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The Pamphlet Collection of Sir Robert Stout: Volume 64

Has the Publican any Claim to Compensation — For the Loss of his License under Local Option?

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Has the Publican any Claim to Compensation

For the Loss of his License under Local Option?

As I did not hear Dr. Wallis's address on this subject, I can make no pretence of replying to it; but I am led to think that it failed, where all attempts to jastify compensation do fail, so far as I have been able to see—viz., in giving no answer to two questions: For what specifically is compensation to be given? And who is to give it? It is no answer to the first, to say—Compensation is to be given for the loss of the license, unless you show some particular injury [unclear: r] injustice that is done to the man from whom you lake it; and that it was [unclear: t] in his power to avoid that injury or injustice. Numbers of people have things taken from them, directly or indirectly, for the loss of which they would never dream of asking compensation. I take from a man the property I have lent or hired out to him, and which he has turned to great profit to himself, because I am not satisfied with his use of it. I take away the liberty I have given him to shoot over my grounds, on which he has reared a lucrative trade in game, because I find he is doing mischief. Would anyone presume to ask me to give him compensation'! Certainly not; unless I had explicitly guaranteed to him continued possession; or had inflicted on him some injury that he could not avoid over and above the discontinuance of the privilege and its fruits.

It is no answer to the second question, to say—He should be compensated out of the public revenue. Whose is the public revenue? Have the owners of it been instrumental in any way in injuring the publican? Perhaps half of them have never consented to there being any publican; perhaps a great number of them have strongly protested against it. Why take their money? Many people have exceedingly loose notions about public revenue; as though it belonged to no one, and might be used for any purpose; whence come many of the greatest calamities that befall nations. The public revenue should be used with more rigid conscientiousness than any private income. A gentleman said to me the other day: "I know the publicans have no real claim in justice, but it would be worthwhile, and it's the easiest and cheapest way, to buy them all out, and have done with it." To this I most seriously demur. It is never worth while to do wrong. Though it sometimes looks easy to do a little wrong, and secure a little right, it rarely turns out easy, and never cheap. To take public revenue for what it was not given, and without the owner's consent, is misappropriation—which is just a milder term for robbery; and, in the end, is neither easy nor cheap.

I am wishing, therefore, to enquire into the grounds of compensation; page 2 and shall be truly glad if anyone, whatever view he may take, can help to throw any light on so important a question; which, it may be assumed, we should all wish to see settled in an indisputable manner.

There are three kinds of right or justice; and if compensation is right, it must fall under one of three, for there is no other. There is natural right between man and man; that is, what any man, as a man, owes to or may claim from any other man, as a man. There is social or legal right; founded on the consent, expressed or tacit of the many; growing out of the social structure, which is continually being more completely evolved. And there is the higher, moral, or Christian right; founded on true benevolence, or the second great command. These, I think, cover the whole ground; or, if not, I should be glad if anyone would tell us of any other right; or point out anything erroneous in thus defining the ground. If we want to know whether a thing is right, it is of the first importance to commence the enquiry with a clear conception of all that is involved in the term "right." A man clearly has a right to his just debts, to common esteem from his fellowman, that he may be treated as a man; to such freedom as does not infringe on another's freedom, so that he may act as a man—he has a right to all this, on the simple ground of his humanity. He has a right to that which the social condition justifies him in expecting, as a member of society, or a citizen. And he has a right to share in that goodwill which the highest law of reciproca love makes every man's duty. If a publican who loses his license has any claim to compensation, such claim must come under one of these definitions of right. This point should be here perfectly settled.

I. What then is the natural right or justice of the case?

There are two species of property to which every man has a natural right and which you ought not to take from him without adequate' compensation (1) Accumulated property, including all that a man has saved out of his industry, in any form whatever; and all that has been given to him by those having a right to give it. He has no right to what he has stolen, or what some one else has stolen and given to him. He has no natural right to that subtle kind of property, which has been termed the "unearned increment;" because that entirely depends on society, and, if any at all, must be a social or legal right. The property he can naturally claim must have come to him justly by industry or by gift. (2) The other species of property—the term property may appear singular, but is justifiable, as the only appropriate term—to which he has a natural right, is the free use of all his powers, without detriment to others, and the enjoyment of their fruits. It is wrong to prevent any man from cultivating all his faculties, and turning them to the very best advantage, supposing always that he injures no one else. I wish I could know whether any one claims any other right on natural grounds; for I have not been able to discover any, not included in these. It needs great care all through, to see precisely on what ground we can stand.

Any violation of these rights would form good ground for a claim to compensation.

Are they violated in the case we are considering?

When you take away the publican's license, do you touch his accumulated capital? Do you touch any of the enormous profits he has made? Do you touch any of his material, in building, or in anything else? Not that I can see. What you do is, to say that he shall no longer use it in one particular way, because that way of using it is found to be ruinous to public morality. Now, no man can have a natural right to use any of his property in such a page 3 any-being an injury to others. You would be wrong in depriving him of Ins property, but not in forbidding that injurious use of it. Just as a man has a right so to use his fire-arms as to endanger the lives of his neighbours—and you very properly prohibit his doing so. Suppose he were to say—by this [unclear: ibition] you cut off one source of my revenue—for it is thus I test their [unclear: ength] and efficiency—and I claim compensation. You would simply smile of his claim. You would say to him—it is your business to find out some [unclear: er] way of using them; but whether you do or not, whether you can or not, [unclear: ea] must not be allowed to endanger your neighbour's lives. What society [unclear: r] the law might say to such a claim we shall consider by-and-by. To es-[unclear: lish] any such claim on grounds of natural right is utterly impossible. All that he has a natural right to is there untouched, and he can have no natural [unclear: gth] to any use of it that is fatal or pernicious to others. It cannot be too [unclear: en] repeated, as lucidly evident, that before you can establish a claim to [unclear: pensation,] you must show that some right has been violated.

Though it is not essential to the argument, it strengthens it, that even if any claim were allowed, it would be impossible justly to estimate it. For you would have to find out all other uses to which that property could be put, and [unclear: eir] values, and by comparison, to strike the balance, before you could [unclear: ive] at a fair result A manifestly impossible thing.

Or do you interfere with the man's exercise of his powers and energies? I should readily grant that any such infringement of his natural rights would [unclear: m] an indisputable ground for compensation, since there is no natural right so perfectly beyond question, as that of the use of all one's powers, for the great ends of life—always under the condition, without injury to others. [unclear: ppose] then, a man has spent time, labour, and money in the cultivation of his powers, in the attainment of special aptitude for any calling, being both [unclear: itimate] and not injurious to others; and suppose that then, on grounds of public (or private) ability, he is forbidden to exercise that power or skill, the [unclear: rce] whence that prohibition proceeds is certainly bound to render compen-[unclear: ation.] No doubt this feeling is in the minds of many; and is, I think, bet-[unclear: en] founded than any other. In some few cases it may be well founded. I should be quite prepared to admit it, exceptionally, so far as providing some [unclear: her] opening. As, for instance, in the case of poor widows and worn-out [unclear: repits.] But then this is purely exceptional, and must be so treated; not in the very least degree touching the general question.

On the general question it has to be considered that no special training a required by the publican; that in no calling is there less exercise of any powers, either bodily or mental—which accounts for the fact, that those who [unclear: l] in anything (or everything) else take to this; that any powers employed in this could be better employed otherwise; that in taking away the license you leave untouched the best part of his calling as hotel-keeper; that if he was ever fit for anything else, he ought to be just as fit for it now, and if not it for anything else, then his proper place is some refuge for the destitute.

But, even beyond this—very much so—it may be said, without fear of [unclear: tradiction] (it has repeatedly been said by many of those who are best able to judge, publicans themselves) that any other exercise of a man's powers would be preferable, better for the man himself, but for the single circum-[unclear: nce,] that no other offers such facilities for making great and rapid gains, with very little labour.

It is impossible to substantiate any natural right to the "good-will" of the business; for if any such right exists, it must rest on social or legal page 4 grounds, since the business depends entirely on society and the monopoly granted by law, which can never constitute natural right.

Thus, I think, we have disposed of the question of natural right, and any claim to compensation founded thereon. This is the largest and strongest part of the question, though perhaps not the most difficult, since natural right is both universal and perpetual, which, in the very nature of things, no other kind of right can be.

II. What is the Social or Legal Right? There are two distinct ways of putting this:

(1) I hardly think anyone will demur to this principle: That it is not just that law should confer any special privilege on any man, or continue him in the enjoyment of it, except on the ground of some benefit rendered by him, as an equivalent for it. This is indeed a fundamental principle of all impartial legislation, as opposed to class legislation, which is always unjust. So perfectly clear is it, that no man ever questions it, unless his self-interest conies in and gives a bias. And, without exception, the man who then questions it, will be the first stoutly to affirm it against any other claimant to be so exceptionally treated. I know there are people who seem to think that if you only put a wrong thing into a law, you make it right, and so never enquire whether the law itself is right. I do not see much use in arguing with such people; no argument ever touches them. Were they capable of seeing an argument, they would not need showing, that no law can make a wrong thing right, and no wrong law can ever originate a legal right. We are considering rights. This is of most essential importance. Because you can never establish a claim till you have found a right. You must therefore shew that the law is right in granting to the publican the special privilege of the license. This can be done on no other ground than that of some benefit rendered by him. Surely we have conic to a dead-lock in the way of compensation here. Remember, the law has no right to confer a privilege without benefit rendered. No right, no claim. Therefore no claim without benefit rendered. No man who knows what he is talking about can deny that logic. What benefit then has the publican rendered for the privilege of his license? It is useless to talk about accommodation, convenience, &c., for these now have nothing to do with the license, though they once had With all the thousands of houses of accommodation without licenses; with the small accommodation—comparatively—for the extent of the property, with license, it would be waste time to argue on that ground. The only question is, has the licensed sale of alcohol rendered any benefit? For an answer to that question I will appeal to others.

I would ask the thousands of judges, magistrates, gaolers, keepers of hospitals and asylums, superintendents of police and policemen, who have borne testimony thousands of times, that the service rendered has consisted in the production of crime, disease, insanity, and every form of human wickedness and misery. I would ask the thousands of ministers and medical men, who would answer:—the first—that it is the great source of irreligion; the second—that it prodigiously and inevitably swells their profession. I would ask innumerable philanthropists and reformers, who mournfully lament that it is the arch-enemy of all reform and of all benevolent aims. I would ask the millions of injured women and degraded children, whose bruised bodies and silent tears would with eloquent pathos implore that such services might be rendered no longer. I would appeal to the myriads of the dead, dead through drink, whose history is still vocal with page 5 [unclear: guish] and despair that found no utterance from the living lips. And [unclear: w] that from this immense crowd of witnesses would come the deep, [unclear: felt] answer—No ! The only service rendered is recorded in blood and [unclear: n] And what privilege can that justify?

I must keep the argument fast to this point. No service rendered for the privilege of monopoly that the license confers on the publican is [unclear: y] and morally unjust. Are you going to compensate a man who has un-[unclear: y] enjoyed a great commercial privilege, because you say to him—We can [unclear: ger] continue this injustice in your favour. That is neither law nor [unclear: l] equity! Both would say—The claim for compensation lies rather the [unclear: r] way.

Mr. Chamberlain, M.P. for Birmingham, uses the following language in [unclear: nce] to the Irish Landlords: "I cannot conceive that they have any [unclear: to] claim compensation for restriction and limitation of powers which [unclear: ought] never to have been permitted to enjoy. In our English Legisla-[unclear: al] there are numberless precedents in which legal rights have been found [unclear: the] in conflict with public morality and public interest, and have been re-[unclear: ted] and limited; and I am not aware of any such cases in which compen-[unclear: en] has been given to those who have been thus treated." This is from an [unclear: le] in the Nineteenth Century, the writer of which is trying to disprove [unclear: 's] argument. But the only case he brings forward is that of slavery; [unclear: we] I cannot discover in the article, one single intelligible position he takes, [unclear: to] less makes good, against Mr. Chamberlain's clear statement.

(2) The other way of looking at it is this: A privilege that the law [unclear: e] the law can revoke, Provided that no agreement is broken, no promise [unclear: ted] no understanding set at nought. This can require no further proof. [unclear: t] so obvious that attempts are always made to bring in tacit promises or [unclear: standings;] but that cannot be done. No license is perpetual. Why [unclear: br] not made so, if that is the intention? Everyone knows that a propo-[unclear: ley] to grant such licenses would elicit as indignant a resistance as did Mr. [unclear: tone's] audacious and insane proposition to license railway carriages. [unclear: this] is all very true that the withholding a license previously granted is not [unclear: rule] rule, but it is often done, as recently at the Thames. There and then [unclear: t] Ehrenfried claimed damages. Not a little instructive is it that a [unclear: nal,] famous for its advocacy of compensation, told us on that [unclear: ion] that if Mr. Ehrenfried did not obtain damages, that would settle [unclear: e] for all the question of compensation. We know he did not obtain dam-[unclear: e] That, however, did not settle the question of compensation; but this did: [unclear: image not readable] that he durst not take his case into any court, because he knew, as every [unclear: t] knew, that neither law nor equity, nor social propriety could have [unclear: ded] him one penny. It may be true that men presume upon the renewal [unclear: the] the license, just as they presume that a volcano will not burst out again [unclear: se] it is now silent; though it was silent before it buried in ruins or [unclear: k] to pieces whole cities, with their living multitudes. If men choose to [unclear: e,] they must in either case take the consequences. It is a miserably [unclear: y] ground for compensation, that when a man has met a probability with [unclear: image not readable] eyes wide open, the probability has become a reality. I can grant that, [unclear: y] years ago, a publican might plead, very fairly—We ought to have some [unclear: e] of the withdrawal of this privilege. But I submit that forty years is [unclear: y] liberal notice. They Had that notice then, such notice as all wise [unclear: n] observe (in the signs of the times), and it has been repeated incessantly, [unclear: ince] since, underlined, and in all sorts of conspicuous colours. If they will page 6 not take it, that is their own look out. With the agitation that has gone [unclear: e] for forty years—with the actual adoption of prohibition in almost [unclear: in] merable places, and compensation never thought of in a single instance[unclear: s] with the rapidly-growing conviction that come it must—with the [unclear: admissio] of Governments that something of the kind is absolutely essential;—if [unclear: t] trade will not accept the notice, I see not how any rational man can wish [unclear: t] compensate it for such enormous blindness or stupidity. That is one [unclear: a] vantage of the gradual progress of the question—which is all that [unclear: in] advocates desire—that every man has due warning. But if he will not be warned, there is no help for him; he must go down in the storm that he has long seen coming—like all other such men—losing through his [unclear: wilfuln] what, without any trouble, he could in due time have saved from ruin.

Thus have we disposed of the social or legal right, unless it can be shewn to rest on some ground that I have not been able to discover.

III.—I should admit that there may be still higher grounds on which this question should be considered—higher than either that of natural right [unclear: a] or that of legal or social right—that high moral ground on which purest principle of Christian nobleness or generosity should control our conduct For there are occasions when moral considerations may compel us to a course of [unclear: action] which could not on any ground be claimed from us by others. As I [unclear: a] individual, may feel myself constrained to conduct which no one could demand of me, so may it be with a community or a body of men. We can then imagine that the publicans may be placed in a position such that we should feel it incumbent on us to make the compensation which they would have no ground for claiming, This was the ground on which compensation was given in the only case brought forward in this matter (that of slavery) It is the ground on which it might be justified, not as a precedent, but as something new and unexpected in the world's history. Since then other new principles have come to light.

Supposing a man, shut out from profitable employment, by a course of events involved in the public welfare—under these conditions: That he has not had adequate opportunity to secure himself against injury or loss; and that he is not interfered with as being knowingly in antagonism to the public welfare; the highest principles might compel us to proffer compensation There are many such cases in which, I think, a right state of society would cheerfully afford help, which the individual could not claim, and any claim to which would certainly not be listened to. But clearly no such moral principle could have any force where the individual has had ample opportunity to protect himself, or where he is interfered with in an illegitimate course, i.e., one opposed to the public interests. And here it is important to notice, that in reasoning from this higher moral ground, no [unclear: occu]tion can ever be legitimate that is opposed to the public good. No law can ever make it so; and all the talk about a legitimate calling or business, is, out this ground, quite beside the mark. When we are pretending to stand on high moral grounds, to talk about an honourable calling, a legitimate business, which is ruinous to public morality, is to talk nonsense. If then the publican could shew that he had not had" the opportunity of protecting himself from loss, and that the trade carried on under the license had not been a public injury, I should admit, that so far we might feel bound to give the compensation, which however he could not claim. But how is it possible that he should establish either of these conditions, since, as we have seen, he had forty years' warning, and since overwhelming testimonies declare his page 7 [unclear: utterly] pernicious, of which testimonials he is not and cannot be igno-[unclear: l] Now it is not an advantage, and therefore not commended by any [unclear: al] principle, that private personal duty (to take warning) should be inter-[unclear: ed] with through public charity; and it is an immense wrong, by any [unclear: tion] whatever, to put a premium on conduct that is prejudicial to the wel-[unclear: e] of the community.

That is one view. But there is another; as we have seen, from the [unclear: stion,] Who should compensate? The suggestion which has been made, that [unclear: t] trade should compensate its exiled members, has everything in its favour, [unclear: le] should, as it probably will, secure consideration; but that is hardly the [unclear: pensation] that is asked for.

Or, again, if it were possible for those who consider that they have received [unclear: efit] from the publican, and are therefore under some obligation to him, night be well enough that they, in dispensing with his services, should [unclear: t] some compensation. But it is to be feared it would be but small. But [unclear: inly] not that the public should—more than half of whom repudiate his [unclear: ices,] and consider themselves greviously injured by it. To take their [unclear: ney] to compensate the publican is a far more immoral act than to with-[unclear: out] from the publican that to which he never really had any right. Looking [unclear: things] from the higher moral teachings there is nothing for which men [unclear: y] be so severely condemned as the reckless use of public money. But all [unclear: image not readable] of it is such, which leaves out of consideration the object for which, and [unclear: t] true interests of the parties from whom it was raised. When, then, we [unclear: ing] together the injury inflicted on adjacent property by granting the [unclear: ase,] the injury inflicted on the public by the exercise of the license, and [unclear: t] all the gains made under the license are made at the expense of the [unclear: ic;] there is not a single moral principle that would not pronounce it an [unclear: mous] crime against the public to take public money to compensate the [unclear: de] for being hindered from continuing this prodigious depredation on pub-[unclear: lic] property. Nor do I think that any one dispassionately looking into these [unclear: ite] points could well come to any other conclusion—a conclusion not [unclear: erally] reached only because few people will take the trouble to examine [unclear: h] care the ground on which they stand.

IV. Here I might close the argument, but that some might think I [unclear: ght] to take more notice of the two points—neither of which, however, [unclear: n] an essential part of the argument—of policy and precedent. To the [unclear: stion] whether it might not be politic, though not just, to give the com-[unclear: ation] in question, I should reply: that there may be cases in which a [unclear: e] policy takes even higher ground than that of exact or abstract justice; [unclear: t] in no case—especially where the public is concerned—can it violate the principles of justice, as it undoubtedly would in this case.

As to precedents, I am not aware of any in favour of compensation, [unclear: ept] that one often referred to, of slavery in the West Indies. But the [unclear: image not readable] of that, as an example for this, completely fails, inasmuch, as there [unclear: sations] was given for property actually taken away or destroyed as pro-[unclear: ty]-the slaves. There is nothing of the kind here. Nor is it in the least [unclear: ly] that that experiment of the £20,000,000 would be so much as sug-[unclear: ted] by anyone in this day; an experiment signally reversed in the case [unclear: image not readable] the Southern States of America. The crime of slave-holding is better [unclear: erstood] to-day. But, on the other hand, the precedents against compensation are simply innumerable and overwhelming. I have already referred to be number of cases in which the trade is suppressed, without any thought of page 8 compensation—Sunday closing. Constant changes in trade destroy the [unclear: liv] of thousands upon thousands, who never get a penny of compensation. [unclear: R] ways shut up hosts of roadside houses, destroy the property of coach [unclear: prop] tors and drivers. Nuisances of all sorts are suppressed with great loss [unclear: e] those who profited by them. Personal inconveniences are constantly is flicted on individuals where the public good requires it—far too [unclear: numer] even to name—compensation in no case being allowed. That the [unclear: princ] is as well established as any known law. An exceptional departure from being asked only for this beneficent trade.

And now to sum up our case for the jury. They would be asked for verdict on these points:—

Can the trade establish any valid right, on any ground, natural, [unclear: leg] or moral, for the enjoyment of a monopoly-privilege, of great [unclear: commer] value, to the unlimited injury of the public?

Is any right violated or wrong done by revoking this privilege, on [unclear: th] ground of this injury?

Can any claim for compensation exist, where no right is violated and no wrong done?

On each point the verdict would be given, without further [unclear: co] sideration, against the plaintiff.

The whole history of this melancholy question of alcohol, written not by me, but by others who could not falsify, in deepest black, or [unclear: inten] scarlet, suggests a different solution of the problem. If the trade generally—following the example of an extremely minute fraction of it—listening the reiterated condemnation of the highest, unimpeachable judges—looking on the horrible deeds done—could rise slightly above that [unclear: contempti] measure of things, money value—contemptible when put in the [unclear: sca] against physical health, prolonged life, uncorrupted character, pure [unclear: hear] strong minds, peaceful homes, honour in the Government, integrity in the people—it might appear not so very great an act of self-sacrifice to say-[unclear: a]. For the world's good we will voluntarily renounce the gains that [unclear: hav] never seemed to us perfectly clean. And whether or not compensation [unclear: ca] in the shape of money, it would have a ten times better justification than [unclear: the] has now, while it would assuredly come in the shape of respectful [unclear: admirati] of a deed well done, and the still better form of a sense of living and working for the world's progress, instead of its deterioration. But if these have little or no weight, there remains but the single alternative—That what is [unclear: image not readable] voluntarily surrendered will, sooner or later, cease at the stern command [unclear: t] social, mental, moral necessity; as someone, able to form a judgment, [unclear: t] said to mankind—"If you will not destroy the liquor traffic, it will [unclear: destr] you." Every principle of human nature and of the right constitution things must alter, or every day that more reveals that startling, but [unclear: iner] able fact, puts compensation (to the destroyer of humanity) still lower [unclear: do] among the things never to be thought of.

The foregoing Paper was read at a Conference of Temperance Workers, held is the Temperance Hall, Albert Street, Auckland, on Friday, February 10, 1882, and [unclear: publi] by the Auckland Total Abstinence Society, in compliance with resolution passed at [unclear: co] ference.

Printed by Wilsons & Horton, "Herald" Office, Auckland, New Zealand.