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THE

LAW QUARTERLY

REVIEW:

No. LVIII. April, 1899.

W

NOTES.

HAT is a lottery? Hall v. Cox, '99, 1 Q. B. 198,68 L.J.Q. B. 167, C. A., does not answer this question, but it does show that a competition for a prize may look uncommonly like a lottery and yet not be one. The publishers of a newspaper offered a prize of £1,000 to any man who, under and subject to certain conditions, should predict correctly the numbers of male and female births and the number of deaths in London during the week ending on a given day in December 1897. A, owing to luck or skill, made the required prediction and claimed the prize, and on its being refused, brought an action for the amount. The publisher of the newspaper then, somewhat meanly as it would seem, raised the defence that the competition for the prize was a lottery. The judge held the defence good. The Court of Appeal have pronounced it bad, on the ground that to run a competition on to a lottery success must be a matter depending entirely upon chance. Unless this decision, which seems to be in harmony with Caminada v. Hulton, '91, 60 L. J. M. C. 116, and Stoddart v. Sagar, '95, 2 Q. B. 474, be overruled by the House of Lords, A will be lucky enough to win his £1,000.

Hall v. Cox and the decisions by which it is supported raise two questions which are certainly curious and may be important. First, is it possible in the face of the existing decisions to put down lotteries?

If a prize competition is not legally a lottery; if the result depends in any degree, however small, upon skill, ingenious persons who profit greatly by the public love of gambling, will assuredly soon invent plenty of methods for opening competitions which involve all the evil without coming within the legal definition of lotteries.

Secondly, what are the valid grounds for forbidding lotteries? Whenever an honest lottery is set up, the person who buys a ticket does so with his eyes open. It is idle to contend that he

gets nothing for his money. He gains two advantages which many men in all ages have valued very highly. The one is the excitement of gambling, the other is the possibility of gaining wealth, and of gaining it without trouble. If the lottery is for a charitable or quasi-charitable object he may also gain the spiritual advantage of a good conscience. Under these circumstances it is very difficult for any one who in the main agrees in the doctrine as to the proper limits of human liberty which some forty years ago were laid down by Mill, and accepted by the educated opinion of Englishmen, to say why lotteries should be held illegal.

If few thinkers to-day hold themselves intellectually estopped from questioning the absolute soundness of Mill's doctrine, fewer still will maintain that the English Courts have succeeded in drawing rightly the line which divides legitimate from illegitimate competition for prizes. If, as seems admittedly the case, the 'missing word' competition (Barclay v. Pearson, '93, 2 Ch. 154, 62 L. J. Ch. 636) constitutes a lottery and is illegal, it is difficult to argue that on any ground of public expediency a competition in guesses as to the number of deaths in a particular week should be held a legitimate effort of skill. There is no doubt this difference in fact, that the missing word' might be any one of a dozen, while in this case there was a real field for the statistical expert. Whist is not a mere game of chance, though the superior chance in the long run in favour of good as against indifferent play is said to be only a small percentage. Even a 'missing word' competition might not be a mere lottery if the determination of the word could be reduced to rules of grammar or style.

A is employed in a pottery. His duty is to make balls of clay and hand them to the woman working at a machine. He is forbidden to interfere in any way with the machinery. In spite of this he attempts to clean the machine during the absence of the woman, and in the course of doing this breaks his fingers. He claims compensation from his employer under the Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), as for an accident 'arising out of or in the course of his employment.' The Court of Appeal has held that A is not entitled to compensation. Lowe v. Pearson, '99, 1 Q. B. 261, 68 L. J. Q. B. 122, C. A. The Court may be charged by some persons with not giving full effect to the Workmen's Compensation Act, 1897. Yet the judgment of the Court is clearly right. A person who is employed to do one thing, when he hurts himself in doing another thing which he is expressly forbidden to do, cannot, with any show of reason, maintain that he is injured in the course of his employment.

Mr. Senior was a good and kind father, and bore among his neighbours an excellent character for general good conduct. He was, however, and no doubt still is, convinced on religious grounds that to employ medical help in case of illness shows a want of faith in God and is therefore a sin. Of his twelve children, seven have already died, and some of them, it is believed, for want of medical care. He recently in the case of the illness of one child, an infant, nine months old, refused to obtain medical advice though the child was most seriously ill. The child died; it might probably have been saved, had medical assistance been procured. Mr. Senior was in consequence indicted for and found guilty of manslaughter under the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), s. 1, and his conviction has been upheld by the Court for Crown Cases Reserved. These are the brief facts of R. v. Senior, '99, 1 Q. B. 283, 68 L. J. Q. B. 175. They give occasion for reflection.

The Peculiar People, the sect to which Mr. Senior belongs, will no doubt hold him a martyr, and a good number of well meaning persons, who do not share his views, will say that he is the victim of persecution. This notion, widespread though it be, rests on a confusion of thought, and could have obtained currency only at a time when the habit of toleration had made people forget what persecution really meant. The word to persecute,' says Johnson, 'is generally used of penalties inflicted for opinions.' Persecution is, to put the matter briefly, punishment on account of opinions. Where persecution took its most severe form, persons were punished, and it might very well be with death, on the ground that they held, or were supposed to hold, certain opinions or beliefs, or, to put the matter in a concrete form, on the ground in one country of their being Jews, Protestants, or otherwise heretics, in another of their being Catholics. Where persecution took a milder shape persons were punished not for holding a belief, e. g. for being Protestants, but for attempting to propagate their belief or heresy, e. g. in Spain to convert Catholics to Protestantism. But whatever form persecution took it was always at bottom punishment for the holding or the propagation of opinions. Now of persecution in this sense there is in Mr. Senior's case none whatever. No one punishes him for holding, for teaching, or for preaching the doctrines of the Peculiar People. He is sent to prison not because he teaches a doctrine but because he does a particular act, namely neglects to supply his child with medical aid.