George Laurence Gomme.

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LOCAL INSTITUTIONS





THE LIBRARY

OF
THE UNIVERSITY

OF CALIFORNIA
LOS ANGELES



The Book- Lover's Library

Edited by
Henry B. Whcatley, F.S.A.



THE LITERATURE



OF



LOCAL INSTITUTIONS



BY

GEO. LAURENCE GOMME, F.S.A.



LONDON
ELLIOT STOCK, 62 PATERNOSTER ROW

1886



College
Library



L8Q56

PREFACE.



The interest of this little -work to book-lovers
ill, I hope, be twofold. At a time when local
muniments are being examined and edited, and
at last preserved from the wholesale destruction
of past years ; and when the Bill in the present
session of Parliament for the enfranchisement of
Copyholds provides by one of its clauses that the
whole of the most important class of historical
documents in this kingdom, namely, the manor
rolls, shall be delivered up to the world of
letters, it is time for the book-lover to take stock
of what has been already accomplished towards
printing these and other records.

A furtJier result of this little work is that
the book-lover is able to place at the disposal
of thinking men some idea of the extent of
the literattire of local institutions; and, by indi-
cating how important that literature is, to urge
that it should not be neglected now that current



1157506



vi Preface.

thought is so much occupied -with the question
of reform in local government.

Local institutions have been the subject of
study "with me for many years, and I had hoped
ere this to have published a long-projected
volume dealing with their early history in this
country j but my many avocations, official and
private, have prevented this cherished idea ever
being completed. The materials collected for
this undertaking, however, are of great value;
and t/ie books which have from time to time
been consulted, form a branch of literature
which is now being fully recognised as perhaps
the only source of information on the social
manners and customs of the people in tJie past.
Nothing had ever been done to bring this litera-
ture together until, in 1882, in the BIBLIO-
GRAPHER, / gave some instalments of the
subject. The interest excited by these papers
encouraged me to proceed in collecting and de-
scribing books on the literature of local institu-
tions, and the present volume is the result of
these labours.

It is useless to hope that my collection of titles



Preface. vii

is absolutely complete so many books of this class
have been privately printed, or else printed for
purely local purposes, and have hence not found
their way into the general market. The British
Museum is notoriously deficient in this branch
of literature. I have in nearly all cases con-
sulted and itsed each work referred to. To
many of the titles I have given special biblio-
graphical information. Where such information
is not given, it is generally because no practical
good would come of such information. In
some instances I am indebted to kind friends
for references to out-of-the-way works, and I
must particularly mention, at the risk of being
invidious, Mr. J. Newman, Mr. IV. Macmath,
Mr. R. B. Prosser, Miss Lucy Toulmin Smith,
and the late Professor Stanley Jevons and Mr.
Cornelius Walford. My visits to the libraries
of the two last-mentioned scholars and book-
lovers will not be easily forgotten ; and it was
this subject which first took me thither.

Of the faults, both of commission and omis-
sion, in this book, I trust a kindly view may
be taken ; and for any information helping



viii Preface.

me to fill up gaps, or correct errors, I shall be
deeply thankful. Even as I go to the press, too
late for insertion in their proper places, two -very
interesting additions may be made to the litera-
ture of local institutions, namely, a translation
of Gneist's great work, which is mentioned on
page 13, and Miss Toulmin Smith's edition of
Lady Caroline Kerrisorfs Commonplace Book of
the ijth century.



Barnes, S.W.



THE LITERATURE OF LOCAL
INSTITUTIONS.



INTRODUCTION.

ENGLISHMEN of the nineteenth century are
just as active in the " making of England "
as their ancestors were in the early period to
which the title of Mr. Green's famous book
refers. And it must ever be so : the means
and process differ as the ages differ ; but it
must be a question of making England
until that period arrives when the down-
ward progress commences. Closely con-
nected with this continuity of development
are the powers and privileges of local
government. When the Saxon conquerors
of Britain carved out the boundaries of our
modern shires by their ethnic settlements;
when they settled down in their several
village communities, they were solving in
their own fashion the only one then

n



2 The Literature of

possible the future of local government
in England. Shire- and hundred- and
township-government went on developing
under native Saxon rule, until the progress
of political events declared the necessity for
strong central government. The up-growth
of Saxon kingship and sovereignty was
the result of this inevitable and inexor-
able necessity ; but Saxon kingship and
sovereignty, even aided by the Roman in-
fluences still extant, could not answer all
needs. The time came when the exigencies
of the constantly pressing events demanded
the surrender of much of the powers of
local government to the central govern-
ment. And the Norman conquest marks
very strongly the age of this surrender.

I do not think it is too much to affirm
that the central authority has been built
up by taking to itself, one by one, or bit
by bit, all the powers which originally
belonged to local authorities. The process
has been a long one, and very insidious ;
and it has been greatly aided by the
uniform persistence of one of the most



Local Institutions. 3

remarkable of legal fictions. All English,
and indeed all European, jurists have
ever had before them the splendid legal
system of Rome ; the lawyer's education
begins with the study of Roman law, and
he has never had any professional occasion
to consult the barbarian codes which mark
the true beginnings of English law. All
legal history, in point of fact, lay outside
his knowledge or requirements, and hence
all legal theory has been developed from
the finished system of a civilised code of
law. When, therefore, the analytical
jurist came to consider the momentous
question of the origin of law, he could
only see before him the central sovereign
power which lent its sanction to the
carrying out of the behests of the law, and
he very easily identified law with the
coercive force of the sovereign power. The
terminology of this definition is, of course,
borrowed from the modern authority of
John Austin, but the maxim it represents is
to be found throughout the legal authori-
ties of the middle ages, and has lain at the

B 2



4 The Literature of

root of all legislation. It was the grand
fiction which the Norman lawyers worked
upon, and to which Norman power owes
more than half its enormous sway. When
William the Norman came to these shores
he found strong local centres of power,
already tending to decay, it is true, but
still strong. He did not sweep away these
local centres, but he gave them charters
and taught them to believe that the
sovereign was the source of all their legal
authority. The peace of the land became
the "king's peace". The law became
<% king's law". Justice became " king's
justice". The courts became " king's
courts", and the judges who sat there be-
came the servants of the crown in theory,
if not in fact. All the local jurisdictions
leaned towards the central powers. Lords
of manors, with the old rights of " sac and
soc", surrendered their lands and had them
regranted, or they forfeited them and thus
allowed them to become the actual regrant
of the sovereign to faithful adherents and
followers.



Local Institutions. 5

This, stated shortly, is the process which
has been going on in England since the
Norman conquest, and it has witnessed
the total surrender of all legal rights to the
central authority, the final stage being
marked, perhaps, by tne transfer in 1877 of
local prisons to the authority of the Central
Home Department.

It is not a little curious to the student,
knowing this to have been the true course
of events in the history of local institutions,
to observe how ministers and political re-
formers, of all sides and all shades of
opinion, appear before the public to advo-
cate the conferring by Parliament of the
blessings of local government upon the
English people. To read some of the
speeches of the foremost politicians in
England, it would seem as if, from their
own sense of what was required for the
government of a country, they had wisely
decided that, at last, local institutions
should be founded. And yet what a
mockery such a proposition is. Nearly all
that is now being urged as appertaining to



6 The Literature of

the privileges of a newly created system of
local government local option, land allot-
ments, county boards, and other important
subjects has always belonged to the old
local institutions, and has never been taken
away from them by any legal or constitu-
tional enactment. The insidious legal
doctrines already spoken of have, however,
done the work of the ruthless destroyer
most effectually; and when the Municipal
Reform Act of 1835 was passed amid ac-
clamation as a distinctly popular measure,
people did not know that its very first
clause was, perhaps, the only parliamentary
enactment which cut at the root of the
very municipal institutions which later on
were to be advocated so forcibly. This
clause is as follows :

"'Whereas divers Bodies Corporate at sundry
Times have 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 it is ex-
pedient that the Charters by which the said
Bodies Corporate are constituted should be
altered in the manner hereinafter mentioned' ;
be it therefore enacted by the King's most Ex-



Local Institutions : 7

cellent Majesty, by and with the advice and
consent of the Lords, Spiritual and Temporal,
and Commons, in this present Parliament
assembled, and by the Authority of the same,
That so much of all Laws, Statutes and Usages,
and so much of all Royal and other Charters,
Grants and Letters Patent now in force relating
to the several Boroughs named in the Schedules
(A) and (B) to this Act annexed, or to the Inha-
bitants thereof, or to the several Bodies or
reputed Bodies Corporate named in the said
Schedules, or any of them, as are inconsistent
with or contrary to the Provisions of this Act,
shall be and the same are hereby repealed and
annulled."

If this enactment does not actually abro-
gate all old municipal rights, and that I
suppose is open to legal argument upon
the question as to what is inconsistent with
the act, it does so virtually, because it has
taught municipalities to look to Parliament
for all their powers. And yet, if they were
to look beyond their charters and their
Acts of Parliament, they would find that of
old such rights as local option, and much
more than we now include under that
term, had a place in their rights and privi-
leges, as may be seen from the records of



8 The Literature of

such towns as Dundee, 1 Sandwich, 2 Not-
tingham, 3 Chesterfield, 4 and even London
herself ; they would find that at one time
in our history municipal boroughs ap-
peared as land-owning communities, where
every freeman had his right to a share in
municipal lands, where the community
could resume the ownership of the land
upon the death of a present owner, and
where the community had almost absolute
power over a great deal of the real property
in its area; 5 they would find, in short, in
the history of local institutions, that most
of the powers now proposed to be conferred
as a blessing at the hands of this or that
political party, already exist, but have been
lying dormant and unused as portions of a
social system which has become obsolete.
If, therefore, the history of local institu-

1 Cf. Maxwell's History of Old Dundee.
3 Cf. Boys's History of Sandwich.
8 Nottingham Borough Records.

* Chesterfield Botough Records and Mr. Yeatman's
Introduction.

* Some of the details of this I have set out in
Archizologia, vol. xlvi, pp. 403-422; in Antiquary, vol.
ix, pp. 157-162.



Local Institutions. 9

tions point to such interesting facts as these
facts which may guide modern politics in
its course is it well to ignore it so persis-
tently ? or at all events is it not a mere
matter of ordinary wisdom that we should
make ourselves acquainted with it before
trying our 'prentice hand upon a machinery
so delicate as national institutions ? In
answer to these very obvious questions
arising only from this necessarily very short
survey of the subject, the following notes
have been put together. They are practi-
cally the working materials by which I
have studied the subject for many years past
the skeleton, which I hope one day may
be clothed in such a manner as to bring
before us a true picture of the past, but which
in the meantime may help to serve the
purpose of those who take an intelligent
view of the object and aims of future legis-
lation. In addition to this primary object,
there is the feeling that the notice of these
books, old and new, may form a not unin-
teresting fragment of a book-lover's library.
All of them have had human hands at work



lo The Literature of

upon them, most of them have occupied
the attention of some of our best thinkers,
many of them are the product of good
sound scholars and bookmen, who turned
their attention to such a concrete subject
because they knew, as we ought to know,
that to think properly and wisely of the
future we ought to know of the past. And
there is much, very much, of human inte-
rest in this subject. Municipal and town
records tell of men as well as of institutions ;
and occasionally these men who took active
parts in the government of their native
places are of such universal interest as John
Shakespeare (the father of our poet), who
successively filled the posts of ale-taster,
assessor, burgess, constable, chamberlain,
alderman, and high sheriff at Stratford-
upon-Avon. Many of the municipal officers
of London became the founders of great
and distinguished county families an
interesting fact, which has scarcely received
the attention it deserves. 1 And when we

1 Pennant touches upon this subject in his Tour
through London ; and Defoe, in his Tour through
England, draws special attention to it



Local Institutions. \ I

add to these phases of our subject that the
church formed the centre of local life,
that the holidays were holy days, that
all festivals were church festivals, that
the overseers and churchwardens are one of
the bodies corporate who administer parish
matters, and that the registers, account
books, etc., of these bodies are our chief and
sometimes only means of obtaining infor-
mation on the most important and interest-
ing phases of family and social history in
the past, it will be admitted that the sub-
ject has far wider interest than at first sight
would appear. Before the days of "Regis-
trars-General," parish registers existed, and
everyone knows how universally these have
been recognised as documents of the greatest
value. Almost all the secular usefulness of
the church has now departed, but it is still
a question whether Englishmen will allow
that institution to drop out of the sphere
of local government without a struggle to
make it again an instrument for good in the
daily life of the people. By spiritualising it
overmuch we have lost its grand secular in-



12 Local Institutions.

fluences for good ; but the English village,
or town, or city, is still crowned by the
church edifice to make it complete in pic-
turesque outline; and if we knew all about
old English village life, old English local
government, we should yet make it the
centre and head of local life in the future.

I must guard myself against the supposi-
tion that the following pages are intended
to give an exhaustive account of the litera-
ture of local institutions. They aim only
at pointing out how extensive that litera-
ture is; what are the best guides to learn
the history of any particular section of the
subject; and to urge, in the strongest possible
terms, that it is not well to cast all this
literature on one side as useless for future
guidance.



I. LOCAL INSTITUTIONS GENERALLY.

SOME important books have appeared upon
the local institutions of England taken
as a whole, and so important has the sub-
ject been to foreign students, that it is a
curious fact that the best account is written
by a foreigner, and remains still in its
foreign language, viz. : Gneist's Geschichte
und heutige Gestalt der englischen Com-
munalverfassung. Professor Kovolefsky,
of Moscow, has been investigating the
subject recently, and he expressed his great
surprise to me that so little attention was
paid to it by Englishmen. The result of
his labours may, it is hoped, soon see the
light, and there may be some chance, per-
haps, of putting it into an English dress.
But by far the most interesting studies are
those which have lately been engaging the
attention of American students. The Johns
Hopkins University has instituted a series



14 Local Institutions

of studies on historical and political science,
under the able editorship of Mr. Herbert
B. Adams. In this series have been inves-
tigated the local institutions of Virginia
and Maryland ; dealing with the land
system, the hundred, the parish, the county,
and the town. From these two very im-
portant books are to be gained some most
instructive lessons as to the application of
the principles of the local institutions of
England in the seventeenth century to an
entirely new country and settlement ; and
it is greatly to be hoped that the university
authorities, more alive to the requirements
of the age than the authorities in England,
will pursue these studies, until they have
exhausted the rich and varied evidence
which must be forthcoming.

The following are the principal works on
the general history and principles of local
government in England. I have not in-
cluded the many treatises on government
in general, nor those on political economy,
though, of course, in both these studies the
question of the relationship of the central



Generally. 1 5

to local authorities is discussed. Mr. Mill's
Representative Government (1861, 8vo)
should be particularly consulted. Still
there is not much to be said when one has
digested all that is contained in the books
specially devoted to the subject.

The archaeological interest of the subject
may be gathered from the following :

Smith (Sir Thomas), The Commonwealth of
England, and the manner and Government
thereof, with new additions of the chiefe
courts in England, and the offices thereof.
London, printed by Will. Stansby for J.
Smethwicke, and are to be sold at his shop
in Saint Dunstanes Church- Yard. 1633.
i2mo, 5 leaves, pp. 285.

This was first published in 1583, and many
editions followed. The chapters relating to
Local Government are as follows : Of the
parts of Shires called Hundreds, Lathes,
Rapes and Wapentakes, of the Court Baron,
of the Leet or Law day, of the proceedings of
causes criminall and first of the Justices of
Peace, of Hue and Cry and Recognisance
taken upon them that may give evidence, of
the Coroners, of the Constables.
Officers : In this Boke is conteyned ye office of
Shyriffes, Baylyffesof Lybertyes, Escheatours,
Constables and Coroners, and shewethe what



1 6 Local Institutions

everye one of them may do by vertue of theyr
oflfyces drawen out of bokes of the comen
lawe of the statutes. Black letter, no date.
I2mo, pp. 154 (not numbered).

Freeman (E. A.), Comparative Politics. Lon-
don, 1873. 8vo, pp. ix, 522.

Gomme (George Laurence), Primitive Folk-
Moots ; or, Open-air Assemblies in Britain.
London, 1880. 8vo, pp. xi, 316. [An historical
treatise on the earliest forms of local assem-
blies.]

On the history and development of local
government the following are works of im-
portance :

Chalmers (M.D.) Local Government [The Eng-
lish Citizen : his rights and rasponsibilities].
London, 1883. 8vo, pp. viii, 160.

Contents : Cap. i. Introductory, ii. Gene-
ral View. iii. The Parish, iv. The Union,
v. The Municipal Borough, vi. The County,
vii. The Sanitary District, viii. The School
District, ix. The Highway Area. x. The
Metropolis, xi. General Control.

Cobden Club Essays : Local Government and
Taxation. Edited by J. W. Probyn. London,
1875. 8vo > PP- 454-

Contents : Local Government in Eng-
land, by Hon. George C. Brodrick. Local



Generally. 17

Government and Taxation in Scotland, by
Alexander M'Neel-Caird. Local Govern-
ment and Taxation in Ireland, by W. Neilson
Hancock. Local Government and Taxation
in the Australian Colonies and New Zealand,
by Sir C. Dilke, Thomas Webb Ware and W.
H. Archer. The Provincial and Communal
Institutions of Belgium and Holland, byEmile
de Laveleye. Local Government in France,
by le Comte de Franqueville. Local Govern-
ment and Taxation in Russia, by Ashton
Wentworth Dilke. Local Government and
Taxation in Spain, by Senor Moret y Pren-
dergast. Local Government considered in its
Historical Development in Germany and
England, with special reference to Recent
Legislation on the subject in Prussia, by R.
B. D. Morier.

Cobden Club Essays : Local Government and
Taxation in the United Kingdom. Edited
by J. W. Probyn. London, 1882. 8vo, pp. vi,
520.

Contents:- Local Government in England,
by the Hon. George C. Brodrick. County
Boards, by C. T. D. Acland. The Areas of
Rural Government, by Lord Edmond Fitz-
Maurice. London Government, and how to
Reform it, by J. F. B. Firth. Municipal
Boroughs and Urban Districts, by J. Thack-
ray Bunce. Local Government and Taxation
in Ireland, by Richard O'Shaughnessy.
Local Government and Taxation in Scotland,

c



1 8 Local Institutions

by William Macdonald. Local Taxation in
England and Wales, by J. Roland Phillips.

Gneist (Dr. Rudolf), Geschichte und heutige
Gestalt der Englischen Communalverfassung
oder des Self-Government. Berlin, 1863. 2
yols. 8vo, pp. xxi, 682; 683-1398, and index
31 pp. [A valuable contribution to the his-
tory and statistics of local self-government in
England.]

Contents : Historical Development of
the English Local Constitution. Present Lo-
cal Constitution in England and Wales :
Jurisdiction and Officers, Local Taxation,
Civil Jurisdiction of the County, Criminal
and Police Constitution of the County, Muni-
cipal Constitution, Military, Parochial, Poor
Law, Sanitary, Bridges and Highways, Law
of Corporations. Theory of Self-Govern-
ment.

Smith (J. Toulmin), Local Self-Government and
Centralisation : the characteristics of each,
and its practical tendencies as affecting social,
moral, and political welfare and progress, in-
cluding comprehensive outlines of the Eng-
lish Constitution. London, 1851. 8vo, pp.
vi, 409.

Local Self-Government Unmystified :

a vindication of common sense, human na-
ture, and practical improvements against the
Manifesto of Centralism put forth at the
Social Science Association, 1857. Second
edition. London, 1857. 8vo, pp iv, 128.



Generally. 1 9

On matters of statistics and modern facts
the most important works are :

Goschen (George J.), Reports and Speeches on
Local Government and Taxation. London,
1872. 8vo, pp. vi, 218.

Local Government Board, Reports of the. Pre-
sented to both Houses of Parliament by
command of Her Majesty. London, 1872-
85. 14 vols., 8vo.

Local Taxation Returns [pursuant to Act 23 and
24 Viet., c. 51). Twenty parts, folio. House
of Commons, 1862-81.

Local Taxes of the United Kingdom, contain-
ing a Digest of the Law, with a summary of
statistical information concerning the several
Local Taxes in England, Scotland, and Ire-
land. Published under the direction of the
Poor - Law Commissioners. London, 1846
pp. vi, 278

Rath bone (VVm.) and Sam. Whitbread, Local
Government : Memorandum No. i, General
View; Memorandum No. 2, Law, with Refer-
ences. (Privately printed, 1877.) Two parts
folio, pp. 42 ; 75. [These contain exceedingly
valuable information, both of reference and
of facts, which is arranged analytically under
the following heads : (i) Existing Units of
Local Government; (2) Matters which are
Locally Administered ; (3) Local Taxation


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Online LibraryGeorge Laurence GommeThe literature of local institutions → online text (page 1 of 12)