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entirely separate code of legislation from such Revenue or Excise Acts; and (3) the Licence Duty payable by grocers is referred to in a saving clause (now repealed by the Finance Act of 1910) in section 11. Apart from the incidental references to Excise Licences specifically dealt with in this article, these are the only references in this lengthy Act to any Excise matters. Moreover, the whole scope of the Licensing Act gives no countenance to such a view. While offences against the Licensing Act may indirectly involve forfeiture of an Excise Licence (see, for instance, sections 43, 46, 53, and 100), there is no reference in the whole Act (except the saving clause in section 65, quoted above) to any offence against any Revenue or Excise Act or any Excise Licence. In the forms of Certificates themselves (in the Second Schedule to the Act) there is no reference to "retail," either as regards the sales allowed or as regards the kind of Excise Licence which is to be also taken out. Moreover, even if the Certificate-holder fails to take out any Excise Licence, that neither invalidates the permission to trade given by the Certificate nor involves any punishment under the Licensing Acts. The direction to obtain an Excise Licence is included among the mere provisos or conditions of the Certificate, failure to observe which does not involve invalidity of the Certificate, but only the imposition of a penalty under section 53 (which may, in the discretion of the convicting Court, include forfeiture of the Certificate as a punishment); but, owing to the terms of section 53 (which will be discussed later) failure to take out an Excise Licence does not even involve any punishment, under the Licensing Act. It is left to the Excise authorities to deal with by means of an Excise penalty (now under section 50 of the Finance Act of 1920). In this connection, it is relevant to note that in some of the earlier Excise Acts, now repealed by the 1910 Finance Act, some of the duties were expressed to be imposed in respect of the possession of a Justices' Certificate (see, for instance, 6 Geo. IV. cap. 81, section 2; and 16 & 17 Vict. cap. 67, section 8), thus making the Excise Licence a charge on the Justices' Certificate, rather than making the Certificate a mere administrative step in the obtaining of an Excise Licence.
Excise Acts, impose no limitations on the class of premises in which liquor may be sold by retail, or sold at all. If, on the other hand, the phrase "under excise licences" is read as being a mere saving clause, as indicated above, to preserve the full effect of the Excise legislation in regard to the sale of liquor, every part of the section receives a full and significant meaning. The section then means that the Licensing Court must judicially exercise a discretion as to how many and what kind of Certificates for sale by retail they will grant, and what conditions they will insert in these permits (the necessity of exercising judicially this discretion has been affirmed in a series of decisions); but they may not limit sales to those for consumption off the premises. Every such Certificate shall, ipso jure, permit sale on the premises (and there is nothing in the whole Act to prevent sale off the premises provided the seller holds a Certificate); but this permission to sell is not to affect the necessity of taking out any Excise Licence which may be required for the particular class of business carried on in the premises. Having exercised this discretion they then have conferred on them, by a proviso at the end of the section, another discretion, to be similarly exercised, as to the granting of Grocer's Certificates; but in this instance they are not allowed to permit consumption on the premises. The object of the somewhat clumsy form of the section is thus to prevent the Licensing Court confining sales to grocers' shops on the one hand, or to sales for consumption off the premises on the other. They must not so limit the liquor trade, on the one hand; and, on the other hand, their jurisdiction is unlimited over all sales by retail in the popular sense of the term-that is, sales to the public for consumption. This interpretation of the section is perfectly consistent, and in full harmony, with every other provision of the Act.
Apart from section 11, there are only three other phrases in the Act which might suggest that "retail," as used throughout the Act, means the same as in Excise Licences instead of its ordinary everyday meaning. The first is in section 36, which enacts: 'No such certificate as aforesaid shall entitle any person to keep an inn and hotel, or public-house, or to obtain AN EXCISE LICENCE FOR SELLING EXCISEABLE LIQUORS, BY RETAIL, to be drunk or consumed in any other house or premises than the house and premises specified in such certificate." Here it is clear that the words "by retail" qualify the word "selling," which again relates to the "excise licence," and this suggests that it is only a Retailer's Excise Licence which a Certificate holder would ever require to possess in order to get the full benefit of his Certificate. The meaning and object of
"retail occurs in
ing of "retail in both. This expression
In any other cases where the word "retail occurs in the Act it is unaccompanied by any reference to Excise matters, except in Part II. which makes the necessary modifications of the Excise code, on the one hand to prevent it being used to assist evasions of the system of Certificating under the Licensing Act, and on the other hand to utilise its machinery for the more effective enforcement of that system. The corollary of this is particularly significant, namely, that in no instance where the matter is referred to in the Act is there any indication that the Excise Licence required to be taken out by a Certificate-holder must be a "Retailer's one, or of one denomination rather than another, or that a Retailer's one will suffice.
this section, however, are clear. Without such places where the word
It appears clear, therefore, that there is no
in the words bona fide as applied to "wholesale" business. There could be no question of bona fides. If the quantities sold were in fact above the amounts held to be retail they would be "wholesale," and the business would be a "wholesale one." The expression, therefore, would appear to have reference to whether the business is genuinely one with other traders in the ordinary course of trade, or is one with the consuming public. This interpretation receives added weight from the fact that the expression quoted is made by that clause the criterion of whether or not bye-laws as to the kind of vessel in which the liquor is to be sold by grocers are to apply to the particular premises. If they answer that definition, the bye-laws do not apply. The kind of containing-vessel does not matter in mere bona fide inter-trade transactions, and it would be unnecessarily vexatious to impose such restrictions on a grocer carrying on a wholesale business as well as a retail one. This is the only occasion where the word "wholesale occurs in the Act (apart from a reference to "excise wholesale licenses" in the rubric to section 46, in Part II. of the Act) and it is presumably intended to mean the exact counterpart of " retail."
There has been no decision of the Court which affects this problem; but there are two decisions of the English Courts which must be noticed, as at first sight they appear to be relevant and contrary to the opinion here expressed. In the cases of Fairclough v. Roberts (1890, 24 Q.B.D. 350) and R. v. Jenkins (1891, 61 L.J.M.C. 57) the question of the meaning of "sale by retail" in the English Licensing Acts, 1872-74, arose; but section 74 of the 1872 Act defined the term as "sale in such quantities as is declared to be retail by any Acts relating to the sale of intoxicating liquors," and the Beerhouse Act, 1834, defined sale by "retail" in the same sense as is apparently the intention of the Act which now regulates the matter quoad the Excise (viz. the Finance (1909-10) Act, 1910). It was in respect of these definitions that it was held in both cases that sales in quantities above the Excise "retail" limits not retail sales under these English Licensing Acts; but, of course, these decisions can afford no help in interpreting the Scottish Licensing Act, which contains no such definition, apart from other specialities of the Scottish Licensing system and law. It is significant, however, that in one of these cases a judicial opinion was expressed regretting the necessity for so deciding, and that, had there been no such definition in the English Licensing Acts, retail" would have meant in them the meaning ascribed to it under the Licensing (Scotland) Act by this article. There is, however, one decision of the English Chancery Court which
supports the view as to the prima facie meaning of the expression "retail" sale expressed in this article—that is, its ordinary meaning. In Treacher & Co. Ltd. v. Treacher (1874, W.N. 4) the question was as to the interpretation of an agreement by a former employee not to trade in wines, spirits, beer, etc., so far as the same may be considered retail. It was held (per Bacon, Vice-Chancellor) that, "As a general rule, wholesale merchants dealt only with persons who bought to sell again, whilst retail' merchants dealt with consumers. The former employee sold to consumers, and therefore decree was given against him.
On the whole matter, therefore, there appears to be little doubt that a person who in Scotland sells exciseable liquors direct to the consuming public without holding a Justices' Certificate is committing the offence of "trafficking" under section 65 of the Licensing (Scotland) Act, 1903, and that it would be no defence to a prosecution under that section that his sales were confined to the quantities authorised in an Excise Wholesale Dealer's Licence, whether he actually possessed such an Excise Licence or not.
The present would seem rather an opportune time for offering some observations on this functionary, who perhaps fills the most honoured of all our elective offices. From Land's End to remote Shetland the country has gone through another General Election with all its anxieties and excitements, its triumphs and disappointments. Reflecting on the earliest methods when the King in effect said, Select your ablest men and send them to us that we may consider together and devise what is best in the interests of the State," and the Witenagemote or Council of Wise Men was constituted, one is indeed struck with the rude clamour and contentions of modern methods, and with the formidable statutes which have been deemed essential to safeguard the electorate against bribery, corruption, and other enormities. The budding M.P. has, at the very outset and before he attains the coveted honour, to be on his guard against infringements of the law by himself personally as well as by his agents, fines being the penalty for some delinquencies, while the nullification of the elections is the terrible result in others. Still there has been no lack of candidates; for
payment of members," so loudly clamoured for by the Chartists of 1840, was conceded in 1911, and it would be idle to suppose that the £400 a year is not a powerful incentive. Prior to 1911 there was, it is true, never any lack of
public-spirited men who were prepared to give their services gratis, but the multiplication of candidates with diverse political views is no doubt partly accounted for by the pecuniary inducement.
In addition to the salary-which in these days is not to be despised-there is often, it is believed, pecuniary value in the dignity attaching to the office. For Members of Parliament are generally regarded as responsible men and their services are in request as directors on company boards. Members also have a certain freedom from arrest, the period extending" for forty days after prorogation and forty days before the next appointed meeting, but prorogations are so arranged as to ensure a continuance of the privilege." This does not extend to criminal or quasi-criminal offences. Members also are exempted from serving on juries. Altogether the appointment is a desideratum in many respects.
Assuming that the candidate for parliamentary honours has been successful and has kept clear of the many pitfalls which beset him through deliberate mishandling of electoral machinery, or through inadvertence, and can write the magic letters after his name, the true question is, How is he to conduct himself in Parliament? Not surely in the interest of himself or his party, but rather as will best further the true interests of his country. If that ideal were striven to be realised, the State and people would immeasurably benefit. Yet one reads with mixed feelings how a famous writer referred to the Members of Parliament of his day as "talking asses" and suggested their being cleared out (as were the members in Cromwell's time) and the House of Commons locked up. It was a drastic judgment, but it contained a solemn truth that more honest parliamentary work might have been accomplished had there been less speechifying. It does not follow that because a member is a fluent speaker—an orator even-he is of greater service to his country than another less gifted, but who has more insight and discrimination. The Commons are our real legislators, but, in recent times, it is not clear that their work has been free from blunders or otherwise unexceptionable.
The making of the country's laws is a crowning honour, but to the novice, who takes his seat for the first time, it may not probably be permitted to assist much in the adjustment of statutes. But if he is tractable, experience will teach him. To the legal profession throughout Scotland it has long been patent that a vicious system prevails in the preparation and adjustment of Scottish Acts, and several points may be briefly noted.
1. Of late years there has been an increasing
tendency on the part of the Legislature (or their Bill draughtsmen) to take a statute applicable to England and engraft upon or into it provisions applicable to Scotland. The laws and customs of the countries are in many respects dissimilar, yet this is not always taken into account, and the measures so issued are hybrid and cumbersome, and to Scots practitioners often puzzling and obscure. The Rents Restriction Acts have only to be mentioned in this connection to prove the utter stupidity of the system. As laws are made to be obeyed and not broken, they should be framed so that he that runs may read " and be enlightened. But far from that being the case, the authorities at headquarters themselves apparently considered that something more was needed than the bare promulgation of those Acts as they issued an explanatory abstract which happily was helpful. Further, as shewing the necessity for more or less continuous exposition, attention has only to be called to the laudable efforts to clear up. difficulties put forth by some of our daily newspapers. Some, indeed, have gone the length of making a specialty of answering by a skilled writer all sorts of enquiries, conundrums even, arising out of these Restriction Acts, so abstruse and 'unintelligible have these been found.
2. The quality of perspicuity is sadly lacking in other recent statutes. Mention has only to be made of the annual statutes passed for Revenue purposes to establish this proposition. One would have thought that those Acts, which are to tax-I had nearly written oppress-the public, would have been couched in clear and pellucid language capable of being readily understood by the common people. Not a bit of it. They invariably run to many sections, and these again have sometimes a dozen subsections which are further split up into subordinate heads, followed by provisos of the most varying and qualifying character, that a Solon or Solomon would be needed to expiscate the sense which lies, or is supposed to lie, in the enactment. It is all most crude and vexatious, while everything ought to be plain and easily apprehended.
3. Then the practical results are so deplorable. It was long matter of jest that any clever lawyer could drive a carriage and six through any Act of Parliament, meaning that he could twist it any way to suit his case. Far from being a jest now, that pithy, if exaggerated, saying has become an actuality, for no one exactly knows what is intended by parts of the Acts until these have been subjected to judicial acumen and determination. Then the inevitable happens: judges differ and the discussion rages from Court to Court, till at the last it is seen that a remedial statute is needed
to rectify the initial blundering. Think of the worry and the expense of it all to the general public: it is enough to make a hero weep!
In this department of parliamentary business alone, therefore, and it is of paramount importance, there is abundant opportunity for willing and capable members to do the country real and conspicuous service. It may be that few have the special aptitude or knowledge required for the actual and brainy work itself, but then there are the law officers and their assistants who are paid (too highly paid, some think) to see the work skilfully done, and it is up to the ordinary member to urge upon those competent and responsible to make the English at least clear, simple, and intelligible. Why it should be thought necessary still to formulate our laws in a jargon of the early Georgian period is a mystery. One member cannot of course do much, but a compact number united in a fervent desire for the simplification of our statute law would soon create an atmosphere impossible to ignore, and bring about a much-needed as well as a permanent and beneficent improvement in legislation. Such an organised body, now that there are at least a hundred lawyers in the House, is surely not a hopeless ambition, and as members are paid and privileged as already commented on, they should do something to prove themselves worthy of their trust and their remuneration.
D. M. G.
SHERIFF PRINCIPAL M'CLURE, K.C., has granted commissions as Honorary Sheriff-Substitutes to Mr Charles Gordon Masson, solicitor, Peterhead, and Provost Christie, Huntly, for the Peterhead and Huntly districts respectively.
MR STODART M'LAREN CHRYSTALL, M.A., B.L., who has died at his residence, 96 Fountainhall Road, Aberdeen, after a prolonged illness, was the second son of the late Rev. A. J. Chrystall, Newhills United Free Church, near Aberdeen. Born at Auchterloss forty-five years ago, and educated at Aberdeen Grammar School, Mr Chrystall proceeded to Aberdeen University, where he took his M.A. degree in 1903 and his B.L. degree the same year.
WE regret to record the death of Sir Richard Muir, one of the best-known figures in legal circles, who had been senior Treasury counsel at the Central Criminal Court, London, since 1908.
Sir Richard Muir, who was the son of the late Mr Richard Muir of Greenock, and who was born in 1857, first adopted journalism as a career after finishing his education at King's College, London, and was engaged on the
Press Gallery staff of the "Times" at the House of Commons. He was called to the Bar when he was twenty-seven, and later became a counsel to the Treasury at the North London Sessions. Subsequently he was appointed a junior counsel to the Treasury at the Old Bailey, receiving promotion twenty-three years ago to be a senior counsel of the Treasury. He received his knighthood in 1918. He had been a bencher of the Middle Temple for fourteen years, and had held the Recordership of Colchester since 1911.
LET FOR THE PURPOSE OF VIEWING A PROCESSION -FINANCE (NEW DUTIES) ACT, 1916 (6 GEO. V. CAP. 11), SECTION 1 (2)-FINANCE ACT, 1922 (12 & 13 GEO. V. CAP. 17), SECTION 11 (A).-The respondent let for payment to one W. V. a window in the George Hotel, in Friargate, Preston, for the period of the Guild Week from 3rd to 9th September 1922 for the purpose of viewing processions in connection with that week. Held that the respondent was liable to conviction for non-payment of entertainments duty as the room and window were a place of entertainment" within the meaning of the Finance (New Duties) Act, 1916, section 1 (2).K.B. Div. (Lord Hewart C.J., Sankey and Salter JJ.).-2nd November 1923.
Edell v. Dulieu.
HOLDING— -CONTRACT OF TENANCY-NOTICE TO QUIT—AGRICULTURAL HOLDINGS ACT, 1908 (8 EDW. VII. CAP. 28), SECTION 48-AGRICULTURE ACT, 1920 (10 & 11 GEO. V. CAP. 76), SECTIONS 13 AND 28.-The plaintiffs were the owners of a farm which they demised to the defendant for a term of either seven, fourteen, or twenty-one years. By clause 15 of the lease it was provided that should either party wish to put an end to the demise at the end of seven or fourteen years, they or he might do so upon giving six months' notice in writing. The plaintiffs wished to determine the lease at the end of the first seven years, and accordingly gave notice in writing to that effect. The notice was dated 15th February 1922, and the date to which it referred was 29th September 1922, which was slightly more than the six months'