Eddy, C. J.
It is admitted that by the common law, some wagers are legal, and may be enforced in a court of justice. This admission is made with regret in many of the modern decisions ; and were the question res
integra,
there is little doubt that all wagers would now be declared illegal. Among wagers deemed illegal, are those against sound policy, or of immoral tendency, which may affect the feelings, interest or character of a third party, or tend to disturb the peace of society.
In the case of
Gilbert and Sykes,
(16 East, 156,) an action on a wager on the life of Bonaparte, Lord Ellen-borough says: “ Wherever the tolerating any species of contract, has a
tendency
to produce a public mischief or inconvenience, such a contract has been held void.” And after, in nearly the same words, “ If a contract have a
tendency
to a mischievous and pernicious consequence, it is void.” And again, “ Where the subject-matter of the wager has a tendency injurious to the interests of mankind, I have no doubt in saying that it ought not to be sustained.” In the same case Le Blanc, J. says, “ It has often been lamented, that actions upon idle wagers should ever have been maintained in courts of justice. The practice seems to have prevailed before that full consideration of the subject which has been had in modern times. And it is now clearly settled, that the subject-matter of a wager must at least be perfectly innocent in itself, and must not tend to immorality or impolicy.” In the same case, Bailey J., speaking of the wager then under consideration, says,
“
It gives to one person a
pecuniary interest
in the violent death of another, by whatever means procured.” “ Shall it be allowed to a subject to say,” says Lord Ellenborough, in the same case, “ that the moral duties which bind man to man are in no hazard of being neglected when put in competition with individual interest ? ”
If we apply these principles to the question before us, there can be little doubt what the - decision ought to be. The wager was on the election of a certain person, by the general assembly, to the office of senator in congress. Did it not give to the plaintiff a
pecuniary interest
in the election of that person ; and to the defendant an equal pecuniary interest in preventing that election ? “ And shall it be allowed to ” either party, or any one else “ to say,” that in this case “ the moral duties which bind man to man,” or to com
munities of men,
“
were in no hazard of being neglected, when ” thus “ put in competition with individual interest ? ”
If a contract have a
tendency
to a mischievous consequence, it is void. What is the tendency of a wager, on an approaching election? Is it to produce peace, harmony, fair dealing ? Or is it not rather to produce clamor, misrepresentation, abuse, discord ; the exertion of improper influence ; of intrigue, bargain and corruption ; of the use of means, by each party, fitted to the
end,
that is, the winning of the bet? And is not this tendency greater, in proportion to the amount of the wager, and the influence of the parties to the wager ? To say that because the parties to a wager are not members of the legislature, by whose vote the wager will be decided, therefore the wager can have no influence on the members of the legislature, is to say, that the power and influence of individuals out of the legislature, can in no case affect the vote of that legislature, however great the power and influence of those individuals may be. Which is to say what is in itself absurd, what daily experience teaches to be false, and what a moment’s reflection must convince every one is not and cannot be true. If the tendency of the wager, in the case before us, be thus, then is that tendency immoral; for no one, it is believed, will so far hazard his own reputation for correct moral feeling, as to undertake to reconcile misrepresentation, slander, intrigue, or corruption, with the principles of morality. We might then safely say, it is contrary to sound policy, because immoral. But it is contrary to sound policy in a more important point of view. More important, because the immoral tendency, and pernicious bearing on our free institutions, is more extensive and injurious. The strong hold of freedom in our country, is in the freedom of our elections. Destroy this, and our freedom is at an end. Whatever tends to this destruction, in the remotest degree,
ought to be resisted here, with a determination that admits of no compromise. Wagers on elections, whether by the people or the general assembly, have this tendency directly. And this tendency, in a given case, is in proportion to the interest at stake, and the influence of the parties to the wager. To say that a wager can have no influence in such a case, is to say, either that man has ceased to regard his own interest, or that interest has ceased to influence man’s conduct. This interest and influence may result in the grossest corruption. It is enough for the decision of this case to show, that a wager on an election has this tendency. Can it be necessary to ask, whether, in a free country, a contract which has a tendency to destroy freedom of elections, and produce corruption, is consistent with sound policy ? In
Vescher
v.
Yates,
(11 Johns. 31,) which was an action against a stakeholder, of a bet on an election, Kent, C. J., in delivering the opinion of the court, says: “ We choose rather to place the decision of this case upon those great and solid principles of policy which forbid this species of gambling, as tending to debase the character, and impair the value of the right of suffrage.”
There is one other point of view in which this case may be considered, and in which this wager will appear equally indefensible. If the feelings, interest, or character of a third party may be affected by a wager; or if it tend to disturb the peace of society, it cannot be sustained.
(Da Costa
v.
Jones.)
If the election in question had taken place by a majority of one vote, and that one vote had been procured by bribery, would the wager have been fairly won ? And if not won, ought not the defendant to be permitted to show it, and avoid the payment? But would a court of law inquire into a transaction, so full of interest and feeling to third parties, in order to decide an
“
idle wager ? ” No, nor would
it comport with sound policy to suffer such a question to be discussed in a court of law, on a mere wager, independent of the feelings or interest of third parties. In the case of Da
Costa
v.
Jones,
(Cowp. 720,) Lord Mansfield, stating as a case, a wager that an unmarried woman has had a bastard, says, “ Would you try that? Would it be endured? Most unquestionably it would not. Because it is not only an injury to a third person, but it disturbs the peace of society ; and the party to be effected by it would have a right to say, how dare you bring my name in question ? ” With how much more propriety might the parties charged with corruption in the case above supposed, put the same question ! And how much greater would be the tendency in that case, to disturb the peace of society !
In the case of
Free access — add to your briefcase to read the full text and ask questions with AI
Eddy, C. J.
It is admitted that by the common law, some wagers are legal, and may be enforced in a court of justice. This admission is made with regret in many of the modern decisions ; and were the question res
integra,
there is little doubt that all wagers would now be declared illegal. Among wagers deemed illegal, are those against sound policy, or of immoral tendency, which may affect the feelings, interest or character of a third party, or tend to disturb the peace of society.
In the case of
Gilbert and Sykes,
(16 East, 156,) an action on a wager on the life of Bonaparte, Lord Ellen-borough says: “ Wherever the tolerating any species of contract, has a
tendency
to produce a public mischief or inconvenience, such a contract has been held void.” And after, in nearly the same words, “ If a contract have a
tendency
to a mischievous and pernicious consequence, it is void.” And again, “ Where the subject-matter of the wager has a tendency injurious to the interests of mankind, I have no doubt in saying that it ought not to be sustained.” In the same case Le Blanc, J. says, “ It has often been lamented, that actions upon idle wagers should ever have been maintained in courts of justice. The practice seems to have prevailed before that full consideration of the subject which has been had in modern times. And it is now clearly settled, that the subject-matter of a wager must at least be perfectly innocent in itself, and must not tend to immorality or impolicy.” In the same case, Bailey J., speaking of the wager then under consideration, says,
“
It gives to one person a
pecuniary interest
in the violent death of another, by whatever means procured.” “ Shall it be allowed to a subject to say,” says Lord Ellenborough, in the same case, “ that the moral duties which bind man to man are in no hazard of being neglected when put in competition with individual interest ? ”
If we apply these principles to the question before us, there can be little doubt what the - decision ought to be. The wager was on the election of a certain person, by the general assembly, to the office of senator in congress. Did it not give to the plaintiff a
pecuniary interest
in the election of that person ; and to the defendant an equal pecuniary interest in preventing that election ? “ And shall it be allowed to ” either party, or any one else “ to say,” that in this case “ the moral duties which bind man to man,” or to com
munities of men,
“
were in no hazard of being neglected, when ” thus “ put in competition with individual interest ? ”
If a contract have a
tendency
to a mischievous consequence, it is void. What is the tendency of a wager, on an approaching election? Is it to produce peace, harmony, fair dealing ? Or is it not rather to produce clamor, misrepresentation, abuse, discord ; the exertion of improper influence ; of intrigue, bargain and corruption ; of the use of means, by each party, fitted to the
end,
that is, the winning of the bet? And is not this tendency greater, in proportion to the amount of the wager, and the influence of the parties to the wager ? To say that because the parties to a wager are not members of the legislature, by whose vote the wager will be decided, therefore the wager can have no influence on the members of the legislature, is to say, that the power and influence of individuals out of the legislature, can in no case affect the vote of that legislature, however great the power and influence of those individuals may be. Which is to say what is in itself absurd, what daily experience teaches to be false, and what a moment’s reflection must convince every one is not and cannot be true. If the tendency of the wager, in the case before us, be thus, then is that tendency immoral; for no one, it is believed, will so far hazard his own reputation for correct moral feeling, as to undertake to reconcile misrepresentation, slander, intrigue, or corruption, with the principles of morality. We might then safely say, it is contrary to sound policy, because immoral. But it is contrary to sound policy in a more important point of view. More important, because the immoral tendency, and pernicious bearing on our free institutions, is more extensive and injurious. The strong hold of freedom in our country, is in the freedom of our elections. Destroy this, and our freedom is at an end. Whatever tends to this destruction, in the remotest degree,
ought to be resisted here, with a determination that admits of no compromise. Wagers on elections, whether by the people or the general assembly, have this tendency directly. And this tendency, in a given case, is in proportion to the interest at stake, and the influence of the parties to the wager. To say that a wager can have no influence in such a case, is to say, either that man has ceased to regard his own interest, or that interest has ceased to influence man’s conduct. This interest and influence may result in the grossest corruption. It is enough for the decision of this case to show, that a wager on an election has this tendency. Can it be necessary to ask, whether, in a free country, a contract which has a tendency to destroy freedom of elections, and produce corruption, is consistent with sound policy ? In
Vescher
v.
Yates,
(11 Johns. 31,) which was an action against a stakeholder, of a bet on an election, Kent, C. J., in delivering the opinion of the court, says: “ We choose rather to place the decision of this case upon those great and solid principles of policy which forbid this species of gambling, as tending to debase the character, and impair the value of the right of suffrage.”
There is one other point of view in which this case may be considered, and in which this wager will appear equally indefensible. If the feelings, interest, or character of a third party may be affected by a wager; or if it tend to disturb the peace of society, it cannot be sustained.
(Da Costa
v.
Jones.)
If the election in question had taken place by a majority of one vote, and that one vote had been procured by bribery, would the wager have been fairly won ? And if not won, ought not the defendant to be permitted to show it, and avoid the payment? But would a court of law inquire into a transaction, so full of interest and feeling to third parties, in order to decide an
“
idle wager ? ” No, nor would
it comport with sound policy to suffer such a question to be discussed in a court of law, on a mere wager, independent of the feelings or interest of third parties. In the case of Da
Costa
v.
Jones,
(Cowp. 720,) Lord Mansfield, stating as a case, a wager that an unmarried woman has had a bastard, says, “ Would you try that? Would it be endured? Most unquestionably it would not. Because it is not only an injury to a third person, but it disturbs the peace of society ; and the party to be effected by it would have a right to say, how dare you bring my name in question ? ” With how much more propriety might the parties charged with corruption in the case above supposed, put the same question ! And how much greater would be the tendency in that case, to disturb the peace of society !
In the case of
Bunn
v.
Riker,
(4 Johns. 428,) which was a wager on the election of the governor of the state, Van Ness, J. says, “ It may involve an inquiry into the validity of the election of the present chief magistrate. In answer to the objection that the certificate of the canvassers would be conclusive, he says, “It is enough that this wager may give birth to such a question, to pronounce it to be repugnant to the dictates of good policy.” “ It is a discussion calculated to endanger the peace and tranquillity of a community.” These principles are fully recognized in the case of
Lansing
v.
Lansing,
(8 Johns. 454,) which was a similar bet, made after the polls were closed. Say the court. “ This case falls within the principle laid down in
Bunn
v.
Riker,
that a bet, involving an inquiry into the validity "of the election of governor, was void, on principles of policy.”
With these principles, as well as those quoted from the other authorities, whether binding on this court as authorities or not, we fully concur, and have no hesitation in saying, that all bets on elections, whether by the people or the general
assembly, and all bets on judicial decisions, are of immoral tendency, against sound policy, and ought not be sustained, especially in this state, where all our officers, judicial as well as others, are of annual appointment.