan. 1 to June 9 None

Fallow deer None Sept. 29 to June 10 None

Roe deer None None None

Pheasant Feb. 1 to Sept. 30 Feb.1 to Sept. 30 (1845) Feb. 1 to Sept. 30

Partridge Feb. 1 to Aug. 31 Feb. 1 to Aug. 31 (1899) Feb. 1 to Aug. 31

Black game Dec. 10 to Aug. 20** Dec. 10 to Aug. 20 Dec. 10 to Aug. 20

Red grouse Dec. 10 to Aug. 12 Dec. 10 to Aug. 12 Dec. 10 to Aug. 12

Ptarmigan None Dec. 10 to Aug. 20 Dec. 10 to Aug. 12

Bustard (wild turkey) March 1 to Sept. 1 Jan. 10 to Sept. 1 None

* Unless varied by order of lord-lieutenant.

** Except in Devon, Somerset and New Forest, where to Sept. 1.

In England and Ireland the winged game above named and hares may not be killed on Sundays or Christmas Day. It is illegal to sell or expose for sale hares or leverets in March, April, May, June and July. It is illegal throughout the United Kingdom to buy or sell winged game birds after ten days from the beginning of the close season as fixed by the English law (1831, s. 4; 1860, s. 13). This prohibition applies to the sale of live game, British or foreign, and to the sale of British dead game. It is illegal to lay poison for game or rabbits except in rabbit holes, and it is illegal to kill game by firearms at night. Wild birds not within the list above given but of interest for sport are protected by close times fixed under the Wild Birds Protection Acts, which may vary in each county of each kingdom.

Licences.—Besides the restrictions on the right to take or kill game which arise out of the law as to ownership or occupation of the lands on which it is found, there are further restrictions imposed by the laws of excise. From the time of Richard II. (1389) until 1831 the right of persons other than gamekeepers properly deputed by the lord of a manor to take game was made to depend on the social rank of the person, or on the amount of his interest in land, which ranged from a 40s. freehold (in 1389) to £100 a year (1671). These restrictions were abolished in 1831, and the right to kill game was made conditional on the possession of a game certificate, now called a game licence in Great Britain (act of 1831, ss. 6, 23). By s. 4 of the Game Licences Act 1860 “any person, before he shall in Great Britain take, kill or pursue, or aid or assist in any manner in the taking, killing or pursuing, by any means whatever, or use any dog, gun, net or other engine for the purpose of taking, killing or pursuing any game, or any woodcock, snipe, quail, landrail, or any coney, or any deer, shall take out a proper licence to kill game under this act”—subject to a penalty of £20. There are certain exceptions and exemptions as to royal personages, royal gamekeepers, and with reference to taking woodcock or snipe by nets or springes, by coursing or hunting hares or deer, or killing deer, rabbits or hares (Hares Acts 1848, Game Licences Act 1860) in certain enclosed lands by the owners or occupiers. A licence is not required for beaters and assistants who go out with holders of a game licence. The licence is granted by the Inland Revenue Department. The issue is regulated by the Game Licences Act 1860 as amended by the Customs and Inland Revenue Act 1883. The licences now in use are of four kinds:—

Those taken out after 31st July—

To expire on the next 31st July £3 0 0

To expire on the next 31st October 2 0 0

Those taken out after 1st November—

To expire on the next 31st July 2 0 0

Those taken out for any continuous period of fourteen days specified in the licence 1 0 0

In the case of gamekeepers in Great Britain for whom the employer pays the duty on male servants, the annual licence fee is £2, but the licence extends only to lands on which the employer has a right to kill game. A licence granted to a person in his own right and not as gamekeeper or servant is effective throughout the United Kingdom. The game licence does not authorize trespass on the lands of others in search of game nor the shooting of game, &c., at night, and is forfeited on a conviction of game trespass (1831, s. 30; 1860, s. 11). Persons who have game licences need not have a gun licence, but the possession of a gun licence does not qualify the holder to kill game or even rabbits.

The sale of game when killed is also subject to statutory regulation. Gamekeepers may not sell game except under the authority of their employer (1831, ss. 17, 25). Persons who hold a full game licence may sell game, but only to persons who hold a licence to deal in game. These licences are annual (expiring on the 1st of July), and are granted in London by justices of the peace, and in the rest of England by the council of the borough or urban or rural district in which the dealer seeks to carry on business (1831, s. 18; 1893, c. 73, s. 27), and a notice of the existence of the licence must be posted on the licensed premises. A licence must be taken out for each shop. The following persons are disqualified for holding the licence: innkeepers, persons holding licences to sell intoxicants, owners, guards or drivers of mail-carts, stagecoaches or public conveyances, carriers and higglers (1831, s. 18). This enactment interferes with the grant of game licences to large stores which also have licences to sell beer. The licensed dealer may buy British game only from persons who are lawfully entitled to sell game. Conviction of an offence under the Game Act 1831 avoids the licence (s. 22). The local licence must also be supplemented by an excise licence for which a fee of £2 is charged. Licensed dealers in game are prohibited from selling game killed in the United Kingdom from the tenth day after the beginning of close time to the end of that period. The provisions above stated under the act of 1831 applied only to England, but were in 1860 extended to the rest of the United Kingdom, and were in 1893 applied to dealers in game imported from abroad. The main effect of the system of licences is to prevent the disposal of game by poachers rather than to benefit the revenue.

Deer.—Deer are not included within the definition of game in any of the English game laws. Deer-stealing was very seriously punished by the old law, and under an act of 9 George I. c. 22, known as the Waltham Black Act, passed because of the depredations of disguised deer-stealers in Epping Forest, it was under certain circumstances made a capital offence. At present offences with reference to deer are included in the Larceny Act 1861. It is a felony to hunt or kill deer in enclosures in forests, chases or purlieus, or in enclosed land where deer is usually kept, or after a previous conviction to hunt or kill deer in the open parts of a forest, &c., and certain minor provisions are made as to arrest by foresters, forfeiture of venison unlawfully possessed and for unlawfully setting traps for deer. These enactments do not prevent a man from killing on his own land deer which have strayed there (Threlkeld v. Smith, 1901, 2 K.B. 531). In Scotland the unlawful killing of deer is punished as theft.

Eggs.—The owner or occupier of land has no property in the eggs of wild birds found on his lands unless he takes them up. But under s. 24 of the Game Act 1831 a penalty of 5s. per egg is incurred by persons who unlawfully (i.e. without being, or having licence from, the person entitled to kill the game) and wilfully take from the nest or destroy in the nest the eggs of any game bird, or of a swan, wild duck, teal or widgeon. Similar provisions exist in Ireland under an act of 1698, and by the Poaching Prevention Act 1862 (United Kingdom) power is given to constables to search persons suspected of poaching and to take from them the eggs of pheasants, partridges, grouse or black game. And the Wild Birds Protection Acts deal with the eggs of all wild birds except game and swans.

Damage to Crops by Game.—Where an occupier of lands has not the right to kill game or rabbits he runs the risk of suffering damage by the depredations of the protected animals, which he may not kill without incurring a liability to summary conviction or for breach of the conditions on which he holds the land. At common law the owner of land who has reserved to himself the sporting rights, and his sporting tenants, must use the reserved rights reasonably. They are liable for any damage wilfully or unnecessarily done to the crops, &c., of the occupier, such as trampling down standing crops or breaking hedges or fences. They are not directly liable to the occupier for damage done to the crops by game bred on the land or frequenting it in the ordinary course of nature; but are not entitled to turn down game or rabbits on the land. And if game or rabbits are for the purposes of sport imported or artificially raised on land, the person who breeds or brings them there is liable for the damage done to the crops of adjoining owners or occupiers (Farrer v. Nelson, 1885, 15 Q.B.D. 258; Birkbeck v. Paget, 31 Beav. 403; Hilton v. Green, 1862, 2 F. & F. 821).

Recent legislation has greatly increased the rights of the occupiers of land as against the owners of sporting rights over it. As regards hares and rabbits the occupier’s rights are regulated by the Ground Game Act 1880 (which is expressed to be made “in the interests of good husbandry and for the better security of capital and labour invested in the cultivation of the soil”). By that act the occupier of land as incident to and inseparable from his occupation has the right to kill and take hares and rabbits on the land. The right is indefeasible and cannot be divested by contract with the owner or landlord or even by letting the occupier’s sporting rights to another. But where apart from the act the right to kill game on the land is vested in a person other than the occupier, such person has a right concurrent with the statutory right of the occupier to take hares and rabbits on the land. The act does not extend to common lands nor to lands over which rights of grazing or pasturage for not more than nine months in the year exist. Consequently over such lands exclusive rights of killing ground game still continue, and the law appears not to apply in cases where a special right of killing or taking ground game vested before the 7th of September 1880 in any person (other than the landlord) by statute, charter or franchise (s. 5). The mode of exercise of the occupier’s right is subject to certain limitations. The ground game is only to be taken by him or by persons whom he has duly authorized in writing, who must be members of his family or his servants or bona fide employed by him for reward to take ground game. The written authority must be produced on demand to persons having concurrent rights to take and kill the ground game (s. 1 (1) (c)). Firearms may not be used by night, nor may poison be used, nor may spring traps be set except in rabbit holes (s. 6); nor may ground game be killed on days or seasons or by methods prohibited by statute in 1880 (s. 10).

In the case of moorland and unenclosed lands (which are not arable and do not consist of small detached portions of less than 25 acres) the occupier may between the 1st of September and the 31st of March kill and take ground game; but between the 1st of September and the 10th of December firearms may not be used (1880, s. 1 (3); 1906, s. 2). In the case of such lands the occupiers and the owners of the sporting rights may between the 1st of September and the 10th of December make and enforce for their joint benefit agreements for taking the ground game. The Agricultural Holdings Act 1906 (operating from 1909) deals, inter alia, with damage to crops by deer and winged game, but does not apply to damage by hares or rabbits. The tenant of agricultural land is entitled to compensation for damage to his crops exceeding 1s. per acre over the area affected if caused by game, “the right to kill or take which is vested neither in him nor in any one claiming under him other than the landlord and which the tenant has not permission in writing to kill” (s. 2). The right of the tenant is indefeasible and cannot be contracted away. Disputes as to amount are to be settled by arbitration; but claims to be effectual must be made as to growing crops before reaping, raising or feeding off, and as to cut crops before carrying. In the case of contracts of tenancy created before the 1st of January 1909, allowances are to be made if by their terms compensation for damage by game is stipulated for, or an allowance of an agreed amount for damage by game was expressly made in fixing the rent. The compensation is payable by the landlord subject to his right to be indemnified in cases where the sporting rights are not vested in him.

Sporting Rights.—Sporting rights (i.e. rights of fowling or of shooting, or of taking or killing game or rabbits, or of fishing), when severed from the occupation of land, are subject to income or property tax, and to assessment for the purpose of local rates (Rating Act 1874); and in valuing land whether for rates or taxes the value of the sporting rights is now an important and often the chief item of value in beneficial occupation of the land. Where the sporting rights are the landlord’s, the rate thereon is paid in the first instance by the tenant and deducted from his rent. Where the sporting right is reserved and let, the rating authority may rate either the landlord or the sporting tenant as occupier of the right. The Ground Game Acts have not affected the liability to assessment of concurrent rights of killing hares and rabbits reserved by a landlord, or of a concurrent right granted by the occupier (Ryde (2nd ed.), 385-387). The ownership of sporting rights severed from the ownership or occupation of the land over which they are exercisable is not an interest in land giving the electoral franchise or a claim for compensation if the land is taken under the Lands Clauses Consolidation Acts.

Scotland.—By the law of Scotland all men have right and privilege of game on their own estates as a real right incident thereto, which does not pass by an agricultural lease except by express words, or in the case of ground game by the act of 1880. The landlord is liable to the tenant for damage done to the surface of the lands in exercise of his right to the game and also for extraordinary damage by over-preserving or over-stocking. Under an act of 1877 he was liable for excessive damage done by rabbits or game reserved to or retained under a lease granted after the 1st of January 1878, or reserved by presumption of common law; this act from 1909 onwards is superseded by the provisions of the Agricultural Holdings Act 1906. Night poaching is punished by the same act as in England, and day poaching by an act of 1832 and the act of 1882. Until 1887 poaching by night under arms was a capital offence. The definition of game in Scotland for purposes of night poaching is the same as in England. The provisions of the act of 1832 as to game trespass by day apply also to deer, roe, rabbits, woodcock, snipe, rails and wild duck; but in other respects closely resemble those of the English act of 1831.

Offences against the game laws are not triable by justices of the peace, but only in the sheriff court. The close time for game birds in Scotland is the same as in England, so far as dealing in them is concerned, but differs slightly as to killing. Black game may not be killed between the 10th of December and the 25th of August, nor ptarmigan between the 10th of December and the 20th of August. There is no close time for red, fallow or roe deer, or rabbits. By an old Scots act of 1621 (omitted from the recent wholesale repeal of such acts) no one may lawfully kill game in Scotland who does not own a plough-gate of land except on the land of a person so qualified.

Ireland.—The common law as to game is the same for Ireland as for England. The game laws of Ireland are contained partly in acts passed prior to the union (1698, 1707, 1787 and 1797), partly in acts limited to Ireland, and as to the rest in acts common to the whole United Kingdom.

Under the act of 1698 no one may kill game in Ireland who has not a freehold worth £40 a year or £1000 net personality, and elaborate provisions are made by that and later acts against the keeping of sporting dogs by persons not qualified by estate to kill game. British officers and soldiers in Ireland appear to have been much addicted to poaching, and their activities were restrained by enactments of 1698 and 1707.

Night poaching in Ireland is dealt with by an act of 1826. Trespass on lands in pursuit of game to which the landlord or lessor has by reservation exclusive right is summarily punishable under an act of 1864, which includes in the definition of game, woodcock, snipe, quails, landrails, wild duck, widgeon and teal. Under the Land Act 1881 the landlord of a statutory holding may at the commencement of the term subject to the Ground Game Acts retain and exercise the exclusive right of taking “game” as above defined.

A game licence is not required for taking or killing rabbits. But in other respects the law as to game licences, dog licences and licences to deal in game is the same as in Great Britain.

British Possessions Abroad.—The English game laws have not been carried to any colony as part of the personal law of the colonists, nor have they been extended to them by imperial or colonial legislation. But the legislatures of many colonies have passed acts to preserve or protect native or imported wild animals, and in some of these statutes the protected animals are described as game. These statutes are free from feudal prepossessions as to sporting rights, and are framed rather on the lines of the Wild Birds Protection Acts than on the English game laws, but in some possessions, e.g. Quebec, sporting leases by the crown are recognized. The acts since 1895 are indicated in the annual summary of colonial legislation furnished in the Journal of the Society of Comparative Legislation.

See also Oke’s Game Laws, 4th ed., by Willis Bund (1897); Warry, Game Laws of England (1897); Marchant and Watkins, Wild Birds Protection Act (1897).

(W. F. C.)

GAMES, CLASSICAL. 1. Public Games.—The public games of Greece (ἀγῶνες) and Rome (Ludi) consisted in athletic contests and spectacles of various kinds, generally connected with and forming part of a religious observance. Probably no institution exercised a greater influence in moulding the national character, and producing that unique type of physical and intellectual beauty which we see reflected in Greek art and literature, than the public contests of Greece (see Athlete; Athletic Sports). For them each youth was trained in the gymnasium, they were the central mart whither poet, artist and merchant each brought his wares, and the common ground of union for every member of the Hellenic race. It is to Greece, then, that we must look for the earliest form and the fullest development of ancient games. The shows of the Roman circus and amphitheatre were at best a shadow, and in the later days of the empire a travesty, of the Olympia and Pythia, and require only a cursory notice.

The earliest games of which we have any record are those at the funeral of Patroclus, which form the subject of the twenty-third Iliad. They are noteworthy as showing that Greek games were in their origin clearly connected with Greek. religion; either, as here, a part of the funeral rites, or else instituted in honour of a god, or as a thank-offering for a victory gained or a calamity averted, or in expiation of some crime. Each of the great contests was held near some shrine or sacred place and is associated with some deity or mythical hero. It was not before the 4th century that this honour was paid to a living man (see Plutarch, Lysander, 18). The games of the Iliad and those of the Odyssey at the court of Alcinous are also of interest as showing at what an early date the distinctive forms of Greek athletics—boxing, wrestling, putting the weight, the foot and the chariot race—were determined.

The Olympian games were the earliest, and to the last they remained the most celebrated of the four national festivals. Olympia was a naturally enclosed spot in the rich plain of Elis, bounded on the N. by the rocky heights of Cronion, and on the S. and W. by the Alpheus and its tributary the Cladeus. There was the grove of Altis, in which were ranged the statues of the victorious athletes, and the temple of Olympian Zeus with the chryselephantine statue of the god, the masterpiece of Pheidias. There Heracles (so ran the legend which Pindar has introduced in one of his finest odes), when he had conquered Elis and slain its king Augeas, consecrated a temenos and instituted games in honour of his victory. A later legend, which probably embodies historical fact, tells how, when Greece was torn by dissensions and ravaged by pestilence, Iphitus inquired of the oracle for help, and was bidden restore the games which had fallen into desuetude; and there was in the time of Pausanias, suspended in the temple of Hera at Olympia, a bronze disk whereon were inscribed, with the regulations of the games, the names of Iphitus and Lycurgus. From this we may safely infer that the games were a primitive observance of the Eleians and Pisans, and first acquired their celebrity from the powerful concurrence of Sparta. The sacred armistice, or cessation of all hostilities, during the month in which the games were held, is also credited to Iphitus.

In 776 B.C. the Eleians engraved the name of their countryman Coroebus as victor in the foot race, and thenceforward we have an almost unbroken list of the victors in each succeeding Olympiad or fourth recurrent year. For the next fifty years no names occur but those of Eleians or their next neighbours. After 720 B.C. we find Corinthians and Megareans, and later still Athenians and extra-Peloponnesians. Thus what at first was nothing more than a village feast became a bond of union for all the branches of the Doric race, and grew in time to be the high festival to which every Greek gathered, from the mountain fastnesses of Thessaly to the remotest colonies of Cyrene and Marseilles. It survived even the extinction of Greek liberty, and had nearly completed twelve centuries when it was abolished by the decree of the Christian emperor Theodosius, in the tenth year of his reign. The last Olympian victor was a Romanized Armenian named Varastad.

Let us attempt to call up the scene which Olympia in its palmy days must have presented as the great festival approached. Heralds had proclaimed throughout Greece the “truce of God.” So religiously was this observed that the Spartans chose to risk the liberties of Greece, when the Persians were at the gates of Pylae, rather than march during the holy days. Those white tents which stand out against the sombre grey of the olive groves belong to the Hellanodicae, or ten judges of the games, chosen one for each tribe of the Eleians. They have been here already ten months, receiving instruction in their duties. All, too, or most of the athletes must have arrived, for they have been undergoing the indispensable training in the gymnasium of the Altis. But along the “holy road” from the town of Elis there are crowding a motley throng. Conspicuous in the long train of pleasure-seekers are the θεωροί or sacred deputies, clad in their robes of office, and bearing with them in their carriages of state offerings to the shrine of the god. Nor is there any lack of distinguished visitors. It may be Alcibiades, who, they say, has entered no less than seven chariots; or Gorgias, who has written a famous ἐπίδειξις for the occasion; or the sophist Hippias, who boasts that all he bears about him, from the sandals on his feet to the dithyrambs he carries in his hand, are his own manufacture; or Aetion, who will exhibit his picture of the Marriage of Alexander and Roxana—the picture which gained him no less a prize than the daughter of the Hellanodices Praxonides; or, in an earlier age, the poet-laureate of the Olympians, Pindar himself. One feature of the medieval tournament and the modern racecourse is wanting. Women might indeed compete and win prizes as the owners of teams, but all except the priestesses of Demeter were forbidden, matrons on pain of death, to enter the enclosure.

At daybreak the athletes presented themselves in the Bouleuterium, where the presidents were sitting, and proved by witnesses that they were of pure Hellenic descent, and had no stain, religious or civil, on their character. Laying their hands on the bleeding victim, they swore that they had duly qualified themselves by ten months’ continuous training in the gymnasium, and that they would use no fraud or guile in the sacred contests. Thence they proceeded to the stadium, where they stripped to the skin and anointed themselves. A herald proclaimed, “Let the runners put their feet to the line,” and called on the spectators to challenge any disqualified by blood or character. If no objection was made, they were started by the note of the trumpet, running in heats of four, ranged in the places assigned them by lot. The presidents seated near the goal adjudged the victory. The foot-race was only one of twenty-four Olympian contests which Pausanias enumerates, though we must not suppose that these were all exhibited at any one festival. Till the 77th Olympiad all was concluded in one day, but afterwards the feast was extended to five.

The order of the games is for the most part a matter of conjecture, but, roughly speaking, the historical order of their institution was followed. We will now describe in this order the most important.

(1) The Foot-race.—For the first 13 Olympiads the δρόμος, or single lap of the stadium, which was 200 yds. long, was the only contest. The δίαυλος, in which the course was traversed twice, was added in the 14th Olympiad, and in the 15th the δόλιχος, or long race, of 7, 12 or, according to the highest computation, 24 laps, about 22⁄3 m. in length. We are told that the Spartan Ladas, after winning this race, dropped down dead at the goal. There was also, for a short time, a race in heavy armour, which Plato highly commends as a preparation for active service. (2) Wrestling was introduced in the 18th Olympiad. The importance attached to this exercise is shown by the very word palaestra, and Plutarch calls it the most artistic and cunning of athletic games. The practice differed little from that of modern times, save that the wrestler’s limbs were anointed with oil and sprinkled with sand. The third throw, which decided the victory, passed into a proverb, and struggling on the ground, such as we see in the famous statue at Florence, was not allowed, at least at the Olympia. (3) In the same year was introduced the πένταθλον (pentathlon), a combination of the five games enumerated in the well-known pentameter ascribed to Simonides:—

ἄλμα, ποδωκείην, δίσκον, ἄκοντα, πάλην.

Only the first of these calls for any comment. The only leap practised seems to have been the long jump. The leapers increased their momentum by means of ἁλτῆρες or dumb-bells, which they swung in the act of leaping and dropped as they “took off.” The take-off may have been slightly raised, and some commentators with very little warrant have stated that spring-boards were used. The record jump with which Phayllus of Croton is credited, 55 ft., is incredible with or without a spring-board. It is disputed whether a victory in all five contests, or in three at least, was required to win the πένταθλον. (4) The rules for boxing were not unlike those of the modern ring (see Pugilism), and the chief difference was in the use of the caestus. This in Greek times consisted of leather thongs bound round the boxer’s fists and wrists; and the weighting with lead or iron or metal studs, which made the caestus more like a “knuckle-duster” than a boxing-glove, was a later Roman development. The death of an antagonist, unless proved to be accidental, not only disqualified for a prize but was severely punished. The use of ear-guards and the comic allusions to broken ears, not noses, suggest that the Greek boxer did not hit out straight from the shoulder, but fought windmill fashion, like the modern rustic. In the pancratium, a combination of wrestling and boxing, the use of the caestus, and even of the clenched fist, was disallowed. (5) The chariot-race had its origin in the 23rd Olympiad. Of the hippodrome, or racecourse, no traces remain, but from the description of Pausanias we may infer that the dimensions were approximately 1600 ft. by 400. Down the centre there ran a bank of earth, and at each end of this bank was a turning-post round which the chariots had to pass. “To shun the goal with rapid wheels” required both nerve and skill, and the charioteer played a more important part in the race than even the modern jockey. Pausanias tells us that horses would shy as they passed the fatal spots. The places of the chariots were determined by lot, and there were elaborate arrangements for giving all a fair start. The number of chariots that might appear on the course at once is uncertain. Pindar (Pyth. v. 46) praises Arcesilaus of Cyrene for having brought off his chariot uninjured in a contest where no fewer than forty took part. The large outlay involved excluded all but rich competitors, and even kings and tyrants eagerly contested the palm. Thus in the list of victors we find the names of Cylon, the would-be tyrant of Athens, Pausanias the Spartan king, Archelaus of Macedon, Gelon and Hiero of Syracuse, and Theron of Agrigentum. Chariot-races with mules, with mares, with two horses in place of four, were successively introduced, but none of these present any special interest. Races on horseback date from the 33rd Olympiad. As the course was the same, success must have depended on skill as much as on swiftness. Lastly, there were athletic contests of the same description for boys, and a competition of heralds and trumpeters, introduced in the 93rd Olympiad.

The prizes were at first, as in the Homeric times, of some intrinsic value, but after the 6th Olympiad the only prize for each contest was a garland of wild olive, which was cut with a golden sickle from the kallistephanos, the sacred tree brought by Hercules “from the dark fountains of Ister in the land of the Hyperboreans, to be a shelter common to all men and a crown of noble deeds” (Pindar, Ol. iii. 18). Greek writers from Herodotus to Plutarch dwell with complacency on the magnanimity of a people who cared for nothing but honour and were content to struggle for a corruptible crown. But though the Greek games present in this respect a favourable contrast to the greed and gambling of the modern racecourse, yet to represent men like Milon and Damoxenus as actuated by pure love of glory is a pleasing fiction of the moralists. The successful athlete received in addition to the immediate honours very substantial rewards. A herald proclaimed his name, his parentage and his country; the Hellanodicae took from a table of ivory and gold the olive crown and placed it on his head, and in his hand a branch of palm; as he marched in the sacred revel to the temple of Zeus, his friends and admirers showered in his path flowers and costly gifts, singing the old song of Archilochus, τήνελλα καλλίνικε, and his name was canonized in the Greek calendar. Fresh honours and rewards awaited him on his return home. If he was an Athenian he received, according to the law of Solon, 500 drachmae, and free rations for life in the Prytaneum; if a Spartan, he had as his prerogative the post of honour in battle. Poets like Pindar, Simonides and Euripides sung his praises, and sculptors like Pheidias and Praxiteles were engaged by the state to carve his statue. We even read of a breach in the town walls being made to admit him, as if the common road were not good enough for such a hero; and there are well-attested instances of altars being built and sacrifices offered to a successful athlete. No wonder then that an Olympian prize was regarded as the crown of human happiness. Cicero, with a Roman’s contempt for Greek frivolity, observes with a sneer that an Olympian victor receives more honours than a triumphant general at Rome, and tells the story of the Rhodian Diagoras, who, having himself won the prize at Olympia, and seen his two sons crowned on the same day, was addressed by a Laconian in these words:—“Die, Diagoras, for thou hast nothing short of divinity to desire.” Alcibiades, when setting forth his services to the state, puts first his victory at Olympia, and the prestige he had won for Athens by his magnificent display. But perhaps the most remarkable evidence of the exaggerated value which the Greeks attached to athletic prowess is a casual expression which Thucydides employs when describing the enthusiastic reception of Brasidas at Scione. The state, he says, voted him a crown of gold, and the multitude flocked round him and decked him with garlands, as though he were an athlete.

The Pythian games originated in a local festival held at Delphi, anciently called Pytho, in honour of the Pythian Apollo, and were limited to musical competitions. The date at which they became a Panhellenic ἀγών (so Demosthenes calls them) cannot be determined, but the Pythiads as a chronological era date from 527 B.C., by which time music had been added to all the Panhellenic contests. Now, too, these were held at the end of every fourth year; previously there had been an interval of eight years. The Amphictyones presided and the prize was a chaplet of laurel.

The Nemean games were biennial and date from 516 B.C. They were by origin an Argive festival in honour of Nemean Zeus, but in historical times were open to all Greece and provided the established round of contests, except that no mention is made of a chariot-race. A wreath of wild celery was the prize.

The Isthmian games, held on the Isthmus of Corinth in the first and third year of each Olympiad, date, according to Eusebius, from 523 B.C. They are variously reported to have been founded by Poseidon or Sisyphus in honour of Melicertes, or by Theseus to celebrate his victory over the robbers Sinis and Sciron. Their early importance is attested by the law of Solon which bestowed a reward of 100 drachmae on every Athenian who gained a victory. The festival was managed by the Corinthians; and after the city was destroyed by Mummius (146 B.C.) the presidency passed to the Sicyonians until Julius Caesar rebuilt Corinth (46 B.C.). They probably continued to exist till Christianity became the religion of the Roman empire. The Athenians were closely connected with the festival, and had the privilege of proedria, the foremost seat at the games, while the Eleans were absolutely excluded from participation. The games included gymnastic, equestrian and musical contests, differing little from those of the other great festivals, and the prize was a crown made at one time of parsley (more probably wild celery), at a later period of pine. The importance of the Isthmian games in later times is shown by the fact that Flamininus chose the occasion for proclaiming the liberation of Greece, 196 B.C. That at a later anniversary (A.D. 67) Nero repeated the proclamation of Flamininus, and coupled with it the announcement of his own infamous victory at Olympia, shows alike the hollowness of the first gift and the degradation which had befallen the Greek games, the last faint relic of Greek nationality.

The Ludi Publici of the Romans included feasts and theatrical exhibitions as well as the public games with which alone we are concerned. As in Greece, they were intimately connected with religion. At the Roman. beginning of each civil year it was the duty of the consuls to vow to the gods games for the safety of the commonwealth, and the expenses were defrayed by the treasury. Thus, at no cost to themselves, the Roman public were enabled to indulge at the same time their religious feelings and their love of amusement. Their taste for games naturally grew till it became a passion, and under the empire games were looked upon by the mob as one of the two necessaries of life. The aediles who succeeded to this duty of the consuls were expected to supplement the state allowance from their private purse. Political adventurers were not slow to discover so ready a road to popularity, and what at first had been exclusively a state charge devolved upon men of wealth and ambition. A victory over some barbarian horde or the death of a relation served as the pretext for a magnificent display. But the worst extravagance of private citizens was eclipsed by the reckless prodigality of the Caesars, who squandered the revenues of whole provinces in catering for the mob of idle sightseers on whose favour their throne depended. But though public games played as important a part in Roman as in Greek history, and must be studied by the Roman historian as an integral factor in social and political life, yet, regarded solely as exhibitions, they are comparatively devoid of interest, and we sympathize with Pliny, who asks his friend how any man of sense can go day after day to view the same dreary round of fights and races.

It is easy to explain the different feelings which the games of Greece and of Rome excite. The Greeks at their best were actors, the Romans from first to last were spectators. It is true that even in Greek games the professional element played a large and ever-increasing part. As early as the 6th century B.C. Xenophanes complains that the wrestler’s strength is preferred to the wisdom of the philosopher, and Euripides, in a well-known fragment, holds up to scorn the brawny swaggering athlete. But what in Greece was a perversion and acknowledged to be such, the Romans not only practised but held up as their ideal. No Greek, however high in birth, was ashamed to compete in person for the Olympic crown. The Roman, though little inferior in gymnastic exercises, kept strictly to the privacy of the palaestra; and for a patrician to appear in public as a charioteer is stigmatized by the satirist as a mark of shameless effrontery.

Roman games are generally classified as fixed, extraordinary and votive; but they may be more conveniently grouped according to the place where they were held, viz. the circus or the amphitheatre.

For the Roman world the circus was at once a political club, a fashionable lounge, a rendezvous of gallantry, a betting ring, and a playground for the million. Juvenal, speaking loosely, says that in his day it held the whole of Rome; but there is no reason to doubt the precise statement of P. Victor, that in the Circus Maximus there were seats for 350,000 spectators.

Of the various Ludi Circenses it may be enough here to give a short account of the most important, the Ludi Magni or Maximi.

Initiated according to legend by Tarquinius Priscus, the Ludi Magni were originally a votive feast to Capitoline Jupiter, promised by the general when he took the field, and performed on his return from the annual campaign. They thus presented the appearance of a military spectacle, or rather a review of the whole burgess force, which marched in solemn procession from the capitol to the forum and thence to the circus, which lay between the Palatine and Aventine. First came the sons of patricians mounted on horseback, next the rest of the burghers ranged according to their military classes, after them the athletes, naked save for the girdle round their loins, then the company of dancers with the harp and flute players, next the priestly colleges bearing censers and other sacred instruments, and lastly the simulacra of the gods, carried aloft on their shoulders or drawn in cars. The games themselves were fourfold:—(1) the chariot race; (2) the ludus Troiae; (3) the military review; and (4) gymnastic contests. Of these only the first two call for any comment. (1) The chariot employed in the circus was the two-wheeled war car, at first drawn by two, afterwards by four, and more rarely by three horses. Originally only two chariots started for the prize, but under Caligula we read of as many as twenty-four heats run in the day, each of four chariots. The distance traversed was fourteen times the length of the circus or nearly 5 m. The charioteers were apparently from the first professionals, though the stigma under which the gladiator lay never attached to their calling. Indeed a successful driver may compare in popularity and fortune with a modern jockey. The drivers were divided into companies distinguished by the colours of their tunics, whence arose the faction of the circus which assumed such importance under the later emperors. In republican times there were two factions, the white and the red; two more, the green and the blue, were added under the empire, and for a short time in Domitian’s reign there were also the gold and the purple. Even in Juvenal’s day party spirit ran so high that a defeat of the green was looked upon as a second Cannae. After the seat of empire had been transferred to Constantinople these factions of the circus were made the basis of political cabals, and frequently resulted in sanguinary tumults, such as the famous Nika revolt (A.D. 532), in which 30,000 citizens lost their lives. (2) The Ludus Troiae was a sham-fight on horseback in which the actors were patrician youths. A spirited description of it will be found in the 5th Aeneid. (See also Circus.)

The two exhibitions we shall next notice, though occasionally given in the circus, belong more properly to the amphitheatre. Venatio was the baiting of wild animals who were pitted either with one another or with men—captives, criminals or trained hunters called bestiarii. The first certain instance on record of this amusement is in 186 B.C., when M. Fulvius exhibited lions and tigers in the arena. The taste for these brutalizing spectacles grew apace, and the most distant provinces were ransacked by generals and proconsuls to supply the arena with rare animals—giraffes, tigers and crocodiles. Sulla provided for a single show 100 lions, and Pompey 600 lions, besides elephants, which were matched with Gaetulian hunters. Julius Caesar enjoys the doubtful honour of inventing the bull-fight. At the inauguration of the Colosseum 5000 wild and 4000 tame beasts were killed, and to commemorate Trajan’s Dacian victories there was a butchery of 11,000 beasts. The naumachia was a sea-fight, either in the arena, which was flooded for the occasion by a system of pipes and sluices, or on an artificial lake. The rival fleets were manned by prisoners of war or criminals, who often fought till one side was exterminated. In the sea-fight on Lake Fucinus, arranged by the emperor Claudius, 100 ships and 19,000 men were engaged.

But the special exhibition of the amphitheatre was the munus gladiatorium, which dates from the funeral games of Marcus and Decimus Brutus, given in honour of their father, 264 B.C. It was probably borrowed from Etruria, and a refinement on the common savage custom of slaughtering slaves or captives on the grave of a warrior or chieftain. Nothing so clearly brings before us the vein of coarseness and inhumanity which runs through the otherwise noble character of the Roman, as his passion for gladiatorial shows. We can fancy how Pericles, or even Alcibiades, would have loathed a spectacle that Augustus tolerated and Trajan patronized. Only after the conquest of Greece we hear of their introduction into Athens, and they were then admitted rather out of compliment to the conquerors than from any love of the sport. In spite of numerous prohibitions from Constantine downwards, they continued to flourish even as late as St Augustine. To a Christian martyr, if we may credit the story told by Theodoret and Cassiodorus, belongs the honour of their final abolition. In the year 404 Telemachus, a monk who had travelled from the East on this sacred mission, rushed into the arena and endeavoured to separate the combatants. He was instantly despatched by the praetor’s orders; but Honorius, on hearing the report, issued an edict abolishing the games, which were never afterwards revived. (See Gladiators.)

Of the other Roman games the briefest description must suffice. The Ludi Apollinares were established in 212 B.C., and were annual after 211 B.C.; mainly theatrical performances. The Megalenses were in honour of the great goddess, Cybele: instituted 204 B.C., and from 191 B.C. celebrated annually. A procession of Galli, or priests of Cybele, was a leading feature. Under the empire the festival assumed a more orgiastic character. Four of Terence’s plays were produced at these games. The Ludi Saeculares were celebrated at the beginning or end of each saeculum, a period variously interpreted by the Romans themselves as 100 or 110 years. The celebration by Augustus in 17 B.C. is famous by reason of the Ode composed by Horace for the occasion. They were solemnized by the emperor Philip A.D. 248 to commemorate the millennium of the city.

2. Private Games.—These may be classified as outdoor and indoor games. There is naturally all the world over a much closer resemblance between the pursuits and amusements of children than of adults. Homer’s children built castles in the sand, and Greek and Roman children alike had their dolls, their hoops, their skipping-ropes, their hobby-horses, their kites, their knuckle-bones and played at hopscotch, the tug-of-war, pitch and toss, blind-man’s buff, hide and seek, and kiss in the ring or at closely analogous games. Games of ball were popular in Greece from the days of Nausicaa, and at Rome there were five distinct kinds of ball and more ways of playing with them. For particulars the dictionary of antiquities must be consulted. It is strange that we can find in classical literature no analogy to cricket, tennis, golf or polo, and though the follis resembled our football, it was played with the hand and arm, not with the leg. Cock-fighting was popular both at Athens and Rome, and quails were kept and put to various tests to prove their pluck.

Under indoor games we may distinguish games of chance and games of skill, though in some of them the two elements are combined. Tesserae, shaped and marked with pips like modern dice, were evolved from the tali, knuckle-bones with only four flat sides. The old Roman threw a hazard and called a main, just as did Charles Fox, and the vice of gambling was lashed by Juvenal no less vigorously than by Pope. The Latin name for a dice-box has survived in the fritillary butterfly and flower.

The primitive game of guessing the number of fingers simultaneously held up by the player and his opponent is still popular in Italy where it is known as “morra.” The proverbial phrase for an honest man was quicum in tenebris mices, one you would trust to play at morra in the dark.

Athena found the suitors of Penelope seated on cowhides and playing at πεσσοί, some kind of draughts. The invention of the game was ascribed to Palamedes. In its earliest form it was played on a board with five lines and with five pieces. Later we find eleven lines, and a further development was the division of the board into squares, as in the game of πόλεις (cities). In the Roman latrunculi (soldiers), the men were distinguished as common soldiers and “rovers,” the equivalent of crowned pieces.

Duodecim scripta, as the name implies, was played on a board with twelve double lines and approximated very closely to our backgammon. There were fifteen pieces on each side, and the moves were determined by a throw of the dice; “blots” might be taken, and the object of the player was to clear off all his own men. Lastly must be mentioned the Cottabus (q.v.), a game peculiar to the Greeks, and with them the usual accompaniment of a wine party. In its simplest form each guest threw what was left in his cup into a metal basin, and the success of the throw, determined partly by the sound of the wine in falling, was reckoned a divination of love. For the various elaborations of the game (in Sicily we read of Cottabus houses), Athenaeus and Pollux must be consulted.

Bibliography.—Daremberg et Saglio, Dictionnaire des antiquités grecques et romaines, articles “Agon,” “Athleta,” “Circus,” “Ludi,” “Olympia,” “Spiele”; Curtius and Adler, Olympia (5 vols., 1890, &c.); Hachtmann, Olympia und seine Festspiele; Blümner, Home Life of the Ancient Greeks; J.P. Mahaffy, Old Greek Education; P. Gardner and F.B. Jevons, Manual of Greek Antiquities; E.N. Gardiner, Greek Athletic Sports (1910); Becker-Marquardt, Handbuch der römischen Altertümer (5 vols.).

(F. S.)

GAMING AND WAGERING. It is somewhat difficult exactly to define or adequately to distinguish these terms of allied meaning. The word “game” (q.v.) is applicable to most pastimes and many sports, irrespective of their lawful or unlawful character. “Gaming” is now always associated with the staking of money or money’s worth on the result of a game of pure chance, or mixed skill and chance; and “gambling” has the same meaning, with a suggestion that the stakes are excessive or the practice otherwise reprehensible, while “wager” and “wagering” are applied to money hazarded on any contingency in which the person wagering has no interest at risk other than the amount at stake. “Betting” is usually restricted to wagers on events connected with sports or games, and “lottery” applies to speculation to obtain prizes by lot or chance.

At English common law no games were unlawful and no penalties were incurred by gambling, nor by keeping gaming-houses, unless by reason of disorder they became a public nuisance. From very early times, however, the English statute law has attempted to exercise control over the sports, pastimes and amusements of the lieges. Several points of view have been taken: (1) their competition with military exercises and training; (2) their attraction to workmen and servants, as drawing them from work to play; (3) their interference with the observance of Sunday; (4) their combination with betting or gambling as causing impoverishment and dishonesty in children, servants and other unwary persons; (5) the use of fraud or deceit in connexion with them. The legislation has assumed several forms: (1) declaring certain games unlawful either absolutely or if accompanied by staking or betting money or money’s worth on the event of the game; (2) declaring the keeping of establishments for betting, gaming or lotteries illegal, or prohibiting the use of streets or public places for such purposes; (3) prohibiting the enforcement in courts of justice of gambling contracts.

The earliest English legislation against games was passed in the interests of archery and other manly sports which were believed to render the lieges more fit for service in war. A statute of Richard II. (1388) directed servants and labourers Games, lawful and unlawful. to have bows and arrows and to use them on Sundays and holidays, and to cease from playing football, quoits, dice, putting the stone, kails and other such importune games. A more drastic statute was passed in 1409 (11 Hen. IV. c. 4) and penalties were imposed in 1477 (17 Edw. IV. c. 3) on persons allowing unlawful games to be played on their premises. These acts were superseded in 1541 (33 Hen. VIII. c. 9) by a statute passed on the petition of the bowyers, fletchers (fléchiers), stringers and arrowhead makers of the realm. This act (still partly in force) is entitled an “act for maintenance of archery and debarring of unlawful games”; and it recites that, since the last statutes (of 3 & 6 Hen. VIII.) “divers and many subtil inventative and crafty persons have found and daily find many and sundry new and crafty games and plays, as logating in the fields, slide-thrift, otherwise called shove-groat, as well within the city of London as elsewhere in many other and divers parts of this realm, keeping houses, plays and alleys for the maintenance thereof, by reason whereof archery is sore decayed, and daily is like to be more minished, and divers bowyers and fletchers, for lack of work, gone and inhabit themselves in Scotland and other places out of this realm, there working and teaching their science, to the puissance of the same, to the great comfort of strangers and detriment of this realm.” Accordingly penalties are imposed on all persons keeping houses for unlawful games, and all persons resorting thereto (s. 8). The games specified are dicing, table (backgammon) or carding, or any game prohibited by any statute theretofore made or any unlawful new game then or thereafter invented or to be invented. It is further provided that “no manner of artificer or craftsman of any handicraft or occupation, husbandman, apprentice, labourer, servant at husbandry, journeyman or servant of artificer, mariners, fishermen, watermen, or any serving man, shall play at the tables, tennis, dice, cards, bowls, clash, coyting, logating or any other unlawful game out of Christmas under the pain of xxs. to be forfeit for every time; and in Christmas to play at any of the said games in their masters’ houses or in their masters’ presence; and also that no manner of person shall at any time play at any bowl or bowls in open places out of his garden or orchard” (s. 11). The social evils of gambling (impoverishment, crime, neglect of divine service) are incidentally alluded to in the preamble, but only in connexion with the main purpose of the statute—the maintenance of archery. No distinction is made between games of skill and games of chance, and no reference is made to playing for money or money’s worth. The Book of Sports of James I. (1617), republished by Charles I. (1633), was aimed at encouraging certain sports on Sundays and holidays; but with the growth of Puritanism the royal efforts failed. The Sunday Observance Act 1625 prohibits the meeting of people out of their own parishes on the Lord’s Day for any sports or pastimes whatsoever. It has been attempted to enforce this act against Sunday football. The act goes on to prohibit any bear-baiting, bull-baiting, interludes, common plays or other unlawful exercises or plays on Sunday by parishioners within their own parishes. According to Blackstone (iv. Comm. c. 13) the principal ground of complaint leading to legislation in the 18th century was “gambling in high life.” He collects the statutes made with this view, but only those still in force need have been mentioned.

The first act directed against gambling as distinct from playing games was that of 1665 (16 Car. II. c. 7) “against deceitful, disorderly and excessive gaming” which deals with games both of skill and chance at which people cheat, or play otherwise than with ready money, or lose more than £100 on credit. In 1698 (13 Will. III. c. 23) legislation was passed against lotteries, therein described as “mischievous and unlawful games.” This act was amended in 1710 (9 Anne c. 6), and in the same year was passed a statute which is the beginning of the modern legislation against gambling (9 Anne c. 19). It includes within its scope money won by “gaming or playing” at cards, &c., and money won by “betting” on the sides or hands of those who game at any of the forbidden games. But it refers to tennis and bowls as well as to games with cards and dice.

The following list of lawful games, sports and exercises is given in Oliphant on Horses, &c. (6th ed.): horse-races, steeplechases, trotting matches, coursing matches, foot-races, boat-races, regattas, rowing matches, golf, wrestling matches, cricket, tennis, fives, rackets, bowls, skittles, quoits, curling, putting the stone, football, and presumably every bona-fide variety, e.g. croquet, knurr and spell, hockey or any similar games. Cock-fighting is said to have been unlawful at common law, and that and other modes of setting animals to fight are offences against the Prevention of Cruelty to Animals Acts. The following are also lawful games: whist and other lawful games at cards, backgammon, bagatelle, billiards, chess, draughts and dominoes. But to allow persons to play for money at these games or at skittles or “skittle pool” or “puff and dart” on licensed premises is gaming within the Licensing Act 1872. The earlier acts declared unlawful the following games of skill: football, quoits, putting the stone, kails, tennis, bowls, clash or kails, or cloyshcayls, logating, half bowl, slide-thrift or shove-groat and backgammon. Backgammon and other games in 1739 played with backgammon tables were treated as lawful in that year. Horse-racing, long under restriction, being mentioned in the act of 1665 and many 18th-century acts, was fully legalized in 1840 (3 & 4 Vict. c. 35). The act of 1541, so far as it declared any game of mere skill unlawful, was repealed by the Gaming Act 1845. Billiards is legal in private houses or clubs and in public places duly licensed. The following games have been declared by the statutes or the judges to be unlawful, whether played in public or in private, unless played in a royal palace where the sovereign is residing: ace of hearts, pharaoh (faro), basset and hazard (1738), passage, and every game then invented or to be invented with dice or with any other instrument, engine or device in the nature of dice having one or more figures or numbers thereon (1739), roulet or roly-poly (1744), and all lotteries (except Art Union lotteries), rouge et noir, baccarat-banque (1884), chemin de fer (1895), and all games at cards which are not games of mere skill. The definition of unlawful game does not include whist played for a prize not subscribed to by the players, but it does include playing cards for money in licensed premises; even in the private room of the licensee or with private friends during closing hours.

The first attack on lotteries was in 1698, against lotteries “by dice, lots, cards, balls or any other numbers or figures or in any other way whatsoever.” An act of 1721 prohibited lotteries which under the name of sales distributed prizes in money, advowsons, land, jewels, &c., by lots, tickets, numbers or figures. Acts of 1722, 1733 and 1823 prohibited any sale of tickets, receipts, chances or numbers in foreign lotteries. The games of cards already referred to as unlawful were in 1738 declared to be “games or lotteries by cards or dice,” and in 1802 the definition of lottery was extended to include “little-goes and any game or lottery not authorized by parliament, drawn by dice, lots, cards, balls, or by numbers or figures or by any other way, contrivance or device whatsoever.” This wide definition reaches raffles and sweepstakes on races. The advertisement of foreign or illegal lotteries is forbidden by acts of 1836 and 1844. In 1846 art unions were exempted from the scope of the Lottery Acts. Attempts have been made to suppress the sale in England of foreign lottery tickets, but the task is difficult, as the post-office distributes the advertisements, although, under the Revenue Act 1898, the Customs treat as prohibited goods advertisements or notices as to foreign lotteries. More success has been obtained in putting down various devices by newspapers and shopkeepers to attract customers by instituting “missing word competitions” and “racing coupon competitions”; by automatic machines which give speculative chances in addition to the article obtained for the coin inserted; by distribution of prizes by lot or chance to customers; by holding sweepstakes at public-houses, by putting coins in sweetmeats to tempt street urchins by cupidity to indigestion; or by gratuitous distribution of medals giving a chance of a prize from a newspaper. An absolutely gratuitous distribution of chances seems not to be within the acts, but a commercial distribution is, even if individuals who benefit do not pay for their chance.

As already stated, the keeping of a gaming-house was at common law punishable only if a public nuisance were created. The act of 1541 imposes penalties on persons maintaining houses for unlawful games. Originally licences could be obtained for such houses, but these were abolished in 1555 (2 & 3 Phil. and Mar.). In 1698 lotteries were declared public nuisances, and in 1802 the same measure was meted out to lotteries known as little-goes. Special penalties are provided for those who set up lotteries or any unlawful game with cards or dice, &c. (1738, 1739, 1744). In 1751 inhabitants of a parish were enabled to insist on the prosecution of gaming-houses. The act of 1802 imposed severe penalties on persons publicly or privately keeping places for any lottery. This statute hits at the deliberate or habitual use of a place for the prohibited purpose, and does not touch isolated or incidental uses on a single occasion, e.g. at a bazaar or show; but under an act of 1823 the sale of lottery tickets is in itself an offence. The Gaming Act 1845 facilitates the search of suspected gaming-houses and the proof that they are such. It provides that, to prove any house to be a common gaming-house, it “shall be sufficient to show that it is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet.” Gambling, it will be noticed, is still in this definition connected with some kind of game. The act also provides that proof that the gaming was for money shall not be required, and that the presence of cards, dice and other instruments of gaming shall be prima-facie evidence that the house was used as a common gaming-house. The most recent statute dealing with gaming-houses is of 1854, which provides summary remedies against the keeper and makes further provisions to facilitate conviction. It may be added that the Gaming Act 1845 makes winning money by cheating at any game or wager punishable in the same way as obtaining money by false pretences. At the present time proceedings for keeping gaming-houses in the sense in which that word is commonly understood are comparatively rare, and are usually against foreigners. The statutes hit both public and private gaming-houses (see the Park Club case, Jenks v. Turpin, 1884, 13 Q.B.D. 505, the leading case on unlawful games). The proprietor and the person who keeps the bank at an unlawful game are both within the statute: the players are not, but the act of Henry VIII. is so far alive that they can be put under recognizance not to frequent gaming-houses. Under the Licensing Act 1872 penalties are incurred by licensed victuallers who suffer any gaming or unlawful game to be played on their premises. A single instance of playing an unlawful game for money in a private house is not within the statutes (R. v. Davies, 1897, 2 Q.B. 199).

In England, so far as the general public is concerned, gaming at cards is to a large extent superseded by betting on sports and pastimes, or speculation by means of lotteries or like devices. The legislation against betting eo nomine began in 1853. In the Betting Act 1853 it is described as a kind of gaming of late sprung up to the injury and demoralization of improvident persons by the opening of places called betting houses and offices, and the receiving of money in advance by the owners or occupiers or their agents on promises to pay money on events or horse races and like contingencies. This act strikes at ready money betting as distinguished from betting on credit (“on the nod”). It was avowedly framed to hit houses open to all and sundry as distinguished from private betting clubs such as Tattersall’s. The act seeks to punish persons who keep a house, office, room or other place for the purpose (inter alia) of any person betting with persons “resorting thereto” or of receiving deposits in consideration of bets on contingencies relating to horse-races or other races, fights, games, sports or exercises. The act especially excepts persons who receive or hold prizes or stakes to be paid to the winner of a race or lawful sport, game or exercise, or to the owner of a horse engaged in a race (s. 6). Besides the penalties incurred by keeping such places, the keeper is liable to repay to depositors the sums deposited (s. 5).

By the Licensing Act 1872 penalties are incurred by licensed persons who allow their houses to be used in contravention of the Betting Act 1853. There has been a great deal of litigation as to the meaning and scope of this enactment, and a keen contest between the police and the Anti-gambling League (which has been very active in the matter) and the betting confraternity, in which much ingenuity has been shown by the votaries of sport in devising means for evading the terms of the enactment. The consequent crop of legal decisions shows a considerable divergence of judicial opinion. The House of Lords has held that the Tattersall’s enclosure or betting ring on a racecourse is not a “place” within the statute; and members of a bona-fide club who bet with each other in the club are not subject to the penalties of the act. But the word “place” has been held to include a public-house bar, an archway, a small plot of waste ground, and a bookmaker’s stand, and even a bookmaker’s big umbrella, and it is difficult to extract from the judges any clear indication of the nature of the “places” to which the act applies. The act is construed as applying only to ready-money betting, i.e. when the stake is deposited with the bookmaker, and only to places used for betting with persons physically resorting thereto; so that bets by letter, telegram or telephone do not fall within its penalties. The arm of the law has been found long enough to punish as thieves “welshers,” who receive and make off with deposits on bets which they never mean to pay if they lose. The act of 1853 makes it an offence to publish advertisements showing that a house is kept for betting. It was supplemented in 1874 by an act imposing penalties on persons advertising as to betting. But this has been read as applying to bets falling within the act of 1853, and it does not prohibit the publication of betting news or sporting tips in newspapers. A few newspapers do not publish these aids to ruin, and in some public libraries the betting news is obliterated, as it attracts crowds of undesirable readers. The act of 1853 has been to a great extent effectual against betting houses, and has driven some of them to Holland and other places. But it has been deemed expedient to legislate against betting in the streets, which has been found too attractive to the British workman.

By the Metropolitan Streets Acts 1867 any three or more persons assembled together in any part of any street in the city of London or county of London for the purpose of betting and deemed to be obstructing the street, may be arrested Street betting. without warrant by a constable and fined a sum not exceeding £5. The Vagrancy Act 1873 (36 & 37 Vict. c. 38) provides that “Every person playing or betting by way of wagering or gaming on any street, road, highway or other open and public place, or in any open place to which the public have, or are permitted to have, access, at or with any table or instrument of gaming, or any coin, card, token or other article used as an instrument or means of gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.” This act amended a prior act of 1868, passed to repress the practice of playing pitch and toss in the streets, which had become a public nuisance in the colliery districts. The powers of making by-laws for the peace, order and good government of their districts, possessed by municipal boroughs—and since 1888 by county councils—and extended in 1899 to the new London boroughs, have in certain cases been exercised by making by-laws forbidding any person to “frequent or use any street or other public place, on behalf either of himself or any other person, for the purpose of bookmaking, or betting, or wagering, or agreeing to bet or wager with any person, or paying, or receiving or settling bets.” This and similar by-laws have been held valid, but were found inadequate, and by the Street Betting Act 1906 (6 Edw. VII. c. 43), passed by the efforts of the late Lord Davey, it is made an offence for any person to frequent or loiter in a street or public place on behalf of himself or of any other person for the purpose of bookmaking or betting or wagering or agreeing to bet or wager or paying or receiving or settling bets. The punishment for a first offence is fine up to £10, for a second fine up to £20, and the punishment is still higher in the case of a third or subsequent offence, or where the accused while committing the offence has any betting transaction with a person under the age of sixteen. The act does not apply to ground used for a course for horse-racing or adjacent thereto on days on which races take place; but the expression public place includes a public park, garden or sea-beach, and any unenclosed ground to which the public for the time have unrestricted access, and enclosed places other than public parks or gardens to which the public have a restricted right of access with or without payment, if the owners or persons controlling the place exhibit conspicuously a notice prohibiting betting therein. A constable may arrest without warrant persons offending and seize all books, papers, cards and other articles relating to betting found in their possession, and these articles may be forfeited on conviction. Besides the above provision against betting with infants the Betting and Loans (Infants) Act 1892, passed at the instance of the late Lord Herschell, makes it a misdemeanour to send, with a view to profit, to any one known by the sender to be an infant, a document inviting him to enter into a betting or wagering transaction. The act is intended to protect lads at school and college from temptation by bookmakers.

We must now turn from the public law with respect to gaming to the treatment of bets and wagers from the point of view of their obligation on the individuals who lose them. A wager may be defined as “a promise to give money or Wagering. money’s worth upon the determination or ascertainment of an uncertain event” (Anson, Law of Contract, 11th ed., p. 206). The event may be uncertain because it has not happened or because its happening is not ascertained; but to make the bargain a wager the determination of the event must be the sole condition of the bargain. According to the view taken in England of the common law, bets or wagers were legally enforceable, subject to certain rules dictated by considerations of public policy, e.g. that they did not lead to immorality or breach of the peace, or expose a third person to ridicule.1 The courts were constantly called upon to enforce wagers and constantly exercised their ingenuity to discover excuses for refusing. A writer on the law of contracts2 discovers here the origin of that principle of “public policy” which plays so important a part in English law. Wagering contracts were rejected because the contingencies on which they depended tended to create interests hostile to the common weal. A bet on the life of the emperor Napoleon was declared void because it gave one of the parties an interest in keeping the king’s enemy alive, and also because it gave the other an interest in compassing his death by unlawful means. A bet as to the amount of the hop-duty was held to be against public policy, because it tended to expose the condition of the king’s revenue to all the world. A bet between two hackney coachmen, as to which of them should be selected by a gentleman for a particular journey, was void because it tended to expose the customer to their importunities. When no such subtlety could be invented, the law, however reluctantly, was compelled to enforce the fulfilment of a wager. Actions on wagers were not favoured by the judges; and though a judge could not refuse to try such an action, he could, and often did, postpone it until after the decision of more important cases.

Parliament gradually intervened to confine the common law within narrower limits, both in commercial and non-commercial wagers, and both by general and temporary enactments. An example of the latter was 7 Anne c. 16 (1710), avoiding all wagers and securities relating to the then war with France. The earliest general enactment was 16 Car. II. c. 7 (1665), prohibiting the recovery of a sum exceeding £100 lost in games or pastimes, or in betting on the sides or hands of the players, and avoiding securities for money so lost. 9 Anne c. 19 avoided securities for such wagers for any amount, even in the hands of bona-fide holders for value without notice, and enabled the loser of £10 or upwards to sue for and recover the money he had lost within three months of the loss. Contracts of insurance by way of gaming and wagering were declared void, in the case of marine risks in 1746, and in the case of other risks in 1774. It was not until 1845 that a general rule was made excluding wagers from the courts. Section 18 of the Gaming Act 1845 (passed after a parliamentary inquiry in 1844 as to gaming) enacted “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 maintained 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 subscription or contribution, or agreement to subscribe or contribute, for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime or exercise.”

The construction put on this enactment enabled turf commission agents to recover from their principals bets made and paid for them. But the Gaming Act 1892 rendered null and void any promise, express or implied, to repay to any person any sum of money paid by him under, or in respect of, any contract or agreement rendered null and void by the Gaming Act 1845, or to pay any sum of money by way of commission, fee, reward, or otherwise in respect of any such contract or agreement, or of any services in relation thereto or in connexion therewith, and provided that no action should be brought or maintained to recover any such sum. By the combined effect of these two enactments the recovery by the winner from the loser or stakeholder of bets or of stakes on games falling within s. 18 of the Gaming Act 1845 is absolutely barred; but persons who have deposited money to abide the event of a wager are not debarred from crying off and recovering their stake before the event is decided, or even after the decision of the event and before the stake is paid over to the winner;3 and a man who pays a bet for a friend, or a turf commission agent or other agent who pays a bet for a principal, has now no legal means of recovering the money, unless some actual deceit was used to induce him to pay in ignorance that it was a bet. But a person who has received a bet on account of another can still, it would seem, be compelled to pay it over, and the business of a betting man is treated as so far lawful that income-tax is charged on its profits, and actions between parties in such a business for the taking of partnership accounts have been entertained.

The effect of these enactments on speculative dealings in shares or other commodities calls for special consideration. It seems to be correct to define a wagering contract as one in which two persons, having opposite opinions touching the issue of an event (past or future), of which they are uncertain, mutually agree that on the determination of the event one shall win, and the other shall pay over a sum of money, or other stake, neither party having any other interest in the event than the sum or stake to be won or lost. This definition does not strike at contracts in “futures,” under which the contractors are bound to give or take delivery at a date fixed of commodities not in existence at the date of the contract. Nor are such contracts rendered void because they are entered into for purposes of speculation; in fact, their legality is expressly recognized by the Sale of Goods Act 1893. Contracts of insurance are void if made by way of gaming or wagering on events in which the assured has no interest present or prospective whether the matter be life or fire risks (1774) or maritime risks (Marine Insurance Act 1906). An act known as Sir John Barnard’s Act (7 Geo. II. c. 8, entitled “An act to prevent the infamous practice of stock jobbing”) prohibited contracts for liberty to accept or refuse any public stocks or securities and wagers relating to public stocks, but this act was repealed in 1860, and contracts to buy or sell stocks and shares are not now void because entered into by way of speculation and not for purposes of investment. The only limitation on such contracts is that contained in Leeman’s Act (30 & 31 Vict. c. 29) as to contracts for the sale of shares in joint-stock banking companies. But a transaction in any commodity, though in form commercial, falls within the Gaming Acts if in substance the transaction is a mere wager on the price of the commodity at a date fixed by the contract. It does not matter whether the dealing is in stocks or in cotton, nor whether it is entered into on the Stock Exchange, or on any produce exchange, or elsewhere; nor is it conclusive in favour of the validity of the bargain that it purports to bind the parties to take or deliver the article dealt in. The courts are entitled to examine into the true nature of the transaction; and where the substantial intention of the parties is merely to gamble in differences, to make what is called “a time bargain,” the fact that it is carried out by a series of contracts, regular and valid in form, will not be sufficient to exclude the application of the Gaming Acts.

In very many cases transactions with “outside stockbrokers” or “bucket shops” have been held to be mere wagers, although the contracts purported to give “put” or “call” options to demand delivery or acceptance of the stocks dealt with; and the cover deposited by the “client” has been treated as a mere security for performance of the bargain, and recoverable if sued for in time, i.e. before it is used for the purpose for which it is deposited. There was not up to 1909 any authoritative decision as to the application of the Gaming Act 1892 to transactions on the London Stock Exchange through a stockbroker who is a member of “the House”; but the same principle appears to be applicable where the facts of the particular deal clearly indicate that the intention was to make a mere time bargain, or to pay or receive differences only. The form, however, of all bargains on the Stock Exchange is calculated and intended to preclude people from setting up a gaming act defence: as each contract entitles the holder to call for delivery or acceptance of the stock named therein. In the event of the bankruptcy of a person involved in speculations, the bankruptcy officials exclude from proof against the estate all claims founded on any dealing in the nature of a wager; and on the same principle the bankrupt’s trustee cannot recover sums won by the bankrupt by gaming transactions, but unexhausted “cover” on uncompleted transactions may be recovered back.

Besides the enactments which prevent the recovery of bets or wagers by action there has also been a good deal of legislation dealing with securities given in respect of “gambling debts.” The earliest (1665) dealt with persons playing Gambling debts. at games otherwise than for ready money and losing £100 or more on credit, and not only prohibited the winner from recovering the overplus but subjected him to penalties for winning it. An act of 1710 (9 Anne c. 19) declared utterly void all notes, bills, bonds, judgments, mortgages or other securities where the consideration is for money or valuable security won by gaming at cards, stocks or other games, or by betting on the sides or hands of the gamesters, or for reimbursing money knowingly advanced for such gaming or betting. This act draws a distinction between gaming and other bets or wagers. Under this act the securities were void even in the hands of innocent transferees. In 1841 the law was altered, declaring such securities not void but made upon an “illegal” consideration. The effect of the change is to enable an innocent transferee for value, of a bill, note or cheque, to recover on a security worthless in the hands of the original taker (see s. 30 of the Bills of Exchange Act 1882), but to put on him the burden of proving that he is a bona fide holder for value. In the case of a negotiable security given for a wager not within the acts of 1710 or 1841 (e.g. a bet on a contested election), but within the act of 1845, a third person holding it would be presumed to be a holder for value and on the person prima facie liable under the security falls the burden of proving that no consideration was given for it. It has been decided after considerable divergence of judicial opinion that an action will not lie in England in favour of the drawee against the drawer of a cheque drawn at Algiers on an English bank, partly for losses at baccarat, and partly for money borrowed to continue playing the game. The ground of decision was in substance that the Gaming Acts of 1845 and 1892 as the lex fori prohibit the English courts from enforcing gaming debts wherever incurred (Moulis v. Owen, 1907, 1 K.B. 746).

Scotland.—A Scots act of 1621 c. 14 (said still to be in force) forbids playing at cards or dice in any common house of hostelry, and directs that sums over 100 marks won on any one day at carding or dicing or at wagers on horse races should be at once sent to the treasurer of the kirk session. The Lottery Acts, except that of 1698, apply to Scotland; and the Betting House Act 1853 was extended to Scotland in 1874. The Street Betting Act 1906 extends to Scotland, and gaming houses can be suppressed under the Burgh Police Act 1892, and street betting, lotteries or gaming under that of 1903.

The Scots courts refuse to try actions on wagers, as being sponsiones ludicrae, unbecoming the dignity of the courts. 9 Anne c. 19 and 5 & 6 Will. IV. c. 41 extend to Scotland, but the weight of judicial opinion is that the Gaming Act 1845 does not.

Ireland.—The British Acts against lotteries were extended to Ireland in 1780, and the general law as to gaming is the same in both countries.

British Possessions.—Certain of the earlier imperial acts are in force in British possessions, e.g. the act of 9 Anne c. 19, which is in force in Ontario subject to amendments made in 1902. In the Straits Settlements, Jamaica and British Guiana there are ordinances directed against gambling and lotteries, and particularly against forms of gambling introduced by the Chinese. Under these ordinances the money paid for a lottery ticket is recoverable by law. In the Transvaal betting houses were suppressed by proclamation (No. 33) soon after the annexation. An invention known in France as the pari mutuel, and in Australia as the totalizator, is allowed to be used on race-courses in most of the states (but not in New South Wales). In Queensland, South Australia, Tasmania and Western Australia the state levies a duty on the takings of the machine. In Tasmania the balance of the money retained by the stewards of the course less the tax must be applied solely for improving the course or promoting horse-racing. In Victoria under an act of 1901 the promoters of sports may by advertisement duly posted make betting on the ground illegal.

Egypt.—By law No. 10 of 1905 all lotteries are prohibited with certain exceptions, and it is made illegal to hawk the tickets or offer them for sale or to bring illegal lotteries in any way to the notice of the public. The authorized lotteries are those for charitable purposes, e.g. those of the benevolent societies of the various foreign communities.

United States.—In the United States many of the states make gaming a penal offence when the bet is upon an election, or a horse race, or a game of hazard. Betting contracts and securities given upon a bet are often made void, and this may destroy a gaming note in the hands of an innocent purchaser for value. The subject lies outside of the province of the federal government. By the legislation of some states the loser may recover his money if he sue within a limited time, as he might have done in England under 9 Anne c. 19.

Authorities.—Brandt on Games (1872); Oliphant, Law of Horses, &c. (6th ed. by Lloyd, 1908); Schwabe on the Stock Exchange (1905); Melsheimer on the Stock Exchange (4th ed., 1905); Coldridge and Hawksford, The Law of Gambling (1895); Stutfield, Betting (3rd ed., 1901).

(W. F. C.)

1 Leake on Contracts (4th ed.), p. 529.

2 Pollock, Contracts (7th ed.), p. 313.

3 Burge v. Ashby, 1900, 1 Q.B. 744.

GAMUT (from the Greek letter gamma, used as a musical symbol, and ut, the first syllable of the medieval hymn Sanctus Johannes), a term in music used to mean generally the whole compass or range of notes possessed by an instrument or voice. Historically, however, the sense has developed from its stricter musical meaning of a scale (the recognized musical scale of any period), originating in the medieval “great scale,” of which the invention has usually been ascribed to Guido of Arezzo (q.v.) in the 11th century. The whole question is somewhat obscure, but, in the evolution of musical notation out of the classical alphabetical system, the invention of the medieval gamut is more properly assigned to Hucbald (d. 930). In his system of scales the semitone was always between the 2nd and 3rd of a tetrachord, as G, A, ♭ B, C, so the ♮ B and ♯ F of the second octave were in false relation to the ♭ B and ♮F of the first two tetrachords. To this scale of four notes, G, A, ♭ B, C, were subsequently added a note below and a note above, which made the hexachord with the semitone between the 3rd and 4th both up and down, as F, G, A, ♭ B, C, D. It was at a much later date that the 7th, our leading note, was admitted into a key, and for this the first two letters of the last line of the above-named hymn, “Sanctus Johannes,” would have been used, save for the notion that as the note Mi was at a semitone below Fa, the same vowel should be heard at a semitone below the upper Ut, and the syllable Si was substituted for Sa. Long afterwards the syllable Ut was replaced by Do in Italy, but it is still retained in France; and in these two countries, with whatever others employ their nomenclature, the original Ut and the substituted Do stand for the sound defined by the letter C in English and German terminology. The literal musical alphabet thus accords with the syllabic: