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Prohibition in United Kingdom


Introduction to Prohibition

Prohibition, legal ban on the manufacture and sale of intoxicating drink; by extension, the term also denotes those periods in history when such bans have been in force, as well as the political and social movements advocating them. Such movements (also called temperance movements) have occurred whenever significant numbers of people have believed that the consumption of alcoholic beverages presented a serious threat to the integrity of their most vital institutions, especially the institution of the family. Drunkenness is considered an evil in most of the world’s major religious traditions, and Islam has for centuries forbidden even the moderate use of fermented drink. In the West, however, efforts to ban the consumption of alcohol have been a relatively recent phenomenon. Their origin can be traced to the apparently rapid spread of the technology of distillation and of alcohol abuse in 18th-century Europe, which alarmed those concerned with public health and morals.” (1)

Concept of Prohibition

The following is an old definition of Prohibition [1]: 1. The act of forbidding or interdicting. whence (the word(s) which follow it are derivatives from the same root word) (the word(s) which follow it are derivatives from the same root word) prohibitory. Compare Inhibition; Mandate. The imposition of punistunent implies a prohibition of the act punished. While the Xmth and XlVth Amendments are prohibitory, they imply positive immunity from legal discriminations. In marine insurance, words equivalent to a prohibition amount to a warranty. The right to pass an ordinance usually involves the incidental right to enforce it by a reasonable pecuniary penalty. Power ” to prohibit and suppress ” the maintenance of a place as a nuisance includes the power to provide a punishment. Power in the authorities of a city to prohibit or regulate a thing includes partial prohibition or regulation. If a statute does not declare void a contract which is in violation of it, and if it is not necessary to hold the contract void to accomplish the purpose of the statute, the inference is that the statute was Intended to be directory, and not prohibitory of the contract. A statute often speaks as plainly by inference, and by means of the purpose which imderlies it, as in any other manner. When it appears by necessary inference from what is expressed that an act is opposed to the policy of the law, and will defeat its purpose, such act should be held to be prohibited. When a statute directs that a thing’ should be done in a given manner, it ordinarily excludes other modes of doing it. See Legal.; Illegal. Writ of prohibition. A writ directed to the judge and parties to a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. Commands the person to whom it Is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. Suspends all action, prevents further proceeding in the prohibited direction; is never used as a remedy for an act already completed. Prevents an unlawful assumption of jurisdiction. Cannot be made to perform the offlce of a proceeding for the correction of mere errors and irregularities. If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is conclusive. It is often said that the granting or refusing of the writ is discretionary, and, therefore, not the subject of a writ of error. That may be true, where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court, whose action is sought to be prohibited, is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as a matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. The writ will not be granted unless the defendant has unavailingly objected to the jurisdiction

Alternative Meaning

Interdiction of the liberty of making, and of seUing or giving away, intoxicating liquors, for other than medicinal, scientific, and religious (sacramental) purposes. Sometimes called total prohibition, and, of late years, effected by amendments to the constitutions of several of the States. Authority conferred upon a town, by its charter, to prohibit the sale of intoxicating liquors, does not fairly embrace a power to regulate sales. The exercise of the power to regulate sales provides tor the continuance of the traffic under prescribed rules. The power to prohibit is to be wielded only for suppression. ” The weight of authority is overwhelming that no such imtnunity has heretofore existed as would prevent State legislatures from regulating, and even prohibiting, traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law oper- ating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer v. The People [3 Kernan, 378, N. Y., 1856], has held that as to such property, the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seriously urged, we think that tlie right to sell Intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in the Slaugfiter-House Cases [16 Wall. 36, 1872].” ” No one has ever doubted that a Legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property. When such rights stand in the way of the public good, they can be removed by awarding compensation to the owner. When they are not in question, the claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen. It is toto coelo different from the right not to be deprived of property without due process of law, or the right to pursue such lawful avocation as a man chooses to adopt, unrestricted by tyrannical and corrupt monopolies.” “I have no doubt of the power of the State to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of the right of property in them. The right of property in an article involves the power to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State, the Fourteenth Amendment affords protection. But the prohibition of sale in any way, or for any use, is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community. All property, even the most harmless in its nature, is equally subject to the power of the State in this respect with the most noxious.” ” If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State” – a power of which the legislature cannot divest itself by contract. ” In Bartemeyer v. Iowa it was decided that a State- law prohibiting the manufacture and sale of intoxicating liquors was not repugnant to the Constitution of the United States. This was reaffirmed in Beer Company v. Massachusetts, and that question is now no longer open in this court.” But a State may not by taxation discriminate against the products or the citizens of another State. The police power of a State to regulate the sale of intoxicating liquors does not warrant the enactment of a law infringing a positive provision of the Constitution of the United States. ” All property is the creation of the law, either the common or the statute law, and must, in its existence and enjoyment, be subjected to the policy and provisions of the law.” December 5, 1887, Mr. Justice Harlan, in writing the opinion of the Supreme Court in the cases of Mugler V. Kansas and Kansas v. Ziebold, reported in 123 U. S. 623, 657-74, said; The general question is whether the prohibition statutes of Kansas, approved February 19, to take effect May 1, 1881, and March 7, 1885, amendatory and supplementary to the act of 1881, are in conflict with that clause of the Fourteenth Amendment which provides that ” no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law.” That legislation by a State prohibiting the manufacture within her limits of intoxicating liquors, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the Constitution, is made clear by the decisions of this Court, rendered before and since the adoption of that Amendment. In the License Cases, 5 How. 504 (1847), the question was whether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors, were repugnant to the Constitution. In determining the question, it became necessary to inquire whether there was any conflict between the exercise by Congress of its “power to regulate commerce ” and the exercise by a State of what are called “police powers.” The members of the Court were imanimous in holding that the statutes under examination were not inconsistent with the Constitution or any act of Congress. Chief Justice Taney said: ” If any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing iu the Constitution to prevent it from regulating and restraining the traffic or from prohibiting it altogether.” Mr. Justice McLean said: ” A State regulates its do- mestic commerce, contracts, transmission of estates, and acts upon internal matters, which relate to its moral and political welfare. Over these subjects the Federal government has no power. . . The acknowledged police power of a State ejrterids often to the destruction of property. A nuisance may be abated. Everything prejudicial to health or morals may be removed.” Mr. Justice Woodbury observed: “How can they [the States] be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected with the public morals, public safety, or public prosperity.” Mr. Justice Grier said: “The true question is whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals comes within this category. . . It’is not necessary, for the sake of justifying the legislation under consideration, to array the appalling statistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.” In Bartemeyer v. Iowa, 18 Wall. 129 (1873), it was said that, prior to the Fourteenth Amendment, State enactments, prohibiting traffic in intoxicating liquors, raised no question under the Constitution; and that such legislation was left to the discretion of the respective States, subject to no other limitation than those imposed by their own constitution, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the Fourteenth Amendment, the court, speaking by Mr. Justice Miller, said that ” so far as such right exists, it is not one of the rights growing out of citizenship of the United States.” In Boston Beer Co. v. Massachusetts, 97 U. S. 33 (1877), it was said, by Mr. Justice Bradley, speaking for the court, that “as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution. Finally, in Foster v. Kansas, 112 U. S. 206 (1884), the court, by Chief Justice Waite, said that the question as to the constitutional power of a State to prohibit the manufacture and sale of intoxicating liquors was no longer an open one. These cases rest upon the acknowledged rights of the States to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of their people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution. The power to establish such regulations, as was said by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 203 (1824), reaches everything within the territory of a State not surrendered to the National government. It is, however, contended that, although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a, beverage, “no convention or legislature has the right to prohibit any citizen from manufacturing for his own use, or export or storage, any article of food or drink not endangering or affecting the rights of others.” The proposition concedes that the right to manufacture drink for one’s personal use is subject to the condition that it does not endanger or affect the rights of othets. If such manufacture does prejudicially affect the interests of the community, it follows, from the premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 124 (1876), by Chief Justice Waite, while power does not exist in the whole people to control rights that are purely and exclusively private, government may require ” each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another.” But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, for general personal use, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our systeip that power is lodged with the legislature. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety. It does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police power. There are, of necessity, limits beyond ^hich legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, the courts must obey the Constitution rather than the law-making department, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. Their solemn duty is to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and hereby give effect to the Constitution. Keeping in view these principles, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors tor general use as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent , spirits. There is no justification for holding that the State, under the guise merely of police regulations, is aiming to deprive the citizen of his constitutional right; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drink; nor the fact establisljed by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a State deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, or mechanical pm-poses, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp power committed by the constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courls, from their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the en- tire scheme of prohibition, as embodied in the constitution and laws of a State, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that the government interferes with or impairs any one’s constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our government by the observance, upon the part of all, of such regulations as are estabhshed by competent authority, to promote the common good. No one may rightfully do that which the law- making power, upon reasonable grounds, declares to be prejudicial to the general welfare,. This conclusion is unavoidable, unless the Fourteenth Amendment takes from the States those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 31 (1885), that that Amendment had no such effect. Upon this ground, it is contended, that, as the primary and principal use of beer is as a beverage; as the breweries of the defendants were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manufacture of beer, for every purpose,- the prohibition upon their being so employed is, in effect, ” a talcing of property for public use without compensation, and depriving the citizen of his property without due process of law.” In other words, although the State, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happened to own property, the chief value of which consists in its fitness for such manufacturing purposes, unless compensation is first made for the diminution in value of their property, resulting from such prohibitory enactments. This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the States intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. In respect to contracts, the obligations of which are protected against hostile State legislation, this court in Butchers Union Co. v. Crescent City Landing Co., 111 U. S. 751 (1884), said that the State could not, by any contract, limit the exercise of her powers to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 816 (1879), where the Constitution was invoked against the repeal by that State of a charter, granted to a private corporation, to conduct a lottery, and for which that corporation had paid to the State a valuable consideration in money, the court said: ” No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. . . Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them.” Again, in New Orleans Gas Light Co. v, Louisiana Light Co., 115 U. S. 672 (1885): ”The Constitutional prohibition upon State laws impaining the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts in a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same serise, and to the same extent, as are all contracts and all property, whether owned by natural persons or corporations.” The principle that no person shall be deprived of life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly all, if not all, of the States at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property is held under the implied obligation that the owner’s use of it shall not be injurious to the community, Illustrations of this doctrine are afforded by the cases of Patterson v. Kentucky, 97 U. S. 501 (1878), and Northwestern Fertilizing Co. v. Hyde Park, ib. 659, 667 (1878), both decided after the adoption of the Fourteenth Amendment. In the first case, a statute of Kentucky, enacted in 1874, imposed a penalty upon any one selling fluids, the product of coal, petroleum, or other bituminous substances, which would ignite at a temperature below 130? Fahrenheit. Patterson having sold a certain oil for which letters patent had been issued in 1867, but which did not come up to the standard required by said statute, and having been indicted therefor, disputed the State’s authority to prevent or obstruct the exercise of his rights under the letters patent. This coiirt upheld the legislation, upon the ground that while the State could not impair the exclusive right of the patentee, or of his assignee, in the discovery described in the letters patent,- the tangible property, the fruit of the discovery, was not beyond control in the exercise of her police powers. In the second case, the court sustained the validity of an ordinance of Hyde Park, in Cook county, Illinois, passed under legislative authority, forbidding any person from transporting through that village offal or other offensive or unwholesome matter, or from maintaining or cariying on an offensive or unwholesome business or establishment within its limits. The fertilizing company, at large expense, and under authority expressly conferred by its charter, had located its works at a particular point in the county. Besides that, the charter of the village provided that it should not interfere with parties engaged in ti-ansporting animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The enforcement of the ordinance operated to destroy the business of the company and seriously to impair the value of its property. As, however, its business had become a nuisance, producing discomfort, and often sickness, among large masses of people, the court maintained the authority of the village, actmg under legislative sanction, to protect the public health against such nuisance,- to regulate and to abate nuisances being an ordinary exercise of the police power, which the States had never surrendered, but which they all retained and still possess. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a “takmg” or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of a police regulation, to deprive the owner of his liberty and property, without ” due process of law.” The power which the States have of pro- hibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of then not being permitted, by noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciative, is very different from takmg property for public use,or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from the innocent owner. It is true, when the defendants erected their breweries, the laws of the State did not forbid the manufacture of Intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, the supervision of the public health and the public morals is a governmental power, ” continuing in its nature,” and “to be dealt with as the special exigencies of the moment may require;” and that, “for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power it- self.” So in Beer Co. v. Massachusetts: ” If the public safety or the public morals require the discontinuance of any manufacture or trafflc, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or coiporations may suffer.” A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating hquors to be exported, or to be carried to other States, and, upon that ground, they are repugnant to the clause of the Constitution giving Congress power to ” regulate commerce ” with foreign nations and among the several Stivtes. We need only say, upon this point, that there is no intimation in the record that the beer which the respective defendants manufactured was intended to be carried out of the State or to foreign countries. And, without expressing an opinion as to whether such facts would have constituted a good defense, we observe that it will be time enough to decide a case of that character when it shall come before us. (See Kidd v. Iowa, p. 832.) Section thirteen of the act of Kansas of 1885 provides, that ” All places where intoxicating liquors are manufactured, sold, bartered, or given away m violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this act, are hereby declared to be common nuisances, and upon the judgment of any court having jurisdiction fiding such place to be a nuisance under this section, the sheriff, his deputy, or under sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all intoxicating, liquors found therein, together with aU signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance, and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty nor more than ninety days. The attorney-general, the county attorney, or any citizen of the county where such nuisance exists, oris kept, or is maintained, may maintain an action in the name of the State to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required.”


Notes and References

  1. Meaning of Prohibition provided by the Anderson Dictionary of Law (1889)


Notes and References

  • Information about Prohibition in the Encarta Online Encyclopedia
  • Guide to Prohibition

    Concept of Prohibition

    Traditional meaning of prohibition [1] in the English common law history: A prerogative writ issuing from the King, or a superior court, or Chancery, to restrain proceedings in an inferior, or particularly an ecclesiastical court, for want of jurisdiction; see 74 Md. 545; 3rd Book (“Of Private Wrongs”), Blackstone’s Commentaries on the Laws of England 112.


    Notes and References

    1. Based on A concise law dictionary of words, phrases and maxims, “Prohibition”, Boston: Little, Brown, and Company, 1911, United States. This term and/or definition may be absolete. It is also called the Stimson’s Law dictionary, based on a glossary of terms, included Prohibition.

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    • Article Name: Prohibition
    • Author: Danny W.
    • Description: Introduction to Prohibition Prohibition, legal ban on the manufacture and sale of intoxicating drink; by extension, the [...]

    This entry was last updated: September 19, 2020


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