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THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

PRESENTED BY 

PROF. CHARLES A. KOFOID AND 

MRS PRUDENCE W. KOFOID 



L 







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/SJ 



■>, 



LECTURES ON THE 

PRINCIPLES OF LOCAL 

GOVERNMENT 



/ 

i 



DELIVERED AT THE LONDON 

SCHOOL OF ECONOMICS 

LENT TERM 1897 



GEORGE LAURENCE GOMME FSA 

STATISTICAL OFFICER OF THE LONDON 
COUNTY COUNCIL 

AUTHOR OF "MUNICIPAL OFFICES" "LITERATURE OF LOCAL INSTITUTIONS" 
"THE VILLAGE COMMUNITY" ETC 



W 



WESTMINSTER 

ARCHIBALD CONSTABLE AND CO 

2 WHITEHALL GARDENS 

1897 



BVTLBR & TaNNKR, 

Xhb Sklwood Printing Works^ 
Fromb, and London. 



J5 3111 
663 



INTRODUCTION 

THIS series of lectures was designed to set 
forth, if possible, the lines upon which the 
principles of local government should be 
studied. At present, principles of local government 
are not, in this country, considered at all. There is a 
vague sort of idea that local government is a good 
thing for Parliament to occupy itself with, but there 
is no serious attempt to consider it as a subject which 
is governed by principles and not by fancy, which 
should not therefore be left to the sudden energy of 
Parliaments desiring to be busy with something new. 

I cannot, and do not, pretend that my effort is any- 
thing more than an effort in the right direction. If it 
turns out to be that, if it should prove to be useful in 
directing attention to the subject, and bringing about 
a general desire to ascertain and formulate the prin- 
ciples of local government, sufficient success will have 
attended it 

In the limits of a term it has not been possible to 
discuss all the stages of my arguments so as to show 
the evidence upon which they are founded ; and ac- 
cordingly it will appear as if the method adopted to 
set the matter before my hearers were purely and 
simply the a priori method of the analytical jurists. 

ifi 



^^.('3^0^ 



iv INTRODUCTION 

It would be presumption on my part to adopt such a 
method. I have no right to speak ex cathedra on 
such a subject. And every step of my argument is 
in reality built up of a large mass of evidence, which 
I have been examining, both as a student and as an 
official, for the past twenty years. I cannot set forth 
this evidence, but I purpose to give a few notes of its 
chief heads to help the student in the understanding 
of the lectures — notes similar in effect to those viva 
voce explanations which were from time to time inter- 
lineated during the delivery of the lectures, or which 
formed the substance of answers to the queries of the 
students after each lecture. 

I practically begin my lectures with a differentiation 
into two classes of the several kinds of local govern- 
ment found in England at the present day. These 
two classes are the historical, consisting of counties, 
boroughs, and parishes, and the legislative, consisting 
of unions and districts. But in describing them I 
have called them by terms which leave out of sight 
their origin in historical or legislative times, and bring 
into prominence their place, or assumed place, as types 
of local government ; that is, I call them respectively 
local government properly so-called, and quasi-local 
government. Now the justification for these terms is, 
I suggest, fully brought out in the course of the 
lectures, but it will be useful to state shordy what that 
justification is. 

It is, first, that the historical localities have been 
formed from the settlement of communities whose 
bond of cohesion was that of common interests. This, 



INTRODUCTION v 

therefore, is a formation whose roots lie as deep as 
possible in the past, and which, by reason of their 
unbroken continuance, affect to an enormous degree 
all subsequent influences upon the community. The 
county was formed from the ancient tribe ; the borough 
from the ancient township in its most favourable 
position for development ; the township from the com- 
munity who settled down upon the land in economical 
independence. Hence the formation of the locality 
of the county, of the borough, and of the township 
was not due to legislative action, but to forces which 
belong to the unconscious stages of development in 
English institutions. This unconscious stage is con- 
nected with the natural sociology of man's life, and it 
is not too much to suggest that we have in those links 
a strong claim for asserting that local government 
contains more of the natural history of man than other 
parts of modern civilisation. And let it be noted how 
very strong is the position which any element of local 
government must occupy if it can be identified with 
a phase of the natural history of man. 

Secondly, the justification of the terms of classi- 
fication of the two kinds of local government arises 
from the historical localities being, and having always 
been, used for purposes of local government, some- 
times directly, sometimes indirectly in the formation 
of new localities, such as unions and districts. All 
the influences of common interest which come from 
these historical localities are, therefore, brought to 
bear upon the purposes of local government; or, in 
other words, there are no cases of local government 



vi INTRODUCTION 

which are not so intimately connected with the 
historical localities that they can be said to have 
attained their present position without the aid of in- 
fluences belonging to the historical localities. 

And in point of fact we find that localities formed for 
special objects instead of all objects of local govern- 
ment are not only imperfect as localities, but as 
local government centres, being governed as much 
by the control exercised by the State Government 
as by the desires of the locality. 

These being the facts of the case, the only question 
that remains to justify the classification adopted in the 
lectures is, whether such conditions as these should 
properly represent local government from the point 
of view of first principles, or whether the two types 
should be reduced to one type ; whether, in short, 
there can be a dual system, and, if not, whether local 
government of the historical type should give way 
to local government of the legislative type. 

The answer to this is found, in the first place, from 
the history of the county, borough, and township, 
which is the subject-matter of the second, third, and 
fourth lectures. Everywhere in this history do we 
find strength and force, and everywhere is this 
strength and force identified with the development 
of the locality of the county, borough, and township, 
from the communities which originally formed, the 
county, borough, and township; locality and com- 
munity forming two interlaced elements of local 
government which appear over and over again in the 
legal and constitutional history of these three local 



INTRODUCTION vii 

governments, and which have scarcely yet passed out 
of ken. Government from this standpoint is local in 
a senst which no other form of government can be 
local, in a sense which particularly government by 
unions and districts cannot be local. The true alter- 
native to such a form of government would be not 
local government but some form of subordinate State 
government, which can only be called local by reason 
of the fact that it administers certain services (on 
behalf of the State) for defined portions of the 
country. Whatever kind of government this is, it is 
not local government It is a substitute for local 
government — a substitute which rests upon the func- 
tions it is called upon by the State to perform, and 
not upon the locality for which it performs functions. 

It is obvious that here arises the important question 
as to what the functions of local government should 
be, and this is discussed in the fifth lecture. This in- 
troduces the subject of the conflict between private 
enterprise and government function, and I have- at- 
tempted on economical lines to define the principles 
upon which this conflict should be settled. Private 
enterprise is an undertaking for the common benefil^ 
of a particular class of the community, the capitalist; 
using the word in no invidious or political sense; 
government service is an undertaking for the common 
benefit of the whole community, capitalist and con- 
sumer alike. That the first has its legitimate range 
of exercise no economist can deny, and that this range 
extends into provinces which cannot be bound by 
localities, scarcely even by nations, is a truth which 



viii INTRODUCTION 

is daily becoming more and more evident. But then 
government services have also a legitimate range, and 
this has been strongly denied, or has been restricted 
to the narrowest and most incomplete bounds. By 
limiting the range of the latter to certain well-defined 
elemental necessities, in which the whole community 
are equally interested, it cannot be suggested that too 
sweeping a demand is made. This is a most im- 
portant part of the subject, and when once it is fairly 
settled the battle-ground of economical warfare will 
have shifted its place, and local government will have 
passed out of the range of its influence. 

This, however, leaves for discussion certain ques- 
tions as to the locality for which the proper functions 
of local government are to be exercised. Why should 
the boundary line stop at a given place, instead of ex- 
tending all over the country without the intervention 
of boundary lines ? This is a question discussed in 
the sixth lecture, where the doctrines of benefit and 
general utility are examined. The area formed by 
the common interests of a community dating for cen- 
turies back in the past is the true locality within which 
common benefit from new functions of local govern- 
ment will best operate. They will weld with the 
functions already in existence for the common benefit, 
and produce further cement for the binding together of 
the community. Not that this is a fixed area unalter- 
able by circumstances, for it is found that functions 
which benefit a locality may develop into functions 
which benefit a larger locality, or the nation at large, 
and there is room in the operations of true local 



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INTRODUCTION ix 

government to allow for this process of development. 
This process is examined in some detail, and its impor- 
tance as a principle of local government is pointed out 

Common benefits conferred upon localities involve 
some form of taxation, and this, so far as it affects the 
subject-matter of these lectures, is very shortly ex- 
amined in the seventh lecture. I have there attempted 
to show that all local taxation is a system of payment 
for a benefit conferred, and that the area of taxation 
is the correlative problem to that of the area of local 
government, both being determined by the doctrine 
of common benefit Now the benefits from local 
government services tend to accrue to the owners of 
local property, by reason of the fact that such property 
is the conduit pipe through which each person obtains 
the benefits of the services, and local taxation, there- 
fore, should, as it did originally, fall not upon the 
person, but upon the owner. 

In this way the principles of local government are 
found so intimately connected one with another as to 
suggest that they are traceable to deeper instincts in 
our life than the legislative experiments of a single 
mind, however great, a single ministry, however cap- 
able. It is certain that I have only just touched the 
fringe of the subject, and that, I am afraid, with but 
very scanty success. Still, I am emboldened to hope 
that all my research and all my experience as a local 
government official may have produced results which, 
if not conclusive, will lead to their being made so by 
others more fitted for the heavy task than I can hope 
to be. In the meantime I hope to continue these 



X INTRODUCTION 

lectures with a view of elaborating many of the more 
important subjects which have been so briefly sur- 
veyed in the present series. 

I can scarcely close this introduction without thank- 
ing a legal friend for his great kindness in looking 
through the sheets, and giving me many criticisms 
of value — criticisms which I have always availed 
myself of, though without making my lectures what 
my critic would desire. Mr. Herbert Beadle, of the 
Statistical Department of the London County Council, 
has also very kindly assisted me in many ways. 

LAURENCE GOMME. 

24, Dorset Square, N.W., 
August, 1897. 



ANALYSIS OF CONTENTS 

Lecture I 

I. Object of the lectures— definition of local government ; 2. Pre- 
liminary: limits of the definition —extensions of the definition — 
classes of local government — growth of new functions produce new 
forms of local government— different influences of new functions — 
relationship of local government to the new forms and the new in- 
fluences—relationship of local government to Austin's definitions- 
position of local government owing to absence of proper definitions 
— ^position of local government before 1888— primary elements of 
the subject summarized; 3. Methods: historical and analytical — 
both applicable to the present enquiry ; 4. Definition of local govern- 
ment considered : the term local — localities properly so-called — ^pro- 
duct of earliest social development — their early power and influence 
— their decadence — quasi localities — product of administrative 
system of central government — poor-law unions — urban and rural 
districts— districts for special purposes — difference in the meaning of 
local in these two classes of localities — ^locality a dominant factor — 
the term government — ^the authority governing — an elected body — 
important features of election — Austin's definition— local authorities 
independent of the State government — dependent upon practically 
the same electorate as the representative body of Parliament — impor- 
tance of this in matters of future development — ^the sanctions for 
governing — ^legal sanctions— <lependence upon State justice and 
police— difference between ancient and modem forms of local 
government in this respect — ^municipal sanctions— derived from 
scientific and economical considerations — put in force before State 
sanctions are called upon ; 5. Rdaiionship of the two classes of local 
government: local government properly so-called has acted as a 
model for % quasi-local government — legislative theories ; 6. I^ela- 
tionship of local government to subordinate State authorities — State 



( 



xii ANALYSIS OF CONTENTS 

subordinate authorities — commissions ; 7. Preliminary definitions — 
definitions stated — conclusions therefrom. 



Lecture II 

I. Localities properly so<alled: cover the entire area of England 
— relationship to each other — distinctions of rank among them — 
importance attached to ancient boundaries — hundreds and great 
franchises of no influence on local government; 2. Counties: origin 
in the shire system — formation of the shires according to historians — 
formed from the ancient tribes — examples from England — ^from 
Scotland — development of tribes into kingdoms — of petty kingdoms 
into the nation — Professor Maitland on the military shire — rela- 
tionship of the military shire to the tribal shire — formation of a shire 
system of polity— brings with it many ancient tribal customs — forma- 
tion of new shires in later times — geographical history not wholly in 
favour of tribal origins-— constitutional history supports tribal origins 
— the shire-moot— example of the Isle of Man — example temp, 
Canute — example temp. William I. — ^analysis of these examples — 
changes in the shire system — evidence of the ancient system in the 
election of coroner — in the right of outlawry — ^in the ancient electoral 
system — continuity of site of meeting-place — continuity as a taxing 
unit — ancient right of assembling — decline of county government 
under the justices — ^restoration of county government by the Act of 
1888 — the county of London — not properly understood — ^the regis- 
tration county — ^locality the great force in the counties^-county and 
county council — county officers — rank of the county — importance of 
ancient constitution of the county — the hundred — ^liability for damage 
transferred to the county. 

Lecture III 

Boroughs under the Act of 1888 — three classes showing difference 
in status — this is of modern growth — origin of the burgh in the 
township— in the Roman sites — territorium of the burgh — the legal 
view— the question of incorporation — legislation of Richard II. — 
causes and results — burghal property — process of incorporation — 
the economical view — Roman sites — English sites — combination of 
burghs — ^burghal independence — possible development of city or- 
ganization— burgessship — burgesses and manorial tenants— compari- 
son with Russia — conditions of burgessship — ^growth of burghal 



ANALYSIS OF CONTENTS xiii 

community — ^land-owning rights of municipalities — tenement and 
lands are one holding---ancient examples^harter examples — 
burghal assembly — Professor Maitland's views — village community 
the basis of the burghal community — the principle of locality 
involved in this — evidence of the boundaries — burghs contain the 
town and townlands — locality, therefore, not derived from charters or 
other administrative Act — summary of this evidence— importance of 
locality in the case of burghs — internal divisions of the borough were 
not parishes — ^the burghal assembly — example of London — con- 
tinuity of burghal government —close connection between terriiorium 
and ^<^/^xn»/f/Vaj— relationship of the burgh to the county. 

Lecture IV 

Parish the equivalent of the township — growth of ecclesiastical 
side of the parish — ^the locality of the township^vidence from 
Wiltshire and south-east England — ^locality not formed for adminis- 
trative purposes — consists of enough land to make each community 
independent — the agricultural system which belonged to this com- 
munity — changes in the township organization — its right to hold 
property — its break up into manorial, ecclesiastical, and civil units — 
the manorial element — by-law evidence — functions of the township 
moot— the vestry meeting — territorium and communiias—ni^i of the 
township to tax for common purposes — legal objections considered 
— identification of the township and parish — parishes which were 
never townships — parishes under the Act of 1894 — ecclesiastical 
parishes— iS«»/»Mtry/ change in the primitive system chiefly due to 
economical changes under Edward I. — the common interests which 
created localities still operate — ^misuse of local terms. 

Lecture V 

Functions of local government are next to be considered — elements 
for discussion are two — localities formed by common interests — 
modem requirements — doctrine of general utility — proper functions 
of local government not discussed when State imposes new functions 
— three schools of thought : laisserfaire^ socialistic, economical — John 
Stuart Mill's definitions— additional qualifications required — limits to 
the definition — example of bread supply — communal trading not a 
function of local government — exceptions: pawnbroking, coal supply, 
sale of alcoholic liquors — functions of local government and 



xiv ANALYSIS OF CONTENTS 

private enterprise — private enterprise not entitled to first claim — 
examples against this — functions of local government not contested 
by private enterprise in ancient times — examples from London, 
Chichester, Liverpool, Gloucester — so-called remunerative services 
are met by a forgotten form of taxation — right of taxation should 
reside in the taxpayers — examples of taxation in private hands — 
water supply, cemeteries, gas, electric light, baths and washhouses, 
tramways, telephones — cost of these met by taxation direct, in- 
direct, or according to benefit — ^the relation of the services to 
taxation— compulsory nature of the service is the crucial point — 
private capital deals only with profitable matters — examples of the 
cost of services changing from a system of taxation according to 
benefit to direct taxation — dust-removal, education — examples of 
mixed systems of taxation^emeteries, locomotion, telephones, 
artificial light, fire insurance— examples of direct taxation — water 
supply — examples of indirect taxation — ^markets, docks, navigation — 
services not undertaken by local government — public economics. 

Lecture VI 

General utility in relation to benefit — some services not apparently 
of general utility, such as poor relief — ^the question examined — 
beginnings of poor relief as a duty of property — early legislation 
transferred it to the church as a duty — the effect of this in making 
the ecclesiastical parish the unit of poor relief—- effective legislation, 
however, showed poor relief to be based upon general utility — ^the 
case stated — early examples of the effect of neglect of poor upon 
property— example of St. James' Westminster, of benefit to property 
by poor relief — economical evidence — poor relief analysed — econo- 
mical results — agreement between historical and economical evidence 
that poor relief is founded on general utility — definition of functions 
in relation to general utility and benefit — relationship of general 
utility to locality — area of benefit, area of administration, and area 
of taxation — difficulties met by the principle of differential rating — 
the subject examined — differential rating and new areas of local 
government— the principle of development — development of locality 
and of services — instances of development. of locality — boroughs — 
county boroughs — London county — parishes — instances of develop- 
ment of services — parish services — county services — case of London 
—instances of development of local services into national services — 



ANALYSIS OF CONTENTS xv 

prisons — police — metropolitan police — poor law — services of general 
utility inure to the benefit of property. 

Lecture VII 

Taxation in relationship to the general principles of local govern- 
ment — present system of Imperial and local taxation — not corre- 
lated — absence of information concerning — principle of taxation is 
co-sharing of taxpayers — extent of co-sharing of Imperial taxes — 
of local taxes^omplexity of the latter — early system of taxation 
was according to benefits-example of the poor rate and other rates 
— local expenditure a benefit to property — the term remunerative — 
services of local government are remunerative services — examples 
from early Estate Acts — taxation according to benefit — development 
of taxation according to co-sharing — co- sharing does not ' eliminate 
the principle of benefit^lassification of the benefits according to 
the systems of taxation— benefits accrue to property. 



DEFINITIONS OF LOCAL GOVERNMENT 

IT IS the object of these lectures to determine 
the principles of local government — that is to 
say, the principles of local government as 
they appear from the English evidence. I am 
bound thus to limit the subject which I wish to 
treat upon, because of the time at my command, 
and also for the sake of conciseness. But the limit 
is not altogether an evil, for principles, be it remem- 
bered, once properly determined are not altered by 
geography. 

I shall approach the subject solely from the 
standpoint of a scientific analysis of the phenomena 
presented ; and if occasionally the terminology I am 
compelled to use embraces expressions which un- 
fortunately are tainted by being included in the 
vocabulary of modern politics, I wish you to bear 
in mind that such expressions in these lectures bear 
their literal or scientific sense only. 

Local government is that part of the whole 
government of a nation or State which is adminis- 
tered by authorities subordinate to the State 



2 PRINCIPLES OF 

authority, but elected, independently of control by the 
State authority, by qualified persons resident, or hav- 
ing property, in certain localities, which localities 
have been formed by communities having common 
interests and common history. 

Before discussing the terms of this definition I 
have something to say about the general consider- 
ations which it suggests. 

This definition does not apply to State govern- 
ment in federation, such as the government of 
Austria and of Hungary under the Austro- Hun- 
garian Empire, and the government of the different 
states in the United States Republic and in the 
Swiss confederation. Fortunately, too, it excludes 
the question of Home Rule for Ireland. But so far 
as this definition applies to any portion of a political 
society — a nation, kingdom, or empire — it presents 
to us that portion separated off, as it were, from 
all other portions in respect of those matters of 
government which are administered by the elected 
body of representatives for the area. The supreme 
or State government has no administrative juris- 
diction within the local area in respect of the 
matters administered by the elected representatives 
of that area; while, on the other hand, the electors 
of the local representative body may be, and in our 
own country are, as a matter of fact, in conjunction 
with the remainder of the electors of the country, 



LOCAL GOVERNMENT 3 

electors also of the representative body which forms 
a part of the State government. Thus each local 
representative authority derives its being from a 
portion of the same electorate from which the State 
representative authority derives its being ; and all 
the local representative authorities together derive 
their being from practically the same electorate 
from which the State representative authority de- 
rives its being. 

These are the general qualifications or extensions 
of the definition of local government, and I have 
next to point out the special qualifications or exten- 
sions. These are due to the legislative activity of 
the past hundred years. It will be found that 
legislation has not been favourable to the develop- 
ment of local government, that it has supervened 
in a harassing sort of way, and has introduced into 
the governmental system of the country institutions 
that are not local government and that are not State 
government, but which have been clothed with some 
of the attributes of each. This process has been 
fatal to real development. A tendency towards a 
local development has been stopped by the attri- 
butes of State government, and a tendency towards 
a State development has been stopped by the attri- 
butes of local government. 

In one sense I do not think it is going too far 
to say that local government in its true form is that 



4 PRINCIPLES OF 

part of the whole government of the country which 
has not been surrendered by localities to the State 
but has ever remained in the hands of the com- 
munity of persons who originated it. The institu- 
tions of Anglo-Saxon and mediaeval Britain would 
entirely sanction this statement, and in more primi- 
tive civilizations of the present day, such as those 
represented by India and by Russia, this view would 
be absolutely correct. But in England of to-day it 
is in no sense entirely correct, because of the legis- 
lative action I have just alluded to ; and in the mind 
of the jurist it is not even partially correct. He 
would triumphantly point to the case of the 
boroughs, the most powerful of local institutions, 
and claim that the frequent surrender of their 
charters and the re-grant of them by the sovereign 
shows that local government in the boroughs is 
simply a system derived from the State, and he 
would still further point out that the fateful words of 
the Municipal Corporations Act of 1835 — "so much 
of all laws, statutes and usages, and so much of all 
royal and other charters and letters patent now in 
force as are inconsistent with or contrary to the 
provisions of this Act shall be repealed and an- 
nulled "—confirm his view. He would point to 
the dispossession of the counties of their ancient 
powers since the reign of Edward I., and the 
re-grant of powers by the statute of 1888 ; and to 



,\ 



LOCAL GOVERNMENT 5 

the dispossession of the townships of their ancient 
powers, in favour of seigniorial jurisdictions and of 
bodies created by legislation, and the re-grant of 
powers to the parish as the successor to the town- 
ship ; and he would claim that this dispossession and 
re-grant of powers in the case of counties and 
townships further confirmed his view that local 
government is derived from the State. 

Of course the arguments of the jurists are based 
upon abstract principles, formulated with a view to 
legislation rather than with a view of historical 
development. But local government is both his- 
torical and legislative in its origin, and the latter has 
certainly not destroyed the influence of the former. 

For the purpose of distinguishing the two classes 
of local government which appear thus early in the 
subject-matter I have to present before you, I shall 
have to introduce rather ugly terms, and it will be 
convenient if I formally state what these terms are. 
The two classes I shall term Local Government 
properly -so-called, and ' Quasi-Local Government. 
The justification for these terms will, I hope, appear 
in the final results of these lectures, but I may say 
at once that they are founded upon the distinctions 
in origin and development of the local governments 
which make up each of the two classes — distinctions 
which will appear often in the course of these 
lectures. 



6 PRINCIPLES OF 

The legislative activity which has produced this 
cleavage between different forms of local government 
was not primarily concerned with local government. 
It had gradually come to be recognised that new 
functions of government must from time to time be 
created to meet the growing requirements of civilized 
society, and the administration of these new functions 
had to be delegated to an authority other than the 
State authority itself. Every year almost has wit- 
nessed some law placed upon the Statute Book which 
marks a new departure in the functions allotted to 
Government authority. The Education Act of 1870 
is the most familiar illustration of this, and the Light 
Railways Act of 1896 is the latest. These new func- 
tions have sometimes been imposed upon authorities 
directly commissioned by the State ; sometimes upon 
local authorities already existing by custom, or by 
ancient statute ; sometimes, as a matter of special 
legislation, upon newly created authorities — authorities 
created at the same time and in the same statute as 
that which created the functions. These alternative 
methods of carrying out the new functions of govern- 
ment created from time to time have seldom or ever 
been determined upon a settled plan or principle, 
either with reference to the kind of functions to be 
performed or with reference to the area or locality 
immediately concerned with them. 

I pause for one moment to point out the different 



LOCAL GOVERNMENT 7 

influences which the creation of new functions of 
government exercises. Some of these new functions 
will be of a character which governing authorities 
might strongly desire to possess, which they might 
separately attempt to obtain the sanction of Parlia- 
ment in order to possess, or which they might 
conjointly attempt to obtain the sanction of Parlia- 
ment in order to possess ; and the struggle for 
possession of these functions might rest between 
the local or subordinate authority and Parliament, 
or it might rest between the local or subordinate 
authority and some private interest which is not a 
governing authority at all. Again, others of these 
functions will be of a character which governing 
authorities would not desire to possess, but which 
Parliament, in the interest of the community at large, 
might seek to impose upon local or subordinate au- 
thorities. While it is obvious, therefore, that these 
two classes of functions produce two different kinds 
of influence upon the course of local government, it 
is also clear that they have caused the problems of 
local government to enter a wider sphere of inquiry 
than is represented by the surface views of the 
subject. 

Thus local government does not consist merely 
of certain established phenomena easy to analyse 
and classify ; but is a complex subject, represented 
partly by established phenomena and partly by an 



8 PRINCIPLES OF 

indeterminate group of functions which have not yet 
wholly ceased to belong to private interests or have 
not yet been imposed by the State as local government 
duties. The functions already established have only 
attained that position by long-existing custom, and it 
will be found that they do not differ in kind from 
the undetermined functions. In the meantime, the 
growth of new functions of government has called 
into existence governing authorities other than local 
governments ; so that the government of the country 
is now carried on partly by the State executive 
authorities and partly by subordinate authorities, 
which consist of three different classes — namely, local 
government, quasi-local government, and State com- 
missioned authorities. I shall have to examine these 
different classes of subordinate authorities in detail 
presently, but here I want to impress you with the 
fact that local government has now become one class 

of the subordinate authorities which the State utilizes 

« 

for the purpose of carrying on those functions of 
government which it determines shall not be carried 
on by the State itself. 

Now when it is remembered that this position of 
local government, as one of three classes of subor- 
dinate authorities, has been brought about by the 
accidents of modern legislation, which, when measured 
by the admitted triumphs of local government during 
a period stretching certainly as far back as the 



wnii# ii*9efwsrBrf 



LOCAL GOVERNMENT 9 

Norman Conquest, must be considered singularly 
deficient in the capacity for producing any kind 
of triumph in the art of government, it must be 
conceded that the position of local government is not 
satisfactory. The fact is that its development along 
natural lines has been arrested by a legislative force 
whose effect is out of all proportion to its ascertained 
merits. While these merits are at present an un- 
known factor, the merits of local government are 
stamped on the constitutional history of the country, 
and are exhibited in the almost passionate adhesion 
to the terms and forms of local government in cases 
where the spirit and reality of it are entirely want- 
ing. 

There is one other observation to make at this 
stage. The fact that local government takes rank 
among the subordinate authorities of the country 
brings it into touch with those definitions of govern- 
ment which the lectures of John Austin nearly seventy 
years ago brought to such remarkable maturity. 
This great jurist made the first principles of govern- 
ment by a sovereign authority known to all the trained 
thinkers of the nation, and not the least among the 
beneficial results of this knowledge was the abolition 
of all those bitter and lengthy controversies on the 
principles of government which are associated with 
the phrases **law of nature," "original contract," 
" passive obedience," "patriarchal authority," "divine 



10 PRINCIPLES OF 

right of kings," etc., which were flung about so 
disastrously during the eighteenth century. But the 
principles of government by authorities not dependent 
upon Parliament or the Crown, but which are, never- 
theless, entrusted by Parliament and the Crown with 
certain functions of government, were never enquired 
into by John Austin and his successors, and have 
never been enquired into and determined up to the 
present time. 

Disastrous as was the position of Parliament and 
the Crown before the scientific definition of govern- 
ment, the position of local authorities, owing to the 
want of a proper and recognised definition of local 
government, is still worse. They are not only the 
sport of ** the multitude," but they are the sport of 
Parliament. All sorts of unqualified persons rush in 
and make proposals for the settlement of some local 
government matter with the magnificent irrespon- 
sibility which is born of ignorance. Of course many 
of these proposals kill themselves by their own 
inherent folly, but many live for a time, and some live 
on for years. But all, whether they die quickly or 
live to maturity, serve to distract the public mind 
from settling down to a system, serve to make busy 
people devote their energies to the destruction or the 
defence of first principles, instead of to the application 
of first principles to new facts, serve to make all local 
government in some minds a by-word and sport, 



LOCAL GOVERNMENT ii 

instead of a matter of very serious import. If any 
one of you would take the trouble to collect the many 
schemes which have been suggested during the past 
forty years relative to the government of London, 
you will not only illustrate my point most successfully, 
but you will prove how mischievous it is for these 
important subjects to remain unsettled. Those of you 
who may have,' or have already had, occasion to 
consult the local taxation accounts published by the 
Local Government Board will have a still better 
opportunity of testing my statement, for it is a start- 
ling fact that in no single case — not in London, not 
in any of the great boroughs, rior in any of the small 
ones, not in any of the newly created districts, nor 
even in a single parish, or a single county — is it 
possible to ascertain, even by minute examination, the 
local taxation receipts, expenditure or debt of a rating 
area. The accounts are analysed, not from the point 
of view of local taxation, but from that of imperial 
accounting ; they are grouped, not according to 
locality, the basis of all local taxation, but according 
to the administrative authority — in short, there is 
nothing but the title to identify them with local 
taxation. 

This was the general position of things before the 
Acts of 1888 and 1894, and these Acts have rendered 
it possible to make an attempt towards settlement of 
principles. It would not have been possible before 



12 PRINCIPLES OF 

1888 — ^at least, not without first performing a task 
which could not have come within the compass of 
the lecture room. There then existed localities 
(county and parish) without government, or with- 
out suitable or applicable government, and there 
existed government (highway authorities, lighting 
authorities, drainage boards, and the like) without 
localities, or without localities of a definite char- 
acteristic. With incongruities and inconsistencies 
such as these marking the very starting-point, it 
is not surprising that they should be accompanied 
by other incongruities and inconsistencies at every 
stage. Indeed, it is almost inconceivable into what 
an inextricable maze the so-called local government 
system of England had got Let me try to give an 
idea of what I mean by means of a few statistics. 
While the localities to be governed were 15,039 in 
number, the governing authorities for these localities 
were as follows : — 

Parish Vestries 14,684 

Guardians of Poor Law Unions and Parishes . 648 

Municipal Authorities 303 

County Authorities 52 

Highway Authorities 6,849 

School Boards 2,296 

Urban Sanitary Authorities 723 

Rural Sanitary Authorities, independently of the 

Guardians who acted as such ... 74 

Burial Boards 908 

Lighting and Watching Inspectors . . . 174 

Vestries and District Boards of Tx)ndon . . 42 



mmm 



LOCAL GOVERNMENT 



Commissioners of Sewers 


» 








SI 


Drainage and Conservancy Boards 
Fishery Boards .... 
Harbour Pier and Dock Trusts . 






230 
60 

88 


Joint Boards 

Port Sanitary Authorities 

Commissioners of Baths 










41 
57 
28 


Library Commissioners 
Conservators of Commons 










29 
4 


Market Commissioners 










4 


Bridge and Ferry Trustees . 










16 



13 



In all some 27,cxx) different governing authorities, 
having conflicting jurisdictions, conflicting areas, and 
all the expensive luxuries of separate and independent 
life. The Act of 1894 abolished nearly 8,000 of these 
redundant authorities, and once again introduced the 
element of locality into local government ; the fiat of the 
Local Government Board in 1896 promised to add 
to their number by creating a new special authority 
for pauper children ; the policy of the Government in 
reference to the London water question promises to 
make a further addition, by ignoring the locality of 
London in favour of an area formed accidentally by 
the legislative movements of water supply. 

Thus, then, we have as primary elements of the 
subject to be treated of in these lectures one or two 
definite facts — namely, the carrying on of a part of the 
government of the country by authorities subordinate 
to the State government ; the division of these sub- 
ordinate authorities into authorities dependent upon 



14 PRINCIPLES OF 

the State and authorities not dependent upon the 
State ; the position of local government as the origin 
and chief constituent of authorities not dependent 
upon the State ; the indefinite position which local 
government thus holds in the national system, and 
the anomalous results which have arisen by the 
indiscriminate creation of new authorities for the 
administration of new functions. 

So much, then, for preliminaries. 

I must next trouble you with one word as to 
methods. There are two separate methods of arriving 
at the final results to be determined — namely, the 
historical and the analytical. The historical method 
will show how it was that certain well-defined parts 
of the kingdom have grown up as units of govern- 
ment, and how certain well-defined functions of 
government have been carried on by the community 
composing these units. The analytical method will 
show, first, that history, having presented to us cer- 
tain well-defined localities with certain well-defined 
functions of government, has now altogether ceased to 
contribute to the elucidation of the principles of local 
government ; and, secondly, that the necessities of the 
community compel us to turn back from history, or 
from what has been allowed to grow up with the 
centuries, to utility, or what should be for the benefit 
and happiness of the greatest number. Both 
methods, therefore, are necessary to our purpose, 



\ 



LOCAL GOVERNMENT 15 

and both methods will be used each in its respective 
sphere. 

I am now ready to go back to the definition of local 
government with which I commenced this lecture. I 
shall consider this definition, first, with reference to 
the meaning and scope of the term local, locality ; 
secondly, with reference to the meaning and scope of 
the term government, including therein the connected 
terms authority and sanctions for authority. 

First, then, with reference to the term local The 
localities of local government are primarily of two 
classes : local, properly so-called, consisting of counties, 
boroughs, and parishes ; and quasi-local, consisting of 
poor-law unions, urban and rural districts, and districts 
carved out arbitrarily for special purposes. 

Of these, the localities properly so-called, in the 
sense appertaining to local government (that is, the 
county, the borough, and the parish), are the oldest 
local units of the country. By this I do not mean 
that there is any special antiquity about the names 
county, borough, and parish, but that the localities 
(apart from the name) which are now known as coun- 
ties, boroughs, and parishes are of almost unknown 
antiquity. They are not the creation of an Act of 
Parliament ; they are not, or rather the oldest ex- 
amples are not, the creation of the sovereign monarch 
by charter or other instrument of royal prerogative ; 
they are in a sense older than the State itself. Act of 



i6 PRINCIPLES OF 

Parliament and charter have, in the course of the 
long period during which counties, boroughs, and 
parishes have existed, altered the area of the localities, 
altered the constitution of the governing authority of 
the localities, added new counties and new boroughs 
modelled upon the old examples, but throughout all 
changes counties, boroughs, and parishes have never 
ceased to appear upon the map of England as locali- 
ties which share independently in the government of 
the country. The influence of these localities has 
been great in the land. They have always been ready 
to hand for the use of the State government, when- 
ever emergency or occasion has arisen, and their pre- 
scriptive and traditional existence has ever been able 
to resist serious innovation upon their boundaries. 
Their powers of government within their own areas 
began by being rights and privileges which did not 
exist generally throughout the land, and the rights 
and privileges often obtaining by virtue of custom 
and tradition have served to stamp the localities in a 
special sense as indestructible parts of the kingdom. 
When King William I., as a conqueror to the con- 
quered, granted to London, "that ye be all law- 
worthy that were in King Edward's day ; and I will 
that every child be his father's heir after his father's 
day, and I will not endure that any man offer any 
wrong to you," and when Exeter claimed the position 
of an almost independent state, and would only ac- 



LOCAL GOVERNMENT 17 

knowledge William as Emperor of Britain, not as 
their immediate king or over-lord, the great conqueror 
was dealing with localities which had not yet come 
under the Norman principle of government, and which 
were helping to form the principles which we are 
at this distant date considering. Local government, 
therefore, is not in its inception the result of the con- 
sidered determination of the wise or of the schools and 
philosophers, but is the result of an unconscious social 
development ; and it comes to this age sanctioned by 
the combined forces of tradition and sentiment, rather 
than of reason. No doubt reason and necessity have 
entered into the considerations which have allowed the 
continuation of the traditional forms of local govern- 
ment, but reason and necessity have never consciously 
dominated the forces which have kept up local 
government. The Norman nobility who arose from 
the conflict against the West Saxon army at Hastings 
were covetous of extensive estates and hereditary 
jurisdictions, the possession of which in the long run 
crippled the ancient power of the king and the system 
of local government which existed among the people. 
Then followed the struggle between the Crown and 
the Barons, which had the effect in turn of compelling 
the kings to foster every remnant of local independ- 
ence amongst the English, as a check on the rebellious 
and tyrannical policy of the great feudatories (Stubbs, 
Historical Documents^ p. 76). Then came the rise of 



i8 PRINCIPLES OF 

the Commons House of Parliament, who regarded 
with jealous consideration the existence of jurisdictions 
outside the scope of the State administration, and 
who, up to 1888, arranged for the carrying out of the 
gradually increasing body of new functions of govern- 
ment by almost every possible device except that of 
local government, and to which we owe that pernicious 
system of creating a fresh authority for almost every 
separate function newly created — a system mischievous 
in its conception, though largely due to the influence 
of Jeremy Bentham, and mischievous in its results, 
though it includes within it the system of public 
elementary education by school boards, 

I next turn to the quasi-localities. These are poor- 
law unions, county districts, and districts for special 
purposes. The history of the poor-law unions shows 
how very slightly locality has entered into the con- 
siderations which have determined their government ; 
it has not been the common interests of a locality, but 
the administrative interests of the poor-law system as 
viewed by the central government department, which 
has determined the government of the unions; and 
therefore they appear on the map out of gear with all 
the other localities, as if superimposed by a people 
wholly different in race and political instincts from 
those who had formed the municipal areas. First of 
all, the so-called Gilbert's Act of 1782 empowered 
adjacent parishes to unite for poor-law purposes, and 



LOCAL GOVERT^MENT 19 

sixty-seven unions were thus formed. Then the Act 
of 1834 gave power to a central board to divide the 
whole country into districts. The net result of all 
this legislation is that in England the poor-law system 
is not really a local system. 

The county districts (urban and rural) in their origin 
do not much differ from the poor-law union, but they 
have been more fortunate in their history. Formed 
for the purpose of carrying out the general sanitary 
laws, they were carved out upon no principle which 
depended upon the common interests of a locality. 
They were made out of divided parishes, out of 
parishes joined together, out of bits of parishes joined 
to bits of other parishes ; they freely cut county 
boundaries, although generally they were made to 
conform to poor-law boundaries. Called into being 
for the purpose of fixing a boundary within which 
laws applicable to the whole country were to be 
administered, they were determined by the principle 
of a central governing authority. The Act of 1894 
has, however, done much for them. It gave them 
a definite relationship to the county and to the county 
authority, and their future development is likely to 
conform to the principles of local government. 

Districts for special purposes are not based upon 
considerations of local government at all. Thus the 
Metropolitan Police District is administered from the 
Home Office, with the views of the Home Office 



20 PRINCIPLES OF 

dominating the whole, and with the result, if I mistake 
not, that London and the associated areas are paying 
partly for a national police force and partly for a 
local force. Other districts are formed for purposes 
such as drainage, river conservancy and the like, the 
basis being, not the common interests of a locality, 
but the administrative interests of a particular ser- 
vice. 

It will have been gathered, then, that these districts 
are local, in the sense applicable to local government, 
in a manner entirely different from that in which 
counties, boroughs, and parishes are local. Locality 
in their case was not the cause but the result of the 
granting of governing functions. In the one case, 
locality, being fixed and permanent, and possessing 
already considerable powers of self-government, is the 
force at work to attract new functions of government 
to it, as new functions are created ; in the other case, 
locality has no force at all, and is only created for 
the purpose of forming a boundary line within which 
certain new and limited functions of government 
may be administered. These functions are in the 
main those that must be administered uniformly 
throughout the country The limits of choice are 
very few. Poor-law authorities for instance, may 
decide to develop their indoor or outdoor system of 
poor relief, but, whichever system is adopted, the relief 
of the poor is the one object attained and attainable. 



LOCAL GOVERNMENT 21 

With district councils the latitude is wider.' They 
may decide to control their own water supply ; they 
may administer other optional Acts; but their main 
duty, the public health Acts, is designed to be ad- 
ministered upon a uniform basis. 

Locality, then, is the dominant factor of local 
government. It is the force which has made counties, 
boroughs, and parishes remain in undisturbed posses- 
sion of the most important and the most element- 
ary feature of government — namely, freedom from 
central control ; and which has kept them intact 
geographically during all the centuries which have 
witnessed attacks by the Crown, by the feudal nobles, 
by the modern nobility, and by Parliament It is 
the force which lies at the back of the promised 
system of decentralization of parliamentary functions, 
which is so often spoken of as one of the necessities 
of modern times. It is the force which to a large 
extent determines the character of the governing 
authority, and differentiates the forms of local govern- 
ment into the two classes which have just been ex- 
amined. 

I have so far discussed the definition of local 
government with special reference to the term local. 
I must now draw your attention to the definition of 
local government with reference to the term govern- 
ment. There is to consider, first, the authority 
governing ; , secondly, the sanctions for governing. 



22 PRINCIPLES OF 

The authority governing a locality in the sense of local 
government is a body elected by qualified persons 
living or holding property within the bounds of such 
locality. The electorate, therefore, is really the 
governing authority, the elected members being the 
body to whom, for a certain period, the larger body of 
electors has delegated its governing powers. The im- 
portant point about this feature pf local government is 
that the governing body is in no sense appointed or 
directed by the State government, and I draw special 
attention to it because in the only passage where 
John Austin has touched upon this branch of govern- 
ment he uses language which appears to me to be 
singularly unsuitable. Reviewing ** the status or con- 
ditions of subordinate political superiors," he includes 
among the classes bearing political conditions the 
following: — "4, Persons commissioned by the State 
to instruct its subjects in religion, science, or art. 5. 
Persons commissioned by the State to minister to 
the relief of calamity — e.g.y overseers of the poor. 6. 
Persons conimissioned by the State to construct or 
uphold works which require, or are thought to require, 
its special attention and interference — e.g.^ roads, 
canals, aqueducts, sewers, embankments." 

I am not anxious to dwell upon the limitations 
of this classification of subordinate authorities in 
the sense of local government, because they are partly 
due to the date when Austin wrote and pardy to 



LOCAL GOVERNMENT 23 

the fact that he did not live to complete his outline. 
What I do want to dispose of is the phrase 
"commissioned by the State." Local authorities 
are not commissioned by the State. They are 
elected by their own constituencies, independently of 
State control ; they perform the functions of govern- 
ment which belong to them almost entirely in their 
own way and entirely at their own cost. I am aware, 
of course, of the limitations which may be advanced 
against this way of stating the position of local 
government — the supervisory powers of State de- 
partments in some matters of local administration, 
the grants from Imperial taxation towards the cost 
of some local services, supply the chief of these 
limitations. But these are concerned chiefly with the 
new functions and the new authorities created by 
legislation ; that is to say, they belong to the element 
of quasi-local government, the functions of which are 
more often subject to control by the State than they 
are free from such control. 

Indeed, it is not an exaggeration of terms to assert 
that local government possesses an enormous strength 
in its ancient derivative force as a representative 
authority— a force which is in these days sufficiently 
strong to endow it with just so much power as the 
electorate choose to demand in real earnest* All such 
demands are far less jealously regarded than similar 
demands on behalf of subordinate authorities com- 



24 PRINCIPLES OF 

missioned or deputed by the State. In a sense I 
do not see how the elected representatives of the 
nation would deny to the elected representatives of 
the whole number of self-governed localities any 
powers strongly and persistently demanded, for the 
electorates in each case are practically identical. And 
it is only a question of the moment as to what powers 
might be denied to any one or more localities which 
were not desired by other localities. 

The second part of the consideration of the term 
government in the definition of local government has 
reference to the sanctions for governing. According 
to the legal classes into which such sanctions fall, they 
are four in number. They are (i) a considerable code 
of customary law, not contained in charter or Act of 
Parliament; (2) Positive law of a general character, 
or positive law which applies to all localities alike — 
such, for instance, as the public health Acts; (3) 
Positive law of a particular character, or positive law 
which applies to a locality, if that locality chooses to 
put it into force — such, for instance, as the so-called 
adoptive Acts relating to free public libraries, etc. ; or, 
again, positive law which applies to only one locality — 
as, for instance, the many private Acts obtained by 
localities in almost every session of Parliament ; and 
(4) By-laws enacted by the local authority for the 
good government of the locality, and being in form 
an Act of legislation. 






LOCAL GOVERNMENT 25 

It would be idle to deny that these sanctions, differ- 
ent as they are in legal classification, different as they 
are in origin, do not now depend upon State justice 
and police for their ultimate force ; and herein lies the 
fundamental difference between ancient and modem 
forms of local government. Let me draw the picture 
for you partly from the pages of Mrs. Green's admir- 
able book on Town Life in the Fifteenth Century. 
In the early days the inhabitants of the municipal 
towns defended their own territory, built and main- 
tained their walls and towers, and held reviews of 
their forces at appointed times ; they elected their own 
rulers and officials in whatever way they themselves 
chose to adopt, and distributed among officers and 
councillors just such powers of legislation and admin- 
istration as seemed good in their eyes ; they drew up 
formal constitutions for the government of the com- 
munity, and made, and remade, and revised again their 
ordinances ; no alien officer of any kind save only the 
judges of the high court might cross the limit of their 
liberties ; the sheriff of the shire, the bailiff of the 
hundred, the king's tax-gatherer or sergeant-at-arms 
were alike shut out; the townsfolk themselves assessed 
their own taxes, levied them in their own way and 
paid them through their own officers; they claimed 
broad rights of justice ; criminals were brought before 
the mayor's court, and the town prison, with its iron 
and its cage, the gallows at the gate or on the town 



26 PRINCIPLES OF 

common, testified to an authority which ended only 
with death; in matters that nearly concerned them 
they possessed the right to legislate for themselves, 
and when they were not allowed to make the law, 
they at least secured the exclusive right of administer- 
ing it (i. pp. 1-4). 

Now, however, this is changed. Whether the 
State authority exercises wholly new functions un- 
known to the Middle Ages, or takes over to itself 
powers which once belonged to local authorities, 
and makes them serve national, instead of local, 
ends ; whether it asserts a new direction and control 
over municipal administration, or whether, instead 
of replacing local authorities by its own rule, it up- 
holds them with the support of its vast resources and 
boundless strength, every townsman, every burgher, 
every shireman feels that the State Government, 
which he helps to constitute by his vote, is charged 
with the final sanctions for all government {cf. ibtd.y 
pp. 124-125). But there is still a great force, moral 
if not legal, sentimental if not constitutional, in what 
may be termed the intermediate sanctions of muni- 
cipal custom and municipal rule. I am compelled to 
say municipal here, because in the towns and in the 
counties the great sanctions of local government have 
been stifled out, though not, I hope, for so long a 
time as to be incapable of being revived by the new 
life which is now opened out to them* These sanctions 



LOCAL GOVERNMENT 27 

are derived from all that is best in our natures — from 
the love that we bear to our birthplace, to our place 
of up-bringing, to the familiar scenes of our playing- 
time and our work-time, of our griefs, misfortunes, 
and cares, of our successes and good fortune — to our 
fondness for being classed as Kentish men, as Dorset- 
shire men, or even as Londoners. They are derived, 
too, from the demands of science, which have laid bare 
some of the first necessities of health and of life, 
particularly in places with crowded populations, and 
which are found to be necessities only to be met by 
common action. Finally, these sanctions are derived 
from economical considerations. Strong and power- 
ful, therefore, as are the sanctions for local govern- 
ment derived from the State law and State police, the 
sanctions proceeding directly from local government 
itself are as strong. Because they are put in motion 
constantly^ and because they operate quietly and upon 
great masses of people, they are not so much in 
evidence as the State sanctions, which are only put 
in motion when the municipal sanctions have failed ; 
but, if I mistake not, it is the constant action and 
wide operation of these sanctions of local government 
which are the real cause of the new departure in 
modern legislation relating to local government 
matters. 

Looking back upon the distinction which I have 
drawn between the two classes of local governments, 



28 PRINCIPLES OF 

It will be seen that while in the matter of locality the 
local governments properly-so-called and the quasi- 
local governments were not on the same footing, in 
the matter of representative governing authority they 
are quite on a par. This, indeed, is the real force 
which has given quasi-local government its vitality. 
The election of a representative authority, even if its 
powers are limited to the administration of certain 
fixed duties, is a force which tells for good. When 
that force is combined with the force which is derived 
from a locality fostered under the influence of common 
interests of long-continued standing, or of strong, 
immediate character, the tendency is towards local 
government of the true type, — county, borough, or 
parish ; and it is to these combined forces that we owe 
the growth of the modern municipal borough, and, in 
the case of London, of the modern county — a growth 
that will compel us to consider a great principle of 
local government later on : namely, the principle of 
development One other point will have become 
clear to you : namely, that localities properly-so-called 
have, in a sort of unconscious fashion, served as 
models for the purpose of extending the machinery 
of government by authorities subordinate to the State, 
and hence the idea of local government has become 
a fixed point in the national will. It is from this idea 
that has proceeded so much of the political talk about 
local government, and so much of the credit allotted 



LOCAL GOVERNMENT 29 

to England as the mother-home of local government. 
But in being satisfied with the idea much of the sub- 
stance has not been obtained. Indeed, the very loose- 
ness with which the models have been copied testifies 
to the fact that localities have never been allowed to 
develop their own system of government in a natural 
way, in the same manner as they developed down to 
the end of the Middle Ages, Everything is now 
governed, not by the needs of the locality, but by the 
cast-iron mould of legislation, which allows no room 
for even some of the elementary difficulties, and cer- 
tainly not for the greater difficulties attending the 
growth and expansion of localities from the condition 
of a simple parish to that of a borough, or of a group 
of parishes to that of a county. 

If I have succeeded in fixing attention upon the 
primary elements of local government, and if, further, 
I have shown that the growing functions of govern- 
ment which must be delegated by the State affect 
very largely the future of local government, there is 
still another part of the subject which must be dealt 
with in this preliminary survey — namely, the position 
which local government holds in reference to the other 
subordinate authorities of the State, Let me remind 
you that local government derives its power from, and 
is answerable to, the electors — a portion of the whole 
body of electors who form the representative element 
of the State government; and that the other sub- 



30 PRINCIPLES OF 

ordinate authorities derive their power from, and are 
answerable directly to, the State government 

Now we have already seen that local government 
in modern times practically forms two out of three 
classes of subordinate authorities which it has become 
necessary for the State to use or to create for the 
purposes of carrying on the affairs of the country. In 
order to understand the position of local government 
in relation to the State, apart from local government 
itself, it is necessary to give a very short account of 
that third class of subordinate authorities which are 
not wholly devoted to local affairs. I am obliged to 
say "not wholly devoted," because it will be found 
that they include one kind of authority which performs 
functions of strictly local government. 

This class of subordinate authorities consists of 
(i) the judges and other ministers of justice; (2) 
central departments of jState, like the Board of Trade, 
Local Government Board, Patent Office, and other 
sections of the Civil Service ; (3) commissions ap- 
pointed by the State government, and responsible to 
the State government The two first of these sub- 
ordinate authorities need not concern us more than is 
sufficient to take note of their constitution in relation 
to the State. But commissions appointed by the 
State closely touch the subject of local government 
Up to the year 1888 the counties were entirely in the 
hands of such commissions ; there are a few of them 



LOCAL GOVERNMENT 31 

left elsewhere who perform functions generally per- 
formed by local governments. These were created 
for some special purposes of drainage, fisheries, docks, 
river conservancy, and the like, and, in the case of the 
Home Counties and London, of police. They pos- 
sess in most cases powers of taxation, direct or in- 
direct, and they are not responsible to the locality 
which is taxed, but only to the State. Standing in 
direct contrast to local government, locality is no real 
or essential element in their constitution or their re- 
sponsibilities. What they have to do with is a section 
of the kingdom, not a locality. The duties they have 
to perform are not for the locality, but for the State. 
The contrast is, of course, a vital one, though I think 
it is but little understood. 

We can now, I think, venture upon a preliminary 
classification and definition of the elements of govern- 
ment with which we have to deal for the purpose of 
determining the principles of local government. That, 
on the one hand, we have found local government in 
a sense the basis of a system of quasi-local govern- 
ment, and, on the other hand, in a sort of conflict with 
commissioned or deputed government, shows clearly 
enough that local government is not of itself a simple 
element, but part of a larger, complex subject, to the 
divisions of which it stands in definite relationship. I 
shall not at this stage be able to attempt definitions 
which will answer to all the requirements ; but those 



32 PRINCIPLES OF 

elements which have been brought into prominence 
in this lecture provide sufficient material for the prac- 
tical working purposes of making the subject clear as 
far as we have hitherto proceeded. 

The elements of government which thus occur for 
classification and definition are as follows : — 

1. The State has allowed for many centuries, and 
still allows, certain localities within the national area 
to be governed, in all but State matters, by elected 
representative authorities. 

2. These localities are counties, boroughs, and 
parishes, and cover between them the entire area of 
the kingdom. 

3. The functions of government exercised by these 
localities are not all confined to independent areas ; 
thus the councils of the counties exercise functions 
within some boroughs and within all parishes ; the 
borough councils exercise functions within parishes. 

4. The State has created from time to time new 
functions of government, and is still continuing to 
create new functions. 

5. The State has imposed these new functions on 
county councils, on borough councils and on authori- 
ties created for the special purpose for an area of a 
quasi-local character. 

6. The characteristic of these newly created func- 
tions of government is that they must be administered 
upon a common plan or standard all over the king- 



LOCAL GOVERNMENT 33 

dom, or the neglect of one locality may become an 
injury to the nation ; those functions which do not 
come under this definition are generally specifically 
optional in their character. 

7. The cost of administration is met by the tax- 
payers, direct or indirect, of the locality for which the 
functions of government are carried out. 

8. Certain functions of government generally exer- 
cised by self-governed localities are in some cases 
exercised by commissions appointed by the State. 

9. Certain supervisory and legislative functions of 
local government are exercised by departments of the 
State — the Local Government Board and the Board 
of Trade. 

10. Other functions of government are exercised 
by subordinate authorities of the State for State pur- 
poses only, and having no relationship to local govern- 
ment. 

These definitions, I think, contain the chief ele- 
ments of the subject as they appear from the analysis 
attempted in this lecture. The particular value of 
each element in determining the principles of local 
government does not appear here, but will, I hope, be 
made evident as I proceed with the subject, but the 
order in which I have, by the logic of the case, placed 
these different elements is a matter for consideration 
at this point. 

The localities which have been self-governed from 



34 LOCAL GOVERNMENT 

the earliest times of our constitutional history, or 
which have been granted self-government on the same 
principle, as the earliest cases stand first among the 
subordinate authorities of the State ; while the localities 
created to serve special purposes have no place until 
after the element of new functions' of government has 
been brought into being. The problems of local govern- 
ment hinge round these two classes of institutions, and 
the lectures to which I shall have to ask your attention 
will be devoted to settling, or attempting to settle, some 
of the questions which arise out of these problems. Such 
questions are not idle academics. They are the ques- 
tions, or some of the questions, which have failed to 
be answered hitherto on occasions when the demand 
for answers has been of a singularly urgent nature. 
London, for instance, put these questions in 1855, and 
at several periods since then have these selfsame 
questions been put on behalf of the capital of the 
empire. Partly answered in 1888, they are being put 
again in the present day with all the passion of con- 
flicting parties. It is, however, not amidst conflict 
that such questions can be answered. The appeal is 
to the analytical inquirer, and the subject-matter is the 
principles of local government as determined in history 
and by the doctrines of general utility. 



II 

LOCALITIES— COUNTIES 

WE have, as I showed in my first lecture, to 
start with the existence of localities, pro- 
perly so-called. If I had been following 
strictly the analytical method of inquiry, it would 
doubtless have been necessary to first determine what 
the functions of local government are, or may be ; 
and then to have determined what the form, powers, 
and constitution of the local authority are, or may be. 
But I do not reject the lessons of historical develop- 
ment, and I hold that it is not only logical, but essen- 
tial to begin with the facts of history, and to proceed 
from these to the conclusions to be based on the 
doctrine of general utility. 

The localities, properly-so-called, have been already 
named as counties, boroughs, and parishes, and it is 
important to bear in mind that between them they 
cover the entire area of England and Wales ; or, to 
put it in another way, the entire area of England and 
Wales contains within it a certain number of localities, 
properly-so-called, and there is no part of this area 
left outside these localities. I hope you notice that I 

85 



36 PRINCIPLES OF 

do not say that England is divided into localities 
properly-so-called^ but that it contains them. And 
the significance of this distinction lies in the fact that 
the aggregation of these localities has made the king- 
dom, and not that the kingdom, having been formed 
by political forces, was then divided up into sections 
for administrative or other purposes. 

This statement, however, needs explanation. The 
entire area of England and Wales is allotted to coun- 
ties, and also to parishes, counties and parishes thus 
occupying the same area. But there are only certain 
selected areas which are boroughs, and these areas 
are also divided into parishes. The boroughs are of 
two kinds — county boroughs and non-county boroughs. 
Within the area of the former the county authorities 
have (with some exceptions) no jurisdiction ; within 
the area of the latter they have a limited jurisdiction. 
Therefore we may put this question of areas into the 
form of an equation,' with the following result : — 
(i) Counties + county boroughs =the whole country. 

(2) Parishes = the whole country. 

(3) Non-county boroughs + parishes 

in the counties = the whole country. 

It will be seen that the localities grouped in these 
three different ways comprise between them, in each 
grouping, the entire area of the country; and they 
must, therefore, bear a certain relationship to each 
other. The relationship of county to county borough 



sec; 



LOCAL GOVERNMENT 37 

is one of mutual independence, except that the county 
has, in some formal matters and in some special ex- 
ceptions, a jurisdiction within the county borough. 
The relationship of county to parish, and to some 
extent of county borough to parish, is that of an 
entity to its constituent parts. The extent to which 
the county boroughs conform to this relationship is 
measured by the extent to which they have spread 
beyond their ancient municipal boundaries. In thus 
extending their areas they have taken in either whole 
parishes or parts of parishes from the county, and thus 
the included parish boundary makes the limit of the 
new county borough boundary. In the cases where 
the county borough has not extended its boundary 
into the county, its municipal boundary is determined, 
not by parishes, but by the same considerations as 
those which govern ordinary municipal boroughs — con- 
siderations, namely, of common interest, which caused 
communities in early times to settle down upon and 
utilize certain tracts of territory ; and in these cases 
the relationship of the county borough to the parish 
is the same as that of the municipal borough to the 
parish. The relationship of the municipal borough 
to the parish is, in all ancient boroughs, that of an 
area divided into smaller areas for purposes other 
than municipal purposes — namely, for purely ecclesias- 
tical purposes. These points are somewhat technical, 
and I am not at all sure I have made them under- 



38 PRINCIPLES OF 

stood, but the point I wish to bring out is that, though 
counties, county boroughs, and municipal boroughs, 
are all equally areas containing smaller areas known 
as parishes, the parishes contained in counties, and to 
are limited extent already noted in county boroughs, 
are' constituent parts of the counties or county 
boroughs, while the parishes contained in municipal 
boroughs are artificial divisions which do not rank 
as constituent parts. I shall have to examine this 
position somewhat more narrowly later on, but here 
it is important as establishing a distinction of an 
elemental character between the relationship of coun- 
ties to parishes and the relationship of boroughs to 
parishes. 

I am anxious to show you that there are certain 
distinctions of rank among the localities we are now 
considering-— distinctions which have to some extent 
lost their force in the unmeaning talk of political 
parties, but which, nevertheless, have descended with 
the localities from ancient times, and could be made 
exceedingly important in meeting the necessities of 
modern times. To some extent, indeed, this distinc- 
tion in rank is being recognised already. Thus the 
units which are made by the Act of 1888 the recipients 
of grants from Imperial taxation to local taxation are 
the counties and county boroughs; and the share of 
the lesser units in these grants (the municipal 
boroughs, the district councils, and the poor-law 



LOCAL GOVERNMENT 39 

unions) IS obtained from the amounts first allotted to 
counties and county boroughs. Again, certain ad- 
ministrative functions in connection with the lesser 
units are placed in the hands of the counties and 
county boroughs, both by the Acts of 1888 and 1894, 
and the trend of events in educational legislation is 
distinctly in the same direction. 

Thus, both historically and in modern practice, there 
are degrees of rank among these localities. The 
county takes the place of the highest unit of govern- 
ment, next in rank to that of the State or kingdom 
itself; the county borough practically ranges itself 
alongside of the county, though still in a very few 
matters of formal functions, such as belong to the Lord 
Lieutenancy, it is subordinate to the county; the 
municipal borough comes next in rank to the county 
borough, with a tendency and a constitutional capacity 
to be promoted to the rank of county borough ; and the 
parish comes at the bottom of the system, the lowest 
unit of government in England and Wales, with a 
separate gradation of rank according to whether it is 
the parish of a county or the parish of a municipal 
borough. 

I want next to direct your attention to the im- 
portance of the fact that these localities, formed by 
the almost irrecoverable events of unrecorded history, 
divide between them the entire area of the country. 
They have survived all shocks, all revolutions, all 



40 PRINCIPLES OF 

changes, and their position on the map of England 
is as indestructible as the country itself. Even in 
these days, one of the most difficult operations to 
perform is to alter a parish, or a borough, or a county 
boundary. We in London, for instance, prefer to 
have our county invaded by a district of Middlesex 
at South Hornsey, and in turn to invade the county 
of Middlesex with our detached piece of territory at 
Muswell Hill, and the county of Surrey with the 
smallest fragment of detached territory at Barnes. 
We prefer also to see our natural watershed boundary 
eaten into on the north at Willesden and on the south 
at Beckenham. Internally, too, all that is left of the 
ancient city of Westminster prefers to be in two 
detached parts ; Chelsea will not surrender its de- 
tached piece at Kensal Green ; Kidbrooke detached 
and Clapham detached are also staunch to their 
historic boundaries. This kind of thing extends all 
over the country, and legislation which provided means 
to get it altered (7 and 8 Vict, cap. 61, and 30 and 31 
Vict, cap. 106) has not succeeded. 

It is with such material as this that the ground- 
work of local government in this country is. formed. 
The historic hundred has, alone of all ancient local 
institutions, dropped out of existence for administra- 
tive purposes, and this has left the map of England 
covered with counties and parishes, dotted here and 
there with boroughs ; each with a long history, each 



LOCAL GOVERNMENT 41 

standing to others of the same class on a footing of 
equality, and to the other classes in definite historic 
and practical relationship. The great franchises, like 
the Duchy of Lancaster, the Duchy of Cornwall, and 
the Palatinate of Durham, have scarcely left their 
mark upon local government ; smaller franchises, like 
cathedral closes, as at Salisbury, and abbey closes, as 
at Westminster, and like the Inns of Court of London, 
are to some extent outside the general local govern- 
ment system, but they conform in many important 
particulars, and they are units of local government 
in themselves. There is, indeed, practically no part 
of the country outside the historic system of local 
government, no part of the country not contained 
in a county, a borough, or a parish ; no part of the 
country, therefore, which has not received from its 
history, in one shape or another, a defined area of 
common interests — first, in the extended sense of the 
county; secondly, in the concentrated sense of the 
borough ; thirdly, in the limited sense of the parish. 
There was room enough here for every measure of 
reasonable reform, for every allowance for natural 
development, for a perfect system of local govern- 
ment, with all the added functions of modern times. 
The principles of local government have their founda- 
tion here, and it will be a part of my task in these 
lectures to trace out how this heritage from the past 
has been used for later requirements. 



42 PRINCIPLES OF 

What, then, is the origin of these historical units 
— these localities, properly-so-called — which thus divide 
between them the entire area of the country ? I begin 
with the county, and I make the preliminary obser- 
vation that in all cases of appeal to history I shall 
deal only with that part of the ancient conditions of 
local government which lead directly to the subject- 
matter of these lectures — namely, the principles of 
local government. All the archaeological and anti- 
quarian interest of the subject, which is immense, I 
do not touch upon, but I point out in passing that 
students would do well to look this part of the sub- 
ject up for themselves. It is absorbing in its vivid 
interest, and it would illustrate and redeem much of 
the unavoidable dryness and technicalities of the 
subject-matter of these lectures. 

The county as a local institution is practically* 
peculiar to Great Britain. In Hungary there is some- 
thing analogous to it, but it is not the county ; and 
in other countries there are local divisions which ap- 
proach the English county in its modern aspect, but not 
in its historical aspect We must seek for the origin 
of the county in the far more ancient shire. A great 
deal has been written about the origin of the shire, 
including the work of such writers as Bishop Stubbs, 
Freeman, Kemble, and Palgrave; and it may seem 
presumptuous if I suggest that these authorities have 
begun their investigation at the wrong end. They 



LOCAL GOVERNMENT 43 

have begun with the township, and endeavoured to 
build up an aggregate of townships to form the 
hundred, or higher grouping, and an aggregate of 
hundreds to form the shire, thus suggesting an arti- 
ficial origin for the shire, as the deliberate act of a 
monarch or other sovereign authority, only to be 
formed after the lesser areas have been formed — only, 
in fact, an aggregation of so many of the lesser areas. 
I believe this to be entirely wrong. I think the exact 
reverse of this process is the true state of things. 
I think the shires are the remains of the ancient 
tribal settlements, the tribes dividing themselves out 
within their territory — the shire — into communities, 
which afterwards became townships, and, as we shall 
presently see, parishes. The point is obscure, and 
would need a long treatise to work out in detail, 
but I will state shortly the chief facts in support of 
this view of the case. 

We have it on the authority of Bishop Stubbs that 
the English invaders came into Britain **in the full 
organization of their tribes " {Const. Hist, i. 64). Mr. 
Skene's examination of the Scottish tribal system, 
Sir Henry Maine's of the Irish tribal system, Mr. 
Seebohm s recent investigation into the tribal system 
of Wales, and, may I add, my own later investigation 
into the survivals of tribal religion in all parts of the 
United Kingdom, show very thoroughly that the tribal 
organization was a force in early English institutions. 



44 PRINCIPLES OF 

How, then, do we find the tribal organization appear- 
ing upon the map of England when the map of 
England was beginning to be made out by the earliest 
writers ? My first point is that there are a great 
many territorial divisions called shires, much smaller 
than the modern shire, and of which I will only recall 
to your memories Hallamshire, Richmondshire, and 
Allertonshire in our modem Yorkshire, as the best- 
known modern survivals. Now these small shires 
have no constitutional history whatever, and are 
simply names of territories which did not remain of 
administrative significance after the formation of the 
kingdom. On the other hand, there are shire names 
which appear in the Saxon Chronicle after the time of 
Alfred as appertaining to our modern shires, but 
which before the time of Alfred appear as tribal 
names pure and simple. Thus the Wilsaetan [tribe] 
become Wiltshire, the Eastseaxan become Essex, the 
Suthseaxan become Sussex, the Middleseaxan become 
Middlesex ; and we also find the Dornseatan of the 
Anglo-Saxon Chronicle appear as Dorsetshire in 
Simeon of Durham, and the Sumorz^etan as Somer- 
setshire. Thus we have territories called shires which 
are not the constitutional shires of the country, and 
we have tribal names developing into the names of 
the constitutional shires. Further, Norfolk and 
Suffolk are simply the north and south tribal divisions 
of the East- Anglian people, while Berkshire, Surrey, 



LOCAL GOVERNMENT 45 

Kent, and Sussex are four of the ancient Saxon king- 
doms. 

The analogous condition of things in Scotland which 
Mr. Skene has worked out with such conspicuous 
success {Celtic Scotland, vol. iii.) supplies, at least, 
evidence for the early history of Teutonic institutions 
in North Britain, which it does not do to altogether 
neglect when we are considering from the less perfect 
materials the possible line of development in South 
Britain. It must be remembered that there are still 
districts marked on the map by the name of a people, 
and not by any government machinery. The Meon- 
waras of Hampshire gave their tribal name to the 
hundreds of East and West Meon; [the Maegsaetas, 
Merscwaras, Gevissi, Hwiccas, Hecenas, Lindisfaras, 
Peak settlers, Chiltern settlers, Gyrvians, are all pure 
tribal names, which, in one way or another, have in- 
fluenced the modern geography of England. 

But between the tribal territorium and the kingdom 
there lies a whole stage of political development. 
This development, we cannot doubt, began by certain 
tribes bringing themselves up to the position of king- 
doms. The history of Anglo-Saxon Britain is the 
history of the evolution of kingdoms out of tribes, and 
of the three larger kingdoms ot Northumbria, Mercia, 
and Wessex out of the petty kingdoms. Districts 
that had once been kingdoms could nqt, under the 
Anglo-Saxon kingship, have altogether lost their in- 



46 PRINCIPLES OF 

dividuality, and thus when the whole country became 
united under Edgar, that monarch held together a 
federation of kingdoms and sub-kingdoms, rather than 
one thoroughly fused kingdom. 

At this stage there comes in another point of 
interest, and which Professor Maitland has recently 
investigated. "The exceedingly neat and artificial 
scheme of political geography," he says, "that we 
find in the Midlands, in the country of the true shires, 
forcibly suggests deliberate delimitation for military 
purposes. Each shire is to have its borough in its 
middle. Each shire takes its name from its borough. 
We must leave it for others to say in every particular 
case whether and in what sense the shire is older than 
the borough, or the borough than the shire ; whether 
an old Roman Chester was taken as a centre, or 
whether the struggles between Germanic tribes had 
fixed a circumference. But a policy, a plan there has 
been, and the outcome of it is that the shire maintains 
the borough ** {Domesday Book and Beyond, p. 187). 

I am afraid Mr. Maitland is not really so ready as 
he says to leave it to others to decide whether the 
shire was the outcome of this definite policy and plan 
or was older than it ; and in particular I am afraid he 
will resist my appeal to primitive tribal history to de- 
cide the point. But, fully accepting his brilliant theory 
of the military relationship of the shire to the borough, 
according to the policy and plan of Edward the Elder 



LOCAL GOVERNMENT 47 

and of Alfred — for Alfred is traditionally said to have 
divided the kingdom into shires — I see here the de- 
finite beginning of a plan distinct from the previous 
indefinite growth and development of primitive insti- 
tutions. But the plan had materials to work with. 
It did not have a clean sheet — a map of England 
with only its coastline drawn — to work upon. It had 
its tribal territory, roughly equivalent to the ancient 
shire territory; it had its boroughs, roughly equivalent 
to the Teutonic development of the city government, 
a matter I shall describe in a later lecture ; and from 
these two materials the genius of Edward and of Alfred 
met the political difficulty of their day, and formed 
a shire system of polity, instead of a tribal system. 

But a shire system of polity so formed was the 
means of bringing the primitive tribal system into 
active operation among the national institutions, and, 
therefore, of preserving all of its primitive elements 
which were not immediately required for the new 
system. It is thus that the shire has become the basis 
of local distinctions older than the kingdom, as when 
philologists first turned their attention to the scientific 
value of dialects in the history of a language they 
perceived that the ancient shire divisions were also 
dialect divisions. Language is a great dividing line ; 
but within the boundary formed by such dividing lines 
it cements people together in a fashion that no Act of 
Parliament can accomplish. 



48 PRINCIPLES OF 

Of course, the final territorial sub-divisions of the 
country included the formation of new shires or 
counties. Thus the shires of Northumbria were es- 
tablished at a very late period, for at the time of 
Domesday survey Northumberland, Cumberland, 
Westmorland, and Durham are not described, and 
other counties are not described under their present 
boundaries. But these new formations were modelled 
upon the older self-grown shires, and they do not 
really form an exception to the origin of the shire in 
the ancient tribal kingdoms. 

I do not suggest that this is the last word to be 
said upon this important subject, nor that it explains all 
the difficulties against the tribal origin of the shires ; 
but if we turn from the consideration of their geo- 
graphical history to some facts in their constitutional 
history, we shall find further support for the view 
here taken. 

Bishop Stubbs states that " in the shire-moot as a 
folk- moot, we have a monument of the original inde- 
pendence of the population which it represents" {Const. 
Hist,, i. ii6); and I draw attention to the significant 
fact that there is evidence to show that the indepen- 
dent sanction of the shires was at one time necessary 
to make valid the laws promulgated by the national 
council (Elton, Tenures of Kent, 38 ; Stubbs, Const. 
Hist., i. 115). To these points must be added the 
evidence as to the ancient meeting-places of the shires 



LOCAL GOVERNMENT 49 

— in the open-air, under a sacred tree, on a hallowed 
mound, or near a revered monolith ; sure indication of 
the ancient gathering-place of free tribesmen, met to 
put in force laws and customs which were theirs by 
inheritance, and not by favour. I have traced^ out 
the importance of this feature in a book of mine, 
published in 1881, Primitive Folk-moots, when I first 
began as an enthusiastic, and I am afraid not very 
scientific, enquirer into the history of local govern- 
ment. If I now wished to dwell upon the archaic 
side of things, instead of upon the practical, I could 
not adduce a better example of the origin, of the shire 
in an independent tribal unit, grown later into a petty 
kingdom, than the constitutional status of the Isle of 
Man. It has its own governing authority, meeting to 
this day formally on the Tynwald Hill, in the open 
air, and preserving that significant feature of the Eng- 
lish shires that no Act of the Imperial legislature is 
valid in Manx territory until promulgated by the 
Manx court at the Tynwald Hill. Here, in actual 
and continuous life, is every feature of the ancient 
shire as it once was in England. The Manx kingdom 
has never really come under the crushing power of 
the English sovereignty; there was no necessity for 
it, and so it remains stranded among the progressive 
elements of our constitution, as a survival from, and 
an example of, the earliest forms. If it were ever 
thought desirable, and it is not likely, to bring the 



50 PRINCIPLES OF 

Isle of Man into the English system of government, 
the isle would be constituted a county, and then we 
should have evidence of the entire process by which 
the English counties have grown into being. 

What the shire- moot was in ancient times may be 
ascertained from the record of a suit in the reign 
of Canute. A translation of this has been given 
by Hallam {^Middle Ages, p. 508), and I quote it here 
for reasons that will presently appear. " It is made 
known by this writing that in the shiregemot held 
at Agelnothes-stane [Aylston, in Herefordshire] in 
the reign of Canute there sat Athelstan the bishop, 
and Ranig the alderman, and Edwin his son, and 
Leofwin, Wulfig's son ; and Thurkil the White and 
Tofig came there on the king's business ; and there 
were Bryning the sheriff, and Athelweard of Frome, 
and Leofwin of Frome, and Goodric of Stoke, and 
all the thanes of Herefordshire. Then came to the 
mote Edwin, son of Enneawne, and sued his mother 
for some lands, called Weolintun and Cyrdeslea. 
Then the bishop asked who would answer for the 
mother. Then answered Thurkil the White, and 
said he would if he knew the facts, which he did not. 
Then were seen in the mote three thanes that be- 
longed to Feligly [Fawley, three miles from Aylston], 
Leofwin of Frome, -^gelwig the Red, and Thinsig 
Stsegthman ; and they went to her and inquired 
what she had to say about the lands which her son 



LOCAL GOVERNMENT 51 

claimed. She said that she had no land which 
belonged to him, and fell into a noble passion against 
her son, and calling for Leofleda, her kinswoman, 
her wife of Thurkil, thus spake to her before them : 
'This is Leofleda, my kinswoman, to whom I give 
my lands, moneys, clothes, and whatever I possess 
after my life ' ; and this said, she thus spake to the 
thanes : * Behave like thanes, and declare my message 
to all the good men in the mote, and tell them to 
whom I have given my lands and all my possessions, 
and nothing to my son,' and bade them be witnesses 
to this. And thus they did : rode to the mote, and 
told all the good men what she had enjoined them. 
Then Thurkil the White addressed the mote and 
requested all the thanes to let his wife have the lands 
which her kinswoman had given her ; and thus they 
did, and Thurkil rode to the church of St. Ethelbert, 
with the leave and witness of all the people, and had 
this inserted in a book in the church." 

The points of importance to note about this 
singularly interesting record are as follows : — 

(i) The ancient shire-moot was a primary assembly 
composed of all the thanes of the shire, and not a 
representative assembly composed of elected mem- 
bers. 

(2) That it was held at a great stone in the open 
air. 

(3) That the bishop and alderman sat there of 



52 PRINCIPLES OF 

their own right, and that there were two repre- 
sentatives of the king. 

(4) That it adjudicated upon pleas of land. 

What the shire-moot was immediately after the 
Conquest may be gathered from the record of a great 
meeting of the Kentish shiremen in 1072, at 
Pennenden Heath, the ancient meeting-place, in the 
open air, and still the site of the modem meeting- 
place of the county council, the County Hall at 
Maidstone. I lay some stress upon this continuity 
of site for the meeting-place of the county assembly, 
and there are other points of importance to which I 
shall direct your attention. 

I shall use a translation of the earliest recorded 
account of the transaction I am about to examine, 
because there can be - no improvement upon the 
simple terseness of the chronicle language : — 

"In the time of the great King William, who 
conquered the English kingdom and subjected it to 
his rule, it happened that Odo, Bishop of Bayeux, 
and the king's brother, came into England much 
earlier than Archbishop Lanfranc, and resided in the 
county of Kent, where he possessed great influence 
and exercised no little power. And because in those 
days there was no one in that county who could resist 
a man of such strength, by reason of the great power 
which he had, he seized many lands belonging to the 
archbishopric of Canterbury, and some customs, and 



LOCAL GOVERNMENT 53 

by usurpation added them to his rule. But it 
happened not long after this that the aforesaid 
Lanfranc, Abbot of Caen, also came into England, by 
the king's command, and, by the grace of God, was 
raised to the archbishopric of Canterbury, and made 
primate of all the realm of England. When he had 
resided there for some little time, and found that 
many lands anciently belonging to his see were not 
in his possession, and discovered that, by the 
negligence of his predecessors, these had been seized 
and distributed, after diligent inquiry, being well 
assured of the truth, as speedily as possible, and 
without delay, he made suit to the king on that 
account. Therefore the king commanded all the 
county [comitatum totum\ to sit without delay, and 
all the men of the county — Frenchmen, and especially 
Englishmen learned in the old laws and customs — to 
assemble. When these were assembled on Pennenden 
Heath [apud Pinendenani], all together deliberated. 
And when many suits were brought there for the 
recovery of lands, and disputes about the legal 
customs were raised between the archbishop and the 
aforesaid Bishop of Bayeux, and also about the 
royal customs and those of the archbishop, because 
these could not be ended on the first day, the whole 
county [totus comitatus\ was detained there for three 
days. In those three days Archbishop Lanfranc 
recovered many lands which were held by the 



54 PRINCIPLES OF 

bishop's men — namely, Herbert, son of Ivo, Turold 
of Rochester, Ralph de Courbe-Espine, and many 
others, with all the customs and everything which 
pertains to those lands — from the Bishop of Bayeux, 
and from his men above mentioned, and from others 
— namely, Detlinges, Estokes, Prestetuna, Damtuna, 
and many other small lands. And from Hugh of 
Montfort he recovered Rucking and Brook : and 
from Ralph de Courbe-Espine, pasturage of the value 
of sixty shillings in Grean [Island]. And all those 
lands and others he recovered so free and un- 
questioned that, on that day on which the suit was 
ended, not a man remained in the whole realm of 
England who could make any complaint thereof, or 
bring any claim, however small, to those lands. 
And in the same suit, he recovered, not only those 
lands aforesaid and others, but he also revived all 
the liberties of his Church and all his customs, and 
established his right in them when revived — soca, 
saca, toll, team, flymena fyrmthe, grithbrece, foresteal, 
haimfare, infangentheof — with all their customs, equal 
to those or smaller, on land and on water, in wood, 
on road, and in meadow, and in all other things 
within the city and without, within the burg and 
without, and in all other places. And it was proved 
by all those upright and wise men who were there 
present, and also agreed and judged by the whole 
county [toto comitatu], that, as the king himself holds 



LOCAL GOVERNMENT 55 

his lands free and quiet in his domain, the Arch- 
bishop of Canterbury holds his lands in all things 
free and quiet in his domain. At this suit were 
present Geoffrey, Bishop of Coutances, who repre- 
sented the king, and held that court ; Archbishop 
Lanfranc, who, as has been said, pleaded and re- 
covered all ; also the Earl of Kent — namely, the 
aforesaid Odo, Bishop of Bayeux; Ernest, Bishop 
of Rochester ; Agelric, Bishop of Chichester, a very 
old man, and most learned in the laws of the land, 
who was brought there in a wagon, by the king's 
command, to discuss and explain the ancient legal 
customs ; Richard of Tunbridge ; Hugh of Montfort ; 
William of Arques; Haimo, the sheriff; and many 
other barons of the king and of the archbishop ; and 
many men of those bishops ; and other men of other 
counties; also men, both French and English, of 
much and great authority with all that county. In 
the presence of all these, it was shown, by many most 
evident proofs, that the King of England has no 
customs in all the lands of the Church of Canterbury, 
except three only; and the three which he has are 
these : First, if any man of the archbishop digs into 
the king's highway, which runs from city to city; 
second, if any one cuts down a tree near the king s 
highway, and lets it fall across the road. Concerning 
these two customs, those who are taken in the act 
while so doing, whether pledge may have been 



56 PRINCIPLES OF 

received from them or not, yet, at the prosecution 
of the king's officer and with pledge, shall pay what 
ought justly to be paid. The third custom is of this 
kind. If any one on the king's highway sheds blood, 
or commits homicide, or does any other unlawful thing, 
if he is seized in the act and detained, he shall pay 
the fine to the king ; but if he be not seized there, 
and shall once more depart thence without giving 
pledge, the king can justly exact nothing from him. 
In like way, it was shown in the same suit that the 
Archbishop of Canterbury ought to have many 
customs on all the lands of the king and the earl ; 
for, from that day on which Alleluia is ended to the 
octave of Easter, if any one sheds blood, he shall 
pay fine to the archbishop. And at any time, as 
well in Lent as at any other time, whoever commits 
that offence which is called cildwite, the archbishop 
shall have either the whole or the half of the fine — 
in Lent the whole, and at any other time either the 
whole or half of the fine. He has also, in all the 
same lands, whatever seems to pertain to the care 
and safety of souls." 

Now if we analyse this record we have the follow- 
ing facts about the shire- moot of Kent in 1072 : — 

(i) The dispute was between two Kentish men — 
Odo, Earl of Kent in this case more than Bishop 
of Bayeux, and Lanfranc, Archbishop of Canter- 
bury. 



LOCAL GOVERNMENT 57 

(2) The subject-matter of the dispute was the 
possession of landed property. 

(3) The attendance of all the men of the county, 
especially those learned in the old laws and customs, 
was required. 

(4) The place of meeting was on Pennenden 
Heath, in the open air. 

From these facts it is clear that Kentish questions, 
in 1072, were decided by Kentish men ; that the 
domain of national law did not then include the 
customary land laws ; that local customs were in- 
terpreted by the inhabitants of the district, according 
to traditional usage ; and that the meeting-place was 
held in the old tribal fashion, and, as the evidence 
of Domesday shows, on the spot which was sacred 
to the gathering of the shire-moot of Kent 

It is true that side by side with these most im- 
portant facts are other facts significant of changes 
about to happen, rather than of changes which had 
already happened. These are (i) that the repre- 
sentative of the king, a Frenchman, presided over 
and held that court ; (2) that Agelric, Bishop of 
Chichester, not a Kentish man, but most learned 
in the laws of the land, was present, as a sort of 
assessor ; (3) that " other men of other counties " 
were present. These extra county elements mar 
the perfection of the picture ; but they do not take 
away the local character of the court and of the 



o8 PRINCIPLES OF 

proceedings, of the two suitors, and of the subject- 
matter in dispute, of the assembly of Kentish men 
to form the shire court of Kent. 

Now about these two records of meetings of the 
shire— one in the reign of Canute, the other in that 
of William the Conqueror ; one relating to Hereford- 
shire, the other to Kent — there is one thing quite 
clear: they are, in all essentials and allowing for 
the increased power of the Norman sovereign, 
identical in the facts they reveal of the ancient shire- 
moot It was a court of shiremen for shiremen ; 
it was a primary assembly — that is, an assembly com- 
posed of the entire community entitled to attend, 
instead of an assembly composed of elected repre- 
sentatives; it took cognizance of pleadings for land 
which had not, therefore, been transferred to the 
king's courts ; it met as all ancient tribal courts 
met, and as they meet now where the tribal system 
has survived, and it was independent. The very 
beginnings of a new system, when local justice was 
to become king's justice, is plainly seen in the 
later record — beginnings which were not carried 
further towards completed fact until Henry II., at 
the Council of Northampton, divided the kingdom 
into six circuits, appointed a judge for each circuit, 
and attached the shires to them. 

I do not want for the purpose of these lectures to 
trace out the changes in the government of the shire 



LOCAL GOVERNMENT 59 

from the Conquest to 1888; still it is necessary to 
state a few of the salient points. Bishop Stubbs has 
succinctly described its functions in the reign of 
Edward L {Const. Hist.y ii. 208-216), and it is clear 
that the whole business of the shire — judicial, police, 
military, remedial measures, fiscal and political — were 
conducted in the court of the shire, presided over by 
the shire-reeve, or sheriff, and constituted by the men 
of the shire, suitors to the court. The shire has by 
this time become the county. Even from the purely 
legal aspect, always, as it seems to me, somewhat 
short of the historical aspect, the county was not a 
mere stretch of land, a governmental district — it was 
an organized body of men, a communitas; and if 
legally we must stop short of saying it was a corpora- 
tion, " the law and the language of the period seem 
at first sight to treat counties very much as though 
they were corporations." Under Edward L the county 
of Devon had a common seal, and John granted to 
Cornwall and Devonshire charters which in point of 
form differed little from those he granted to boroughs. 
I shall sum up the legal position of the county in the 
words of Sir Frederick Pollock and Mr. Maitland: 
" The actual assembly of men sitting at a certain time 
and place to hear causes is the county ; the permanent 
institution of which that particular assembly is, as it 
were, a fleeting representation is the county ; the 
county, again, is a tract of ground ; the county is the 



6o PRINCIPLES OF 

whole body of persons who hold lands or reside within 
that tract, whether they participate in the doings of 
the representative assembly or not " {Hist, of English 
Law, i. 521). This composite character of the county, 
at once a territory and a community of persons, an 
assembly or council and a communitas in the general 
sense, is of great importance. It marks the unassimi- 
lated elements which come partly from primitive and 
partly from later institutions, that is to say the tribal 
element, based upon personal relationship, and the 
political element, based upon territorial relationship. 

Nothing in this legal description of the county of 
Edward the First's reign separates it from the shire of 
Edward the Confessor s reign, and the changes which 
follow are changes in the constitution of its assembly, 
or court, not changes in the territorium, not in the 
locality which we understand in reference to local 
government. The changes are due to several causes. 
First, the king's courts at Westminster took cog- 
nizance of legal cases, and questions of title to land 
were the first to be transferred. In personal actions 
the limit of forty shillings appears general in the reign 
of Edward I., and the economical value of this limit, 
gradually lessening each century, has correspondingly 
lessened the jurisdiction of the court The attend- 
ance of shiremen at the court was looked upon as a 
heavy burden, not as a privilege, and the successive 
Acts of Parliament which have placed the business of 



LOCAL GOVERNMENT 6i 

the county in the hands of commissioners appointed 
by the Crown were in thorough accord with the trend 
of the times. Thus the Pipe Roll of Henry L proves 
the existence of large bodies of judices and juratores 
at the county courts, but the sheriffs' accounts con- 
tain some significant entries. Those of Yorkshire 
state that the judges and jurors of Yorkshire owe a 
hundred pounds that they may no more be judges or 
jurors. Now when we remember that the ancient 
principle was to fine members for non-attendance, it 
is plain that here the fine was losing its significance 
and object as a payment to compel attendance, and 
was becoming a payment frankly accepted in lieu of 
attendance. 

The institution of circuits for fiscal purposes by 
Henry L, the extension of judicial duties to these 
circuits by Henry H., mark this decline of the shire- 
moot. Then we come to the office of coroner, which 
was instituted in 1 194. He was to be elected by the 
landholders of the county, not by the shire court, a 
fact which, far from pointing to a fresh expression of 
popular rights, as is generally supposed, seems to me 
to mark the introduction of new forces. The shire 
court, like all early assemblies, had, hitherto, had the 
control and election of its own officers, but it had 
ceased to meet as an assembly of the shire. It did 
not meet as all the men of the shire ; it was never 
made a representative body, and so the men of the 



62 PRINCIPLES OF 

shire elected their coroner without formally meeting 
at a shire assembly. And thus the way was prepared 
for fresh innovation. The responsibility for peace 
had rested with the old shire-moot, but in the ist of 
Edward III. an enactment was made that good and 
lawful men should be commissioned to keep the 
peace in each county. Gradually one new duty after 
another was imposed upon the justices of the peace, 
as they were soon called, until, in the end, they have 
been looked upon as the sole county authority. At 
one critical stage it seemed as if they might have 
become the direct and only taxing authority. They 
were intrusted with the direct taxation of county 
inhabitants, instead of assessing the parishes, in 1530 
and in 1531 ; the first for the repair of bridges, the 
second for the erection of jails. But this was the 
last experiment in this innovating system — a system 
which would have destroyed local government in the 
county, for it would have separated the right of 
taxation from the right of representation. Although 
county justices sent their precepts down to the 
parishes for the taxation necessary to meet county 
expenditure, the amount has always been small, and 
the indirect method of getting at the taxpayer has 
kept attention from the subject. 

Still, with all the changes, the ancient territorium 
of the county and the assembly, or court, of the county 
has never ceased to have continuous life. This is 



LOCAL GOVERNMENT 63 

shown in a most picturesque detail thus described in 
the language of lawyers as it obtained in the reign of 
Edward L : " One act of jurisdiction, one supreme 
and solemn act, could be performed only in the county 
court, and in the folk-moot of London — the act of out- 
lawry " (Pollock and Maitland, Hist, of English Law, 
>• 540). Now this act of outlawry goes back to the 
most primitive period of Teutonic history, to the 
laws of tribesmen before they had become identified 
with special territories, those tribesmen of whom I 
have already spoken as originating the shires, and it 
comes down to modem times, when John Wilkes was 
outlawed in the county court of Middlesex, "at the 
Three Tons, in Brook Street, near Holborne, in the 
county of Middlesex" (Burrow's Reports, p. 2530). 

Let me note another factor in the history of the 
county which seems to me to suggest the continuous 
existence of its ancient form of assembly. Until 
recent times "the knights of the shire" elected to 
the House of Commons were freeholders elected 
from the freeholders in open hustings. These free- 
holders are the constitutional descendants of the thanes 
who formed the shire assembly in Canute's time and 
in William's time ; and, though I cannot discover any 
special points illustrating the connection of the hust- 
ings with the county, it is not altogether devoid of 
significance to point out that in this word busting — 
house-thing — we have an ancient Scandinavian form 



64 PRINCIPLES OF 

of the name of the assembly. What, then, was the 
hustings ? It was the assembly of the county for the 
purpose of electing one of its members to the parlia- 
ment of the nation. The place of assembly was often 
the ancient place of assembly of the shire-moot, and 
it will appeal to your sense of continuity in these 
things when I point out that the hustings of the 
county of Kent were held on Pennenden Heath, near 
Maidstone, exactly on the spot where the shire as- 
sembly of 1072 was held, and where the County Hall 
of to-day stands ; and I like to recall the fact that I 
spent one memorable day in the library of the late 
Professor Stanley Jevons in finding out that the 
hustings of the county of Middlesex were held on 
Hampstead Heath, near the spot which contains the 
ancient so-called barrow and Parliament Hill. 

One other detail gives evidence of the continuous 
life of the shire as a local government area — namely, 
its existence as a taxing unit Under the Anglo- 
Saxon system each shire was bound to furnish ships 
in proportion to its number of hundreds, and from 
the produce of what had been the folkland contained 
in it it had to pay a composition for the sustentation 
of the king (Stubbs, Const. Hist.y 1. 116). Much of 
this is lost sight of after the Conquest, but, as Mr. 
Thorold Rogers very acutely remarks, " the conven- 
tion of taxpayers " must have been held before the 
great charters of John and Henry, and the only 



LOCAL GOVERNMENT 65 

machinery then available was the shire organization. 
Stripped of much of its local administrative powers, 
it was still powerful as a taxing unit, and even amidst 
all the changes that have taken place it is still the 
ancient taxing unit for one of the imperial taxes, 
namely, the land tax. 

It is worth while summing up this evidence of 
continuity in the shire and its ancient assembly. 
Premising that this ancient assembly was not elected, 
but consisted of all the thanes, or freeholders of the 
shire, we have noted (i) that the freeholders up to 
1888 elected the coroner of the county; (2) that the 
freeholders elected the knight of the shire to serve in 
Parliament, and formally met at the hustings to per- 
form this act ; (3) that the right of outlawry, one of 
the ancient tribal rights of the shire, remains with 
the shire to the present day, and was last exercised 
in the case of John Wilkes, in 1764; (4) that the 
county, one of the ancient taxing units, has remained 
a taxing unit until to-day. If I were to affirm that 
the right of the shire, or county, to assemble for con- 
stitutional purposes had never been taken away by 
statute or other formal act of sovereignty ; if I pointed 
to the corresponding right of assembly in the borough 
and in the township or parish (about which I shall 
have to speak later on) ; and if I went on to say that 
this right of assembly still existed, and could still be 
invoked, I should, no doubt, be met by legal arguments 



66 PRINCIPLES OF 

as to the non-eflfective force of custom which had been 
so long dormant, and possibly by some legal decisions, 
or by some statutory provisions ; but, though the 
astuteness of lawyers may effectually put a full stop 
at any stage in the legal history of these matters, I 
do not admit that they can stay the constitutional 
history. 

The long period of gradual decline of county 
government corresponds to a period of stagnation in 
local government generally. We get glimpses of 
attempts to use the commissions of county magistrates 
for various purposes, and the administration of the 
poor law was first placed in their hands. But no 
serious attempt to use the splendid organization of 
the county in the government of the country was 
possible until it was taken out of the hands of com- 
missioners appointed by the Crown and again placed 
in the hands of the shiremen. This, and nothing 
short of it, is what was accomplished by the Act of 
1888. There was, under that Act, no creation of 
county councils, still less was there a creation of county 
government. There has only been a restoration to 
the locality of the county of a representative form of 
government, in place of the open gathering of all 
shiremen which it formerly possessed. Nothing is 
more important than to remember this. All the 
administrative powers of the justices were transferred 
to the county council, and the justices inherited these 



LOCAL GOVERNMENT 67 

powers from the ancient county courts. There was 
no actual break. The time had come for this change. 
New functions of government were being created, 
which needed some form of local authority to carry 
them out ; and the form selected by the Parliament 
of 1888 was the ancient form of county government. 
That the Act extended this ancient form of govern- 
ment and this ancient territorial formation to special 
areas, like the three ridings of Yorkshire, the ancient 
divisions of Holland, Kesteven and Lindsey, in Lin- 
colnshire, the soke of Peterborough, the Isle of Wight, 
East and West Suffolk, East and West Sussex, and, 
finally, to the remarkable community which is 
gathered round the City of London, is only the appli- 
cation of ancient principles of local government to 
modern developments — it is not in reality a fresh 
creation. The pity of it is that this wise and politic 
reform should not have been thoroughly carried out ; 
should have been clogged with such a meaningless 
adjective as "administrative," and should have left 
many of the old county elements still alive, to the con- 
fusion of our school manuals and the everlasting 
trouble of people who cannot approach a new idea 
untrammelled by what they themselves have been 
used to — those people, I mean, who still talk of 
London as the metropolis, who would still deny her 
the unity and dignity of her county organization and 
ranlc Even Government departments— nay, even the 



68 PRINCIPLES OF 

Local Government Board — are not yet fully aware that 
London is a county. Because a little tongue of land 
at the southern boundary — the hamlet of Penge — is in 
the Croydon Union for poor-law purposes — that is to 
say, because the county of London, like every other 
county in the kingdom, without a single exception, is 
cut into by different poor-law unions, instead of 
containing a certain number of poor-law unions — it is 
constantly stated, and in official documents, that the 
hamlet of Penge is not in the county of London. 
The statement is ridiculous. Penge, like every 
other hamlet, township, or parish, in the area de- 
fined by the Act of 1888, is a part of the county of 
London, and it only differs from other parishes or 
hamlets in the county in that the poor-law system, 
not being founded according to the principles of local 
government, includes it in a union which cuts across 
the county boundary. 

This leads me to say one word about another sort 
of county which has found its way into statistics — that 
is, into the census and into the Local Government 
Board returns : the so-called registration county. 
This absolutely meaningless unit has been foisted into 
local government simply because it is a convenient 
term to apply to certain aggregations of poor-law areas. 
All the poor-law areas which for the most part are 
contained in any given county are called the *' regis- 
tration county " of the same name sfi the true county, 



LOCAL GOVERNMENT 69 

although in no single instance is it conterminous with 
the true county. Thus the so-called registration 
county of London excludes the London parish of 
Penge ; the so-called registration county of Surrey 
includes the London parish of Penge, the Hampshire 
parishes of Aldershot and Dockenfield, and the Mid- 
dlesex parishes of Hampton, Hampton Wick, and 
Teddington, while, on the other hand, it excludes its 
own Surrey parishes of Lingfield, which is taken over 
by Sussex, and Thorpe and Egham, which are taken 
over by Berkshire. Thus we have to talk of a 
London which is not London, and a Surrey which 
is not Surrey. And so it is all over the kingdom, 
there is not a single so-called registration county 
which is a true county. And the reason for all this 
confusion is that the registration of births, deaths, 
and marriages is performed through the machinery 
of the poor-law system, — with which, however, it 
has absolutely nothing whatever to do, — and must, 
therefore, be grouped according to the poor-law 
system. It would be interesting to know how many 
thousands of pounds this grouping has cost the 
nation at the time of each census, and how much 
money is wasted in producing results which are ab- 
solutely confusing. It would be still more interesting 
to enquire when Parliament will awake to these 
strange and absurd anomalies, which deny to counties 
their proper organization for registration and all pur- 



70 PRINCIPLES OF 

poses simply because a system has grown up of 
making the poor-law system the basis of registra- 
tion. 

I have now, I hope sufficiently, dealt with local 
government in the counties, and particularly with the 
important point of continuity — an absolute continuity 
so far as locality is concerned, a relative continuity so 
far as government is concerned ; and I point out here 
how great has been the influence of locality in pre- 
serving the forms of county government. We have 
the locality first, the communitas of the locality next, 
the elected governing authority of the locality last. It 
is the fashion of to-day to speak overmuch of the 
governing authority, and not at all of the locality and 
the communitas of the locality. Statesmen allow 
themselves to speak of county councils as if they 
were a body apart from the ratepayers of the county. 
The old forms should be remembered and restored. 
Officers of county councils are county officers. We 
still have " Clerk of the Peace for the County," 
'* County Surveyor," " County Treasurer." We 
should keep to this formula, and have *' County 
Clerk" to parallel with "Town Clerk," "County 
Engineer," " County Valuer," " County Comptroller," 
and so on ; because officers are servants of the county — 
not of that small portion of the county which is elected 
to perform its administrative business. 

This part of the subject makes clear the status of 



LOCAL GOVERNMENT 71 

the county and its government. We have next to 
consider its relationship to other local authorities — its 
ranky in point of fact. 

The records are not clear and consistent enough for 
us to be certain that the shire court was a court of 
appeal from the township court, but so long as the 
" four men and the reeve " from each township were 
the representatives of the townships in the shire 
court, it seems hardly possible to argue that whatever 
business could not be attended to in the lesser courts, 
and all business which involved the interests of two 
or more townships, was not ipso facto conducted in 
the shire court. 

Mr. Kemble's terminology is now no longer ac- 
cepted by scholars as true to the English evidence, 
but there is no reason to doubt his conclusions when 
they relate to general constitutional matters. He puts 
it that the shire " was able to do right between Mark 
and Mark \i.e.y township and township] as well as 
between man and man, and to decide those differ- 
ences the arrangement of which transcended the 
powers of the smaller body " {Saxons in England^ 

i- 73). 

I am sure you have not missed the significance 

of all this ancient constitutional life of the shire 
or county in connection with our modem county 
government. The county comes to us from the cen- 
turies gone by, as an independent unit of an amalga- 



72 PRINCIPLES OF 

mated territory, and not as the division by monarch 
or Parliament of a territory for the purpose of 
administrative machinery, to be allotted just what 
powers and functions it pleased the State government 
to allot and change from time to time. There is all 
the difference in the world between these two origins. 
The independent origin would carry with it rights, 
customs, duties, and privileges which the legislative 
origin would not, and the elasticity of the former 
condition would allow of the accretion of further 
rights, customs, duties, and privileges as time and 
events marched on. And let it be noted that, 
although the ancient shire system of government was 
very early under the Norman rule superseded by the 
system of commission, the shire itself as a distinct 
locality, with distinct rights of taxation, has never 
been superseded. 

I should like next to interpose a word or two about 
the hundred, which has dropped out of local institu- 
tions. Like the county, it was an ancient tribal forma- 
tion; but, unlike the county, it was formed for purposes 
of police and of military organization by the aggrega- 
tion of the smaller township units. Like the county, 
its historical names were not derived from the towns, 
but were independent names applied to the hundred 
area. Like the county, it had an assembly which was 
judicial as well as legislative ; and, like the county, it 
was one of the most ancient taxing areas. But its 



LOCAL GOVERNMENT 73 

fortune has been different to that of the county. It 
has never been used for the purposes of modern 
civilization, and it has been allotted as private fran- 
chises to feudal lords — as, for instance, the forest 
court of Knaresborough. 

There is one ancient attribute of the hundred, 
however, which was only abolished in 1888 and 
transferred to the counties. This was its collective 
liability for damage to property within its area, by riot 
or other form of impersonal action. Thus when Not- 
tingham Castle was burnt by the mob in 1832 the 
hundred was sued, and the owners recovered damages 
to the amount of ;^2 1,000. Within two or three 
years prior to 1888 destruction of property at elec- 
tions has come upon the hundred, and ratepayers, 
as Professor Earle says, have had occasion to learn 
that the hundred was not dead (Earle s Land 
Charters, p. 50). This collective liability is very 
instructive. Historically it takes us back to the 
hundred as a community of persons, rather than a 
territory of ratepayers. Politically it gives us a form of 
*• collectivism " which is singularly free from criticism 
by those who would banish all forms of collectivism 
to the planets ; but probably collective liability is one 
thing, and collective operations to benefit the com- 
munity a totally different thing. In any case the form 
of collectivism presented by the liability of the hundred 
now resides in the county, and I will read to you the 



74 LOCAL GOVERNMENT 

clause of the Act of 1888 (79 (2) ) which makes this 
so : '* All duties and liabilities of the inhabitants of a 
county shall become and be duties and liabilities of 
the council of such county." I think the obvious 
importance and significance of this clause are not 
thoroughly understood by our modern "men of the 
county," and later on I shall have to refer to this 
collective liability of the county in connection with 
a power which ought to reside in the county. 



Ill 

LOCALITIES {con/ifiMd)-BOROVGHS 

MY next subject is the Borough, and here, I 
think, I shall give you a little more trouble 
than with the county. 
In questions of origin there is, of course, no dis- 
tinction between county boroughs and ordinary 
municipal boroughs. That distinction is due entirely 
to the Act of 1888, and simply means boroughs which 
have the full organization of a county, and are not, 
therefore, represented on the county councils, and 
boroughs which possess something less than the full 
organization of a county, and are, therefore, repre- 
sented on the county councils. 

The Act of 1888 produced, indeed, a very sensible 
effect upon municipal organization, and I propose 
before touching upon the question of origin to classify 
the boroughs as they now stand in relation to the legal 
status created by the Act of 1888. There are three 
classes of boroughs — county boroughs, boroughs hav- 
ing a population of over 10,000, and boroughs having 
a population of under 10,000. The county boroughs 
even are not all equal, because eighteen do not possess 

76 



76 PRINCIPLES OF 

exclusive jurisdiction, the following not possessing sepa- 
rate quarter sessions : — Barrow, Bootle, Burnley, Bury, 
Cardiff, Coventry, Gateshead, Halifax, Huddersfield, 
Middlesborough, Rochdale, St. Helens, South Shields, 
Stockport, Sunderland, Swansea, West Bromwich, 
and West Ham ; and one — Barrow — does not possess 
a separate commission of the peace. Again, Croydon, 
West Ham, Bury, Dudley, Gloucester and West 
Bromwich do not possess their own borough police 
force. 

Of the second class of boroughs, some have lost 
their ancient power to appoint separate coroners and 
maintain separate police forces; while of the third 
class, twenty-eight still retain their quarter sessions. 

On the other hand, there are three cities which are 
not incorporated as boroughs, — Llandaff, Ely, and 
Sl David's — and six county towns — Aylesbury, Oak- 
ham, Dolgelly, Welshpool, Newtown, and Presteign. 
The number of districts having a population of over 
10,000, and, therefore, the initial qualification for the 
dignity of borough, is no less than 166 ; but the Local 
Government Act of 1894, which raised them, except 
those situated in the county of London, to the status 
of district council, will probably prevent charters of 
incorporation being granted to these towns, except 
in very important cases. 

This difference in status is a modern growth. It 
denotes nothing as to origin. In order to discuss this, 



LOCAL GOVERNMENT 77 

I will first recall to your attention the description 
of the burgh of the Anglo-Saxon period given by 
Bishop Stubbs. It was, he says, ** simply a more 
strictly organized form of the township; it was 
probably in a more defensible position, had a ditch 
and mound, instead of the quickset hedge, or *tun,' 
from which the township took its name ; and, as the 
*tun' originally was the fenced homestead of the 
cultivator, the burh was the fortified house and court- 
yard of the mighty man — the king, the magistrate, 
or the noble. . . . Other towns grew up round 
the country-houses of the kings and ealdormen, round 
the great monasteries in which the bishops had their 
seats, and in such situations as were pointed out by 
nature as suited for trade and commerce." 

Bishop Stubbs, in writing this lucid description of 
the origin of the burgh, expressly precludes any con- 
nection between the burghs of the Anglo-Saxons and 
remains of Roman civilization. But I shall have to 
point out, even for the limited purpose of these 
lectures, that such preclusion is not warranted by the 
evidence. I have elsewhere dealt somewhat minutely 
with the evidence of Roman origins in connection with 
the early municipal history of London {The Village 
Community y pp. 208, et seq\ and I cannot do more than 
direct your attention to this in proof of my proposition 
that some of the Roman cities, at all events, were the 
originals of the burghs that grew up under Anglo- 



78 PRINCIPLES OF 

Saxon civilization. I do not want to make more of 
this than is necessary, and I do not suggest that 
occupation of the Roman site necessarily meant 
continuity of occupation from Roman times, still less 
continuity of Roman institutions. But, all the same, 
the burghs founded on Roman sites are as a rule 
different in important characteristics from those 
growing up on English sites. 

I, therefore, class the burghs into two divisions — 
those originating in the more successful and better 
defended townships, and those originating in Roman 
sites. Now the first question arising in a consider- 
ation of what the English bui^h was has reference 
to the territorium of the burgh ; and here we are 
met, not only with the historical distinction just noted, 
but with legal difficulties. I must first state these 
legal difficulties. The earliest charters are grants 
of privileges and franchises to the burgesses and 
citizens of the particular borough, and not until the 
reign of Richard II. are we confronted with the legal 
problem presented by the holding of lands. Then 
the Government seem to have learnt for the first 
time that the burghs were like the religious bodies, 
against whom the Statutes of Mortmain had been 
passed, capable of holding lands ; for the famous 
statute of 15th Richard II. (1391) seems to me not 
only to have taken a singularly long time in finding 
its place upon the Statute Book, but its wording 



LOCAL GOVERNMENT 79 

implies the idea of a recent discovery. This Act 
begins by reciting the former prohibitions against 
religious houses holding lands in perpetuity, extends 
that prohibition to guilds and fraternities, and after- 
wards adds that " because mayors, bailiffs, and com- 
mons of cities, boroughs, and other towns which 
have a perpetual commonalty, and others which 
have offices perpetual, be as perpetual as people of 
religion, they shall not thenceforth purchase to them 
and to their commons and offices." Here the sig- 
nificance surely lies in the frank recognition of the 
corporate character of perpetual succession and in 
the prohibition /* thenceforth," implying that up to 
that time boroughs possessed or had attained lands, 
but were not to do so in the future without legal 
sanction — in other words, unless they were incor- 
porated. 

A great deal has been made of this ques- 
tion of incorporation, but I do not think it is alto- 
gether a matter of law. We want to know how 
the law arose, and under what circumstances it was 
first applied. Knowing the date when the English 
municipalities were first incorporated, what we have 
to ascertain is what were the circumstances which 
led to this change of constitution. Now whatever 
were the influences which produced municipal 
boroughs on English soil, those influences were 
English, and the municipal system was English ; 



8o PRINCIPLES OF 

and whatever were the influences which brought 
about legal incorporation, those influences were Nor- 
man ; but the conception of incorporation came from 
the Roman law. Here, then, are two opposite influ- 
ences at work, and here lies the key to the problem. 
The Roman municipium was a corpus, or corpora- 
tion, and held its territorium in right of its legal 
position ; it was called into existence by the 
sovereign government — that is, by a senatHs-con- 
sultum, by a lex, or by an Imperial constitution. 
The question, then, is, how were these two opposite 
systems of polity — the English and the Roman — 
brought together."^ Fifteenth-century lawyers awake 
to the facts of Roman law, fifteenth-century mon- 
archs, anxious to extend their sovereignty, combined 
to bring the English burghs within the four comers 
of this legal conception ; and they began the process, 
not by wholesale grants of incorporation to burghs 
which were not incorporated, but by a disabling Act, 
to bring sharp home to them what incorporation 
might mean. Burghs were made to understand 
that they could not acquire property unless they 
were incorporated. 

I think this course is most significant. A for- 
mal grant of incorporation would not have been 
thought much of by burghs which had existed with- 
out it for centuries; London, for instance, which in 
Athelstan's reign possessed a code — judicia civu 



LOCAL GOVERNMENT 8i 

talis LundonuBy which provided that half the pro- 
perty of a convicted thief was to go to the king, 
and half to the reeveshire — that is, to the ward over 
which the reeve presided — had already provided for 
municipal property ; Canterbury, with its ** urbana 
prata^' its W burgwara mceduin " {Codex Dip., ii. 26, 
66) of pre-Domesday times, and its burgess houses 
held at the time of Domesday ''in gildam suam'' — 
i.e., in their corporate capacity (Coote, Romans of 
Britain, 376) ; other burghs similarly placed, and 
there were many, would not understand the needs of 
incorporation based on an appeal to philosophical 
jurisprudence. Their understanding, therefore, was 
sharpened by the Act of Richard IL, and incorporation 
became to them a legal necessity. 

Still the process was slow. Legal incorporation 
was not granted as a privilege until 1439, when 
Kingston-upon-Hull and Plymouth were incorpor- 
ated — the first by charter, the second by statute. 
Henry VL also gave grants of incorporation to 
Ipswich, Southampton, Coventry, Northampton, 
Woodstock, Canterbury, Nottingham, and Tenter- 
den. These grants, however, did not become 
general, for Norwich, Bristol, and the Cinque Ports 
received charters without incorporation from Edward 
IV., who, on the other hand, conferred this privilege 
on Rochester, Stamford, Ludlow, Grantham, Wen- 
lock, Bewdley, and Kingston. The question of in- 



82 PRINCIPLES OF 

corporation is further complicated by the contention 
of the boroughs about this period that, though not 
expressly incorporated, this right must be presumed 
from the circumstances of their creation, and must, 
therefore, have been conferred by some grant beyond 
legal memory; and in the year 1466 it 9^s actually 
held by the Court of Common Pleas that words of 
incorporation might be implied in a grant "if the 
king gave land in fee-farm to the good men of the 
town, . . . and so likewise where it was given 
to the burgesses, citizens, and commonalty" (Mere- 
wether and Stephens, 37-8). Thus, important as 
incorporation is from the legal point of view, we 
have the following condition of things to show that 
the law lagged behind the facts: (i) that in Richard 
1 1. 's reign English lawyers discovered that boroughs 
were practically corporations, from which position 
they were dislodged by special Act of Parliament ; (2) 
that Edward IV, granted incorporation in a fashion 
so erratic as to show, at least, a want of appreciation 
of its importance by the boroughs; (3) that the 
boroughs claimed to be incorporated without a char- 
ter to that express effect. 

I want now to place before you a statement of 
the position of the burghs from the historical point 
of view, and I want then to summarize the evidence 
which exists, and to apply it to the problem presented 
by this double standpoint of history and law. 



LOCAL GOVERNMENT 83 

The first thing to note is that the economic con- 
ditions of the Roman cities and of the Anglo-Saxon 
tribes who conquered these cities were on a different 
plane — the former was the advanced economical 
system of an empire, such as the British Empire of 
to-day ; the latter was the primitive economical 
system of tribal society, such as the Hindu tribes 
of to-day. At no point did they touch or converge ; 
at no point could the one naturally or instinctively 
carry on the work of the other. At all points they 
were antagonistic. 

Between the life in the Roman cities and the life 
in the English burghs there is a gap, therefore, which 
cannot be bridged over by the simple theory of his- 
toric continuity. Nevertheless, the gap is lessened 
by the influence which the Roman cities had upon 
the development of English burghal life. The de- 
struction of the Roman cities did not mean the 
destruction of the conditions which had made the 
Roman cities what they were, whenever the time was 
ripe for such conditions to again arise. The quickened 
development of Anglo-Saxon life on British soil 
brought these conditions into being towards the end 
of the Anglo-Saxon period ; and as a result the 
sites of old Roman cities became here and there 
the sites of English burghs, occasionally, as in Lon- 
don for certain, carrying on the old Roman mercan- 
tile law and principles, and, as at York, Gloucester, 



84 PRINCIPLES OF 

Chester, Bath, Dorchester, Colchester, and elsewhere, 
carrying on some of the traditions of Roman life. But 
not everywhere did these conditions apply. At Sil- 
chester, for instance, the Calleva Atrebatum of the 
Romans, we have a signal example of a destroyed 
Roman city never again restored to life. You can 
walk round its walls, go through its gates, stand 
on the tesselated pavements of its forum, its temple 
and its houses ; walk down its streets and across the 
very ruts made in the roadway by Roman carts ; 
and you may still see the amphitheatre outside its 
walls, still trace the great roadways converging to it 
as to a centre. But the Saxon plough has been 
driven over it, and on the site where Roman munici- 
pal life went on English corn is now growing. Then 
there are such significant cases as St. Albans, which 
was not built upon the Roman site, still desolate and 
undeveloped, and still known as Verulam, but was 
built just alongside and out of the ruins of the Roman 
city. 

On the other hand, English burghs grew up on 
native English sites — that is, sites developed entirely 
by the economical conditions of English life. This 
amounts to saying that the Teutons, like the Romans, 
the Greeks, and other branches of the same race 
to which Teutons, Romans, and Greeks alike belong, 
developed in due course the city form of political 
organization, as well as the State form. This parallel 



LOCAL GOVERNMENT 85 

takes us further on than is sometimes supposed. 
Thus there are the signs of political independence 
which the burghs of England gave promise of at 
the time of the Norman Conquest and later — Lon- 
don, in claiming and obtaining an independent voice 
in the formal election of the king, and in the long- 
continued theory of independence which is illustrated 
by the well-known custom of closing the city gates 
at the death of every king, and only proclaiming the 
new monarch within her walls after admission has 
been formally asked and obtained ; Exeter, in raising 
the standard of independent existence when William 
had already conquered the country ; the five Danish 
burghs, Lincoln, Nottingham, Derby, Leicester, and 
Stamford, which had not only special privileges of 
their own, but a common organization apparently of 
the nature of a confederation ; and the Cinque Ports, 
whose confederation was a matter of almost recent 
history. And there are the peculiar combinations of 
the Scottish burghs, which existed from the days of 
David L — one consisting of Aberdeen and the burghs 
northwards, under a confederacy called by the name of 
Hanse ; the other a sort of burghal parliament, called 
Curia Quatuor Burgorum, composed of delegates of 
the burghs of Berwick, Roxburgh, Edinburgh, and 
Sterling. 

Mr. Freeman has suggested that such early 
combinations, or confederacies, of burghs bring the 



86 PRINCIPLES OF 

course of development in English constitutional 
life to a converging point with Greek constitutional 
life, from which other influences only just succeeded 
in preventing a parallel development, when the city 
organization would have been the foundation of the 
English constitution, and not the State organization. 
I think the suggestion opens up a fruitful source of 
special enquiry not yet undertaken by any student 
of English municipal history, and I think it accounts 
for some of the conditions of English towns up to the 
end of the Middle Ages. For my present purpose 
I ask you to remember that the State organization 
under which we live is not the only form of national 
existence ; and that the city organization, which 
made Greek life what it was, which was the founda- 
tion of Roman life, has had a history, though a brief 
one, in English life. 

The question is. Does this development of English 
city life amount to more than this — more, I mean, not 
in the sense of the comparative importance between 
English and other forms of city life in European 
peoples, but in the sense of developing a peculiarly 
English form of city life ? I think the adaptation of 
the burghs and the counties to the military organiza- 
tion, which is more or less popularly connected with 
the name of the great Saxon king Alfred, is the 
answer which meets us from the mists of history, 
though not sufficiently clearly to be able to formulate 



LOCAL GOVERNMENT 87 

the precise factors which may thus be reckoned as 
specially English.^ Still this point must not be lost 
sight of, and accordingly when summarizing the 
elements which make up the burghal organization 
to be examined by the historian they will be found to 
consist of — (i) common Aryan influences, (2) Romano- 
British influences, and (3) English influences. 

I hope I have stated the legal position and the 
historical position with sufficient clearness, even if 
I have not been able to state them in greater detail. 
My next task is to apply to these two positions the 
details of English burghal life as it has come down 
to us. 

These details are — (i) ceremonial, (2) constitutional, 
(3) economical, (4) social. 

I dismiss the first, or ceremonial, division, tempting 
though it is to dwell upon, with the observation 
that municipal ceremonial contains many features of 
extremely archaic character parallel in a remarkable 
degree to archaic ceremonial belonging to English 
institutions other than municipal, and to institutions 
which are neither municipal nor English, in Ger- 
many, Russia, and other homes of ancient Aryan life. 

The social division scarcely concerns us at all. 

^ Since this lecture was delivered Professor Maitland has worked 
this point up with most remarkable success in his work on Domes- 
day Book^ and I have summarized my own views thereon on p. 46 
ante. 



88 PRINCIPLES OF 

And this leaves for consideration the constitutional 
and economical divisions. In respect of these I omit 
all matters which do not bear upon the immediate 
purpose of these lectures. At some time or other, 
by some means or other, which have escaped the 
ken of history, but which we cannot doubt have 
followed the almost inevitable law of analogy — like 
causes producing like results — the condition of burges- 
ship was created in Anglo-Saxon times. The ques- 
tion is, what was its fundamental basis? There is 
evidence that the ancient tribal basis of kinship by 
blood obtained in the rural communities of Britain 
in early times, and even lasted down to late times, 
a manorial tenant of Kings Repton in 1296, for in- 
stance, being stated to be of the blood of the manor — 
de sanguine de Repton Regis ; and I have discussed 
this point in my book on the Village Community. 
But the cement which bound burgesses together was 
distinctly not that of kinship by blood. 

In 1890 I pointed out — I believe for the first 
time — the curious importance of certain entries in 
Domesday. To many of the manors are said to 
belong certain burgesses. Thus, among the Wiltshire 
boroughs, in Wilton there were five burgesses of 
Nigrave, seven of Sarisberie, one of Stradford, two 
of Fifhide, one of Come, four of Diameford, one 
of Scarentone, one of Meresdene, and one of 
Odestoke ; in Cricklade there were six burgesses of 



LOCAL GOVERNMENT 89 

Aldeborne, five of Ramesberie, one of Badeberie, 
one of Piritone, six of Chiseldene, one of Ledentone, 
seven of Lediar, three of Clive, and three of Colecote, 
and so on. In seeking for the origin of this curious 
relationship between burgh and manor, one must look 
to economical causes, not legal or constitutional, and 
an important parallel is presented in modern Russia, 
where members of the mir frequently go to the towns 
to work, while retaining, and ultimately returning to 
claim, all the privileges of their ancestral rights in 
their native village. Though these Russian towns- 
men work in the towns, they really belong to the mir ; 
economically they have been thrust forward to meet 
the necessities of burghal development, constitution- 
ally they have been kept back to meet the traditional 
reverence for tribal ties. The continental picture 
drawn by Bishop Agobardus of men standing side 
by side in cities and large towns, each one of whom 
is governed by a different law, law being incidental, 
not to the locality, but to the person, flowing, not from 
the sovereign of the country, but from the kinship 
which binds together the descendants of a common 
ancestor, may have been reproduced in England when 
the villans of manors, believing that they belonged 
to the blood of the manor, went to work in the 
burghs, especially as there are traces of it in the 
constitution of the Gilds, as Mr. Ashley has pointed 
out {Economic History, i. 75). 



90 PRINCIPLES OF 

In any case the Domesday burgesses were not 
kinsmen to each other ; and if an appeal is made 
to comparative politics, Mr. Freeman's main con- 
clusions are all that remain as a guide to determine 
the cement which bound burgess to burgess. The 
civic franchise, whatever it might have been worth, 
and whatever it carried with it, could be had only 
by the appointed means. It did not belong to every 
man who chose to go and dwell within the civic 
boundary. It might not always be purely a matter 
of birth, but it was always something which could 
not be taken up at the mere will of the stranger. 
It was always acquired by that particular qualification 
which was fixed by the custom of the civic community, 
be that qualification birth, marriage, servitude, special 
purchase or special grant (Freeman*^ Comparative 
Politics, 283). Here, then, are the elements of 
contract, not status, of a political combination, not 
a tribal, of an economical basis, not a kinship basis ; 
and it is from this starting-point, lost though it is 
in English evidence, that the origin of English 
burghal life must be considered. 

Just let me for one moment illustrate the growth 
of the idea of a burghal community as distinct from 
an indeterminate mass of burgesses. In 762 a house 
(villa) was sold at Canterbury, ''cum tributo illius 
possidendum'' {Cod. Dip., i. 133). In 857 a house 
{haga) was sold in London for twelve pence {Cod. 



LOCAL GOVERNMENT 91 

Dip., ii. 63). These two transactions indicate in- 
dividual action among the burgesses. If this is the 
earliest glimpse we can get of the action of burgesses, 
a great change is marked towards the end of the 
Saxon period. Before the Norman Conquest it 
appears from Domesday that the firma burgi — that 
is, a permanendy fixed sum — was paid by the body 
of burgesses in lieu of individual assessments. I 
am aware that lawyers, as a rule, deny that the firma 
burgi is any evidence of a corporate act, but so 
good a lawyer as my friend the late Henry Charles 
Coote maintained it was a sure sign of a corporate 
act, and the same contention was passionately ad- 
vocated by the late Mr. Toulmin Smith. At all 
events, \] think the transition from individual to col- 
lective payment indicates a change in the fiscal 
relationship of the burgesses to each other which 
could only have been brought about by an already 
existing basis, whatever that basis might have been, 
of communal interests. 

I next turn to the economical evidence. Nearly 
eighteen years ago I discussed this subject, writing 
then under the influence of Sir Henry Maine's works. 
Coming back again to it now, one factor of supreme 
importance which was clearly shown by the evidence 
collected by the Municipal Commissioners of 1835 was 
that the English boroughs were land-owning communi- 
ties. Faulty as this evidence unfortunately is in detail, 



92 PRINCIPLES OF 

it supplies what could not be supplied by any other 
method — the exact conditions of land tenure at a given 
date. If these conditions had been uniform — if all 
municipalities had possessed lands and let them out 
at rack-rents, according to the modern principles 
of economics — there would not have been much to 
say about the significance of municipal land-owner- 
ship. But this was not the case. Some let their lands 
out at rack-rents ; some possessed rights of pasturage 
only, and burgesses used these rights ; some possessed 
meadow land, which was allotted year by year among 
the burgesses, and after harvest thrown into common ; 
some possessed, together with pasturage, arable lands, 
which were allotted year by year among the burgesses, 
and after harvest thrown into common ; one or two 
possessed large tracts of land, which were cultivated 
by the burgesses in a fashion which can only be 
described by the term extremely archaic. I am sure 
you do not miss the significance of evidence such 
as this, and will not be surprised at the argument 
I used eighteen years ago— that this overlapping of 
different classes of municipal land tenure pointed to 
unequal developments from an original system which 
at one time prevailed amongst all the municipalities 
alike, and that this system was that of the village 
community. 

Now how far does this help us to understand 
the burghal organization ? The answer is to be 



LOCAL GOVERNMENT 93 

found in the ancient principle that the right to allot- 
ments in the common fields surrounding the home- 
stead depended upon the holding of a tenement in 
the village. Instances are found in early times. 
Thus in 832 King -^thelwulf grants a haga 
(house) in Canterbury, to which are attached, ^' ad 
quam pertinet " {sic)y five acres of arable, two meadows 
and common wood {Cod. Dip., v. 88), and I interpret 
in the same manner the references to property in 
Winchester {Cod. Dip., vi. 33), and in London \Cod. 
Dip.y iv. 211), to which was attached land in the 
shire. This selfsame right has very extensively 
survived in municipal custom. In the remarkable 
instance of the Burgh of Lauder, no one can be a 
burgess who does not possess a " burgess acre," and 
the possession of these acres carries with it a right 
to ** the outfield and freeland parts thereto belonging 
as the same shall happen to fall by cut and cavil." 
According to the ancient custumal of Preston, ** no 
one can be a burgess unless he have a burgage of 
twelve feet in front," and this burgage carries with 
it land rights. The first charter to Salford distincdy 
recognises the same right. As a matter of fact, these 
modern survivals are met with in almost all our chief 
borough towns — not, it is true, in the exact form of 
the archaic model given in these instances, but in 
the more general form of the burgesses occupying 
ancient burgage tenements. A large part of the 



94 PRINCIPLES OF 

city of Gloucester is corporation property, and this 
holding of burgage property is extant in very many 
towns, among which I may mention Marlborough, 
Newbury, Tewkesbury, Worcester, Alnwick, nearly 
all the Welsh boroughs, and many more which it 
will not perhaps be necessary to enumerate. 

The importance of the burgage tenement is again 
shown by the ancient custom at Folkestone, Hastings, 
and London of an offence against the community 
being punished by the house of the offender being 
publicly demolished by the commonalty, while at 
Preston a debtor to the king's ferm was liable to have 
the door of his burgage tenement taken away, which 
he could not replace until his debt was paid. Here 
the burgage tenement is clearly a symbol of the bur- 
gage right. 

Now I come to the last point, and it is this — namely, 
that the owners of burgage tenements were the bur- 
gesses, and that the whole body of burgesses — not a 
selected few, not an elected body — composed the muni- 
cipality, were, indeed, the burghal assembly. The 
duties of this assembly are sufficiently significant in 
the burghs which still held their lands for agricultural 
purposes before the general Reform Act. Thus the 
burgh assemblies at Lauder, Berwick-on-Tweed, Mal- 
mesbury, Beccles, Laughearne, and other places made 
by-laws, regulated the enjoyment of the meadows and 
stints, prescribed the conditions of husbandry, and 



LOCAL GOVERNMENT 95 

decided the right of claimants to a share in the allot- 
ments. 

This evidence, if I mistake not, suggests a new and 
important view for considering the origin of English 
burghs. A very distinguished legal scholar. Professor 
Maitland, has challenged my views as to the archaic 
origin of the burghal constitution by advancing some 
legal difficulties which I have been bound to examine, 
and I confess that my mode of treating this part of 
my subject has been dictated, to some extent, by the 
criticism given to it by Professor Maitland. I am 
confronted with the charters which do not grant land, 
with the " mass of men who are the burgesses for the 
time being," enjoying lands in co-ownership as dis- 
tinguished from ownership by a community, with the 
legal difficulty of conceiving anything but a legal con- 
dition of things. But the mass of men who were 
burgesses was not a legal creation, and yet they 
massed, and organized, and developed, not towards 
an individual type, but towards a communal type, and, 
finally, compelled English law to take note of them 
and to endow them with corporate life. The evidence 
begins in the early history of economics, not in that 
of law ; it continues its course through the early his- 
tory of the State organization, during which time the 
chances of a city organization were very great ; it 
finishes in the history of Norman sovereignty and the 
growth of Norman law. This evidence shows us the 



96 PRINCIPLES OF 

village community as the gfroundwork of all. The 
development of burghal life from this groundwork 
took two courses— one where the village community 
absorbed much of the free tribal institutions, and 
simply developed into the burghs, of which Lauder, in 
Berwickshire, and Malmesbury, in Wilts, are the types ; 
the second where the village community became sub- 
ordinate, not to the free tribe, as it did generally 
throughout Teutonic Britain, not to the lord, as it did 
in later times, and of which the manor is the well- 
known type, but to the new industrial or commercial 
community — the burghers, in fact. Here we have the 
dual element of agricultural serfdom under a higher 
organization which is free, which is the distinguishing 
feature of the village community system, only it 
introduces a type not hitherto noted by scholars — 
namely, the burghal type, which consists of the free 
burghers at the top of the organism, with the village 
community at the bottom of the organism. 

I am afraid you will think I have somewhat gone 
off the main line at this juncture, but that is not the 
case. The boroughs of England are so important a 
feature of local government that it is all-important 
to understand their true place. If their prominent 
position in mediaeval times brought them under the 
cognizance of the law, it did not reduce all their rights 
and customs to the position of positive law, and it 
is from these rights and customs that I have drawn 



LOCAL GOVERNMENT 97 

the conclusions as to the burgess organization being 
formed by an adaptation of the ancient system of the 
tribe and the village community to the new develop- 
ments of commerce. The bearing of this upon the 
particular points of interest to us has relation to the 
principle of locality in local government, and I will 
proceed to show how this is. 

The boundaries of all the prescriptive boroughs, 
where they are not stopped by the Roman wall, 
extend beyond the town limits to take in agricul- 
tural land. The meaning of this is that inasmuch as 
possession of a burghal tenement in the town carried 
with it rights in the agricultural land beyond the 
town, the area covered by the aggregation of these 
two connected holdings became the territorium of the 
legal corporation. In the other class of burghs the 
topographical aspect is different There the extent of 
the territorium is not measured by the cultivated 
lands attached to the town, but by the girth of the 
old Roman wall enclosing in security a commercial 
community within. London is a good example of 
this. The Roman wall to this day is the boundary 
of the burghal limits, although there were citizens' 
lands beyond the wall, and, if I mistake not, burghal 
lands as well. But these extra mural lands did not 
come within the territorium — that was fixed by the 
ancient limits of the Roman wall. 

Here then is the important contribution to the 

H 



98 PRINCIPLES OF 

principle of locality in local government It did not 
come to London, York, Canterbury, Leicester, or 
Lincoln by charter or by Act of Parliament, but 
from the Roman civilization and power, which, though 
in the main swept away by Teutonic tribes and by 
Norman conquerors, still left the indestructible sites 
of municipia or colonia ; it did not come to the Eng- 
lish burghs from charters or from law, but from the 
ancient system, older than charters or law, which 
belonged to the conquering Teutons in their tribal 
organization, and to the conquered British in their 
village organization. 

A comparative study of the ancient ground-plans 
of the English and Scottish burghs well repays the 
careful student He can pick out the examples of the 
two classes of burghs which I have just been dealing 
with, and he can bring to light many interesting and 
important points in the history of municipalities, 
gleaned, as is so often the case, not from meagre 
records, but from monumental remains, which speak 
so eloquently to those who know where to look for 
evidence. 

Let me here summarize these somewhat intricate 
facts in the history of the burgh. 

1. As far back as English records will take us we 
find the burghal town with the burgess organization, 
whatever that may have been. 

2. The burgess tenement in the town was at once 



LOCAL GOVERNMENT 99 

the sign and the basis of the right of burgessship, and 
it carried with it rights to agricultural lands outside 
the town. 

3. Burghs formed on purely English ground ex- 
tended their boundaries to include both the town and 
town lands*; burghs formed on ancient Roman sites 
cut short their boundaries at the town wall. 

4. The ancient agricultural system of the village 
community applied to burghal towns as to open town- 
ships, and cultivation was carried on, subject to com- 
mon rights and obligations. 

5. Burghal tenements, though held originally in 
independent ownership, became in time subject to 
common rights incidental to burgessship. 

6. The burghal community in its final development 
contained all the elements of the English village com- 
munity, the burgesses being the equivalent of the free 
tribesmen at the top of the system, the agricultural 
villenage being at the bottom of the system. 

7. Before coming within the province of English 
jurisprudence the burgh was a community of persons 
held together by common rights and common duties, 
and possessing common property in the agricultural 
land around them, which was the basis of their eco- 
nomical existence. 

8. After coming within the province of English 
jurisprudence the burgh became a legal corporation. 

As in the case of the counties, so then in the case 



100 PRINCIPLES OF 

of the burghs, the point we have arrived at is that the 
territorium was not formed by an artificial aggregation 
of smaller units, but was an independent formation 
due to causes unconnected with the smaller units. 
The shire boundary fixed the boundary of the border 
townships within the shire, and the burgh boundary 
was just as absolute, for within the burgh there were 
no independent townships, but only wards and other 
convenient divisions for the government of the bui^h. 
It is curious rather than significant, I think, that these 
internal divisions of the burgh are called by different 
names — ^they are shires in the city of York, hundreds 
in the burgh of Malmesbury, leets in the city of 
Norwich, wards in the city of London and elsewhere. 
It is true that in the boroughs, as elsewhere, the 
parish appears as a local division, but the parish in 
this case is not the equivalent, or practically the 
equivalent, of the township, as it is in the county 
outside the burghs. It is merely the ecclesiastical 
unit, having no connection whatever with municipal 
functions and work. Anybody looking at the map 
of the city of London, for instance, will see that the 
wards have no sort of relationship to the parishes, 
and, further, that the parishes are all named from 
the churches, and do not bear a second name derived 
from the old township — St. Michael, St. Anne, St. 
Faith's, etc., the simple ecclesiastical name ; not 
St. Mary Abbots, Kensington; St Mary, Islington 



LOCAL GOVERNMENT loi 

— the double name of ecclesiastical parish and civil 
township. 

I now turn from this to another part of the subject. 
The "curia bui^i," the "hustings court," the "bur- 
waremote," the "portmote," or " portmanmote," are 
the names for the burgh assembly at different places. 
Like the ancient shire assemblies, the ancient burgh 
assemblies met in the open air. There are numerous 
instances of this, but perhaps the one that will appeal 
to you most is that of London, which met on a small 
plot of ground on the north side of St Paul's, and is 
recorded in the Guildhall records as the land ''qui 
dicitur folkmoot." The functions of the assembly 
are certainly diverse enough, and include so early as 
1237, in the case of London, the making of a conduit 
to bring water to the city {Mun. GildhalUe, ii. 66). It 
is not necessary to catalogue in detail all the functions 
which at one time or another, in one town or another, 
were performed by the burgh assembly or court. 
There are frequent cases of discontinuity of functions, 
frequent cases of the quiet assumption of new func- 
tions, frequent cases of the interference of the king to 
protect his ever-gprowing powers and assumed powers ; 
but through it all the government of the borough in 
some sort and fashion has been absolutely continuous. 
So that, b^inning with the conditions of a primitive 
community or with the independence derived from the 
Roman city, the burghs have brought their territorta 



102 PRINCIPLES OF 

and their system of self-government safely through all 
the political changes of a thousand years, and now 
stand at the bar of public opinion, performing many 
ancient functions of local government at the command 
of the State government, because of the maxim, 
"What the sovereign permits he commands," and 
many new functions of local government, because the 
sovereign has willingly utilized the old organization 
for the new duties. 

You will remember that I quoted a legal definition 
of the county which showed the close connection be- 
tween the territorium and the communttas — the local- 
ity and the community. The same definition applies 
to the bui^h, and is even more closely suitable to the 
facts. The assembly of burghers sitting in session 
representing the whole community was the burgh ; 
the whole community, the buf^esses, were, until the 
Reform Act of 1835, the actual legal assembly of 
burghers without the machinery of representation, and 
this community of burghers was the burgh ; the terri- 
torium consisting, in the English type of burgh, of 
burghal tenements in the town, and of the attached 
arable, pasture, and woodlands in the fields around 
the town, and, in the Roman type, of the wall-girt site 
of the ancient city — the territorium was the burgh. 
And in this intimate connection between territorium 
and communitas in the constitution of the county and 
of the burgh there lies the great principle of local 



LOCAL GOVERNMENT 103 

government as it is revealed by natural development 
That this intimate connection has been cut asunder 
by the l^slation of later ages, when the meaning of 
county and bui^h was scarcely understood, is a fact of 
some importance, for it has helped towards the in- 
difference of citizens towards the burghal territartum, 
and towards the burghal cammunitas, and the concen- 
tration of all their attention upon the elected council 
of the burgh — as a thing apart from themselves, apart 
from the locality which it governs. 

We have seen that the burgh and the township 
were closely allied. The burgh and the county were 
not in alliance. Every township that obtained burghal 
rank was a withdrawal from the jurisdiction of the 
shire or county, and the counties have not always 
submitted to this without a struggle. Thus in 1221 
the vill, or township, of '' Fairford, in Gloucestershire, 
claimed to behave like a borough, its men wanted ' to 
swear by themselves,' and the county of Gloucester 
testified gainst the claim — it had no warrant in prac- 
tice" (Pollock and Maitland, op. ciL, i. 626). Exactly 
on all fours with this thirteenth-century case are two 
cases of only a few months old. The first is when the 
motion of Sir Albert Rollit, in the House of Commons, 
to allow certain boroughs below the rank of county 
boroughs to be endowed with the functions and 
powers of the Education measure of last session was 
carried in the House of Commons, and was imme- 



104 PRINCIPLES OF 

diately followed by the successful protests of the 
counties. But let us see how this is being followed 
up. The non-county boroughs are now combining, 
and the association of these boroughs for Lancashire, 
consisting of representatives of Ashton-under-Lyne, 
Bacup, Blackpool, Chorley, Colne, Darwen, Eccles, 
Haslingden, Heywood, Lancaster, Middleton, Nelson, 
Rawtenstall, Southport, Warrington, and Widnes, has 
issued a statement on the question as to what should 
be the educational authority in non-county boroughs 
for the purpose of providing technical and secondary 
education. The statement was unanimously approved 
at a meeting of the association, held on the 4th 
December, 1896, in Manchester. The statement 
urges the following points : — Prior to 1888 there was 
practically no distinction between boroughs, but all, 
great and small, had equal right of self-government 
accorded to them by their charters, and could not 
be controlled or interfered with by the county 
authority. The Act of 1888, by creating a distinc- 
tion between boroughs above and below a population 
of 50,000, deprived the non-county boroughs of the 
safeguards they had up to that time possessed in 
being bound up by community of interests with the 
larger boroughs which had Parliamentary repre- 
sentation, and which, while protecting themselves, 
protected the smaller boroughs as well. The town 
council of a non-county borough is at present the 



LOCAL GOVERNMENT 105 

educational authority upon whom rests the duty of 
providing technical instruction within its own area. 
The Government in 1890 granted the non-county 
boroughs' share, not to their town councils, but to the 
councils of the counties in which those boroughs are 
situate, exclusively and without imposing upon the 
county councils any obligation to pay or distribute the 
grant to the various local authorities within the ad- 
ministrative county, either according to rateable value 
or population, or both. It is pointed out that the best 
remedy would be the abolition of the arbitrary dis- 
tinction created by the Local Government Act, 1888, 
between boroughs above and below a population of 
50,000- 

The second case is the struggle of the county of 
London against the city of London, a struggle which 
seeks to bring into the county jurisdiction the ex- 
empted area of the city, so that all London may share 
and share alike in respect of services that are of 
common benefit to the inhabitants of the whole area. 

And thus with new aims and aspirations, with new 
motives and under new conditions, we have the old 
forms and the old relations of county and borough 
government 



IV 
LOCALITIES {coniinu€d)^THE PARISH 

THIRDLY, we have to consider, in connection 
with origins, the parish. I am compelled to 
use the term parish as the title of this section 
of the inquiry, because it is the only term known to 
local government for the lowest unit of administration. 
But it will not have escaped your attention that in 
discussing the county and the borough another term 
found its way into my vocabulary. This term was 
township; and when I tell you, or remind you — ^for 
you doubtless know the fact quite well already — that 
the parish is simply the township ecclesiastically con- 
sidered, you will understand that I want now to go 
back to that older and better term for the purpose of 
discussing origins. 

The going back to the old English term implies 
much more, however, than a mere academic preference 
for an English over a Greek word. For the thou- 
sand years or so during which it has been in use, the 
ecclesiastical, or parish, side of local government has 
considerably developed, while the civil, or township, 

106 



LOCAL GOVERNMENT 107 

side of local government has gone back. Thus in our 
own county of London, while the ancient civil parishes, 
or townships, of Islington, Camber well, Lambeth, 
Chelsea, Kensington, Hampstead, and the rest, still 
remain, the ancient township (or city, as it became 
by charter) of Westminster through being cut up into 
ecclesiastical units, has caused the loss of Westminster 
from amongst London's choicest historical localities 
to obtain in its place St Margaret's, St John's, St 
Clement's, St Mary, St James, and St George 
Hanover Square. And when we reckon up the forces 
which make London interesting to Londoners and to 
others, the loss is not a small one. 

Nor is the change from civil to ecclesiastical juris- 
diction beneficial to local institutions throughout the 
country. I use the words of Sir Francis Palgrave to 
describe the situation as he learnt it in 1835, during 
the labours of the Municipal Corporation Commis- 
sion : — 

"A great deal of land was, and is, extra-parochial, 
but there is not an acre which is not in some township 
or ward, or at least in some ancient civil precinct of a 
similar nature, and hence a great deal of perplexity 
with respect to extra-parochial districts. 

" Parishes are not so conveniently planned as the 
common law divisions. A township, or a ward, is 
usually a compact and well-rounded precinct; it was 
intended for the government of the people. The 



io8 PRINCIPLES OF 

parish is very frequently irregular in its form, and 
composed of outlying or detached parcels, its boun- 
daries having been determined by the possessions 
of the early patrons, whether laymen or ecclesiastical 
bodies, and, therefore, it is often quite unadapted for 
municipal purposes." 

The history of the township, then, is what we have 
to consider in connection with the contribution it may 
be able to surrender to our inquiry. This history is 
lost in the unrecorded facts of the past, and we have 
to deal with the township as a cammunitaSy — a legal 
unit which has not only duties, but also, as I think, 
rights, — and with the township in its undoubted con- 
nection with the manor. In the obscurity which thus 
surrounds the subject there are, as in the case of the 
burgh, the legal aspects of the case, and there are the 
historical aspects. Unfortunately, these do not ^ree, 
and the crusade against the idea of any archaic sur- 
vivals occurring in our local institutions, in which our 
legal historians have done me the honour to single out 
my work for special attack, serves to widen the breach. 
This, of course, is not the place to discuss differences 
of opinion, so I must be content to state the case 
for my present purpose, with such knowledge and 
capacity as I possess, always bearing in mind, how- 
ever, the check which legal scholars would impose 
upon other methods of enquiry. 

I begin by pointing out a very important consider- 



LOCAL GOVERNMENT 109 

ation — namely, that the initial element in the history of 
the township is, like that of the county and the burgh, 
in the territortum ; but that, unlike the county and the 
burgh, the ierritorium of the parish is discoverable, not 
from historical, nor legal, nor economical evidence, 
but from geographical, or rather geological evidence. 
When the ^ricultural reformers of last century set to 
work to collect their information together, they found 
a certain well-defined system in the situation of the 
townships ; and when geologists applied their science 
to the work of man on the earth's surface, they read 
the same well-defined system. Stripped of technical 
phrases, which are of no use to the present subject, 
and sometimes not correct, I will repeat the evidence 
which I collected in 1890 from two counties — Wiltshire 
and Sussex. In Wiltshire the valleys are, almost 
without exception, intersected longitudinally by rivu- 
lets, and are from three to five miles apart, hills inter- 
vening between them. The shape of the townships 
follows that of the valleys, and are, therefore, long, 
narrow strips from river to wood, with a right to 
the use of both. The farmers' houses were crowded 
together in villages situated on the banks of the 
stream, and the application of the land to each village 
was most uniform. The common meadows adjoined 
the river ; next followed the arable, until the land be- 
came too steep or too thin to plough; then came 
the sheep and cow downs, and finally the woods at 



no PRINCIPLES OF 

the extremity of the boundary, and adjoining the 

downs or woods of the townships in the opposite 

bourn. 

Here, then, is evidence of systematic settlement, and 
I compare it with the south-east of England. There 
the chalk escarpment is the best marked physical 
feature. It is a steep-sided range of hills, having its 
summits remarkably level, and the ground falling 
gradually away with a slope from the crest. Mr. 
Topley, in examining this geological feature, was 
struck with the fact that the boundaries of the ancient 
townships followed exactly one plan so regularly as to 
afford undoubted evidence of ** absolute facts which 
our forefathers have stamped on the great land 
divisions of the country." Everywhere along the foot 
of the chalk escarpment there is a line of villages. 
Everywhere the township ascends the escarpment, 
generally taking a good deal of the table-land above, 
occasionally ending off at or near the crest Every- 
where the vill^es are comparatively close together, 
and the townships consist of long, narrow strips, 
stretching from the valley up the side of the escarp- 
ment Everywhere the homesteads are at the foot, 
where good water is to be found; the arable land 
adjoins; next comes the down land, to form the pasture 
ground ; and the forest beyond completes the settle- 
ment 

Now here are neither political nor administrative 



LOCAL GOVERNMENT in 

divisions of a country. The territorium is just 
that quantity and kind of land necessary for the 
support of communities independent of each other 
in all respects — communities supported by the pro- 
duce of their lands and flocks, clothed from the 
wool and skins of their own herds, dependent upon 
their own laws and their own methods of punish- 
ment, — the stocks, the pillory, the tumbrel, and the 
whipping-post, — ^seeking wives and husbands from 
their own people, and looking upon neighbouring com- 
munities as foreigners, if not as enemies. Townships 
to this day in Scotland and the north of England look 
upon marriage outside the township community as 
hardly decent ; refer to neighbours of other townships 
as foreigners; and, as in the case of Banbury, in 
Oxfordshire, up to 1803, possess no roads which 
indicated either the desire or need for intercom- 
munication. I could, if time permitted, quote to you 
from the agricultural surveys of the end of last 
century example after example to show how late 
this interdependence of the townships lasted in 
this country. 

Communities thus placed were more particularly 
identified with the territorium which held them than 
either the bui^h or the shire. Like the bui^h, there- 
fore, and like the shire, the township is not a political 
division of the country, nor is it a division of the shire, 
or of the hundred, but it is a tract of territory formed 



112 PRINCIPLES OF 

to meet the common necessities of a community at a 
time when the country was a geographical, and not a 
political expression. This community and this terri- 
tory has become the township of historical times — the 
parish, or lowest unit in the system of local govern- 
ment 

I will not repeat to you the detail of the primitive 
^ricultural system which fitted into this ancient 
settlement, because I assume that Mr. Seebohm's book 
is well enough known to you ; but when I remind you 
that its main feature is a group of villagers bound to 
each other by the close ties of common interests, per- 
haps of common blood ; that these common interests 
were expressed in economical terms by the allotment 
of meadow and arable land every year in scattered 
bundles of acre-strips, so that each villager did not 
possess one single holding in severalty, but simply 
had the use of several long, narrow plots situated at 
different parts of the village lands, and which after the 
harvest were returned into common, again to be dis- 
tributed the following year, in such a manner that each 
villager obtained for his lise a different set of acre- 
strips each year ; when I remind you, too, that the 
explanation afforded by this early system of economics 
has been alone able to account for some of the most 
remarkable phenomena of manorial custom and, be it 
added, of parish law and usage; when I point out 
that a great deal of this manorial and parish law has 



LOCAL GOVERNMENT 113 

only been brought under the notice of lawyers and 
within the ken of the law courts by the fact that it 
frequently governed succession to property and rights 
in property ; when I point out that even now the 
customary law of England has never been codified 
and placed on the same scientific footing as positive 
law ; when I add that the main features of primitive 
village custom in England are repeated in France, 
Germany, and Scandinavia, in much the same relation- 
ship to modern law as they are found in England, 
while they are also repeated in Russia, Eastern 
Europe, and India, as the dominant, instead of the 
special, features of modem political organization — 
when these facts are duly weighed, I think you will 
agree with me that the English township is a factor in 
local institutions which must be approached, not from 
the modern aspect in which it is now found, but from 
the ancient aspect which began its history. 

I am most anxious not to travel outside the immedi- 
ate scope and object of these lectures, but I could not 
have got on without this preliminary explanation of 
the elements which go to make up the township. 

After this stage the process is comparatively simple, 
because Bishop Stubbs becomes the chief guide. The 
corporate unity of the township was subjected to 
changes, both by way of development and under 
legislative action ; but it is Sir Frederick Pollock who 
points out that, " although in the modern legal theory 



114 PRINCIPLES OF 

a parish or township is not capable of holding lands, 
yet lands belonging to a parish and administered by 
the churchwardens in aid of its other sources of 
revenue are frequently met with, so frequently, indeed, 
that the difficulties of legal title resulting from this 
state of things were brought to the attention of Parlia- 
ment within the present century, and in one of the 
poor-law statutes (59 Geo. III. cap. 12, sec. 17, 18 19) 
the churchwardens and overseers of any parish to 
which land belongs were incidentally made a body 
corporate for the purpose of dealing with it *' {Land 
Laws, p. 38). I cannot help in passing referring back 
to what I have said about burghal incorporation, 
with a suggestion that the position of the parish with 
reference to legal incorporation in the nineteenth cen- 
tury is only a repetition of the position of the burgh 
in the fifteenth century. 

Now the changes which Bishop Stubbs contem- 
plates in the primitive township, before it comes into 
the light of history, shows it to have been broken up, 
as it were, into several bits^-one bit had passed over to 
the lord, one to the manor, one to the church ; and 
what remained was left in the hands of the civil parish as 
we now know it But this cleavage, great though it 
was, was not accomplished without leaving recognisable 
scars upon the surface. Thus Bishop Stubbs admits 
that the primitive right of townsmen "to determine 
whether a new settler should be admitted to the town- 



LOCAL GOVERNMENT 115 

ship exists in the form of admitting a tenant at the 
court baron and customary court of every manor ; the 
right of the markmen [townsmen] to determine the 
by-laws, the local arrangement for common husbandry, 
or the fencing of the hayfields, or the proportion of 
•cattle to be turned into the common pasture, exists 
still in the manorial courts, and in the meetings of the 
townships ; the very custom of relief and surrender, 
which are often regarded as distinctly feudal, are 
remnants of the polity of the time when every transfer 
of property required the witness of the community to 
whose membership the new tenant was thereby ad- 
mitted " {Canst. Hist., i. 84, 85). 

This is extremely important, but there is more 
to be added which our great constitutional historian 
has left unnoted. I turn to Sir Henry Maine for 
light upon the primitive characteristics of the law 
of distress, and for the significant note " that there 
is no more ancient institution in the country than 
the village pound ; it is far older than the King s 
Bench, and probably older than the kingdom " {Early 
Hist, of Inst., 203). Here, indeed, is the chief 
feature of a township system of law, which has not 
only come down to us by the right of making by- 
laws, as pointed out by Bishop Stubbs, and by the 
very etymology of the term " by-law " itself, — namely, 
the laws enacted by a township, — but by the survival of 
" by-law " men and " by-law " justice in its most primi- 



ii6 PRINCIPLES OF 

tive form. The Birlaw court, which appears in North 
England and Scotland, supplies the very evidence 
which Bishop Stubbs has noted is absent in the Eng- 
lish township. " It is as an owner of land," he says, 
" not as a member of the community, that the freeman 
has rights and duties, and there is no evidence that in 
England the only way of owning land was the mem- 
bership of the [mark] community" {Const Hist., i. 85). 
Now if we turn to the Birlaw court we find the evi- 
dence which is here stated to be wanting. Thus at 
Crawford, in Lanarkshire, the community consisted 
of the proprietors of land, called technically " free- 
doms." Each freedom was a bundle of acre-strips 
scattered over the terrttorium of the township. The 
Birlaw assembly, or court, was composed of all the 
owners of the freedoms, and they could not own 
freedoms without being resident members of the com- 
munity. This court was held weekly, and determined 
the proportion and number of sheep, cows, and horses 
which the respective proprietors could keep on the 
commons, besides other business. 

Here, then, is the ancient township in actual 
working order ; and if we turn to another example 
— that of Whitsome, in Berwickshire — we can ascer- 
tain what the business of these Birlaw courts was 
beyond that of agricultural economics. In the first 
place, the Birlie men met upon a mound in the middle 
of the village, called the Birlie Knowe, and thither the 



LOCAL GOVERNMENT 117 

villc^ers repaired to submit their grievances and obtain 
redress — in other words, their law was local law, and 
not sovereign law ; their justice-court was the ancient 
township-moot, their judges were the townshien. 

I am sure I need not insist on the importance of 
such evidence as this. Outside the influence of the 
manorial element which entered so largely into the 
township life of Southern England, outside the in- 
fluence of the seigniorial element which grew up with 
the Norman feudalism, outside the influence of Nor- 
man law and Norman sovereignty, but within the 
Teutonic area of settlement, the form of which was 
presented in *the Wiltshire and Sussex evidence, we 
have in these cases untouched examples of the town- 
ship organization as it first appeared upon the soil of 
Britain, when the only way of owning land was the 
membership of the community. 

The township-moot, a word which occurs in a 
charter of Richard L, in its later development heard 
and adjudicated upon differences among the towns- 
men, contentious cases being carried to the hundred 
court; it elected its officers — ^the town-gerefa, or town- 
reeve, and beadle ; it arranged the representation of 
its interests in the courts of the hundred and the 
shire, where the reeve and four best men appeared 
for the township; it carried out the requisitions of 
the higher courts in the way of taxes and other ex- 
actions, the pursuit of criminals and the search for 



it8 principles OF 

stolen goods ; and on the institution of frankpledge 

it prepared the lists for the view of the sheriff. 

This view of the ancient township looms clearer 
out of the mists of the centuries than did that of 
the shire or the burgh, and when the further ques- 
tion is put as to how it is represented in modem 
facts, we have no difficulty in tracing the connection. 
"In the vestry meeting," says Bishop Stubbs, "the 
freemen of the township, the ratepayers, still assemble 
for purposes of local interest not involved in manorial 
jurisdiction ; elect the parish officers, properly the 
township officers — the churchwardens, the waywar- 
dens, the assessors, and the overseers of the poor ; 
while in the courts of the manor are transacted the 
other remaining portions of the township jurisdic- 



tion." 



This much-abused parish meeting takes us back 
to the township, which was both communitas and 
territorium \ and once again we have, therefore, the 
interlaced meaning of these two elements of local 
government But in the parish this meaning is 
somewhat more significant. In the shire and in the 
burgh the communitas has come to be identified 
with the representative assembly, rather than with 
the whole body of shiremen, or burghers. The pro- 
gress from the primary assembly, composed of the 
whole body attending personally, to the representa- 
tive assembly, composed of selected individuals who 



LOCAL GOVERNMENT 119 

act on behalf of the whole body, had been a gradual 
one until the principles of modern jurisprudence made 
representation the guiding principle of government. 
The open vestry was the last to succumb, for it is 
only by the provisions of the Act of 1894 that the 
elected parish council takes the place of the primary 
parish meeting for all practical purposes. The ques- 
tion is whether by substituting representation for 
personal attendance losses have not been incurred 
which it will be difficult to recover. Lord Coke, 
for instance, laid it down that the "inhabitants of a 
town without any custom may make ordinances or 
by-laws for the reparation of the church, or a high- 
way, or of any such thing which is for the general 
good of the publicy and in such case the greater part 
shall bind the whole without any custom " (5 Reports, 
p. 63A) ; and in a passage cited by Lord Coke 
from the year-book of 44 Edward III. (which is 
not yet published in the Rolls series), it is stated 
that "there is the usage through the length and' 
breadth of the land for laws called by-laws — to wit, 
by assent of the neighbours — for raising money to 
make a bridge, or a causey, or sewer, and for assess- 
ing every man in a sum certain, and that they shall 
be able to distrain for this. . • . If such ordi- 
nance be made for a thing touching a probable com- 
mon damage, the law as thus stated is beyond doubt. 
But if it be only for the advantage of individuals^ 



120 PRINCIPLES OF 

none will be bound except those who have expressly 

assented." 

The primary assembly of the township, there- 
fore, had the right of taxation for a common benefit 
to the whole community ; the subject of this common 
benefit was not limited by statutory definitions, of 
which modern law is so fond, but was left to be 
measured only by its effect upon the community ; 
and I cannot but think that in this ancient township 
right there resides much of the evidence which lawyers 
are asking for as to the existence of common pro- 
perty, from which co-ownership is the 1^^ out- 
come. * 

I do not know whether I have succeeded in bring- 
ing home to you that the ancient township, as it 
appears from the various sources of evidence to which 
I have directed attention, is something more than a 
merely loose assortment of neighbours living together 
for purposes of common agricultural privileges, or as 
co-tenants of one lord. What I have wished to do 
is to show that the territorium was fixed by the 
original settlers so as to contain all the means of 
independent economical existence ; that the co-owners 
of this territorium were identical with the communitas 
of the township, and in that capacity alone determined 
questions of allotment of lands to individual user 
for every agricultural season, determined, too, other 
matters which made up the bundle of rights in the 



LOCAL GOVERNMENT 121 

land inherent to each member of the community ; 
that the co-owners in their capacity as a comntunitas 
adjudged disputes between individuals, and taxed for 
common purposes. But, having collected all these 
phenomena together, we still have to face the ques- 
tions put by lawyers, with a reiteration which bespeaks 
a purpose. " Have we before us a persona ficta ? or 
have we merely a group of co-owning individuals, 
broi^ht together by reason of their co-owning 
rights } " Sir Frederick Pollock and Mr. Maitland 
answer this question by the statement that "what 
we see will tend to make us believe that it was much 
rather as a mere group of co-owning individuals than 
as a corporation that the members of the vill thought 
of themselves when they had a chance of applying 
either the one idea or the other. The manner in 
which the ' quasi corporateness * of the township was 
dissolved at the touch of law " is illustrated by many 
examples taken from the rolls of the Plantagenet 
period. But of these examples I would simply point 
out that they do not cover the entire ground. They 
neither reach the ground occupied by the Birlaw 
communities of Scotland, nor do they account for 
the modem touch of law which converted parishes 
into corporations just as readily as of old it dissolved 
corporations ; still less does this legal evidence of the 
Plantagenet period reach back to the formation of 
the township territoriumj which contained all the 



122 PRINCIPLES OF 

elements of economic independence, and which must 
have been formed by a group of persons possessing 
common interests and common rights in matters 
which could not have allowed the ownership of land 
to have escaped untouched. A manorial tenant 
was not only manorial tenant, he was township man 
as well. A manorial tenancy did not consist only 
of dues and services to the lord, but of rights and 
privileges in the manor which could be held against 
the lord. Examples occur, for instance, of a lord 
being fined for non-fulfilment of his duties ( Vill, Com., 
117), and in one case — that of Pamber, in Hampshire 
— the lord was elected, not hereditary. Dues and 
services were not only dues and services to the lord, 
but to the community, for the "three days' work for 
the lord every week" is the correlation of the three 
days* right to employ himself on his own account 
which is found in more primitive groups than the 
English manor, as for instance in Ditmarsh. The 
course of events in England stamped the work days 
as the point to be translated into manorial law, the 
course of events in Ditmarsh stamped the free days 
as the point to be insisted upon as freemen's rights. 
The township and the manor, then, together repre- 
sent the ancient community, and the bundle of rights, 
duties, and powers which have come down with these 
divided jurisdictions are the rights, duties, and powers 
of one communitas. 



LOCAL GOVERNMENT 123 

I have, you will have noted, assumed the identi- 
fication of the township and the parish, and there 
is no doubt, I think, that practically the identifica- 
tion is correct. In the north of England the ancient 
townships are very large, and the parish only oc- 
cupies a portion of a township; in the south of 
England it sometimes happens that the townships 
are very small, and two or three go to make s^ single 
parish. But these idiosyncrasies do not destroy the 
general identification of township and parish. The 
township stands to the county as a unit to the whole. 
It has no such relationship to the borough, because, 
as we have already seen, the borough is the town- 
ship specially organized. But this leaves open the 
position of the parish when not identical with the 
township — namely, parishes contained in the boroughs; 
besides which, I must deal with a still further matter 
brought into being by the Act of 1894. 

The parishes contained in the boroughs are simply 
ecclesiastical districts, and nothing more — they are 
not townships from the ecclesiastical standpoint, they 
have never been townships, but are simple districts 
of the church, the "minster shire," the ''priest shire," 
as they are called once or twice in ancient docu- 
ments. This is an important distinction. The 
parishes of the city of York, or of the city of 
London, and other cities and boroughs, are known 
only by the name of the church to which they be- 



124 PRINCIPLES OF 

long. In consequence of the poor-law legislation 
of Elizabeths reign, these parishes shared in the 
new duties imposed upon parishes generally, and thus 
started a civil jurisdiction which they did not possess 
originally. Besides these there are, as in the modern 
county of London, ecclesiastical parishes — St. James 
Westminster, St George Hanover Square, St Cle- 
ment Danes, and some others which were formed 
by special Acts of Parliament passed in the last cen- 
tury, and which became of civil importance by the 
Metropolis Management Act of 1855. 

The effect of the Act of 1894 upon the parishes 
has left the subject in a very curious position. The 
parishes with over 300 population in all rural districts 
are to be governed by parish councils, the vestries 
and other authorities being abolished. This forms a 
special class of parishes with distinct functions of an 
important character, and with distinct legal relation- 
ship to district councils and to county councils. The 
parishes under 300 population are to be governed 
by a parish meeting, and they have distinct legal re- 
lationship to district councils and to county councils. 
Thus a second class of parishes are constituted. 
Again, the parishes in urban districts, and in 
boroughs, and in London are left untouched, with all 
their common law rights and their full organization, 
and thus form a third class of parishes. If these three 
classes of parishes had been formed for purposes of a 



LOCAL GOVERNMENT 125 

definite nature, their position might be understood ; 
but they have been formed by one of those accidents 
of legislation which have done more to place on the 
Statute Book false history and false evidence as to 
origins than any other source of historical errors, and 
which I cannot but think are not sufficiently studied 
by historians. 

There is still another class of parishes to note, how- 
ever — namely, the purely ecclesiastical parishes formed 
under the Act of 6 & 7 Vict cap. xxxvii., for pro- 
viding churches in populous places. These parishes 
have never varied from their original ecclesiastical 
purpose. They in no sense touch the institutions of 
local government, though units smaller than the 
parishes are necessary for various purposes of adminis- 
trative supervision and control. These ecclesiastical 
districts might have been so constituted as to serve 
local government requirements as well as the eccle- 
siastical. They might well have assumed the old 
English name of tithing, with an elected headman, to 
be known as tithing-man. They are endowed by the 
census commissioners with all the dignity and import- 
ance of statistical units. But this position, valuable 
as it might be made, is now absolutely worthless, be- 
cause of the indescribable ignorance of facts with 
which they have been constituted. Thus, to take the 
case of London, with which I am most familiar, but 
which is repeated all over the kingdom, we have the 



126 PRINCIPLES OF 

following state of things. These new parishes, 
formed, be it remembered, to meet the ecclesiastical 
requirements of a continuously populous area, and, 
therefore, capable of almost any arrangement in con- 
formity with any reasonable requirements as to group- 
ing, are arranged so that there are — 



Ecclesiastical parishes or districts. 



County of 
London. 



City of 
London. 



Conflicting with ancient parishes 
Conflicting with County — 

Greater part inside 

Greater part outside 



Conflicting with both County and City ... 

Co-extensive with ancient parishes 

Not conflicting with, but forming parts of, 
ancient parishes 

Constituted by grouping more than one an- 
cient parish (of which eighty-nine in 
all are grouped) 

Total 

Reputed to be extra-parochial places for 
ecclesiastical purposes 



6i 
II 

12 

452 



2 

i6 




I have now dealt with the particular evidence to 
be derived from the historical side of local govern- 
ment There remains to be considered one more 
point — namely, the comparative evidence. With the 
counties and the townships decaying in local govern- 
ment, with the hundreds dropping out of existence 
altogether, with the boroughs winning from the 
counties and from the State power after power during 
their battle for freedom, there is much to pause over 



LOCAL GOVERNMENT 127 

and to question. Does this comparative evidence 
imply that the local government of the Anglo- 
Saxon system was inefficient and weak, and could not, 
therefore, stand the strain of the Norman sovereignty, 
and that the upgrowth of the boroughs in the fif- 
teenth century is the true beginning of English 
local government ? Does this particular side of the 
evidence introduce any new considerations as to the 
position of local government? If, as I have con- 
tended, we may definitely sweep away the highly 
organized and political system of the Romans as a 
factor in the origin of our institutions, and, therefore, 
with it the factor of an original servile, economical 
condition ; and if we may look back upon an almost 
forgotten race for the beginning of things, with 
overflows of free Celtic tribesmen and free Teutonic 
tribesmen, to ultimately forge the primitive organi- 
zation which received the shock of Norman sove- 
reignty, we may fairly seek for economical changes 
to guide the last steps of progress. The legislation 
of Edward I. forms an epoch from which to date 
the decay of primitive local institutions. He laid 
the foundations of a system of national, instead of 
local, regulations for industry, and from that time 
forward the essentially local arrangements of manors 
and townships began to lose both their necessity 
and their utility. As Dr. Cunningham says, "In 
regard to commerce, manufactures, and to agriculture 



128 PRINCIPLES OF 

alike, the local authorities were gradually overtaken 
and superseded by the increasing activity of Parlia- 
ment, till, in the time of Elizabeth, the work was 
practically finished " {Industry and Commerce ^ i. 243). 
We accordingly see the county and the parish almost 
lost as a part of the government machinery, and the 
borough, working towards its new position. Between 
the loss of primitive local institutions — counties with 
their tribal territories, burghs and townships with 
their communal territories — and the uprise of modem 
local institutions there existed a state of things which 
was neither " local " nor " government " ; but all 
the same the facts of our history reveal the county, 
borough, and parish as the true forms of English 
local government which have survived the stress 
of centuries. These ancient areas, formed by early 
communities possessing the strongest of common 
interests, have never been released from the ties of 
common interests. These common interests have 
governed the relationship of property in respect of 
its economical value for centuries ; they have formed 
the principle of taxation for common purposes ; they 
have established that locality in local government is 
not a mere legislative creation but an unconscious 
development of forces which belong to the national 
existence. The county locality, the borough locality, 
the parish locality, are all alike built out of material 
which comes from the common interests of self-formed 
communities. 



LOCAL GOVERNMENT 129 

I have left it for this stage to say a few words 
about the mischievous and absurd misuse of the 
names of the ancient localities of the country by 
Government departments in order to express some 
statistical or administrative fact Thus we have the 
ancient county, the administrative county, the regis- 
tration county ; we have the parish and the district. 

The difference between the ancient county and 
the modern administrative county does not need the 
introduction of a new term. The former has ceased 
to be of any constitutional value, and might, for all 
purposes except that of history, be ignored. The 
registration county is an absurdity only possible, I 
should think, to English methods of government — 
a relic of the system when local government was 
synonymous with poor law. Finally, there are the 
parish and the district. In many cases, as I have 
already explained, these two areas are identical ; 
and even where they are not so there is no object 
in keeping up the old parish area. A parish which 
has developed into a "district," and a group of 
parishes which has been formed into a "district," 
are distinct entities bearing definite relationship to 
the local government system of the country. They 
should be so, then, for all local purposes, and they 
could well assume the old English tide of toTvn for 
urban, and township for rural communities. 



V 
THE FUNCTIONS OF LOCAL GOVERNMENT 

THE task before me now assumes a different 
aspect altogether to that presented by the pre- 
ceding lectures. I have to discuss the prob- 
lems of local government according to modern require- 
ments, and to some extent according to modern 
procedure ; and I have to gather the elements which 
make up these problems partly from the ancient • 
facts already dealt with, partly from modern facts 
not yet dealt with. 

The ancient facts already dealt with have, I hope, 
produced the impression of certain principles being 
at work in the minds of our forefathers — principles 
that did not depend upon philosophers and school- 
men, principles that were the unconscious product 
of all sorts of forces --economical, political, physical, 
and religious — in the minds of early races. The 
modern facts to be dealt with are governed by 
principles which are the conscious products of defi- 
nite study by philosophers and schoolmen, and of 
definite aims by politicians and capitalists. 

ISO 



LOCAL GOVERNMENT 131 

I want to set out upon the extremely difficult 
task now before me with a clear understanding of 
the elements which present themselves for discus- 
sion, and I shall first endeavour to define these 
elements. 

There are, first, the ancient undestroyed elements. 
The whole area of the country is occupied by local- 
ities formed in very ancient times, or upon the 
model and upon the same principle of very ancient 
times. These localities are the counties formed from 
the tribal organization, the boroughs formed from 
the primitive industrial organization, the townships 
formed from the primitive agricultural organization ; 
all three — counties, boroughs, and townships — ^being, 
therefore, formed principally upon an economical basis. 
Originally formed by communities whose settled 
political and religious ideas compelled them towards 
independence, the development of property within 
these localities has been governed for long centuries 
by the common rights and the common burdens 
belonging to each locality. Property has descended 
by family succession ; has been transferred from one 
ownership to another ; in later years has been bought 
and sold, subject to a solid weight of economical 
influences which have inured owners to the concep- 
tion of common interests, rights, and duties within 
the sphere of these early formed localities. I have 
already pointed out how the legislation of Edward L 



132 PRINCIPLES OF 

began the process of substituting a national system 
of economics for the old local system, and I quoted 
Mr. Cunningham's opinion that the process was not 
completed until Tudor times. In its strictest sense, 
however, the process cannot be said to be completed 
even yet It is true that all the important food 
products, all the important industries, all the great 
movements of commercial enterprise are now freed 
from local influences, and are getting to be free from 
many national influences ; but the economical local 
influences cannot be said to have ceased so long as 
ancient manorial dues, rights, and privileges continue 
to exist, so long as ancient tithes are levied, so long 
as the land tax is unredeemed, and so long as the 
law of primogeniture governs succession to property 
as well as to title. 

Now I simply point out to you the splendid 
machinery which the ancient localities provide for a 
system of local government. Occupying the entire 
area of the country, formed originally for actual and 
complete independence, bringing down with them 
to modern times property so economically interlaced 
with property that even sentiment demands that the 
area of common burdens shall be identical with the 
area of inherited common interests, looking back 
upon a history often recorded in the parish church 
and the parish burial-ground, and often enshrined in 
the annals and traditions of family life, we have 



LOCAL GOVERNMENT 133 

presented to us a map of the country covered with 
self-grown localities of the most perfect type. 

Secondly, there are the elements derived from 
modern requirements. To rightly understand these 
we should consider the functions of government ad- 
ministered by local authorities during the period from 
the reign of Edward L up to the fifteenth century, 
when the State interfered very slightly in the internal 
affairs of localities; the functions of government 
created by legislation since Tudor times, and which 
were administered in the manner provided by the 
State without regard, or without much regard, to the 
local authorities which existed or were growing into 
power ; and the functions of government demanded by 
modern requirements, the subject of modern scientific 
and philosophical thought, affected by modem eco- 
nomical conditions and claims. 

I do not attempt to hide the complicated nature 
of these two classes of phenomena and the difficulties 
in the way of co-ordination and definition. What 
appears to be abundantly clear is that the genius of 
our race has supplied modem times with definite 
localities contained within the area of the country, 
and that it falls upon the modern enquirer to ascer- 
tain what functions of government should be granted 
to these localities, and what should be the principles 
which should guide the legislator in allotting these 
functions. 



134 PRINCIPLES OF 

At this point I am assisted by the doctrine of 
general utility, which the great genius of David 
Hume, and perhaps the greater genius of Jeremy 
Bentham, have formulated for us. I will venture 
to quote the definition, although it is doubtless well 
known to most of you, because it is well for all of us 
who are dealing with certain definite ideas and con- 
ceptions to have before us exact terminology, and 
not a terminology dependent upon memory or upon 
association. The definition of general utility which 
I choose as the best is that contained in the opening 
words of Bentham's treatise on the Theory of Legisla- 
tion'. "The public good ought to be the object of the 
legislator ; general utility ought to be the foundation 
of his reasonings. To know the true good of the 
community is what constitutes the science of legis- 
lation ; the art consists in finding the means to realize 
that good." Great and simple words are these, and 
they will guide us through many of the difficulties 
of the subject. 

These difficulties begin to appear when an attempt 
is made to define or to ascertain the material for 
obtaining a definition of the proper functions of local 
government. It is quite easy to say, and would satisfy 
some people, that the proper functions of local govern- 
ment are just those functions of government which 
are as a matter of fact imposed upon or granted to 
localities by the State. But, of course, this only avoids 



LOCAL GOVERNMENT 135 

the real question, and does not answer it, because 
there is the anterior question — what functions should 
the State take over to itself, and what should it leave 
to the private individual ? Now in no case that I 
know of has the State consciously discussed the ad- 
visability or necessity of removing from the domain 
of private action any given function before it has 
handed it over to or imposed it upon local govern- 
ment There is no distinction in modem legislation 
between the act of declaring a function to belong to 
the sphere of government and the act of imposing 
or conferring it upon local governments. No doubt 
some sort of preparation and preliminary consideration 
is given by individual ministers or individual legis- 
lators to the question as to whether a certain function 
is proper to be taken over by government. It was so- 
in the case of elementary education, it was so to a 
less extent in the case of light railways, it has been 
so to some extent in the case of secondary education^ 
But these subjects have formed what are called " burn- 
ing " questions of the day, and being of considerable 
magnitude in their operation and effect upon rate-^ 
payers and upon other interests, they get discussed 
in a more or less informal manner. But side by side 
with the informal character of the discussion relating 
to such subjects as these are many other subjects 
which are scarcely discussed at all, and I may mention 
the case of electric-lighting as an example. And 



136 PRIN.CIPLES OF 

surdy the anomalous position of water supply is 
another example. Left entirely to the initiation of 
local authorities themselves, the function of water 
supply has never been placed by the Government 
in a position such as light railways are placed, or 
such as electric-lighting and tramways are placed. 
And yet surely water supply is far more necessary 
to localities than either of these other services. 
What, then, with the informal character of the dis- 
cussion as to the propriety or otherwise of creating 
a new function when discussion takes place at all, 
and what with the entire absence of discussion on 
principle, I come back again to my statement that 
the act of creating a new function of local government 
is never preceded by any conscious act of declaration 
that such a function is proper to be transferred from 
the sphere of private action to that of government 
control. We cannot, therefore, be satisfied with the 
general proposition that the proper functions of local 
government are just those functions of government 
which the State determines to hand over to sub- 
ordinate local governments. 

We must, therefore, grapple more closely with the 
question as to what may be said to be the functions 
proper to local government. As a general conception 
,of the definition, the functions proper to local govern- 
ment may be said to consist of those functions 
properly under Government control, and which, on 



LOCAL GOVERNMENT 137 

account of their local interests and value, and of the 
limited range of benefits conferred by them, are 
best administered by or entrusted to local govern- 
ments. 

The point of this definition is the word " properly,*' 
and it clearly imposes upon us the necessity of enquiry 
into the proper functions of government Of course, 
as you all know, the functions of government have 
been discussed from the earliest time^ of philosophical 
writing, and the great name of Plato, and still greater 
of Aristode, at once occur to the mind. But it is im- 
possible to range over the enormous literature of this 
subject, and I am anxious to get directly to that part 
of the subject relating to local government. For this 
purpose I must accept some of the most important con- 
clusions of those recognised authorities who have ex- 
amined into this question. There are three schools. 
The latsser-faire school, consists of those who would 
relieve Government of everything, and of those who 
would relieve Government of all functions except a few 
that by long association and practice are looked upon 
as absolutely necessary or convenient ; the social- 
istic school, consists of those who would place upon 
Government every function now left to private action, 
and of those who would place upon Government a 
large proportion of functions now left to private 
action. Between these two the range of choice is 
clearly very wide, but there is an intermediate school 



138 PRINCIPLES OF 

also which has a definite range, and I shall call this 
the economical school. 

For our guidance to the conclusions of the economi- 
cal school we have the great name of John Stuart 
Mill, and I would still venture to recommend the 
study of his chapter on " the limits of the province of 
Government." It is not quite conclusive, it is dis- 
figured by one or two hasty conclusions and by one 
or two illustrations which will not bear analysis, it 
implies at one stage much more than is really meant 
when later sections are studied, and it is deficient in 
historical evidence. But, drawbacks as these un- 
doubtedly are, it is a very valuable summary from the 
economical standpoint, and sadly wants filling out by 
competent scholars. 

When Mr. Mill sums up his case by the remark 
that " letting alone should be the general practice : 
every departure from it, unless required by some 
great good, is a certain evil," he has clearly in his 
mind those disastrous and iniquitous proceedings of 
the old government of France which have been 
described by M. Dunoyer. Setting out with the 
general proposition that "as a general rule the busi- 
ness of life is better performed when those who have 
an immediate interest in it are left to take their own 
course," Mr. Mill proceeds to enquire into those cases 
where the interest and judgment of the consumer 
or person served are not sufficient security for the 



LOCAL GOVERNMENT 139 

goodness of the commodity he is provided with, 
and he instances education, the over-working of 
children, poor-relief, lunacy, colonization, the ac- 
cumulation of knowledge and data for scientific 
use, and other subjects which do not belong to our 
immediate purpose. But in selecting or instancing 
these cases Mr. Mill makes a remarkable inclusion 
which I must quote in his own words : " Whatever 
if left to spontaneous agency can only be done by 
joint-stock associations will often be as well and 
sometimes better done, as far as the actual work is 
concerned, by the State. ... I have already 
more than once adverted to the case of the gas and 
water companies, among which, though perfect free- 
dom is allowed to competition, none really takes 
place, and practically they are found to be even 
more irresponsible and unapproachable by individual 
complaints than the Government ... In the 
case of these particular services the reasons pre- 
ponderate in favour of their being performed like the 
paving and cleansing of the streets— not certainly 
by the general government of the State, but by the 
municipal authorities of the town. . . . But in 
the many analogous cases which it is best to re- 
sign to voluntary agency the community needs some 
other security for the fit performance of the ser- 
vice than the interest of the managers, and it is 
the part of Government either to subject the busi- 



140 PRINCIPLES OF 

ness to reasonable conditions for the general advan- 
tage or to retain such power over it that the profits 
of the monopoly may at least be obtained for the 
public. This applies to the case of a road, a canal, 
or a railway." 

Let me note in passing how this passage illustrates 
once more that no great authority, like Austin, or 
Bentham, or Mill, has thought fit to determine the 
principles of local government as distinct from the 
principles of government in general. It goes very 
far, indeed, on economical grounds towards enlarg- 
ing the province of local government to administer 
or control, or to itself make and use the profits, or 
to tax the profits of all services of general utility 
which are monopolies, and not subject to the free 
influences of competition ; and I will say at once that 
I shall make no such claim as this. 

I do not think these propositions, valuable as they 
are as guides, are sufficient as definitions of the 
proper functions of local government They give 
us three important data — namely, that the functions 
of government should include 

(i) Services where the interest and judgment of 
the consumer are not sufficient to secure the good- 
ness of the commodity. 

(2) Services which must be performed by the 
agency of a joint-stock company. 

(3) Services whose due performance is necessary in 



LOCAL GOVERNMENT 141 

the public interest, but cannot be attained by being 
left to the uncontrolled interests of private financial 
managers. 

But there are other data which seem to me to be 
also as necessary as these. Thus the services proper 
to become functions of local government must be 
those of elemental necessity or convenience, must be 
in the nature of monopolies, or freed from all the 
general conditions of competition, must be services 
which to be carried on will interfere with one or 
more of the general rights of the community, must 
be complementary or supplementary to the other 
services of local government, must be for public as well 
as for private use and benefit, and must in a general 
sense be paid for by some system of taxation, direct 
or indirect, or, if paid for according to services ren- 
dered, must be at such a charge as to render the 
service available to the poorest class of the com- 
munity. This may appear to be a formidable list of 
conditions to attach to a service before it can be 
allowed as a proper function of local government, but 
there are some services which answer to all these 
conditions, and yet are not universally functions of 
local government ; and there are some services which 
do not answer to all, and yet are, nevertheless, func- 
tions of local government. The fact is that these 
conditions are not intended to be applied to every 
case in their entirety, nor is it necessary that they 



142 PRINCIPLES OF 

should be so applied. They constitute together 
the supreme standard by which in all reason the 
functions of local government may be judged, 
but to which all functions imposed upon local go- 
vernment cannot attain — a standard which should 
be used as a measurer, and not as a conforming 
test. 

Taken in their broadest sense, these definitions of 
the functions of local government might include many 
services of general utility which are now by common 
consent of all practical people left entirely in the 
hands of private enterprise. Let me refer to the 
supply of bread, quoted only quite recently by Sir 
John Lubbock in this connection. This is a service 
of general utility to all the community alike, and it 
happens that in the past it has been one of the 
functions of local government. In the fifteenth and 
sixteenth centuries the proper provision of corn for 
the citizens was one of the common trading enter- 
prises of the towns (Ashley, Economic History, ii. 36) ; 
while, according to the theory which still held its 
ground in the sixteenth century, that '* victual, being 
a necessary sustenance for the body, should not be 
esteemed at the seller's liberty," a fixed price was 
set on all provisions (Mrs. Green, Town Life, ii. 36). 
Hence the Assize of Bread and the close watching of 
victuallers, lest in selling meat, eggs, butter, or oat- 
meal, they should take ** excess lucor upon them. 



LOCAL GOVERNMENT 143 

selling, that is to say, more than id. in the iid^ 
{Hist. MSS. Com., ix. (i) 288). 

Mrs. Green, in her valuable and interesting work on 
ToTvn Life in the Fifteenth Century (ii. 36-40), has 
quoted instance after instance from the municipal re- 
cords showing the steps taken by the mediaeval 
borough to keep in the hands of the community the 
supply of food, and the modern regulations as to 
adulteration, as to weights and measures, as to bake- 
houses, and as to markets, show that the entire element 
has not dropped out of the functions of local govern- 
ment. But, of course, food supply is not now a local 
concern at all. At one time in our history, when each 
village community was economically an independent 
unit, it was essentially a local concern, and was under 
the control of local authorities. But, fortunately, the 
growth of food stuffs and the distribution of food 
has passed out of the range of local interests, and 
has become national. The growth of foreign com- 
merce in food material, the conditions of protection 
and free trade, the movements of capital no longer 
attached to a locality nor even to a nation, have 
definitely setded that the local conditions of Scotland 
in the last century, of Oxfordshire, as at Banbury, 
in the seventeenth century, of England altogether in 
mediaeval times, in respect of food products have 
altogether passed away, and with them the possibility 
of those terrible local famines of which there are 



144 PRINCIPLES OF 

records in our own history, and from which India, 

for the same causes, is now suffering. 

But if food supply has passed out of the sphere of 
local government, it is well to point out that one special 
section of it— namely, agricultural produce — has not 
altogether passed out of the sphere of the State 
government. In 1796 the Lord Mayor of the city of 
London, "owing to the extreme deamess of provisions, 
particularly bread, which bears so hard on the lower 
classes of society, withstood the combination of a few 
monopolizing individuals to keep up the price of flour 
beyond its fair average with the value of wheat. 
The latter part of the mayoralty was a scene of 
contention between the public duty of the magis- 
trate and the contrivances of the mealfactors. The 
Lord Mayor introduced a bill for the erection of 
public grinding mills to remedy the inconvenience so 
much complained of" {Times, 9th November, 1796). 
While just a century later, 1896, the Government of 
the country carry a measure through Parliament which 
applies Imperial taxation to the support of agricul- 
tural industry — a measure whose only justification 
is founded upon the principle that the supply of corn 
for bread is a function of government. 

But I mention these facts only to dispose of the 
element of communal trading which they introduce 
into the elements of local government. The econom- 
ical laws of free competition govern these cases now, 



LOCAL GOVERNMENT 145 

and will continue to govern them so long as society 
is framed upon the present commercial basis. It is 
not within the province of local government to enter 
into competition with the private trader, unless and 
until private trade is abolished, — a contingency not to 
be at present considered, and not, as I think, very 
likely to be considered in the future, — or unless and 
until private trade ceases to perform its legitimate 
functions. This is not so remote a contingency. In 
three cases, at all events, it comes perilously near to 
this neglect. In one case — that of pawnbroking — not 
only has the State been compelled in our own country 
to enter upon the domain of private industry and es- 
tablish laws for the protection of the consumer, but in 
France, Switzerland, and other countries the State has 
actually taken over the function of pawnbroking as a 
duty of local government. The second case to which 
I have thought it advisable to allude is still, so far as I 
know, in the hands of private enterprise, uncontrolled 
by the State. It is that of coal supply. Competition 
in this case no doubt regulates prices fairly enough 
when the consumer can afford to purchase in sufficient 
quantities ; but not only are there signs that the 
protection afforded by competition may not always be 
secured to the general body of consumers, but in the 
case of the poor, who can only purchase in very small 
quantities, competition does very little, for the price 
at which they are compelled to purchase this first 



146 PRINCIPLES OF 

necessity of tolerable existence is out of all proportion 
to the current market price ; and it is a question 
whether the municipality should not be compelled to 
provide coal for sale in small quantities at prices 
regulated by the current market price. The third 
case where either the State or local government may 
properly cross the line which divides private industrial 
enterprise from the functions of government is the sale 
of alcoholic liquors upon the now well-known Gothen- 
burg system. All these cases come under that 
condition formulated by Mill as to the services which 
should come under government control — namely, those 
services whose due performance is necessary in the 
public interest, but cannot be attained by being left 
to the uncontrolled interests of private financial 
managers. 

You will no doubt have observed that in discussing 
the terms of the definition of the proper functions of 
local government I used a phrase of some significance, 
a phrase which opens up some very important con- 
siderations. I spoke of functions of government as 
withdrawals from the sphere of private action, and it is 
very important to bear this in mind, for it raises the 
question. When and where does it become right and 
advisable to withdraw from the sphere of private 
action certain functions of life and transfer them to 
government control ? This question is being dis- 
cussed now in a fashion that brings into prominence 



LOCAL GOVERNMENT 147 

the passions of party conflicts, and it happens that the 
battle rages round the term *' socialism/' with which 
are associated all sorts of ideas with which local 
government has nothing whatever to do, and which 
in no way influence its functions. To the minds of 
some people it is sufficient to call a thing socialism — 
rank socialism is, I believe, the full expression — to 
condemn, not only the thing, but the person advocating 
or dealing with it, to the depths of iniquity. But 
those of us who discuss the problems of life upon 
scientific lines get used in time to the epithets of 
ignorant passion, and then the term socialism has 
no longer any terrors. 

Nevertheless, it is a pity that this term has become 
a word in the vocabulary of politics, and especially is 
it a pity that in connection with the question as to 
when and where private action should give place to 
government control it is most freely used. I do not 
think you are in danger of hearing much socialism from 
me, but it is, unfortunately, necessary to warn you 
against the unhappy associations of this portion of 
our enquiry in order not to allow a subject, which 
should be free from all bias of passion, to be dragged 
on one side by false interpretations. 

Now the significance of the statement that every 
new function of government is a withdrawal from the 
sphere of private action rests upon a very prevalent 
assumption that private action has the first claim. 



148 PRINCIPLES OF 

This assumption is due to the teaching of the political 
economists, and is not due to historical fact If I 
were making a claim for government control, and 
especially local government control, I should travel 
back to the period of village communities, to the period 
in English history represented by the conditions of 
modern Russia or modem India, and I should point 
out that the evidence of this period and of the 
economic evolution which has taken place since this 
period all goes to make it clear that every exercise of 
private action is, in fact, a withdrawal from the sphere 
of local government It is no bar to this conclusion 
that the subject-matters which attract private enter- 
prise and which are under government control in 
modern times are not the same subject-matters which 
were under the control of the village communities of 
prehistoric times, because industrial and economical 
enterprise and necessities have descended by gradual 
stages from prehistoric times just as institutions have 
descended. 

What I am anxious to convey to your minds 
is that we have two distinct pieces of evidence 
on this subject : the economical evidence that every 
new function imposed upon or granted to local govern- 
ment is a withdrawal from the sphere of private action ; 
and the historical evidence that every function under- 
taken by private enterprise is a withdrawal from the 
sphere of local government When, therefore, adopt- 



LOCAL GOVERNMENT 149 

ing the economical standard, as I do adopt it, because 
it is founded upon the doctrine of general utility, I 
have to ask the question, When and where does it 
become right and proper to withdraw from the sphere 
of private action certain functions of life and transfer 
them to the control of local government ? I hold 
myself free to discuss it untrammelled by any such 
assumption as generally prevails that because private 
enterprise has economically the first claim upon all 
industrial undertakings it has^ therefore, an absolute 
claim for all time upon all undertakings which may 
bring profit to individual enterprise. 

Even dismissing all ideas of communal trading, it 
is clear, according to the standard I have previously 
laid down, that the functions of local government must 
penetrate into the domain which private capital has, 
especially during late years, urgently claimed as its 
own by some sort of inherent right, which, however, 
has never been properly defined. Before proceeding 
further I must shortly examine this side of the 
question, because when once it is clearly understood 
many of the difficulties of the problem will be cleared 
away ; for I do not think it too much to affirm that 
the consideration as to what functions should be 
allowed to remain under, or be transferred to, the 
control of local government, has hitherto depended 
much more upon the demands of private capitalists 
than upon questions of principle ; and thus matters of 



150 PRINCIPLES OF 

great moment are left for settlement, not upon calm 
consideration of all the facts from the point of view of 
local government, but in the battle ground of public 
and private interests. And yet what are the facts ? 
Three hundred years ago private capital was not 
plentiful, and it was difficult, if not impossible, to 
raise money for purposes now held to be among 
the rights of private capital to undertake. There 
was no fire insurance at the time of the Fire of 
London, and the Corporation of the City of London 
were among the first to commence municipal insur- 
ance. The complaints of townspeople of the decay of 
their ancient roadsteads and harbours were numerous 
and bitter ; rivers required deepening and straighten- 
ing ; docks required establishing and maintaining ; 
water supply needed organizing and constructing. 
But for all these subjects private capital was not 
forthcoming, and local authorities were left alone to 
accomplish the work, and nothing was heard of the 
claims of private capital to undertake all and every- 
thing that would bring in sufficient profit. 

Let me give a few instances. More than three hun- 
dred years ago tonnage rates on shipping were allowed 
to be levied for the improvement of Dover harbour 
(23 Eliz. cap. 6). The Corporation of London stand 
out honourably first in undertaking, in 1571, as a 
municipal necessity " such a convenient and meet 
cut as may serve for navigation " of the river Lea ; 



LOCAL GOVERNMENT 151 

and at Chichester the mayor and citizens obtained 
powers to cut out, trench, and draw the haven to 
the city suburbs. Grants of similar powers lead 
on to a long course of improvements in the navi- 
gation of rivers, began under James L, but chiefly 
carried out after the Restoration. Municipal author- 
ities were the first to benefit trade by spending 
upon harbour or river improvements such money as 
they could command from their corporate property, 
or as could be raised upon the security of their 
scanty rating powers. In Liverpool, the corporation, 
in 1 709, gave for the construction of a convenient wet 
dock or basin four acres of land, parcel of the waste 
belonging to them, but as the proposed works would 
•' cost more than the inhabitants and corporation can 
raise," they procured an Act authorizing them for 
twenty-one years to charge rates on shipping enter- 
ing the port (8 Anne, cap. 12). In matters of water 
supply, Gloucester appears to have been first to take 
the matter up as a municipal necessity. There were 
ancient conduits conveying water to the city, probably 
the successors of Roman conduits to this ancient 
Roman city. In 1541-42 these had decayed, and the 
Mayor and Dean of Gloucester were in that year 
authorized jointly to renew them and dig for springs 
(35 Henry VIII. cap. 10). Two years afterwards 
the Corporation of London obtained similar powers, 
but in 161 3 the powers of the Corporation were 



152 PRINCIPLES OF 

transferred to Sir Hugh Myddleton, and thus 
London lost this valuable prerogative. " Municipal 
authorities, therefore," to use the words of Mr. 
Clifford, in his History of Private Bill Legislation 
(i. lo), "who have in recent years taken over the 
water service from private companies have only 
returned to their old ways." 

Now the necessities which caused such functions 
as these to be recognised as municipal functions 
three hundred years ago are not altered by the 
lapse of time. They are public necessities still, and 
could not under any circumstances be allowed to 
become circumscribed by the limited duty which 
private capital assumes to itself — namely, the duty 
simply of providing a sufficient amount of income 
to pay dividends. I am aware, of course, that this 
duty carries with it the necessity for a certain amount 
of efficiency and a certain amount of stability. But 
because, on the one hand, the interests of private 
capital have become so strong and the powers of 
municipalities have become so weak, the principle 
lying at the root of the matter has been allowed 
to drop out of cognizance, and all sorts of views 
antagonistic to the principles of local government, 
if not subversive of local government altogether, 
have become rife, and in some instances dominant. 

Much misconception, for instance, exists as to certain 
municipal services which are held to be " remunera- 



LOCAL GOVERNMENT 153 

tive services " — that is, services worked at a profit, 
which profit goes to the relief of the general 
ratepayer, and not to the credit of private capital. 
I myself have considerable sympathy with private 
capital in every true case of profitable competitive 
trading, but I must insist upon the definition of 
profit being correct. In many, if not in all, cases 
where this question is seriously raised in this country 
at the present moment, the only criterion of the 
so-called profit is that in the hands of private owners 
these services are made to pay dividends on private 
capital. But any municipal service can be made to 
pay dividends on private capital, if only the means 
of levying a revenue are granted to private owners ; 
and the true criterion of profit in these cases is 
not, therefore, the power of private capital to earn 
dividends, but the means by which private owners 
are allowed to collect revenue. If the revenue 
collected by private owners is some form of tax- 
ation, of course all question of profit ceases ; only if the 
revenue is in repayment of services does the question 
of profit appear, and then only under some conditions. 
Thus if the services paid for by the consumer 
in proportion to use or consumption are such 
that every inhabitant is bound by necessity, by 
the requirements of the law, or by an option so 
generally put into force that it scarcely amounts to 
option, to avail himself of these services, the revenue 



154 PRINCIPLES OF 

collected by such means cannot be distinguished 
from taxation ; nay, it is taxation — the old system of 
taxation according to benefit, instead of the modem 
system, according ** to a fair and equal pound rate," 
as the statute puts it. 

Most people would agree that rights of tax- 
ation should reside only in the taxpayers, and it 
is by this principle that the claims of private capital 
can best be tested. The right of taxation is under 
the present system exercised by private owners in 
each of its three forms — namely, direct taxation, in- 
direct taxation, and taxation according to benefit, 
and I will give a few examples of these taken only 
from the services which are recognised functions of 
local government. 

Water supply is for two purposes — house sanita- 
tion and domestic use. The first can only be met 
by direct taxation, just as all other charges for sani- 
tation ; the second might be met by a charge 
according to consumption, but the difficulties are so 
great that taxation is generally resorted to. In the 
case of docks, harbours, and markets the cost is 
met by dues, tolls, and rents upon shipping or upon 
produce, in other words by indirect taxation. In the 
remarkable case of the Deptford cattle-market, the 
Corporation of the City really stand in the position 
of private owner. They are not properly the local 
authority, but they were allowed to establish the 



LOCAL GOVERNMENT 155 

market " without having recourse to the imposition 
of rates for the purpose, other than what may be 
derived from the tolls of the market itself" — that is 
to say, they substituted indirect for direct taxation. 
In the case of cemeteries the cost is met primarily 
by taxation according to benefit, the deficiency, if 
any, falling upon direct taxation ; while the cost of 
burying persons whose property is not able to meet 
the specialized chaise is borne wholly upon direct 
taxation. In some cases a surplus over and above 
the cost is levied and applied to the relief of direct 
taxes, and in this case the surplus so charged is 
clearly indirect taxation. In the case of gas, electric- 
lighting, baths and wash-houses, tramways and tele- 
phones, so long as the entire cost is met by the 
charges for services, and so long as the charges for 
services are only sufficient to meet the cost, the 
taxation is according to benefit. But when either 
the charges for services are not sufficient to meet 
the cost, and the deficiency has to be met out of 
taxation (as is often the case with baths and wash- 
houses), or when the charges for services are more 
than sufficient to meet the cost, and the surplus is 
applied to relieve direct taxation (as is the case with 
tramways), the element of both direct and indirect 
taxation appears. In the first case the deficiency is 
an extra charge upon direct taxation ; in the second 
case the surplus is indirect taxation — i.e., a charge. 



156 PRINCIPLES OF 

over and above the cost, upon each of the persons 

using the services. 

The distinction between these services is, there- 
fore, that in some cases the whole cost is met by 
direct or indirect taxation, in other cases the first 
cost is met by taxation according to benefit, while a 
deficiency in the first cost falls upon direct taxation, 
and a surplus derived from the first cost is indirect 
taxation of the consumer or user of the services. 

My analysis of the different kinds of taxation in 
the case of services, partly municipal and partly in 
the hands of private owners, will, I hope, have de- 
stroyed the partition wall that is sometimes attempted 
to be erected between different kinds of services, and 
which is built up of false economical conceptions. 
It also establishes that the primary test of whether 
a particular service is properly a function of local 
government depends, not upon whether it can be 
made remunerative to private capital, but upon 
whether it is a service of such general utility that 
its inefJficiency or abandonment would cause damage 
to the community. No locality can afford to allow 
water supply, markets, cemeteries, fire insurance, 
lighting, locomotion, drainage, sanitation, education, 
fire protection, to be absolutely non-existent, and 
in most localities it is essential that these services 
be efficient in a high degree ; certain localities, 
like Liverpool, Glasgow, Bristol, Southampton, and 



.u^mx 



LOCAL GOVERNMENT 157 

other ports, cannot afford to allow their docks and 
harbours to remain undeveloped or to get into bad 
condition. And so on of other services. And thus 
the general demands of a community, or the general 
necessities of a community, constitute the first ground 
for defining a given service as a proper function of 
local government. 

Services which are of general utility, which are 
compulsory, or which are generally demanded in the 
interests of a locality, are met, as I have shown, by 
some form of taxation, namely : — 

(i) According to benefit. 

(2) Indirectly upon the consumer. 

(3) Directly upon assessed rates. 

(4) Partly according to benefit, and partly indirecdy 
upon the consumer. 

(5) Partly according to benefit, and partly directly 
upon assessed rates. 

This view of the relation of these services to tax- 
ation is very important. It has, I think, been wholly 
missed hitherto. The keynote to its explanation is 
the compulsory nature of the service — compulsory 
from necessity, compulsory by law, compulsory from 
demands of the community. Private capital will only 
supply such services if it is allowed to be profitable. 
So soon as profit ceases private capital ceases to 
supply the service. Therefore the matter is left in 
this position. Private capital wishes to reap benefit 



158 PRINCIPLES OF 

from the necessities of the community, but will not 
share loss. It demands a higher rate of interest than 
capital in the hands of public authorities. It does not 
necessarily command higher efficiency in production 
when the commodity produced is not subject to the 
laws of choice and competition. 

I want further to explain the principle of taxation 
according to benefit, and I will examine more closely 
those services which illustrate this principle. 

I commence with two services which have under- 
gone a change from taxation according to benefit 
to taxation according to an equal rating, or which 
exhibit other important illustrations of this part of 
the subject. 

The sanitary laws have made it compulsory to clear 
away all refuse from houses or other premises. 
Formerly this was a matter of individual choice. 
Thirty years ago it would have been undertaken by 
private enterprise, because it was remunerative. 
House refuse was of value for brick-making and other 
industries, just as stable refuse is still of value. But 
before private capital could step in the removal of 
house refuse was constituted a function of local 
government, and for a long time the sanitary author- 
ities obtained large sums from private capitalists for 
the permission to collect house refuse. Then the brick 
industry changed and sanitary science became more 
exacting, until now the same service is a heavy charge 



LOCAL GOVERNMENT 159 

upon the ratepayers — not according to benefit, but 
according to equal rating. On the other hand, the 
removal of stable refuse is still a private function and 
a profitable one, but it is under the control and in- 
spection of the sanitary authority, the cost of such 
control and inspection being paid, not by owners 
of stables, but by the general ratepayer. I do not 
here raise the important question of the economics 
of waste products, which in America is being properly 
studied, but I point out the change in one service 
from a condition of profit to private capital to a 
condition of loss, and the withdrawal of private capital 
from the service, leaving the loss to fall upon the 
community. 

Another interesting case of transition is that of 
elementary education. The State has since 1870 
declared this to be compulsory, but it has left a large 
element of choice to each individual. But, over and 
above the choice as to private education, there is the 
compulsory public education. This was originally met 
partly by school-pence, as the parents* weekly pay- 
ment was called, and partly by equal taxation — that is 
to say, the cost of this service was met by taxation 
partly according to benefit and partly by equal tax- 
ation. But the abolition of the school-pence in 1891 
caused the taxation according to benefit to cease, and 
in its place was substituted equal taxation. The same 
cost is incurred by the local authority now as was 



i6o PRINCIPLES OF 

incurred before 1891, but its incidence is shifted ; and 
my point is, that if it is taxation now, it was taxation 
before 1891, the conditions as to cost incurred being 
absolutely the same. 

I now pass on to examples of services met by mixed 
systems of taxation and I will take the case of 
cemeteries. Every inhabitant is bound at death to be 
buried or cremated ; the community is bound to see 
that the disposal of the dead is properly carried out 
Therefore, although the fees for burial are collected 
according to the services rendered, — that is, there is 
choice as to place and mode of interment, — the fees 
so paid are taxes, and — whether the cemetery is in 
the hands of the State, as in the singular and unfair 
case of West Brompton Cemetery, in London, or 
in the hands of local authorities, as in the case of 
many districts in London and the country, or in 
the hands of private owners, as in the case of Woking, 
Kensal Green, and other places — the revenue collected 
is taxation, and there is no question of profit — no 
question of the service being a remunerative service. 
What actually happens is that the State or local 
government either collects, by way of burial fees, too 
little revenue to cover the cost of administration, — in 
which case the cost is met partly by taxation according 
to benefit, and partly by direct taxation on assessed 
rates, — or the State or local government collects more 
revenue than is necessary to cover the cost of 



LOCAL GOVERNMENT i6i 

administration ; in which case the cost is met wholly 
by taxation according to benefit, beyond which there 
is imposed further taxation upon the payers of burial 
fees — ^that is, indirect taxation of the consumer, which 
is applied to the benefit of the direct taxpayer. In 
neither case is it a question of " profit and loss " by 
competitive or monopoly trading ; it is a mere method 
of raising the money necessary to meet a compulsory 
service to the community ; and because human 
vanity and the immensely strong force of traditional 
respect for dead ancestors enables the local authority 
to impose a specialized tax according to the old 
principle of benefit, and not according to the modern 
principle of ** a just and equal pound rate," it does not 
convert a burial fee into something which is not 
taxation. The compulsory nature of the service is 
the ruling factor in the matter, and the test of this 
compulsory nature is in those cases where, by reason 
of poverty or by reason of ignorance of the personality 
of the body, as in the case of the drowned, the cost of 
burial is not met by specialized chaises, but by direct 
taxation. 

When the function of providing burial-grounds is in 
the hands of private capital, the nature of the burial 
fee as a specialized tax is not altered. What has 
happened is that private capital has been allowed to 
repay itself out of the proceeds of taxation. 

I lay some stress upon this example, because I 

11 



i62 PRINCIPLES OF 

apprehend there will be less in dispute in the case 
of burial-grounds than in some other examples of this 
class of service. It is a common-law right that every 
person may be buried in the churchyard of his parish 
where he dies without paying anything for breaking 
the soil, and a small treatise published by Sir Henry 
Spelman in 1641, De Sepulturd, is still worth reading 
in this connection. That this common-law right was 
first infringed upon by the clergy after the reformation 
in their uncanonical exaction of burial fees, that it has 
been further disturbed by the disuse of churchyards, 
and that legislation has imposed upon burial boards 
the duty, and has allowed private capital the power, of 
providing burial-grounds, the cost of which is to be 
met by special fees, do not alter the fact that burial or 
other mode of disposing of the dead is an absolute 
necessity imposed upon every individual, nor the 
principle that the right to burial is a common-law 
right, and that consequently fees paid for this right 
are a form of special taxation based upon the principle 
of benefit. 

In contrast to the case of burial is that of locomo- 
tion. Good systems of traffic are absolutely neces- 
sary for the well-being of the State and of the locality. 
In most of the continental countries railways are 
administered by the State ; in others, as in our own 
country, they are subject to certain control by the 
State in the interests of the public. Putting the 



LOCAL GOVERNMENT 163 

question of railways on one side, as in no sense apper- 
taining to local government, there are other systems 
of locomotion which do appertain to local government. 
Light railways may be constructed by county councils ; 
tramways, as is well known, are, or can be by statute, 
in the hands of the municipality ; hackney carriages 
are licensed, and to some extent controlled, by the 
municipality. Thus the services of locomotion have, 
by these provisions of the statute law, been pro- 
nounced to be either State or municipal services — 
services so important that in no case is it conceivable 
that they could be allowed to fall into decadence, or 
even to be restricted by the limited requirements of 
private capital. But important as the service of 
locomotion is, it is not absolutely necessary to every 
inhabitant. It is entirely at the option of every 
inhabitant whether he travels or not, although it is 
absolutely necessary that he should have the means of 
travelling if he wishes to do so, or if, for business 
purposes, he must do so. In crowded towns the 
necessity for locomotive services for workmen has 
a close connection with the health of the community 
at large. Therefore the conditions of locomotion 
supply two elements for consideration — namely, that 
the service is a necessary one to be provided, that the 
charge imposed to meet the cost is not compulsory 
upon all the inhabitants alike, but only upon those 
who avail themselves of it But locomotive services 



164 PRINCIPLES OF 

in the hands of State or local authorities are either 
paid for, and only just paid for, entirely out of the 
payments made by passengers, or else, as in the case 
of the Irish railways, are not entirely paid for, or 
again, as in the case of English municipal tramways, 
are more than paid for out of the payments made by 
passengers. In the first case the taxation is accord- 
ing to benefit; in the second case taxation is partly 
according to benefit and partly according to equal 
rating ; in the third case the passengers are taxed 
primarily according to benefit, and, further, an indirect 
tax according to consumption. 

But then, it will be asked, what of the locomotive 
services in the hands of private owners ? The same 
principle exactly applies as in the cases just examined. 
Private capital will not stand a constant loss, so the 
service is discontinued if loss is the result of its 
working. If the service just returns a small interest, 
equal to the interest paid for municipal capital, there 
is simply taxation according to benefit. But if the 
service returns a large dividend, we have a case of 
indirect taxation upon the consumer being granted 
for the use of private owners. 

Closely connected with the service of locomotion is 
that of intercommunication. It is well known that the 
postal service and the telegraph service is in the hands 
of the State ; but in the case of the telephone service 
a remarkable state of things has been allowed to 



LOCAL GOVERNMENT 165 

develop. The trunk lines have been taken over by 
the State, while the local services have been left in the 
hands of a monopolist company, without even the 
benefit to be derived from competition. 

The next service belonging to this g^oup is the 
supply of artificial light. The necessity for this 
service in the general interests of the community may 
be shortly stated to rest upon the facts that it is 
required universally for domestic use and for trade 
purposes, and that it is supplementary to police 
services in the protection of property and life, by the 
lighting of highways and thoroughfares. In this case 
it is noticeable that while the gas legislation which 
took place in the early part of the century, before 
attention had been paid to any of the requirements of 
local government, made no provision for the rights of 
local authorities to acquire gas undertakings, electric- 
light legislation, which has only recently begun, makes 
due provision, not only for the acquisition of electric- 
light undertakings, but for the inception by local 
authorities of this service. The cost of this service 
for household purposes is met by a charge according 
to consumption — that is, taxation according to benefit. 
When this service is in the hands of private owners, 
in proportion as the charge is more than sufficient 
to pay the current municipal rate of interest, it is 
allowed to become remunerative to private capital by 
a system of indirect taxation of the consumers. 



i66 PRINCIPLES OF 

Fire insurance is a service which h^s a peculiar 
history, and of which it is worth while giving a few 
particulars. A law of the court of Flanders, promul- 
gated in 1240, required damage by fire to be in- 
stantly made good by the whole locality in which it 
occurred. A chamber of insurance is said to have 
been opened at Bruges in 13 10. In 1609 a proposal 
was made to the Count of Oldenberg that all pro- 
prietors of land should insure the houses of their 
tenants against fire on their paying so much per cent, 
annually. After the Great Fire of London the Cor- 
poration of the City were looked upon as the proper 
authorities to organize and conduct fire insurance. 
They had been asked in 1660 by Charles II. to aid 
in launching a plan framed by "several persons of 
quality and eminent citizens," but had replied that 
such an enterprise should be conducted by the 
municipality. In 1681 they appointed a committee, 
which suggested that fire insurance should be under- 
taken in the Chamber of London ; and upon being 
instructed to prepare a plan the committee did so, and 
were of opinion that it would not only be of benefit 
to citizen insurers, but would ** also be certain to raise 
a good revenue to the Chamber." At a subsequent 
meeting of the Common Council in 1681, they agreed 
to undertake the business, and instructed another 
committee to consider how a guarantee fund might be 
provided. Such a fund was accordingly constituted, 



LOCAL GOVERNMENT 167 

consisting of lands and ground-rents belonging to the 
city, worth ^100,000 at least, together with all pre- 
miums received. This civic plan caused great dis- 
satisfaction among private projectors, who complained 
that the Corporation had appropriated their invention, 
and would reap the profits of their skill. They 
attacked the city in lampoons and broadsides, which 
are profitable reading at the present day, for they 
contain the arguments which capitalists now urge 
against local government, and they can be met by the 
fire insurance experience of two hundred years. The 
city, on November 13, 1682, determined to relinquish 
the undertaking, and municipal fire insurance in 
London collapsed, and passed into the hands of 
private capitalists. 

In Hamburg and some other continental ports it is 
supposed that fire insurance was in the hands of the 
municipality at the time the London Corporation first 
took it up, and fire insurance by the State was adopted 
during the eighteenth century in Saxony, Silesia, 
Brunswick, Norway, Hanover, and Wurtemberg ; 
later still it was adopted by, and still obtains, in the 
Swiss states, and it is only recently being adopted in 
Canada and in our Australian colonies. 

In our own day several municipalities in various 
parts of the country are suggesting to form a scheme 
for insuring municipal property by their own funds. 

This short account of fire insurance as a municipal 



i68 PRINCIPLES OF 

function must be supplemented by the fact that by 
the common law persons whose houses were burnt had 
ground of action against a neighbour in whose house 
the fire originated. This common-law right was sus- 
pended by the statute of 1707 (6 Anne, cap. 31) for 
three years, but was made perpetual in 171 1 (10 Anne, 
cap. 14) and in 1774(14 Geo. III. cap. 78). These 
Acts, however, did not apply to cases of culpable 
negligence or want of reasonable care, and to this 
extent, therefore, the old common-law liability still 
attaches. Then there is the prevention of fire. In 
1 707 the duty of providing means for extinguishing 
fires was cast upon all churchwardens of parishes 
within the bills of mortality, and from this has de- 
veloped our present fire brigade system. 

Now here we have three very important points — 
(i) that fire insurance was in England, and is in some 
foreign countries, a function of local government ; (2) 
that liability for fire was a common-law attachment to 
every householder; and (3) that protection from fire 
is a duty imposed upon local government Private 
capital could not undertake the last of these duties 
except at a loss, and it has, therefore, left it to local 
government to perform, while in respect of a por- 
tion of fire liability — namely, the liability to replace 
premises burnt down — it has succeeded in turning the 
burden into a matter of profit But the function is a 
municipal function. All property within the municipal 



LOCAL GOVERNMENT 169 

area is of concern to the municipal authority. It is 
the source of rating ; its building is superintended 
by the municipal authority ; its frontage line is fixed, 
and where possible is set back and changed for the 
public convenience ; it is protected by the police and 
the fire brigade ; compensation is paid for damage done 
by riot (see antCy p. 74) ; it benefits from all local 
expenditure ; in fact, local government is so intimately 
concerned with property that fire insurance seems to 
be one of its elemental duties. 

I will next consider the services where the system 
of taxation is not according to benefit Water supply 
is the most important, perhaps, of these services. It 
conforms without qualification to all the conditions I 
have laid down for a function of local government. It 
is an elemental necessity ; it is a monopoly, because of 
the practical impossibility of introducing any efficient 
system of competition ; it can only be carried on by 
using the public thoroughfares and highways (for 
which no rent is charged), and by appropriating water 
from rivers or other water-sources belonging to the 
public (for which no payment is made) ; it is supple- 
mentary to the drainage system in its use for house 
sanitation; it is necessary for the public services of 
flushing sewers, watering roads, and extinction of fire ; 
and the only method by which its cost can properly 
be met is by a system of direct taxation, not by a 
purchase according to consumption. 



170 PRINCIPLES OF 

Market accommodation is of a different order to 
this, but has the same conditions. It is a necessary 
element in the due distribution of food products ; it 
supplements the services which deal with the protec- 
tion of food from adulteration and insanitary storage, 
and is only for public benefit The cost of this service 
is met by indirect taxation in the shape of dues, tolls, 
and rents, which fall upon the market produce, and is 
paid for by the consumer. As this is a very ancient 
service of local government, perhaps the most ancient 
of all services, it is possible to trace out its develop- 
ment from a simple beginning to a complex system. 
Every village in England, especially every village 
founded upon the ancient organization, has its market ; 
and every one knows what a picturesque part of 
English villages it is. In all the smaller places all 
that is required is an open space and a necessary 
number of hurdles to form pens for live produce. An 
advance upon this is the material for temporary stalls. 
But with the growth of the towns more is required. 
The markets need the sanction of laws and the 
organization for a daily, instead of a periodical, attend- 
ance. There is no more interesting history and no 
more ancient history than that of our markets, and 
I like to think that our own Leadenhall is on the 
site of the ancient Roman forum, — a site hallowed 
to market purposes, therefore, for at least twelve 
hundred years, — and that our Smithfield is on the 



LOCAL GOVERNMENT 171 

open playground and popular market of London- 
ers when the qualification field had a real signifi- 
cance. 

When the market service has reached the municipal 
stage, the expenditure is more than has been con- 
sidered proper to be imposed upon direct taxation. 
In the village stage the expenditure is not continuous, 
and is only slight. In the municipal stage it is con- 
tinuous, and includes the cost of building all sorts of 
necessary establishments for the due regulation of the 
market. This charge is not imposed directly upon 
the rates, but is met by tolls, dues, and rents paid 
by the merchants resorting to the market — in other 
words, is met by a system of indirect taxation. But, 
different as the taxation conditions are, the village 
and the municipal market are alike necessities of the 
community, not luxuries belonging to private com- 
mercial enterprise. The history of the establishment 
of the Deptford cattle-market under the jurisdiction of 
the City of London Corporation is the best evidence 
of this, and I will briefly summarize this in order to 
establish my point. In 1848 an Act was passed em- 
powering the Privy Council to prohibit by order the 
removal of cattle from one place to another. In 1866 
the power of enforcing the orders of the Privy Council 
within London was conferred upon the Metropolitan 
Board of Works, who were to appoint inspectors of 
diseased cattle. In 1867 an Act was passed em- 



172 PRINCIPLES OF 

powering the Privy Council to regulate the landing 
of foreign cattle, and the Metropolitan Board were 
asked if they were prepared to undertake the task 
of establishing and maintaining a landing-place and 
market for foreign cattle. Nothing was done until 
1869, when the Contagious Diseases Animals Act 
was passed, with special provisions, appointing the 
Corporation of the City the local authority for the 
whole London area, and compelling them to establish 
and maintain a market ( Unification of London Com- 
mission^ Mr. Kemp s evidence, ii. 384-5). 

Nothing could be clearer than this short history of 
one Act of Parliament as proof that markets are not a 
luxury, but a necessity; must, therefore, be established 
and maintained for the public good, however the cost 
of them is to be met. 

But, like other services of this class, the fact of 
the cost being met by indirect taxation has not only 
obscured their position among the functions properly 
belonging to local government, but has turned them 
to the private uses of individuals without any criticism 
that by so doing the products of taxation were being 
applied to private purposes. 

In Saxon times we do not hear much of markets and 
fairs. The grant of a market, according to Kemble 
(Saxons in England, ii. 73), with power to levy tolls 
and exercise police authority therein, was a royalty in 
the period of the consolidated monarchy; but there 



LOCAL GOVERNMENT 173 

are only two mentions of fairs in Domesday Book. 
This shows that the fairs which then existed were not 
pecuniarily valuable — in other words, were considered 
as public services, not private franchises. After the 
Norman Conquest, however, the fair was treated as a 
valuable franchise, derived from the prerogative of 
the Crown, and yielding a revenue in tolls and other 
profits to the king or the grantee of the franchise. 
The method of grant is illustrated well by the charters 
relating to the famous St. Giles' Fair, Winchester. 
The original grant by William Rufus was for three 
days only ; five days more were added by Henry L ; 
six more by Stephen, and again two more by Henry 
H. — in all sixteen days {Royal Commission on Mar- 
ketSy i. 4). 

In the case of markets, the tolls and dues had very 
early belonged to the king. Thus in 889 King Alfred 
and the sub- King of Mercia made a grant of land in 
London to the Bishop of Worcester, in which it was 
provided that " if any of his people dealt in the street 
or on the bank where sales took place, the king was 
to have his toll ; but if the bargain was struck in the 
Bishop's Curtis, he was to have the toll." In close 
connection with these rights was the system of exact- 
ing tolls in ports and harbours, and upon transport by 
roads, bridges, and navigable rivers, which the king 
might either remit in favour of individuals or might 
empower an individual to take, thus " in the first 



174 PRINCIPLES OF 

instance," says Mr. Kemble, " creating for them a 
•commercial monopoly of the greatest value by enabling 
them to enter the market on terms of advantage." 
Billingsgate has been a market from the earliest times, 
and the Instituta Lundonia, a code of mercantile 
enactments of the early eleventh century, includes a 
minute account of the dues to be levied. Perhaps the 
earliest grant of a market is that of Taunton, in 904, 
where we get the interesting clause granting **the 
marketing of the said vill, which in English is called 
* the town's cheaping,' and all the dues of the bur- 
gesses, etc., with all the profits incident thereto " 
(Kemble, Codex DiplomaticuSy No. 1,084). 

I will not trouble you with any more details on 
the interesting history of the market system in Eng- 
land, but the point to which they all converge is to 
show that the English system "grew up by means 
of royal grants of monopolies to individuals, and 
even when the franchise was enjoyed by a corpora- 
tion its origin was independent in theory of the 
ordinary municipal privileges." In Scotland, how- 
ever, a wholly different system prevailed. The right 
of market appears there as one of the ordinary privi- 
leges of a trading town, each town receiving from 
the Crown in very early times monopolies of buying 
and selling within a considerable tract of country 
{Royal Commission on Markets, i. 26). 

This, then, is where the market system has been 



LOCAL GOVERNMENT 175 

lost sight of as an elementary function of local 
government, as necessary as any one of the admitted 
and general functions imposed by the necessities of 
modern times ; and this is how the system of indirect 
taxation by the levy of tolls and rents has been 
allowed to be kept back from observation. The 
produce of market tolls and dues is now no longer 
a part of the king s revenue, nor of the national 
taxation, but for the most part it is used for keep- 
ing up the market fabric and the necessary and 
important duties incidental to the keeping of a 
market This alteration in the object for which 
market tolls and dues are payable does not make 
them any less a system of taxation indirectly levied 
upon the consumers of the articles sold in the mar- 
kets, and, therefore, on the double ground of being 
a necessary service and of being a charge upon tax- 
ation, markets are essentially a function of local 
government. 

The next important service is that of dock ac- 
commodation and navigation. Without going into 
the interesting history of this subject, it suffices to 
say that the expenditure, whether by municipal 
authorities or by private companies, is met by tolls, 
dues, and duties levied upon the shipping frequent- 
ing the ports, except in some cases, as at Hamburg, 
where shipping is attracted by the port and docks 
being free. 



176 PRINCIPLES OF 

Then there are the services which have not yet 
been undertaken at all To what Mr. Mill has urged 
with regard to the importance of scientific research, 
whose effect cannot be ascertained or understood 
except after an immense amount of experimental 
work, accomplished at considerable cost, I would 
mention as a parallel the consular service of the 
State. No one doubts the necessity for maintaining 
this service, no one who reads the best of the con- 
sular reports and the valuable information they con- 
tain in the interests of commercial enterprise will 
say that, though the result of the expenditure on this 
service is not immediately apparent, it is not essential 
to the State. So in local government, in matters of 
light, of mechanical motion, of chemistry as applied 
to agriculture, to sewage products, to food analysis, 
of political economy as affecting the various questions 
of public taxation, citizenship, and local government, 
a proper provision for scientific research would bene- 
fit the community in a sense which, if it had existed 
even fifty years ago,, it is hardly too much to say 
would have solved many of the difficulties which con- 
front the statesman. If, for instance, the proper 
position of taxation in relation to water supply had 
been present to the minds of any one of the 
various commissions which have enquired into the 
London water supply, the present monopoly would 
not have been created or allowed to last so long 



LOCAL GOVERNMENT 177 

— would not, therefore, have to be bought up by 
the ratepayers from private capitalists. And, again, 
in the matter of public economics provision is re- 
quired for the establishment of a regular system 
of prevention of waste, both for the State and for 
the local governments. The enormous sum lost to 
the nation eve;"y year by the want of a system of 
public economics is little thought of. In the wanton 
destruction of ancient and historic buildings ; in the 
wicked waste of food products ; in the duplication 
and absence of regulation of charitable work ; in 
the antagonistic construction of works for different 
objects which might be adapted for common use ; 
in the waste of refuse, sewage, and materials which; 
having served one purpose, are destroyed ; in the 
multiplication of offices, as in the collection of taxes ; 
in the many cases where co-ordination and combina- 
tion of interests would produce a final result, while 
their separation and independence produce inade- 
quate results ; in the conflicts between separate inter- 
ests which exist for the same purposes ; — in these 
and other directions the establishment of a system 
of public economics would be an immense gain. 

The functions of local government are, it will be 
gathered from this outline, intimately connected with 
the form of progress which modern civilization is 
finally to assume. I only wish I could have more 
adequately discussed this important section of our 
subject. N 



VI 



THE DOCTRINES OF BENEFIT AND OF GENERAL 

UTILITY 

THE general utility which is the determining 
qualification of the functions properly belong- 
ing to local government primarily means that 
every inhabitant of the locality should be directly 
and equally benefited by, and directly and equally 
concerned in, such functions. Thus health, sanita- 
tion, police, water, lighting, are self-evident examples. 
Secondarily, the qualification of general utility applies 
to services by which every inhabitant of the locality 
is directly benefited, but in which he may not be 
directly concerned. Thus locomotion, poor relief, 
protection of the lunatic and insane, compulsory 
education, housing of the working classes, land 
allotments to the poor, and similar functions, are ex- 
amples. It may, perhaps, at first be considered that 
of these functions of local government some are 
in direct antagonism to the theory of general utility, 
and are sanctioned rather by the charitable and 
sentimental feelings of our age than by the necessity 

178 



LOCAL GOVERNMENT 179 

of including them among the proper subjects of 
local government. A closer examination of them 
will, I think, show that this is but a very partial 
interpretation of the position, and I will add it is a 
very mischievous interpretation. 

I will select for the purpose of examination the 
first new function of government forced upon Tudor 
times — namely, the relief of the poor. Originally 
a matter of domestic concern of importance only 
to the feudal lord, to the burghal gild, to the monas- 
tery, each in their particular degree, it became a 
matter of general state concern when the last of 
these three institutions, which had principally con- 
cerned itself with the poor, had broken down by 
the march of events or by the direct act of the 
sovereign. Henry VI I L began the work of the State 
by attempting to legalize vagrancy (22 Hen. VHL 
cap. 12). He then ordered alms to be gathered for 
the support of such as were unable to labour (27 
Hen. VHL cap. 25). Edward VL next directed that 
houses should be provided for the poor by the devo- 
tion of good people (i Ed. VL cap. 3), and then that 
the collectors for the poor were to take down in 
writing what every person was " willing " to give 
weekly for the ensuing year, and " if any should be 
obstinate and refuse to give, the minister was gently 
to exhort him," then the bishop was to exhort him 
in the same manner, and if he still held out, he was 



i8o PRINCIPLES OF 

to appear before the justices in sessions (5 and 6 
Ed. VI. cap. 2). Next, under Elizabeth, it was 
prescribed if any parishioner should obstinately re- 
fuse to pay of his charity towards the relief of the 
poor, then the justices of the peace at quarter sessions 
might tax him to a reasonable weekly sum (5 Eliz. 
cap. 3). This led up to the famous statute (14 Eliz. 
cap. 5) which provided for the taxation by the justices 
of every parishioner, and, finally, to the still more 
famous statute (43 Eliz. cap. 2), which is the basis 
of the modern poor-law system, and which consti- 
tuted the churchwardens, and four, three, or two 
substantial householders as overseers of the poor 
with power to tax every inhabitant of the parish 
" in such competent sum as they shall think fit." 

I need go no further into details. What we have 
here are, first, the futile appeals to private charity 
to perform a public function, because private duties 
had hitherto performed it ; secondly, the attaching 
of the poor-law administration to the ecclesiastical 
parish, because ecclesiastical institutions and property 
had hitherto most largely charged themselves with 
the administration of poor relief; thirdly, the crea- 
tion of a parish authority and a parish tax, because 
the statesmen of Elizabeth could not see beyond 
the ecclesiastical aspect of poor relief. 

We see in this series of legislative efforts the 
progress from the sentimental to the utilitarian doc- 



LOCAL GOVERNMENT i8i 

trine of poor relief. Under the ecclesiastical system 
the principle of poor relief was never faced. Under 
the State system it had to be faced, because taxation 
had to be justified. After a hard struggle, it seems 
now to be admitted, both by the means adopted 
for actual administration and by the stated theories 
of expert writers, that "whenever for the. purpose 
of government we arrive in any state of society at 
a class so miserable as to be in want of the common 
necessities of life ... it may be expedient in a 
merely economical point of view to supply gratuitously 
the wants of even able-bodied persons, if it can be 
done without creating crowds of additional applicants " 
(Babbage, Principles of Taxation, p. 13). This 
utilitarian view of the question has been put down 
to the " brutal frankness " of economical investiga- 
tors, but any one acquainted with the methods of 
meeting the difficulty of *'poor relief" among the 
more backward societies of the world will not quarrel 
with the frankness of a truth which is capable of 
being expressed in a terminology other than that 
of economics (Gamier, Annals of British Peasantry, 

33)- 

Let me attempt to put the argument before you, 
aided by such evidence as may be gained from history. 
Suppose a parish sufficiently populated to be able to 
provide work for all at wages or other reward suffici- 
ently attractive to all, and there will be no poor. 



i82 PRINCIPLES OF 

Suppose this parish loses its power of industrial 
support for a portion of its inhabitants, and there will 
under ordinary circumstances arise a section of the 
people unable to live up to a moderate standard of 
comfort, possibly up to any standard at all. Suppose 
no system exists whereby this section of the people 
can be cared for at the minimum standard of comfort, 
and they will be let loose to prey upon the property 
and the comfort of others, to harden into an hereditary 
enemy to the owners of any form of property. To 
prevent this it will be to the interest of all owners of 
property to adopt some measures of relief. Now 
these suppositions are not merely the imaginations 
of a political economist, but the actual conditions of 
different stages of history. The village communities 
of early times, living chiefly on agriculture and pasture, 
in almost independence of each other, kept their 
population within the means of support afforded by the 
village lands by processes which do not bear exam- 
ination by a world which has learnt to use the word 
charity. ** I scarcely like to conjecture," says Mr. 
Garnier, in his Annals of the BTniisk Peasantry^ 
" what our progenitors did with their sick and aged 
relatives in the heathen days of the village com- 
munity. We most of us have read with a shudder 
of the accabatura of the Sardinians, and of the pointed 
axe with which the Poles despatched those of their 
relatives who had been robbed by nature or accident 



LOCAL GOVERNMENT 183 

of their working or fighting energies *' (p. 33). Mr. 
Gamier could, if he had so willed, have extended his 
reading into English customs as well as those of 
Sardinians and Poles, and he would then have found 
that a celebrated antiquary of the seventeenth century 
had seen a Wiltshire church in which a club had 
formerly "hung behind the church dore," so that 
" when the father was seaventie the sonne might fetch 
[it] to knock his father on the head, .as effete and of 
no more use " (Aubrey, Remaines of Gentilism, 19). 
Pieces, famines, and scourges, like the Black Death, 
helped in the same direction, and no one can pre- 
tend that the doctrine of utility as interpreted by an 
uncivilized mind did not prevail in these times. 

Was it much different at the next stage ? We find 
our answer in the direful history of the vagrancy 
laws. Notwithstanding *' sundrie lovabil Acts of 
Parliament," as it is quaintly put by Fletcher of 
Saltoun, Scotland in 1593 was infested by "lym- 
mers" and *'sornares," going about disguised and 
armed to the teeth, and compelling " gentlemen and 
yeomen after their daily labours to stand on their feet 
all night for safety of their own gear." The Golden 
Vale of Herefordshire in 16 10, according to an 
Elizabethan writer, was overrun with vagrants, living 
on what they could steal from orchards, lands, and 
gardens. 

In such conditions as these, existing before the 



i84 PRINCIPLES OF 

enactment of the first poor law, and, in fact, producing 
that enactment, we find the justification of utility as 
the basis of poor relief; and I have thought it 
necessary to indicate the existence of such evidence 
because it is so difficult to make people of this age 
look at arguments founded on abstract reasoning 
only. The poor law which made these ghastly facts 
impossible is as much a matter of utilitarian legislation 
as sanitation or public health, and the main effect of 
Its benefits falls upon property. Take a parish like 
St. James', Westminster. By throwing off its poor, 
or the bulk of it, into neighbouring, or even into 
distant, districts, it is able to present to the owners of 
property a site for their buildings which is not spoiled 
by the loafer or the indigent, by the many unhappy 
surroundings which mark the presence of poverty ; 
and the buildings so protected command higher value 
than they could do otherwise. This, and this alone, is 
the justification for calling upon the parish of St. 
James and other parishes similarly situated for con- 
tributions towards the poor of London generally, 
under a system known to London specialists as the 
Common Poor Fund, and it is the quantum paid by 
owners for protection of their property from the 
poor. 

This being the historical evidence for the sanction 
of poor relief being founded on the doctrine of 
utility, I will now briefly touch upon the economical 



LOCAL GOVERNMENT 185 

evidence, which is just as strong. The classification 
of the causes of poor relief is as follows : — 

(i) Low wages paid for labour, consequent 
upon the competition for labour services. 

(2) Misfortune and old age among those who 
have been dependent upon low wages. 

(3) Personal disqualifications, consequent upon 
idleness, vice, and bad character. 

The corresponding classification of the economical 
results of poor relief is as follows : — 

(i) A grant to the employers of labour to 
supplement the wages they pay. 

(2) A further grant to the employers of labour 
to supply the pension fund which they do not 
pay in wages ; and a compassionate grant in 
support of the unfortunate and aged. 

(3) A police charge to protect the community 
from the idle and the vicious, by supporting 
them in the poor-house or the casual ward, instead 
of in prison. 

Now with regard to the last of these elements in 
the cost of poor relief, there can be no question that it 
is based entirely on the doctrine of utility. With 
regard to the first and second of these elements, it is 
clear that, with the exception of the compassionate 
grant, the granting of poor relief is in aid of wages. 
But, to use the words of Professor Thorold Rogers, 
this is a system " under which wages are supplemented, 



i86 PRINCIPLES OF 

and, therefore, the prime cost of labour is diminished. 
The poor rate, then, is not wholly loss. It cheapens 
labour, and so increases rent Take it away, and a 
considerable portion of that which the landowners 
might receive in the shape of an increased rent, due to 
a diminished outlay for the maintenance of the poor, 
would be reassumed by the farmer, in consequence of 
the exalted cost at which labour would be procurable " 
{Joum. Stat. Soc. xxxiii. 251). 

Not only landowners and farmers are here 
concerned, but manufacturers and industrial under- 
takings. I do not, of course, affirm that it is possible 
to go back to the principles which governed the 
iniquitous statutes of labourers from 23 Edward !• 
to I James I. ; but though it is useless to force 
economical principles into grooves they will not fit, 
it is necessary not to misunderstand the grooves 
which they carve out for themselves. In the case 
before us it is clear that poor relief as an element 
of police protection and as an element of supple- 
mented wages is entirely a matter of general utility. 
There is only left the element of compassionate 
grant, and this must be so small in a community 
aided by all the resources of science such as ours 
that it does not afford an appreciable influence upon 
the total conditions for poor relief. 

My assertion, therefore, that poor relief is based 
upon the doctrine of general utility is, I suggest, 



LOCAL GOVERNMENT 187 

proved, and proof of this carries with it proof in 
respect of similar functions of local government. 

At this point, it will be convenient to attempt 
some sort of broad definition of the functions of 
local government comprised in the ancient functions 
of county, municipality and town, and in the re- 
quirements of modern times with reference to 
their relationship to the doctrines of benefit and 
general utility. This definition I formulate as 
follows : — 

(i) Services of general control and super- 
vision, having for their object the securing to 
the public of the full benefit of competitive 
trading in commodities of absolute necessity or 
of general use. 

(2) Services of administration and supply, 
which are of general utility to a locality, and 
which would not be undertaken by private 
enterprise unless accompanied by the right of 
taxation. 

(3) Services of administration and supply, 
which are of general utility to a locality, but 
which are only optional in their use, and which 
would not be undertaken by private enterprise 
unless supplemented by a limited right of 
taxation. 

(4) The power of taxation by direct tax 
upon assessable property, by indirect tax upon 



i88 PRINCIPLES OF 

consumers of particular commodities, or accord- 
ing to benefit. 

I shall now have to consider these definitions of 
the functions of local government from another point 
of view altogether. We need to know in what 
relation the term " general utility " stands to the 
term " locality " in these definitions. We shall find 
that a new element — namely, * 'development " — arises 
out of the consideration of the relation of these two 
terms, and we shall have to discuss what this new 
element exactly means. 

A service of general utility must benefit equally 
the whole locality concerned in it. Now the locality 
concerned in such a service may be a county, borough, 
or parish, and where this is the case there is no diffi- 
culty in determining that the county, borough, or 
parish, as the case may be, should be the area both 
of administration and taxation. This is the simple 
case. But a service of general utility may benefit, 
not the area of a county, borough, or parish, but 
an area differing from all these units of local govern- 
ment, — that is, it may benefit (i) an area outside the 
jurisdiction of a borough, but which is less than a 
county and larger than a parish ; (2) an area within 
the jurisdiction of a borough, but less than the area 
of the borough and larger than one of the con- 
stituent parts of the borough ; or (3) an area smaller 
than a parish. In these cases the assimilation of 



LOCAL GOVERNMENT 189 

the area of benefit to the areas both of administration 
and taxation causes an apparent difficulty, and ex- 
perimental legislation in attempting to deal with it 
has only brought about confusion. The methods 
adopted to meet the difficulty are two — namely, the 
differential taxation of a benefited area and the creation 
of a new area, with the result that one method has 
been allowed to operate in opposition to the other 
method in a most disastrous manner. The question 
is, which of these two methods accords with the prin- 
ciples of, local government ? 

Let me first explain the method of differential 
taxation according to the area benefited. The prin- 
ciple of differential rating of areas according to the 
benefits conferred is a very old one. It is con- 
tained in the oldest sewerage Acts, in most of the 
improvement, lighting, and paving Acts, and is finally 
stamped with the authority of recent legislation in 
the Local Government Act of 1888. It is interesting 
to work this out. The statute of 6 Henry VI. 
cap. 5, and subsequently that of 23 Henry VIII. 
cap. 5, called upon all owners and others by whose 
default damage had happened to ditches, gutters, 
sewers, etc., to repair the default, and empowered 
the justices to distrain for the cost thereof. Under 
3 and 4 Edward VI. cap. 8 special courts of 
commissioners were appointed to look after the 
sewerage of the districts allotted to their jurisdiction, 



190 PRINCIPLES OF 

and it was settled law that they were to chaise an 
area according to the benefit conferred upon the 
area. This area had no relationship to parish or 
other local boundaries, but consisted solely of the 
area benefited by the expenditure. The same prin- 
ciple was applied to lighting, paving, and street 
improvements. Under old local Acts, in Shoreditch, 
Camberwell, and Hampstead trustees were empowered 
to rate all houses situated by the side of all roads 
lighted or within 200 yards thereof; in the case of 
Lambeth the limit was 500 yards, and under another 
Hampstead Act the limit was only 100 yards. Under 
the paving Acts rates were levied upon the houses 
situated in the roads paved or repaired, and not 
upon other property in the parish. Under the street 
improvement Acts the same principle was adopted, 
a good example occurring in Southwark, where the 
commissioners were empowered to levy a special 
rate upon the particular area in which the improve- 
ment was situated. 

I only mention these early cases of rating of 
special areas according to benefits conferred to show 
that the principle is an early one. It was adopted 
in the Metropolis Management Act of 1855, wher^ 
section 170 enacted that the Metropolitan Board 
should assess the sums for defraying their expenses, 
" having regard in the case of expenditure in works of 
drainage to the benefit derived from such expendi- 



LOCAL GOVERNMENT 191 

ture by the several parts of the metropolis affected 
thereby." This was continued in the Act of 1858, 
which, for the purpose of charging expenditure upon 
the whole metropolis, declared that all parts of the 
metropolis were " deemed to be equally benefited 
by the expenditure under this Act." In 1862 the 
special area rating was repealed, but only because 
by that time the whole of the drainage of London 
was for the general benefit of the whole area. In 
the meantime, by section 159 of the Act of 1855, 
the local authorities have still the power to charge, 
and in some cases still do charge, a particular area 
of their parish or district w^ith the cost of works 
which benefit that particular area only. 

It is, then, by means of very easy stages that 
we arrive at the principle formulated in the Local 
Government Act, 1888, where in section 68(3) it 
empowers the council of any county to exempt any 
portion of the county from the general rating, if 
that portion is by law exempt, or ** where the expen- 
diture involved is by law restricted to a hundred, 
division, or other limited part of the county." 

Differential rating is, in fact, one of the most im- 
portant principles of local government to be found in 
early legislation. But this is not all. It is capable of 
almost any extension in connection with new functions 
which have been, or may be, imposed upon local 
government, and the Light Railways Act of 1896 



192 PRINCIPLES OF 

affords a good example. From this I draw a very 
important conclusion, namely, that as all the require- 
ments of assimilating the area of taxation with the 
area of benefit can be met by differential rating, the 
practice of creating new special areas for the purpose 
only of administering one service is no longer sanc- 
tioned by general utility, and may therefore be dis- 
missed from consideration as an element in the 
principles of local government. 

We are now close up to, even if we do not actually 
cross, a still more important principle of local govern- 
ment associated with the definitions we are now con- 
sidering. This principle is contained in the frequent 
development of locality, from the parish stage to 
the "district" stage, from the district stage to the 
borough stage, and from the borough st^e to the 
county stage, corresponding to development of local 
services from the parish service to the district or 
borough service, from the district or borough ser- 
vice to the county service, from the county service 
to the national service. 

I have, then, next to deal with this new element 
in local government arising from the creation of new 
functions of government — namely, " development." 

This development is twofold — a development of 
locality in the sense of local government and a 
development of services. 

A development of locality is more easily under- 



LOCAL GOVERNMENT 193 

stood in America than in England, but it meets us 
in our own country both in modern and ancient 
times. The growth of the municipal boroughs, of 
course, affords the most obvious examples. An 
area which at one time was a simple township, or 
perhaps an aggregation of townships, develops into an 
important industrial centre. Thus Liverpool became 
a borough in 1200, Hull in 1305, and Birmingham, 
Manchester, Bradford, and Middlesborough only since 

1835. 
But development of locality takes place not so 

obviously, but equally truly, in other connections 
than that of the municipal borough. Thus the 
development of municipal boroughs into county 
boroughs is an important case in point, although 
to some people it has not seemed anything more 
than a mere caprice of legislation under the Local 
Government Act of 1888. What has really occurred 
is that the locality of certain boroughs has extended 
beyond the original municipal areas to the suburbs 
beyond, and that the new locality thus formed was 
granted county functions as well as borough func- 
tions. In the remarkable case of London the 
development of the locality is even more significant. 
The city of London, bound within its Roman walls 
and a few later-formed liberties, has flowed over 
into the surrounding areas. At first these surround- 
ing areas were merely knit together by their prox- 

o 



194 PRINCIPLES OF 

imity to the city, and then by a system of drain^e 
and highway administration which grouped several 
parishes more or less together. In 1848 the sepa- 
rate commissions for drainage were joined together 
under one commission, and the step towards consoli- 
dation was a marked one. In 1855 the loosely knit 
parish units were bound together under the ridicu- 
lously inaccurate title of the Metropolis, and under 
the ridiculously artificial machinery of the Act of 
1855. This further step towards consolidation was, 
however, but the forerunner of the last stage, when 
in 1888 the locality thus formed was shaved off from 
the three Home Counties to form a county by itself. 

Another case of development of locality is that of 
parishes into districts, instances of which occur all 
round London and near many of the great munici- 
palities of the country ; thus what was once the 
separated and distinct civil parishes of Barnes and 
Mortlake is now the Barnes district. 

I hope I have made sufficiently clear what is 
the nature of the development of locality in the 
sense of local government as it is affected by new 
functions created from time to time, and in reference 
to the classification and definition of these new 
functions which have been attempted. My next 
task is to explain the development of services which 
takes place as a complement to, and to some extent 
as a cause of, the development of locality. 



LOCAL GOVERNMENT 195 

I will first take parish services. As the parish 
is an ancient local unit, it has become the sport of 
legislative experiments of all sorts. We have seen 
already how the poor law entrusted ta its care 
fared. In other directions it was sufficiently obvious 
to call forth from Sir Francis Palgrave the follow- 
ing comment : — 

" Important and multifarious duties have been im- 
providently accumulated upon parish officers and 
vestries by statute after statute. Some of these 
duties are very delicate, and requiring great tact and 
intelligence; others very odious, and affording great 
scope for oppression. Parliament has rendered the 
churchwardens and overseers officers of all work, 
without the slightest attention to any consistent 
principle or any thought about the capacity or com- 
petence of the parties to whom the duties are con- 
fided " (Palgrave, Protest against the Municipal 
Commissioners Report, p. 20). 

Let a parish be so situated as to demand the 
constant increase of services — to demand the appli- 
cation of the sanitary laws, the administration of the 
water supply, or any other function which does not 
belong to the status of parish government — and the 
parish without developing its locality will pass from 
the status of a parish to that of a district Examples 
are to be found round London in plenty. Willesden, 
Acton, and Chiswick occur immediately to the mind. 



196 PRINCIPLES OF 

In other examples, such as Hornsey and Tottenham, 
the development of services has resulted in the parti- 
tion of the ancient parish into two districts. 

Development of services goes on, too, in counties. 
Legislation has added new functions, such as technical 
education and light railways; natural development 
has in the case of London added many more services. 
Thus the county of London, unlike every other 
county in the kingdom, administers the functions of 
main drainage, fire brigade, and other services usually 
in the hands of a borough authority, while in the 
matter of water supply it has certain limited powers 
of control, and large powers of initiaticwi for purchase 
and administration, in which latter function the coun- 
ties of Surrey, Kent, Essex, and Middlesex obtained 
a footing when the matter was last before Parlia- 
ment. 

This is an extremely important principle of local 
government, and bears very directly upon the existing 
problems of London government. It points to the 
fact that whenever the area of a county grows so 
homogeneous in character as to demand common 
action in matters not ordinarily belonging to county 
government, because county government as a rule 
extends over an area which ordinarily is very far 
from being homogeneous in character, county govern- 
ment may have to detach from the municipal units 
within its boundaries functions which can be better 



LOCAL GOVERNMENT 197 

administered over a larger area, and perform these 
functions for the larger area itself. It does some- 
thing more than this. It shows that to dogmatize 
as to what are or should be county functions accord- 
ing to what has hitherto been considered such is 
not a safe proceeding when the principles of local 
government are examined into. I know it is the 
fashion to say that because the county authority of 
London administers functions which in all other 
places are administered by municipal authorities or 
district councils, that, therefore, London is in reality a 
borough or city, and not a county. But, on the other 
hand, it possesses district authorities administering 
many functions which ordinarily are administered by 
municipal authorities. On the evidence of the system 
of local government in London, London is certainly 
a county. That it may possess more powers than 
all other county authorities ; that it may seek to re- 
gain from the municipal authority of the city some 
of those powers which the city obtained when it 
first separated itself from the county of Middlesex ; 
that these powers should now be given back to the 
more fully developed county of London, — that, in 
short, London is what it is, — proves on the principle 
of development that its area has developed into a 
county area, and that the functions of the county 
council of that area have developed until, having 
absorbed all the common interests of the area, they 



198 PRINCIPLES OF 

combine both ordinary county functions and a few 

ordinary borough functions. 

I should like to add a word here. The only 
sense in which we can properly call this great area 
in which we dwell and work by the proud name 
of ** London " is that it is the county of London. 
People do not understand this. If in place of 
the county of London we have ten or any other 
number of independent municipal boroughs, we get 
a Westminster, a Paddington, a Kensington, a Pop- 
lar, and so on ; perhaps we should get once more 
that ridiculous title, Metropolis — a Greek word, ap- 
plicable to Canterbury as the mother city of eccle- 
siastical England; but in any case we shall lose 
the name of London, except for the single square 
mile of the ancient city. At present I confess to 
a singular pride in the fact that the capital of the 
British Empire is not a borough, not a city, but a 
county; and as a Londoner born, and descended 
from several generations of Londoners, I want to 
claim the right of the name of London for the true 
London ; nay, I want more than the mere name — I 
want the thing itself. And if these lectures have suc- 
ceeded in bringing out the principles of local govern- 
ment, they will at least have proved the extreme 
importance of fixing upon and understanding the 
locality before you deal with its system of govern- 
ment. The council of the county of London is a 



LOCAL GOVERNMENT 199 

body whose life is limited to three years, when 
the county — the communitas — renews that life. The 
county of London is the thing to get definitely 
fixed in one's mind — the area that has grown up 
from parishes, and liberties, and townships, and ham- 
lets, each with separate governments, separate in- 
terests, separate Acts of Parliament, into a great and 
powerful county, worthy to be the capital of the 
empire, and containing common interests, aspirations, 
and hopes, 

A still further case of development is represented 
by the service which goes on developing until it be- 
comes a national, instead of a local, service. An 
instance is to be found in prisons. On the 12th 
July, 1877, the Prisons Act was passed, giving legis- 
lative sanction to the development which had been 
taking place in the matter of prisons, from a local 
service to an Imperial service. " On and after the 
commencement of this Act," is the reading of section 
16, "the obligation of any county, riding, division, 
hundred, liberty, franchise, borough, town, or other 
place having a separate prison jurisdiction to main- 
tain a prison or to provide prison accommodation 
for its prisons, shall cease " ; and of section 4, " All 
expenses incurred in respect of the maintenance of 
prisons and of the prisoners therein shall be defrayed 
out of moneys provided by Parliament " ; while section 
5 provides for the transfer of the prisons and " the 



200 PRINCIPLES OF 

furniture and effects belonging thereto, . . . also 
all powers and jurisdiction at common law, or by Act 
of Parliament, or by charter," shall be transferred to, 
and vested in, and exercised by one of Her Majesty's 
Principal Secretaries of State. I will refer to one 
more detail of this statute- Section 6 provides that 
"for the purpose of aiding the Secretary of State 
in carrying into effect the provisions of this Act 
. . . Her Majesty may ... at any time 
. . . by warrant under her sign manual appoint 
any number of persons to be commissioners during 
Her Majesty's pleasure." 

I do not know any statute which illustrates at one 
and the same time so many of the points I have been 
endeavouring to lay before you. There are the old 
historical localities mentioned by name as the basis 
of prison jurisdiction — a list of localities which takes 
us back far into Anglo-Saxon times. There is the 
reference to the prescriptive chartered and legislative 
rights which these localities possessed with regard 
to prisons and prisoners. There is the transfer to 
the State of all jurisdiction and all rights, and there 
is the appointment by the State of a body of com- 
missioners to carry on the functions of a service which 
had developed from a local to an Imperial service. 

It is obvious that police comes closely up to the 
case of prisons. The ancient system of police is 
now entirely obsolete, and the county police system 



LOCAL GOVERNMENT 201 

is practically the rule. Boroughs may, and do, have 
their own special police forces, but it has been the 
policy of the Police Acts to encourage a consolida- 
tion of county and borough police. In the case of 
London and the Home Counties, consolidation has 
taken a special shape, as usual with London. The 
Metropolitan Police is under a Commissioner ap- 
pointed by the Home Office, and is really a govern- 
ment force controlled by the Home Office. All these 
separate forces, with their tendency to consolidation, 
are under Government inspection and Government 
subsidy. Up to 1875 the Government paid one-fourth 
of the pay and clothing ; then this was increased to 
one-half; while in 1891 a special grant was made 
by Government to the pension fund. In Scotland 
the same principle obtains as in England, but in 
Ireland the force is entirely a Government force. 

Alike, then, in administration and in fiscal matters 
the Government has an important share in police 
administration. In the case of the Metropolitan 
Police that share is more than ordinary. It has 
constituted the force a national, as well as local, 
police. The Imperial dockyards at Sheerness are 
policed by the London force. When Surrey requires 
more police to protect persons and property during 
the Epsom races, men are sent down from London ; 
when the Czar of all the Russias, or any other 
potentate, visits our own sovereign, London police 



202 PRINCIPLES OF 

attend him at Balmoral, at Portsmouth, or wherever 
the Court functions extend ; when a great criminal 
like Jabez Balfour escapes to South America, the 
London police are used to fetch him back ; when 
dynamitards or other national criminals are arrested, 
the London police are employed — the London 
criminal investigation department is a national insti- 
tution, not a London one. In the interests of the 
local taxpayer this tendency towards, or rather this 
partial, nationalization of the police force should be 
recognised and grappled with. At present it is 
neither one thing nor the other. We in London, 
for instance, do not know whether we are paying 
for our own local force or for a national force; but 
I suggest that the whole tendency of police ad- 
ministration points to central government, rather than 
local. 

Nowhere is the principle of development better 
exemplified than in the poor-law system. We have 
seen the fatuous struggle that ushered in the early 
statutory laws upon this subject, the struggle which 
was caused by a refusal to recognise that poor relief 
had grown beyond the stage of private or ecclesiastical 
charity. I have now to show that this recognition, 
tardily accepted by philosophical and economical 
writers, has never been translated into legal recog- 
nition. 

The parish unit struggled for some time with the 



LOCAL GOVERNMENT 203 

burden cast upon it by Elizabeth's poor law ; with what 
success is known to those who have studied the disas- 
trous, if not disgraceful, events which forced on the 
great poor-law reform of 1834, with what result may be 
judged by the fact that seven millions of public money 
was spent in one year upon poor relief among a total 
population of about eleven millions, and was adminis- 
tered "by more than 2,000 justices, 15,000 sets of 
overseers, and 15,000 vestries, acting always indepen- 
dently of each other and very commonly in opposition " 
(Fowle, Hist. Poor Law, p. 74). 

But the reform of 1834, great as it was, leaves 
chaos still the prevailing feature. Amalgamation of 
parishes into unions for administrative and taxation 
purposes was accompanied by central supervision by a 
State department This in turn has been followed by 
central taxation — that is, the allocation of Imperial 
taxes to poor-law purposes. So that we have 648 local 
administrative bodies and i central body, 648 differ- 
ent rates to meet the charges for poor relief and 
Imperial taxation doled out upon a plan which has the 
effect of introducing the county area and the county 
authorities into the elements which finally determine 
the incidence of poor-law taxation. This is not all. 
The poor-law system, though it extends through the 
whole area of the country, and though it is based upon 
the parish unit, has disregarded every local govern- 
ment area. Of the 62 administrative counties there 



204 PRINCIPLES OF 

is not one, not even London, which contains an un- 
divided number of poor-law areas ; of the 64 county 
boroughs there are only six which wholly contain an 
undivided number of poor-law areas ; and of the 239 
municipal boroughs very few, indeed, are conterminous 
with poor-law areas. These facts reveal the poor-law 
system as a network of authorities having, indeed, 
the qualification of representation, but not the neces- 
sary qualification of locality. The poor-law system, 
I would go so far as to say, is not a part of local 
government at all. For administrative purposes, 
it is more intimately associated with the central 
department than with localities, and it is becoming, 
and will, if I mistake not, more and more become, a 
national function, rather than a local. 

If the history of the law of removal and settlement — 
a vital part of the poor-law system, though now miti- 
gated from the extreme form in which it appeared in 
the law of Charles II. — tells us anything, it tells for the 
nationalization of the poor law. In 1851 Mr. George 
Coode made a report to the Poor- Law Board in which 
he strongly advocated the entire abolition of this hate- 
ful law, and the opening paragraph of his report places 
the question very succinctly before us. ** The law," he 
says, "is now of too ancient a date and too universal an 
operation to allow a single case to exist through which 
we might discover the manner in which a labouring 
man would avail himself of the common resources of 



LOCAL GOVERNMENT 205 

his country if he were free from these laws, or how a 
parish would act in their absence, or what would be 
the effect of freedom of movement on wages, or what 
would be the facilities for movement and habitation of 
the labouring class, or their command of comfort for 
themselves and families, or the connected effects on 
the employers of labour, and the progress of the indus- 
trial arts, and the application of capital, or on pauperism, 
or v^rancy, or taxation. All these matters have been 
affected and their character determined by the opera- 
tion for nearly two hundred years of the most stringent, 
despotic, and searching law that ever controlled the 
domestic condition and industrial habits of a nation* 
. . . The hardships of removal to poor people, the 
apprehensions of the inert and pauperized labourers of 
the strange and hostile parish, the successful or un- 
successful speculations of employers in their deterio- 
rated industry, the success or failure of parish policy 
in the use of this law and in evading their responsibili- 
ties for the necessities it creates, may be abundantly 
illustrated by every day's experience; but all such 
illustrations are nothing in the matter while we are 
unable to compare them with the condition and rela- 
tions of a free English labourer having the right and 
born and bred to it of carrying his person and using 
his faculties wherever his own judgment might lead 
him. Without the example of a free labourer for a 
standard, it is manifestly impossible to estimate the 



2o6 PRINCIPLES OF 

effect of this legal bondage on those subjected to it 

or corrupted by it." 

This is striking and remarkable language, and, justi- 
fied as it was in 1851, I question whether it is not as 
applicable now, even though the terms of the law of 
settlement have been made lighter and the area wider. 
The restrictive forces of such a law cannot, as Mr. 
Coode says, be measured, but they at least point to 
the only remedy — namely, abolition. But their aboli- 
tion means making the relief of the poor a national, 
not a local, service. Already it is financially dependent 
to a very large extent upon national taxation and 
national superintendence and inspection. Indeed, 
it is not going too far to say that no Government 
would dare again to leave the administration of 
the poor law to the unfettered discretion and power 
of local authorities. Of course, I do not suggest 
that in the hands of the State the system now pur- 
sued could or should be continued — a theory which 
is always present when this subject is being dis- 
cussed by those who oppose nationalization. But for 
my present purpose it is not necessary to discuss 
methods by which nationalization could be brought 
about ; all that I am anxious to do is to point out two 
very important factors which show the tendency in 
that direction — namely, (i) the relaxation in the law of 
settlement and the beneficial economical effect upon 
the labouring poor by its total abolition, and (2) the 



LOCAL GOVERNMENT 207 

large proportion of cost which is met by national, 
and not local, taxation, and the accompanying in- 
crease of control by the State over the local adminis- 
tration. 

I have one more point to establish from the 
doctrines of benefit and general utility, and this is a 
very important one. Functions which are performed 
because they are of general utility enure to the benefit 
of those who can command the means of best placing 
these services at the disposal of the community, and 
these are the owners of property. To have the advan- 
tage of local government services a person must live 
in a house which places those services within reach, 
and competition for such a house secures to the 
owner the benefit of all services performed for the 
locality. This is an important principle, and enters 
largely into the question of taxation, by which services 
of local government are met. 

There is no need, I am sure, to emphasize the 
importance of these doctrines of benefit and general 
utility. They operate in developing the functions 
and localities of local government ; they explain the 
process by which functions become national instead 
of local, county instead of borough, borough instead 
of parish ; they show the natural elasticity of local 
government; and they fix upon property as the 
right medium through which to provide the necessary 
taxation. 



VII 
THE ELEMENT OF LOCAL TAXATION 

WHEN I look back upon the dry technical- 
ities which it has been my lot to bring 
before you, I confess I am somewhat 
staggered by the incompleteness of the results at- 
tained. I cannot hide from myself that here and there 
further illustration is needed, that almost everywhere 
the terminology of our subject is extremely incomplete, 
and oftentimes inconsistent, and that the vastness of 
the field to be covered prevents the mind from readily 
taking in all that is demanded of it And when I 
come to my final task, the deficiencies of my work 
appear to be multiplied. 

Having discussed the two elements of "general 
utility" and "locality" with reference to the func- 
tions of local government, I have now very shortly 
to consider, in connection with the definitions of these 
functions which I gave in a previous lecture, the 
relationship of taxation — the ultimate sanction of local, 
as of State, government to the general principles 
which have been examined. You will remember that 

806 



LOCAL GOVERNMENT 209 

these functions formed two classes, one consisting of 
services which have never been allowed to become 
remunerative to private capital, the other of services 
which have been allowed to become remunerative to 
private capital ; and we ascertained that the taxation 
involved by these services, whether in the hands of 
local authorities or of private enterprise, was of three 
kinds — (i) taxation according to benefit, (2) taxation 
of consumers, (3) taxation according to equal rating. 

The present system of Imperial and local taxation is 
a dual system. The total of both is the measure of 
the impost upon each class of taxpayer and each interest 
paying taxes, but there is no existing means of know- 
ing this total. No county, borough, or town authority 
can ascertain this total, or ever claims a right to do 
so ; no Government department attempts to ascertain 
this total or any equivalent of it, and does not even 
formulate its taxation statistics sufficiently correctly for 
any student to obtain the information for himself And 
thus legislation is effected in the dark. The sweeping 
changes made during the last eight years by the Local 
Government Act of 1888, the Finance Act of 1894, and 
the Agricultural Rates Act of 1896, have been accom- 
plished without regard to the interlacing of Imperial 
with local taxation and the result produced by the 
changes. In Imperial taxation the changes tend for 
simplicity and equity ; in local taxation they have pro- 
duced something like chaos ; and in the case of the 

p 



210 PRINCIPLES OF 

Agricultural Rates Act economical injustice. In the 
meantime, the Commission on Financial Relations 
between Great Britain and Ireland have reported in 
favour of the principle that Imperial taxation should be 
assessed upon the units first, before the assessment is 
made to fall upon the individual taxpayer An exten- 
sion of this principle to the localities would practically 
take us back to the system of the fifteenth century, 
and I am not at all sure that the demand is not an 
outcome of the present absolute indifference and 
ignorance as to the incidence of the combined Imperial 
and local taxation when it finally reaches the indi- 
vidual who pays. If every county authority had con- 
cerned itself for a series of years with the incidence of 
taxation upon the taxpayers within its jurisdiction, and 
had sought through the machinery of the Exchequer 
grants to get admitted injustice remedied, we should 
not have had the Agricultural Rates Act, with its system 
of uniform application to totally different conditions, 
and we should not have had the absurdly artificial 
method of apportioning Exchequer grants under the 
provisions of the Act of 1888. 

Now the first principle of taxation is that the tax- 
payer shares with all other taxpayers of the same 
class as himself a fair and equal — to use the adjectives 
of legislation — charge, tax, or rate. For the purposes 
of Imperial taxation each taxpayer shares with the 
taxpayers of the United Kingdom two of the direct 



LOCAL GOVERNMENT 211 

taxes — estate duty, income tax — and the indirect 
taxes — general stamps, customs and excise duties and 
licenses, postal and telegraph stamps ; he shares with 
the taxpayers of Great Britain only the inhabited 
house duty ; but he shares with the counties of Great 
Britain the land tax. Thus there are three grada- 
tions of sharing in Imperial taxation. 

In the case of local taxation the gradations and 
complexities of sharing are much greater. Thus each 
taxpayer may share with the taxpayers of a larger 
area than the county or borough, as, for instance, in 
the case of Greater London, as it is called, for the 
purpose of police, Bootle and Liverpool combined, for 
the purposes of water, and other instances. Beyond 
this special area for sharing taxation every taxpayer 
shares with all other taxpayers of the county or 
county borough, then with the taxpayers either of 
the borough or district, then with the taxpayers of 
the union, and finally with the taxpayers of the 
parish. 

On the face of it, therefore, the system of local 
taxation, as compared with Imperial taxation, is a 
complex subject ; but if I were to attempt to describe 
all its peculiarities, all the differentiations, and all 
the changes of incidence, I should not be able to 
deal with the subject as part of these lectures. 
Fortunately for my present purpose, this is not a 
necessary task. I am not so much concerned with 



212 PRINCIPLES OF 

the general principles of taxation as I am with ascer- 
taining what the main principle of taxation is so far 
as it affects the subjects I am now concerned with. 

In a previous lecture, you will remember, I led 
you through the somewhat dry details which help 
to determine the element of taxation in connection 
with services which are still partly withheld from local 
government. I pointed out that the charge imposed 
for burials, locomotion, gas and electric light, and 
similar services, was taxation according to benefit, 
instead of equal sharing. It is, therefore, extremely 
important to know that according to the views of 
those who originated the system of local taxation, 
and according to the views of those who first paid 
the demands of local taxation, taxation went accord- 
ing to benefit So clear were our ancestors on this 
point that when taxation by co-sharing was adopted 
they applied to it the principle of taxation by benefit 
by confining taxation to areas, limited, not by the 
jurisdiction of a local authority, but by the extent of 
the benefit conferred. From this I have already 
adduced very important conclusions with reference to 
the jurisdiction of the governing authority, and I now 
have to show how it occurs in taxation. 

Let us look at the oldest rates imposed by positive 
law. I cannot say the oldest rates absolutely, because 
these are the county, hundred, township, and tithing 
rates, all of common-law origin, and assessed upon 



LOCAL GOVERNMENT 213 

individuals in a manner not now easily discoverable. 
But of the oldest rates imposed by positive law we first 
have the poor rate. By the 43rd of Elizabeth this 
was imposed expressly upon lands, houses, tithes im- 
propriate, propriations of tithes, coal mines, and sale- 
able underwoods. Thus, say the Commissioners on 
Local Taxation, in 1843, notwithstanding that defined 
persons are liable in respect of these properties, it 
will be found upon examination that the poor's rate 
is in its operation a property tax, and not a personal 
tax (p. 18). The judges followed this principle, for 
in determining how "inhabitants, and parsons, and 
vicars" — also mentioned in the statute as persons to 
be taxed — were to be taxed, they were guided by the 
principle that by implication the property liable to be 
taxed belonging to these three classes of persons, 
although not identical, should be analogous with the 
property liable expressly, and the Courts also held 
that the property to be liable by implication should 
be local, and visible, and productive of profit. Prin- 
ciples which applied to the early poor rate applied 
to all the local taxes. To some of them because they 
were expressly levied as a part of the poor rate ; to 
others with additional force, inasmuch as the statutes 
under which they were imposed did not even refer 
to the persons liable, but only to the property upon 
which the tax was to be levied. This is especially 
the case with the old highway rate and the lighting 



214 PRINCIPLES OF 

and watching rate. Again, the expressions to be 
found relating to the church rate referred to the pro- 
perty, and rarely to the persons ; and the sewers rate 
was directed to be imposed upon lands, tenements, 
and rents {Report of Commissioners, 1843, pp. 18-25). 

These indications of the object of the legislature in 
imposing the early taxes upon property are confirmed 
by later proceedings. The Act of 59 Geo. III. cap. 12 
enabled the inhabitants of a parish, assembled in 
vestry, to direct that owners might be rated personally, 
instead of occupiers, for properties under ;^20 per 
annum and more than £6, and another instance of 
substituted liability to pay is in the case of the rate 
for building a county lunatic asylum, for which it was 
provided that the justices at quarter sessions may, 
if they unanimously agree, direct every tenant at rack- 
rent to deduct one-half of the rate from the rent he 
pays {Commissioners Report, 1843, P- 3^)* ^ ^"^ ^^^> 
of course, concerned with the absurdity of the pro- 
visos to these two Acts, but I direct attention only 
to their principle. 

In the first place I have to remark that the legis- 
lators who imposed the first local tax were in a far 
better position than ourselves to estimate the result 
of local taxation. They were applying it to vii^in 
soil. They saw the conditions which existed without 
taxation, and they had to apprise the conditions which 
would result from taxation. They also had to con- 



LOCAL GOVERNMENT 215 

vince the payer of these new imposts that they had 
good grounds for their new departure. Can we 
believe, then, that they were wrong in asserting that 
taxation should go according to benefits? and, con- 
sequently, that as it was imposed upon property it 
benefited property? They, looking forward to the 
economical probabilities of the imposition of tax- 
ation, and we, looking backward upon the ascertained 
results of taxation, ought to meet somewhere on 
common ground. I think that common ground 
will be found in the doctrine that the expenditure 
which produces local taxation is a benefit to property. 
This brings me to an important phase of the sub- 
ject, often occurring in official documents, and often 
referred to in discussions in Parliament and else- 
where. Thus in a very able report upon the local 
taxation of Scotland, issued in 1896, we have a 
definite attempt to define and apportion local taxation 
into (i) remunerative and (2) non-remunerative tax- 
ation. We have met with the first term before in 
these lectures — namely, when I was discussing the 
conflict between private capital and local government, 
and where it was used in so limited and erroneous 
a fashion. Let me hasten to observe that its rein- 
troduction here has nothing whatever to do with its 
dismissal in a former lecture ; in other words, I shall 
in reviving the term have nothing to do with the 
way in which the term has been misused. 



2i6 PRINCIPLES OF 

All that has been adduced in previous lectures as 
to the origin of local government, as to the methods 
of determining the functions of local government, and 
as to the principles which govern taxation as a means 
of meeting the expenditure incurred by local govern- 
ment, will prepare you for the proposition that the 
services rendered through the machinery of taxation 
are as real as the services rendered through any other 
means. It was found difficult, if not impossible, to 
separate the functions of local government from the 
enterprise of private industry by any difference in 
character, and all that was finally accomplished was 
to separate these two classes of undertakings by the 
difference in the manner in which best results to the 
consumer were to be obtained In the case of private 
enterprise economical competition brought about the 
best results ; in the case of functions undertaken by 
local government there is no competition to pro- 
duce the best results, but the machinery of govern- 
ment supplied them. When, therefore, we come 
finally to consider what local taxation is, we are 
more prepared for the qualification remunerative than 
for the converse. 

This is worth a little further consideration. The 
preparation of land for municipal work was originally 
provided for by private estate Acts, and it will not 
surprise you that the line of development from private 
to municipal service is traceable from the Statute Book. 



LOCAL GOVERNMENT 217 

Thus the first stage is represented by those Acts where 
all works are imposed upon the owners as a direct 
charge. An example of this occurs in the Browns- 
wood Estate Act of 1821 (i and 2 Geo. IV. cap. 44), 
one of the Prebendary estates of St Paul's Cathedral, 
in the parish of Hornsey, Middlesex. The sixth 
section of this Act puts it upon the lessees ** to lay 
out and appropriate any part or parts of the said 
premises as or for roads, ways, or passages for the 
use and convenience of the tenants and occupiers 
thereof, or as or for public streets, squares, roads, 
paths, or passages, and to make drains, sewers, or 
other easements" in return for "the best and most 
improved yearly rent or rents that can be had or 
gotten for the same." The next stage is when the 
lessees are formed into a commission with regularly 
constituted rating powers. An example of this occurs 
in the Southampton Estate Act of 180 1 (41 Geo. III. 
cap. 131). Although earlier in point of date, this Act 
is later in point of development, and is the model 
for a whole series of Acts which still govern certain 
parts of St Pancras. By it '* the owner, or owners, 
of the freehold and inheritance, his, her, and their 
heirs and assigns," together with certain persons 
named in the Act (the lessees), are ** appointed com- 
missioners for carrying this Act into execution," and 
it is imposed upon the commissioners "to cause the 
several streets, squares, and other public passages and 



2i8 PRINCIPLES OF 

places to be made and set out within the limits of this 
Act to be paved"; also **to be cleansed, lighted, 
watched, and watered" (sect 13); *'to cause such 
lamp-irons and lamp-posts to be put up or fixed upon 
or against the walls or pallisadoes of any of the 
houses, tenements, or buildings and inclosures, or in 
such other manner within the said intended streets, 
squares, or other public passages and places as they 
shall think proper " ; "to cause to be painted, en- 
graved, or described . . . the name by which 
each respective street, square, lane, etc., is to be 
properly called or known " ; "to cause all or any of 
the streets, squares, etc., to be watered," for which 
purpose they may "cause such number of wells and 
pumps to be dug, sunk, and made as they shall think 
necessary" (sect. 18); and, finally, "to appoint such 
number of watchmen and patroles " as they shall think 
proper, providing " them with proper arms, ammuni- 
tion, weapons, and cloathing for the discharge of their 
duty." In return for these services the commissioners 
are empowered to levy "one or more rate or rates, 
assessment or assessments, • . . upon all houses, 
shops, warehouses, coach-houses, stables, cellars, 
vaults, buildings, and tenements in any of the said 
streets, squares, etc." (sect. 37). 

I think these are remarkable provisions. In the 
first case we have the owners carrying out works and 
services, which are now works and services of local 



LOCAL GOVERNMENT 219 

government, at their own cost and in return for what 
rent they could obtain ; in the second case we have 
owners formed into a body of commissioners for carry- 
ing out a greatly extended list of works and services, 
including the remarkable provisions as to armed 
watchmen and patrols, which are now works and 
services of local government, in return for a rateable 
charge upon property. In both cases the charge or 
cost of the services is made according to the principle 
of benefit. In the first case it is according to the 
principle of benefit pure and simple ; in the second 
case it is according to the principle of benefit so far 
as the area of charge is concerned, and according to 
the principle of co-sharing so far as each property 
within the area of charge is concerned. This system 
of co-sharing has been extended until it is looked 
upon as the sole " principle " of local taxation — the 
co-sharing of a burden, not the co-sharing of a benefit. 
In restoring the factor of "benefit" to the principles 
of local government, much more is gained than I can 
possibly sketch out to you now. I first applied to the 
services administered, and proper to be administered, 
by local government, and I pointed out that these 
services were not burdens, but benefits, and that 
private capital had first introduced a wrong termin- 
ology and then worked upon this error to its own 
aggrandizement. I have now applied to taxation 
which is the ultimate sanction of local government, 



220 PRINCIPLES OF 

and I point out that the principle of benefit is equally 
well proved. The system of co-sharing, used so 
largely as working machinery, may or may not be 
equitable in all cases, may or may not be wise in 
all cases. It is admittedly equitable and wise in the 
case of water-rating, because water is a necessity 
of health and sanitation, and the results of keep- 
ing the very poor in good sanitary condition accrues 
to the benefit of the rich ; though some people 
cannot yet distinguish this function of water supply 
from that of any other commodity to be bought like 
a bottle of champagne. On the other hand, the 
principle of co-sharing would not be wise and would 
not be equitable in the case of gas-rating ; and so here 
the principle of taxation according to benefit is main- 
tained. There are some who argue that locomotion 
should be administered on the principle of taxation 
according to co-sharing, instead of taxation according 
to benefit. So long as all arguments are conducted 
with open eyes as to facts and as to results, so long 
as principles are kept to the front, we may hope that 
decisions will be true. 

This is as far as I can now go into the question 
of taxation as it relates to the principles of local 
government which have been the subject-matter of 
these lecturea I am not at all sure that what I 
have said is enough to make the points clear, and I 
am quite sure that it is not enough to make the 



LOCAL GOVERNMENT 221 

whole subject clear. It is a subject by itself; but 
is so intimately connected with the substance of local 
government that it could not be passed over in 
silence. All that I have wished to do is to establish 
the principle that local taxation is a payment for 
benefits conferred. When the taxpayer pays in 
return for benefit, as for a burial fee, for gas 
supply, the burden is in exact proportion to the 
benefit conferred. When the taxpayer pays in pro- 
portion to commodities consumed, as for market 
produce, for shipping dues, etc., the burden is only 
partly in proportion to benefit conferred When the 
taxpayer pays in proportion to the rent of property, 
the burden is sometimes greater and sometimes less 
than the benefit conferred, the justification for the 
inequality being that the poorer parts of the com- 
munity must not be allowed to fall behind the richer 
parts in securing and utilizing the benefits. Thus 
in each class of taxation benefit is the governing 
principle. The aggregation of all the benefits tends 
to accrue, if it does not actually accrue in all cases, 
into the hands of owners of property, because it is 
by means of property that the taxpayers can alone 
obtain the benefits conferred by the services of local 
government. 



VIII 
CONCLUDING DEFINITIONS 

I HAVE now finished these lectures, and if I may 
sum them up in a series of brief definitions, I 
would say — 
(i) That a locality is formed by the common inter- 
ests of the community. 

(2) That all the inhabitants of the locality — Lon- 
doners, Yorkshiremen, Liverpuldians and the rest — 
are the community of the locality. 

(3) That locality, formed in the manner stated, is 
the foundation of local government. 

(4) That the elected council is the responsible 
executive body, acting on behalf of, and not in sub- 
stitution of, the communitas. 

(5) That the benefit of the communitas is the 
object and result of local government. 

(6) That the services administered, and proper to 
be administered, are services of general utility. 

(7) That the value of the services enures primarily 
to the owners of property. 

(8) That the cost of services is met by taxation 
which represents the amount of benefit conferred, not 
the amount of burden imposed. 



LOCAL GOVERNMENT 223 

(9) That the burden of taxation only arises when 

the amount paid as taxation is in excess of the 

amount of benefit conferred ; the burden of taxation 

being the excess payment, not the total amount paid. 

These definitions can, of course, only be considered 
as preliminary conclusions obtained from a first sur- 
vey of the subject. I hope they will be accepted as 
logically proceeding from the investigation which has 
been attempted in these lectures. They are in no 
sense final. Further investigation will take place, 
and will both modify these definitions and produce 
further definitions. But the value of even preliminary 
definitions is that they serve as a convenient halting- 
place from which to proceed further. I have en- 
deavoured in this first course of lectures to present a 
wide survey of the subject rather than a detailed 
analysis ; to indicate its scope and interest rather than 
to exhaust any one of its phases ; to establish how 
absolutely essential it is, in the interest of public 
thought, that the principles of local government 
should be defined and generally understood rather 
than to attempt the huge task of definition within 
the compass of a single term. 



NOTES AND ILLUSTRATIONS 

LECTURE I 

1. The electorate (pp. 2, 3) is not at all an easy subject to define. 
There are a great many Acts of Parliament which deal with it, and 
there are many anomalies. The differences between the electorate 
for local government and the electorate for the imperial government 
are not very many, though they are important in principle. Perhaps 
the analysis on the next page of the London electorate will assist the 
reader to understand the point advanced in the text. 

In all cases the right to vote is confined to British subjects, and 
there are certain disqualifications, such as misdemeanours, corrupt 
practices, receipt of poor relief, etc 

2. The Municipal Corporations Act, 1835 (s & 6 Wm. IV. c 76) 
is a very important factor in the history of Local Government in 
England. Section i (quoted on p. 4) follows the reciul that at sun- 
dry times divers bodies corporate had been constituted within the 
cities, towns, and boroughs of England and Wales, to the intent 
that the same might for ever be and remain well and quietly 
governed ; and that it was expedient that the Charters by which the 
said bodies corporate were constituted should be altered in the man- 
ner thereinafter appearing. The effect of this enactment was not 
only to sweep away all usages, customs, charters, grants, and local 
and other Acts of Parliament, which were contrary to, or even in- 
consistent with, the other provisions of the Act, but also to confirm 
them in all other respects {see Grant on Corporations, p. 342). 
Section 6 provides that after the first election of councillors under 
the Act, the body corporate of each borough shall take and bear 
the name of the Mayor, Aldermen, and Burgesses of such borough. 
The effect of this section was to change the style of the corporation 
of the greater number of the boroughs and cities scheduled to the 
Act But notwithstanding this change of name, and notwithstand- 

S24 



Class of Elector. 



1. Adult males not being peers, 

service occupiers, or con- 
stables [this disqualification 
of constables does not apply 
to the Metropolitan or City 
I)olice] 

2. Joint occupiers of premises 

being in the joint occupation 
of several persons as owners 
or tenants 

3. Service occupiers . 

4. Lodgers .... 

5. Women who occupy qualify-' 

ing property 

6. Peers who occupy qualifying 

property 

7. Joint occupiers of property not 

included under headmg 2 

8. Owners. .... 



9. Married women 



I a Liverymen of the City of 
London 



II. Freeholders of at least forty 
shillings; freeholders for life 
or lives of an annual value 
above forty shillings and be- 
low five pounds (if the pro- 
perty is occupied by the 
owner, or was acquired before 
1832, or was acquired by 
marriage, marriage settle- 
ment, descent, devise, or ac- 
cession to office) ; freeholders, 
copyholders, or holders by 
any other tenure for life or 
lives of an annual value of 
at least five pounds ; lease- 
holders where the leasehold 
was originally created for a 
term not less than 60 years, 
and of a yearly value of at 
least five pounds ; lease- 
holders where the leasehold 
was originally created for a 
term of not less than 20 
years, and of a yearly value 
of at least fifly pounds. 



Qualification. 



;f 10 occupation 
Or household 
;^io occupation 



Household . • 
;i^io unfurnished 

lodgings 
ji*!© occupation"^ 

or household 



;f 10 occupation 

Ownership of pro- 
perty, whether 
of freehold, 
leasehold or 
copyhold tenure 

Ownership of pro- 
perty (as in No. 
8) or j^*!© occu- 
i»tion or honse- 
nold in respect 
of property for 
which the hus- 
band does not 
qualify 

Freemen of the 
City who are also 
liverymen of one 
ofthe livery com- 
panies 



) See col i» 



County 
Electors. 



486,340 



96,198 



582.538 



Parochial 
Electors. 



486,340 



20,623 
59,630 



96,198 



10,837 



673,628 



Parlia- 
mentary 
Borough 
Electors. 



486,340 



20,623 
59,630 



7,498 



574,091 



Parlia- 
mentary 

County 
Electors. 



13,246 



13,246 



Hih 



226 NOTES AND ILLUSTRATIONS 

ing the radical alteration of the constitution of most of the Corpora- 
tions by the repeal conuined in Section i, and the substantive 
provisions of the Act, it is settled law that "the effect of the statute 
was not to create a new Corporation in any case, but merely to 
continue the old Corporation, so that all the rights, claims, fran- 
chises, privileges, prescriptions, and customs, as well as all the 
debts, liabilities, and duties of the Corporation as it stood on the 
day the statute passed, remain and inhere in the remodelled Cor- 
poration, so far as they are not contrary to, or inconsistent with, 
the provisions of the Act" {see Grant on Corporations, p. 343, and 
the cases there cited). 

3. The principal schemes for the government of London (p. 11) 
put forward for legislation are sufficiently diverse, and many of 
them are opposed to all principles of local government, but the 
private schemes never advanced to the dignity of consideration of 
Parliament are still worse in this respect 

The principal private scheme is that favoured by the City of 
London Corporation of a series of ten independent municipal 
boroughs centred round the City of London. This would confine 
the name of London to the City area only. The Parliamentary 
schemes include recommendations of Royal Commissions in 1837 
and 1854, and of Select Committees of the House of Commons in 
1861, 1866 and 1867. The Bills introduced into the House of 
Commons for the reform of London are as follows : — 

Government BiU of 1856. In April, 1856, Sir George Grey intro- 
duced a Bill founded upon the recommendations of the Commis- 
sioners of 1854. By its provisions the City was re-divided into 
sixteen wards, of more equal area than those then existing. Each 
ward was to be represented by one Alderman and five Common 
Councillors. Aldermen were to be appointed for six years, one-half 
of their number going out every three years. The Lord Mayor was 
to be elected by the Common Council, and all persons qualified to 
be Common Councillors were eligible for this office. The same 
qualification was adopted for the Sheriffs. The City Auditors were 
to be elected from the same class of people not being members of 
the Common Council. The Court of Aldermen was abolished, and 
the election of all the principal City officers was vested in the 
Common Council, with the exception of the Recorder, who was to 
be elected by the Aldermen. The custom of the admission of brokers 



NOTES AND ILLUSTRATIONS 227 

was abolished, and the market jurisdiction of the City was taken 
away ; also the exclusive rights of trading, metage dues, street tolls, 
and the exclusive rights of fellowship porters. The Court of Hustings, 
the Court of St Martin's-le-Grand, and some other old City courts, 
were abolished, and the Recorder was in future to be the Judge of 
the Lord Mayor's Court Aldermen were placed on the same footing 
as justices of a county, and the City was brought within the Metro- 
politan Police Court District The provisions of the Municipal 
Corporation Act as to the charging or alienation of property were 
applied to the City. On the 20th of June the Government an- 
nounced that there was no reasonable prospect of being able to pass 
the Bill during the Session, and it was therefore withdrawn with the 
expressed intention of re-introducing it in the following Session. 
This, however, was not done. 

Government Bill of 1858. This was the Bill of 1856, modified 
in certain respects. By its provisions the Common Council was 
increased from 96 to 112 by allowing each of the sixteen proposed 
wards to send six Councillors and one Alderman to the Common 
Council. The Aldermen were to hold office for life, but the power 
of removal upon representations from the wards was vested in the 
Common Council. The Bill was read a second time on February 
1 2th, after which it was referred to a select Committee. Eventually 
the Committee reported, and then the City petitioned the House of 
Commons that the Bill should be referred back to the Select Com- 
mittee, and that the City should be heard by Counsel against the 
Bill. The Government resisted this, but the delay occasioned was 
so great that the Bill had to be withdrawn. 

Government Bill of 1859. ^^ ^^59 Sir George Comewall Lewis 
introduced a Bill founded upon that of Sir George Grey of 1858. 
The Bill was introduced too late, and had to be withdrawn, but on 
the 30th of January, i860. Sir George Lewis re-introduced the 
Bill. In its new form, the measure dealt only with a few changes 
in the City constitution. It was withdrawn on the 30th of July. 

Mr. MilPs Bills of 1867. In 1867 Mr. Mill introduced a Bill for 
the purpose of establishing separate Municipal Corporations in the 
several districts of the Metropolis, and also a Bill for the establish- 
ment of a central Municipal Government The first measure pro- 
vided for the division of the metropolis into ten boroughs, besides 
the City. Each borough was constituted a body corporate with 
Mayor, Aldermen, and Burgesses. The provisions of the Municipal 



228 NOTES AND ILLUSTRATIONS 

Corporation Act were applied to each borough so created. The 
second Bill, which was introduced later in the Session, was for 
the establishment of a central Municipal Government The Bills 
were re-introduced by Mr. Mill in practically the same form in 1868 ; 
but the Bill dealing with the constitution of a central Corporation 
was stopped in consequence of due notice of its introduction not 
havbg been advertised for the benefit of the City in the preceding 
November. 

Mr. BuxtOfCs Bills of 1869. These Bills were practically the 
same as those introduced by Mr. Mill in 1868, and were introduced 
by Mr. Buxton, as Mr. Mill was no longer in Parliament. The 
Home Secretary assured the House that the subject would receive 
the attentive consideration of the Government, and Mr. Buxton 
withdrew the Bills. 

Mr. Buxton's Bills of 1870. As the Government did not act 
upon their assurance and introduce any measure in the ensuing 
Session, Mr. Buxton, in 1870, introduced three Bills dealing with the 
government of London. They were intituled respectively : " The 
Municipal Boroughs Bill," " The Corporation of London Bill," and 
" The County of London Bill." The Municipal Boroughs Bill divided 
London into nine boroughs, besides the City. The vestries were 
abolished, but the former proposals of separate Mayors and Aldermen 
did not re-appear in this measure. They were replaced by Wardens, 
one in each borough. The number of Councillors varied, and the 
boroughs thus constituted were placed under the provisions of the 
Municipal Corporations Act, 1835. The Corporation of London Bill 
had for its object the creation of the Metropolitan Corporation of 
London, and the continuance of the Municipal Government of the 
City of London. The government of the City of London is left 
intact, with the exception that its chief officer is to be called Warden, 
and not Mayor. The Court of Aldermen is abolished, but its func- 
tions are preserved. A Central Corporation is constituted, consisting 
of the Lord Mayor, Aldermen, and Metropolitan Councillors. The 
Lord Mayor to be elected by the Metropolitan Council from among 
the Aldermen. The Warden of the City of London was to be the 
Deputy Lord Mayor. The Metropolitan Council was to consist of 
167 members. The County of London Bill, introduced along with 
the other two, was for the purpose of constituting the Metropolitan 
area one county. The Bills were read a second time, and referred 
to a Select Committee, and were ultimately withdrawn. 



NOTES AND ILLUSTRATIONS 229 

Lord EicMs Bill of 1875. This Bill was prepared by the Metro- 
politan Municipal Association. It embodied the provisions of 
previous measures, and extended the Corporation over the whole 
metropolitan area. It was introduced by Lord Elcho and Mr. 
Kay-Shuttleworth. The principle of the Bill was not the absolute 
creation of an original constitution; but the extension to the 
whole metropolis of a modified constitution of the City Corpor- 
ation. The electoral body of the new Municipality was to be 
composed of the present City electors, and those at present qualified 
to vote at the election of vestrymen. The governing body was 
to consist of the Mayor, Aldermen, and Councillors. The Lord 
Mayor was to be elected by the Municipal Council ; any one quali- 
fied to vote for a Councillor might be selected for the office. Three 
Aldermen were to be elected from each of the metropolitan dis- 
tricts. One-third of the Aldermen were to retire every year. The 
Municipal Councillors were to be elected by the present electoral 
body with the cumulative system of voting — five members to be 
elected by each ward. The powers and functions of the Municipal 
Council were to include all those possessed by the governing bodies 
of the Corporation of the City, by the Corporation of Westminster, 
by the Metropolitan Board of Works, by Vestries and District Boards, 
and by the different bodies of commissioners and trustees discharg- 
ing municipal functions in various parts of the metropolis. The 
property and the right to tolls and duties in the hands of the various 
governing bodies of the metropolis were transferred to the new 
Municipality for the public benefit of the metropolis ; but, with re- 
gard to the City, it was provided that, except by consent of its repre- 
sentatives, the Council should not expend the proceeds of the City 
property otherwise than for the benefit of the City municipal district. 
The Bill was withdrawn before it reached the second reading, and 
Lord Elcho announced his intention of proceeding by Resolution. 
No suitable day was, however, available. 

Municipality of London Bill^ 1880. This Bill was prepared and 
brought in by Mr. Firth, Mr, Thorold Rogers, Mr. T. B. Potter, 
and others. It was read a first time on the 17th of June, but 
was not read a second time. This Bill creates a central, repre- 
sentative, municipal authority for the whole metropolis, to be 
called the "Municipality of London," and transfers to it all the 
powers and privileges of the Corporation of the City, the Metro- 
politan Board of Works, the Vestries and District Boards, and other 



230 NOTES AND ILLUSTRATIONS 

bodies or persons exercising any municipal functions within the 
metropolis. It also provides that the Secretary of State, with the 
consent of the Local Government Board, may at any time transfer 
the powers of the Metropolitan Asylums Board to the new body. It 
creates the metropolis a county by the name of the County of 
London. It abolishes the vestries and district boards, and makes 
provision for the re-division of the metropolis into forty municipal 
districts. It applies the Municipal Corporations Acts generally to 
the Municipality of London, but saves to the new Corporation all the 
rights and privileges of the Corporation of the City which are not 
inconsistent with the provisions of those Acts. 

The London Government Bill^ 1884. This Bill was brought in 
by Sir William Harcourt, Sir Charles Dilke, the Attorney General, 
Mr. Hibbert, and Mr. George Russell. It was read a first time on 
the 8th of April, and the debate on the second reading came on 
on the 3rd of July. The debate was adjourned to the 4th and 
again to the 8th of July. After a long debate on the 8th, the 
debate was again adjourned, and the Bill was withdrawn on the loth 
July. The Bill extends the area of the City of London and the 
County of the City of London, so as to include the whole metropolis ; 
reforms the Corporation of London on the lines of the Municipal 
Corporations Acts, and transfers to the reformed Corporation, in 
addition to all the powers exercised by the old Corporation or the 
Commissioners of Sewers within the City, the powers and duties of 
the Metropolitan Board of Works, the vestries and district boards, 
the justices of Middlesex, Surrey, and Kent, within the metropolitan 
area, the burial boards, the Commissioners for Public Baths and 
Washhouses, Public Libraries and Museums, any Commissioners for 
paving, lighting, watching, and cleansing, in any part of London, 
and certain of the duties and liabilities and property of the Com- 
missioners of Works. 

It applies most of the provisions of the Municipal Corporations 
Act, 1882, to London ; provides for the division of London into 
Municipal districts, and the election of district councils. The Lord 
Mayor is to be a fit person, qualified to be a Common Councillor ; 
the Queen must approve his appointment as at present He is to be 
by virtue of his office a Common Councillor and a Justice of the 
Peace, but with no larger power than that of a smgle Justice. His 
term of office is one year, but he is eligible for re-election. The 
Common Council is to fix his allowances or remuneration ; and, 



NOTES AND ILLUSTRATIONS 231 

subject to the provisions of the Bill, he is to have all the powers and 
precedence of the former Lord Mayors of London. The Council 
may elect a Deputy Mayor from among the Common Councillors, 
and may pay him ; he is to be a Justice of the Peace for London 
during his year of office. The Aldermen of the Corporation of 
London at the passing of the Act are to hold office till the ist May, 
1885. After that date the title of Alderman is abolished, but the 
existing Aldermen of the City will continue to be Justices of the 
Peace for the County of London. The Common Council is to 
consist of 240 members exclusive of the Lord Mayor, but power is 
given to alter the number both of Common and District Councillors 
by a scheme confirmed by the Queen in Council. The control of 
the City Police is given to the new Corporation, but the Metropolitan 
Police remain under the Home Office, The purposes to which the 
City Fund may be applied are wider than in the case of other 
Municipal Corporations, and include the entertainment of dis- 
tinguished persons, contributing to public charitable objects, and the 
maintenance of certain schools. The office of Recorder is continued, 
and provision is made for the appointment of Deputy-Recorders, one 
of whom is to be the Common-Serjeant, The Lord Mayor, Alder- 
men, Judge of the City of London Court, and the Dean of Arches, 
cease to be Judges of the Central Criminal Court : but the Recorder 
and Deputy-Recorders are to be included in the Commission. The 
Common Council is to submit a Bill to Parliament for dealing with 
the Mayor's Court ; and the City of London Court is transferred to 
the Commissioners of Works and becomes a County Court The 
Metropolitan Police Courts Acts are extended ta the City, and the 
justice rooms at the Guildhall and Mansion House become Police 
Courts. 

4 The new authorities alluded to on p. 13 are (i) the Managers- 
of the London Children Asylum District, which was proposed by 
the Local Government Board in January, 1897, for the purposes of 
the relief of certain classes of children chargeable to London unions 
and parishes. The President of the Local Government Board 
denied that this was a new authority, but it was to consist of fifty-five 
members elected by the Guardians of the unions and parishes of 
London. And (2) the Metropolitan Water Board, proposed by the 
Government Bill of 1896, which was to consist of sixteen members 
elected by the London County Council — two by the Common 



232 NOTES AND ILLUSTRATIONS 

Council of the City of London, two by the Middlesex County 
Council, two by the Essex County Council, two by the West Ham 
Corporation, one by each of the other Metropolitan Counties, one 
by the Thames Conservancy, and one by the Lea Conservancy. 

5. The position assumed by Exeter (p. 17) is discussed very fully 
by Mr. Freeman in History of Norman Conquest^ voL iv. pp. 138 
tt seq, 

6. The districts into which England and Wales is divided (p. 19) 
are classified into two groups, Urban and Rural — ^a classification 
which exists wholly for the purpose of determining the sanitary 
functions which they are to administer. The extent of the district 
jurisdiction is shown in the following table : — 





No. 


Area in Acres. 


Population. 


Urban Districts 

Rural Districts 


709 

575 


2,181,995 
34,045,030 


5.713.S88 
8,107,021 


Total Districts 


1,284 


36,227,025 


13,820,909 



The rest of the country is comprised in the following : — 





No. 


Area in Acres. 


Population. 


County of London .... 

County Boroughs 

Muniapal Boroughs .... 


I 

64 
23» 


347,889 
667,529 


7,588i536 
3,360,962 


! 303 


1.090,860 


15,181,616 


Total England and Wales . . .11,587 


37,3i7,8«5 


29,002,525 



7. The process by which the Police District was formed is very 
instructive in connection with the subject discussed on page 19. 
Mr. F. W. Maitland, in his volume on Justice and Police in the 
" English Citizen Series," p. 98, says : — " From the institutions, dis- 
tinctive of London proper, we pass to one which was long distinctive 
of ' the Metropolis/ for as yet we have no better name for the vast 
town which has agglomerated itself outside the City walls. This 
town, we must remember, was in the eye of the law no town ; it had 
no legal being \ it was but a collection of townships, and manors, 



NOTES AND ILLUSTRATIONS 233 

parishes, and extra parochial places, which owned no common ruler, 
save King and Parliament Geography and remote history had 
done their worst for the Metropolis : the Commissions of the Peace 
for Middlesex, Surrey, Kent, and Essex, converged on the disorderly 
mass, while separate Commissions for Westminster and the Liberty 
of the Tower confounded confusion. Unity of action was im- 
possible, the individual Magistrate was not controlled by the spirit 
of corporate magistracy, and metropolitan Justice and Police fell 
into bad ways. In the last century there arose men who gained 
the bad name of 'trading Justices,' and made a profit of their 
powers by the taking of fees. To put an end to this, rather than to 
do anything else, was the object of a series of statutes which ended 
by giving us professional Magistrates and a new police force under 
the control of Royal Commissioners and the Home Secretary. In 
1792 seven * public oflSces,' which came to be called 'police offices,' 
were established ; at each of which, three Justices of the Peace, 
appointed by the King and commissioned for -both Middlesex and 
Surrey, were to attend daily. All fees taken by them were to be 
paid to a receiver, and no other Justice was to take fees within 
a certain large district. Out of these fees, or, if they would not 
suffice, out of the Consolidated Fund, each of the twenty-one 
Justices was to be paid a salary of ;£4oo, while over the provision 
of buildings, and so forth, the Home Secretary was to have a con- 
trol. An Act of 1800 established an eighth police office (or rather 
a ninth, for the Bow Street Office has an earlier history) ; and the 
three paid Justices ('Special Justices' they were called) of this 
Thames Police Office were to be commissioned for Middlesex, 
Surrey, Kent, Essex, Westminster, and the Tower. These Acts 
were only temporary, but they were repeatedly re-enacted with 
improvements. The salary of these Justices, or * Police Magis- 
trates/ as the later Acts called them, slowly grows from ;^4oo to 
j^i,5oo ; the hours of attendance on the other hand are shortened ; 
at first they are 10 to 8, afterwards 10 to 5. What this indicates 
is the great change which during this period is making the duties 
of the Justice in o-iminal cases more and more judicial. These 
paid Justices were seldom lawyers; it is first in 1839 that the King's 
choice is confined to barristers of seven years' standing. One of 
their chief duties had been to appoint and control a small band of 
paid constables attached to each office. Even in 1829, when 'a 
new police force ' for ' the Metropolitan Police District ' was formed, 



( 



234 NOTES AND ILLUSTRATIONS 

this was done by establbhing in Westminster one more police 
* office,' provided with two paid Justices of the Peace, who, under 
the Home Secretary, were to rule the new constabulary. In 1839 
these two Justices receive the new name of ^Commissioners of 
Police of the Metropolis,' the judicial and executive duties com- 
prised in the old conservation of the peace fall apart, and we are 
left with learned Magistrates and gallant Commissioners." 

8. The Districts which are not local districts in the sense of 
Local Government (p. 20) are as follows : — 

Sewerage Districts — 
Richmond. 
West Kent 
Darenth Valley. 
Wisbech and Walsoken. 
Upper Stour Valley. 
Stourbridge. 

Birmingham, Tame and Rea. 
Haslingden and Rawtenstall. 
Accrington and Church. 
Clayton-le-Moors and Great Harwood. 

River Districts — 
Thames. 
Lea. 

Mersey and Irwell. 
Ribble. 
West Riding Rivers. 

Most of the Port Sanitary Authorities, all the Commissioners of 
Sewers, the Drainage, Embankment, and Conservancy Boards, and 
the Fishery Conservancy Boards. 

9. The difference between true localities, that is, localities formed 
by common interests and afterwards obtaining governing powers, and 
quasi localities, that is, localities formed for the purpose of adminis- 
tering central laws (p. 20), is perhaps best illustrated by an example. 
I therefore quote the following passage : — " Local Government is 
a word which requires special explanation in the case of Spain. 
Her whole life has been made to depend upon the Central Govern- 
ment, and, in consequence, every portion of this life is organized 



NOTES AND ILLUSTRATIONS 235 

according to the principles on which the constitution of Spain 
is framed. The source of political life arises from the constitution ; 
and each political convulsion, re-modelling as it does the con- 
stitution on the principles of a new scheme, produces, with a 
new code, a fresh series of organic laws for the provinces and towns, 
called, after the old Roman names, provincias and municipios. 
Local life and Local Government mean, consequently (in Spain), 
a portion of the Central Government ; therefore they afford no trace, 
either of special principles, special organization, or the remains of 
old institutions. There is nothing but Central Government modified 
and extended to comparatively local purposes" (** Local Govern- 
ment and Taxation," Cobden Club Essays^ p. 338). 

10. The importance of the proposition that the governing authority 
is only the trustee of the whole body of electors (p. 22) is shown in 
several ways. Thus, in a case tried before the Lord Chancellor, 
Lord Herschell, Lord Macnaghten, and Lord Morris, The Churchr 
wardens^ etc,^ of Lambeth v. The London County Council^ the Lord 
Chancellor said that one sentence was sufficient to dispose of the 
case — namely, that the public, for whom the County Council were 
merely custodians or trustees, were not rateable occupiers, and that 
there was no beneficial occupation of the property whatever. {The 
TimeSy 20th July, 1897.) 

11. The practice of allocating a portion of Imperial taxation to 
the purposes of local taxation (p. 23) was commenced in 1833 by a 
grant towards the cost of the Metropolitan Police, and it has been 
extended from time to time by grants towards the following 
services : — 

1835. Criminal prosecutions. 

1846. Teachers in poor law schools and poor law medical 
officers. 

1856. Police (counties and boroughs). 

1865-6. Metropolitan Fire Brigade. 

1870. Education. 

1873-4. Medical officers and sanitary inspectors. 

1874. Pauper lunatics. 

1875. Registration of births and deaths. 

1876. Industrial schools. 

1882. Distumpiked and main roada 
1 89 1. Educational — ^fee grant 



236 NOTES AND ILLUSTRATIONS 

Up to 1888 these grants were made direct to the authorities who 
spent the money, and were a fixed proportion of the amount spent, 
bemg subject to a check by the Imperial authority by means of a 
proper system of audit and by provisions for disallowances. In 
1888 a very important departure was made in the method of making 
all the grants, except that for education. In the first place, certain 
definite duties locally collected were allotted to the counties in 
which they were collected ; and, secondly, a certain stated propor- 
tion of the probate duty — ^now estate duty — ^and of the beer and 
spirit duties was allotted among the counties, the basis of apportion- 
ment being not the expenditure of the counties upon any given 
service, but the total grants made by the Government to the 
local authorities within the counties in one particular year, 1887. 
Since this considerable change in the principle upon which grants 
from the Imperial exchequer to local taxation took place, further 
changes have been adopted or are proposed by the Government 
to be adopted. These changes consist in throwing certain charges 
upon the local taxation account of the Imperial exchequer and 
deducting them firom the amount set apart to be apportioned upon 
the principle of 1888. Thus, the cost of inspection for swine fever, 
which is undertaken and paid for by the Government, is deducted 
from the amount to be apportioned to the counties, and thus 
becomes a charge upon the counties, although indirectly made. 
Further, there are the provisions of the Agricultural Rates Act 

LECTURE II 

12. The number of instances of counties and parishes having 
detached portions situated at some distance from the main area, and 
divided from that area by territory of other counties or parishes 
(p. 40), is very large. The schedule to the Act, 2 and 3 Will. IV., 
cap. 64, sets out the counties which had detached portions situated 
away firom the main county area. 

13. The elucidation of the tribal history of Britain (p. 43) has 
received almost unexpected light from Mr. Willis-Bund's remarkable 
researches in his recent book on the Celtic Church in Woks. Mr. 
Skene's Celtic Scotland^ Sir Henry Maine's Early History of Institu- 
tions, and Mr. Seebohm's Tribal System in Wales are well-known 
works. My own contribution is contained in a communication 
before the British Association at Liverpool in 1896 on Fire Rites 
and Ceremonials. 



NOTES AND ILLUSTRATIONS 237 

14. The shires not included among the local government areas, 
the counties (p. 44), are very interesting fragments of the ancient 
constitution, and they are more frequently mentioned in earlier 
writers than is generally supposed. Thus Leland tells us that 
" Lancastreshire conteineth five litle shires " {Itinerary^ vii. p. 44). 

16. The early names of the shires (pp. 44-5) in connection with 
the tribes who formed them are discussed in Kemble's Saxons in 
England^ vol. i., chapter 3. Palgrave's English Commonwealth^ 
vol. L, p. 48, and the Census Eeport of 1851 (vol. i., pp. Ivi.-lxxxii.), 
also give very valuable information. In addition to the ordinary 
chronicle sources of information referred to by these authorities, the 
student should consult a valuable reprint of "The Shires and 
Hundreds of England," published by the Early English Text 
Society in the Old English Miscellany^ pp. 145-6. 

16. The original of the Herefordshire record (p. 50) is printed 
in Hickes' Dissertatio Epistolaris^ p. 4, in Thesaurus Antiquitatum 
Septenirionaliumy vol. iiL 

17. The original of the Pennenden Heath record (p. 52) is printed 
in Wilkins* Concilia Magnoe Britannia^ vol. L pp. 323-324. 

18. The power of outlawry (p. 63) is perhaps the most remark- 
able survival of tribal conditions that occurs, and it would be 
difficult to account for its existence, except by the fact that the shire 
is descended from the tribe — was the tribe expressed in later terms. 
It existed with the primitive Russian mirs until the present year, 
when we are told that "on the advice of the Minister of the 
Interior, M. Goremykine, the Government have resolved to with- 
draw from the mirs the right to banish members of the village 
communities who offend against the laws and regulations that 
govern the administration of their common property and land." 

The reader should consult Wallace's Russia (vol. i., 199), and 
Kovalevsky's Modem Customs and Ancient Laws of Russia. 

19. The continuity of the site where the ancient shire-mote 
and the modem County Council of Kent meet (p. 64), is a very 
interesting point. Mr. Larking thus sums up the case : " Thither 
still the sheriff summons the freeholders to meet and nominate their 
knights of the shire. Thither are summoned, on all occasions, the 



238 NOTES AND ILLUSTRATIONS 

men of Kent, to hold their meetings for public and political purposes. 
There is a lofty mound there at the meeting of the roads from 
Maidstone, now enclosed within the grounds of Foley House, which 
has a very suspicious look as having been the mote or hill on which 
the Gemote was held." (Larking's Domesday of Keniy Note No. 41, 
p. 160.) 

20. This new liability of the county (p. 73) has already been 
put in force, as the following note will show : — 

" At the Public Hall, Woking, an inquiry was opened under the 
Riot (Damages) Act, 1886, by representatives of the Surrey County 
Council. The notice in respect of the inquiry stated that a claim 
had been received * from George Raggett, of Woking, for compen- 
sation amounting to ;^58 lox. for injury to, and destruction of, a 
freehold building at Bunker's Lane, Woking, of which he is the 
owner, by persons riotously and tumultuously assembled together 
on January 12th, 1897.* Colonel Tedcroft presided over the 
inquiry, and Mr. Fearon represented the claimant It was stated 
that a building erected on freehold land near Woking was let at 
a rental of 3^. a week to a man who died in September, 1894. 
After that date the widow paid no rent, and as a result there were 
County Court proceedings and an ejectment order. On January 
i2th a number of persons assembled at the property, from which 
the widow had removed her furniture, and proceeded to demolish 
the premises. Some of the chief offenders were prosecuted, and 
sentenced at the assizes to terms of hard labour." (TYmes, 12th 
March, 1897.) 

LECTURE III 

21. On the Domesday possessions of the burghs (p. 81), Ellis' 
Introduction to Domesday^ vol. i., pp. 190-210, may be consulted, 
but the subject wants special inquiry. Mr. Round has investigated 
the special case of Colchester in"the Antiquary ^ vi., p. 97. Professor 
Maitland's criticism may be found in his Domesday^ pp. 200-201. 

22. In the case of Gloucester (p. 94) the Corporation possess a 
rent-roll, drawn up in 1455, by Robert Cole, a Canon of Llanthony 
Priory, near Gloucester. This roll is written in Latin, on parch- 
ment, and measures thirty-three feet in length by fifteen inches in 
width. It gives an account of every house in the borough, the 



NOTES AND ILLUSTRATIONS 239 

names of the owner and tenant, the tenant's trade, the amount of 
rent, the amount payable for landgavel rent, and, in many cases, an 
abstract of title from the time of Henry III, Each of the four 
main streets is taken in turn, the houses on each side of the street 
being given seriatim in separate columns, and then the side streets 
and lanes are similarly described. Between the columns a space is 
left to represent the roadway. In this space are curious drawings 
of the various churches, chapels, friaries, wells, the pillory, etc. The 
work is thus practically a survey and directory as well as a rent-roll 
of the city in 1455. Now this roll was not required for the purposes 
of taxation, as in the case of a modem valuation list ; and it repre- 
sents, therefore, the interest of the Corporation in the town property. 
Similarly, in other municipal towns, as, for instance, at Axbridge, in 
Somersetshire, there exists a vast accumulation of deeds relating to 
property in the town, and there is no explanation as to why the 
town should possess these deeds. The true explanation is, I am 
convinced, to be found in the early connection between the 
Corporation and the property of the town. 

23. There are municipal boroughs in which to this day no rates 
are levied, owing to their possession of property (p. 94). This occurs 
in Ireland in Carrickfergus, Cashel, Drogheda, Kells, Clonakilty, 
Tuam, Belturbet, Callan, Fethard, and Kilkenny. The municipal 
revenue is derived in each of the first four cases from real property ; 
in the next two, from tolls levied at markets and fairs ; in the last 
four, partly from tolls and partly from property. The Corporation 
of Waterford and the Commissioners of Wicklow are possessed of 
sufficient income to render the levying of rates for ordinary muni- 
cipal purposes unnecessary, the only rates levied being in connection 
with water supply. Many towns have a considerable revenue 
arising from property, market tolls, and other permanent sources of 
income {Local Taxation^ Ireland^ Returns^ 1895, P- ^S)- Aldeburgh, 
in Suffolk, is an example in England. 

24. Mr. Round has dealt with the subject of communal house 
demolition (p. 94) in his collection of studies published under the 
title of Feudal England. He says that the custom was limited to 
the Cinque Ports, and gives numerous parallels in Flanders and 
Northern France. But I think this is hardly so. The facts as I 
have collected them are as follows. 



240 NOTES AND ILLUSTRATIONS 

The Custumal of Sandwich contains the following item relative to 
the custom : — 

"Si maior sic electus ofiicium suum recipcre nolait, primo et 
secundo et tercio monitus, tota communitas ibit ad capitale 
messuagium, si habuerit proprium, et illud cum armis omnimodo que 
poterit prosternat usque ad terram. . . . Similiter quicunque 
juratus fueret electus, et jurare noluerit simile judicium.'* 

At Folkestone, if either the mayor or any of the jurats refused 
to assume their respective offices upon being elected, "the commons 
were to go and beat down their principal messuage " {^Report of the 
Record Commission y 1837, p. 453). On the occasion of the election 
of bailiff at Hastings it was a law that " if the said bailiff be absent, 
or will not accept the charge, all the commoners shall go and beat 
down his chief tenement" {Sussex Archceological Collections^ xii. 
197). This clearly establishes the practice as an old Cinque Port 
law. Now let us turn to London. The assize of Henry II. states 
" that the house of the individual who harbours a heretic shall be 
carried out of the town and burnt ^^ (Section 21), See Palgrave's 
English Commonwealth^ vol. ii., p. clxxiii. There is the same 
principle underlying this and the Cinque Port custom. And if we 
turn to the Preston Guild Laws it receives curious confirmation. 
Every new burgess was obliged to erect his burgage within forty 
days {Ancient Custumal of Preston^ Section 5) ; and the shortness 
of this period is explained by the fact noted by the authors of the 
History of Preston Guild, p. 47, Messrs. Dobson and Harland, that 
the houses " were formed of a framework of oak, and the interstices 
were filled with a sort of plaster formed of clay mixed with straw, 
reeds, or rushes. Each piece of wood in the framework was usually 
tenoned, fitted into a mortise, and fixed by a wooden peg. The 
framework was put together by the builder before it was taken to the 
site. When the old buildings facing the market-place were removed 
in 1855, much curiosity was excited by an examination of the 
framework, each tenon and mortise being numbered to correspond 
with each other, so that when the frame was placed on the site it 
had to occupy, the component parts could be as easily fitted to each 
other as when it was framed." This carrying of the framework to 
the site clearly explains the possibility of carrying houses out of 
the city of London, bearing in mind the evidence given by the 
assize of Fitzalwyne, first Lord Mayor of London, that the houses 
in the city were all thatched (Liber Albus, vol. i. p. 328), while 



NOTES AND ILLUSTRATIONS 241 

from Stow we get a curious story : — In Throgtnorton Street, 
Cromwell, Earl of Essex, built "one very large and spacious house," 
and pulled down the paUngs of the gardens adjoining, and enclosed 
them in his own grounds. Nor was this all. " My father," says 
Stow, " had a garden there, and a house standing close to his south 
pale ; this house they loosed from the ground and bare upon rollers 
into my father's garden twenty-two feet ere my father heard thereof." 
These houses therefore were houses that could be moved. 

25. The relationship of London to Middlesex illustrates the point 
alluded to on page 97, but it is one of those subjects which has not 
been properly worked out. The following notes suggest where 
such an inquiry might lead us. Fitzstephen, in the reign of Henry 
II., describes the garden ground, the arable lands providing plenti- 
ful com like the rich fields of Asia, the pasture lands on the north, 
and the extensive forests, in which are wild beasts, bucks and does, 
wild boars and bulls {Liber Custumarum^ i. 4) ; and I think we 
have a relic of this old municipal life beyond the walls in the 
surviving name of " Long Acre," one of the acre strips of the old 
common arable field. That this land belonged to the citizens in 
their corporate capacity and was utilized by them is incidentally 
proved by some curious entries in the Liber Albus^ which con- 
tains a list of grants — concessio majoris et communitatis — among 
which extra-mural property is granted away with a free hand 
(Liher AlbuSy i. 552, "de domo vocata Bedlem extra Bysshopis- 
gate, de domo extra Newgate, de quadam domo extra Crepulgate "), 
and then we have the instructive document "Memorandum de 
quadam placea terrae extra Crepulgate capta in manum civitatis." 
It is just possible that the tyrannical act of Henry III. may have 
given a great wrench to this state of things, for we learn that in 
1265 he took all the '* foreign" lands of the citizens into his 
hands, and foreign lands are those without the liberties {Chron- 
icles of the Mayors and Sheriffs^ p. 83). 

Thus then it seems that the early municipal history of London 
tells us of a London outside the boundaries of the dty itself, and 
that this extra-mural part of London municipal life falls in with the 
general tenor of English municipal history and the facts of English 
municipal boundaries. But there is something of a still wider area 
than this attached to old municipal life in London. The origin of 
Middlesex has generally, and on philological grounds only, been 



242 NOTES AND ILLUSTRATIONS 

attributed to a tribe of the Middle Saxons, a tribe otherwise un- 
known to history. But a much more likely origin is that London 
and its territorium kept up a longer independence than other 
districts, and so dirided the Saxons into South and East Saxons, 
the district itself being afterwards called Middlesex (Cf. Journ. 
Anthropological Inst,, vii. 305). This conjecture is confirmed 
when we come to apply the test of history. Thus, the charter 
of Henry I. confirms to the citizens "their chases to hunt as 
well and fully as their ancestors have had,'' a clause which clearly 
points to ancient prescriptive rights not dependent upon the char- 
tered grants of the Norman sovereign, and so thorough-going a 
believer in Teutonic conquest as Mr. Green suggests that " Middle- 
sex possibly represents a district which depended on London in 
this earlier [1.^., 500-577], as it certainly did in a later time, and the 
privilege of the chase which its citizens enjoyed throughout the 
Middle Ages in the woodland that covered the heights of Hampstead 
and along the southern bank of the river as far as the Cray, may 
have been drawn from the rights of the Roman burghers " {The 
Making of England^ 106, 107). Diocesan history almost every- 
where in England is the key to much of the obscurer elements in 
the early history of English institutions (Stubbs' Const Hist^ L 
225), and it is confirmatory of the origin of Middlesex from the 
territorium of London that the prebendal manors which have so 
long been in the hands of St Paul's Cathedral were for the most 
part in Middlesex ^and occupied a belt of land extending from the 
very walls of London to the boundary of the county (Hale's 
Domesday of St PauPs^ p. iv.). 

Looking a little closer into the municipal privileges of London, we 
find that they extended beyond the walls in all directions. The sheriff 
of London, it is well known, had jurisdiction over the county of 
Middlesex, and a curious record is extant showing how this was 
once attacked by Henry III., who " requested " the corporation to 
permit the " Abbot of Westminster to enjoy the franchise which the 
King had granted him in Middlesex in exchange for other liberties 
which the citizens might of right demand," but it was decided after- 
wards that *' the sheriffs of London may enter all vills and tenements 
which the Abbot holds in Middlesex even unto the gate of his 
Abbey" {Chronicles of the Mayors and Sheriffs^ pp. 16, 61). 
Southwark is an outer ward. Mile End, towards the east, 
was the gathering ground of the train-bands. Finsbury and 



NOTES AND ILLUSTRATIONS 243 

Smithfield, towards the north, were the play-grounds of the citizens. 
At Marylebone by the conduits the Lord Mayor had a banqueting- 
house (Maitland's Hist of London^ ii. 1373). Knightsbridge, to 
the west^ seems to have marked the spot where the citizens deemed 
it proper to welcome guests within their boundaries, for in 1257 it 
is recorded that '* upon the King approaching Westminster the mayor 
and citizens went forth to salute him, as the usage is, as far as 
Kniwtebrigge " (Chronicles of the Mayors and Sheriffs of Lon- 
^^} P* 34)) Ai^<l in the regulations which govern the doings of 
Lorrainers, Knightsbridge, together with Stratford, Sandford, and 
Bolkette, are mentioned as the '* four limits '' (lAber Custumarum^ 
i 61 ; ii. 530). 

LECTURE IV 

26. The following passage from Palgrave is worth quoting to illus- 
trate the position of the English township referred to on p. 113. 
"The earliest notices respecting the Teutonic townships are to be 
collected from the laws of the Salic Franks. A ' villa ' was entirely 
the property of the inhabitants, and no stranger could settle within 
its boundaries, unless with the consent of the whole incorporation. 
Any one individual townsman could forbid the entrance of the new 
colonist upon the common fields of the sept If after three warn- 
ings had been given, and thirty nights had elapsed, the intruder 
continued contumacious, he was summoned to the 'Mallum,' or 
Court, and in default of appearance the Gravio proceeded to the 
spot, and by force expelled the occupant from the purpresture which 
he had made. But it is important to remark that the freedom of the 
community might be legally acquired by an uncontradicted residence 
(of twelve months)." — Palgrave, English Commonwealth^ L 83. 

27. The famous example of Ditmarsh (p. 122), situated between 
the Frisians of the great confederation and the Northern Frisians of 
Holstein, is explained by Mr. G. B. Williams in Archceologia^ 
vol. xxxvii., pp. 37 1-390. The great emigrating tribe from Friesland, 
the Vogdemannen, established itself in two marks on the seashore, 
calling themselves the North and South Vogdemannen. The emigra- 
ting tribe from Saxony settled in the midst of the country in two 
other marks, which afterwards received the names of North and South 
Hamme. In later times a fifth district was added— the Meldorper 



244 NOTES AND ILLUSTRATIONS 

Doffl. Such was the original settlement by Ditmarsh — a settlement 
made by men who only did not become English as we understand 
the term because they did not follow their brethren to Britain, a 
settlement simply and thoroughly an agricultural community, with 
peasants alike for their aristocracy and their democracy, with 
peasants for their soldiers and peasants for their statesmen. 

European politics, however, soon endeavoured to force themselves 
upon this primitive state of things. The first step was the granting 
of the land to the Bishop of Bremen, who, without interfering with 
the internal organization of the people, became lord of the unappro- 
priated waste lands, somewhat analogous, says Mr. Williams, to our 
Lord of the Manor. 

The account of the old government of the county as quoted by 
Mr. Williams from Neocorus is as follows : — " The old Ditmarsh 
government was arranged in the following manner : there were in 
every parish * the sixteens,' as they were called ; amongst them were 
two schliiter, who were also obliged to administer the possessions 
of the Church as churchwardens. They held their consultations 
weekly throughout the year, and if anybody intended to go to law he 
was to appear before this tribunal, and he demanded that the party of 
whom he complained should also appear before the court ; upon 
that one of the neighbours of the defendant was obliged to summons 
him. When the two parties had arrived, and the complainant and 
the defendant had been heard, the court of law pronounced sentence. 
If any one was not satisfied, he might appeal from the sixteens to the 
whole parish. In small parishes there were sixteen, in the larger 
ones twenty-four kerknemedes. All appeals were brought before the 
parish, which decided. Usually the kerknemedes were judges in 
matters of debt, the schliiter were the judges of the scoundrels, 
thieves, and robbers. If the schliiter of a parish was not strong 
enough, they called to their aid all the other schliiter of the county to 
assist in the binding and the burning, which were the punishments of 
the whole land." The parish nemedes were the sworn representatives 
elected for life by the community of each parish from the most 
worthy and well-to-do of their members. 

From their body the juries were invariably chosen, and on that 
account a jury was called a nemede (named). The schliiter were 
two officers annually chosen fi-om the nemedes, whose business it 
was to convene the nemedes, to preside over the j urines, and to give 
effect to their verdict, to superintend the apportioning of the land by 



\ 



NOTES AND ILLUSTRATIONS 245 

lot, to direct all military affairs and to take charge of all roads, 
bridges and dykes. Up to this time each parish had been in effect a 
kind of separate republic, and had occasionally made separate treaties 
with foreigners, which were sealed with the parish seal. Each 
geschlecht, or bund, of perhaps two hundred families had its natural 
elder or head, and there was evidently some jurisdiction exercised over 
the members, as the family was responsible for their conduct. Beyond 
all this, moreover, was the supreme government invested in the 
'^ advocatus, milites, consules et tota communitas terrae thetmarsi." 
The milites were the natural heads of the geschlechts or races, and 
they rose to their condition without any rivalry, and sat as counsellers 
with the geschwomen of the different parishes. 

LECTURE V 

28. The documents to consult on the subject of pawnbroking 
(p. 145) are Reports from Her Majesty s representatives on the system of 
pawnbroking in various countries^ 1894 (C — 7559) ; Report of the select 
committee of the House of Commons on Pawnbrokers^ 1870 ; " How to 
Municipalize the Pawnshops" by Robert Donald {New Review^ 
December, 1894) ; and a printed speech at the London County Council 
by Mr. W. H. Dickinson on the municipalization of pawnbroking. 

29. Water supply is an important service (p. 154). Of the 64 
county boroughs in England and Wales, 43 have the water supply in 
their own hands, and i — namely, Middlesborough — is supplied, 
together with the municipal borough of Stockton, by a joint water 
board. In 1 2 of these 44 cases the waterworks were origiimlly con- 
structed by the corporation, and in the remaining 32 they have been 
purchased from companies. Of the 20 county boroughs without a 
municipal water supply, i — namely, the borough of Bootle — is supplied 
by the Liverpool Corporation, thus leaving 19 county boroughs 
supplied by private companies. Of the 32 cases of purchase, 23 
were purchased by agreement settled before the passing of an Act, 
and afterwards embodied in or confirmed by the Act; 4 were 
purchased by agreement under Acts in which, failing agreement, 
arbitration was to be under the Lands Clauses Consolidation Acts ; 
2 (together with two of the Liverpool companies) were purchased 
by arbitration under the Lands Clauses Consolidation Acts ; i was 
purchased by arbitration under special terms mentioned in the 



246 NOTES AND ILLUSTRATIONS 

Act ; and 2 (Manchester and St. Helens) were settled by agree- 
ment after the passing of an Act authorizing purchase. There 
are in England and Wales, besides the county boroughs, 240 
municipal boroughs, including the City of London. It b not easy 
to find out exactly what has happened in all of these cases with 
regard to water supply. So far as information is obtainable, it would 
appear that the water supply is in the hands of the corporation in 117 
of these boroughs ; 7 are supplied by joint water boards or com- 
mittees, and I is supplied by another corporation. In the great 
majority of these cases the works were originally constructed by the 
corporation, but there is information that in 25 cases the works of 
companies were purchased. 

30. The following Memorandum prepared for the use of the 
select committee on burial grounds, by Mr. W. P. Byrne, 13th July, 
1897, gives a very useful summary of the subject of burial grounds 
(p. 160). This Memorandum does not apply to cemeteries 
under the Public Health Interments Act, which is administered 
entirely by the Local Government Board, but relates mainly to 
churchyards and burial grounds and additions to churchyards 
provided under the Burial Acts or the Church Building Acts. 
With regard to churchyards the freehold is in the incumbent, but 
the parishioners have the right of burial therein, and the manage- 
ment of the churchyard is vested, on behalf of the parishioners, in 
the churchwardens jointly with the incumbent. The minister and 
churchwardens have a discretion in what part of the churchyard the 
parishioner shall be buried, and even an alleged custom for the 
inhabitants of a parish to bury as near as possible to their ancestors 
is bad. Complaints occasionally reach the Home Office from 
parties who consider themselves prejudiced by the selection of the 
site for their relatives' graves, especially in cases of interment under 
the Act of 1880 ; but the Secretary of State has no authority in the 
matter. 

. If an addition to a churchyard is made by public subscription or 
private benefaction he may be, and usually is, vested in trustees, to 
be held and used in the same manner as an existing churchyard, 
and in such cases the additional land is, it is believed, usually 
consecrated under the Consecration of Churchyards Act, 1867. 

Burial grounds may be provided by burial boards, town councils, 
and urban district councils acting as btuial boards, by joint burial 



NOTES AND ILLUSTRATIONS 247 

committees under the Local Government Act of 1894, by parish 
councils acting in execution of the Burial Acts, or by companies 
acting under statutory powers. Except in the last case, such burial 
grounds are generally provided by means of loans raised from the 
Public Works Commissioners or others with the sanction of the 
Treasury or of the Local Government Board Power to take lands 
compulsory for burial purposes is given to the Ecclesiastical Com- 
missioners by the Church Building Acts, to parish councils by 
Section 9 of the Local Government Act, 1894, and to dbtrict 
councils by the Public Health Interments Act of 1879. 

Before the Local Government Act, 1894, it was possible under 
the very wide powers conferred by the Burial Acts for almost any 
area which was not a merely fortuitous collection of houses, but had 
a vestry or meeting in the nature of a vestry, to appoint a burial 
board and provide itself with a burial ground. And as a matter of 
fact grounds were in a large number of cases provided for ecclesi- 
asticarareas with but slight reference to the civil parishes. 

But now in every rural parish the parish meeting, exclusively, has 
the power of adopting the Burial Acts for that parish. When the 
Acts have been adopted by the parish meeting, the parish council, 
if any, will be the authority for the execution of the Acts ; in 
parishes having no parish council the parish meeting can only act as 
the authority if specially authorized by the county council, and, if 
not so authorized, must appoint a burial board under the Acts. 

And with regard to ecclesiastical parishes or districts made up of 
more than one or portions of more than one dvil parish, notwith- 
standing such a district may have had a churchyard or burial ground 
in common for the use of the district, or its ratepayers have cus- 
tomarily met in one vestry for purposes common to all, the vestry 
or meeting in the nature of the vestry can no longer (since the Local 
Government Act, 1894, came into force) proceed under the Burial 
Acts. A burial ground can only be provided for such a parish by 
the separate civil parishes or portions of civil parishes (if such 
portions are portions which under the Burial Acts and Section 7 (4) 
of the Local Government Act, 1894, have the power) adopting the 
Acts severally and concurring in providing a burial ground in 
common. 

Where the Burial Acts were, on the day on which the Local 
Government Act, 1894, came into force, in part only of a rural 
parish, the burial board or the parish meeting for that part may 



248 NOTES AND ILLUSTRATIONS 

transfer the powers, duties, and liabilities of the board to the parish 
council, subject to any conditions with respect to the execution 
thereof by means of a committee as the board or parish meeting 
may think fit 

And further the county council, on the application of a parish 
council, may by order alter the boundaries of the area which was 
under any burial board on the day on which the Local Government 
Act, 1894, came into force. 

But in urban districts it is still the case that a vestry or meeting 
of the nature of a vestry of a parish, whether poor law or ecclesias- 
tical, or of a district for which such meetings have customarily been 
held, can, with the consent of the urban district council, appoint a 
burial board and provide a burial ground. It is possible, therefore, 
in urban districts to give effect to the desire which is not un- 
frequently shown to follow the ecclesiastical lines of division for 
burial purposes even (where the ecclesiastical and civil boundaries 
are distinct It may be considered doubtful whether the multipli- 
cation of separate rating areas which this involves should be en- 
couraged or permitted ; but there is evidence in the Home Office 
that the wish to adopt ecclesiastical divisions for burial purposes, in 
spite of their clashing with civil divisions in a very awkward manner, 
is not uncommon. For example, an application has quite recently 
been received for approval of the setting up of a Burial Board for an 
ecclesiastical district which consists of a part of a rural parish (civil) 
and a small portion of a municipal borough. The Home Office was 
advised that such a Board could not legally be constituted ; and no 
doubt the general tendency of the Act of 1894 will be to cause 
burial districts to coincide with civil divisions. And this tendency 
will not be substantially removed by the powers given by the Act to 
parish councils to unite for purposes of common interest, as, ^^., the 
provision of a burial ground; because there is no direct power 
given to a parish council to unite with the parish meeting of a 
parish which has no council, nor with a burial board. 

31. The importance of efficient locomotive service (p. 163) is in 
respect of (i) the means of intercommunication between different 
parts of a locality for business and recreative purposes; (2) the 
housing of the working classes ; (3) the carrying out of road improve- 
ments ; (4) the provision of cheap and satisfactory means of transit 
of food and other products. 



NOTES AND ILLUSTRATIONS 249 

The Corporation of Folkestone are so interested in the South 
Eastern Railway service that they advertise its advantages to 
intended purchasers of property in Folkestone. The evidence 
collected and published by the Royal Commission on Agriculture 
prove the importance of Light Railways to localities. Many producers 
express their opinion that they are still most unfairly handicapped in 
competition with the foreign producers for the supply of the home 
markets, by reason of the reduced preferential rates conceded by the 
railway companies to the latter. As one witness forcibly put it, the 
struggling fruit-grower in Kent has to suffer the mortification of 
seeing foreign fruit carried by the railway past his farm at rates 
which would not be conceded to him, and of finding his produce, in 
consequence, undersold in the London market. 

The Royal Commission elicited further important evidence as to 
the extensive adoption of light railways in almost every country on the 
Continent, notably in Germany, Belgium^ France, Italy, and Hungary, 
and in the vicinity of large towns, for the cheap and expeditious 
distribution of agricultural products and the encouragement and 
development of agricultural enterprise. 

The description given of the Belgian system may be referred to as 
more or less typical. There are 67 light railways^ from 2 to 35 
miles each in length, in the neighbourhood of most of the principal 
towns. The capital was supplied as follows : — 
By the state to the extent of 27 per cent. 
By the provinces to the extent of 28 per cent. 
By the communes to the extent of 41 per cent. 
By the public to the extent of 4 per cent 

The charge is as low as from 7 to 13 centimes per ton per 
kilometre for ordinary traffic, equivalent to I'l^. and 2*03^. per ton 
per mile. There is also a special rate under which four tons are 
carried all distances for is, 2^//., or for i^d. per kilometre, equivalent 
to about 2^d. per mile. Another special charge is 5^. per ton for 
all distances, or 4 centimes per kilometre, equivalent to about '64^. 
per mile. These railways run alongside the main roads ; they carry 
passengers as well as goods, and farmers travelling as passengers are 
allowed to take with them, free of charge, their small produce for 
sale in the towns. 

32. The power of local authorities in early days with reference to 
buildings (p. 169) is hardly appreciated. Mr. Clifford, in his History 



250 NOTES AND ILLUSTRATIONS 

of Private Legislation (i. 39-30), states that in the reign of Heniy 
VIII. a series of Acts were passed giving remarkable powers to muni- 
dpal^authorities. The wars of succession had probably led to some 
confusion of ownership in towns. Country gentlemen, too, had 
become unwilling or, through want of means, unable to maintain their 
ancient residences in the chief provincial centres. The result was, in 
the year 1540, "that many beautiful houses of habitation" had 
<< fallen down, decayed, and at this day . . . do lie as desolate and 
vacant ground," while other houses were feeble and like to fall, and 
pits, cellars and vaults were uncovered and dangerous (27 Henry 
VIII. cap. I ; 32 Henry VIII. cap. 18 ; 33 Henry VIII. cap. 36). 
Municipalities complained, with reason, that these ruined mansions 
were "a hindrance and impoverishment" to them; that the aban- 
doned sites became no man's land, disturbing to the peace of the 
community. Parliament listened to these representations, and pre- 
scribed a certain period within which owners should restore their 
houses. In their default the lords of whom the land was holden 
were allowed a further time to do so. If they, too, failed, local 
authorities might enter and do all necessary work, and, adds Mr. 
Clifford, " every considerable provincial town in England was thus 
dealt with." 

33. The authority to consult on docks (p. 175) is Mr. L. F. Vemon- 
Harcourt's Harbours and Docks, 1885, 2 vols. It deals with their 
physical features, history, construction, equipment, maintenance, and 
gives statistics as to their commercial development, and very 
valuable plans. 

LECTURE VI 

34. The important principle of taxation according to benefit 
(p. 189) is illustrated by a long series of Acts. Thus special rates 
are leviable for bridges, shire halls, etc., over particular areas in 
certain cases — 1530-1, 22 Henry VIII. cap. 5, bridges. 1815, 55 
George III. cap. 143, bridges. 1826, 7 George IV. cap. 6^, shire 
halls, etc. 1827, 7 and 8 George IV. cap. 31, damage by rioters. 
1S52, 15 and 16 Victoria, cap. 81, county rate in a divided parish. 
See Tkifo Memorandums on Local Government of S. Whitbread, M.P., 
and W. Rathbone, M.P. (ii. 19). 

Sewerage statutes are all upon the principle of benefit. A statute 



NOTES AND ILLUSTRATIONS 251 

of Henry VI. (1427) authorized the Crown to grant commissions to 
make surveys, etc., and to inquire into annoyances resulting from 
ditches, gutters, etc., and by whose default caused, with power to 
distrain for reparations, " so that none should be spared that might 
receive benefit or defence, commodity or safeguard.'' This statute 
was followed by 23 Henry VIII. cap. 5 (1531). And there were 
also special statutes for the metropolis — 3 and 4 Edward VI. cap. 8 
(1549); 13 Elizabeth, cap. 9 (1571); 3 James I. cap. 4 (1605); 

2 William and Mary, cap, 8 (sess. 2), (1691) ; 7 Ann, cap. 10 (1706). 
Under these statutes Special Courts of Sewer Commissioners were 

established. As courts they could bind by their decrees property in 
fee or even entailed property, and by Act of Ann (1706) could sell 
the property if need be to enforce their decrees. 

It was settled law that unless all benefited were assessed to the 
cost of the work the rate or decree for assessment was bad; to such 
an extent was this pushed that it was bad if the assessment did not 
include the King's land. None were to be spared that received 
benefit, even if the benefit were not immediate (Smith v. Wilson, 

3 H. and K, 248). 

The assessment was regarded in the nature of a betterment or 
improvement on the fee of the land (Smith v. Humble, 15 C. B., 
330), and became a first charge, not on the occupier, but on the 
property in the nature of an encumbrance, the tenant having a right 
of deduction (Palmer v. Erith, 14 Mees and W., 428). 

The sewer rate benefits property and is payable by the landlord, 
whether the property is tenanted or not (Holborn and Finsbury 
Sewers Act, 18 George III. cap. Ixvi. p. 8, and the Surrey and 
Kent Sewers Act, 49 George III. cap. 183, sec 36, p. 8). The 
Holborn Act states that it "shall be deemed and taken to be a 
charge upon the premises." It was levied upon the area benefited 
or upon the property benefited : — 

Ana Benefited. — See Surrey and Kent Sewers Act, 49 George III. 
cap. 183, sec. 45, p. 8, Metropolitan Sewers Act, 1848, 11 
and 12 Victoria, cap. cxii. sees. 34 and 76, p. 9, and 
minute of the Metropolitan Commissioners of Sewers, 
issued thereunder, creating a new district in the Metro- 
politan district of Fulham and Hammersmith, p. 10. 
Property Benefited, — See Westminster Sewers Act, 4 and 5 
William IV. cap. xcvi. sec 6, p. 11, Maiylebone Streets 
Act, S3 George III. cap. cxxL sec. 81, p. 12. 



252 NOTES AND ILLUSTRATIONS 

The area benefited had no relationship to parish boundaries, but 
consisted solely of the area of benefit. The unit to govern the 
liability was that of area of benefit, and sec. 8i of Metropolitan 
Commissioners of Sewers Act, ii and 12 Victoria, cap. cxiL, treated 
charge or rate on the same footing. 

The 3 and 4 William IV. cap. 22, is the first Act that established 
differential rating in proportion to benefit derived, and conferred those 
powers on bodies other than commissioners of sewers — the rating 
proceeding on the principle of receiving benefit or avoiding damage. 

By sec. 38 of the Land Drainage Act, 1861, a distinction is drawn 
between rating for improvements in old and in new works, and 
makes the cost of new works exceeding ;;^i,ooo and of all improve- 
ments in old works a special rate and a tax on owners. 

Rating, according to the evidence of experts given before the 
select committee on conservancy boards (371 of 1877), should be 
according to benefit conferred or damage averted by improvements. 
Ridley (Enclosure Commissioner, Qn. 67) — "If I went down and 
said, 'Now this district has derived benefit, we will say, to the 
extent of ;^ioo a year,' I would charge them for that, but if they are 
able to prove on appeal that they have not derived any benefit at all, 
this rate would be quashed.*' Mr. Speaker (Peel), Qn. 349—" It 
appears to me that the taxation should be spread over all, recognising 
the fact that the tax ought to be as proportionate as the damage 
averted is proportionate, or as the benefit received is proportionate." 
Mr. Brendell, C.K, Doncaster, Qn. 1128— 1129 — "All lands that 
would benefit by the improvement of the river should pay a contri- 
bution to meet the general improvement in proportion to the benefit 
received to be determined by an expert." Mr. Williams, Engineer 
of the Severn Navigation Commission, Qn. 1620 — Mr. Tweedtown, 
Clerk of the City of Lincoln, Qn. 191 1 — "My idea is that they 
ought all to be rated, but of course there ought to be a sliding scale 
according as they are respectively benefited." Mills (land agent, 
Derwent), Qn. 2315 — *' I would most decidedly tax them according 
to the benefit which they are supposed to receive." Hawkins (Town 
Clerk of Oxford), Qn. 2760 — 2761 — Sir John Hawkshaw (Civil 
Engineer), Qn. 2795 — "I would rate the district in proportion to 
the benefit that it received as nearly as practicable; it is difficult 
sometimes to apportion the benefit with precision, and my proposition 
embraces to some extent those who occasion the floods as well as 
those who suffer from them." 



NOTES AND ILLUSTRATIONS 253 

PublU and General Benefits and Assessments, — Will be found in 
cases under the Irish Cess Act, 1836, which directs collateral benefits 
to be taken into account as regards roads ; under the Land Drainage 
Act, 1861, and Estate Improvements Act, 1864, in England; the 
Artizans' and Labourers' Dwelling Act, 1868, the Housing of the 
Working Classes Acts, 1885 and 1890, and the report of the Royal 
Commission on the Housing of the Working Classes, see post 
pages 16-23. 

Paving Benefits and Assessments. — Rates were levied under these 
Acts upon the houses situated in the roads paved or repaired, and not 
upon other property in the parish. Local Acts — Bethnal Green, 33 
George III. cap, 88, sec. 50 and 53 ; Southwark, 6 George III. 
cap. 24, sec. 51 ; Westminster, 11 George III. cap. 22 [p. 612]. A 
judgment of the Court of Queen's Bench, on the construction of sec. 
159 of the Metropolis Local Management Act, 1855, laid down in 
the case of the London Docks that the area covered with water, and 
deriving in consequence no benefit from certain local charges, was 
not liable to be assessed for such benefits. 

Lightings Watchingy etc^ Benefits and Assessments. — These rates 
were levied according to benefits conferred, and if none were con- 
ferred no assessment was to be imposed (Hampstead Act). In 
some cases the Acts directly laid down these principles, and gave no 
other directions for assessing the benefits (Stoke Newington Act and 
Hampstead Act). 

In other cases the rates were levied according to benefits conferred, 
and the Acts defined the limit of area, instead of leaving it open to 
the assessing authority to ascertain the nature and extent of the 
benefit, and directed that only properties within a certain distance 
of the road, lighted, watered or watched, were to be considered as 
deriving benefits, and in consequence liable to rate or assessment. 

As illustration of rates levied upon houses in the roads which 
were lighted, etc., or upon houses within a pertain distance of the 
roads in Shoreditch, Camberwell, Hampstead, trustees were enabled 
to rate all houses, etc., situated by the sides of the roads lighted or 
within two hundred yards thereof. In the case of Lambeth, it was 
limited to 500 yards; and in another case in Hampstead, it was 
limited to 100 yards. 

Street Improvements^ Benefits and Assessments. — The Act 13 and 
14 Charles II. cap. 2^ relating to the City of Westminster, passed 
before the Fire of London, contains a provision for chargmg owners 



254 NOTES AND ILLUSTRATIONS 

of property with a capital sum as a rent in consideration of improve- 
ment to their property, it being declared that such property will 
receive much advantage in the value of their rent (seepage 36). The 
18 and 19 Ch. II. cap. 18, relating to the City of London, passed 
after the Fire of London, repeated the same principle, and Mr. Pepys 
in his Diary comments on the application of this principle. By the 
Act relating to St John, Wapping (22 George III. cap. xxxv. sec, 27), 
the trustees are enabled to purchase buildings and lands and make 
and open streets in certain parts of the parish ; section 36 enables 
the trustees to sell surplus lands ; section 40 enables the trustees to 
make rates on houses, etc, within the streets and places opened and 
made under the Act, throwing one-third part of such rates upon the 
landlord, and the remaining two-thirds on the tenant ; section 45 
enacts that empty houses shall be rated at one-third and paid by the 
owners or proprietors; section 54 enables the trustees to borrow 
money by annuities, the security' being the rates made on the 
intended new streets, and the annuities are charged upon such 
rates. 

By the Act 28 George III. cap. 68 (Southwark) the commissioners 
are empowered to open, widen and improve certain streets, the 
particulars of which are set out in section 3, and by section 28 to 
levy an additional rate of 6d. upon the particular division in which 
the streets to be improved are situated, and by sections 31 and 32 
these rates are charged upon the landlords. 

35. The history of the Metropolitan Police Force is a very curious 
one, and worth noting from the point of view of development from 
local to national purposes (p. 200). It was established in 1829. 
The duties of the Horse Patrol and Thames Police were transferred 
to the Metropolitan Police in 1839. The employment of the Metro- 
politan Police in Her Majesty's yards and principal military 
stations outside the Metropolitan Police District was authorized in 
i860. 

In 1829 the district included Westminster and certain specified 
parts of Middlesex, Surrey and Kent, with power, by order in Council, 
to add all parishes^ etc., in the above-named counties, and in Hertford 
and Essex of which any part is within 1 2 miles of Charing Cross. 

In 1839 power was given by Order in Council to extend the 
district to include any part of the Central Criminal Court district, 
except the City of London and the Liberties thereof, and any 



NOTES AND ILLUSTRATIONS 255 

part of any parish, etc., not more than 15 miles from Charing 
Cross. 

An order in Council of 1840 enumerated the places which 
constitute the existing district The district is made up as 
follows : — 

The County of London. 
The County of Middlesex. 
In the County of Surrey the following parishes and places : — 
Addington, Banstead, Barnes, Beddington, Carshalton, Cheam, 
Chessington, Coulsdon, Cuddington, Epsom, Ewell (exclusive of 
Kingswood Liberty and including Worcester Park), Farley, Hamlet 
of Ham with Hatch, Hamlet of Hook, Kew, Kingston-on-Thames, 
Long Ditton, Maldon, Merton, Mitcham, Mordon, Mortlake, 
Moulsey (East and West), Petersham, Richmond, Sanderstead, 
Sutton, Thames Ditton (comprising the Hamlets of Clygate, Ember 
and Weston), Hamlet of Wallington, Warlingham, Wimbledon, and 
Woodmansteme. 

The county borough of Croydon. 

In the county of Herts the following parishes and places: — 
Aldenham (and Hamlet of St. Theobald, Aldenham), East Barnet, 
Bushey, Cheshunt, Chipping Barnet, Northaw, Ridge, Shenley and 
Totteridge. 

In the county of Essex the following parishes and places : — 
Barking (including Chadwell, Great Ilford, and Ripple 
Wards), Chigwell, Chingford, Dagenham, East Ham, Little 
Ilford, Waltham Abbey and town (including the Hamlets of 
Holyfield, Sewardstone and Upshire), Wanstead and Woodford. 
The county borough of West Ham. 

In the county of Kent the following parishes and places: — 
Beckenham, Bexley, Bromley, Chislehurst, Crayford, Down, Erith, 
Farnborough, Foot's Cray, Hayes, Keston, Hamlet of Mottingham, 
North Cray, Orpington, St Mary's Cray, St Paul's Cray, and Wick- 
ham (East and West). 

In 1844 the Police Acts were extended to Trafalgar Square. 
Constables of the Metropolitan Police Force (specially sworn) act 
within the Royal Palaces and ten miles thereof. 

Constables of the Metropolitan Police Force (a number directed 
by the Home Secretary and specially sworn) act within Her Majesty's 
dockyards and principal military stations, and within 15 miles 
thereof. They have full power within the yards and stations, but 



256 NOTES AND ILLUSTRATIONS 

outside them only with respect to Crown property and persons 
subject to discipline. 

The constables of the Metropolitan Police have full, but not 
exclusive, power in the counties of Berkshire and Buckinghamshire. 

Also upon the river Thames within the counties of London, 
Middlesex, Surrey, Berkshire, Essex, and Kent, and within and 
adjoining to the City of London and the Liberties thereof, and in 
and on the creeks, inlets, waters, docks, wharfs, quays and landing 
places thereto adjacent In those parts of the Thames which are 
beyond the district the powers are concurrent with those of the 
county or local police. 

On any special emergency, at the request of the Lord Mayor, a 
Secretary of State may authorize Metropolitan Police to act within 
the City under their own officers. 

Agreements to assist in special emergencies may be made with the 
authorities of other police forces. 

The Commissioner is appointed by the Crown by warrant under 
the sign manual. 

He is a justice of the peace for London, Middlesex, Surrey, 
Hertfordshire, Essex, Kent, Berkshire, and Buckinghamshire, 
although not qualified by estate. He may not act at general or 
quarter sessions, nor in any matter out of sessions, except for the 
preservation of the peace, the prevention of crimes, the detection 
and committal of offenders, and in carrying into execution the pur- 
poses of the Metropolitan Police Acts. 

He can act as a justice only during the continuance of his 
appointment 

Under the directions of a Secretary of State he appoints the 
members of the Metropolitan Police Force. 

He swears in members of the Metropolitan Police Force to act 
within the Royal Palaces and lo miles thereof. 

Under the direction of a Secretary of State he swears in 
members of the Metropolitan Police Force to act in Her Majesty's 
dockyards and principal military stations, and, subject to the approval 
of a Secretary of State, he may replace these by such additional 
constables as may be required. 

He may, if he thinks fit, appoint additional constables, on the 
application and at the cost of private individuals, to keep the peace 
at any place within the Metropolitan Police District. 

Subject to the approbation of a SecreUry of State, he makes 



NOTES AND ILLUSTRATIONS 257 

orders and regulations for the general government of the police 
force ; the places of their residence ; the classification, rank, and 
particular service of the several members ; their distribution and 
inspection; the description of arms, accoutrements, and other 
necessaries to be furnished to them ; and which of them shall be 
provided with horses for the performance of their duty ; and all such 
other orders and regulations relative to the police force as he shall 
deem expedient for preventing neglect or abuse and for rendering 
the force efficient 

There are three Assistant Commissioners, who are appointed in 
the same manner as the Commissioner, have, as justices, the same 
powers, and are subject to the same disqualifications. Under his 
superintendence and control they aid the Commissioner in the dis- 
charge of his various duties, and perform acts and duties in the 
execution of the Police Acts as durected by orders and regulations 
made by the Commissioner with the approbation of a Secretary of 
State. Matters requiring to be done by the Commissioner may be 
done by an Assistant Commissioner nominated and as directed by a 
Secretary of State. In case of a vacancy in the office of Com- 
missioner, or of his illness or absence, an Assistant Commissioner 
may act for him. 

The Receiver of the Metropolitan Police is appointed by the 
Crown. He is subject to the same disqualifications as the Com- 
missioner. 

He receives all moneys applicable to the purposes of the Metro- 
politan Police ; pays all salaries, wages, allowances, and other ex- 
penses incurred in carrying out the Police Acts; makes all con- 
tracts and disbursements necessary for purchasing or renting land 
or buildings, or for erecting, fitting up or repairing any buildings for 
the purposes of the Acts. All police property of whatever nature 
vests in him, and he alone can dispose of it under the direction of 
the Secretary of State. 

He is a corporation sole and has an official seal. 

He has wide powers of acquiring, holding, and disposing of land 
and other property. 

He has compulsory powers of purchase for certain purposes, and 
may borrow for certain purposes on the security of the Police Fund, 
under the Local Loans Act, 1875, or from the London County 
Council. 

All sales, purchases, or leases, etc, by the Receiver and the 

s 



258 NOTES AND ILLUSTRATIONS 

raising of all loans are subject to the approval of a Secretary of 
State, and, in the case of loans, also of the Treasury. 

He has power to 6ell unclaimed stolen property (which has been 
ordered by a magistrate to be delivered to him) after twelve months, 
and carry the proceeds to the Pension Fund 

He is the police authority for the Metropolitan Police District, 
to whom claims for compensation under the Riot (Damages) Act, 
1886, are made. Claims are payable out of the Metropolitan Police 
Rate. 

In addition to his duties in connection with the Metropolitan 
Police Force, the Receiver is also Receiver for the Metropolitan 
Police Courts. 

Money is provided by annual votes of Parliament for the salaries 
of the Commissioner, the Receiver, and of two of the three As- 
sistant Commissioners, but the allowances to the Commissioner and 
Assistant Commissioners for house rent, and the salary of the third 
Assistant Commissioner, are payable out of the Police Fund 

Parliament also provides money for the expenses of the employ- 
ment of constables in Her Majesty's dockyards and military stations. 

The annual sum provided for the expenses of the Metropolitan 
Police Force must not exceed 9//. in the pound on the full annual 
value of all property rateable for the poor in the Metropolitan Police 
District 

Of this sum 5^. is levied by a rate and 4^. is paid out of the 
exchequer contribution. It is deducted from the amount payable 
under the Local Government Act, 1888, out of the local Uxation 
account to the council of each county in the Metropolitan Police 
District in proportion to the amount raised by rate in the county, 
and is paid direct to the Receiver. 

Fines for offences against the Metropolitan Police Acts recovered 
at courts other than Metropolitan Police Courts, and the proceeds 
of licenses for Hackney and stage carriages are also paid to the 
Police Fund 

In 1829 ^^ maximum amount was fixed at 8£, to be raised by 
rate. 

In 1839 a sum not exceeding ^^20,000 was charged on the Con- 
solidated Fund to meet the increased cost of the Metropolitan 
Police, caused by the transfer to them of the duties of the horse 
patrol and Thames police. This sum was transferred from the Con- 
solidated Fund to annual votes by 17 and 18 Vict c. 54. 



NOTES AND ILLUSTRATIONS 259 

In 1868 the maximum annual sum was increased to 9^., of which 
one-fourth was to be contributed by Parliament 

In 1875 the limitation of the parliamentary contribution to one- 
fourth was removed, and the amount contributed was subsequently 
equal to 4^/. in the pound of the rateable value. 

In 1888 the proportion of the expenses of the Metropolitan 
Police, which would have been contributed out of the Exchequer 
under the arrangement in force during 1887, was for the future 
charged upon the exchequer contribution. 

Out of the Metropolitan Police Fund the Receiver pays : — 

(i) The salary of the third Assistant Commissioner and the allow- 
ances for house rent made to the Commissioner and Assistant Com- 
missioners. 

(2) The salaries, wages, and allowances of persons belonging to 
the force. 

(3) Any extraordinary expenses incurred in apprehending of- 
fenders and executing the orders of the Commissioner. 

(4) Such sums as a Secretary of State may direct to be paid to 
members of the force as rewards for extraordinary diligence or 
exertion, or as compensation for injury received in performance of 
duty. 

(5) All other charges and expenses which a Secretary of State 
shall direct to be paid for carrying the Police Acts into execu- 
tion. 

(6) Superannuation allowances, in accordance with the principles 
applicable to the Civil Service, of persons, not being constables, who 
are employed under the Commissioner or Receiver, and whose 
salaries are paid as part of the expenses of the force. 

The Pension Fund was established in 1890. To this fund are 

paid : — 
(a) An annual contribution of ;^i 50,000 under the Local Taxation 

(Customs and Excise) Act, 1890. 
{b) A rateable deduction from pay, not exceeding 2^ per cent per 

annum. 
{c) Stoppages during sickness and fines for misconduct as provided 

by regulations of force. 
{d) The proceeds arising from the sale of unclaimed stolen goods. 
{e) Fines imposed on constables, or for assaults on constables, and 

fines awarded to constables as informers. 
(/) Sums arising from sale of cast-off clothing of force. 



26o NOTES AND ILLUSTRATIONS 

(^) Such proportion of any sum received on account of constables 
whose services have been lent in consideration of payment 
as the police authority may consider to be a fair contribution 
to the pension fund in respect of those constables. 

(h) All dividends, etc., from investments of the pension fund. 

Also, with consent of the authority having control of the fund to 
which the money would otherwise go :— 

(ir) Fees for pedlars and chimney sweeps' certificates. 

(/) All fees payable to any constable of the force. 

{k) Fines for offences under the Licensing Acts, 1872 and 1874. 

This is summarized from Mr. Kemp's memorandum to the Royal 
Commission on London Government, 1894, Appendix, pp. 566-574. 



LECTURE VII 

36. The chaos 'in local taxation (p. 209) may be indicated by the 
entirely different methods adopted for the distribution of the grants 
from Imperial exchequer. These methods are — 

(i) Licences, according to the amount collected within the 
county or county borough areas. 

(2) Estate duties and beer and spirit duty, according to the 

grants actually made to the several local authorities 
within the county and county borough areas in the year 
1887-8, but subject to special adjustment in one or two 
cases. 

(3) Police pension grant, according to an arbitrary decision of 

Parliament founded on no basis beyond the immediate 
requirements of the police. 

(4) Education grant, according to the results of education. 

(5) According to the amotmt of taxation upon agricultural 

lands. 

It is not only that the second and third of these methods are not 
good of themselves, but that they do not act as complements to 
the others. Thus places with the same burden of rates show as 
follows : — 



NOTES AND ILLUSTRATIONS 261 



Ratio per cent. 

of rates to rate* 

able value. 



Ratio per cent. 

of Exchequer 

contributions to 

rateable value. 



Proportion of local 
taxation borne by 
Excbe<iuer con- 
tributions (per 
cent.)! 



G>vei>try. 

Salford .... 

Ipswich .... 

Wigan .... 

Lincoln (county borough . 

Middlesex 

Binningham . 

London .... 



2215 
22*19 
22-38 
2250 

2253 
22*59 
22-68 

23*41 



460 
4*44 
4*45 
3-93 
6*59 
438 
447 
8-87 



17-20 
rt-67 
1658 
14-87 
22*61 
16-24 
16*46 
18-07 



The general result of this system is, that by the criterion of rateable 
value and of local taxation borne by Exchequer contributions London 
receives less than other places of the same burden of rates, and there 
is inequality throughout. Exclusive of the charge for education, a 
Londoner is relieved to the extent of about one-eighth of the amount 
he would have to pay in rates in the absence of Exchequer contribu- 
tions, while an inhabitant of Salop or Westmoreland is relieved to 
the extent of nearly one-third. The ratios between London, county 
boroughs, and counties were, in 1893-4, as follows : — 





Ratio per cent, to total. 




Rateable 
value. 


T/>ca1 
taxation. 


Exchequer 
contnbunons. 


London 

County Boroughs . 
Counties .... 


20-74 
20*41 
58-85 


• 

24-95 
25-11 

4994 


18-45 
22-03 

59-52 


Total . 


100*00 


100-00 


100-00 



37. The early system of taxation dealt with the counties, boroughs, 
and townships, and not with the individual taxpayer (p. 210). 
During the early years after the Conquest there is little information 
on this subject, because of the vast amount of the royal demesnes 
and the feudal dues which made service and work answer the 
purpose of taxation. But in the fourteenth century, the long wars 
with France and the change of economic and political conditions 



262 NOTES AND ILLUSTRATIONS 

produced a change in taxation, and the practice had been introduced 
of assessing the property of earls and barons, and the commonalty of 
counties and towns, to a twentieth, fifteenth, or tenth, according to 
requirements. But the assessment of 1332 produced a significant 
reform. Complaint had been made of oppression, extortion, and 
hardship, and to avoid these "a power was inserted in the writs 
issued for the assessment and collection of the tax, which amounted 
to a direction to the Royal Commissioners to treat with the commu- 
nities of the cities and boroughs, the men of the townships and 
ancient demesne and all others bound to pay the fifteenth and 
tenth, and settle with them a fine or sum to be paid as composition 
for the fifteenth and tenth.'' The sum thus fixed was to be entered 
on the rolls as the assessment of the particular county, borough, or 
township ; and counties, boroughs, and townships were requured to 
assess and collect the amount upon and from the various individual 
contributors. Only in the case of a refusal to compound was the 
machinery of assessment and collection to be enforced. Henceforth, 
from 1334, the sum thus fixed by composition as for the fifteenth 
and tenth granted in 1334 was accepted as the basis of taxation; 
and on the grant of a fifteenth and tenth it was usual to declare that 
they should be levied in the ancient manner according to the 
ancient valuation {Pipe Rolls^ il 447) — that is to say, that there 
should not be any new assessment, but that every particular county 
and town should pay the usual sum, a fifteenth for the county and a 
tenth for the city and borough. In process of time every particular 
county, city, and town assessed and collected the amount charged 
upon it by means of the method they found most convenient to 
them. When less than the sum for a full fifteenth and tenth was 
required, half a fifteenth and tenth was granted, and when a greater 
sum was required, it was granted under the name of two fifteenths and 
tenths, or as the case might be. This practice was continued, in spite of 
attempts to change it, down to modem times, and the Property Tax 
of William III., planted in the same soil, grew gradually to resemble 
the fifteenths and tenths in the form it attained of the fixed Land 
Tax of the eighteenth century. To the present day, at the distance 
of five centuries and a hal^ the consequences of the arrangement 
made in 1334 for the local assessment and collection of the fifteenth . 
and tenth are clearly visible in England (Dowell's Hist, of Taxation^ 
i. 86-88). 
Counties, boroughs, and towns that kept the tax collector out of 



NOTES AND ILLUSTRATIONS 263 

their territory, and handed over to the State certain proportional 
sums of the whole amount required, could apportion the burden 
upon the individual as they deemed it right that it should fall ; that 
they exercised judgment in this matter is known from many examples. 



38. The passage as to Remunerative and Non-Remunerative Rates 
(p. 215) in the Report on Scottish Local Taxation is as follows :— 

In making a comparison of the amount of local rates falling upon 
urban and rural districts respectively, it is of importance that re- 
mimerative should, as far as possible^ be distinguished from non- 
remunerative taxation — many of the new rates being of the nature of 
payment for benefits received, and not so much a burden as an 
investment — e.g.^ lighting of streets, cleansing, paving, etc 

In distinguishing between non-remunerative and remunerative 
taxation I have followed the principle adopted in the English Local 
Taxation Returns some years ago, and have included, in the first 
class, sums levied for the maintenance of a police force (i>., the 
protection of life and property, and preservation of internal peace 
and order) and for the relief of the poor. All other rates have been 
placed in the second class. 

The following Tables show the total amount of Remunerative and 
Non-Remunerative Rates raised in 1848 and 1893 : — 



I. Non-Remunerative Rates, 



Rates. 


Urban Areas. 


Runl Areas. 


X848. 


»893. 


1848. 


1893. 


Poor Law . 

Police (Constabulary) . 


£ 

180.771 
53,373 


£ 
397,962 
180,000 


£ 
284,096 

53,385 


£ 

352,734 
130,000 


Total . 


234,144 


577,962 


337481 


482,734 



264 NOTES AND ILLUSTRATIONS 
II. RemuneraHve Rates. 



T>-. -„ 


Urban Areas. 


Rural Areas. 


Rates. 


1848. 


»893- 


1848. 


X893. 


Total Burgh Rates other than those 
required for Police 


£ 


£ 


£ 


£ 


126,923 


1,541,927 


... 


... 


School Rates falling on Heritors . 






50,000 


.*• 


Ecclesiastical Rates fjdling on Heri- 










tors 


... 


... 


30,000 


34.563 
307,637 


Education Rates under Act of 1872. 


fc.. 


307,628 




District Fishery Boards . 

County Rates (including Roads, but 


•*« 


... 


... 


10490 










excluding Police) 


... 


... 


124.261 


488,536 


Parish Rates other than Poor Relief 










and Education .... 


... 


... 


... 


28,048 


Total 


126,923 


1,849,555 


204,261 


869,274 



INDEX 



Aceounts, local taxation, ii. 
Administrative counties, 67. 
Agricultural Rates Act, 144, 210, 236. 
Agricultural system, primitive, 112. 
Alcoholic liquors, sale of, 146. 
Ashley (Mr.), quoted, 142. 
Attendance, compulsory, at shire courts, 

61. 
Austin (John), definitions of government 

by, 9, 22. 
Authorities, governing, relation of, to 

the electorate, 27, 235. 
Authorities, local, in England, 12-13. 

Baths and washhouses, 155. 

Benefit, common, 119, 120. 

Benefit, doctrine of, 178-207. 

Benefit, taxation according to, 154, 
nS^ 157, 15^169, 189-191, 212, 
216, 250-254. 

Bentham (Jeremy), quoted, 134. 

Billingsgate market, 174. 

Birlaw courts, 1 1 5-1 16. 

Boroughs, municipal, 4, 15, 25, 37, 39, 
75-105, 123, 224, 238. 

Boundaries of boroughs, 97. 

Bread, supply of, 142-144. 

Buildings, control over, by local author- 
ities, 169, 250. 

Burial grounds, 155, 160-162, 246-248. 

By-laws, 115, 119. 

Canterbury, city of, 81, 90, 93. 
Capital, private, demands of, 148, 149, 

150, 152. 
Cathedral closes, 41. 
Children (pauper), authority having 

charge of, 13. 
City organization, 86. 
Coal supply, 145, 



866 



Coke (Lord), quoted, 119. 

Collectivism, 73. 

Co-ownership, 121. 

Cornwall, county of, 59. 

Coroner, office of, 61. 

Corporate action, 121. 

Counties, 4, 15, 36, 37, 39, 42-74, 103. 

County boroughs, 75, 103. 

Crawford birlaw court, 116. 

Cunningham (Professor), quoted, 127, 

132. 
Customaxy law, 24. 

Damage by riot, liability for, 73, 238. 

Danish burghs, 85. 

Definitions, elements of local govern- 
ment, 32-33 ; functions of local 
government, 187-188 ; principles of 
local government, 222-223. 

Detached areas, 40, 236. 

Development, principle of, 28, 192- 
207. 

Devon, county of, 59. 

Dialects, 47. 

Differential taxation, 189-191. 

Districts, 18, 19, 232, 234. 

Ditmarsh community, 122, 243-245. 

Docks and harbours, 150, 151, 154, 

i7Sf 250- 
Dover harbour, 150. 

Ecclesiastical parish, 107, 125-126. 

Economics, public, 176-177. 

Education Act, 6. 

Education, elementary, 159. 

Electorate of local government and 
State government practically the 
same, 3, 22, 24, 27, 29, 224, 225. 

Electric light, 165. 

Elements of local government, 32-33. 



266 INDEX 

Exeter, early position of, 1 6, 85. 

Federal government in relation to local 

government, 2. 
Fire insurance, municipal, 150, 166- 

169. 
Firma burgi, 91. 
Food supply, 143. 
Franchises, the great, 41, 130-177. 
Functions of local government, 7-8, 

130. 

Gas supply, 155, 165. 

Gloucester, property belonging to the 

corporation, 94, 239 ; water supply, 

151. 
Gothenburg system, 146. 
Green (Mrs.), Tattm Ufe^ quoted, 25, 

142, 143. 

Harbours, decay of, 15a 
Herefordshire, shire-moot of, 50-52 ; 

condition of in 16 10, 183, 237. 
House, source of municipal rights, 94, 

240. 
House refuse, removal of, 158-159. 
Hundred, the, 40, 72-74. 
Hungary, county government in, 42. 
Hustings, 63. 

Incorporation of boroughs, 78-82. 
Incorporation of parishes, 113. 

Joint - stock associations, economical 

position of, 139. 
Justices of peace, 62. 

Kent, shire-moot of, 52-57, 64, 237, 

238. 
Kinship by blood, survival of, 88. 

Laisser-fain school of economics, 137. 
Land - owning by municipalities, 92, 

241. 
Lauder, 93. 

Leadenhall market, 17a 
Light railways, 6, 249. 
Lincolnshire, ancient divisions of, 

granted county government, 67. 
Liverpool docks, 151.' 
Locality, definitions of, 15, 20, 21, 128, 

193. 



Local goremment defined, i ; its 

relationship to State government, 4, 

9, 235 ; phases of its history, 17-18 ; 

in relation to Austin's definitions, 

22. 
Locomotion, services of, 162-164, 248- 

249. 
London, dty of, 16, 77, 80, 85, 90, 93, 

94. 100. loi, 105, 123, I44» 150. 

151, 166, 170, 171, 173. »74, a26f 

227, 241-242. 
London, county of, 34, 40, 41, 67, 68, 

69. 100, 105, 124, 125-126, 184, 

190, 191, 193-194. 196, I97i 198, 

199, 202, 225, 233. 
London government reforms, 11, 226- 

231 ; additional authorities suggested, 

232. 
Long Acre, London, suggested origin 

of, 241. 
Lubbock (Sir John), quoted, X42. 

Maine (Sir Henry), quoted, 43, 91, 

115. 
Maitland (Professor), quoted, 46, 60, 

95» 233. 
Man (Isle of), government, 49-50. 
Manorial element in township, 112, 

114, 117, 122. 
Markets, 154, 170-174. 
Middlesex, county of, 40, 63, 241. 
Mill (John Stuart), quoted, 138. 

Officers, county, 70. 

Old age, ancient cruelty towards, 

182-183. 
Open air, assemblies held in, 49, loi. 
Outlawry, by county court, 63, 237. 

Parishes, 5, 15. 37, 39, 100, 106-129, 

195. 
Pawnbroking, 145, 245. 
Penge, in relation to London, 68. 
Police service, administration of, 200- 

202. 
Police, metropolitan, 19, 201, 232-234, 

254-260. 
Pollock (Sir Frederick), quoted, 59, 

"3. 
Poor-law system, 179-186, 202-207. 



INDEX 



267 



Poor-law unions, 18. 

Positive law in relation to local govern- 
ment, 24. 

Pound, village, 115. 

Preston, 93, 94. 

Prisons, administration of, 199-200. 

Private action and public services, 135, 
146, 148. 

Profit, in relation to local services, 153. 

Property, in relation to the community, 
128, 131, 132, 169, 207, 213-214, 
221. 

Punishments, andent, iii. 

Railways, 162. 

Rank, d^rees of, in local authorities, 

38-39. 71, 75, 76, 100. 
Registration counties, 68-69. 1 
Remunerative services, 153, 215, 263- 

264. 
Ridings of Yorkshire granted county 

government, 67. 
Roman influences, 77, 83, 97, 127, 242. 
Russian mir, 89, 237. 

St. Albans, 84. 

Salford, 93. 

Sanctions of local government, 24-27. 

Scotland, 45, 8$, 183, 263-264. 

Seal (common) of counties, 59. 

Seebohm (Mr.), quoted, 43, 112. 

Settlement, law o^ 204-206. 

Sharing of taxation, principle of, 210- 

211. 
Sheriff of London, 242. 
Shires, English, 44-48, 237. 



Shires, small, not equivalent to counties, 

44.237. 
Silchester, 84. 
Skene (Mr.), quoted, 45. 
Socialism, 137, 147. 
Spain, local government in, 235. 
Spelman (Sir Henry), quoted, 162. 
State government, 2, 8, 22, 26, 30, 235. 
Stow's London quoted, 241. 
Stubbs (Bishop), quoted, 113, 118. 

Taxation, 64, 154, 157, 208-222, 262. 

Taxation according to benefit, 154, 155, 
157, 158-169, 189-191, 212, 216. 

Taxation direct, 154, 157, 169. 

Taxation indirect, 154, 157, 170. 

Taxation, imperial, allotted to locali- 
ties, 235-236, 260-261. 

Telephones, 155, 164, 

Townships, 5, 107-113, "3. 243- 

Tramways, 155, 163, 164. 

Tribal influences, 43-47. 236-237. 

Utility, general, doctrine of, 134, 157, 
178-207. 

Vestry, modem, in relation to ancient 
township, 118. 

Water supply, 13, 131, 150. 154. 169, 

24S-246. 
Westminster, Henry HI. and, 242. 
Whitsome birlaw court, 116. 
Wiltshire boroughs, 88-89. 
Wiltshire townships, 109-110. 
Wnchester, 93, 173. 



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