Who Governs Whom, and How

When wide areas come under a single government, certain powers must be delegated to local subordinate bodies, or the work cannot possibly be performed at all. The question for us to determine is, what functions should be delegated? and to whom should they be delegated? In scientific phraseology, what are the proper structures and functions of local governing bodies? How are the areas to be defined? How are the individuals within those areas to be represented? To what extent, if any, should they be permitted to act independently and arbitrarily.

It is customary for local government reformers to begin with the areas, and having determined these, and arranged a representative system, to fit out the authorities so constituted with suitable duties. This is not the method which science would prescribe. Rather let us first discover the matters which, while they must be accomplished somehow, cannot well fall within the province of the Imperial Government on the one hand, nor command the resources of private enterprise on the other. This can best be done, not by mapping out in theory all the whole duty of society, and then distributing it on some a priori plan, but by ascertaining what duties are actually at the present day undertaken by the central authority in this and other countries, and what by the local authorities. By comparing these with the functions of local governments in the past we obtain a fair view of the field which history and experience have marked out as the proper sphere of local governmental action. We find that many of such duties and whole classes of them have long since passed out of the domain of local government. Some of them have been taken over by the State, others have become obsolete, while others again have been appropriated by private adventure. On the other hand, to compensate local authorities for the loss of these functions, new ones have been freely conferred upon them in this country. If the counties are no longer the custodians of the prisons, they are compensated for the lost privilege by being entrusted with the guardianship of the health of the cattle of the district. The county is likewise empowered to keep an eye on billiard players, ballet dancers, alcohol drinkers, and lunatics. It is entrusted with the carrying out of the Weights and Measures Act and of the Adulteration Acts. It supervises knackers’ [horse-​butchers] yards, and grants conditional licenses to game dealers, to pawnbrokers, to dynamite sellers, and some other traders. The county also provides a section of the police, for which it is in part responsible. It is liable for the maintenance of certain roads and of certain bridges, and of shire halls and other semi-​public buildings.

Besides the county we have in England several other areas of local government of one sort and another. There is the Parish; there is the Union; there is the Municipal Borough; and there is the Local Government district, besides a number of areas mapped out in accordance with special objects, such as Highway Districts, Improvement Act Districts, etc. The functions of these authorities are very various. They supplement the work of the counties in providing police, in maintaining roads and bridges and lunatic asylums; they are concerned with the drainage of land and the prevention of floods. They comprise sanitation, education, registration, vaccination; the provision of cemeteries, libraries, museums, washhouses, baths, playgrounds, etc.; the supply of gas, water, electricity, and certain conveyances; all these duties in addition to the great work of poor relief. Over and above these matters of more or less universal interest, there are special concerns proper to certain localities, such as the duties of fishery boards and the maintenance of docks, piers, harbours, and embankments.

This survey is, of course, very superficial and incomplete, but it is sufficient for the purpose of showing that the duties, of local authorities do not seem of themselves to carve out areas in common; that is to say, there is no particular reason why the area requiring a separate authority to see to cattle disease should be the same area for which a highway board is required or separate provision for lunatics. The parish might be a suitable area for the registration of births and deaths, and at the same time most unsuitable for the construction of tramways. For the maintenance of main roads one would almost suppose the best area would be coextensive with the island. So the Romans thought. While for the purposes of gas or water supply the municipal borough would seem the most suitable. Police, prisons, paupers, and lunatics, again, appear to have no particular relation to any definite locality. The dispensation of justice is an imperial concern. The pauper has no claim on any locality; poor relief is not a forced tribute of pity from neighbours, but a sop to revolution, a bribe to those who would otherwise have the choice only between starvation and crime. Hence it is not a provincial concern. So the lunatic, like the criminal, is dangerous to the whole community, and like the criminal must be looked after for the general good.

Other areas, like the old acre, seem to be determined by the amount of work of a given kind that a busy man can get through in a given time. Such are the areas most suitable for registration, vaccination, and inspection. Others again are determined by nature, such as fishery boards and harbour authorities. The river basin would likewise seem to demarcate the area of drainage boards. For the purpose of churches, schools, libraries, museums, baths, wash-​houses, parks, cemeteries, etc. etc., the area would naturally adjust itself to the amount of time required to get to them with convenience. People cannot be expected to walk four miles to a public wash-​house, or ten miles to a park. Half a mile seems to be about the limit of the radius from the polling-​booth beyond which the patriotism of the parliamentary voter is put to a considerable strain. Country churches and schools seem to draw for a radius of about two miles. But all such points can be ascertained only by that experience in each particular case which private enterprise alone seems able to supply.

One thing seems certain. The arbitrary creation of an area for no better reason than because it has a name, and the endowing of the authorities of such an area with duties, is opposed to all the teachings of nature and of science, and can lead to no better result than mischief and confusion. Rather than adopt such a system, let there be as many areas as there are functions; let them overlap over and over again. Why not? A gas company feels no inconvenience from the fact that its area of supply overlaps that of the neighbouring water company. Neither has a railway company ever been known to complain that the area to which its powers apply is not so coextensive with the county or counties in which it lies. What grounds are there for any such complaint? And yet when these and the like functions are undertaken, not by private individuals and companies, but by local authorities, there arises an outcry that the areas of exploitation should be identical. Why those persons whose common educational needs are peculiar to their district should also necessarily require peculiar railway accommodation, is a puzzle to all who are unacquainted with local authorities in general, and the raw material from which they are manufactured. If highway boards were composed of men peculiarly conversant with roads and road management, it is not likely they would claim to supply the inhabitants of the highway district with milk or with gas; but being, as they are, merely unqualified persons recruited from the ranks of the busybodies. and possessed of unbounded confidence in their own administrative abilities, they are accustomed to find themselves sitting together, not only on the highway board, but likewise on the school board, the board of guardians, and, perchance, round some other table of fussy officialism. Now why, they ask one another, cannot we transact all the public business in one place and at one time as they do in Parliament? Why, asks Smith, am I entrusted with the management of the affairs of the vestry, if I am not fit for a seat on the school board? It never occurs to him that he may have considerable acquaintance with the people of the parish and their requirements as to wash-​houses and gas-​lamps without possessing even the rudiments of a sound education, or any knowledge of educational needs. In fine, so far from being an evil, the overlapping of areas is natural, and, as will be seen, an unmixed good.

The localisation of government must always be in response to a distinctly seen demand. The reason for it must be apparent and easily explained. The area must be, as it were, self-​determined, and not artificially carved out. Thus the Isle of Man should not form part of the same highway district as Cumberland or Wigtownshire. Why not? Because there is a sea voyage of some hours between them, and because the two regions have no roads in common. For like reasons a municipal borough is a natural self-​defined area of self-​government (so far as local administration can be called self-​government); and the difficulty consists not so much in discovering that such a town, for instance, as Leeds, has peculiar interests which are not shared by Wakefield or Bradford, as in determining where the actual limits of Leeds should be drawn; where, that is to say, the suburban population seem to have more in common with the surrounding country than, by reason of their distance from the centre, they have with the town. That because a region is called Nottinghamshire it should have a little Parliament of its own to which should be entrusted all conceivable local duties is the height of absurdity. If a county happened to be completely surrounded by a chain of mountains, or other barrier which cut it off from the adjacent country, there might be some reason in regarding it as for some purposes a suitable area for local government; but surely the accidental fact of its having been separated from the adjoining districts by an artificial line for some forgotten reason by a Saxon King is no ground at all. Voluntary combination should in all cases be the precursor of political segregation. Co-​operation is coextensive with common needs. People do not combine aimlessly, or because they live in the same wapentake. Indeed, there would be no reason for granting local government at all, but for the trouble and difficulty of interpreting and administering the general law on every occasion from a distant centre. Private enterprise can, and will, affect all that is good and lawful for any local area which is ripe for it.

There is only one thing which private enterprise cannot do, or rather which it is prohibited from doing, and that is the coercion of the minority—of the unwilling—of those who, while they will not contribute towards the common end, yet reap part of the advantage of it at the expense of the majority. Clearly, if nearly all the inhabitants of a street determined to light that street with gas, those who refused to contribute would, nevertheless, have the benefit of a well-​lit street. Similarly with paving, draining, and many other things. Left to themselves, the majority in the locality would say to these non-​unionists, “You are unwilling to live among us on terms of mutual assistance, and the common sharing of burdens and advantages; you had better go.” And go they would.’ But this is not tolerated by the larger majority outside. The minority in the locality is in the majority in the country in this matter of freedom of combination. Local anarchy would solve the problem. Instead of which a certain amount of State socialism takes its place. Compulsory co-​operation is sanctioned by the State under certain conditions which are expressed in general terms. The application of these laws to the numerous special eases which arise in all parts of the country requires either a very large and unwieldy central machinery or some kind of local administration. And herein lies the folly of advocating local legislation. If local authorities are to be permitted to legislate independently, it is clear we are brought back to the original position of local anarchy. If a majority can pass a law of a general nature, it can equally well pass a law of a special nature, and order at once the unwilling minority to quit. Indeed, it needs but a little thought to perceive clearly that local legislation is absurd. The interpretation of State law may be left in the first instance to local authorities; in fact, private enterprise already claims that right; as, for instance, when a man removes a hurdle from across a public footpath with his own hands. But if the other party has no right of appeal, then we have again the original situation, for the power of irresponsible interpretation is virtually the power of independent legislation. Hence, it appears, all so-​called local legislation should be, in reality, central legislation, administered either by State constituted local authorities or by an association of private individuals. If the law is exceeded, the local authorities have acted ultra vires, and their action is invalidated. If the law is conformed with, the private association has vindicated the law, and its action will stand.

Thus the highest form of local government is one of complete and unqualified private enterprise. If, for example, the State considers that the laying down of private rails on the public highway in the shape of tramways is really a public good, it is justified in passing a general enactment to that effect, subject to certain specified conditions, among which may be the tacit consent of a given proportion of the inhabitants (or certain of them) of the districts through which the line passes. The tramway company under such a State law would then proceed to lay down its lines without necessarily asking the leave of any one, and if no one could raise a valid objection, or, being able, had not the energy or public spirit to do it, the company would proceed with its business, to the great advantage of some and the annoyance of others. If the people of a district have not the combining instinct and the public spirit to associate themselves together for common ends, the more they are left to suffer for the defect and to develop the instinct the better for themselves and the whole race….The local authority, whether State recognised or self-​appointed, and the individual with whom it is at issue, must be regarded as, in all respects, upon an equal footing….If local laws can of themselves operate to the detriment of any individual in the district, then clearly they conflict with the law of the land which guarantees that individual the full enjoyment of all liberties which are not therein expressly restricted. It is hardly necessary to add that I do not put forward this doctrine of the Individualisation of Local Government as a system to be adopted all at once; but merely as an ideal to be kept in view and gradually approached. In its entirety it is rather the system of the remote than of the near future. It is probable that even England is hardly ripe for it yet….

To apply some of these conclusions to practical questions of the day: Local areas should be left to the natural delimitation of voluntary combinations. And areas should overlap as naturally as the areas of ordinary trade distribution. Above all, the areas should not be carved out first and the functions allotted after. Such a course is the very reverse of scientific. The powers of local authorities should, in no respect, exceed those of ordinary voluntary associations. Consequently, local bye-​laws cannot conflict with the law of the land. For the right of the majority in a locality is not based on the superior force of the majority in that locality, but on the superior force of the effective majority in the country of which it is a part, which force is delegated (for reasons which seem good to such effective majority) to the numerical majority or other portion of the inhabitants of the said district. This is an important fact not to be forgotten. Thus the local majority has no more right to act on its own initiative than the local minority; or than the policeman who carries out the will of the State; or than the private individual who interferes in the interest of law and justice in a row at a fair. They must all take the responsibility of their actions. It may be said, and truly, that if the State in its wisdom thinks fit to enact that the will of the majority in a given locality shall in all matters prevail, then the will of the majority in that locality is as supreme and as well based on ultimate force as the will of the effective majority in the country itself; being, in fact, based on the will of that majority. This is so. And the same is also true of any less general, though equally indefinite, delegation of State power to a local majority. Thus the indefinite power to do what it chooses in respect of such or such matters; as, for instance, all matters relating to the trade in alcoholic liquors; or to the hours of closing in retail shops; or to the regulation of places of public amusement; puts the local majority in respect of these matters in the same position that it would occupy if the locality were an independent one. The minority forfeit the liberty which belongs to them by virtue of being members of the larger community. The whole process is, to whatever extent it is carried, one of political disintegration.

And what is the remedy for all this? Must we revert to a system of centralisation? Not at all. Quite the reverse. Decentralise down to the unit itself, the individual. Does Smith find the house adjoining his own a source of annoyance to him? Is there noise and singing there all night? Is it the centre of attraction for disreputable persons whose presence is dangerous to him? Let him prove the nuisance and suppress it, if he can. If not, let him betake himself elsewhere. If several persons in one street find a public-​house in that street or near to it a continual source of drunkenness and of temptation to their servants, or otherwise obnoxious to them, let them prove the nuisance and suppress the house. If I keep a pig in my back garden and nobody feels injured by it, why should I alter my arrangements? But if my neighbours or any of them find the smell objectionable, or fear the sanitary consequences, let them or any of them prove the nuisance and suppress my pig-​stye. But it is asked, how is the nuisance to be proved? It is not enough in a Court of Justice to show that the neighbours or some of them, or even all of them, object to the thing complained of. That does not constitute it a nuisance. Your house may be painted in the worst possible taste, utterly hateful to the eyes of your neighbours, but they are powerless to compel you to alter it. The church bell next door may go near to distracting me, but I have no remedy by merely showing that I am subjected to great annoyance. But if the annoyance is caused not by a church bell but by my next door neighbour’s organ, I may get the nuisance abated. Now unless the opinion of the majority of the locality is to be taken, how is the question of nuisance to be settled by the courts?

In reply to this the question may be asked, and how is it to be settled when the opinion of the majority is taken? The majority of whom? According as you carve out your localities into large or small areas, so you strengthen or render precarious the rights and liberties of individual citizens. Suppose a locality should decide to eject all persons professing religious opinions at variance with those held by the majority, would the State be justified in deserting the minority and leaving them to the tender mercies of a clique who might themselves be in a decided minority in the country, though locally in a majority? Suppose a majority of the inhabitants of Cork decided to prohibit the opening of a retail shop in that town by an Englishman, would the State be justified in permitting such an act of tyranny? Similarly, if the people of some obscure town should pronounce in favour of closing all houses for the sale of tobacco or cheese or alcoholic liquors, with or without compensation to the traders affected, could this be tolerated? With injustice and tyranny on the one side, and the effective force on the other, what conceivable reason can be adduced for putting up with the injustice? Of course if the effective majority in the country themselves choose to act unjustly, tyrannically, and foolishly, there is no power on earth to stop it. We have reached the ultimate source of power and it is poisoned. So much the worse. But when there is an appeal to a higher power, the surrender of such power into the hands of local majorities is nothing less than political suicide; it is voluntary political disintegration….

We have but to look abroad to see how different has been the behaviour of foreign states. While we have been sleepily creating new difficulties for future statesmen and lawyers to remove, French and Prussian and Italian statesmen and lawyers have been straining the resources of strong governments to assimilate the laws of the different provinces under their sway, with a view to removing all possible sources of dispute and envy, and to “maintaining and invigorating the principle of national unity.”…

This laxity on the part of Englishmen to accomplish what other nations in face of immeasurably greater obstacles have either effected or come near to effecting may perhaps be attributed to the comparative stability of England’s internal economy, but the true explanation is the absorption of the national energy in the direction of increasing mass, at the expense of coordination, just as in the case of a growing child Nature applies herself with such zeal to growth as to neglect form and proportion. When the full size has been approximately attained, then the awkward, gawky movements are less and less observable, and the limbs respond more smoothly, deftly, and gracefully to the stimulus from headquarters. The time has now arrived for England to pay less attention to the extension of her boundaries and more attention to the unification of her parts. It is for her to discover and perfect a political system workable over a world-​wide area, avoiding centralisation on the one hand and disintegration on the other. This can be done only by a careful sifting of central and of local functions, whether the subordinate locality be a wide colony or a compact borough; whether it be situated at the Antipodes or on the banks of the Thames.

This is the great problem for the Anglo-​Saxon people. I believe the mathematical genius who once demarcated London for certain fiscal purposes performed the operation with the aid of a map and a pair of compasses. Not far behind him in arbitrariness come those who would erect Wales into a separate province on the strength of a historic name, a half-​dead language, and an annual Eisteddfod of sentimentalists. The Welsh are a fine people, but there are probably more of them in England than in Wales, and there are more people of English descent in Wales than there are of pure Welsh. Again, beyond the artificially bolstered-​up system of Scotch law there is little or nothing to justify the drawing of a political boundary line between England and Scotland. Whether the Northumbrians are more akin to the Lowland Scotch or to the people of Devonshire or Kent is a question for ethnographers. If the Scotch law is in some respects, whether in substance or procedure, better than our own, why should we rest content with the inferior? And if in other respects English is better than Scotch law, clearly some persons in Scotland, if a minority, have a right to require that which deals justice. The case of Ireland, with the exception of certain recent legislation of a local and temporary character, presents fewer difficulties. Most of the English law, both common and statute, extends to Ireland, and if half the ingenuity which has been spent in differentiating the two legal systems had been expended on their assimilation, their unification would long since have been accomplished. The reckless way in which tiny dependencies like Gibraltar, Heligoland, the Channel Islands, and the Isle of Man have been permitted to make laws, not of a merely local effect, but conflicting with what should be the law of the whole empire, is remarkable. A like carelessness is noticeable in the United States of America (though to a diminishing extent). The New York Civil Code is a particularly feeble attempt at the codification of the English Common Law by utterly incompetent persons. But whether codification is desirable or practicable, or neither, in no way affects the importance of maintaining an identical legal system for the whole of Anglo-​Saxondom. At the same time it is idle to pretend that this can be effected until some philosophical distinction has been drawn between matters which are in themselves local and matters which necessarily concern the whole empire. The application of the principles underlying this distinction is the great problem for the English-​speaking peoples of to-​day. Until this is done, all attempts at codification of the law are foredoomed to failure, all efforts, however benevolently conceived, towards the “conciliation ” of discontented brandies of the British Empire (whether in regions populated by Hindus, or by Dutch Boers, or by French Canadians, or by Scotch or Irish Celts, or by any of the numerous races of the world who for good or ill are destined to flourish or to perish under the Anglo-​Saxon social system) are and will be vain and futile.

The art of government is making a new departure. A new day has dawned for humanity. The triumph of democracy is complete; and imperial law must henceforth be based on individual and local liberty.