III.

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the “Sunday Times," "he was incomparable ; Clean derelict,
he spoke
without notes, and as he poured out the arrows of Cupid his bosom had pricked

Although brought up so strict, the treasures of his mind, we were amazed.

(And, whisper it low, There was one notable lecture on the Findhorn, Young Osgood doth know from source to mouth, which was a linking That Minna has some twenty thousand or so).

So his suit he did press, together of history from the far-off days of the

With clasp and caress, Druids to modern times, which was not only And many professions of deep tenderness, history but literature of the finest kind, and Till the fair Minna Moss was induced to say “yes." a remarkable achievement of memory as well."

But smit with a fear

That their life might be queer, In lighter vein, Mr Brodie-Innes was one of In her financé's ear she murmured, "My dear! the most amusing and original of conversa- If I wed you the dowager mustn't stop here.” tionalists and entertainers. His taste for burlesque rhyme early found expression in

Legends of Leading Cases,” published in Then out spoke that dowager, wrinkled and grey, 1880 ; we append one of his better-known

I'm going away poems on the case of Mackenzie v. Mackenzie

Not one single day, (20 R. 636). In his early days at the Scots

In the young people's home, do I purpose to stay ;

I beg you to note it Bar he was in great demand at " smokers ” of

On paper she wrote it, legal debating societies, and such associations And she said it, as plain as a body could speak; as the Saturday Evening Club (once beloved of But she said it, I fear, with her tongue in her cheek : Lord MʻLaren, Professor Tait, Sheriff Vary And not long had the honeymoon been fled,

For Minna and Osgood scarce were wed, Campbell, and other ornaments of the Royal When they saw at the door the dowager's head, Society), where his “ King Harry the Eighth

With boxes a score,

And trunks galore ; and numerous other original poems, recited

And they've got to endure it, say what they may, with absolutely faultless memory, will long be For it's plain the old lady has come to stay. remembered. Later on he held high office in She had promised she wouldn't, but then 'twas absurd,

The Monks of St Giles," to whose volumes of So she said, to suppose she would keep to her word. "Reminiscences” he made important contributions. In 1912 he held the proud distinction of being President of “Ye Sette of Odd 0, the dowager's crusty, and crabbed, and cross, Volumes," a London literary club founded by And she loathes all the kin of the fair Minna Moss ;

She is ready to “boss " Bernard Quaritch, the well-known antiquarian

All the county of Ross; bookseller. He was never happier than when And for other folks' feelings she don't care a toss. dancing Highland reels arrayed in the war-paint O, that dowager gaunt and grim, of his clan,

Osgood bowed to her slightest whim :

He may love his young wife, Married in 1879 to Miss Frances Annesley

But the whole of his life Voysey, a daughter of the Rev. Charles Voysey, That masterful matron managed him ; he had a family of two, a son and a daughter.

And everyone saw,
In 1894 he succeeded to the estate of Milton How poor little Minna was under the claw

With pity and awe,
Brodie in Morayshire, and resided there of a most reprehensible mother-in-law.
whenever his engagements permitted. He was
a Deputy-Lieutenant and Justice of the Peace
of that county. In politics he ever Osgood and Minna a-visiting went ;
consistently Conservative.

In the calm, bright days, ere the autumn was spent ;

For a fortnight or more,

They stayed at Braemore,

A place where young Osgood had oft been before.
THE MACKENZIE CASE.

But they had to pack

Up their goods in a crack,

Though the lift grew dark, and the clouds rolled blackOsgood Mackenzie a-courting would go,

For the dowager ordered Osgood back.
Heigho!

Young men do so,
Whether his mother would let him or no:

Alas! for fair Minna-the wind blew cold,
And it's O, but the dowager looked right glum,

The lightning flashed, and the thunder rolled.
She's got Master Osgood well under her thumb;

Deep was the ud,
Should he go or come

The rivers in flood,
Without asking his “

And the roads impassable, so they were told;
There'll be ructions whioh you might consider as rum.

In a farm-cart-Good lack !

Up a rough hill-track,

With the luggage piled in a tottery stack,
To the county of Ross

And poor little Minna must walk beside,
Came the fair Minna Moss,

A pitiful plight for a three months' bride,
The sweetest young moss-rose you ere oame across,

Mid the elements din, And Osgood's heart was an absolute loss

Drenched to the skin ;

a

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was

I.

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mum

II.

the liberty of the subject further than its clearly SOME LICENSING PROBLEMS.

expressed intention. In the first place, it is an By J. R. HALDANE, M.A., LL.B., Advocate, even greater infraction of that liberty to restrict Sheriff-Substitute, Stornoway.

his facilities for obtaining his supplies in the I.

quantities which are more convenient for him, WHOLESALE THE

TRAFFICKER.

which the legislature by these statutes clearly inThe denuding of areas of licensed premises tended to do; and, in the second place, the corpus under a No-Licence Resolution has disclosed the of the jurisdiction which the legislature clearly presence of persons who hold Excise Wholesale intended to confer on the Justices (this control of Dealer's Licences and who claim to be entitled sales to the public) resides the more obviously in to sell to all and sundry provided only they do sales to the public for consumption the larger not sell in less than the quantities authorised the quantities are which are sold at one time. by their Excise Licence. In this way what is This corpus would not be whittled away

without claimed to be a legalised method of evasion of clearly expressed intention of the legislature to the Licensing Laws is set up through the instru- do so. The effect of the No-Licence legislation

mentality of persons who held, or were astute in altering the convenience of the facilities for enough to obtain, Excise Wholesale Dealer's the public cannot affect this matter, because the Licences the necessary twelve months before Licensing legislation concerned was passed prior the poll. The Excise authorities are forbidden to the No-Licence legislation, and the latter to grant or renew such licences to any other enacts no change whatever in the statutory parties within a No-Licence Area without the provisions dealing with the matter. The law consent of the Licensing Court (Temperance which would apply to the matter in a No(Scotland) Act, 1913, section 15 (c)). The legal Licence Area would equally apply in any problems raised by this kind of trade are in no other area. way peculiar to No-Licence Areas. They apply The enactment which primarily regulates the equally to any place. No-Licence merely matter is section 65 of the Licensing (Scotland) happens to be the agency which has made the Act, 1903, though section 66 also deals with it problem one of especial practical importance. so far as sales of spirits are concerned. As there As the bulk of the consuming public are unable are peculiarities about section 66, however, it in a No-Licence Area to obtain their require will be more convenient to deal with it separately ments in the small quantities which are con- later. Section 65 provides that “ Every person venient for them they very naturally club trafficking in any exciseable liquors in any place together and buy them in the “wholesale"

or premises without a certificate to him in that quantities which such traders offer, and then behalf granted, according to the provisions of this distribute them among themselves in convenient Act, shall, upon his being convicted thereof, quantities. Is such a traffic legal under the as hereinafter mentioned, forfeit and pay” the Licensing Acts ?

penalties specified. The "Certificate," of Prima facie it seems unlikely that a juris- course, is the Certificate granted by the Justices' diction established in the Justices for the Licensing Court to keep a Hotel or Public House restraint of abuses in the consumption of or Grocer's business in which spirits, wine, alcoholic liquor by controlling its sale to the porter, ale, beer, etc., are sold (see sections 11 public should be so limited as to exclude from and 107). Now, the first thing to note is that its scope such sales to the public if only the the offence is in no way affected (either by this quantity sold at one time is big enough. Prima section or by any other part of the Act) by the facie, the larger the quantities in which it is possession or otherwise of an Excise Licence. sold for consumption the greater the need for Granted that the person is “trafficking," what such control. As it is abundantly clear from constitutes the offence is the failure to hold a the Licensing Statutes that the conferring of Justices' Certificate. That he may hold an this power of control on the Justices is the Excise Licence is quite irrelevant to the commain object of the Licensing Acts (i.e. the mission of the offence under the Licensing Acts. Licensing (Scotland) Act, 1903, and the If a person is not "trafficking” within the Temperance (Scotland) Act, 1913), as distinct meaning of the Licensing Acts, he is equally not from the Excise and Revenue Acts, the trafficking " although he possesses no Excise Licensing Acts would fall be inter- Licence. He may be prosecuted under preted in case of dubiety (according to the Revenue and Excise Acts for trading without ordinary rule for the interpretation of statutes) paying the appropriate Excise Duty by purin such a way as to give effect to this intention chasing the appropriate Excise Licence, but he of the legislature. This consideration would cannot be punished under the Licensing Acts negative, in regard to this matter, that other for carrying on the trade; (unless, indeed, he rule of interpretation that in dubio the legis- resorts to methods which are punishable under lature is not to be presumed to intend to limit the Licensing Act irrespectively of “trafficking "

66

or of the possession of a Certificate or a Licence, be an ordinary retail purchase; but to the dockfor example by “hawking," under section labourer's tobacconist it may appear to be a 67). If it is a relevant defence, therefore, wholesale ” one, and still more to the street to a prosecution under this section to say that vendor of matches. A case of whisky may be the class of business carried on is one which is for you an ordinary “retail” purchase, but to authorised by an Excise Wholesale Dealer's the artisan's publican it might be pre-eminently Licence held by the accused, it would be equally a "wholesale" one. What, then, constitutes relevant to prove that the business is of the bulk” ? Clearly it depends on the circumsame class even although the accused does not stances of each case. The only criterion would actually hold any Excise Licence. The result appear to be that sales in the quantities which, would be that the Justices' jurisdiction would in the particular class of business, are usually be limited by a classification of trades intro- sold to the general public for consumption are duced into Revenue and Excise Acts for the retail," and those which, in the particular purpose of graduating the duties payable on class of business are usually sold to the trade in different classes of business. Parliament might the ordinary course of business, for re-sale, are at any time alter those duties by changing the wholesale," and "bulk," in this connection, classification of the businesses, for the sole simply means the normal unit of such wholepurpose of increasing or reducing the revenue sale" transactions. Which leads us back to or of facilitating its collection, for instance,“ sale to the general public for consumption and thus by a fortuitous side-wind the juris- as the only ultimate criterion of what is sale by diction of the Justices might be whittled away

“ retail.” or increased. It is not to be presumed in Before considering whether the Licensing Act dubio that this was the intention of the contains any indications of an intention to more legislature, not only because it would be closely define “retail,” it will be convenient to to limit the right conferred on the Justices in inquire whether it contains any indications of one statute by the provisions of other legis- meaning by the term, not its ordinary sense, lation enacted for an entirely different purpose, but some arbitrary, artificial meaning. The but because, the other legislation being con-only such interpretation for which there is any tained in Money Acts, the legislating authority suggestion in the Act is that claimed by the would be differently constituted.

wholesale" retailers, namely, that it has the What does “trafficking " in this same meaning as in Excise Licences. These section ? It is defined in section 107 thus : Licences are now granted under the authority “The expression trafficking' shall mean and of the Finance (1909-10) Act, 1910. That Act include bartering, selling, dealing in, trading in, itself contains no definition of the terms exposing, or offering for sale by retail.” In the retail wholesale" as used in it; there case under consideration, therefore, the question can be little doubt, however, that they mean in turns on the meaning of

by retail." Now, that Act what they mean in the forms of retail is nowhere defined in the Act. Licences given in the First Schedule to the Act. According to the ordinary canon of construction Any other interpretation would give to the of Acts of Parliament, therefore, it is to be penalty clause (section 50) the effect of regulainterpreted in its ordinary popular meaning ting the conduct of business in the Licensed unless there is a clear indication in the Act Trade, by forcing wholesale traders and retail itself of some other intention. In ordinary traders respectively to confine their business parlance retail ” is the counterpart of“ whole- strictly within the limits, as to the quantities sale.” The term “ wholesale ” is also used in sold in any one transaction, prescribed in the the Act, very significantly, as we shall notice ; forms given in that schedule. No one, for but it also is left undefined. In popular par- instance, could sell to the consumer more than lance retail” means small quantities," and two gallons of whisky at a time even though wholesale "

means “large quantities. But he had both a Wholesale Dealer's and a Retailer's how are you to determine what is a “small” Licence. Under his Retailer's Licence it would and what a “large ” quantity ? For purposes be unauthorised because of its quantity; and of sale by retail,“ retail " is usually defined as under section 50 it would be prohibited, meaning" breaking bulk"; but that does not being a retail transaction (a sale to the concarry us much further, for what is "bulk”? A sumer), not authorised by his

by his Retailer's ship-load of Ford cars may be a sale in bulk, but Licence. It is not to be presumed that the how few are required to constitute a retail sale ? Legislature intended in a Finance Act to so A crate containing a gross of dozen-packets of interfere in the internal organisation of an matches may be clearly “bulk," but is a sale industry. There would appear little doubt, of one packet containing a dozen boxes a therefore, that the Finance Act merely intends wholesale

retail transaction ? To to classify sales for the purpose of grading the the middle-class smoker's tobacconist it may duty to be charged, and that“ wholesale " and

mean

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66

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66

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“retail” in that Act consequently have the fore, equally well bear the interpretation that artificial, specialised meaning fixed by the the legislature intended to absolutely prohibit classification effected by the respective classes all sales of liquor by retail (in the popular sense of Excise Licence specified in the Schedule. -to the public, for consumption), except those

) In any case, it would probably suit the“ whole- in the limited quantities allowed by an Excise sale retailers' case equally well to refer to Retailer's Licence (namely, not more than two the Schedule alone for the meaning of the terms gallons of spirits and wines, etc., or four and a as used in the Licensing Act, because neither the half gallons of beer or cider, at one time (see Finance Act in force at its date (1903), nor any Schedule 1 of Finance Act)). And there is no other Revenue or Excise Act is referred to in reason, such as applies to the Finance Act, the provisions on which they would rely,. why the legislature should be presumed not to but only

excise licences.” What are these have so intended in this Licensing Act whose provisions ?

very object is to regulate the conduct of “ The Section 11 of the Licensing Act, 1903, provides Trade” (see, for instance, section 42—control

, that it shall be lawful” for the Justices' over structure of premises). If section 65, howLicensing Court “ to grant certificates . . . to ever, admits of any ambiguity, the considerations such and so many persons as the court then noticed at the outset would determine the assembled shall think meet and convenient, matter in favour of the popular meaning of to keep inns and hotels or public-houses, within “retail,” in section 65 at any rate, thus renderwhich exciseable liquors may, under excise ing the Wholesale Excise Licence-holders' sales licences, be sold by retail, to be drunk or con- to the public for consumption an offence under sumed in the premises. Does the phrase section 65. "under excise licences” modify the expression As this limiting interpretation of “ by retail " by retail,” or is it merely a saving proviso in section 11, however, would thus have the effect introduced to prevent the section being inter- of limiting both the powers of the Licensing Court preted as enabling the possession of a Certificate and the classes of business which are permissible to be pleaded as a sufficient answer to a prose- to “ The Trade,” it is worth scrutinising it further. cution under the Excise Acts for trading without It is to be noted that this interpretation of by an Excise Licence ? At first sight the phrase retail,” occurring in section 11 as limited to its " to be drunk or consumed in the premises " Excise meaning, would mean that the jurisdiction might appear to confirm the view that the of the Justices' Licensing Court is limited to the phrase explains the meaning of "by retail” mere granting of Certificates of permission to by reference to Excise Licences. The Excise obtain Retailers' Excise Licences. Now, there Licence which permits sale in the premises is is no reason why such a Court should not be set the “On-Licence," and this Licence also per- up to administer Revenue Legislation, but, if mits sale for consumption off the premises (see it were, one would expect to find the statutory. the First Schedule of the Finance (1909-10) Act, regulations about it embodied in the Revenue 1910). It might be thought, therefore, that the and Excise Acts concerned instead of in a intention was to make the Certificate necessarily separate Temperance Act, or at least to find confer authority on the holder to obtain either in the Act setting it up some reference to the On

Off” Excise Licence accord- Revenue and Excise legislation to which its ing to his choice, as otherwise the Licensing functions relate. But, from beginning to end Bench might entirely prohibit sale for con- of the Licensing Act, there is no reference to that sumption on the premises by giving authority legislation except (1) in clauses (such as those only to obtain an Excise Retailer's Off-Licence. in Part II. of the Act) where, although that The phrase "to be drunk or consumed in legislation is not expressly referred to, the the premises ” might appear to be otherwise machinery of the Excise Department is called unnecessary and meaningless, as “inn and in aid, not to assist in any way in the enforcehotel” and “public-house” necessarily imply ment of any Revenue or Excise legislation or in any case a place where the refreshments sold licensing system, but to assist in the administramay be consumed on the premises—they are tion and enforcement of the system of certifimeaningless otherwise (see also express defini- cating under the Licensing Act itself; and (2) tion of “public-house in this sense in the here, in section 65, it is enacted that the definition clause, section 107). On the other penalties enacted for “trafficking " without a hand, granted that this section (11) were in- Justices' Certificate “ shall be over and above any tended to bear this construction, it does not penalty which such person so convicted may have follow that the meaning of “trafficking "in incurred or paid, or be liable to pay, for or by section 65 is to bear the same limitation. The reason of such trafficking under any Act relating definition of "trafficking " in section 107 con- to Inland Revenue or Excise," a provision which tains no reference to Excise Licences, but only in itself implies that this Act does not relate to to “ retail” de plano. Section 65 may, there- Revenue or Excise, and that it constitutes an

n

an

or an