Part 1 — CHAPTER VIII

JUSTICE AND LOCAL GOVERNMENT

I. English Law

175. The Form of the Law.—Statute law takes invariably, of course, written form. The acts of Parliament are to be found in imposing printed collections, to which a substantial volume is added every year. Of the Common Law, however, there is no single or authoritative text. The Common Law grew up originally as unwritten law, and in a large measure it preserves still that character. The sources, however, from which knowledge of it must be drawn are mainly in writing or in print. The most important are (1) the decisions of the judges of the English courts (reported anonymously in Year Books from the reign of Edward I. to that of Henry VIII., and thereafter by lawyers reporting under their own names) which from at least the sixteenth century acquired weight as precedents and are nowadays all but absolutely decisive in analogous cases; (2) the decisions of courts of other countries in which there is administered a law derived from the English, such decisions being, of course, not binding, yet highly influential; and (3) certain "books of authority" written by learned lawyers of earlier times, such as Coke's seventeenth-century Commentary on Littleton's Tenures and Foster's eighteenth-century treatise on Crown Law. Some small branches of the Common Law have, indeed, been codified in the form of statutes, among them the law of partnership, that of sales, and that of bills of exchange.

II. The Inferior Courts

181. Special Borough Arrangements.—The smaller boroughs, having no separate commissions of the peace, are for purposes of criminal justice merely portions of the counties in which they lie. In many of the larger ones, however, there have been set up judicial arrangements in consequence of which the borough is withdrawn from the county jurisdiction. Some have a commission of the peace but no quarter sessions. In them the justices can exercise, in addition to the usual functions of police magistrate, only a summary jurisdiction. Others have a court of quarter sessions; though it is to be observed that where this tribunal exists its work is performed actually by the recorder, a barrister appointed by the crown and paid by the borough.

III. The Higher Courts

183. Supreme Court of Judicature: the Court of Appeals.—The second branch of the Supreme Court of Judicature is the Court of Appeal. This tribunal is composed of the Master of the Rolls and five Lords Justices of Appeal, all appointed by the crown upon the advice of the Lord Chancellor. The presidents of the three divisions of the High Court are also members, but they rarely participate in the work of the court; and since 1891 men who have occupied the office of Chancellor are ex-officio members, although they sit only if they choose to comply with a request of the Chancellor that they do so. The court performs its functions regularly in two sections of three members each, although for some matters the presence of but two judges is required. Sittings are held only in London. The jurisdiction of the court is exclusively appellate, and its business consists very largely in the hearing of appeals in civil cases carried from the High Court. Prior to 1907 there was no general right of appeal in criminal cases. By the Criminal Appeal Act of that year, however, there was established a Court of Criminal Appeal to which any person convicted may appeal on a question of law and, under stipulated conditions, on a question of fact also. This tribunal is composed of the Lord Chief Justice and eight judges of the King's Bench appointed by him with the assent of the Lord Chancellor. It, therefore, has no immediate connection with the Court of Appeal.

IV. Local Government to the Municipal Corporations Act, 1835

185. Periods in Local Governmental History.—No description of a governmental system can be adequate which does not take into account the agencies and modes by which the powers of government are brought close to the people, as well as those by which the people in greater or lesser measure regulate locally their own public affairs. More especially is this true in the instance of a government such as the English in which local self-control is a fundamental rather than an incidental fact. The history of local institutions in England covers an enormous stretch of time, as well as a remarkable breadth of public organization and activity, and by no means its least important phases are those which have appeared in most recent times. Speaking broadly, it may be said to fall into four very unequal periods. The first, extending from the settlement of the Saxons to the Norman Conquest, was marked by the establishment of the distinctive English units of administration—shire, hundred, and township—and by the planting of the principle of broadly popular local control. The second, extending from the Conquest to the fourteenth century, was characterized by a general increase of centralization and a corresponding decrease of local autonomy. The third, extending from the fourteenth century to the adoption of the Local Government Act of 1888, was pre-eminently a period of aristocratic control of local affairs, of government by the same squirearchy which prior to 1832, if not 1867, was accustomed to dominate Parliament. The last period, that from 1888 to the present time, has been notable in a special degree for the democratization and systematization of local governing arrangements which has taken place within it.

186. County and Parish before 1832.—The transformation by which the institutions of local government have been brought to their present status paralleled, and in a large measure sprang from, the revolutionizing of Parliament during the course of the nineteenth century. Two periods of change are especially noteworthy, the one following closely the Reform Act of 1832 and culminating in the adoption of the Municipal Corporations Act of 1835, the other following similarly the Representation of the People Act of 1884 and attaining fruition in the Local Government Act of 1888 and the District and Parish Councils Act of 1894. At the opening of the century rural administration was carried on principally in the shire or county and the civil or "poor law" parish; urban administration in the corporate towns, or municipal boroughs. The counties were fifty-two in number. Most of them were of Saxon origin, although some were the product of absorptions or delimitations which took place in later centuries. The last to be added were those of Wales. Altered often in respect to their precise functions, the counties retained from first to last a large measure of importance, and at the beginning of the nineteenth century they were still the principal areas of local governing activity. From Saxon times to the fourteenth century the dominating figure in county administration was the sheriff, but in the reign of Edward III. justices of the peace were created into whose hands during the ensuing five hundred years substantially all administrative and judicial affairs of the county were drawn. These dignitaries were appointed by the crown, chiefly from the ranks of the smaller landowners and rural clergy, and as a rule they comprised in practice a petty oligarchy whose conduct of public business was inspired by aristocratic, far more than by democratic, ideals.

The principal division of the county was the civil parish, usually but not always identical with the ecclesiastical parish. The governing bodies of the parish were two—the vestry (either open to all rate-payers or composed of elected representatives), which administered general affairs, and the overseers of the poor who under the Elizabethan statute of 1601 were empowered to find employment for the able-bodied poor, to provide other forms of relief as should be required, and to levy a local rate to meet the costs of their work. Since the passage of Gilbert's Act of 1782 the parishes had been arranged in groups for poor-law purposes, and boards of guardians appointed by the justices of the peace had come to be the real authorities in the administration of poor relief, as well as in most other matters. The abuses arising from poor-law administration were not infrequently appalling.

187. The Borough before 1832.—The corporate towns in England and Wales numbered, in 1832, 246. They comprised population centers which, on the basis of charters granted by the crown, had become distinct areas of local government. They did not, however, stand entirely apart from the county and parish organization. On the contrary, except in so far as they were exempted specifically by the terms of their charters, they were subject to the authority of the justices of the peace and of the governing agencies of the parishes within whose jurisdiction they were situated. Their style of government was determined largely by the provisions of their charters, and since these instruments exhibited a marked degree of variety, uniformity of organization was entirely lacking. As a rule, however, the borough was a close corporation, and the burgesses, or "freemen," in whom were vested peculiar trading and fiscal rights and an absolute monopoly of the powers of government, comprised but a small fraction of the general body of citizens. The governing authority of the borough was the town council, whose members were either elected by the freemen or recruited by co-optation. Government was regularly oligarchical and irresponsible; sometimes it was inefficient and corrupt.

V. Local Government Reform, 1835-1912

VI. Local and Central Government

The system of local government as it operates at the present time is by no means free from anomalies, but it exhibits, none the less, an orderliness and a simplicity which were altogether lacking a generation ago. The variety of areas of administration has been lessened, the number of officials has been reduced and their relations have been simplified, the guiding hand of the central authorities in local affairs has been strengthened. Stated briefly, the situation is as follows: the entire kingdom is divided into counties and county boroughs; the counties are subdivided into districts, rural and urban, and boroughs; these are subdivided further into parishes, which are regrouped in poor-law unions; while the city of London is organized after a fashion peculiar to itself. In order to make clear the essentials of the system it will be necessary to allude but briefly to the connection which obtains between the local and central administrative agencies, and to point out the principal features of each of the governmental units named.

VII. Local Government To-day: Rural

194. The Rural District.—Within the administrative county are four kinds of local government areas—rural districts, rural parishes, urban districts, and municipal boroughs. Of rural districts there are in England and Wales 672. They are coterminous, as a rule, with rural poor-law unions, or with the rural portions of unions which are both rural and urban; but they may not comprise parts of more than one county. The governing authority of the district is a council, composed of persons (women being eligible) chosen in most instances triennially by the rural parishes in accordance with population. Unless an order is made to the contrary, one-third retire each year. The members at the same time represent on the board of guardians of the union the parishes from which they have been elected, although the two bodies are legally distinct. The council must meet at least once a month. Its chairman, who during his year of office is ex-officio a justice of the peace, may be chosen from among the councillors or from outside; and the same is true of members of committees. The principal salaried and permanent officials are the clerk, the treasurer, a medical officer, a surveyor, and sanitary inspectors. The functions of the councils pertain, in the main, to the administration of sanitation and of highways. The bodies are responsible largely for the execution in the rural localities of the various public health acts, and they have charge of all highways which are not classed as "main roads." To meet in part the costs of this administration they are empowered to levy district rates.

VIII. Local Government To-day: Urban

198. Kinds of Boroughs.—The Municipal Corporations Act of 1835 made provision for 178 boroughs in England and Wales and stipulated conditions under which the number might be increased from time to time by royal charter. In not a few instances the charters of boroughs at the time existing were of mediæval origin. Since 1875 new charters have been conferred until the number of boroughs has been brought up to approximately 350. For the obtaining of a borough charter no fixed requirement of population is laid down. Each application is considered upon its merits, and while the size and importance of an urban community weigh heavily in the decision other factors not infrequently are influential, with the consequence that some boroughs are very small while some urban centers of size are not yet boroughs. Of the present number of boroughs, seventy-four, or about one-fifth, are county boroughs. By the act of 1888 it was provided that every borough which had or should attain a population of 50,000 should be deemed, for purposes of administration, a separate county, and should therefore be exempt from the supervision exercised over the affairs of the municipal boroughs by the authorities of the administrative counties. Any borough with a population exceeding the figure named may be created a county borough by simple order of the Local Government Board. Unlike the ordinary municipal borough, the county borough is not represented in the council of the county in which the borough lies; on the contrary, the council of the borough exercises substantially an equivalent of the powers exercised normally by the county council, and it is, to all intents and purposes, a council of that variety. Much the larger portion of the English boroughs are, however, simple municipal boroughs, whose activities are subject to a supervision more or less constant upon the part of the county authorities.

199. The Borough Authorities.—The difference between county and municipal boroughs is thus one of degree of local autonomy, not one of forms or agencies of government. The charters of all boroughs have been brought into substantial agreement and the organs of borough control are everywhere the same. The governing authority is the borough council, which consists of councillors, aldermen, and a mayor, sitting as a single body. The councillors, varying in number from nine to upwards of one hundred, are elected by the voters of the borough, either at large or by wards, for three years, and one-third retire annually. The aldermen, equal in number to one-third of the councillors, are chosen by the entire council for six years, and are selected usually from among the councillors of most prolonged experience. The mayor is elected annually by the councillors and aldermen, frequently from their own number. In boroughs of lesser size re-elections are not uncommon. Service in all of the capacities mentioned is unpaid. The council determines its own rules of procedure, and its work is accomplished in large measure through the agency of committees, some of which are required by statute, others of which are created as occasion demands; but, unlike the county council, the council of the borough cannot delegate any of its powers, save those relating to education, to these committees. The mayor presides over the council meetings, serves commonly as an ex-officio member of committees, and represents the municipality upon ceremonial occasions. The office is not one of power, although it is possible for an aggressive and tactful mayor to wield real influence. The permanent officers of the council include a clerk, a treasurer, a medical official, a secretary for education, and a variable number of inspectors and heads of administrative departments.

201. The Government of London.—The unique governmental arrangements of London are the product in part of historical survival and in part of special and comparatively recent legislation. Technically, the "city" of London is still what it has been through centuries, i.e., an area with a government of its own comprising but a single square mile on the left bank of the Thames. By a series of measures covering a period of somewhat more than fifty years, however, the entire region occupied by the densely populated metropolis has been drawn into a closely co-ordinated scheme of local administration. London was untouched by the Municipal Corporations Act of 1835 and the changes by which the governmental system of the present day was brought into being began to be introduced only with the adoption of the Metropolis Management Act of 1855. The government of the city was left unchanged, but the surrounding parishes, hitherto governed independently by their vestries, were at this time brought for certain purposes under the control of a central authority known as the Metropolitan Board of Works. The Local Government Act of 1888 carried the task of organization a stage further. The Board of Works was abolished, extra-city London was transformed into an administrative county of some 120 square miles, and upon the newly created London County Council (elected by the rate-payers) was conferred a varied and highly important group of powers. Finally, in 1899 the London Government Act simplified the situation by sweeping away a mass of surviving authorities and jurisdictions and by creating twenty-eight metropolitan boroughs, each with mayor, aldermen, and councillors such as any provincial borough possesses, though with powers specially defined and, on the side of finance, somewhat restricted. Within each borough are urban parishes, each with its own vestry.