Lectures on the principles of local government; delivered at the London School of Economics, Lent term 1897

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 anything 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 principles 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 accordingly 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.

iS 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 interlineated 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 government 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 shortly 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 community 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 connected 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 classification of the two kinds of local government arises from the historical localities being, and having always been, used for purposes of local government, sometimes 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 influences belonging to the historical localities.

And in point of fact we find that localities formed for special objects instead of all objects of local government 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 community 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 alternative 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 functions 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 introduces the subject of the conflict between private enterprise and government function, and I have -attempted on economical lines to define the principles upon which this conflict should be settled. Private enterprise is an undertaking for the common benefit 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 consumer alike. That the first has its legitimate range of exercise no economist can deny, and that this range extends into provinces wrhich 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 important 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 questions 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 extending 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 centuries back in the past is the true locality within which common benefit from new functions of local government 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 unalterable 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

INTRODUCTION ix

government to allow for this process of development. This process is examined in some detail, and its importance 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 examined 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, therefore, 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 capable. 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 surveyed in the present series.

I can scarcely close this introduction without thanking 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. Preliminary : 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 influences—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 government considered : the term local — localities properly so-called — product 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 — importance of this in matters of future development — the sanctions for governing — legal sanctions — dependence upon State justice and police — difference between ancient and modern 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. Relationship of the two classes of local government: local government properly so-called has acted as a model for quasi-local government — legislative theories ; 6. Relationship 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-called: 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 — relationship of the military shire to the tribal shire — formation of a shire system of polity — brings with it many ancient tribal customs — formation 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 registration 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 organization—burgessship — burgesses and manorial tenants — comparison with Russia — conditions of burgessship — growth of burghal

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community — land-owning rights of municipalities — tenement and lands are one holding — ancient examples — charter 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 — continuity of burghal government — close connection between territorium and communitas— 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 — evidence from Wiltshire and south-east England — locality not formed for administrative purposes — consists of enough land to make each community independent — the agricultural system which belonged to this community— 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 communitas— right 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 — Summary: 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 — modern 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, indirect, or according to benefit — the relation of the services to taxation — compulsory nature of the service is the crucial pointprivate 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 — cemeteries, 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 — economical 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 development of services — parish services — county services — case of London — instances of development of local services into national services —

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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 government— present system of Imperial and local taxation — not correlated— absence of information concerning — principle of taxation is co-sharing of taxpayers — extent of co-sharing of Imperial taxes — of local taxes — complexity of the latter — early system of taxation was according to benefit — 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 — classification of the benefits according to the systems of taxation — benefits accrue to property.

I

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 remembered, 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 unfortunately 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 administered by authorities subordinate to the State authority, but elected, independently of control by the State authority, by qualified persons resident, or having 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 considerations which it suggests.

This definition does not apply to State government in federation, such as the government of Austria and of Hungary under the Austro- Hungarian 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 jurisdiction 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, 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 derives 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 extensions. These are due to the legislative activity of the past hundred years. It will be found that legislation has not been favourable to the development 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 attributes of State government, and a tendency towards a State development has been stopped by the attributes 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 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 community of persons who originated it. The institutions of Anglo-Saxon and mediaeval Britain would entirely sanction this statement, and in more primitive 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 legislative 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 annulled"— 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 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 township ; 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 historical 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 Qziasi- 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.

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 witnessed 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 functions 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 government created from time to time have seldom or ever been determined upon a settled plan or principle, either writh 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 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 Parliament in order to possess, or which they might conjointly attempt to obtain the sanction of Parliament 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 authorities. 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.