impossible, in describing their exercise of this function, to avoid mentioning the action of the national Government, when, in the pursuit of revenue or for other reasons, its regulations interfered with, and even ousted, the powers of Justices of the Peace.

The device of licensing-that is, the requirement that any person desiring to pursue a particular occupation shall first obtain specific permission from a governing authority—may be used to attain many different ends. The licence may be merely an occasion for extracting a fee or levying a tax. It may be an instrument for registering all those who are following a particular occupation, in order, for some reason or another, to ensure their being brought under public notice. It may be a device for limiting the numbers of those so engaged, or for selecting them according to their possession of certain qualifications. Finally, the act of licensing may be the means of imposing special rules upon the occupation, or of more easily enforcing the fulfilment either of these special rules or of the general law of the land.

The function of licensing, as it has been delegated by Parliament to the Justices of the Peace, has always included three distinct forms of control the power of selection, the power

of withdrawal, and the power of imposing conditions.

By the statute of 5 and 6 Edward VI. c. 25 (1552) the Justices of the Peace were authorised to select from time to time, at their discretion, certain persons in each county or borough who were alone to exercise the trade of keeping a common alehouse.1 From this time forth, the occupation became an exceptional privilege, to which no person could assert a right.2 The Justices had full discretion as to the persons whom they would license, a discretion which Parliament limited only by certain insignificant requirements. What was of importance was

3

1 There has always been a distinction between an inn which lodges and entertains travellers, and a common alehouse which sells ale to all-comers. Originally an inn (Dalton, c. 56; Blackerby, 170) or a lodging-house (Parker and Flint, 1699, 12 Mod. 254), even if it supplied ale to its lodgers, required no licence. An inn might, by common law, be indicted as a public nuisance, if it was improperly conducted, or even if it was set up where it was not needed (1 Haw. 225). But, as inns practically always supplied ale to all-comers, they were quickly brought under the operation of the requirement to obtain licences as common alehouses and their regulation by way of indictment became obsolete.

2 In 1604 the King pointed out in a Privy Council circular letter that, "By the law and statutes of this our realm, the keeping of alehouses and victualling houses is none of those trades which it is free and lawful for any subject to set up and exercise, but inhibited to all save such as are thereto licensed."

3 Prior to 1729 the licence might be granted at any time by any two Justices, but by 2 George II. c. 28 (1729) the well-known "Brewster Sessions" was instituted, all licences having to be granted at a general sessions of the Justices of the division, of which one was to be held for this purpose in September of each year.

the fact that Parliament, from the outset, implied that the number of licences was to be kept down to just enough for the supply of the legitimate wants of each neighbourhood, thus creating a sort of monopoly. Moreover, there was no idea of selling this monopoly to the highest bidder, and the Justices were, in fact, required to issue their licence without charge. The result was that the Justices had it in their power to create a valuable property, and to give it to whom they chose.

The power of withdrawing the permission to sell intoxicating liquors is, curiously enough, older than the power to select the sellers. By 11 Henry VII. c. 2 (1495), strengthened by 19 Henry VII. c. 12 (1504), as part of the policy of discouraging indoor games, which diverted the people from archery, any two Justices were authorised summarily to suppress useless alehouses in their neighbourhood, and it was primarily to strengthen this power "to reject and put away common ale-selling in the towns and places where they should think convenient" as they thought meet and convenient, in order

1 Thus, the reason for the institution of special "Brewster Sessions" was so that licences might not be granted "by Justices who, living remote from the places of abode" of the applicants, "may not be truly informed as to the occasion or want of such inns or common alehouses" (2 George II. c. 28, 1729).

2 History of Taxes and Taxation, by S. Dowell (1888), vol. iv. p.91.

to prevent "the intolerable hurts and troubles to the commonwealth of the realm, daily growing and increasing," that the first licensing Act of 1552 was passed. With the same object, these alehouse licences were required by the Justices to be renewed annually, so that a mere refusal to renew amounted to, and apparently superseded, the statutory power of suppression. The full power of the Justices to refuse the renewal of a licence, entirely at their own discretion, and without assigning cause, was questioned, from time to time, but has always been upheld by the superior courts. The reason for refusal in the Justices' minds might be some misconduct of the publican, or it might be merely that they had come to the conclusion that the number of licences in the neighbourhood was greater than the existing needs warranted. Thus, just as the magistrates could create valuable property, and

1 The term for which the permission or licence of the Justices should be granted was not specified by 5 and 6 Edward VI. c. 25 (1552), but before the end of the sixteenth century it seems to have become customary for Justices to give the licence for one year only (see a form of 1591 in West's Symbolæography, 1606). A royal proclamation of 1618 definitely prescribed a form of licence for one year, and this seems to have been universally adopted. The annual renewal was implicitly required by 9 Anne c. 16 (1711), imposing an annual stamp duty, but it was not explicitly made requisite by statute until 26 George II. c. 31 (1753). See Mr. Bonham Carter's evidence before the Royal Commission on Liquor Licensing, 1897-99, and his valuable historical memorandum, in vol. iii. of the Proceedings of this Commission.

freely endow any individual with it, so they could, at any "brewster sessions," arbitrarily destroy the property that they had created, and deprive the holder of it without compensation.1

The power of imposing conditions on the licensees was not expressly conferred by statute but really flowed from the coexistence of the powers of selection and withdrawal. Parliament, whilst repeating that there was to be no tippling or disorder, had failed to prescribe under what accompaniments in the way of accommodation or recreation the sale of liquor should be conducted. Right down to the end of the period

1 The Judges always refused to issue a mandamus to the Justices to grant a licence, even on affidavit of their having maliciously or corruptly refused it (Strange, 881; 1 Barnardiston, 402). The superior courts showed, in fact, great reluctance to question the Justices' discretion in the matter. But "if it clearly appears," said Lord Mansfield in 1758, "that the Justices have been partially, maliciously, or corruptly influenced in the exercise of their discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information " (R. v. Young and Pitts, Burr. Mansf. 556). In 1765 two Justices of the tiny borough of Corfe Castle were committed to prison for a month, and fined £50 each, for refusing an alehouse licence to an innkeeper, merely because he had voted for a candidate for Parliament whom they were opposing (R. v. Hann and Price, Burr. Mansf. 1716, 1786). Such criminal proceedings were rare, and convictions still rarer, though we hear of Justices refusing licences to any persons who petitioned for a workhouse; and there can be no doubt that licences were frequently restricted, in practice to adherents of the dominant sect or political party. The full discretion of the Justices was upheld by the House of Lords in Sharp v. Wakefield; see the judgment reprinted in vol. ix. of the Proceedings of the Royal Commission on Liquor Licensing, 1897-99.