Arthur Shadwell

“ But in all cases, even when mere notification is required, the governing authority has the right to refuse permission or to withdraw it for reasons given, and so it retains the power of control. At the same time holders of the permission may be compelled to pay for the privilege and so contribute to the public revenue. The great merit of the licensing system is its perfect elasticity, which permits adjustment to all sorts of conditions and to the varying demands of public opinion. ”

“ Opinions differ widely with regard to the success of local veto, but all independent observers agree that it is more successful than state prohibition, and the preference accorded to it by so many states after prolonged experience proves that public opinion broadly endorses that view. Its advantage lies in its adaptability to local circumstances and local opinion. It prevails mainly in rural districts and small towns; in the larger towns it is best tolerated where they are in close proximity to “safety valves” or licensed areas in which liquor can be obtained; the large cities do not adopt it. ”

“ Use has been made of this power in Kansas, and it appears therefore that persons who engage in the liquor trade do so at their own risk. There is in fact no stability at all except in a few states which have incorporated some principle in their constitutions, and even that does not ensure continuity of practice, as means are easily found for evading the law or substituting some other system which amounts to the same thing. As a whole the control of the liquor traffic oscillates violently between attempted suppression and great freedom combined with heavy taxation of licensed houses. ”

“ The British system has the great merit of combining adaptability to different circumstances and to changing customs with continuity and steadiness of administration. The advantages of abandoning it for some other are more than doubtful, the difficulties are real and serious. Over a very long period it has been repeatedly readjusted in conformity with the movement of public opinion and of national habits; while under it the executive have gradually got the traffic well in hand, and a great and progressive improvement in order and conduct has taken place. ”

“ West Australia and Tasmania merely give the local ratepayers the right of protest; in West Australia it holds good against new licences only and if a majority object the licence is refused; in Tasmania protest may be made against renewals and transfers also, but the decision lies with the licensing authority. There is practically no prohibition in the Commonwealth.
New Zealand.—This state has a licensing system with local option provisions of its own. The licensing authority is a local committee, and there are seven kinds of licence, of which two are for consumption on the premises. ”

“ There is therefore no uniformity in regard to such matters as liquor legislation, and it is a mistake to speak of any particular system as representing the whole country. The United States government only interferes with the traffic to tax it for revenue, and to regulate the sale of liquor to Indians, to soldiers, etc. The liquor traffic is subject—whether in the form of manufacture, wholesale or retail trade—to a uniform tax of 25 dollars (£5) per annum imposed on every one engaged in it. ”

“ In 1845 a special licensing system was introduced, giving the local authority power to fix the number of licences, and in 1848 the small and domestic stills were stopped. The Gothenburg system was not adopted in Norway until 1871 and then with some modification. The essence of this method of conducting the retail traffic is that the element of private gain is eliminated. A monopoly is granted to a company consisting of a number of disinterested citizens of standing with a capital, and they manage the sale both for “on” and “off” consumption in the public interest. ”

“ The full or publican’s licence, which is incomparably the most important, places on the same legal footing hotels, restaurants, village inns and mere drinking bars, and the lack of distinction is a great stumbling-block. In the attempt made in 1908 to introduce new legislation it was found necessary to incorporate distinctions between different classes of establishment, although that was not contemplated in the original bill. It will always be found necessary whenever the subject is seriously approached, because the law has to deal with things as they actually are. ”

“ The sale of liquor is made illegal in the hope of preventing drinking altogether or of diminishing it by making it more difficult. General prohibition has been tried in some American states, and is still in force in a few; it is also applied to native races, under civilized rule, both in Africa and North America. Local prohibition is widely in force in the United States, Canada and Australasia, Sweden and Norway. ”

“ The increase of clubs and the large proportion struck off the register suggest the need of caution in dealing with the licensed trade; over-stringent measures defeat their own end.
Persistent attempts have for many years been made to effect radical changes in the British system of licensing by the introduction of some of the methods adopted in other countries, and particularly those in the United States. But it is difficult to engraft new and alien methods, involving violent change, upon an ancient system consolidated by successive statutory enactments and confirmed by time and usage. ”

“ 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. ”

“ But a large part of the state, probably more than half, is under local prohibition, so that the majority of the 5000 retail dealers must be illicit. These facts, which are typical and not exceptional, reveal the failure of the laws to control the traffic; only partial or spasmodic attempts are made to enforce them and to a great extent they are ignored by common consent. The illegal trade is carried on so openly that the United States revenue officers have no difficulty in collecting the federal tax. ”

“ Klein-handel is retail sale either for on or off consumption, and the liquor for which a licence is required in this connexion is described as branntwein or spiritus, and is defined as distilled alcoholic liquor, whether by itself or in combination. A licence for Schank-wirthschaft includes Klein-handel, but not vice-versa; none is required for the retail sale of wine which is the seller’s own produce. Licences may be withdrawn for offences against the law. Licensed houses are under the supervision of the police, who fix the hours of closing ”

“ With the exception of Sweden, Norway and Russia, which have special systems of their own, the continental countries of Europe have as yet paid comparatively little legislative attention to the subject of the liquor traffic, which is recognized by the law but for the most part freely permitted with a minimum of interference. Differences exist, but, generally speaking, establishments may be opened under a very simple procedure, which amounts to an elementary form of licensing, and the permission is only withdrawn for some definite and serious offence. ”

“ There are not only many varieties of liquor laws, but also frequent changes in them, and new experiments are constantly being tried. The general tendency is towards increased stringency, not so much because the evils increase, though that happens in particular places at particular times, as because public opinion moves broadly towards increasing condemnation of excess and increasing reliance on legislative interference. ”

“ 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. ”

“ In Missouri, which has a special system of its own and a sort of sliding scale, great variations occur and in some cases the tax exceeds £500. In Michigan it is uniform at £100. The mean for the large cities is £133. The revenue derived from this source is distributed in many ways, but is generally divided in varying proportions between the state, the county and the municipality; sometimes a proportion goes to the relief of the poor, to road-making or some other public purpose. The amount levied in the great cities is very large. ”

“ In small towns and rural districts local prohibition is much more effective. In short the experience of Canada confirms that of the United States. In addition to the federal law, the local authorities have power, in Quebec, to prohibit as well as to regulate the trade. The high licence system has not been adopted in Canada. The total revenue derived by the Dominion government in 1908 from taxation of the liquor trade, including duties and licence fees, was £1,800,000. ”

“ 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. ”

“ Liquor is only sold in bottles and in not less quantities than half a pint of spirits and a pint of beer, and it must be taken away; bars are abolished. There is a general consensus of testimony to the effect of the system in improving public order especially among the coloured population, who are very susceptible to drink. ”

“ There are too many kinds of licence, and the classification does not correspond with the actual conditions of the traffic. Some licences are obsolete and superfluous; others make no distinction between branches of the trade which fulfil entirely different functions and require different treatment. ”

“ In certain areas in other countries, including the United Kingdom, the sale of liquor is in a sense prohibited, not by the law, but by the owners of the property who refuse to allow any public-houses. ”

“ Congress, under the constitution, controls interstate commerce, and the Supreme Court has decided that without its consent no state can prevent a railway or other carrying agency from bringing liquor to any point within its borders from outside. Thus no state can keep out liquor or prevent its consumption, but any state legislature may make what internal regulations it pleases and may prohibit the manufacture and sale altogether within its own borders. ”

“ There is no more prolific ground for fallacious statements and arguments, whether unconscious or deliberate. The course of legislation traced above, however, does permit the broad conclusion that great laxity and the multiplication of facilities tend to increase drinking and disorder in a country like the United Kingdom, and that extreme severity produces the same or worse effects by driving the trade into illicit channels, which escape control, and thus really increasing facilities while apparently diminishing them. ”

“ In Pennsylvania, where the court of quarter sessions is the authority, the vesting of licensing in a judicial body dates back to 1676 and bears the stamp of English influence. It is noteworthy that in Philadelphia and Pittsburg (Allegheny county) the judicial court was for a time given up in favour of commissioners, but the change was a great failure and abandoned in 1888. The powers of the licensing authority vary widely; in some cases the only grounds of refusal are conduct and character, and licences are virtually granted to every applicant; in others the discretion to refuse is absolute. ”

“ Persons remaining on the premises in forbidden hours after being ordered to leave by the landlord are liable to punishment. Serving drunkards and persons of school age is forbidden. Drunkards, in addition to fines or imprisonment for disorderly conduct, are liable to be deprived of control of their affairs and placed under guardianship. For music and dancing special permits are required. With regard to taxation, in Prussia all business establishments beyond a certain value pay an annual tax and licensed houses are on the same footing as the rest. ”

“ The law practically amounts to free trade and the number of houses has increased under it; in 1900 there was one to every 81 persons. This proportion is only exceeded by Belgium. Under the Local Government Act of 1884 municipal authorities are empowered, for the maintenance of public order, to fix hours of closing, regulate dancing, forbid the employment of girls and the harbouring of prostitutes and make other regulations. The hours of closing differ considerably but usually they are 11 p.m., midnight or 1 a.m. The trade is lightly taxed; retailers pay from 15 to 50 francs a year ”