Lord Brougham, in the absence of the Duke of Richmond, moved their Lordships to give a second reading to "A Bill to discontinue certain Actions under the provisions of several statutes for the prevention of excessive Gaming, and to prevent for the future the bringing of such Actions." The noble and learned Lord stated, that the Bill came recommended by the Select Committee appointed by their Lordships on his noble Friend's motion. It had been rendered necessary in consequence of a number of qui tam actions which had been brought by certain parties, out of spite, because they had been excluded from associating with the respectable gentlemen who had formed themselves into 336 clubs, where arrangements were made for carrying on horse-races. The Legislature had passed several acts for the purpose of preventing gambling, with reference to certain games therein enumerated; and the judges had held that the provisions of those acts extended to horse-racing, although it was not specifically mentioned. By those acts it was provided that qui tam actions might be brought for the recovery of penalties against those by whom they were infringed. Taking advantage of the state of this law, a number of actions had, some time since, been entered, by disreputable individuals, who were not themselves actuated by any hatred of gaming—who were, in fact, confirmed gamblers themselves—but whose sole and only object was to extort money by the agency of the law. And against whom were those actions directed? Against men of the highest rank and the most respectable character in this country. Those noblemen and gentlemen encouraged the breeding of horses, and, as a part of the system, encouraged horse-races. Many of them never betted at all. The persons who brought these actions were of a very different description. They were themselves inveterate gamblers, but, in betting with them, there was no reciprocity; for they always received when they won, but refused to pay when they lost. Steps had been taken to exclude such characters from Doncaster, Goodwood, which was was one of the best conducted, and most celebrated courses in the kingdom—and other race-grounds. The consequence was, that the individuals thus properly treated, out of mere spite, commenced these actions. He understood that upwards of thirty writs had been issued, involving penalties amounting to nearly half a million of money. A noble Friend of his was sued for 68,000l., another noble Lord, also a friend of his, for 102,000l., and an hon. Gentleman, a county Member, with whom he had not the honour of being acquainted, for 120,000l. The present Bill was introduced for the purpose of putting a stop to these proceedings. As regarded horse-racing itself, it had been viewed by the law as a great benefit to the country, by encouraging the breed of horses, and royal plates had been given by the Sovereigns for upwards of two centuries with that view. The breed of horses in this country, it was admitted, was the best in Europe. His noble Friend 337 (the Duke of Richmond), who was so great a patron of the turf, never betted himself. No man was more opposed than himself to gambling, and, as the laws relating to gaming were now under the consideration of a committee, he did hope and trust that that committee would recommend an efficient measure on the subject—neither too lax, on the one hand, nor too strict, on the other. It was intended by this Bill to enable parties to make application before a judge at chambers for a stet processus on payment of costs out of pocket to the parties suing; and it was his intention, on the third reading, to introduce a clause to suspend all future actions for three or four months, until the committee had made their report and a general measure was introduced on the subject. If this were not done, the moment the present writs were ended, new actions would be commenced.
Lord Campbellexpressed his approbation of the Bill, which went to put an end to actions, which, he was assured, were commenced either for purposes of extortion, or to avenge themselves for some supposed wrong. The construction given to the law, by the judges, was, although censured by his noble and learned Friend, in his opinion, perfectly correct. The Act against gambling, after mentioning certain games, contained the words "or any other game or games whatever." Now, I horse-racing was a game, chariot-racing was a game—it was one of the ancient Olympic games. He admitted that the common informer was a pestilent character; but the law had always given them the penalty on conviction, together with the costs of action. To deprive them now of what the Legislature had always awarded them—the Legislature by their acts having called them into existence—would be unadvisable.
The Bishop of Londondid not mean to oppose the second reading of this Bill. The noble and learned Lord who proposed the second reading, had removed some of the doubts which he entertained respecting it. He apprehended that the third clause would only extend to such a time as was required to enable the House to give a due consideration to the subject. [Lord Brougham.—Nothing more.] He was unfriendly to the employment of common informers, if it could be avoided. It was similar, in principle, to admitting the particeps cri- 338 minis to give evidence against his confederates. The whole proceeding in this case did not appear to him to be wholly unobjectionable. It partook of the nature of modifying the existing laws on behalf of the rich, at the expence of the poor. If debts and responsibilities were incurred by poor persons which they were unable or unwilling to pay, the Legislature would not interfere to relieve them from their liabilities. Unless they made the general law stringent against gaming, he thought the present Bill might be considered as rather favourable to it then otherwise. He could not approve of any measure that tended to encourage betting, especially among the poor. They might easier leave the rich to take care of their own property, but they ought to interfere to protect the poor: the beer houses which had been of late years opened, had led to a great increase of betting among the poor, and any thing which further encouraged it, would be productive of renewed evil.
Lord Broughamagreed, that they ought not to have even the appearance of favouring the rich, though gambling had much more fatal consequences, and was far more injurious to morals among the inferior classes than among the superior classes. There was also an evil in putting the law in force by means of a common informer. It was a great anomaly, but the law having trusted to the popularis action, and confided to common informers the working of different acts, he thought it ought not now to deprive these men of their costs out of pocket, and the penalty also. But were they to go on for ever on this most barbarous system, with no one to watch over and enforce the laws, no public prosecutor, the enforcing of acts being given either to the worst possible characters, or to the offended and aggrieved parties? Why was there not in England a public prosecutor—their brethren in Scotland had such an officer. If the party accused were rich, he might, in consequence of the want of a public prosecutor, buy off the evidence and thus escape punishment. This could not be done if a public prosecutor had the management of the business. At present such a thing as buying off a prosecutor might easily happen. He knew of a case where a man was committed for forgery for 5,000l., his friends were rich, and bought off the prosecutor, who on the trial was not forthcoming, and the man escaped 339 punishment, forgery being at that time a capital crime. Had there been a public prosecutor this could not have happened. He would not abolish the grand jury, he would give the defendant the benefit of that tribunal, but if there were a public prosecutor, who was a really responsible person, the mischief would be stopped. He had seen grand juries commit the most atrocious injustice from party and sectarian motives. He once saw a most respectable person, worth 20,000l. a year, stand in the dock to take his trial for murder, because he happened to be of a sect not very palatable to the grand jury. The murder consisted in this—not that he, but that his bailiff had neglected to place a lamp over a rope across a road which was undergoing repair, by which neglect an old woman had unfortunately lost her life. He should never forget the indignation of the Chief Baron Wood. He sent for the grand jury; they were gone—he declared that the charge of murder was scandalous, and the party was of course acquitted. A public prosecutor would not have dared to forward such a charge. This was an instance of the system that he deprecated, of committing the execution of the laws to the irresponsible conduct of private individuals.
The Bishop of Exeterfelt it a painful duty to express sentiments at variance, not only with the speech of the noble and learned Lord, but with the unanimous opinion of the committee. He would not enter into a discussion as to the propriety of the law which gave the penalties to informers, but it appeared to him, that the law of the land had given vested interests to persons who should inform, and it should not he without the gravest reason, that the Legislature ought to consent to deprive them of the penalty. The statute invited informers by name. He would not discuss the question, whether horse-racing was a thing, which per s, he would rejoice to see continued, but when he recollected the horrors and tremendous evils which did attend, and which must necessarily attend, horse-races in the present state of society in England, he hoped it would be long before it was sanctioned, and before the Legislature should throw over it the mantle of its protection. The noble and learned Lord said, that these actions were brought to spite the noble Duke for his excellent arrangements and conduct. The character of the noble Duke, in all parts of his in- 340 tercourse with his people, as far as he had ever heard, was most honourable, and this was not the least honourable portion of it; Again, it was said, that the noble Duke in bringing in this bill was not actuated by any personal feeling, for he himself did not bet at all. Why, this proved that betting was not necessary to the manly sport of horse-racing. The noble Duke enjoyed it without the additional excitement of betting. How then could Parliament be called upon to protect betting as being necessary to this manly sport, as the bill calls it. It had been said, that Her Majesty and the Sovereigns of this country, for two centuries had contributed to the sport of horse-racing by granting King and Queen's plates; but let them bear in mind, that though Charles 2nd had shown a great disposition to encourage the manly exercise of horse-racing, and had first given plates; that in this very reign a statute was passed, to put down horse-racing?—no; to prevent betting?—no; but to prevent excessive betting. If the loss did not, under one act, exceed 100l. and under the other, 10l., the informer could not bring an action. It was only excessive gambling that the law restrained. What was the great plea for this bill? That this was an outrageous case, that in these cases, the penalties sought to be recovered amounted to 500,000l., and, that three individuals were charged to such an amount, that the penalties nearly reached the sum of 300,000l. Now he would ask the most ardent pursuer of horse-racing in their Lordships' House, whether this was not excessive gaming? The loss of 120,000l. was made the ground for setting aside a statute, the very object of which was to check excessive betting. A common informer did not set himself up as a censor morum, he meant to pocket by his information; and it was because the Legislature believed there were men base enough to avail themselves of the vices of others to enrich themselves, that it gave the power to them to enforce the law. If they chose to say, that all common informers were bad, let them say it; but they should recollect, that the law gave the right of action to those persons; and this, in his opinion, was a strong reason why they should hesitate in passing this bill to the full extent. It was said, that this was not the first case in which such bills had been passed. They recollected, that penalties incurred by non-resident clergymen had been stopped from exaction. A person 341 who had been employed by several bishops, availed himself of his opportunities of knowledge, to lay informations against several clergymen, who being resident in one living, were not resident at other livings in their possession. Persons resident in one living, and non-resident in another, were bound by statute, to deliver in a positive specification of the ground of exemption within six weeks of the year commencing, and the clergyman had omitted to send in the specification. The par-tics were not non-resident, and had not committed any offence against the spirit of the act. Therefore the Legislature gave them relief from the action that was brought against them, because they had not offended against the spirit of the law, which was to prevent non-residence; and the relief given to them was coupled with the condition that each should be allowed a certain time to put up a notification of his cause of absence, and that if such notification were not well founded, then that the actions should proceed. Thus the Legislature, in 1814, in that case which was known as "Wright's case," stepped in to protect the clergy, and uphold the real object of the law. It did not support the principle of non-residence. That was a precedent for their Lordships to follow, and it was for their Lordships to consider whether the parties who came fur relief in the present case, had offended or not against the principle of the law which it was now sought to repeal. The precedent of 1814, in Wright's case, was well considered and in that case, the Legislature did take care to protect the principle and policy of the law. The object of the law now proposed to be set aside, was to prevent excessive gaming? He would not argue the question further. Were the parties who now prayed for relief within the spirit and policy of the statute for preventing excessive gaming? He had intended dividing against the second reading of the bill, but when he was told of the high authority of the Chief Justice, and that it was in accordance with the opinion of the committee, and that probably he would be without support, except from his right reverend Friends near him, he would only say "not content."
Lord Broughamsaid, that in these actions all the bets that a man might have made on either side on any occasion were collected together, and this was what gave rise to the large amount of penalties which were sued for against single individuals.
Lord Campbellbelieved no action of this kind had been brought on this statute for fifty years. According to the law of some countries, as of Scotland for example, this desuetude of the law would be tantamount to its repeal. In this country, however, it could be revived for vexatious and oppressive purposes. When the object was to put the law in force for such purposes, and not to carry out the just intents of the law, he thought the Legislature ought to interpose to stop those actions. He contended that the Legislature, having only given the power of recovering these penalties by an action of debt, could not be said to have contracted with these common informers, or conferred upon them any right such as they would have had if goods had been sold or money lent, or any such species of contract entered into.
The Bishop of Exetersaid, that he was indebted to the noble and learned Lord on the Woolsack for this argument of the vested interests of the informers. The noble and learned Lord had used it when an advocate at the Bar of their Lordships' house in "Wright's case," and it had been taken up by a noble Earl opposite (the Earl of Radnor), and by the noble Marquess (the Marquess of Lansdowne), and by others of their Lordships, and by Mr. Wynn in the other House.
§ Bill read a second time.
§ Adjourned.