Clubs represent alternative channels to the licensed trade and they are under much less stringent control; they have no prohibited hours and the police have not the same right of entry. In so far, therefore, as clubs replace public-houses the reduction of the latter does not mean diminished facilities for drinking, but the contrary. In the years 1903-1908 the average number of clubs proceeded against for offences was 74 and the average number struck off the register was 52. 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. The course of the law and administration since 1869 has made it particularly difficult. The stringent conditions imposed on licence-holders have given those who fulfil them a claim to consideration, and the reduction of licences, by limiting the market, has enhanced their value. An expectation of renewal, in the absence of misconduct, has grown up by usage and been confirmed by the law, which recognizes the distinction between granting a new licence and renewing an old one, by the treasury which levies death duties on the assumption that a licence is an enduring property, by local authorities which assess upon the same assumption, and by the High Courts of Justice, whose decisions have repeatedly turned on this point. The consequence of all this is that very large sums have been invested in licensed property, which has become part of the settled order of society; and to destroy it by some sudden innovation would cause a great shock. The position is entirely different in other countries where no such control has ever been exercised. It is possible to impose a new system where previously there was none, but not to replace suddenly an old and settled one for something entirely different. Only the most convincing proof of the need and the advantages of the change would justify it; and such proof has not been forthcoming. 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. The process is gradual but sure, and the record will compare favourably with that of any other comparable country. Further readjustment will follow and is desirable. The great defect of the law is its extreme complexity; it needs recasting and simplification. 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. 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. It does not fall within the scope of this article to discuss the numerous controversial questions which arise in connexion with various legislative proposals for dealing with the liquor traffic; but an account of the methods which it has been proposed to adopt from other countries will be found below.
The United States
The liquor legislation of the United States presents a great contrast to that of the United Kingdom, but it is not less interesting in an entirely different way. In place of a single homogeneous system gradually evolved in the course of centuries it embraces a whole series of different ones based on the most diverse principles and subject to sudden changes and frequent experiments. It is not sufficiently understood in Europe that the legislatures of the several states are sovereign in regard to internal affairs and make what laws they please subject to the proviso that they cannot over-ride the Federal law. 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. 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. It may go further. In 1887 a judgment was delivered by the Supreme Court of the United States that it is within the discretionary power of a state to protect public health, safety and morals even by the destruction of property without compensation, and that the constitution of the United States is not thereby violated. 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.
In the great majority of the states some form of licensing exists; it is the prevailing system and was adopted, no doubt from England, at an early period. It is exercised in various ways. The licensing authority may be the municipality or a specially constituted body or the police or a judicial body. The last, which is the method in Pennsylvania, seems to be exceptional. According to Mr Fanshawe there is a general tendency, due to the prevailing corruption, to withdraw from municipal authorities power over the licensing, and to place this function in the hands of commissioners, who may be elected or nominated. In New York state the licensing commissioners used to be nominated in cities by the mayors and elected elsewhere; but by the Raines law of 1896 the whole administration was placed under a state commissioner appointed by the governor with the consent of the Senate. A similar plan is in force in some important cities in other states. In Boston the licensing is in the hands of a police board appointed by the governor; in Baltimore and St Louis the authority is vested in commissioners similarly appointed; and in Washington the licensing commissioners are appointed by the president. 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. In Massachusetts the number of licences allowed bears a fixed ratio to the population, namely 1 to 1000, except in Boston, where it is 1 to 500, but as a rule where licences are given they are given freely. They are valid for a year and granted on conditions. The first and most general condition is the payment of a fee or tax, which varies in amount in different states. Under the “high licence” system (see below) it generally varies according to the size of the locality and the class of licence where different classes are recognized. In Massachusetts there are six licences; three for consumption on the premises—namely (1) full licence for all liquors, (2) beer, cider, and light wine, (3) beer and cider; two for consumption off the premises—namely (1) spirits, (2) other liquors; the sixth is for druggists. In New York state also there are six classes of licence, though they are not quite the same; but in many states there appears to be only one licence, and no distinction between on and off sale, wholesale or retail. Another condition generally imposed in addition to the tax is a heavy bond with sureties; it varies in amount but is usually not less than 2000 dollars (£400) and may be as high as 6000 dollars (£1200). A condition precedent to the granting of a licence imposed in some states is the deposit of a petition or application some time beforehand, which may have to be backed by a certain number of local residents or tax-payers. In Pennsylvania the required number is 12, and this is the common practice elsewhere; in Missouri a majority of tax-payers is required, and the licence may even then be refused, but if the petition is signed by two-thirds of the tax-payers the licensing authority is bound to grant it. This seems to be a sort of genuine local option. Provision is also generally made for hearing objectors. Another condition sometimes required (Massachusetts and Iowa) is the consent of owners of adjoining property. In some states no licences are permitted within a stated distance of certain institutions; e.g. public parks (Missouri) and schools (Massachusetts). Regulations imposed on the licensed trade nearly always include prohibition of sale to minors under 18 and to drunkards, on Sundays, public holidays and election days, and prohibition of the employment of barmaids. Sunday closing, which is universal, dates at least from 1816 (Indiana) and is probably much older. The hours of closing on week days vary considerably but are usually 10 P.M. or 11 P.M. Other things are often prohibited including indecent pictures, games and music.
State Prohibition.—In a few states no licences are allowed. State prohibition was first introduced in 1846 under the influence of a strong agitation in Maine, and within a few years the example was followed by the other New England states; by Vermont in 1852, Connecticut in 1854, New Hampshire in 1855 and later by Massachusetts and Rhode Island. They have all now after a more or less prolonged trial given it up except Maine. Other states which have tried and abandoned it are Illinois (1851-1853), Indiana (1855-1858), Michigan, Iowa, Nebraska, South Dakota. The great Middle states have either never tried it, as in the case of New York (where it was enacted in 1855 but declared unconstitutional), Pennsylvania and New Jersey, or only gave it a nominal trial, as with Illinois and Indiana. A curious position came about in Ohio,[1] one of the great industrial states. It did not adopt prohibition, which forbids the manufacture and sale of liquor; but in 1851 it abandoned licensing, which had been in force since 1792, and incorporated a provision in the constitution declaring that no licence should thereafter be granted in the state. The position then was that retail sale without a licence was illegal and that no licence could be granted. This singular state of things was changed in 1886 by the “Dow law,” which authorized a tax on the trade and rendered it legal without expressly sanctioning or licensing it. There were therefore no licences and no licensing machinery, but the traffic was taxed and conditions imposed. In effect the Dow law amounted to repeal of prohibition and its replacement by the freest possible form of licensing. In Iowa, which early adopted a prohibitory law, still nominally in force, a law, known as the “mulct law,” was passed in 1894 for taxing the trade and practically legalizing it under conditions. The story of the forty years’ struggle in this state between the prohibition agitation and the natural appetites of mankind is exceedingly instructive; it is an extraordinary revelation of political intrigue and tortuous proceedings, and an impressive warning against the folly of trying to coerce the personal habits of a large section of the population against their will. It ended in a sort of compromise, in which the coercive principle is preserved in one law and personal liberty vindicated by another contradictory one. The result may be satisfactory, but it might be attained in a less expensive manner. What suffers is the principle of law itself, which is brought into disrepute.
State prohibition, abandoned by the populous New England and central states, has in recent years found a home in more remote regions. In 1907 it was in force in five states—Maine, Kansas, North Dakota, Georgia and Oklahoma; in January, 1909, it came into operation in Alabama, Mississippi, and North Carolina; and in July 1909 in Tennessee.
Local Prohibition.—The limited form of prohibition known as local veto is much more extensively applied. It is an older plan than state prohibition, having been adopted by the legislature of Indiana in 1832. Georgia followed in the next year, and then other states took it up for several years until the rise of state prohibition in the middle of the century caused it to fall into neglect for a time. But the states which adopted and then abandoned general prohibition fell back on the local form, and a great many others have also adopted it. In 1907 it was in force in over 30 states, including all the most populous and important, with one or two exceptions. But the extent to which it is applied varies very widely and is constantly changing, as different places take it up and drop it again. Some alternate in an almost regular manner every two or three years, or even every year; and periodical oscillations of a general character occur in favour of the plan or against it as the result of organized agitation followed by reaction. The wide discrepancies between the practice of different states are shown by some statistics collected in 1907, when the movement was running favourably to the adoption of no licence. In Tennessee the whole state was under prohibition with the exception of 5 municipalities; Arkansas, 56 out of 75 counties; Florida, 35 out of 46 counties; Mississippi, 56 out of 77 counties; North Carolina, 70 out of 97 counties; Vermont, 3 out of 6 cities and 208 out of 241 towns. These appear to be the most prohibitive states, and they are all of a rural character. At the other end of the scale were Pennsylvania with 1 county and a few towns (“town” in America is generally equivalent to “village” in England); Michigan, 1 county and a few towns; California, parts of 8 or 10 counties. New York had 308 out of 933 towns, Ohio, 480 out of 768 towns, Massachusetts, 19 out of 33 cities and 249 out of 321 towns. At the end of 1909 a strong reaction against the prohibition policy set in, notably in Massachusetts.
There is no more uniformity in the mode of procedure than in the extent of application. At least five methods are distinguished. In the most complete and regular form a vote is taken every year in all localities whether there shall be licences or not in the ensuing year and is decided by a bare majority. A second method of applying the general vote is to take it at any time, but not oftener than once in four years, on the demand of one-tenth of the electorate. A third plan is to apply this principle locally and put the question to the vote, when demanded, in any locality. A fourth and entirely different system is to invest the local authority with powers to decide whether there shall be licences or not; and a fifth is to give residents power to prevent licences by means of protest or petition. The first two methods are those most widely in force; but the third plan of taking a local vote by itself is adopted in some important states, including New York, Ohio and Illinois. 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. On the other hand, it has some serious disadvantages. The perpetually renewed struggle between the advocates and opponents of prohibition is a constant cause of social and political strife; and the alternate shutting up and opening of public houses in many places makes continuity of administration impossible, prevents the executive from getting the traffic properly in hand, upsets the habits of the people, demoralizes the trade and stands in the way of steady improvement.
Public Dispensaries.—This entirely different system of controlling the traffic has been in general operation in one state only, South Carolina; but it was also applied to certain areas in the neighbouring states of North Carolina, Georgia and Alabama. The coloured element is very strong in these states, especially in South Carolina, where the coloured far exceeds the white population. The dispensary system was inaugurated there in 1893. It had been preceded by a licensing system with local veto (adopted in 1882), but a strong agitation for state prohibition brought matters to a crisis in 1891. The usual violent political struggle, which is the only constant feature of liquor legislation in the United States, took place, partly on temperance and partly on economic grounds; and a way out was found by adopting an idea from the town of Athens in Georgia, where the liquor trade was run by the municipality through a public dispensary. A law was passed in 1892 embodying this principle but applying it to the whole state. The measure was fiercely contested in the courts and the legislature for years and it underwent numerous amendments, but it survived. Under it the state became the sole purveyor of liquor, buying wholesale from the manufacturers and selling retail through dispensaries under public management and only for consumption off the premises. Many changes were introduced from time to time without abandoning the principle, but in 1907 the system of state control was replaced by one of county administration. Local veto is also in force, and thus the localities have the choice of a dispensary or no sale at all. The regulations are very strict. The dispensaries are few and only open on week-days and during the day-time; they close at sunset. 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. The law seems to be well carried out in general, but Charleston and Columbia, the only two considerable towns, are honeycombed with illicit drink-shops, as the writer has proved by personal experience. Columbia is the capital and the seat of cotton manufactures, as are all the larger towns, with the exception of Charleston, which is the port and business centre. The population of the state is predominantly rural, and local prohibition obtains in 18 out of 41 counties.