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A manual of licensing legislation and compensation online

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Maison fondee en 1814.



DUMINY'S



KeX,



WELL-KNOWN



CHAMPAGNE



DRY AND EXTRA DRY.



Vintages
1893
and

1898.






Vintages
1893
and

1898.



To be obtained of all Wine Merchants and
Co-operative Stores.





A. L BOITEAU & CO.




Pure Grape Brandies.


PETER F. HEERING.


Cherry Brandy. Rich and Dry.


MAURICE BERTRAM S CIE.


Champagne.


JAMES MENZIES.


"Auld Scottie" Whisky.


Ag en S : J. R BISHOP & SONS,

13 Cooper's Row, LONDON, E.G.

Telephone No. 525 AVENUE. Telegraphic Address : " WINEBERRY, LONDON."
A B.C. Code.



"Charles Heidsieck"

Champagne




" Charles Heidsieck "

Champagne

As supplied to "THE HOUSE OF COMMONS" and
"THE BRITISH GOVERNMENT," &c.



A MANUAL



OF



LICENSING LEGISLATION



AND



COMPENSATION.



BY



FREDERICK MILLAR



i

(Secretary of the Liberty and Property Defence League).



Price, 2/6.



pontoon :

J. M. MUNRO, LIMITED,
61 BROAD STREET AVENUE, E.C.



IDRIS



Royal Table Waters,



'W



rest and Best.




Seltzer
Water.

Lemonade.

Lemon
Squash.

Orange
Champagne.



Ginger Ale.

Dry Ginger
Ale.

Champagne
Ginger Ale.

Lime Juice
Champagne.

Kola
Champagne.



IDRIS & CO., LTD.,

Camden Town, LONDON, N.W.

And at LIVERPOOL, SOUTHAMPTON, CANTERBURY, and TEDDINCTON.



5(76'



CONTENTS.



PAGE.

I. Historical Sketch of the Licensing Laws, i

II. Historical Failure of Prohibitory Legislation, - 9

III. The Liquor Traffic in Relation to the Revenue, 18

IV. The Licensing Law and the Question of Compensation, 1 9
V. History of the Compensation Question, 27

VI. Licensing Act, 1904: 46
i. Reference to quarter sessions of questions as to

renewal of licences in certain cases, - 46

D- 2. Payment of compensation on non-renewal of

licence, 49

3. Financial provisions, 53

5 4- Provisions as to new licences, - - 54

O5

5. Division of area and appointment of committees

t-< for purposes of Act, 58

jj

UJ 6. Rules, - 59

7. Returns to Secretary of State, 63

CD 8. Authorities and areas, - 63
9. Application of Act to special cases, and



interpretation, 64



10. Short title, construction, and commencement,

Schedules, 69

VII. Appendix. Summary of Proceedings on the Licensing

Bill in Parliament, - 72

VIII. The Licensing Act, 1902 - 105



4O2114



GUARANTEED PURE GRARE.

(Sautter ffreres, Cognac

(Established 1755.)

GENUINE WINE BRANDY.



GAUTIER'S

Celebrated 20 YEAR OLD

"000"

v
LIQUEUR BRANDY

Bottled in Cognac. In Hock-shaped Bottles.



Sold by almost all Wine and Spirit Merchants, Stores, &c., &c ,
at 6/8 per Bottle, 8O - per Dozen.

Should any difficulty be experienced in obtaining this Brandy please apply to
the Wholesale Agents

BROWN, GORE, & CO,,

22 and 23 Great Tower Street,
LONDON, EC. ^^

.... Who will send Name of Nearest Dealer.



PREFACE.



^ HE following pages embody an attempt to explain clearly,
^ * so that they may be understood by a person not learned
in the law, the provisions of the Licensing Act, 1904. With
a view to rendering the work more generally instructive, there
has been included a short summary of the history of licensing
and of the various matters leading up to the passing of the
recent Act.

In addition to the works quoted, I have to acknowledge my
indebtedness to the " Brewers' Almanack," and to the Reports of
the Royal Commission on Liquor Licensing Laws, of which
publications I have made considerable use.

F. M.



25 VICTORIA STREET,
WESTMINSTER, August, 1904.





I 3n 3rgument I




'WHITE LABEL;

I WHISKY I

Grows in favour every day all over
I the world. Analysts have put it to the flj

most delicate and searching tests,
I while able critics of spirituous liquors A

have examined it from every possible
outlook. Moreover, doctors of skill
and eminence have experimented
with it in the interests of their
profession. The unqualified outcome
of all this is enthusiastic endorse-
ment of the whisky's purity, truth,
soundness, and general excellence.
Therefore the whisky justifies its
claim to be called

THE WHISK7 OF MANY MERITS

STANDING ALONE 3MONGST STIMULANTS

REFRESHES IN THE RIGHT W3Y





A MANUAL



OF



LICENSING LEGISLATION



AND



COMPENSATION.



I. Historical Sketch of the Licensing Laws.

T""HE wisdom of Lord Melbourne's famous remonstrance to legis-
lative meddlers, " Damn it, why can't you leave it alone ? "
finds ample illustration in the history of the liquor laws of the
United Kingdom, a history which consists of one long chapter
exemplifying the futility and folly of State interference with private
habits and trading customs, and which has resulted in creating what
is admittedly the most complicated and vexatious system of regulation
the world has ever seen.

For the beginnings of our present licensing laws we have to go
back to the Act of n Henry VII. c. 2, passed in the year 1495, by
which any two justices of the peace were empowered " to reject and
put away common ale selling in towns and places where they should
think convenient, and to take sureties of keepers of alehouses in
their good behaving." A similar Act was passed in 1503, but the
licensing system properly so-called dates from the 5 & 6 Ed. VI.
c - 2 5 ( I 5S 1 " 2 )- This Act confirmed the power of suppressing
alehouses, and also enacted that no one should be allowed to keep
an alehouse unless he obtained the authority of two justices of the
peace. The justices were to take sureties for the observance of
rules for the conduct of the houses, and were empowered to try
breaches of those rules, and to punish persons keeping alehouses



2 LICENSING ACT, 1904.

without licence. It is to be noted that the licences granted under
this Act were not terminable at any specified date, though the
justices could suppress a house when they thought fit.

The sale of wine was first regulated in the following year by the
Act 7 Ed. VI. c. 5, by which the retail sale was permitted in cities,
boroughs, towns corporate, port towns, and market towns, and then
only under appointment from the corporation, or, where there was no
corporation, from the justices of the peace. The number of houses
to be licensed was limited to 40 in the City of London, 8 in York,
6 in Bristol, 4 or 3 in eighteen other places, and 2 elsewhere. These
licences were for the sale of wine to be consumed off the premises
only, consumption on the premises being prohibited. This statute
is worthy of note, not only as fixing the number of houses allowed,
but also as being the earliest attempt to place the sale of liquors for
consumption off the premises (which has usually been subject to an
excise licence only) under the control of the justices. It seems,
however, not to have been regularly enforced, and soon became
obsolete.

The regulations drawn up by the justices under the Act of 5 &
6 Ed. VI. tended to acquire a more or less settled form, and the
conditions commonly in use were embodied in a royal proclamation
by James I. in 1618. This form provided that the alehouse-keeper
should not during the continuance of his licence permit unlawful
games to be played in his house, that he should close the house
during the hours of divine service on Sunday, that he should give
the names of all strangers staying in the house for more than a night
to the constable, that he should not permit persons to continue
drinking or tippling in his house, that he should close the house at
nine in the evening, that he should not buy or take in pawn stolen
goods nor harbour bad characters, that he should use standard
measures and sell at the prices fixed by law, and that he should not
sell tobacco nor permit smoking this last being characteristic of the
tobacco-hating James I.

During the reigns of James I. and Charles I. a series of Acts
known as the Tippling Acts were passed, but as these are not



LICENSING ACT, 1904. 3

directly concerned with the law of licensing, we defer their con-
sideration for a subsequent part of this work.

The first attempt to deal by legislation with the sale of spirits
appears to have been made in the year 1700, when by the Act 12
& 13 Will. III. c. ii persons retailing brandy or other distilled
liquors to be drunk on the premises were required to obtain a licence
in the same manner as alehouse keepers. This Act, however,
appears to have had little effect, and the consumption of spirits, which
was intended to be checked, continued nevertheless to increase. In
1728-9 the Act 2 Geo. II. c. 17 put a duty of 5/- a gallon on the
manufacture of spirits in addition to the existing duties, and required
all retailers to take out an annual excise licence on which a duty of
^20 was payable. This Act was repealed four years afterwards by
the Act 6 Geo. II. c. 17,

In 1729, by the Act 2 Geo. II. c. 28, the old system established
under the Act of Edward VI., by which any two justices of the peace
could grant licences, was abolished, and the system which has
survived to the present day was substituted, by which licences can
only be granted at a general meeting of the justices of the peace for
the division where the applicant resides.

The Act of 9 Geo. II. c. 23, commonly known as "the Gin
Act," was passed in 1736, with the object of entirely suppressing the
sale of spirits in small quantities. This Act required all persons
retailing spirits in less quantities than two gallons at a time, whether
for consumption on or off the premises, to take out an annual excise
licence on which a duty of ^50 was payable, and also imposed a
duty of 20 / - per gallon to be paid by retailers on the spirits sold by
them in addition to the duties payable by the manufacturers. A fine
of ;ioo was imposed on any person retailing spirits without a
licence. Licences were only to be granted to the keepers of
victualling houses, inns, coffee houses, alehouses, or brandy shops
who carried on no other trade. The complete failure of this Act,
which will be dealt with subsequently, led to its speedy abandonment,
but not until after various Acts increasing its stringency had been
tried and failed.



4 LICENSING ACT, 1904.

The 1 6 Geo. II. c. 8 was passed in 1742, and by this Act
the duty of 20 /- on each gallon of spirits was repealed and the retail
licence duty was reduced from ^50 to 2o/-.

The justices were given authority to deal with the sale of ale,
beer, etc., off the premises by the Act 26 Geo. II. c. 31, passed in
the year 1753. This Act also for the first time gave statutory
authority to the system of annual licences, which had, however, been
enjoined by the royal proclamation of 1618, and was probably in use
by the justices before that time.

We now come to the period of licensing law consolidation. This
was first effected in 1822 by an Act which was superseded by the
9 Geo. IV. c. 6 1, in 1828. This latter Act, generally known
as " the Alehouse Act," remains to this day as the foundation of the
English licensing law. It deals with the sale for consumption
on the premises only, and, as it repealed all previous legislation
regarding justices' licences, the substantial effect was to leave the
sale of all alcoholic liquors to be consumed off the premises entirely
free, except in so far as excise licences were required. The power of
suppressing public houses, which the justices had nominally possessed
ever since the Act 5 & 6 Ed. VI., was abolished, though it had
been long before superseded for all practical purposes by the system
of annual licensing. The other provisions of the Act may be
summarised as follows : No one might sell by retail any exciseable
liquors to be consumed in his house without a licence from the
justices of the peace, which required to be renewed annually. The
justices of the peace were directed to hold in each year a general
licensing meeting for the granting of licences, and special sessions for
authorising the transfer of licences. Justices of the peace who were
brewers or distillers, or otherwise interested in the sale of beer or
spirits, or in the house with reference to which an application for a
licence was made, or who were related to the applicant, were dis-
qualified from acting at the licensing meeting. Persons applying for
new licences, or for the transfer of an existing licence, were required
to give notice of the intended application to one of the overseers of
the poor and to the constable or other police officer of the parish,



LICENSING ACT, 1904. 5

and to post up similar notices on the house with reference to which
the application was made, and at the church. The special certificate
of character, which applicants for licences had formerly been obliged
to furnish, was no longer required. The system of excise licensing,
which had been in full force for some years, was connected with the
justices' licensing system in the following manner : The licence
granted by the justices was a general licence, authorising the licensed
person to sell by retail all such exciseable liquors as he should be
authorised to sell under any excise licence. Anyone who possessed
a licence from the justices was entitled, on production of such
licence to the excise authorities and payment of proper duty, to
obtain an excise licence to retail ale, beer, cider, and perry for
consumption on the premises. And anyone who possessed an excise
licence for the retail of ale, beer, cider, and perry, was entitled, on
payment of further duty, to obtain further excise licences to retail
spirits, wines, made wines, and sweets. No excise licences for the
retail of exciseable liquors might be granted except to persons who
held a licence from the justices of the peace. The justices' licence
contained various provisions, such as were formerly used in recognis-
ances, as to the conduct of the business and the maintenance of good
order, and recognisances were no longer taken. The penalties for
offences against the licence were a fine not exceeding ^5 for the
first offence, and a fine not exceeding ^10 for a second offence
committed within three years of the first offence. If a third offence
was committed within three years of the first offence, the case was
tried at special sessions, when the justices had the power either to
dispose of the matter and impose a fine not exceeding .50, or to
adjourn it to quarter sessions, where a fine of ^100 might be
imposed and the licence declared forfeited.

The i Will. IV. c. 64, passed in the year 1830, may be said to
open an entirely new chapter in the law of licensing. It enabled any
person, being a householder assessed to the poor rate, to sell beer,
but not other intoxicating liquors, by retail, without any justices'
licence on obtaining an excise licence at the cost of ^2 23. a year.
In 1834 this Act was modified by the 4 & 5 Will. IV. c. 85, which



6 LICENSING ACT, 1904.

drew a distinction between licences for consumption on and off the
premises. The off licences were to be charged at the rate of i is.
per annum, while the on licences were to cost $ 33., and were only
to be granted on the production of a certificate of good character
signed by six rated inhabitants of the parish. Another change was
made in 1840 by the 3 & 4 Vic. c. 61, which provided that no beer
licences, whether on or off, should be granted to any person not a
real resident holder and occupier of the dwelling-house to be licensed,
or in respect of any house which was not of the value of ^15 in
places containing 10,000 inhabitants, ^n in places of 5000 inhabi-
tants, and ;8 elsewhere ; but persons who had been licensed before
the passing of the Act were to have their licences renewed notwith-
standing that the house might not be of the required value.

In 1860 and 1861, by the 23 Vic. c. 27, and 24 & 25 Vic. c. 21,
were introduced the refreshment house licence and the so-called
" grocer's " licence, both issued by the excise.

In 1869 a further important change was made in the law. By
the 32 & 33 Vic. c. 27, passed in that year, nearly the whole of the
off licences, which, under the Alehouse Act of 1828, and for the
most part before that Act, had been entirely free from control by the
licensing justices, were brought under their jurisdiction. A system
of excise licences for revenue purposes had existed to a greater or
less extent from the Commonwealth period, but the justices had,
speaking generally, no control except over the houses where liquor
was sold for consumption on the premises. This was now entirely
changed. The justices, however, were not given the same absolute
discretion which they enjoyed under the Act of 1828. So far as off
licences were concerned they were authorised to refuse them upon
some one or more of the following grounds only :

1. That the applicant had failed to produce satisfactory evidence

of good character.

2. That the house or shop in respect of which the licence was

sought, or any adjacent house or shop owned or occupied
by the person applying for the licence, was of a disorderly
character, or frequented by thieves, prostitutes, or persons
of bad character.



LICENSING ACT, 1904. 7

3. That the applicant having previously held a licence for the

sale of wine, spirits, beer, or cider, the same had been for-
feited for his misconduct, or that he had, through miscon-
duct, been at any time previously adjudged disqualified
from receiving any such licence or from selling any of the
said articles.

4. That the applicant or the house in respect of which he

applied was not duly qualified as by law was required.

In regard to new beer-house licences, absolute discretion was
given to the justices, but in regard to existing licences, renewals
could only be refused on the same grounds as off licences. The
houses to which this protection was granted constitute the well known
"Ante-i869 Beer Houses."

In 1872 was passed the 35 & 36 Vic. c. 94, which so largely
altered the previous law that it may now be considered, at any rate
after the Act of 1828, the principal Act in force. The old forms of
licences were abolished, and, instead of the conditions which had
formerly been contained in them, a series of enactments creating
certain offences was substituted. The closing hours were altered,
and a new kind of licence, known as " the Six-Day Licence," was
introduced. A new departure was made in requiring all new licences
for on consumption to be confirmed before becoming operative, but
the old general right of appeal against the decisions of the justices in
regard to licences was abolished, so that the only appeal now remain-
ing is an appeal against the refusal to renew an old licence, while
the grant or refusal of a new licence, or the renewal of an old one,
is not now subject to appeal. Another most important change was
that under which an applicant for a renewal was not required to
attend in person unless he received notice from the justices requiring
his attendance. A further amendment was made in 1874, by the 37
& 38 Vic. c. 49, by which the closing hours were considerably
modified, and a new " Early Closing Licence " was introduced.
Various small amendments were made, and an entirely new power
was given to the justices to grant a new licence provisionally in re-
spect of premises about to be constructed or in course of construction.



8 LICENSING ACT, 1904.

The only other statute that need be referred to is the Licensing
Act, 1902, 2 Ed. VII. c. 28. By this Act many alterations of the
law were made in regard to drunkenness, clubs, etc., which do not
directly concern our present subject. The control of the justices
over the structure of licensed premises was increased. The
annual licensing meeting, which, under the Act of 1828, had
been held in Middlesex and Surrey within the first ten days of March,
and in other counties between August 2oth and September i4th, is
for the future to be held in all counties within the first fourteen days
of February. In regard to transfers a most important change was
introduced, the justices being authorised, for the purpose of prevent-
ing repeated applications, to determine the time which was to elapse
after the hearing of one application before another could be made.
A further important change was 'made in regard to the costs of
justices whose decision was appealed against. Under the Act of
1828, if the appeal failed, quarter sessions could order the appellant
to pay the costs of the respondent justices, and where the appeal was
successful, quarter sessions might order the treasurer of the county
or place to pay the justices' costs. Under the law as amended the
discretion of quarter sessions is taken away, and they are bound to
order the treasurer of the county or place to pay such part of the
justices' costs as cannot be recovered from any other person, so that
in the case of unsuccessful appeal the costs will be payable out
of public funds if they cannot be obtained from the appellant, and
in the case of a successful appeal they will always be payable out of
public funds. The most important alteration made by the Act was
that in regard to retail off licences, which are now subject entirely to
the discretion of the justices. This discretion is, however, limited
by the following proviso, which, as will be seen, preserves the right
of all persons who were licensed before the passing of the Act,
except in case of misconduct :

"Provided that where a licence for the sale of wine, spirits,
liqueurs, sweets, or cider, not to be consumed on the premises, was
in force on the twenty-fifth day of June, nineteen hundred and two,
an application for the renewal of such licence, or of any licence



LICENSING ACT, 1904. 9

granted by way of renewal thereof from time to time, shall not be
refused to the person who held such licence on the twenty-fifth day
of June, nineteen hundred and two, except on one or more of the
grounds on which it might have been refused if this Act had not
passed, or on the ground that the licensee has sold surreptitiously
under such licence, or has assisted in concealing or misrepresenting
the nature of goods sold under such licence, or has in any other way,
in the opinion of the licensing justices, been guilty of misconduct in
the management of his business under such licence."

II. Historical Failure of Prohibitory Legislation.

IN view of the fact that the agitation for the suppression of
licences out of which the Licensing Act, 1904, arose is based upon
the utterly fallacious idea that drinking can be stopped by legislation,
we give here a short account of the historical failure of prohibitive
measures. Dealing first with English legislation, we may note the
now generally admitted failure of the Tippling Acts, which is well
summed up in the following quotation from a valuable but little
known work, entitled " The Licensing Question," by Frederick N.
Newcome. After noticing the earlier Tippling Acts and giving
evidence of their failure, he proceeds :

"In 1623, or just fourteen years afterwards, these statutes were
strengthened and made permanent. Provision was now taken for
punishing persons caught tippling anywhere, this amendment being
deemed necessary owing to people adopting the very obvious course
of walking into another parish and there drinking with impunity.
Justices of the peace and other officers had their powers greatly
enlarged, while as an additional means of checking the national
iniquity, all constables, churchwardens, head boroughs, tithing
masters, ale-conners, and sidesmen were specially sworn in under
penalties to ' present all offences done contrary ' to the statute.
Here was repressive legislation enough to satisfy anyone of most
inordinate greed ! In juxtaposition with such edicts even the Maine
Laws themselves are merciful, yet in practice how abortive they



io LICENSING ACT, 1904.

proved. Before two years elapsed the next Parliament found itself
compelled to promulgate an ' Act for the further restraint of Tippling
in Inns, Ale-houses, and other Victualling Houses,' one effect of
which was to render every retailer liable to a io/- fine for permitting
any tippling in his house either by residents or non-residents.

" Here we see the Executive replete with all the powers it could
seemingly desire, possessing an arbitrary and extensively used right
to summarily punish every minor trespass upon the sworn evidence
of a single witness, with practically unlimited control over vendors
and consumers alike, with an army of officials bound over to report
every breach of the law coming within their knowledge and what
was the result ? As before, further legislation was imperative ;


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Online LibraryFrederick MillarA manual of licensing legislation and compensation → online text (page 1 of 11)