during the 18th century, and that by successive enactments, particularly
about the middle of the century, the licensing system gradually became
adjusted to the requirements of the time and took a settled shape. The
acts then passed still form the basis of the law. In the early part of
the 19th century another period of legislative activity set in. A
parliamentary inquiry into illicit trade in spirits took place in 1821,
and in 1828 important acts were passed amending and consolidating the
laws for England and for Scotland; in 1833 a general Licensing Act was
passed for Ireland. These are still the principal acts, though they have
undergone innumerable amendments and additions. The English act of 1828
introduced certain important changes. A licence from the justices was no
longer required for the sale of liquor for consumption off the premises,
and the power of the justices to suppress public-houses at their
discretion (apart from the annual licensing), which they had possessed
since 1495, was taken away. The removal of this power, which had long
been obsolete, was the natural corollary of the development of the
licensing system, its greater stringency and efficiency and the increase
of duties imposed on the trade. Men on whom these obligations were laid,
and who were freshly authorized to carry on the business every year,
could not remain liable to summary deprivation of the privileges thus
granted and paid for. The justices had absolute discretion to withhold
licences from an applicant whether new or old; but an appeal was allowed
to quarter sessions against refusal and also against conviction for
offences under the act. The main points in the law at this time were the
following. The sale of alcoholic liquors for consumption on the premises
was forbidden under penalties except to persons authorized according to
law by the justices. Licences were granted for one year and had to be
renewed annually. The justices held a general meeting each year at a
specified time for the purpose of granting licences; those peculiarly
interested in the liquor trade were disqualified. The licence contained
various provisions for regulating the conduct of the house and
maintaining order, but closing was only required during the hours of
divine service on Sunday. Applicants for new licences and for the
transfer of old ones (granted at a special sessions of the justices)
were required to give notice to the local authorities and to post up
notices at the parish church and on the house concerned.
_Excise Licences._--It will be convenient at this point to explain the
relation between that part of the licensing system which is concerned
with the conduct of the traffic and lies in the jurisdiction of the
justices and that part which has to do with taxation or revenue. The
former is the earlier and more important branch of legislative
interference; we have traced its history from 1495 down to 1828. Its
object from the beginning was the maintenance of public order and good
conduct, which were impaired by the misuse of public-houses; and all the
successive enactments were directed to that end. They were attempts to
suppress or moderate the evils arising from the traffic by regulating
it. The excise licensing system has nothing to do with public order or
the conduct of the traffic; its object is simply to obtain revenue, and
for a long time the two systems were quite independent. But time and
change gradually brought them into contact and eventually they came to
form two aspects of one unified system. Licensing for revenue was first
introduced in 1660 at the same time as duties on the manufacture of beer
and spirits: but it was of an irregular character and was only applied
to wine, which was not then under the jurisdiction of the justices at
all (see above). In 1710 a small annual tax was imposed on the retailers
of beer and ale and collected by means of a stamp on the justices'
licence. In 1728 an annual excise licence of £20 was imposed on
retailers of spirits, and in 1736 this was raised to £50 (see above).
The object of these particular imposts, however, was rather to check the
sale, as previously explained, than to secure revenue. In 1756 the
previous tax on the retail sale of wine for consumption on the premises
was changed to an annual excise licence, which was in the next year
extended to "made wines" and "sweets" (British wines). Similar licences,
in place of the previous stamps, were temporarily required for beer and
ale between 1725 and 1742 and permanently imposed in 1808. Thus the
system of annual excise licences became gradually applied to all kinds
of liquor. In 1825 the laws relating to them were consolidated and
brought into direct relation with the other licensing laws. It was
enacted that excise licences for the retail of liquor should only be
granted to persons holding a justices' licence or--to use the more
correct term--certificate. The actual permission to sell was obtained on
payment of the proper dues from the excise authorities, but they had no
power to withhold it from persons authorized by the justices. And that
was still the system in 1910.
_Licensing since 1828._--There was no change in the form of the British
licensing system between the consolidation of the law in 1825-1828 and
the time (1910) at which we write; but there were a great many changes
in administrative detail and some changes in principle. Only the most
important can be mentioned. In 1830 a bold experiment was tried in
exempting the sale of beer from the requirement of a justice's licence.
Any householder rated to the parish was entitled, under a bond with
sureties, to take out an excise licence for the sale of beer for
consumption on or off the premises. This measure, which applied to
England and was commonly known as the Duke of Wellington's Act, had two
objects; one was to encourage the consumption of beer in the hope of
weaning the people from spirits; the other was to counteract the
practice of "tieing" public-houses to breweries by creating free ones.
With regard to the first, it was believed that spirit-drinking was
increasing again at the time and was doing a great deal of harm. The
reason appears to have been a great rise in the returns of consumption,
which followed a lowering of the duty on spirits from 11s. 8¼d. to 7s.
a gallon in 1825. The latter step was taken because of the prevalence of
illicit distillation. In 1823 the duty had been lowered for the same
reason in Scotland from 6s. 2d. and in Ireland from 5s. 7d. to a uniform
rate of 2s. 4¾d. a gallon, with so much success in turning the trade
from illegal to legal channels that a similar change was thought
advisable in England, as stated. The legal or apparent consumption rose
at once from 7 to nearly 13 million gallons; but it is doubtful if there
was much or any real increase. According to an official statement, more
than half the spirits consumed in 1820 were illicit. The facts are of
much interest in showing what had already been shown in the 18th
century, that the liquor trade will not bear unlimited taxation; the
traffic is driven underground. It is highly probable that this accounts
for part of the great fall in consumption which followed the raising of
the spirit duty from 11s. to 14s. 9d. under Mr Lloyd George's Budget in
1909. With regard to "tied" houses, this is the original form of
public-house. When beer was first brewed for sale a "tap" for retail
purposes was attached to the brewery, and public-houses may still be
found bearing the name "The Brewery Tap." At the beginning of the 19th
century complaints were made of the increasing number of houses owned or
controlled by breweries and of the dependence of the licence-holders,
and in 1817 a Select Committee inquired into the subject. The Beerhouse
Act does not appear to have checked the practice or to have diminished
the consumption of spirits; but it led to a great increase in the number
of beer-houses. It was modified in 1834 and 1840, but not repealed until
1869, when beer-houses were again brought under the justices.
Most of the other very numerous changes in the law were concerned with
conditions imposed on licence-holders. The hours of closing are the most
important of these. Apart from the ancient regulations of closing during
divine service on Sunday, there were no restrictions in 1828; but after
that at least a dozen successive acts dealt with the point. The first
important measure was applied in London under a Police Act in 1839; it
ordered licensed houses to be closed from midnight on Saturday to
mid-day on Sunday, and produced a wonderful effect on public order. In
1853 a very important act (Forbes Mackenzie) was passed for Scotland, by
which sale on Sunday was wholly forbidden, except to travellers and
lodgers, and was restricted on week days to the hours between 8 A.M. and
11 P.M. This act also introduced a distinction between hotels,
public-houses and grocers licensed to sell liquor, and forbade the sale
to children under 14 years, except as messengers, and to intoxicated
persons. In England, after a series of enactments in the direction of
progressive restriction, uniform regulations as to the hours of opening
and closing for licensed premises were applied in 1874, and are still in
force (see below). In 1878 complete Sunday closing, as in Scotland, was
applied in Ireland, with the exemption of the five largest towns,
Dublin, Belfast, Cork, Limerick and Waterford; and in 1881 the same
provision was extended to Wales.
Other changes worthy of note are the following. In 1860 the free sale of
wine for consumption off the premises was introduced by the Wine and
Refreshment Houses Act, which authorized any shopkeeper to take out an
excise licence for this purpose; the licences so created were
subsequently known as grocers' licences. By the same act refreshment
houses were placed under certain restrictions, but were permitted to
sell wine for consumption on the premises under an excise licence. In
1861 spirit dealers were similarly authorized to sell spirits by the
bottle. The effect of these measures was to exempt a good deal of the
wine and spirit trade from the control of the justices, and the idea was
to wean people from public-house drinking by encouraging them to take
what they wanted at home and in eating-houses.
In 1869 this policy of directing the habits of the people into channels
thought to be preferable, which had been inaugurated in 1830, was
abandoned for one of greater stringency all round, which has since been
maintained. All the beer and wine retail licences were brought under the
discretion of the justices, but they might only refuse "off" licences
and the renewal of previously existing beer-house "on" licences upon
specified grounds, namely (1) unsatisfactory character, (2) disorder,
(3) previous misconduct, (4) insufficient qualification of applicant or
premises. In 1872 an important act further extended the policy of
restriction; new licences had to be confirmed, and the right of appeal
in case of refusal was taken away; penalties for offences were increased
and extended, particularly for public drunkenness, and for permitting
drunkenness; the sale of spirits to persons under 16 was prohibited. In
1876 many of these provisions were extended to Scotland. In 1886 the
sale of liquor for consumption on the premises was forbidden to persons
under 13 years. In 1901 the sale for "off" consumption was prohibited to
persons under 14, except in sealed vessels; this is known as the Child
Messenger Act. These measures for the protection of children were
extended in 1908 by an act which came into operation in April 1909,
excluding children under 14 from the public-house bars altogether. The
progressive protection of children by the law well illustrates the
influence of changing public opinion. The successive measures enumerated
were not due to increasing contamination of children caused by their
frequenting the public-house, but to recognition of the harm they
sustain thereby. The practice of taking and sending children to the
public-house, and of serving them with drink, is an old one in England.
A great deal of evidence on the subject was given before a Select
Committee of the House of Commons in 1834; but it is only in recent
years, when the general concern for children has undergone a remarkable
development in all directions, that attempts have been made to stop it.
In 1902 clubs, which had been increasing, and habitual drunkards, were
brought under the law.
In 1904 a new principle was introduced into the licensing system in
England, and this, too, was due to change in public opinion. Between
1830 and 1869, under the influence of the legislation described above, a
continuous increase in the number of public-houses took place in
England; but after 1869 they began to diminish through stricter control,
and this process has gone on continuously ever since. Reduction of
numbers became a prime object with many licensing benches; they were
reluctant to grant new licences, and made a point of extinguishing old
ones year by year. At first this was easily effected under the new and
stringent provisions of the legislation of 1869-1872, but it gradually
became more difficult as the worst houses disappeared and the remaining
ones were better conducted, and gave less and less excuse for
interference. But the desire for reduction still gained ground, and a
new principle was adopted. Houses against which no ill-conduct was
alleged were said to be "superfluous," and on that ground licences were
taken away. But this, again, offended the general sense of justice; it
was felt that to take away a man's living or a valuable property for no
fault of his own was to inflict a great hardship. To meet the difficulty
the principle of compensation was introduced by the act of 1904. It
provides that compensation shall be paid to a licence-holder (also to
the owner of the premises) whose licence is withdrawn on grounds other
than misconduct of the house or unsuitability of premises or of
character. The compensation is paid out of a fund raised by an annual
charge on the remaining licensed houses. This act has been followed by a
large reduction of licences.
_State of the Law in 1910._--In consequence of the long history and
evolution of legislation in the United Kingdom and of the innumerable
minor changes introduced, only a few of which have been mentioned above,
the law has become excessively complicated. The differences between the
English, Scottish and Irish codes, the distinction between the several
kinds of liquor, between consumption on and off the premises, between
new licences and the renewal of old ones, between premises licensed
before 1869 and those licensed since, between excise and justices'
licences--all these and many other points make the subject exceedingly
intricate; and it is further complicated by the uncertainty of the
courts and a vast body of case-made law. Only a summary of the chief
provisions can be given here.
1. The open sale of intoxicating liquor (spirits, wine, sweets, beer,
cider) by retail is confined to persons holding an excise licence, with
a few unimportant exceptions, including medicine.
2. A condition precedent to obtaining such a licence is permission
granted by the justices who are the licensing authority and called a
justices' licence or certificate. Theatres, passenger boats and
canteens are exempted from this condition; also certain dealers in
spirits and wine.
3. Justices' licences are granted at special annual meetings of the
local justices, called Brewster Sessions. Justices having a pecuniary
interest in the liquor trade of the district, except as railway
shareholders, are disqualified from acting; "bias" due to other
interests may also be a disqualification.
4. Justices' licences are only granted for one year and must be renewed
annually, with the exception of a particular class, created by the act
of 1904 and valid for a term of years. Distinctions are made between
granting a new licence and renewing an old one. The proceedings are
stricter and more summary in the case of a new licence; notice of
application must be given to the local authorities; the premises must be
of a certain annual value; a plan of the premises must be deposited
beforehand in the case of an "on" licence; the justices may impose
conditions and have full discretion to refuse without any right of
appeal; the licence, if granted, must be confirmed by a higher
authority. In the case of old licences on the other hand, no notice is
required; they are renewed to the former holders on application, as a
matter of right; unless there is opposition or objection, which may come
from the police or from outside parties or from the justices themselves.
If there is objection the renewal may be refused, but only on specified
grounds--namely misconduct, unfitness of premises or character,
disqualification; otherwise compensation is payable on the plan
explained above. There is a right of appeal to a higher court against
refusal. In all cases, whether the justices have full discretion or not,
they must exercise their discretion in a judicial manner and not
arbitrarily.
5. Licences may be transferred from one person to another in case of
death, sickness, bankruptcy, change of tenancy, wilful omission to apply
for renewal, forfeiture or disqualification. Licences may also be
transferred from one house to another in certain circumstances.
6. A licence may be forfeited through the conviction of the holder of
certain specified serious offences.
7. Persons may similarly be disqualified from holding a licence.
8. Liquor may only be sold on the premises specified in the licence and
during the following hours:--week-days; London, 5 A.M. to 12.30 P.M.
(Saturday, midnight); large towns 6 A.M. to 11 P.M.; other places 6 A.M.
to 10 P.M.--Sundays; London, 1 P.M. to 3 P.M., 6 P.M. to 11 P.M.; other
places 12.30 P.M. (or 1 P.M.) to 2.30 P.M. (or 3 P.M.), 6 P.M. to 10
P.M.; Christmas Day and Good Friday are counted as Sunday. In Scotland,
Wales and Ireland (except the five chief towns) no sale is permitted on
Sunday. Licence holders may sell during prohibited hours to lodgers
staying in the house and to _bona-fide_ travellers, who must be not less
than 3 m. from the place they slept in on the previous night. Extension
of hours of sale may be granted for special occasions and for special
localities (e.g. early markets).
9. The following proceedings are prohibited in licensed premises:
permitting children under 14 to be in a bar, selling any liquor to
children under 14 for consumption on the premises, selling liquor to
children under 14 as messengers except in corked and sealed vessels,
selling spirits for consumption on the premises to persons under 16;
selling to drunken persons and to habitual drunkards; permitting
drunkenness, permitting disorder, harbouring prostitutes, harbouring
constables, supplying liquor to constables on duty, bribing constables,
permitting betting (persistent) or gaming, permitting premises to be
used as a brothel, harbouring thieves, permitting seditious meetings;
permitting the payment of wagers on premises; permitting premises to be
used for election committee rooms. In and within 20 m. of London music
and dancing are prohibited on licensed premises except under special
licences.
10. The police have the right of entry to licensed premises at any time
for the purpose of preventing or detecting offences.
11. The injurious adulteration of any liquor is prohibited; also the
dilution of beer; but dilution of spirits is not unlawful if the
customer's attention is drawn to the fact.
12. All clubs in which intoxicating liquor is sold must be registered.
If the liquor is the collective property of the members no licence is
required for retail sale, but no liquor can be sold for consumption off
the premises. Clubs run for profit, known as proprietory clubs, are on
the same legal footing as public-houses.
13. Penalties incurred by licence-holders for offences under the
foregoing provisions. For selling any other kind of liquor than that
authorized--first offence, fine not exceeding £50 or one month's
imprisonment; second offence, fine not exceeding £100 or 3 months'
imprisonment with forfeiture of licence and, if ordered, confiscation of
liquor and disqualification for five years; third offence, fine not
exceeding £100 or six months' imprisonment with forfeiture of licence
and, if ordered, confiscation of liquor and unlimited disqualification.
Under the Excise Acts the penalty for selling without a licence is--for
spirits, a fine of £100, confiscation of liquor, forfeiture of licence
and perpetual disqualification; for wine, a fine of £20; for beer or
cider "on" consumption £20, "off" consumption £10. For sale to children;
first offence, fine up to £2, second offence, fine up to £5. Permitting
premises to be used as a brothel, fine of £20, forfeiture of licence and
perpetual disqualification. Other offences, fine up to £10 for first
conviction, up to £20 for second.
14. The following are offences on the part of the public. Being found
drunk on any highway or other public place or on licensed premises;
penalty, fine up to 10s. for first conviction, up to 20s. for second,
and up to 40s. for third. Riotous or disorderly conduct while drunk;
fine up to 40s. Falsely pretending to be a traveller or lodger; fine up
to £5. Causing children to be in a bar or sending them for liquor
contrary to the law; fine up to £2 for first and up to £5 for second
offence. Attempt to obtain liquor by a person notified to the police as
an habitual drunkard; fine up to 20s. for first offence, up to 40s. for
subsequent ones. Giving drunken persons liquor or helping them to get it
on licensed premises; fine up to 40s. or imprisonment for a month.
Causing children under 11 to sing or otherwise perform on licensed
premises, and causing boys under 14 or girls under 16 to do so between 9
P.M. and 6 A.M.; fine up to £25 or three months' imprisonment.
The foregoing statement of the law does not in all respects apply to
Scotland and Ireland, where the administration differs somewhat from
that of England. In Scotland the provost and bailies are the licensing
authority in royal and parliamentary burghs, and elsewhere the justices.
They hold two sessions annually for granting licences and have
considerably more power in some respects than in England. The hours of
opening are from 8 A.M. to 11 P.M. (week days only), but there is a
discretionary power to close at 10 P.M. In Ireland the licensing
authority is divided between quarter sessions and petty sessions.
Public-house licences are granted and transferred at quarter sessions;
renewals and other licences are dealt with at petty sessions. In Dublin,
Belfast, Cork, Londonderry and Galway the licensing jurisdiction of
quarter sessions is exercised by the recorder, elsewhere by the justices
assembled and presided over by the county court judge. The licensing
jurisdiction of petty sessions is exercised by two or more justices, but
in Dublin by one divisional justice.