THE COMMON-SENSE OF LICENSING LEGISLATION.
IT is a misfortune common to all popular movements that their promoters are apt to disregard such commonplace virtues as justice and consideration. They come in time to look upon those who resist them much in the light in which a gamekeeper regards a stoat or a weasel. They are vermin, and being vermin they cannot claim the benefit of either law or custom. This is vervk much the estimation in which the extreme advocates of temperance hold the brewers, including under that name every one whose business or livelihood is in any degree associated with the making or sale of beer. They have learned. to look so exclusively at the evils which follow upon excessive drinking that they no longer see in the brewer a trader, occupying, no doubt, a position differ- ing in certain features from that of other traders, but still belonging to the same class and possessing the same general right to have his interests protected. At present philanthropists of this type are naturally excited by the near approach of a new essay in licensing legislation. The brewer is once more experiencing the drawbacks inseparable from specially favoured positions. For a long time he had everything his own way. The law has subjected him, indeed, to peculiar disabilities, but it has also treated him with peculiar favour. He cannot open and shut his houses at what hours he likes. He cannot run a tavern on the shift system, or multiply means of ingress or egress to suit the convenience of his cus- tomers. His methods of carrying on his business are the object of a whole series of Acts of Parliament and a pro- portionate amount of commentary. And yet with all these disadvantages his trade has grown and prospered. Even the growing dislike in which that trade has of late years come to be held has ministered. to his success. As new licenses have been granted. more sparingly the existing licenses have become more valuable. This last-mentioned advan- tage has, of course, its rough side, since it has made the trade dangerously interesting to the Chancellor of the Exchequer. It is only lately, however, that this feature has begun to affect the value of the brewer's property. So long as the Unionists were in power there was not much fear of revolutionary legislation, except on Tariff Reform. The conditions of public-house management might be varied with what their owners thought unnecessary frequency; but confiscation was still far off, and that word of fear, a time-limit, was still unspoken. The Election of 1906 has changed this, as it has changed much else, and from a state of comfortable assurance the trade has passed, we are disposed to think, into one of exaggerated alarm. We doubt whether even the present House of Commons will be found in the end to view the brewer and the publican simply as public enemies, and, even if it should prove ready to go this length, it will hardly be on this issue that Ministers will elect to fight the Lords. An experienced Temperance speaker said the other day that though the present House of Commons might be sound on the question of public-houses, the country was not; and on a question which must necessarily involve an appeal to the electors the mind of the country is an element not to be neglected.
In the Times of Monday we had the advantage of reading both sides of the controversy set out by experts. Sir Thomas Whittaker somewhat injures his case by under- estimating the effect of the judgments in "Sharp v. Wakefield." It is quite true that these judgments made no change in the law. Both before and after the case in question the legal right to carry on a public- house was nothing more than a right to carry it on for the twelve months for which the license is granted. But Sir Thomas Whittaker leaves out of account certain important qualifications which the Judges attached to their decisions. He may claim, indeed, the support of a witness not likely to underrate the strength of the brewers' position. He quotes a statement by Mr. Nash, the counsel to the Licensed Victuallers' Association, that "in the strict sense no such thing as a vested interest exists, and that, subject to appeal, the Magistrates can refuse to renew the licenses of the largest, most useful, and. best conducted hotel in England." The letter which follows Sir Thomas Whittaker's, and is signed by Lord Burton, Mr. Whitbread, and Mr. Waters Butler, sets out certain passages from the judgments in "Sharp v. Wake- field" which certainly throw doubt on this very confident assertion. The bare right to refuse to renew a license is one thing, the propriety of exercising that bare right is another; and we do not see that anything is gained by ignoring this distinction. The judgment in "Sharp v. Wakefield," writes Lord Burton, "affirmed the right of the Magistrates to refuse, after due consideration, to renew the license of a particular house. But certainly it did not affirm the right of the Magistrates at one sweep to refuse the renewal of the whole of the licenses in their district." In these two sentences the term " right " is not used in precisely the same sense, but any ambiguity arising from this cause disappears when we come to the judgments themselves. "The Legislature," said the Lord Chancellor, "has given credit to the Magistrates for exercising a judicial discretion that they will fairly decide the questions submitted to them, and not by evasion attempt to repeal the law which permits public-houses to exist." "The Legislature," said Lord. Bramwell, "has most clearly shown that it is supposed and contemplated that licenses would usually be renewed, that the taking away of a man's livelihood would not be practised cruelly or wantonly." And Lord Hannon, while admitting that instances had been brought before the Courts in which the Justices had "expressed and acted upon a general intention with respect to all licenses, declared that their duty was to consider each individual case on its own special merits." This appears to us to describe a very different state of things from the "pre- carious tenure" of which Sir Thomas Whittaker speaks.
It would have been better, we think, for the public, and very possibly for the brewers, if the late Government had let the law of licensing alone. The question was eminently unsuited for piecemeal legislation. Before the Act of 1904 the general right of the brewers to carry on their trade subject to the discretion of the Magistrates, exercised with reference, in the case of an application for renewal, to the manner in which a public-house was conducted, and, in the case of an application for a new license, to the needs of the neighbourhood, was sufficiently recognised, and the general opinion was that in any change that Parliament might think fit to make in the law this tenure during good behaviour ought to be regarded as a valid claim to fair com- pensation. Thcs3 are the two conditions which should still govern the treatment of the question. If the Legisla- ture is minded to put an end to the granting of licenses, either in whole or in part, the wishes, whether of the brewer or of the publican, must not be allowed to stand in the way. Public policy ought to override private interests. But this process of overriding should have reference to the future, not to the present. It should aim at effecting a change in the position of the holders of this kind of property hereafter, not at depriving them of that property, or rendering it practically valueless. It may be as necessary for the public welfare to buy up the rights of brewers and publicans as it was to buy up the rights of Irish landlords. But while these rights ought not for an instant to stand in the way of the larger interests of the community, they ought to be dealt with on the same principle as that on which the Legislature deals with other private interests when they come into conflict with those of the nation. Sir Thomas Whittaker speaks of sanctioning a time-limit "as a matter of grace and expediency." We do not quarrel with the phrase itself, but we must be very careful as to the practical deductions to be drawn there- from. The trade of the publican is one of the oldest in existence, and if it is to be prohibited, or only permitted under conditions which will discourage every one from taking it up, those actually engaged in it have, as it seems to us, a just claim to compensation for the livelihood which is denied them. What the nature and amount of this compensation should be are matters for the consideration, partly of Parliament, partly of actuarial experts. It is not, we imagine, beyond the skill of the latter to estimate the present value of public-house property after giving proper weight to all the considera- tions submitted. to them on either side. Nor ought it to be beyond the wisdom of Parliament so to shape the promised or any other Licensing Bill as to relieve the nation from all suspicion of wishing to build up public prosperity upon private ruin.
Meantime, and subject to the complete satisfaction of the claims of equity and fair dealing which we have just set forth, there remain also to be considered the claims of the revenue. Provided that no particle of injustice: is done to individuals, we hold that the State should ultimately reap the full benefit of the valuable monopoly created by the restrictions which it places on the sale of intoxicants. No doubt the carelessness and want of fiscal ability displayed by our rulers in the past will make it a long and difficult business to resume complete power over the issue of licenses. This, however, is the ideal, and it should be aimed at even though its accomplishment may require a period of twenty years or more. Absolute justice to the brewers and to all others concerned in the trade, and a proper care for the revenue,—these are the two considerations which ought to govern the settlement of the licensing question.
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