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

A wager or bet, according to Mr. Bouvier, is " a contract by which two parties or more agree that a certain sum of money or other things, shall be paid or delivered to one of them on the happening, or not happening, of an uncertain event." Employing the word in this sense, it is pretty well settled that all wager contracts were not void at common law. The distinction between the legal and the illegal wagers seems to rest upon the good or evil character of the event or act, which constitutes the subject-matter of the wager. If the wager was about a harmless and legal act or event, the wager was itself legal, and the wager contract could be enforced. But if the wager has reference to the

1 See, ante, § 68.

2 See, post, § 102.

3 Thus it was lawful at common law to bet that A. has purchased a wagon of B. (Good v. Elliott, 3 T. R. 693); or to bet on a cricket-match. Walpole v. Saunders, 16 E. C. L. R. 276. See, also, generally, in support of the position taken above, Sherborne v. Colebach, 2 Vent. 175; Hussey

happening or doing of some act which is illegal or against good morals, the wager is void and will not be enforced. In no part of the civilized world are contracts for the insurance of life or property against accidental destruction held to be invalid.

The English doctrine is clearly sustained, as a part of the common law, by the decision of some of the American courts. But, except in the matter of insurance contracts, all wager contracts are declared to be invalid in Maine, Massachusetts, New Hampshire, Vermont, and Pennsylvania, whatever may be the character of the event or act, which constitutes the foundation for the wager. In many of the States the common law is changed by statutes which prohibit all wager contracts, and forbid their enforcement by the courts. Thus, by the New York Revised Statutes,* "all wagers, bets, or stakes, made to depend upon any race,

v. Crickell, 3 Campb. 168; Grant v. Hamilton, 3 M. L. 100; Cousins v. Mantes, 3 Taunt. 515; Johnson v. Lonsley, 12 C. B. 468; Dalby v. India Life Ins. Co., 15 C. B. 365; Hampden v. Walsh, L. R. 12 B. D. 192.

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

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

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

41 Rev. Stats. N. Y. 661, § 8.

or upon any gaming by lot or chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for, or on account of, any money or property or thing in action so wagered, bet or staked shall be void."1 It is to be observed, that in all of these judicial and legislative determinations of the illegality of wagering contracts, although they differ in respect to the legality of particular wagers, they all rest upon the proposition that the prohibited wagers tend to develop and increase the spirit of gambling and at the same time serve no useful purpose. For these reasons all contracts, based upon such wagers, are declared to be illegal. Inasmuch as insurance contracts serve a useful purpose, they are not prohibited; and it is not likely that a law, prohibiting them, would be sustained. It is, therefore, the evil effect of betting, coupled with its practical uselessness, that justifies its prohibition; for all unobjectionable contracts have, as an incident of property, an inalienable right to some effective remedy in the courts of the country.2

§ 99a. Option contracts, when illegal. -The common forms of gambling are not difficult to define or distinguish from harmless or unobjectionable transactions. The enforcement of the law against gambling in such cases is not trammeled with confusion as to what constitutes the gravamen of the offense. It is the staking of money on the issue of games of chance, or on the happening or not happening of a contingent event or act, in those cases in which the wager does not promote a public or private good. For many years, in all parts of the commercial world, a species of commercial gambling has been devised and developed, and which is still increasing in proportions. Large bodies of men in our commercial centers congregate daily in the ex

1 Similar legislation is to be found in New Hampshire, Virginia, West Virginia, Wisconsin, Missouri, Illinois, Ohio and Iowa, and other States. See, post, § 142.

changes for the purpose of betting on the rise and fall in the price of stocks, cotton, and produce. The business is disguised under the name of speculation, but it is in nothing different from the wager on the result of some game of cards. The card player bets that he will win the game. The merchant, dealing in "futures," bets that the price of a commodity will, at a future day, be a certain sum, more or less than the ruling market price. In neither case does the result add anything to the world's wealth; there is only an exchange of the ownership of property without any benefit to the former owner. In the liquidation of both bets A. passes over to B. a certain proportion of his property. Under the guise of speculation, it is given an air of respectability which makes the indulgence in it all the more dangerous to the public welfare. The disreputable character of the common forms of gambling, made so by public condemnation, is the chief protection against the evil. But men of respectability are engaged in option dealing; and the apparent respectability of the business develops, to a most alarming extent, the gambling spirit in all classes of society. Instead of striving to produce something that will increase the world's wealth, while they accumulate their own, these men are bending every energy, and taxing their ingenuity, to take away what his neighbor has already produced. Apart from this injury to the public material and moral welfare, the commercial gambling, when developed to its present enormous proportions, unsettles the natural values of commodities, and the fate of the producer is made to depend upon the relative strength of the "bulls" and "bears." Conceding the truth of these charges, and the evil effect of this species of gambling which has never been seriously questioned, it would be a legitimate exercise of police power to prohibit these commercial transactions. The difficulty lies not in the justification of this prohibitory legislation, but in discovering the wrongful element in the transactions, and in

distinguishing them from legitimate trading. The so-called "option contracts" are in form contracts for the sale or purchase of commercial commodities for future delivery, at a certain price, with the option to one or both of the parties in settlement of the contract to pay the difference between the contract price, and the price ruling on the day of delivery, the difference to be paid to the seller, if the market price is lower than the contract price, and to the purchaser, if the market price is higher. Such a contract has three striking elements: first, it is a contract for future delivery; secondly, the delivery is conditional upon the will of one or both of the parties; and thirdly, the payment of differences in prices, in the event that the right of refusal is exercised by one of the parties. If the common-law offense of regrating were still recognized in the criminal law, all contracts for future delivery may be open to serious question. But that rule of the common law is repudiated, and it may now be considered as definitely settled that a contract for future delivery of goods is not for that reason invalid. If they infringe the law, it must be for some other reason than that the contract stipulates for future delivery. This is not only true, when the vendor has the goods in his possession at the time of sale, but also when he expects to buy them for future delivery. Lord Tenterden claimed that in the latter case the contract was a wager on the price of the commodity, and for that reason should not be enforced. But the position here taken has since been

1 See ante, § 95.

2"I have always thought, and shall continue to think until I am told by the House of Lords that I am wrong, that if a man sells goods to be delivered on a future day, and neither has the goods at the time, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving by assignment, but means to go into the market and to buy the goods which he has contracted to deliver, he cannot maintain an action on such contract. Such a contract amounts, on the part of the vendor, to a wager on the price of the commodity, and is attended