fyxmll mnxvmit^ §ihxm^ BOUGH'i WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF Henrg m. Sage 1891 JS3611 .mm" ""'™™'*'' '■"'""^ English local government ot to-da' olin 3 1924 030 542 629 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030542629 STUDIES IN HISTORY ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY VOLUME NINTH COLUMBIA UNIVERSITY JBtto pnri 1897-1898 CONTENTS PAGE English Local Government of To-Day. A Study of the Relations of Central and Local Government. — Milo Roy Mamie, Ph.D. . ... ... i German Wage Theories. A History of their Develop- ment.— ^««m W. Crook, Ph. D. 297 The Centralization of Administration in New York '&'i\i%.— John Archibald Fairlie, Ph. D. . . . 411 I ENGLISH LOCAL GOVERNMENT OF TO-DAY STUDIES IN HISTORY. ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY IN THE CITY or NEW YORK Volume IX] [Number 1 ENGLISH LOCAL GOVERNMENT 0F:;T0-DAY A STUDY OF THE EELATIOJl^S OF CENTRAL AI^D LOCAL GOYERNMENT BT MILO ROY MALTBIE, Ph.D. Sometime University Fellow in Administrative Law COLUMBIA UNIVERSITY JBeiD porfe 1897 TABLE OF CONTENTS CHAPTER I Introduction PAGE The relation of local and central government in the United States . . 13 Origin of the problem 13 Causes of its present importance 14 The position of the city undetermined 14 Necessity of determining its exact statns 15 The problem of central control 16 Unsolved problems of central administrative control 16 Experience of continental countries of little practical utility to us . . . 17 Similarity of English and American Institutions 17 Transformation in English local government within the present century. 18 Local self government inefficient ... 18 Movements towards administrative centralization 19 Inherited opposition to centralization 19 Scope of the present study 20 Reasons for the exclusion of the Metropolis 21 Purpose and outline of (he plan of study 22 CHAPTER II Poor Law Administration General remarks 24 The Central Administrative Authority 25 Constitution 25 Competence of Local Government Board extended 26 Subordinate officers — powers, duties, salaries 26 Complete control of the central authority 27 Limitations few 28 Financial powers 29 Powers relating to local acts 29 Power over local areas 30 Powers regarding local authorities 32 Extensive and beneficial exercise of authority 32 Quasi judicial powers ' 34 Recent decentralization 34 Comprehensive powers of inquiry 35 How the Board is kept within its proper sphere 36 Methods used to guarantee local execution of laws and orders .... 36 The pre eminent importance of the central authority 38 Effect upon Pauperism 38 Conditions prior to 1834 38 The transformation wrought by the Act of 1834 40 (V) vi CONTENTS PAGE A Statistical measure of the great reform 4° Causes of inefficient administration 4' Statutory principles regarding the granting of relief not the principal • cause 42 Efficient administration possible 42 Some abuses due to a disregard of statutes 43 Minor defects in the laws 44 Influence of erroneous ideas 44 Defective administrative system the chief cause of inefficiency .... 45 The provisions of the Act of 1834 which are not a part of the plan of central control are unimportant 4^ Central administrative control the chief factor 47 Causes of reform 48 Importance of social, economic and political forces ......... 49 Educational influence of the central authority 49 Local indifference and antagonism 50 Tlie effect of the transfer of responsibility from local to central authorities. 5 1 Flexibihty a prominent characteristic of the system 53 Benefits of a permanent commission 54 Effect upon local officers of the transfer of responsibility to a central authority 56 Lack of uniformity prior to 1834 57 Extent of transformation 59 Importance of uniformity 60 Continuity produced 60 Relative importance of the causes of reform 61 Present relation of central control to efficient administration 62 Complete decentralization inadvisable 64 CHAPTER III Public Health and Local Government I. History. Meaning and scope of " Public Health and Local Government "... 65 Recent origin of sanitary problems 66 Poor rehef and public health administration contrasted 67 Administrative system prior to 1848 68 Sanitary condition of England 6q Causes of the introduction of central control 170 General Board of Health constituted nj Methods of applying the Act of 1848 .'.'!." 71 Other powers of the central authority »2 Competence of local authorities ! ' 72 Reaction against central control ! . i 7^ Defects ot the Act !..'.!!' 74 Opposition of private interests ! ! ! 7c Limited application of the Act '.!!".!. 76 Effect upon death-rate ! ! ! ! 77 Poor relief and public health contrasted '...',.. 78 Legislation of 1854 and 1857 ^g Provisions of the •' Local Government Act, 1858" 79 Absence of central coercive power go Inactivity of the central authorities go Tendency towards centralization again manifest 80 Defaulting authorities — Acts of 1866, 1868, 1869 81 CONl^ENTS Vii PAGE Local independence again proven a failure 8l The Acts of 1848 and 1866 compared 82 The utter lack of a uniform system 83 Centralization of control *. 84 Condition of local administration 85 The present system established 86 Central Aulhority, In general 87 Quasi -legislative powers 87 Varied competence of district councils 88 Powers of the Local Government Board ... 89 Decentralization provided for 92 Appellate jurisdiction of the Board 92 Powefs of the Board of Agriculture, the Secretary of State, and the Board of Trade 92 The practical working of these provisions 94 Powers relating to local areas and boundaries 94 Importance of these provisions 96 Power over local acts 97 Approval of by laws 97 Beneficial results attained 99 Power over local officers 100 The theoretical justificalion of this control loi The practical operation of the plan loi Powers relating to defaulting authorities 104 Actual interference unnecessary except in a few instances 106 The far reaching influence of the control I06 Similar powers possessed by central authorities other than the Local Government Board 107 Quasi judicial powers 108 Effects of Central Control. Death-rates as indices of sanitary conditions no Decrease in mortality in urban centers, its extent and causes in Its economic importance . . . 112 Greatest decrease found in cases most influenced by sanitary conditions. 112 Great improvement in sanitary conditions 114 The importance of central administrative control as a cause 114 Other beneficial results of central control 115 CHAPTER IV Police Central control wanting prior to 1856 117 The local constabulary entirely inefficient 118 Reasons for the introduction of central control 119 Provisions of the Act of 1856 ... 120 Government subsidies and central control, the important ideas .... 121 Subsequent statutory changes of minor importance . . 122 Sudden decrease in the number of forces reported inefficient 123 The great improvement of the constabulary 125 The increasing requirements of the standard of efficiency 125 The present system not a mere formality 127 The relations of the Secretary of State to the inspectors 128 Independence of inspectors a result of central responsibility . ... 129 The decisions of inspectors followed by the Secretary of State .... 130 viii CONTENTS FAGB Causes of the great improvement since 1856 '3' Government aid of little effect without central control . '3' Importance of factors unconnected with central control '3* Central administrative control the chief cause '33 CHAPTER V Elementary Education " Elementary Education " defined '34 Central control principally confined to this field '34 1. History of the Period Prior to 1870. Early conditions of educational administration '3" Provisions relating to education in factory laws '37 Enforcement by local authorities a failure '37 Application of factory laws extended '3° Central and local administration compared '39 Conditional grants instituted in 1833 140 The Education Department created '4' The conditions according to which aid was distributed 14' The characteristics of the time 142 Amounts and kinds of grants extended '43 The fundamental principle at the basis of the regulations 144 Individual examination by the inspectors introduced 145 Great opposition aroused 146 Resum6 of the period 147 The principal defect of the syptem 148 2. Recent Development and Present Status , 148 a. Conditional Grants. Few limitations upon the power of the Department as to the granting of aid. 149 Fee grants substituted for school fees 150 The Code more important than the statutes 151 A summary of the provisions of the present Code 151 Method of distributing the subsidy 153 The competence of the inspectors 154 Characteristic features of the present Code 154 The recent increase in grants, both in amounts and kinds 154 "Payment by results" modified 155 The increasing importance of inspectors 156 The powerful influence of conditional grants — its limitations 157 Mere formality not a characteristic of the system 158 i. Compulsory Education A question for each locality to decide by the Act of 1870 159 Lack of uniformity and efficiency a consequence 160 Employment of children restricted, 1876 160 School attendance committees established 161 Need of central control 162 The powers of the Education Department 162 The present system not perfect but improving 163 t. Defa ult of Local Authorities. Power of the Department lo establish school boards 164 Method of dealing with those already established 165 Definition of "default" 165 The system extended to apply to school attendance committees .... 166 Local initiative a failure 166 Beneficial effects of central control v 167 CONTENTS IX FAGB The reasons for the large number of boards established compulsorily . . i68 The fear of central interference kept the number of boards in default low. 169 The explanation of the small number of attendance committees in default. 170 How the establishment and maintenance of unnecessary schools is pre- vented 171 Minor powers of the Education Department 172 Past and Present Conditions, The different epochs to be considered 173 The condition of education in the 4th decade 173 Marked improvement brought about before 1870 174 Wonderful development since 1870 175 Statistical measures of comparison 176 The decrease of illiteracy 177 Conditional grants the important cause of improvement prior to 1870 . 178 The minor influence of factory legislation , 179 The direct and indirect effects of conditional grants 179 Central control the important cause of recent development 180 CHAPTER VI Local Finance — Expenditure Historical development of central control over local finance ..... 182 Rates. Central control exercised indirectly 183 Direct central supervision lacking 184 Property. Different methods of granting financial powers 184 The indirect control of the central departments 185 Central control over the various local authorities 185-188 The fundamental principle staled 189 Other restrictions upon the powers of local authorities 189 Expenditure — Loans. General remarks 189 Statutory limitations upon the borrowing power 190 By whom enforced 191 Approval by a central authority necessary to render a loan valid ... 191 The extent and importance of the control shown 191-195 A double control provided 195 The general rule stated 195 Effects of Control. Two distinct periods in the history of local finance 196 The characterisiics of each 196 Present tendencies 198 General principles as to the period of repayment 198 The policy of the Ixcal Government Board stated 199 The real attitude of the Board considered 199 Its restrictive influence 200 The superiority of administrative to legislative control whether exercised through general or special acts 201 The attitude of Parliament changed owing to the influence of the Board. 202 Effect of central control as to other financial matters 203 Indirect control also effective ... . . . • 24 Has central control prevented improper loans and indebtedness , . . . 206 The opinion of Mr. G. H. Blunden 206 Statistics as to ratable value and indebtedness 208 X CONTENTS PAGE Distribulion according to local authorities 208 Classified according to purposes of loans 209 Principal items of receipts for 1893-4 209 Rates assessed by principal local authorities 210 Rates not excessive, debt not burdensome 210 5. Influence of Local Legislation. Power of Parliament to pass local acts 2IO Local legislation as to financial matters, a recent growth 211 Evils of the plan ^" Beneficial results secured by the Local Government Board 212 An extremely large portion of local indebtedness authorized by local acts. 213 The effects of the plan upon the attitude of the Local Government Board. 214 Resume -'S CHAPTER VII Central Audit Without central audit, the system of central control would be defective. 216 The poor laws chosen as the principal field for study ........ 217 1. Ci nditions Treviotts to 183^. Local audit provided for by the 43d Elizabeth 217 Subsequent minor changes 218 Defects of the system 219 Inefficiency its chief characteristic 219 2. Reform of the Poor Law Amendment Act. The introduction of central audit impossible 220 Provisions of the Act of 1834 221 Powers of the Poor Law Commissioners 221 The actual control exercised by the central authority 223 The feeling of local responsibility still prevalent 224 Districts too small and salaries too low 225 Efficient audit still wanting 226 Some improvement secured 227 3. Subsequent Development and Present Status. Method of removal of auditors unchanged 227 Method of appointment changed in 1844 227 A decided improvement the result Z28 Auditors appointed by the Local Government Board at present .... 229 Auditors' districts enlarged and salaries increased 229 Method of payment centralized 230 Indirect increase in the powers of the auditors 231 Important changes made in 1848 231 Control of the Local Government Board over the auditors 232 Constant increase in their sphere of activity 232 The powers of the justices as to appeals limited 233 Appeal permitted to the Court of the Queen's Bench 233 Concurrent jurisdiction given to the Poor Law Board 234 Importance of the powers thus conferred 235 Independent position of the auditors 236 Their personal efficiency unquestioned 236 The actual position of thfe Local Government Board concerning appeals. 237 Appeal permitted before accounts are audited 238 The law not rigorously enforced by the Board 239 Vast improvement under central audit 240 CONTENTS xi FAGB CHAPTER VIII Special Legislation Importance of the subject in the United Stares 242 The conclusion to be drawn from American experience 243 The fundamental plan of the English system 244 Historical development of the functions of local government 244 Methods of dealing with local bills 245 " Clauses acts " instituted . . ; 246 The advantages and disadvantages of the plan 246 Defects in the systems of enacting local bills 247 Results of improper consideration 247 Expenses enormous 24S Classification of the acts passed by Parliament , . . . . 249 The large number of local acts 249 The relation of Parliament to the central departments 250 The advantages of the English system of granting powers 252 Its practical results highly beneficial 252 Statistics of general and local acts 254 The moderate increase of local acts 254 This due to central administrative control 255 Beneficial results attending the plan of submitting bills to the considera- tion of the central departments 256 Can special legislation be entirely removed ? 258 English conditions not ideal, but much better than American 259 CHAPTER IX The Theory of Central Administrative Control The provisions of the acts establishing central control classified .... 260 The logical basis of "conditional grants" 261 Their existence probably not permanent 262 Is decentralization possible? . . 262 The justific.iiion of the ordinance power 263 Modern changes in the sphere, purposes and ends of the State . . . 264 The inefficiency of local selfgovernment 264 The relative spheres of local and central governments are variable, not permanent .... 265 No general rule as to decentralization of ordinance power 265 The theoretical basis of the power of approval 266 The quasi-judicial powers of the central departments justified . . . 267, 269 Decentralization inadvisable in most cases 268 Powers over authorities in default justified 269 These powers not incompatible with local self government in its true sphere . . ... 27 1 The educational powers of the central departments . . . . 27I Are there exceptions to the general system of central control? . . 271 The position of the parish defined 272 The status of the county council 273 The limited competence of the borou!;h council 273 The borough council and urban district council compared 274 Resume —Central administrative control permanent 276 Bibliography 279 ABBREVIATIONS Besides those in common use, the following abbreviations will be found in the foot- notes : L. G. B Local Government Board. P. L. A. A Poor Law Amendment Act. P. L. B .... Poor Law Board. P. L. C Poor Law Commissioners. P. L. Com Poor Law Commission, 1832-4. Reg. Gen Registrar General. Rep. of Com. (Chap. V.) Report of the Committee of Privy Council on Education. S. P Sessional Papers. V Victoria. Note, — The page references in the footnotes to documents found in the Ses- sional Papers are not to the page of the volume specified, but to the page of the document which is found in that volume. For example, Rep. of P. L. C, S. P., 1846, Vol. 19, p. 13, means that the subject referred to will be found upon page 13 of the Report of the Poor Law Commissioners, which is in volume 19 of the Sessional Papers for 1846. If there is any doubt as to the document referred to, the table of contents of the volume will decide the matter. This method of quot- ing references has been made necessary by the fact that the documents are not paged consecutively. Each is independent of the others. (xii) CHAPTER I INTRODUCTION The present practical problems of American public law are largely administrative. The spheres of the national and commonwealth governments were delimited by the Civil War, and the delimitation then reached has been recognized by subsequent legislation. The relation of commonwealth and local governments now demands our attention, and a solution of the problem becomes more urgent as each year passes. The origin of the problem is comparatively recent. In the early years of our history the need of a careful delimitation of the spheres of local authorities and a determination of their relations to each other and to the state government, was very slight. But the last hundred years have witnessed most radical changes. The functions of government have increased enormously. In the period of early frontier life, the activity of the local government was almost limited to the protection of life and property. Indeed, frequent reliance was placed upon the individual himself to act as his own guardian. Soon, however, schools were established, high- ways constructed, and as population increased, other func- tions were assumed by the localities. It was not, however, until cities sprang up that the subject assumes its greatest importance. The various gigantic municipal enterprises of the present day — waterworks, street railways, gas and electric lighting, parks and commons, paved streets, public libraries and museums, sewerage systems, fire departments — ^were largely unknown fifty or one hundred years ago. 13] »3 14 ENGLISH LOCAL GOVERNMENT [14 ■ The reasons are two-fold. The great increase of popu- lation, not in numbers but in density, is largely the cause of the widening competence of local authorities. The effect of the great,er density of population has been felt not only in the cities but also in the towns and counties. Further, local areas of the same population as formerly now have more functions to perform. Activities once considered as belong- ing to private individuals are now commonly recognized as governmental. Just as population increased and the com- petence of local authorities broadened, producing more lia- bility of conflict, to the same extent did the importance of constructing a proper legal theory of the relation of local authorities to each other, and to the state government par- ticularly, increase. If, as is usually believed, the highest point of development has not yet been reached, our duty to the future makes a solution of the problem still more imper- ative. Every victory won in the direction of civil service reform removes an objection to a still further increase in governmental functions and magnifies the importance of the problem. The relations of the town, the county, the school district and the village, one to the other, have been quite success- fully worked out, but their relation to the state government has not been so satisfactorily determined. The most import- ant problem, however, is the exact status of the city, its rela- tion to the town, the county and the state. We have, in- deed, some idea of what the city's position actually is. We have little idea, however, of what it ought to be. The con- flicting decisions of the courts, the contradictory statements of municipal reformers, and the disastrous results of the present methods of central control, prove that there is no consensus of opinion and that our present theory, if we can be said to have any theory, is not satisfactory. The cry, " Home Rule for Cities," which we hear so frequently, is 1 5 ] JNTR OD VCTION 1 5 meaningless and misleading unless we know what the proper position of the city really is ; and the various projects being furthered under this maxim only reflect the lack of any com- monly accepted theory. The necessity of determining the exact position of the city is urgent. How can it be expected that good munici- pal government will be secured, as long as those who are striving to attain it do not know what the subject is with which they are dealing? It is time that the municipal chemist cast the refractory ore into his crucible and ascer- tain its various components. When this has been done, and only when it has been done, can we discuss the questions of organization, functions and control with some hope of suc- cess. It is not to be concluded that good government can be secured by this means alone, nor that when this problem is solved good government will spontaneously follow, but it is to be hoped that when it has been accomplished the voy- age to the desired haven will be shorter and less tempestuous than otherwise. Even the attainment of a high standard of citizenship, where honesty, intelligence and persistence are united, will not accomplish everything, for the highest pos- sible degree of honesty and intelligence will not produce the most efficient government, unless the political principles at the foundation are correct. As yet there is such a great variety of opinion that persons equally well intentioned are working in diametrically opposite directions, and simply be- cause their conceptions of the city are irreconcilable. Sup- pose it were admitted that the municipality is both an agent of the state and an organization for the satisfaction of local needs, many students would be obUged to face about and begin work for reform upon entirely new lines. The recognition that such is the position of the city would involve most radical changes in our methods of dealing with cities. The first essential is then that the position of the city be determined correctly and definitely. 1 6 ENGLISH LOCAL GOVERNMENT [i6 After the relation of the central and the local govern- ments has been defined, the most important problem to arise is the determination of how the central government — the commonwealth — is to control the local authorities. Whether any control will need to be exerted depends of course largely upon what the relation is between the state and the local authority, but it is usually admitted that there must be some sort of central control. Even the most radical believer in local self-government in its most extreme form will admit the necessity of some control. If it should be attempted to uphold total local independence of all central administrative authorities, it would be impossible to point to any nation in which such a system is in operation. Even those countries as England and the United States, which once lauded so highly the benefits of complete local autonomy, have altered their original position, and although the movement has been more rapid and far-reaching in England than in the United States, it is plainly manifest here. That some sort of central control is needed can not, therefore, be successfully contra- dicted. The vital questions are, of what nature shall it be ; and what shall be its extent ? Three forms of control are at once suggested ; the judicial, the legislative, the administrative. The judicial control aims primarily to protect private rights and to prevent the officers of the government from exceeding their powers. It is only occasionally and incidentally that other purposes are sought in its exercise. As a form of central control whose object is administrative efficiency, it is unimportant. The theoretical position and relative extent of the legislative and administrative forms of control are not so definitely settled. We believe in a general way that the purpose of administra- tive control is to secure efficiency, that of legislative control to promote the well-being of society as a whole. But it must be admitted that as yet we are very much at sea as to I7j INTRODUCTION I'j what is the proper province of central administrative control, by whom it is to be exercised, and how far local administra- tion is a matter to be regulated by the commonwealth and how far it is of only local importance. In other words, we are somewhat undecided as to how far local independence — local self-government pure and simple — is consistent with the highest welfare of society. Where shall administrative control begin? What are its bounds ? What are the proper forms through which it shall be exercised? What control shall be reserved to the legislative body? These are vital questions, the importance of which will increase when the true relation of the central to the local governments has been determined. Admitting the validity of these statements, we naturally turn to other countries to ascertain what methods they have adopted and how they have solved these problems. But the study of all civilized countries is not equally instructive, nor can we graft with equal certainty of securing fruit the insti- tutions of every country upon those of our own. France and Germany might teach us valuable lessons, but the great fundamental differences between the relations of central and local governments in the continental countries and those of our own would cast suspicion upon the advisability of adopt- ing any methods, no matter how successfully they were found to work in those countries. Further, it is impossible to ascertain what has actually been accomplished by the continental systems, because there has never been a time when central control did not obtain. The present systems have always existed ; at least the theory at the bottom of them has remained unchanged, and the modifications made from decade to decade have been those of form rather than of substance. Turning to England, an entirely dififerent situation pre- sents itself. Adopting, as \ye have, most of our ideas of l8 ENGLISH LOCAL GOX'ERNMENT [i8 government from England, it is but natural that our institu- tions, our customs, our ideas of right and wrong, our laws, should be similar to those of Great Britain. Other elements have been infused, but the basic principles are still Anglo- Saxon. Especially is this true of our political institutions and the attitude of the individual to the government. In both countries, the protection of private rights is of primary importance. In both, local autonomy as far as consistent with good government is considered a fundamental maxim. In both, bureaucratic methods and despotic centralization are viewed with equal abhorrence. While political, ' social and economic conditions are similar, the English conception of the relation between the central and the local govern- ments has undergone a great change within the present century. The successful system now in vogue dates from 1834. This fact enables one to contrast past and present theories and systems, to note their development, and care- fully to consider their different results. Methods successful in England will not necessarily produce reform if trans- planted to this country, but it is of inestimable value to us to know what methods have worked successfully in a country with which we have so much in common. The position of England at the beginning of the present century was one of local self-government, pure and simple. The functions of local authorities were mainly concerned with the administration of poor relief, the maintenance of highways, the protection of life and property, and the ad- ministration of justice. The vestry, the borough council and the justices of the peace governed the parish, the borough, and the county respectively. The control exercised over them by the central government was either legislative or judicial, but it was so slight that practically the local autho- rities were left to do about as they pleased, provided they did not violate private rights or statutory enactments. This 19] INTRODUCTION ig theory of pure local self-government was found to work badly. Private rights were not trampled upon, but the efficiency of the local governments was greatly impaired, and the interests of the country as a whole were suffering. Two movements began and have continued down to the present. One had for its object complete centralization of administra- , tion, the other the introduction of a system of central control over local administration. The most important department which was once a local function but has since passed entirely into the hands of the central government is the management of prisons. Others have been centralized to a greater or less degree. The registration of births, deaths and mar- riages, the enforcement of factory laws, and the combating of epidemic and contagious diseases, have ceased to be local functions. Of the other fields of local government, there is not one of any importance but is subject to central adminis- trative control. Poor relief was first made so subject in 1834, and public health, police, education, highways, and allied subjects followed at various intervals. To comprehend the importance of these two movements, the fact must be kept constantly in view that at the begin- ning of the present century everything that savored of cen- tralization was bitterly opposed. It was to be avoided with as much care as the small-pox ; yes, even more, for when it was proven that local and private action was inadequate to cope with contagious diseases, they hesitated for some years before they would permit the central government to encroach upon " local self-government." Centralization was a political nightmare. The very utterance of the word brought the dead to their feet. Despotism had been so long united with a centralized form of government that it was believed that no good could come from either. Centralization was despotism. Local self-government was their idol, and they failed to realize that self-government in its pure form is as disastrous to good 20 ENGLISH LOCAL GOVERNMENT [2O government as the opposite extreme. Thus when central administrative control was proposed in 1834, a most heart- rending cry arose. The epithets, " unconstitutional," " the foe of Anglican liberty," " the bequest of despotic bureaucra- cies," were hurled with all the vehemence at command, and it was only the inexpressible wretchedness of the situation that caused its adoption. And even then, with the beneficial results before their eyes, a step in retreat was almost taken a few years later. Experience has shown, however, that there are all shades and kinds of centralization, and that be- tween a centralized despotism and local independence their lies a micidle ground where private rights are riot violated, where local autonomy is not destroyed, and yet where effic- iency is secured and the interests of the State conserved. The stage has now been reached where actual results are considered, and where names have ceased to have far-reach- ing influence. For us to repeat the mistakes they made would be the highest degree of folly. Hence, it is necessary to free our minds of all cant and prejudice, and fairly and calmly to consider central administrative control in the light of experience, to examine its principles unbiased by tradi- tional opposition and ignorance, and ponder well whether there may not be some ideas, some methods that may aid in the solution of our problems as they have aided the English to solve theirs during the last sixty years. The departments of local government to be treated in this study are those in which the actual work of administration is still in the hands of local authorities, but which are subject, nevertheless, to central administrative control. I have ex- cluded all others, not because they are unimportant, but because in the field, as above delimited, are to be found the live questions of administrative science. There also, lies the debatable ground, over which so many disputes have arisen, as to what belongs to the local, what belongs to the central, 2i] INTRODUCTION 21 and what belongs to both the local and the central govern- ments. The subjects that have passed entirely into the hands of the central government are almost universally admitted to belong to the central government. For the same reasons, those subjects in which the central government, through its administrative departments, controls private interests and deals directly with the individual will not be considered. It is only proposed to study those subjects in which the control is administrative, is exercised by the central government, and applies to local authorities. The peculiar position of the metropolis has persuaded me to exclude it also from consideration in the present study. I have proceeded without reference to its position. Some- times the acts discussed have applied to it but more fre- quently they have not, and I have thought it unwise to note in what particular instances the statements made in the fol- lowing pages are true or false regarding it. It has been subject to so many exceptions that it is entirely separate in theory and practice from the other populous centers, and must be studied separately if studied at all. The benefit to be derived from its study by one who is seeking ideas and methods that may aid in solving our problems is slight. There is only one city in the United States that is so truly of a metropolitan character that any benefit could be received by the student of its problems from a study of the English metropolis. This city is the proposed Greater New York. But metropolitan cities are not of the same character and the very characteristics that justify a different organization, different functions and a different control from other cities, separate each metropolitan city from- every other and make it absolutely necessary to work out the problems of each in distinct ways, although many of the fundamental principles are the same. Then, too, London is the capital of the Empire, the seat of the central government, and must, there- 22 ENGLISH LOCAL GOVERNMENT [23 fore, possess an organization different from that of other cities. No more would one think of considering it as repre- senting the English idea of municipal government than of maintaining that Washington is the typical American city. The purpose of the present study is three-fold; first, to show the growth and historical development of the English system of central administrative control ; second, to outline Its present legal and practical status, and third, to ascertain the actual results obtained through it. The outline followed is partly chronological and partly topical. The subject of poor relief will be first considered, because it was in this field that the control was first introduced. Then follows a chap- ter upon Public Health and allied subjects, which, with the previous chapter, represents one method of applying central control. The chapter on Police comes next in order, and with that on Education, explains another method, which has been adopted v/hen the opposition to centralization was too strong to permit direct interference. Then follow three chapters upon Local Finance, Central Audit and Special Legislation. Li these chapters I have not followed the method of studying the fields of local government separately but have united all of them, a more logical arrangement. I did not follow this method throughout, because the system of control, as will be seen, is not the same in each of the fields covered, and although there are many points in com- mon, there is also much of dissimilarity, so much in fact that the exceptions to be noted in connection with any general statement that might be made would be too numerous. This is due partly to the fact that the control was not introduced in all fields of administration at the same moment, and partly to the nature of the subjects and the evils which it attempted to remedy. The other reason why I have followed this some- what peculiar outline is that the student of administration is often interested in one subject of local government and would 23] INTRODUCTION 23 much prefer to have the system as it exists in this one field described as a unit. True, the first chapter upon poor re- Hef, for instance, does not give the complete system, for one must add the last three chapters mentioned, but to have re- peated each of these under each chapter, which is the only alternative, since the system and its effects have been prac- tically the same in all departments, would have produced confusion and useless repetition. Thus the reader is asked to pardon the apparent inconsistency, remembering that this study presents no more lack of system than does the subject to be studied. CHAPTElR II POOR LAW ADMINISTRATION No department of English local government is more familiar to students of political science than that of poor re- lief. The extent of the field and the scope of the subject are so well known that no explanation of them is needed. The history prior to 1834 may be omitted with the exception of a brief description of the deplorable conditions then existing, which is inserted to afford the means of comparison. The historical development of central control from the time of its adoption in 1834 to the present needs no extended discus- sion, for the changes made since the passage of the memor- able Poor Law Amendment Act have not embodied any new and radical principles, but have been intended to remedy defects and to extend the central control established in that act. Not infrequently has the life of the system hung by a very slender thread, yet it always emerged from its period of trouble with increased power and vigor. The theory of the system remains nearly the same to-day as sixty years ago. The development has been nearly symmetrical, although of slow growth. I have considered it wise, therefore, to discuss the system topically and weave in incidentally the important historical changes. Of the many acts passed since 1834, only the principal ones will be noted. Complete references would lead too far astray. The principal points to be noticed are the wide powers of the central authority which existed from the very first, and the increase in these powers whenever changes were made. 24] 24 25] POOR LAW ADMINISTRATION 2$ I. The Central Administrative Authority Constitution. The central authority established by the Act of 1834 consisted of three commissioners appointed and dismissed by the Crown at pleasure. Separation from the legislative department of the government was assured by the provision that no person could be a Commissioner and a member of the House of Commons at the same time. Resig- nation of the one position had to precede acceptance of the other.' Three changes have since been made. The first was in 1847, when the advisability of more closely connect- ing this new authority with the other administrative depart- ments and Parliament was perceived. The special purpose of the Commission, j. e., that of reforming the actual execu- tion of the poor law and of promulgating new and correct principles, had been attained as far as could be by an inde- pendent body. The advantages of an administrative depart- ment, responsible more directly to Parliament, having the opportunity of defending itself when attacked, presenting a policy in harmony with other departments, seemed to out- weigh the disadvantages arising from a possible, though not a probable, introduction of party politics into administration. Several of the chief officers of state were made Commission- ers, ex officio,^ who together with one or more persons ap- pointed by the Crown constituted the Poor Law Board. The first person appointed was to be president, and he with one secretary might be members of the House of Commons. 3 The custom of extending the life of the Board for from one ^ Poor Law Amendment Act, 4 & 5 Win. IV., t. 76, s. I, 8. The commission was instituted for five years only, and would have expired in 1839, had the law not been re-enacted. ^ These were the Lord President of the Privy Council, the Lord Privy Seal, Her Majesty's Principal Secretaries of State, and the Chancellor of the Ex- chequer. ^ 10 & II v., c. 109, s. 2, 4, 9; 12 & 13 v., c. 103, s. 21. Appointment to the presidency or secretaryship did not render a re-election necessary. 26 ENGLISH LOCAL GOVERNMENT [26 to five years at a time was followed until 1867,- when it was made permanent/ Since 1847, "O important changes have been made. In 1 87 1, the need of simplicity and unity became so urgent that the powers of all central authorities dealing with public health, sanitation, public improvements, town improvement, drainage, vaccination, poor law, baths and wash-houses, artisans' and laborers' dwellings, registration of births, deaths and marriages, local taxation returns, and some other mat- ters of local government, were transferred to the Local Gov- ernment Board, which was reallv the Poor Law Board under a new name.'' Since 1871, no changes have been made and the Board is practically the same as instituted fifty years ago. Literally it is not a board, it is a single headed depart- ment, for the ex officio members seldom if ever meet, and all orders are executed by the president, or secretary or assist- ant secretary when so directed by the Board.^ Subordinate officers. The relations between the central authority, whether Poor Law Commissioners or Local Gov- ernment Board, and its subordinate officers have always remained very nearly the same. Assistant commissioners, inspectors, secretaries, clerks and all others by whom the clerical work of the department is done, have been and are appointed and removed by the Board.-* Under some of the acts, the consent of the Treasury had to be secured before certain offices could be established. The Act of 1834 lim- ited the number of assistant commissioners to nine unless this authority should give its approval,5 and now the estab- lishment of all subordinate offices must be approved, as well as the salaries attached.* Even the president and secretary '30 & 31 v., t. 106, s. I. ' 34 & 35 v., c. 70. ^Ibid.,%.c,. » 4 & 5 Wm. IV., c. 76, s. 7, 9. 6 md., a. 7. » 10 & 1 1 v., c. 109, s. 6, 19; 34 & 35 v., c. 70, s. 3. 2 7 J POOR LAW ADMINISTRA TION 2 7 of the Board receive such remuneration as the Treasury sees fit to give.' It is evident that these provisions give the Treasury a very great power over the Board. It it should wish to ex- ercise it, it could obstruct very materially its activity and render its influence nugatory, but I have found no instance in the sixty years of its existence where salaries have been placed so low as to prevent competent persons from accept- ing the positions, or when this power has been exercised in any manner to prevent the Board from pursuing its own aims and purposes. It is but one of the many instances in English law where a fear that unchecked extravagance might seriously embarrass the government has caused what might seem to be unnecessary limitations and anomalous provi- sions. The duties of subordinate officers are fixed by the Board.' Their powers are specified in the various acts, but are so numerous and of such a general character that it would be difficult to enumerate them. In a general way, it may be said that they are of sufficient extent to permit the central authority to exercise a most far-reaching influence, as it lacks neither authority nor means of investigation.3 Powers in general. The powers of the central authority have been from the beginning of the widest extent and ap- plication. Some modifications have been made since 1834, but these have extended its influence rather than limited it. A detailed enumeration would be impossible, but a brief summary is necessary to show how completely the whole field of poor relief is within the jurisdiction of the Local Government Board and how few discretionary powers are left to the local authorities. Even where the Board has not ex- pressly been given the power to interfere, it has never ^JUd., s. 8; 34 & 35 V., c. 70, s. 3. '■' 10 & II v., t. 109, s. 19. ^ Ibid., s. 20, 21. 28 ENGLISH LOCAL GOVERNMENT [28 failed to submit plans, suggestions and instructions upon almost every phase of administration. The Poor Law Amendment Act authorized the Commis- sioners to make rules, orders and regulations for the man- agement of work-houses, the education of poor children, the nature and amount of relief, the making of contracts, the keeping of accounts, in fact all matters relating to adminis- tration of poor relief."^ One can hardly conceive of the enormous extent of these powers until the orders and instructions are examined, which at present form a volume of 1200 pages, i2mo. The index adds one hundred pages more and informs one that everything from " abatements " to " youths " is dealt with.'' These are only the general orders — orders that affect more than one poor law union.3 The number of special orders is not known. It is almost impos- sible to suggest any subject upon which orders or instruc- tions have not been issued, and oftentimes the minutest details are specified. The time of rising and retiring of work-house paupers,"* the amount of soup to be given each person, the preparation of food,^ the baptism of infants born in the work- house,* and many other minor matters are stated with great precision. The local authorities can not perform a single duty which is not governed by the regulations of the Board.' The limitations upon the power of the Board are few. It might be expected from the great number of acts on the statute book that numerous restrictions would be imposed, but as far as matters pertaining to the granting of poor relief are concerned the Board has almost supreme control. '4 & S Wm. IV., c. 76, =. 15, 42, 52; 12 & 13 v., c. 13, s. i, 4, 5, 6, et alia. 2 Macmorran & Lushington, Poor Laxv General Orders, 1 890. * 10 & II v., c. 109, s. 15. •Macmorran, op. cit., p. 259. ^ Ibid., 277-8 N. ^ Ibid., 126 N. ' During the year 1895, 775 orders were issued relating to the relief of the poor and the poor rats. Report of L. G. B., 1895-6, p. 93. 29] POOR LAW ADMINrSTRATION 29 Those that do exist have been so closely in accord with the most efficient administration, that they have not exerted a restraining influence. General rules can not be altered without consent of the Secretary of State," but this is a mere matter of form. No instance has been found where consent was refused. Her Majesty may disallow any general rule, in whole or in part,^ but I have been unable to find that any use has been made of the privilege. Neither have the courts interfered with the action of the Board.s Financial powers. The powers of the Local Government Board over local finance will be studied in chapters VI. and VII., and therefore may be omitted here. Indirectly it may cause expenditures to be made or debts incurred through its general power of regulation, but the effect of its action in such cases upon rates or indebtedness is a matter of secon- dary importance with the Board. The power to order work-houses built, leased or repaired,-* or paid officers to be appointed by the guardians are representative instances.^ In all cases, the local authorities must provide the funds, whether the expenditure is voluntary or not, except of course where they would be obliged to exceed their powers as enumerated in the statutes. Whenever power has been given to alter local boundaries, that of adjusting debts, lia- bilities, property, has also been conferred.* Powers relating to local acts. The Act of 1834 conferred comparatively few powers upon the Poor Law Commission- ers concerning places under local acts. Unless there were statutes to the contrary, the orders were to apply to locali- ties under special acts as well as others,'' but as a matter of fact local acts were very numerous and comprehensive. In ' 5 & 6 v., c. 57, s. 3. ^ 10 & II v., I.. 109, ». 16. ' Cf. Frewin v. Lewis, 4 M. & C, 255. *4 & 5 Wm. IV., u. 76, ». 25; 29 & 30 v., c. 113, s. 8. = 4 & 5 Wm. IV., ^.. 76, s. 46. « Cf. 33 v., c. 2. ' P. L. A. A., s. 21. 30 ENGLISH LOCAL GOVERNMENT [30 1867, it was provided that the whole or part of any local act might be repealed or amended, if a petition had been pre- sented by the guardians of any union or parish (outside the Metropolis), and if the order was confirmed by ParHament.' Some use has been made of this power, but much more has been accomplished under the power to alter boundaries." Its importance becomes more manifest when it is learned that Parliament very rarely refuses to confirm the orders pre- sented. Power over local areas. One of the most important pro- visions of the Act of 1834 was that conferring upon the Commissioners the power to unite parishes, for purposes germane to the administration of poor relief, to dissolve any union so formed, to add to or take from it any parish, ex- cept when the given union had been formed — previous to 1834 — for the purpose of rating or settlement,^ which in- cluded nearly all of the unions or other local incorpora- tions formed under Gilbert's Act* and the numerous local acts.5 These incorporated unions, parishes, or hundreds could be dissolved by a two-thirds vote of the guardians or overseers, but in the absence of such voluntary action, the Commissioners were powerless. Personal interests, local prejudices and opposition to central control retarded very much the proper extension of the new system, perpetuating in many places the vices and corruption of the old regime. ' 30 & 31 v., u. 106, 5. 2; 42 & 43 v., c. 54, ». 9. ■' Cf. Rep. P. L. B., S. p., 1868-9, Vol. 28, p. 24. ' p. L. A. A., s. 26, 32, 37. ■> 22 Geo. III., c. 83. * Single parishes or incorporations might be joined with others if the adminis- trative machinery created by the earlier acts was undisturbed, but dissolution or interference with their authority was impossible. Cf. 6 A. and E., i, 34 41 ca. 56. In 1834, 67 Gilbert's unions had been formed, including 924 parishes. NichoUs, History of the English Poor Law, ii, p. 98. The number under local acts is unknown; even estimates are very unsatisfactory. It was certainly very much larger. 3 I ] POOR LAW ADMINISTRA TION 3 i It was this fact together with the beneficial results already- obtained that soon induced an extension of authority, and by slow and steady growth the central authority has come to possess almost limitless power. The Board may form, add to, take from or dissolve any union, may combine unions and constitute a joint committee of guardians, may divide a union which is in two counties into two unions for all pur- poses except maintenance of a common work-house and in- door poor, may unite small parishes or divide large ones, may divide into wards for the election of guardians, in fact it has almost absolute control over local areas as far as the administration of poor relief is concerned. There are some instances where the consent of the local authority must be secured or a representation have been made to the Board, but these are rather few, and the opportunities of hindering its free action are rare.' No exception is made for local acts, and the old unions and incorporations have probably all ceased to exist.^ The Board has always made frequent use of its authority. In the year 1868-9, twelve incorporations were dissolved and reformed.3 In 1878, thirty-six inquiries were made regard- ing divided parishes.'' In 1882, sixty-two inquiries were held and only five orders had to be confirmed by Parliament, and these were passed without modification.^ In 1893, there were 648 unions in England and Wales (including London) containing 14,684 parishes. The unions vary greatly in size. In some there is only one parish, while 'The most important sections are: 4 & 5 Wm. IV., c. 76, s. 26, 32; 7 & 8 V., u. loi, a. 36, 40-47, 66; 30 & 31 v., w. 106, s. 3; 31 & 32 v., c. 122, s. 4, 6; 39 & 40 v., t. 61, s. 1-12; 42 & 43 v., u. 54, ». 4-8; 45 & 46 v., t. 58; 51 & 52 v., c. 41, s. 58. ^ Cf. Wright & Hobhouse, Local Government and Local Taxation, 1894, p. 13. " Rep. P. L. B., S. P., 1868-9, Vol. 28, pp. 22-3. 'Ibid., 1878, Vol. 37, Pt. I., pp. 53, 54. ^Ibid., 1883, Vol. 28, pp. 44, 45, 47-9. 32 ENGLISH LOCAL GOVERNMENT [32 Others contain several hundred. The population varies from 444,000 to 2,300. The average union contains nearly twenty- three parishes arid a population of 46,000.' Powers regarding local authorities. The power of the Board to issue orders covers such a wide field that the only important functions left to the guardians are the granting or refusing of relief in individual cases, and the accepting and holding of property for the benefit of the union. But the control extends beyond the general power to issue orders. The Board determines the number and duties of the guar- dians, subject to a few minor limitations imposed by law, and apportions them among the parishes.'' It may require the guardians to appoint such subordinate officers as it thinks necessary to assist in the administration of the poor laws. The qualifications, duties, method of appointment and re- moval, tenure, amount of salaries of such officers and the persons by whom they are paid are likewise fixed by the Board, which may of its own accord remove any paid offi- cer.3 If the local authorities refuse to act, it may step in and perform the neglected duties.* In practice the Board has not failed to exercise these powers quite extensively. A union is usually obliged to appoint fourteen officers and their assistants. = The mode of appointment, remuneration, qualifications and duties are specified in great detail.* The more important officers can be removed only by the Board, a few others only with its consent, but those performing merely ministerial duties can 'Wright & Hobhouse, op. cit., p. 13. 2 P. L. A. A., s. 38, 41; 7 & 8 v., c. loi, s. 17, 18; 56 & 57 v., c. 73, s. 20. 'P. L. A. A., s. 46, 48; 12 & 13 v., c. 13, s. 5. * 10 & II v., e. 109, s. 24; 31 & 32 v., c. 122, s. 7. ' Consolidated Order, July 24, 1847, ^rt. 153. ^Ibid., art. 155-223. Other Orders may be found in Macmorran & Lushing- ton, op. cit. 33] POOR LA W ADMINISTRATION 33 be removed upon the single condition that the dismissal with the reasons therefor be reported to the Board.' The power of the Board to remove is exercised in comparatively few cases, but is very effectual. The figures for the two periods 1870-4 and 1 890-3, and the year 1895, were: Annual Average. 1870-4." 1890-3." 1895.' Total number of paid officers Voluntary resignations to escape inquiry . . Forced resignations 15.265 37 21,659 24 53 77 22,882 10 41 55 Total 156 154 106 While the total number of paid ofificers has increased fifty per cent., the number of resignations and removals has de- creased thirty-two per cent, in the last twenty-five years. This decrease is due not to any leniency upon the part of the Board, but to an increased efficiency which has resulted from the recognition of the power and determination of the Board to remove inefficient officers. Serious differences of opinion between the guardians and the Board seldom arise, but the former are inclined to be more liberal than the latter, and a more strict observance of obligations is secured than would be under purely local responsibility. = The number of cases of actual interference is small, but this is a favorable sign, as fear of interference is preferable to actual domination. ^ Ibid., art. 187-197. Order of Feb. 12, 1879, amending previous Orders. The power of the Board to remove is almost unlimited. It is not obliged to give any reasons for its action, or even previous notice. Cf.\<) Law J., 70. "S. P., 1871, Vol. 27; 1872, Vol. 28; 1873, Vol. 29; 1874, Vol. 25; 1875, Vol. 31. = S.P., i89i,Vol. 33; 1892, Vol. 38; 1893, Vol.43; 1894, Vol. 38. < Rep. of L. G. B., 1895-6, p. 530, App. s^schrott, op. cit., p. 161 N (2). 34 ENGLISH LOCAL GOVERNMEN2' [34 Quasi-judicial powers. The Local Government Board is properly an administrative authority, but in a few instances it may exercise powers that are judicial in character. It may determine questions as to cost of relief, settlement, removal, or chargeability of any poor arising between local authorities of different unions, provided they agree to submit the case at issue. The decisions are final and cannot be questioned even in a court of law, unless appealed to the Court of Queen's Bench within a short time.' About a dozen cases are annu- ally decided and opinions are given in many others.^ The aid thus given facilitates administration to no small degree, saving much expense and economizing time. Were it not for this plan all cases would have to be taken before the Quarter Sessions or Court of Queen's Bench. The large decrease in the number of cases referring to the above subjects is prob- ably due in a large degree to the privilege of appealing to the Local Government Board. 3 The Board was also until 1894 empowered to decide ob- jections to the validity of the election of guardians, and was not limited to questions of law, but could institute an inquiry and decide questions of fact as well.-* Qualifications of elec- tors and nominees, forms of ballots, management of elections, counting of ballots, notices, et cetera, could be investigated and decided upon. Certificates of election could be issued or a new election ordered. About fifteen cases were decided annually, and the returning officer was almost always de- clared to be wrong.5 The returns could also be questioned by an election petition to the Queen's Bench Division of the High Court * or by quo warranto.'' The Local Government 1 II & 12 v., t. no, S. 4; 14 & 15 v., C. 105, a. 12. 2 Vide Reports of L. G. B. ^ Cf. Rep. P. L. B., S. P., i860, Vol. 37, p. 22. ' 5 & 6 v., c. 57, s. 8; 30 & 31 v., u. 106, s. 12; 47 & 48 v., c. 70, s. 36. * Vide Reports of L. G. B. » 47 & 48 v., c. 70, s. 36; 45 & 46 v., v.. 50, s. 87 et seq. ' C/ 10 & II v., c. 109, s. 25. 35] POOR LAW ADMINISTRA TION 3 5 Act of 1894 deprived the Board of these powers and gave the County Council power to call a new election in case difficulties arise respecting election,' but this of course does not deprive anyone of his judicial remedies. Powers of inquiry. That the Board may effectually and wisely exercise its authority, it has been given the widest powers of investigation and inquiry ; not as wide as are pos- sessed by similar bodies in countries possessing a more cen- tralized system of government, but very marked when the Anglo-Saxon opposition to governmental interference is considered. The Board may require the attendance of all persons upon an inquiry relating to any subject connected with the powers it is authorized to exercise, may examine them and require the production of necessary papers and documents, or may appoint agents and delegate its powers to them.'' The latter is the method actually used, and to facili- tate the work the country is divided into several districts and a number of Inspectors provided. These serve not only as intermediaries between the local authorities and the central government, but are constantly alert to discern and report any infraction or non-observance of Orders or Acts of Parlia- ment. Very properly have they been called "the eyes and ears of the Board." They attend the meetings of the guar- dians and often take part in the proceedings, but cannot vote. Work-houses and all other places where relief is given are visited and advice given where needed or requested. Thus the experience and knowledge of the whole country are placed within reach of the local administrators. Complaints are investigated and reports made. In the first years of the existence of the Poor Law Commissioners, more interference and minute supervision were necessary than at present, when Httle actual interference is called for and the control '56&S7V., u. 73, =. 48, 89. '4& S Wm. IV., e. 76, s. 2, 12, 13; 10 & II V., c. 109, s. II, 13, 21, 22, 26. 36 ENGLISH LOCAL GOVERNMENT [36 assumes more the form of advice and consultation. Proba- bly its very existence exercises a salutary influence, and it certainly is a potent factor in bringing to light improper acts and in disseminating knowledge. The execution of law. In order to understand fully the legal and practical position of the Board, it is necessary to ascertain how compliance with the statutes is guaranteed. The Board is kept within its proper sphere by private interest acting through the ordinary judicial control, the power of the Crown to remove the president, and the power of Parliament to abolish the system when it becomes obnox- ious. To prevent inactivity, the powei of removal exists, but this charge is not likely to be preferred against the Board. ,Its tendency has been to exceed its powers rather than to neglect to perform its duties. A more pertinent question might be asked as to the methods used to enforce the laws passed by Parliament and the regulations of the Board. There are three methods, one judicial and two administrative. The first embraces all the ordinary judicial remedies, which are open to the private in- dividual as well as the central government.' The second arises from the power of the district auditors — agents of the Board — to disallow and surcharge any illegal expenditure made by a local authority, and ffom the power of the Board in its appellate jurisdiction. But as this will be discussed in chapter VII, further consideration may be omitted here, after stating that it is very effective in all cases where an illegal act results in expenditure or is directly connected therewith. The third springs from the power to remove any paid officer. This does not apply of course to the guardians. They must be reached through the first and second, but as their powers are limited, these methods are quite adequate to secure efficient administration. Since paid officers are ^Vide, e.g., 4 & 5 Wm. IV., c. 76, s. 98. 37] POOR LAW ADMINISTRATION 37 the ones upon whom the burden of the work falls, the power of removal becomes important. Of course it does not necessarily follow that if an inefficient officer is removed, a suitable one will be chosen; but since the Board may remove the new appointee or appoint one itself if the guardians fail to act within a definite time, it has practically almost supreme control over all paid officials. Successive removals would ultimately compel conformity to its wishes. Perhaps not quite as efficient persons are selected in some instances, as would be were the Board given power to appoint as well as remove, but such a course is objectionable on other grounds. The Board is apt to accept persons who do not quite reach its standard rather than continue the dispute. But this is more of a theoretical defect than an actual one. The possibility of dismissal and the occasional exercise of the authority have been sufficient to make the local officials realize that they are responsible to the central Board rather than to the guardians. The other power of determining their duties, qualifications and salaries makes it certain that an efficient corps of local paid officers will be maintained, and that rules and statutes will be strictly enforced if the Board desires. To render the control still more effective, recourse may be had to all three of these processes ; the application of any one does not bar the others. In not every instance is it pos- sible, but where each is applicable, all may be used. If an officer has expended a sum illegally, he may be removed from office, the expenditure surcharged and collected, and the ordinary judicial proceedings begun. In practice, such a course is not frequently followed ; the administrative reme- dies are usually sufficient both as cure and preventive, and are among the principal reasons why local administration has been kept up to such a high standard. 38 ENGLISH LOCAL GOVERNMENT [38 Such is the legal and practical status of the present sys- tem — not widely different from that of the fourth decade. It is evident that the position of the Local Government Board is the key to the whole situation. When one knows its attitude, one knows the attitude of the local authorities. When it demands rigid enforcement, the local authorities are strict. When it is lax, slackness is seen in local admin- istration. It is true that the latter is not a necessary conse- quence of the former, and there may be exceptions, but the past sixty years have proven the truth of the statement in most localities. Many instances might be given to show that when central control relaxed, pauperism increased; but one brief allusion is sufficient. During the fifties and sixties, pauperism increased absolutely and relatively, and while most of it was due to industrial and commercial conditions, it is interesting to note that the Poor Law Board was very lenient in the years just previous to 1871, and it is usually conceded that its position contributed its share in increasing pauperism."^ 2. Effect tipon Pauperism Passing now to consider the effect of the system just depicted upon the nature and extent of pauperism, I shall briefly contrast past and present conditions, strive to ascer- tain the causes of inefficient administration prior to 1834, describe the alterations made by the Poor Law Amendment Act, investigate the causes of the increased efficiency since the enactment of this law, and show thereby how far central control has been the cause. The woeful conditions which existed during the first part of this century are generally known, but to estimate cor- ' Cf. Chance, The Better Administration of the Poor Law, p. 5. 39] POOR LAW ADMINISTRATION jg rectly the effect of central control, it is necessary to contrast briefly the conditions previous to 1834 with the present." " The poor-rate," says Harriet Martineau in describing the earlier period, " had become public spoil. The ignorant believed it an inexhaustible fund which belonged to them. To obtain their share, the brutal bullied the administrators ; the profligate exhibited their bastards which must be fed ; the idle folded their arms, and waited till they got it ; ignor- ant boys and girls married upon it; poachers, thieves, and prostitutes extorted it by intimidation ; country justices lav- ished it for popularity, and guardians for convenience. This was the way the fund went. As for whence it arose, — it came niore and more every year out of the capital of the shop- keeper and the farmer, and the diminishing resources of the country gentlemen. The shopkeeper's stock and returns dwindled, as the farmer's land deteriorated, and the gentle- man's expenditure contracted. The farmer's sons, waiting, at the age of five-and-thirty, for ability to marry in comfort, saw in every ditch and field on the estate, lads under twenty whose children were maintained by the rates which were ruining their employers. Instead of the proper number of laborers to till his lands — laborers paid by himself — the far- mer was compelled to take double the number, whose wages were paid partly out of the rates; and these men, being em- ployed by compulsion on him, were beyond his control — worked or not as they chose — let down the quality of his , land, and disabled him from employing the better men who would have toiled hard for independence. These better men sank down among the worse ; the rate-paying cottager, after a vain struggle, went to the pay-table to seek relief; the modest girl might starve, while her bolder neighbor received IS. 6d. per week for every illegitimate child. Industry, pro- ' For an extended description, the reader must be referred to the invaluable, re- port of the Poor Law Commission of 1832-4, S. P. 1834, Vol. 27 et seq. 40 ENGLISH LOCAL GOVERNMENT [40 bity, purity, prudence — all heart and spirit, the whole soul of goodness — were melting down into depravity and social ruin, like snow under the foul internal fires which precede the earthquake."' The transformation which followed the actual operation of the Poor Law Amendment Act was sudden and far-reaching. "Before two years were out \i. e., after 1834J wages were rising and rates were falling in the whole series of country parishes ; farmers were employing more laborers ; bullying paupers were transformed into steady workingmen ; the de- crease of illegitimate births, chargeable to the parish, throughout England, was nearly 10,000, or nearly thirteen per cent. ; clergymen testified that they were relieved from much of the pain and shame of having to celebrate marriages where the bride was on the point of becoming a mother, or where the parties were mere children, with no other prospect than the parish pay-table ; and, finally, the rates, which had risen nearly a million in their annual amount during the five years before the poor-law commission was issued, sank down, in the course of five years after it, from being upwards of seven millions to very little above four." = If one wishes a quantitative measure of the great reform of the last sixty years, the following table is of great interest : ' Harriet Martineau, History of the Peace, iii, pp. 324-5, Boston, 1866, Bk. IV., Chap. vii. ^ Harriet Martineau, of. cit., p. 333. 41] POOR LA W ADMINISTRA TION 41 Year ended at Lady- day 1818 1824 1832 1834 1835 1837 1S48 1856 1861 1866 1871 1881 i8gi 1895 Price of Wheat per Quarter ' s. d. 84 I 62 63 4 51 II 44 2 52 6 64 6 75 4 55 10 43 6 498)^ 43 7 32 8 21 7 Population deduced from Census Re- turns ' 11,876,200 12,517,900 14,105,600 14,372,000 14,564,000 H.955.o°o 17,150,018 18,829,000 19,902,713 21,145,151 22,501,316 25,714,288 28,762,287 30,060,763 Expended for the Relief and Mainte- nance of the Poor' 7,870,801 S.736,900 7,036,969 6.317.255 5,526,418 4,044,741 6,180,764 6,004,244 5.778.943 6,439.517 7,886,724 8,102,136 8,643,318 9,866,605 Amount Rate per raised. Cap. of Rate per the Popu- ^of lation ' Ratable Value' .. d. .. d. 13 3 9 2 10 8 9>^ 7 7 5 5 7 2Ji (",% S9K 6 1 I 5-4 7 I 6.4 6 3>^ I 2.3 6 1 1.8 63K I 1.0 Paupers per loco of Popula- tion^ 62.7* 48.7 44.4 43-3 46.1 30.8 26.4 26.5 But these facts do not begin to express the full extent of the reform. The decrease in the rate of expenditure and the proportional number of paupers tells us nothing of their treatment or the conditions of the vast laboring and mer- chant classes which are not dependent upon aid from the state. Even those supported from the poor-rates are much better cared for than formerly, indeed, as is claimed by some, to the extent that pauperism is made too inviting in- stead of being extremely repulsive. And it must not be for- gotten that indirectly the better administration of the law has been a most potent factor in elevating the laboring classes to their present position of high intelligence and superior industrial capability. The causes of the deplorable condition into which the ' Report of P. L. B., S. P., Vol. 23, 1850, pp. 146-7, App. Rep. of L. G. B., S. P., Vol. 31, 1876, p. 282, App. Ibid., 1896, p. 478, App. ' /^iV., p. 478, App. '/^zV., p. 412, App. 'Figure for 1849. 42 ENGLISH LOCAL GOVERNMENT [42 administration of the poor laws had fallen at the opening of the fourth decade may be divided into four classes : indus- trial and social conditions, wrong principles of granting relief embodied in the statutes, erroneous ideas in the minds of the people and their pubHc officers concerning pauperism and how it should be dealt with, and defects in the plan of administration. Most of the discussion has been waged over the relative importance of the last three classes, and it was a vital question in 1834, for upon the answer depended the nature of the reforms to be adopted. Lord Brougham, then Lord Chancellor, fittingly and truth- fully depicted local administration in the following words : " When you look at a district in which a better system of administration has been adopted, and contrast it with one — perhaps the very next parish — where the bad course has been pursued, you would hardly think that you were looking at two parts of the same island, so different are the efifects. In one paupers disappear and industry gains its just place; while, upon crossing a brook, you find in the other parish a swarm of sturdy beggars depriving the honest laborer ' of his hire, and the rental crumbling down daily and hourly into the poor's box — always filled and always empty. Then, how comes it to pass that, with the example before their eyes, the authorities in the latter parish persist in their course ?" ' If this be true of places under the same statutes, we must look for an explanation outside of the statutory principles according to which relief is given. That it was possible to have wise and efficient administra- tion without exceeding the provisions of the law, goes to prove the same conclusion. There were instances — not numerous, I know — in which poor rates had fallen to a minimum, pauperism had decreased, and morality and in- ' Hansard, Parliamentary Debates, 3d Series, Vol. 25, p. 232. See also Vol. 22, p. 875. 43] POOR LAW ADMINISTRATION 43 dustry had reappeared. The best example recorded is that of Southwell, a parish near the center of Nottinghamshire, having a population of 3,384 in 1831. During the year 1832—3, only ;£^6o5 14s. were expended in relieving the poor, although eleven years previous, over three times as much had hardly sufficed. From a state of affairs where the circle of pauperism embraced nearly the whole laboring population, where the parish was considered an unfailing source of relief at birth, at death, in youth, in old age, in sickness, in health, where there was nothing to stimulate self-reliance and frugality, the parish came to possess a happy, thrifty, industrious class of laborers, became a parish to be imitated and admired. The causes of such a transfor- matian were principally the rigid application of the work- house test and the untiring efforts of one man.' Other in- stances might be cited in which similar results were attained under statutes that were general and not special in their ap- plication, and by methods provided for in the law.'' This fact was even used by some as an argument to show that no legislative act was needed, that the changes the reform bill proposed would be ineffective and that efficiency could be secured without.' Many abuses did indeed spring from a total disregard of the existing statutes. The payment of any deficiency in wages from the poor rates was forbidden, but the law was constantly disobeyed.* A justice of the peace could grant aid only in cases of emergency,^ but from the frequency with which relief was thus given, one would judge that nearly all cases were emergency cases. Even Gilbert's Act,^ which ' Nicholls, A History oftheEng. Poor Law, ii, pp. 241-7. * Hansard, op. cit., Vol. 25, p. 598. ' Ibid., 265. *NicholIs, op. cit., i, pp.2, 165, 172, 188; ii, pp. 231-3. Hansard, op. «V., Vol. -25, p. 445- * 59 Geo. III., 1. 12, s. 2. " 22 Geo. HI., c. 83. 44 ENGLISH LOCAL GOVERNMENT [44 tended to make recurrence to parish aid as easy as possible, did not authorize the parish or union to assume the responsi- bility of maintaining every laborer. The local authorities gave it this unwarranted construction/ not always of their own desire, but because refusal was often followed by de- struction of property and personal violence.^ A consideration of the statutes, however, shows some de- fects. The laws regarding illegitimate children and their parents, the conditions upon which settlement could be gained or lost, the failure to distinguish between the dififerent classes of paupers were important factors in producing ille- gitimacy, preventing the free migration of labor, and keep- ing a locality overburdened with dependent poor when there was a demand for labor elsewhere. But there was still an enormously large amount of pauperism unaccounted for, and the causes must be sought elsewhere. The influence of false ideas also is seen in the prevalence of the custom of making up wages from the poor rates, or in the attempt on the part of the parish to assume the position of entrepreneur, to provide work when otherwise not obtain- able or to oblige the landowners to hire paupers instead of in- dependent laborers. These and many other erroneous ideas that existed in the minds of the local authorities were directly responsible for a large portion of the pauperism, and it might appear at first sight that higher intelligence, more economic training, greater political capacity were the great needs. Un- doubtedly a great reform would have resulted could these tranformations have been brought about ; and had these ' NichoUs, op. cit,, ii, p. 232. "^ Vide Extracts from the Information received by His Majesty's Commissioners as to the Administration and Operation of the Poor Laws, London, 1 833, pp. 27, 31. 35. 137. '38. Fovvle, The Poor Law, p. 77. (I have used this book of Ex- tracts for my references because of its greater convenience and accessibility. The original documents have been consulted, but probably will not be available to most readers.) 45] POOR LAW ADMINISTRATION 45 qualities existed to a greater degree, England would never have fallen into such a deplorable condition. But to go still farther back, was it not the fault of the system of administra- tion that such ideas were permitted to govern the distribu- tion of aid? No system is correct which does not fit the actual conditions. Thus, in the state of afifairs then existing it was an unpardonable defect in the administrative system to allow the local authorities to exercise so much discretion- ary power when they were unable to resist the importuning of paupers, the threats of the vicious and the falsely humani- tarian sentiments of the community, and when they did not possess the required knowledge and experience, if they had the determination. The educational, moral and political status of the people was given, and it was the duty of the legislator to frame a system that recognized these facts, and yet which would in spite of them obtain efficient administra- tion. It was not a question of what was ideally the best sys- tem, but what would obtain the best results under the con- ditions. That such a course was possible was proven by the great reforms accompanying and effected by the new admin- istrative system estabhshed in 1834. Lord Althorp, then Prime Minister, expressed the general opinion of the time, which was in line with this view, when he stated upon the first reading of the Poor Law Amendment Bill : " It was, therefore, to the abuses of the system of poor laws, not to the system itself — it was to the bad administration of those laws, not to their principle, that he objected."' "The reason of want of success was the fact of there being no superintend- ing authority to see to their execution."" To be convinced that the Poor Law Commission of 1832-4 came to the same conclusion, one has but to read its report and recommenda- tions.3 'Hansard, op. cit.. Vol. 22, pp. 876, 878. '^ Ibid., Vol. 23, p. 995. •■' S. P., 1834, Vol. 27, pp. 157 et seq. 46 ENGLISH LOCAL GOVERNMENT [46 At the time of the debate upon the proposed bill, further, it was almost universally recognized that the really important feature was the plan of central control. To the proposal that the bill be divided into two parts, one " to provide an execu- tive power * * * to carry the poor laws into effect," and one " to amend the old laws and enact new laws," it was replied that " all the other provisions of the Bill to a great extent depended upon the adoption of that principle" (?. e., that of central control)." The Lord Chancellor stated, and the great prominence given to the plan in the Parliamentary debates substantiates the statement, that "the main principle of the measure is this^-to leave the law, generally speaking, as it stands at present, but to tread back our steps as far as we can towards a due administration of it." ^ The Report of the Commission of 1832-4 emphasized the same idea.^ If this is a true diagnosis of the case, one would expect to find any reform that might have been effected to have been brought about by a change in the system of administration. Let us examine, therefore, the Poor Law Amendment Act of 1834 and see what were the changes introduced by this well- known law to which so much has been often ascribed. The provisions of the Act may be divided into two distinct classes ; one including all provisions germane to central con- trol, the other including all else. Reversing the order, let us ascertain what the second class includes. It is hardly necessary to enumerate the many provisions relating to the election of guardians, the qualifications of voters, the apportioning of expense, the fines imposed for ' Hansard, op. cit., Vol. 23, p. 458. « Ibid., Vol. 25, p. 235. ' Cf., also Leroy-Beaulieu, V Administration Locale en France et en Angle- terre, pp. 229-230; Pashley, Pauperism and Poor Laws, p. 265; Chance, op. cit., p. 2; Edinburgh Rev., Vol. 74, p. 26; also Hansard, op. cit.. Vol. 23, p. 828. Report from His Majesty's Commissioners for Inquiring into the Administration and Practical Operation of the Poor Laws, London, 1834, W. Clowes & Sons, pp. 280-1. 47] POOR LAW ADMINISTRATION 47 disobedience of law, and the many other details. They are but the proper measures for carrying the law into execution and are not important for our purpose. The Act further specified that guardians might agree, with the approval of the Commissioners, that the united parishes should become one parish for the law of settlement.' Settlement by hiring and service, and by serving as an officer was abolished. Neither could it be acquired by occupying a tenement, un- less the poor rate had been paid for an entire year ; nor by estate, unless the owner should live within ten miles thereof.'' Removal was made impossible until after three weeks' notice had been given to the parish to which the order of removal was directed, unless the order were submitted to, nor until appeal had been decided by the court in case there was a dispute as to settlement of the pauper.^ The acts relative to the liability and punishment of the putative father were re- pealed, and the burden of maintenance placed upon the mother. The Court of Quarter Sessions could, upon applica- tion of the overseers, make an order on the putative father for the maintenance of the child if it became chargeable, but this could not be done as formerly, upon the uncorroborated testimony of the mother, and even then no aid was to be given to the mother. + Persons concerned in the administra- tion of the poor laws were forbidden to be a party to any contract or sale of goods for relief of the poor. 5 The other provisions that might be included in this class were not of sufficient importance to deserve notice. In striking contrast is the system of central control with its large powers and far-reaching supervision. The outline of the present system as given in preceding pages is not quite a true picture of the system as it existed in the fourth decade, but when allowance has been made for an increase in power 1 P. L. A. A., s. 33-36. 2 Ibid., 64-68. 3 /^,v/_^ l^-Zt,. * Ibid., 69-76. * Ibid., 77. 48 ENGLISH LOCAL GOVERNMENT [48 over local acts and areas, it will be found to represent it very nearly. Practically, the administration of poor relief was under the control of the Poor Law Commissioners from the very beginning. A comparison of the two classes of provisions convinces one immediately that, as far as the Act of 1834 was a cause of the subsequent reform, the provisions establishing central control exercised the more potent influence. No doubt the changes in the law relating to removal, settlement and ille- gitimacy had some effect. But to attribute a very large por- tion of the gain in administrative efficiency subsequent to 1834 to these causes seems unwarranted, especially when one is confronted with such direct testimony as I shall soon present. Some persons have made the mistake of attributing much of the improvement subsequent to 1834 to other causes, such ap voluntary paid service and larger areas, but the story is only half told. What was it that rendered voluntary paid service any more efficient than the old compulsory unpaid service? The introduction of this change alone would sim- ply have complicated the system by decreasing any direct responsibility that may have previously existed. The vol- untary union of parishes might have been somewhat bene- ficial, but the evidence is not conclusive, for the Gilbert's unions are said to have been in worse condition than the parishes. It is hardly likely that voluntary action would have resulted in such suitable unions as an impartial author- ity would produce. Local prejudices or a desire to maintain local autonomy would have prevented the best results. Even when the Commissioners undertook to exercise their power of uniting parishes, some dissatisfaction was aroused, although every possible means was taken to prevent it." Most of the economy which may be traced to the erection of workhouses by large areas would not have been secured > NichoUs, op. cit., ii, p. 308; Hansard, op. cit., Vol. 23, p. 828. 49] POOR LAW ADMINISTRATION ^g without central supervision. Few parishes were large enough economically to build and operate a workhouse,' and others were too obstinate. The student of legal systems is perhaps inclined to attrib- ute reforms attending statutory changes wholly to these changes and to dismiss from consideration economic, social, moral, political or other forces, To forestall any objections upon this score, I would say that in the conclusions I have reached, I have not been unmindful of the fact that the present laborer is better able to meet industrial changes than the laborer of the eighteenth or even the first portion of the nineteenth century, and tljat consequently, ceteris paribus, pauperism would under any system of administration be less to-day than formerly. General intelligence, wider knowledge of economic and social laws, clearer perception of moral responsibilities, increasing political capacity would have tended to produce a similar result without the passage of new laws. While these facts do not explain the sudden de- crease in pauperism immediately following 1834, they do to some slight extent explain why there is not now so much pauperism — at least the same kind of pauperism — as form- erly. But there are so many tendencies in a contrary direc- tion — the increasing complexity of our industrial system, misdirected humanitarian feelings, sociahstic tendencies that I am very loath to admit that the balance is very largely in favor of the former. It is often urged that the improved administration which so closely attended the passage of the Act of 1834 was mostly, at least largely, due to the great public interest aroused by the publication of the Report of the Poor Law Commission, the wide diffusion of the facts and the earnest ' Even in 1839 there were 37 unions, in which a majority of the guardians re- sisted the efforts made to induce them to build a workhouse. NichoUs, op. cit., \\, p. 358. JO ENGLISH LOCAL GOVERNMENT [50 desire to solve the problems. There is some truth in this view, but it is to be remembered that the public interest aroused was very largely due to the activity of the central board. The most evident result of the extreme centralization was the centering of responsibility as well as power in the Commissioners. This was immediately recognized, and the promulgation of correct ideas and principles was undertaken at once. The terms of the law were explained and orders issued to supplement it. Not alone were general principles laid down, but the details were minutely set forth, so that it was impossible for a local authority intentionally to go wrong. Nothing was left to the guardians to determine, except to whom relief should be given. This was a marked reaction from a system where the experience which guided the administration of relief was limited to the narrow bounds of a parish, usually to a year of compulsory service and to men lacking in education, experience, time and capability for framing rules and regulations.' The Commissioners acted as the collecting and distributing agency for the whole country, and the most effective measures were at the disposal of each locality without passing through the experimental stage itself. The educational influence of the Commissioners was a most marked one from the beginning and has con- tinued to the present. Its importance as affecting the amount of pauperism is evident. It needs no amplification. Efficient administration further was not brought about as easily as one might be led to believe from the preceding paragraphs. All local authorities were by no means eager and anxious to introduce the new methods and principles. Simply placing them in easy reach was not sufficient. Two classes of authorities were to be found besides those who were willing and able to bring about the desired reforms. One included those who were apathetic or antagonistic to ' Report fiom His Majesty's Commissioners, etc., 1834 (Clowes & Sons), p. 282. 5 I ] POOR LAW ADMINISTRA IVON c i the new regime ; the other, those who were wilHng and de- sirous of obtaining beneficial results, but who were deterred from taking the necessary steps through fear of pubHc opinion, personal violence or destruction of property. The difficulties the Commissioners had to face in this direction were neither insignificant nor imaginary. Selfishness, local prejudices, the persistency of the old, firmly-rooted abuses were obstacles that existed everywhere. In some instances officers were elected for the express purpose of defeating the new law.' The struggle the Commissioners were obliged to make in 1839 to preserve their existence, when the results they had attained were so unanimously in their favor, shows the wide-spread opposition to an administration based on correct principles.' The effect of central control might almost be predicted from the previous delineation of the powers of the Commis- sioners. There was no escape from their jurisdiction and obedience was necessary. The apathetic were aroused, and the antagonistic possessed but few avenues through which they could interfere with the execution of the laws and orders. The real work was in the hands of paid officers, who could be removed by the Commissioners if they did not per- form their duties properly. As indifference and opposition decreased, the interference of the central government also decreased, until at present it is quite slight, especially when compared with the period immediately following 1834. The system also had a very beneficial effect upon those authorities who were willing but timid. Previous to 1834 it was not an uncommon occurrence to find instances where relief was extorted by threats or even violence. If an over- seer earnestly attempted to keep the rates within bounds ' Cf. Fowle, of. cit., p. 103, Edinburgh Rev., Vol. 74, p. 28; Parish &' Union, p. 180. ' * Fowle, p. 102 eiseq.; NichoUs, ii, pp. ^^ietseq. 52 ENGLISH LOCAL GOVERNMENT [52 and give aid only to the needy, he was in constant fear of having his property destroyed, his stacks burned or personal violence inflicted.' Such a state of affairs soon passed away. To complaints against the apparently severe provisions of the new administration, the local authorities replied that they, were only acting under orders, that they had no discretionary power, but were obliged to enforce the orders and statutes as they existed.'' If there was any fault to be found, the Commissioners were the persons to whom grievances should be addressed, but they were too distant, too difficult to ap- proach. Hence, order reigned and reform prospered, where before there had been riots, incendiary burnings and intimi- dation. During the first two years under the new law there were a few riots because relief was given in bread and other necessities instead of money ,3 because order and discipline were introduced into workhouses and because the minds of the poorer classes had been aroused by falsehoods,t but after 1836 no mention is made in the Reports of any further trouble of this character. Resistance was found to be fruitless. That there would have been others had it not been for the central authority, was the testimony of the Commissioners and is a natural conclusion from the conditions previous to 1834.5 Such radical transformations if introduced without any pro- vision for enforcement by the central government would have arrayed one class against another with disastrous results, or what is more probable, would have rendered the act nugatory like all former acts. ^Cf. Abstracts, 1833, pp. 27, 136-138; Fowle, pp. 77 etseq. ' Cf. Parish &= Union, pp. 181-2; NichoUs, op. cii., ii, pp. 329, 361. » ?st Rep. of P. L. C, 183s (W. Clowes & Sons, London), pp. 62-3. Theref- erences to the first ten reports of the P. L. C. are made to the edition published by W. Clowes & Son, but can be easily verified by consultation of the reports printed in the S. P. ' 2d Report of P. L. C, i83(?, p. 4. = ist Report of P. L. C, 1835, P- 63. 53] POOR LAW ADMINISTRATION 53 Flexibility is another characteristic of the system of central control. The opinion was frequently expressed, when the reform of the poor laws was being considered, that the smallest details ought to be unalterably fixed by Par- liament, but it was soon recognized that this would be im- possible.' In times of great industrial activity when labor is in large demand and food abundant, relief is not often requested. When a revulsion of trade comes, when manu- facturers decrease the number of laborers employed, when the price of food rises, and is perhaps accompanied by an epidemic, a system capable of expansion is needed. Methods before sufficient now become inadequate. Regula- tions once suitable now work great injury. Temporary measures for relief must be provided, and if the system does not admit of adaptation to circumstances it is a failure. When return is made to normal conditions, the temporary meas- ures must again give way to former methods. Then again, the varying industrial and social conditions of different sec- tions of the country render a fixed plan impracticable. Discretionary power must be lodged somewhere. Ex- perience had demonstrated that the local authorities were incapable of its proper exercise. Legislative control had also been proven worthless by the woeful state of parishes under local acts. A central administrative authority seemed the only alternative, and the wide powers of regulation apparently provided the means whereby alterations could be made to suit the requirements. The first severe test came in 1836-7, when all the un- favorable conditions just mentioned existed.^ The case of Nottinghamshire well illustrates the mode of operation.^ When it became evident in the spring of 1837 that a "large ■ Report from H?. M. Com., 1832-4, of. cit., p. 294. ^ NichoUs, op. cit., ii, p. 344. ^Cf. 3d Rep. of P. L. C, 1837, PP- "' 12; also 4th Rep., 1838, pp. 35-8. 54 ENGLISH LOCAL GOVERNMENT [54 number of laborers would be forced to apply for relief, the Poor Law Commissioners directed one of their assistant commissioners to keep them constantly informed as to the needs of the union and to give all the aid and assistance possible. When it became known that former rules must either be broken, suspended or great suffering inflicted, the Commissioners temporarily suspended certain rules and gave many suggestions by means of which the distress was tided over. The same experience has been passed through time and time again. Nearly every commercial crisis shows the r.i:;ny benefits of such an expansive system. Admirers of extreme local self government might assert that under a general law with strict provisions, the statute might be left unenforced during extreme periods of distress ; but such a course is extremely dangerous, for who is to determine when the period begins and ends? There are too many forces already that tend to make relief too easily obtained. But central supervision did more. Prior to 1834, when all changes in the poor law had to be made by general or local acts of Parliament, abuses would exist for a long time before being remedied, if remedied they ever were. No authority existed whose duty it was to discover defects and see that they received proper treatment. The only practical avenue of approach to Parliament was through a member of the House of Commons, who, when he thought it worth the struggle, would either introduce a local bill and try to get it passed, or attempt to have the Government formulate a bill. Perhaps, if the needs were urgent and manifest, a general bill would be brought forward, but this was frequently not done until after a committee had been appointed to investi- gate and report. Long delays were the consequence, a general law was apt to be unfitted to many localities, and local acts only produced complications rendering a general and efifective reform more difficult to obtain. 55] POOR LA IV A DM WIS TRA TION 5 5 By the institution of a central authority with subordinate officers constantly in touch with the people and their local authorities, the need of legislation was at once perceived. No special commission need be appointed, for here was a permanent one making a continuous investigation, and with more practical knowledge and experience than a special one could possibly possess. The many beneficial effects of such a plan are illustrated by its practical workings in 1 860-1863. The depression of trade, the long and severe winter of 1 860-1 increased greatly the applications for assistance.' The great cotton famine of 1862 added to the distress, until it became evident that even the power of the Poor Law Board was insufficient to give the proper remedy. Conse- quently the President of the Board introduced a special, not a local, bill" into Parliament July 22nd,3 which was passed in a modified form August 4th,'* giving the needed relief.s How quickly was the remedy applied ! If we can judge how the question would have been solved without a central authority, from the manner in which other similar problems had been previous to 1834, months would have passed before a bill would have been enacted, with the probability that it would not have been in many respects suited to the needs of the occasion. The impress of the system may be seen upon all the legislation relating to poor relief. It is a fact that is usually overlooked, but much of the success of statutory enactments has been due to the existence of the central Board with its wide experience, extensive knowledge and ' fn London alone the number reached 130,317, an increase of 38,367, within five weeks. Vide Aschrott, The English Poor Law System, p. 66. ■' The adjective " local " is used in England to signify very nearly the same kind of a bill as is " special " or " private " with us. ' Hansard, op, cit., Vol. 168, p. 682. * 25 & 26 V., c no. 5 Cf. Rep. P. L. B., S. P., 1861, Vol. 28, pp. 14-25; Ibid., 1862, Vol. 24, pp. 16-18; Ibid., 1863, Vol. 22, pp. 13-17. 56 ENGLISH LOCAL GOVERNMENT [56 invaluable aid in the formation and consideration of various bills. Another result of the centralization of discretionary power was that fewer men of superior ability were needed, that the requirements of local officials were less exacting, and that consequently a wise and efficient administration was more easily obtainable. It was possible, previous to 1834, to re- duce pauperism to a minimum, as the instances of Southwell, Bingham and Cookham show, but the results in these par- ishes were brought about by the untiring efTorts of excep- tional men. If each parish had possessed a Lowe, a Litch- field, or a Nicholls, the reform of the poor law would not have been made necessary, for the abuses would not have existed. But one such man in each parish was the very least that would suffice,' and 15,000 such were not to be secured.'' The men of high intelligence, remarkable firmness and great activity, which this field of local government de- manded were not numerous, and it was a difficult matter to persuade those who had the capability to undertake the task. The requirements of the regime subsequent to 1834 were more moderate. The demand was not for men of such re- markable ability, activity and firmness, but for men — not less in number than heretofore — who were honest, who possessed an average amount of intelligence and determination, and who were willing to sacrifice a comparatively small amount of time. For members of the central Board, a few individ- uals of exceptional attainments were required. Assistant commissioners — called inspectors after 18473 — medical offi- cers and other subordinate officials needed less extensive qualifications. The change was brought about by the trans- ' Other instances of the influence of a single person can be found on pages 14, 38, 105, 1 12, 147, 1C4, 369 of the Rep. from the P. L. Com., 1832-4, op. cit. * The number of parishes was about 15,000. '^Vide, lO-II Vict., c. 109, ss. 19-22. 57] POOR LAW ADMINISTRATION 57 fer of powers from the parish, vestry and union authorities to the central board created by the Poor Law Amendment Act. That the centralization went so far as to produce other effects injurious to local self-government cannot be denied, but it is undisputed that more efificient administra- tion was produced. Just as a prominent characteristic of the state of affairs prior to the enactment of the reform measure was an entire lack of anything approaching uniformity, so subsequent to that date, a nearer and nearer approach to uniform condi- tions was a noticeable feature. The natural result of a sys- tem where such large discretionary powers were entrusted to local authorities possessing little determination, knowledge, experience and capability was the greatest variety of methods and practices. It could not be otherwise when no superior administrative authority existed. It was just as natural that, when the same power of making rules and regulations that had been exercised by over 15,000 unskilled, and for all practical purposes, irresponsible authorities, biased by sinis- ter interests, should be confined to one central board of control, uniformity should follow. Of course absolute uni- formity was and is still an impossibility. Different conditions demand different treatment, and the Poor Law Commissioners recognized this, but as the reform progressed similarities appeared and the same methods and principles were intro- duced. It is true that as administration becomes more effi- cient, uniformity must follow in certain lines. But uniform- ity in method is different from uniformity in results. How- ever, central control tended to produce both. Conditions prior to 1834 were chaotic. Methods of keeping accounts were determined by each parish overseer or the person to whom he delegated the task," with the result that no two agreed.' One used well-bound books, another ' Fowle, op. cti.,-pp. 77-8. ^ Abstract, P. L. Com., 1833, pp. 107, 138, 168, 179. 58 ENGLISH LOCAL GOVERNMENT [58 loose slips of paper with an old pair of boots as a receptacle.' Vestries were not obliged to render accounts .= Methods of auditing were still worse. In some districts the expenditure of every shilling was scrutinized,3 while in others an audit took place once in eleven years. A few overseers were un-. able to read, and by their side one sees the name of Sir George Nicholls/ who instigated and put into successful operation so many reforms.^ Out-door relief was freely granted in some parishes, while others strictly applied the workhouse test. Cholesbury, an agricultural parish in Buck- inghamshire, had in 1833 a total population of 139, of which only thirty-five were not dependent upon it or other parishes for support. Of the remaining 104, sixty- six received during the year a total of £z^J 4s, and the average member of the non-pauper class contributed nearly ^loy^. The other thirty-eight of the population received aid from other par- ishes in which they had a settlement. The cultivation of all lands, except sixteen acres, was abandoned, the rates having more than swallowed the rent. The inhabitants were deter- iorating morally and physically, as well as industrially. They had become idle, dishonest, immoral, and all hope of gaining an independent existence had fled.* With this dismal picture compare Southwell, a parish near the center of Nottinghamshire, which had a population of 3,384 in 1831. During the year 1832-3, only ;^6o5 14s. were expended in relief of the poor, equivalent to a rate of nearly 3s. per capita. Pauperism was made uninviting by the rigid application of the workhouse test. Allowances and pay- ments of rents were unknown, and none were exempted from the payment of rates. The result was a happy, thrifty, in- ' Rep. of P. L. Com., 1832-4, pp. 99, 187. •^ Fowie, op. cit., p. 78. » 1st Rep. P. L. C, 1S35, P- I7S- ■* Abstract, p. 286. ' NichoUs, op. cit., ii, pp. 243-25 1 . » Rep. of P. L. Com., 1832-4, pp. 87-95. 59] POOR LAW ADMINISTRATION 59 dustrious class of laborers." These two cases are not isolated examples. Many others could be given illustrating both extremes, with poor rates varying from 63s. to 2s. 4d. per capita. Central control at once began to produce uniformity, and although the transformation was not sudden, it soon became apparent. Opposition to the new law, the many local acts remaining unrepealed, and the widespread abuses retarded the movement. In 1844, the rates in counties varied from 3s. I id. to fos. 6d.^ 7 Counties paid from 9 to 10 shillings. 8 to 9 7 to 8 6 to 7 5 to 6 4 to 5 3 to 4 In 1894, the rates in union-counties varied from 13s. 6d. (London) to 4s. 2d.; and if London be excepted, which is peculiarly situated, the higher limit becomes 7s. lid.' Of the 45 union-counties, I paid 13s. 6d. 6 u from 7 to 8 shillings 16 tt (( 6 to 7 tt II tt " 5 to 6 tt II tt tt 4 to 5 tt The same increase in uniformity might be shown as regards the number of paupers and per capita expenditure, but all these illustrate uniformity in results, not in methods, and no one questions the statement that great uniformity has ap- peared in this particular. Further, a definite form of keeping accounts was substi- 'Nicholls, op. cit., ii, pp. 243-251. ' nth Rep. of P. L. C, 1845, pp. 260-1. ^ 25th Rep. of L. G. B., 1895-6, pp. 448-9, App. 6o ENGLISH LOCAL GOVERNMENT [6o tuted for the previous chaotic conditions. The ledger titles, the number and kinds of books, the manner in which accounts were debited and credited, the precise form of all reports and legal papers were specified.' A uniform and efifective system of audit was later established. The methods of administering rehef were brought into harmony. No longer could it be said that blind prodigality ruled one parish or union and that the workhouse test reduced pauper- ism to a minimum in adjoining parishes. One union became as desirable as another, and thus labor was permitted to seek the point of greatest need. Aid became as difficult to ob- tain in one place as another, and the vivid description of unequal cqnditions which Lord Brougham gave became no longer applicable. The importance of uniformity can hardly be over- estimated. Legislation is made easier, for general acts are much more effective when no dissimilarities exist in the subjects to be dealt with. The dangers from local acts in- adequately considered are removed, for their number is greatly diminished. And no locality is forced to bear a disproportionate burden. Akin to uniformity is continuity, and the same forces that have tended to produce the former have brought about the latter. As has been seen, an efficient system might have been secured prior to 1834 through the persistent efforts of some individuals, but neither legal provisions nor public sentiment tended to perpetuate it. On the contrary, the spirit of the time seemed to declare that one set of officers was free to do as it pleased, no matter what success had been attained.' Even the short illness of an overseer was sufficient to cause a relapse.3 The retirement of a workhouse-keeper ' ist Rep. of P. L. C, 1835, pp. 76-8, 87-9, 106-165. See also Macmorran and Lushington, op. cit. ''■ Rep. of P. L. Com., 1832-4, p. 283. » Ibid., 282-3. 6 1 ] POOR LAW ADMINISTRA TION g j or a vestryman was followed by an immediate return to for- mer methods.' Experience was limited to the narrow bounds of a parish and usually to one year of compulsory service,^ and when persons who had been successful in producing reform retired, the parish relapsed into pauperism. The establishment of a central board altered all this. The members of the Board have changed, but the tenure of sub- ordinate officers has been co-extensive with efficient service, and the infrequent changes that have been made in the Board have produced no changes in principles, and only when ex- perience has proven certain plans unsuccessful or others more fruitful, have alterations been made. This is partially the result of transferring most of the discretionary powers to the central authority, with the accompanying result that less depended upon the local officers, but it is also due to the esprit de corps of the department. The system that does not provide for some change is ab- solutely useless. Progress implies change. Experience is constantly substituting new methods for the old. But alter- ation is not necessarily reform, neither is innovation progress. Both extremes are equally dangerous. While the Board has avoided becoming stereotyped, it has also escaped the charge of making ill-considered alterations ; and while it has per- petuated efficient administration, it has not fallen into the errors to be found in either extreme. What importance should be attached to all these factors ? What portion of the reform in the administration of poor relief can be said to be due to central supervision? Increased intelligence which rendered the laborer better able to with- stand industrial changes, to alter his occupation as his inter- ests demanded, was of some importance, but we shall see in a subsequent chapter that central supervision has been a ' Abstract, 1833, pp. 14, 38. « Rep. of P. L. Com., 1832-4, p. 283. 62 ENGLISH LOCAL GOVERNMENT [62 most prominent factor in increasing education. Improved sanitary conditions have undoubtedly lessened pauperism slightly, but here also central control has exerted a most effective influence. Expenditures have been kept down by the control over loans and central audit, but in these cases it is central supervision that has played the leading role. Parliamentary investigations and public discussions have contributed somewhat. The alterations made in the law which were distinctively outside of the plan of central con- trol were more important, but their effectiveness cannot be measured except in connection with central control, for with- out it they would have accomplished little. To conclude then, it must be said that by far the greater influence in maintaining the past efficient administration has been central administrative supervision. It has been the keystone to the arch, and no one can thoroughly comprehend the causes of the reform since 1834 without giving it the most prominent position. The present position of central supervision in maintaining efficiency is a different problem. Its utility as a means of disseminating information and successful methods is some- what diminished as compared with earlier years, for the ignorance then combated no longer exists. Correct princi- ples regarding the administering of relief are much more commonly held, but I doubt if the central board could be done away with even now without causing a great loss and materially impairing the efficiency of administration. The large amount of information annually issued is still quite valuable. The power of the board to compel local authorities to en- force the law and perform their duties operates more through its possible than its actual exercise. The cases of actual interference are comparatively few, but these serve to keep the local authorities up to the mark. Opposition has enor- 63] POOR LAW ADMINISTRATION 63 mously decreased and beneficial results are sought not merely because of the compulsory power of the Board, but because there is an earnest desire to obtain the results. One would hardly, however, be justified in saying central control has no influence. It is diminished and changed in character but could hardly be done away with. The same is largely true regarding the transference of responsibility from local to central authorities. The intimidation existing in former years is wanting, but as against the importuning of paupers and misdirected humanitarianism, it is still a check. There is no class of local officers upon whom such strong forces are brought to bear as upon those who grant relief, and much determination is required to withhold it except in the proper instances. But since the local officers have powers mostly of a ministerial character, and since the Board is too distant and difficult of approach, there is not the tendency nor liability to yield to local demands. Here again we see the influence through possible interference increasing, and actual interference decreasing. The benefits arising from the flexibility of the system and from the existence of a permanent board to suggest and direct legislation, seem almost as great as ever. The increas- ing complexity of our industrial and commercial system ren- ders crises more frequent and disastrous. It is all the more necessary, therefore, that there be a system of great flexibil- ity, able to expand in times of need and to contract in times of prosperity. Otherwise there would be much unnecessary sufTering or a pauperized class. There is not the need for legislation at present that there has been in past periods, but the system is by no means perfect, and the prevention of legislative tinkering is often as valuable as actual legislation. In these two respects, therefore, the influence of central su- pervision is almost as great as before. As has been said, erroneous principles are not as current 64 ENGLISH LOCAL GOVERNMENT [64 as formerly and the personal efficiency of local officials has greatly increased. The result is that the minute supervision of the Board is no longer necessary, and beneficial results which were attributed to central control as productive of uniformity and continuity, must now be attributed to some extent to these facts. Yet one seems hardly justified in con- cluding that the same uniformity and continuity would continue to exist were central control to be removed. If one may judge from the past and from other countries, it seems probable that uniformity would greatly decrease, and that methods and plans would change with each new set of local officers. The same conditions that existed prior to 1834 would not return, but the loss would be great, and there is no field in which uniformity and continuity are so needed as in poor relief. Their absence brings dire results. It is not to be inferred that the abolition of central super- vision would pauperize the country, or that it is the only cause of present efficiency. There are other important causes and they have often been noted. But it does seem probable that if the present system should be completely decentralized and all discretionary power re-transferred to local authorities, pauperism would ultimately greatly in- crease, rates rise, and the greatest divergencies appear, bringing results hardly commensurate with the little benefit that might be derived from purely local self-government. Some decentralization might with safety be introduced, but any change in this direction must be moderate and well con- sidered. Experiments are too costly which involve the efficiency of the present system. CHAPTER III PUBLIC HEALTH AND LOCAL GOVERNMENT I. History It may at first glance seem somewhat illogical to discuss Public Health and Local Government in the same chapter, but the reasons will become evident. To presage some of the facts to be shown later, let me say that the term " Public Health " includes very much more in England than in the United States. It is true that the health departments of our cities have extremely large powers, but they do not begin to embrace the wide field that is reached by the Public Health Acts in England. One may almost say that more of the subjects usually included under "local government" are dealt with in these Acts than in all other acts combined. The term "Local Government" is used in this chapter only in a restrictive sense, as including those various activities that belong neither to poor relief, police, education or public health. I shall not attempt to discuss every subject nor every phase of central control. The provisions are too numerous and too varied. I shall only try to give the most important, the most representative and the most general. Where a general rule has been followed I shall try to dis- cover it. The reason "Public Health" has received such a wide in- terpretation is probably due to the fact that when in 1848 the sanitary condition of the country had proved that a reform must be undertaken, it was begun with the idea in mind that the improvement of public health was the ultimate 65] 6s 66 ENGLISH LOCAL GOVERNMENT \66 object, and that other things must bend to this end. Then as time went on and population collected about commercial centers, new demands were made upon the local authorities ; private enterprise could no longer be exclusively or even mainly depended upon, and public control became necessary. The success of the sanitary authorities and the similarity of their functions to new activities about to be authorized, although rather slight in some instances, caused Parliament to confer new powers upon these authorities and often through Public Health Acts. Thus it is impossible to sepa-. rate the functions which have to do with public health from other activities, but both classes must be discussed jointly. It was not until 1 894 that the complexity of functions and the growing importance of activities not intimately associ- ated with public health became so universally recognized that the names of the local authorities were changed from urban and rural sanitary authorities to urban and rural dis- trict councils^- I have followed in this chapter a more or less chrono- logical treatment, because the development of the system has been entirely lacking in uniformity. The pendulum has oscillated between local government pure and simple, and extreme centralization. At various periods different schemes have been tried, but not until the 6ighth decade was a logical, systematic and permanent plan evolved. The earlier attempts are instructive, however, as they point out the mistakes to be avoided and the inevitable tendency towards central control. The care of the dependent classes is a question that has been prominently before the public mind for centuries, and had had a long history when the successful reform described in the preceding chapter was begun in 1834. Sanitary problems on the contrary did not become burning questions ' 56 & 57 v., c. 73, s. 21-25. See also 51 & 52 V., c. 41, s. 100. 67] PUBLIC HEALTH AND LOCAL GOVERNMENT Qy until the modern industrial era had introduced the factory system and the growth of large cities had begun. Previously, the individual had been depended upon to guard his own interests, and with fairly good results. No civihzed state had wholly neglected to provide for the protection of the health of its citizens, but very little had been done, and private initiative was the fundamental principle. Even after the problems had increased in importance and their solution become much more difficult, the same principles of govern- mental action were retained, and not until the fifth decade was a definite attempt made to provide for governmental action in an extended form. These facts should not be forgotten, for they explain why a more successful scheme was not framed in 1848. The reformers of the poor law had centuries of experience from which to draw. Nearly every plan of private and govern- mental action had been tried. The defects had been plainly pointed out by experiments and the needs of the system were evident. The principles upon which relief should be given had been decided. All that remained was to establish a proper system of administration. But in the following decade when sanitary conditions had fallen into such a woe- ful state, long experience was wanting, the problems were new, and no part of the plan of reform could be considered as settled. The only thing that could possibly have been re- garded as proven, was that a system depending upon private initiative entirely would not be successful, but the English were not even ready to believe this true. A little more ex- perimentation was needed. The relation of the central gov- ernment to the local government had not been worked out, nor that between the local authorities and private persons. Medical science had not made the invaluable contributions that have since made the warfare against disease so much easier. Mechanical and civil engineering was very largely 68 ENGLISH LOCAL GOVERNMENT [68 in an experimental stage, and modern methods were entirely- unknown. Is it surprising then that as beneficial results did not attend the first legislative attempts in the field of public health as followed the Poor Law Amendment Act ? The system in existence previous to 1848 can be described in few words. By common law, the justices of the peace had power to remove and suppress nuisances on the complaint of private individuals, and in the country districts their inter- vention produced quite good results, but in urban centers it was valueless.' Everywhere it was a purely remedial plan and negative rather than positive in its results. The fear of punishment acted only very slightly as a deterrent and was entirely useless as an incentive to activity .° No solution was to be found in this plan. Another method was through local acts. If a locality, usually quite thickly populated, wished to obtain powers relating to sewers ; to the maintenance, paving, cleansing, lighting or policing of streets ; to the maintenance of ceme- teries, markets, fairs or abattoirs ; to the extinction of fires, or other kindred purposes, it applied to Parliament for a special act granting its request.^ The powers were usually conferred upon an elective commission or the town council. In 1 847 the provisions usually found in these local acts were consolidated into two acts, to provide more similarity and to facilitate enactment.* Three important investigations were made, one in 1840,' ^Anninjon, op. cii., p. 85. ''Ibid., p. 314. 'Between i8oi and 1865, 470 improvement acts were passed relating to various districts of the Metropolis. Liverpool vi-as governed in 1846 by sixty local acts, at vfhich time a code was secured consolidating them. Clifford, Private Bill Legislation, ii, pp. 333-4. • Improvement Clauses Acts, 10 & 11 V., c. 89. Commissioners Clauses Acts, 10 & II v., c. 90. ' Report from the Select Committee on the Health of Towns, S. P., 1 840, Vol. 1 1. 69] PUBLIC HEALTH AND LOCAL GOVERNMENT 69 one in 1843,' and one in 1844 and 1845," o^ the conditions existing under the regime of local self-government pure and simple. Their results have been summarized as follows : " Out of fifty towns visited on behalf of the commissioners, the drainage was reported as bad in forty-three, the cleans- ing in forty-two, the water supply in thirty-two. In Liver- pool 40,000 and in Manchester 15,000 of the working class lived in cellars, 'dark, damp, dirty and ill-ventilated;' Not- tingham contained 1 1,000 houses, of which 8,000 were built back to back and side to side, so that ventilation was impos- sible; * * * even in Birmingham, then, as now, a model town, the water supplied to some of the poorer districts is described as being ' as green as a leek.' The results of this state of things were clearly seen. Whilst the death-rate in country districts was 18.2 per thousand, in towns it was 26.2, in Birmingham and Leeds it was 27.2, in Bristol 30.9, in Manchester 33.7, in Liverpool 34.8. * * * The average age at death in Rutland and Wiltshire was 36^ years, whilst in Leeds it was 21, in Manchester 20, in Liverpool 17.3 "The various forms of epidemic, endemic and other dis- ease, caused or aggravated or propagated chiefly amongst the laboring classes by atmospheric impurities produced by decomposing animal or vegetable substances, by damp and filth and close and over-crowded dwellings, prevail amongst the population in every part of the kingdom, whether dwell- ing in separate houses, in rural villages, in small towns or in the large towns, as they have been found to prevail in the lowest districts of the Metropolis. " Such disease, wherever its attacks are frequent, is always ' Report on the Sanitary Condition of the Laboring Population of Great Britain, S. P., 1843, Vol. 12. ^ Reports of the Commissioners for Inquiring into the State of Large Towns and Populous Districts, S. P., 1844, Vol. 17; S. P., 1845, Vol. 18. ^Edinburgh Rev., Vol. 173, 1891, p. 69. JO ENGLISH LOCAL GOVERNMENT [70 found in connection with the physical circumstances above specified, and that where those circumstances are removed by drainage, proper cleansing, better ventilation, and other means of diminishing atmospheric impurity, the frequency and intensity of such disease are abated ; and where the re- moval of the noxious agencies appears to be complete, such disease almost entirely disappears. * * * "The expenses of local public works are in general uft- equally and unfairly assessed, oppressively and economically collected by separate collections, wastefully expended in separate and inefficient operations by unskilled and practi- cally irresponsible officers.' " The utter failure of the system of local self-government for sanitary purposes is notorious to all who have taken any pains to inquire into the subject." '^ The commissions reporting in 1840 and 1845 recom- mended a plan of strong central supervision and control, making provision for a central board having power to inves- tigate, issue rules, approve appointment of local officers and to act itself in case the local authority refused to act or acted improperly ,3 but this recommendation was not accepted until 1848.'' It had been recognized for some years that the great difficulties to be overcome were the apathy of the people, local selfishness,^ and the great expense that would fall upon the property owners, who had only a very limited interest in better sanitation;* but it needed the fear of a cholera epi- demic to turn the balance in favor of a strong central con- trol.7 'Richardson, The Health of Nations, i., pp. 150-2. ^Eraser's Magazine, Vol. 36, 1847, p. 371. 'S. P., 1840, Vol. II; also 1845, Vol. 18, pp. 20, 21 especially. * A bill was introduced in 1845, but was not passed. ' Eraser's Magazine, Vol. 36, pp. 368, 376. • S. P., 1843, Vol. 17, p. XII. ' Hansard, of. cit., Vol. 224, p. 638. 71 ] PUBLIC HEALTH AND LOCAL GOVERNMENT 71 The Act of 1848 created a General Board of Health, con- sisting of one ex officio member — the First Commissioner of Works — and two other persons appointed by the Crown.' Power was granted to appoint and remove " so many proper persons as they, subject to the approval of the Commission- ers of Her Majesty's Treasury, may deem necessary," and to fix their salaries. The Treasury also fixed the salary of one of the members of the Board, other than the President.' Upon the receipt of a petition signed by one-tenth of the persons rated for the relief of the poor in any locality having a known or defined boundary containing not less than thirty inhabitants ; or when it should appear that the average death- rate for a period of not less than seven years, as ascertained from the returns of the Registrar General, exceeded twenty- three per one thousand inhabitants, the General Board was empowered, if it chose, to direct a minute inquiry to be made into the sanitary conditions of the place, the local acts in force and all other matters upon which it wished informa- tion.3 The Board could then, in case a petition had been received, report to Her Majesty what part of the Act or all of it should be put into operation. Action was to be taken through an Order in Council, but this came to be little more than a matter of form, for the recommendations were invari- ably accepted. This method was adopted to avoid the great expense of local acts. If no petition had been presented, or if a local act was to be altered, a provisional order confirmed by Parliament was necessary.'* But here again the decision of the Board was almost final, for the presentation of an order for confirmation was almost always followed by its enact- ' II & 12 v., c. 63, s. 4. An additional member was added in 1850, and the Board was entirely reconstructed in 1854. See 13 & 14 V., c. 52, s. 2. ^11 & 12 v., c. 63, a. 4-7. Salary was not to exceed ;^3 3 s. and expenses per each day actually employed. ^ Ibid.,%.%. * Ibid., i. 10. 72 ENGLISH LOCAL GOVERNMENT [72 ment. In its formation, however, the possibility of refusal of confirmation did exert a restrictive influence to scfme degree. Over the subordinate officers of local authorities, the Board did not have the large power possessed by the Poor Law Board. In case of the removal of the surveyor, whose duties mainly consisted in seeing that drains, sewers and ditches were kept in proper condition,' its approval was required. A medical practitioner was to be appointed as officer of health, whose duties were fixed by the Board ; and where localities united to elect a single officer, his salary was fixed in the same manner. His removal was subject to the same conditions as that of the surveyor.'' The approval of the Board was required to legalize the contracts of local boards to lease, hire, construct, purchase or maintain water- works 3 and to legalize the mortgaging of rates."* If persons felt aggrieved by the proceedings of the local board as to the recovery of certain expenses, they might appeal to the General Board, which could issue an order deciding the appeal. s It could also restrict or prohibit the interment of bodies in a burial ground that it deemed a menace to public health.^ Every by-law imposing a penalty passed by a local sanitary authority had to be approved by the Secretary of State,' an anomaly which was probably due to the fact that by-laws passed by borough councils had to be submitted to the Secretary of State.^ It might have been expected that they would have been sent to the General Board of Health. The duty of enforcing the law was vested in the local boards whose powers and duties extended to the construc- tion, maintenance and discontinuance of sewers ; to the cleansing, paving and regulation of streets and highways (with certain exceptions in the latter instance) ; to the en- ^11 & 12V., c. 63, s. 54. ^ /iSiW., 37, 40. '/i5?V., 75. */*»'(/., 119. ^ Ibid., 120. ^ Ibid., 82. ' Ibid., IIS " 5 & 6 Wm. IV., c. 76, s. 90. 73] PUBLIC HEALTH AND LOCAL GOVERNMENT 73 iorcement of laws relating to drains, wells, outhouses, nui- sances, abattoirs, lodging houses, cellars and interment of the dead ; to the proper supply of water ; to the purchase of property to carry out the above purposes ; in short, all those powers and duties previously conferred upon localities by local acts. Although the General Board of Health remained in exist- ence ten years, it was only during the first five years that its activity was untrammeled. After 1853, which should have been the busiest period, less than one-fourth of the provis- ional orders and orders in council were issued and confirmed that were issued and confirmed during the whole ten years.' This is partially accounted for by the precarious existence of the Board, caused by the renewal of the Act of 1848 year by year after the five years for which it was first enacted had •expired.^ And this in turn was due to the opposition the Board had aroused in its first few years of existence. But the real explanation is to be found in the apparently unim- portant changes made in 1854 and the conditions that led up to them. When the General Board of Health was established in 1848, Mr. Chadwick was made its president. He had been intimately connected with the administration of the poor laws, and had become strongly infused with the idea of central control, which, as we have seen, made the Poor Law Board so powerful. Transferred to the department of health, he carried with him the belief that to secure the best results the same system must be adopted here. Parliament had not given the Board the same extended powers it had bestowed ' The exact figures were : 10 years. after 1853. Provisional orders confirmed 113 27 Orders in council confirmed 109 21 Vide Reports of Gen. Board of Health. ^11 & 12 v., 63, s. 4. 74 ENGLISH LOCAL GOVERNMENT [74 Upon the Poor Law Commissioners, and the people were prepared for only a moderate exercise of the powers granted. Firm in its opposition to unsanitary conditions, the new Board (that is, its president) set out to accomplish reform by establishing an exceedingly centralized system. At the time of the reconstruction of the Board in 1854, Mr. Chad- wick was legislated out of office. An understanding of the causes of this action will explain why central control received such a set-back in 1854 and 1858. It is a principle now commonly recognized in English government, that administrative departments should be rep- resented in Parliament by a responsible minister. The non- observance of this rule in the case of the General Board of Health contributed to the growing opposition to the Board. No official was present to answer questions or refute false charges, and the truth suffered.' Another mistake was the withholding of the power to appoint permanently skilled inspectors for the various local inquiries. The consequence was that animosity was soon aroused between the Board and most of the civil engineers. Being unable to engage persons permanently, it was obliged to permit them to engage in private business also. Thus the same person was a govern- ment officer and a private individual competing for the priv- ilege of constructing the works. A feeling of injustice was inevitable. But more opposition was aroused by the use made of the power to put the Act into operation where the death-rate had exceeded twenty-three per one thousand for seven years, and the locality opposed it. Such action was liable to arouse opposition in the locality, and yet it was not sufficient to assure efficient administration. In the first place, seven years was too long a period, especially when the high death- rate is considered. Then the measures provided were rem- 'The same difficulty arose in the case of the Poor Law Commissioners. 7 5 J PUBLIC HEAL TH AND LOCAL G VERNMENT 75 edial rather than preventive, and it is always more difficult to combat disease after it has once got a foothold than to prevent the conditions which make its ravages possible. But the gravest defect in the system was the failure to provide any means whereby the central authority could compel the execution of the law when once adopted.' It might be compulsorily applied, but not enforced, and the local au- thorities could do almost as they pleased. The same is largely true concerning the other methods of applying the law. One-tenth — the proportion of the ratepayers required to sign a petition for an inquiry — is a small proportion, but considering the strength of the forces working against sani- tary reform, considering that the expense of the inquiry had to be borne by the locality, and that the provisional order might be fought in Parliament if too much opposition was aroused, it is seen that even so small a proportion was a considerable limitation.'' But even if the law were applied, there was no way to enforce it. As one-tenth is far from a majority, enactment upon petition did not assure its execu- tion. The policy of the Board naturally and necessarily came in conflict with the interests and opinions of private individuals,, owing to the nature of the reforms to be secured. The Board itself was charged with trying to extend the field of government and to limit private activity. The amelioration of evils and the construction of works to prevent unsanitary conditions necessitated greatly increased expenditures, which a large portion of the property holders vigorously oppiased. To counterbalance all these defects and the opposition man- ' The great defect in former laws had been the lack of an authority to compel adoption and enforcement. See Hansard, op. cit., Vol. 98, p. 734. ^ The one-tenth limit was introduced as a compromise between those who wished to give the Board large coercive power, and those favoring extreme local self- government. See Hansard, op. cit.. Vol. 98, p. 874. 76 ENGLISH LOCAL GOVERNMENT [^6 ifested, the Board could point to no extraordinary increase in efficiency throughout the country as a whole, as did the Poor Law Commissioners when they were censured. The Act of 1848 had at the same time gone too far and not far enough. The power of the Board was not sufficiently ex- tensive to overcome local opposition, indifiference and selfish- ness, and to compel enforcement, but was sufficiently large to arouse antagonism and produce its repeal. The attack made in 1854 was waged partially against Mr. Chadwick and partially against the system of central con- trol. It succeeded in retiring him from the presidency of the Board, and four years later in making important changes in the law. No doubt the disrepute into which the system fell was due to Mr. Chadwick's failure to perceive that re- forms in Anglo-Saxon countries must be brought about by slow stages and steady growth, and his lack of patience in obtaining the desired results. The other defects in the law, however, would have necessitated extended alterations sooner or later. But before passing to the legislation of 1858, it is necessary to ascertain what the General Board of Health accomplished. A Parliamentary Report states that by June 20, 1857, one hundred and seventy-five places had become subject to the Act of 1848, either in part or in toto, having a population — in 1 85 1 — of 2,300,000.' Suppose this number had in- creased to 2,500,000 by the time the Act was repealed, does it compare very favorably with the whole population of Eng- land, which was 18,000,000 in 1851 ? The number of local acts altered during the ten years was fifteen. Only 113 pro- visional orders were confirmed and 109 orders in council issued.'' Up to March 31, 1853, in only twenty-eight places ' S. P., 1857, Vol. 41, pp. 3-19, 2d session. The British Almanac and Com- panion, 1859, p. 43, says 236 towns had become subject to it in 1858, but no ex- act statistics as to population are given. ' See Annual Reports of the General Board of Health. 77j PUBLIC HEALTH AND LOCAL GOVERNMENT yy had the Board directed inquiries to be held when no petition had been presented, and where the death-rate h&d exceeded twenty-three per one thousand upon an average in the seven preceding years. In only half of these had the Act been put in force by provisional order.' One needs only to consult the reports of the Registrar General to be convinced that these were only a fragment of the places having higher death-rates than twenty-three per thousand. Consulting the mortality .tables, it is found that for the period, 1 838-1 848, the average annual death-rate was 22.23 per 1000; for 1849-1857, it was 22.39 P^r 1000. If we allow for the increase in the death-rate which would have accompanied the growth of cities and populous places unless sanitary conditions improved, the conclusion is reached that the slight increase was in reality a hopeful sign. Had not local authorities been doing more to solve the problems after 1848 than before, the increase would have been much larger, especially when it is remembered that there were two cholera epidemics within the latter period. How much the Act of 1848 contributed towards keeping the death-rate down is a difficult question to answer. Directly its influence was not great, as it was in force in not more than one-seventh of the country. But if the General Board of Health did not ac- comphsh much directly, indirectly it performed valuable ser- vice. Information was gathered and disseminated, experi- ments made and their results published, and the public aroused to a reaUzation of its duties and responsibilities. The results of the earlier Parliamentary Commissions would probably soon have been lost, had not the Board kept the matter before the public eye. Although the reforms were somewhat too rapidly introduced, something had been accomplished. The discussion aroused had a healthful and invigorating influence, and greatly aided in impressing the 'S.P. (704), 1852-3, Vol. 96. 78 ENGLISH LOCAL GOVERNMENT [78 importance of sanitary problems and showing the great need of reform. The relation of the government to the individual was becoming more evident, and the way was being paved ior more lasting and successful reforms. It may seem a little surprising that central control should be frowned upon in the field of pubhc health but viewed with much favor in poor law administration ; but after con- sidering the defects of the first attempt in the former field, it is not so surprising. Another factor which assists in ex- plaining this apparent incongruity and also accounts to a certain extent for the differences of the present systems, is the difference in the very nature of the two fields. The efficient administration of the poor laws in 1834 was inseparably connected with decreased expenditure, and the present problem is not how to prevent parsimony, but blind pro- digality ; not how to encourage expenditure, but how to curb it. Opposition to central control was silenced by referring to the lower rates. In public health, it was different. The realization of the highest purposes of government necessi- tated increased expenditure, higher rates. The problem was how to induce activity and expenditure, not how to check them. When the central authority went a little be- yond its sphere in attempting to do the actual work of administration, the necessary increase in expenditures and the cry against centralization produced a most powerful combination for opposition to the law. The legislation of 1854 resulted in a change in the con- stitution and attitude of the General Board of Health, but not until 1858 was it abolished and its powers transferred to the Privy Council or Secretary of State. The way had been paved for the final move by several acts of more or less importance conferring certain powers upon these two authorities. The virulence of cholera and the total in- 79] PUBLIC HEALTH AND LOCAL GOVERNMENT yg ability of the local authorities to cope with it, induced Par- liament in 1855, just after a threatened epidemic, to pass an act conferring upon the Privy Council large powers regarding contagious diseases.' Logically, we would sup- pose that the General Board of Health would have been given these powers, but the Act reflects the opposition to the Board, so prevalent at that time. Thus, when the dis- memberment of the Board was determined upon, all the powers it possessed of this character were transferred to the Privy Council.^ The change of 1857, whereby all the members of the Board had become ex officio members, was the last nail in the coffin. The following year the " Local Government Act, 1858 "3 was passed, which specifically stated that " whenever the sanction, consent, direction or approval of the General Board of Health is required by law * * * such powers may * * * be exercised without such" approval, and none was to be substituted except as afterwards pro- vided.'' What powers were vested in any central authority were vested in " One of Her Majesty's Principal Secretaries of State," but his sphere of action was very narrow indeed compared with that of the former General Board of Health. He was given certain powers as to boundaries of places wishing to adopt the Act, and of subdivisions for election purposes, but a petition had to be presented by at least one- tenth of the ratepayers and an inquiry held before these powers could be exercised. Whether the Act should be adopted was determined by the locality and it alone, unless the Public Health Act of 1 848 was already in force, in which case its adoption became compulsory.^ The consent of the 'Diseases Prevention Act, 18 & 19 V., t. 116. ' 21 & 22 v., c. 97. See also Vaccination, 30&31 V., c. 84. »2i &22V., c. 98. */iid.,s.8. "Ibid., s. 12, 16, 24. The 26 & 27 V., c. 17, ». 2, made the approval of the Secretary of State necessary in places of less than 3,000 inhabitants. 8o ENGLISH LOCAL GOVERNMENT [go Secretary of State was necessary to the purchase of property for new streets, the mortgaging of rates and the borrowing- of money .^ Certain other provisions were given relating to financial matters, but as they will be discussed in subsequent chapters, they may be omitted here. Provisional orders and orders in council might be amended or repealed by a provi- sional order issued by the Secretary of State, provided a petition had been presented by the local board or by a majority of the ratepayers or owners, and a local inquiry- had been made.' The alteration of boundaries and the bor- rowing of money were to be dealt with similarly .3 The most interesting part of the Act is what it omits to re-enact, and it is in this respect that it contrasts most strik- ingly with the Act of 1848. The tone of the earlier law was that of compulsion. Its purpose was not only to facilitate but to compel the exercise of larger powers by local autho- rities. In the Acts of 1858, we find an entire absence of powers of compulsion, except in such unusual instances as cholera epidemics. The powers of investigation and inquiry still remained, but their object was confined to facilitating; the adoption of acts, to inducing local authorities to under- take sanitary reforms, and to disseminating knowledge. The actual attitude of the Secretary of State and his sub- ordinates was entirely in accord with the theory of the law, for while it was not obligatory that the requests of the localities be granted, he did very much as he was requested and did not undertake to direct their actions. What was done towards arousing the people and diffusing the latest successful experiments and inventions in sanitary science^ was done chiefly by the Privy Council through its medical officer. Between 1858 and 1872, numerous acts were passed con- ferring upon local authorities additional powers, but from 1 21 & 22 v., c. 98, s. 36, 57. » IHd., s. 77. ' Ibid., s. 78. 8lj PUBLIC HEALTH AND LOCAL GOVERNMENT 8 1 the standpoint of the present study, only three or four are of importance. A tendency towards centralization is again plainly manifest. Eight years were sufficient to prove that local self-government pure and simple was undesirable. The first of these acts provides that when complaint is made that the local board of health, the sewerage authority or the nuisance authority is in default, i. e., neglecting to perform its duty, the Secretary of State shall, after due inquiry, set a limit within which time the duties must be performed. If this order is not obeyed, he may appoint a person to perform the duties, and the expenses incurred are to be borne by the locality whose authority is in default' The weakness of the plan lay in not declaring how the expense was to be momentarily met, and how the rates were to be levied and collected in case the proper authorities re- fused to act. These defects were soon remedied by provid- ing that the expense thus incurred was to be considered a debt, and in case the proper authority refused to pay the required amount, the Secretary of State could appoint a person to levy and collect a local rate, pay expenses, and in case of a surplus hand it over to the local authority. Until this could be done the sum needed was to be borrowed, but all expense finally fell upon the locality and in the manner described.3 The student just fresh from the study of the opposition to centralized administration, which reached high tide about 1858, is somewhat surprised to see so sudden a reaction, and wonders what were the causes. If the mortality tables be consulted, it is found that since i860 the death-rate had increased two per one thousand, and particularly among children in the larger cities had disease become destructive.^ ' While improvement had been made in many places, it was iz9& 30 v., 0.90,8.49. ^3i&32V.,c. 115,8.8. 8 32&33V.,c. 100,8. 5. * Hansard, op. ciU, Vol. 184, pp. 1377-1381, 2071. 82 ENGLISH LOCAL GOVERNMENT [82 found that unsanitary conditions largely prevailed. The Privy Council had aided aspiring localities with much infor- mation and advice, and where there existed an earnest de- sire for improvement successful results were obtained. But many other localities, which were indifferent, apathetic and careless, were not doing much to better conditions. It was not because ample power could not be easily obtained, but because the sense of duty was not sufficiently strong, and no superior authority existed which could compel the execution of the law. Local self-government pure and simple had proven a failure. Efficient administration was of national not local importance. A cholera epidemic again threatened, and public opinion was ready for the insertion of the word must in this department of local government as it had been in another. The Act of 1 866 was the result.' It is important, however, to note that the new plan was not similar to that introduced in 1848 either. The theory of the Act of 1848, although not carried out logically, was the compulsory adoption of powers in places where greatly needed. The Act of 1866 was the expression of the idea that when once powers had been adopted or imposed by a general act, the locality must exercise them. It did not gi-C^e a central administrative authority power to impose duties, but did give it power to enforce them when once the locality had assumed or Parliament had imposed them. The value of this step is greater than might at first be observed, for although the adoption of many of the acts passed was not compulsory but optional with the locality, the competence of local authorities had been enlarged considerably by acts of general application. Much depended upon the attitude of Parliament as to what the future of the plan should be, for if the number of adoptive acts was increased, and few ' Upon this subject see Hansard, op. Hi., Vol. 210, pp. 861, 870; also Vol. 212, pp. 1248-1257. 83 J PUBLIC HEALTH AND LOCAL GOVERNMENT 83 duties imposed compulsorily, the local authorities could escape from the influence of the Act by refusing to assume responsibilities. No doubt this loop-hole was perceived as to many of the laws then upon the statute books, and we shall soon see how the defect was remedied by the Public Health Acts of 1872 and 1875. Before passing to the laws now in force, let us ascertain what were other defects of the existing system, and what had been accompHshed when the eighth decade ushered in a system in many respects new.' The utter lack of a uniform system is probably the most noticeable and important. While every locaHty does not need the same powers and privileges, and some allowance should be made for varying needs, the results are most dis- astrous when scarcely any uniform system exists as a basis. Up to 1872, a place might have adopted part or all of the Acts of 1848 and 1858 with their amending acts, or it might have been governed by local acts, or a combination of local and general acts, or it might have been under the old system of administration where the justices were about the only sanitary authorities. Hardly any two localities were gov- erned by precisely the same statutes. The indifferent had the fewest powers and responsibilities, and where reform was most needed, it was usually the farthest from being secured. The result was inconceivable confusion as to the competence of local authorities and an inexplicable intermingling of jur- isdictions. In rural communities, the parish vestry was the sewer authority, the board of guardians the nuisance author- ity, and powers to construct and maintain improvements were in the hands of still other bodies." Areas and author- ^ The best Parliamentary Report upon the history previous to 1871 is the Report of the Sanitary Commission, 1869-1871, S. P., 1871, Vol. 35. I am also indebted to Simon, English Sanitary Institutions, for many facts. ' Simon, op. cit., pp. 322-3. 84 ENGLISH LOCAL GOVERNMENT [84 ities did not coincide, and it was almost impossible to fix the responsibility either for evasion of duty or misapplication of power. Inactive boards did little more than keep their roads in repair, and by means of light rates purchased popularity which was seldom broken in upon by some zealous reformer, more influenced by sanitary evils than higher rates.' The statutes relating to the central authorities and their powers were somewhat better, but still far from perfect. Four authorities were vested with more or less control ; the Home Office — Secretary of State, Privy Council, Board of Trade and the Poor Law Board. In many instances their realms were not mutually exclusive, and their independence hindered unity of purpose and action. The staff of the Home Office was insufficient, and as it had no general power of inspection, what it learned came principally through ap- plications for approval of loans and for provisional orders. Until the plan of central intervention in cases of default was introduced, it was only with the most active boards that the Secretary of State had more than a most infrequent com- munication.'' But even in this case, the requirement that a complaint must first be made, limited its activity somewhat because of the widespread indifference and the opposition to central supervision. Some of the objections to the existing system were removed in 1871, when the powers and functions of the central authorities relative to public health, prevention of disease, vaccination, registration of births, deaths and mar- riages, baths and washhouses, public improvements, artisans' and laborers' dwellings, and local taxation returns, were transferred to the Local Government Board, the successor of the Poor Law Board.3 The following year the powers of the ' Rep. of L. G. B., S. P., 1872, Vol. 28, p. 44. ■>■ Ibid., p. 43. * 34 & 35 v., c. 70. For references to the various acts amended, see the Sched- ule of this Act. 85] PUBLIC HEALTH AND LOCAL GOVERNMENT %i Board of Trade and the Home Secretary under Highways and Turnpike Acts were likewise transferred.' The Poor Law Board was probably selected because of its large ex- perience, eminent success, efficient organization and com- petent officials.'' Although the complete consideration of the results of the various systems will be given in its proper place, i. e. after they have been described, it will not be amiss to stop for just a moment and consider sanitary conditions in 1871. Consulting the death-rates, we find these facts : — Average annual death-rate 1838-1848 1849-1858 1859-1866 1867-1871 per 1000 living — 22.23 22.46 22.44 22.26 Discarding the slight variations upon which too much de- pendence must not be placed, it is seen that the death-rate remained about the same since 1848, with a slight downward tendency since 1866. But as has been said, considering the great growth of cities this is a favorable sign, and no doubt the rate was kept down by sanitary improvements undertaken by places governed by the Public Health and Local Govern- ment Acts, which were in force in about seven hundred towns and districts.^ Most of the larger boroughs, as Liver- pool, Birmingham and Manchester, were under local acts, the latter having twenty-two,'' and were doing much to better conditions, but beyond these two classes there was an amazing lack of proper administration. The effect of the adoption of the general laws was almost invariably decreased mortality.5 Still conditions were far from ideal and a reform was most urgent. 1 35 & 36 v., K.. 79, s. 34, 36; 38 & 39 v., I.. s5, s. 144-148. ^ Cf. Simon, op. cit., p. 348. "Rep. of the Royal San. Com., S. P., 1871, Vol. 35, pp. 15, 177-182.; Hansard, op. cit.. Vol. 213, p. 446. * S. P., 1871, Vol. 35, pp. 177, 226. ^ In Bristol the rate fell from 31 to 22 per 1000. Ibid., p. 178. 86 ENGLISH LOCAL GOVERNMENT [86 It was not until the eighth decade of this century that a comprehensive administrative system for the execution of public health laws was established, embracing the whole of England and Wales, excluding the Metropolis. In 1872 an act was passed creating local authorities and dividing the country into urban and rural sanitary districts.' In the for- mer, the authority was either the borough council, improve- ment commissioners or a local board especially created. In the latter, or the remainder of the country, the board of guardians was the authority. In 1875 an act was passed whose principal object was to amend and consolidate the existing laws," which had been enacted from time to time without any exact knowledge as to their relations or com- bined effect. But it went further ; it made changes in the law itself, it extended and completed the statutory reforms which the Acts of 1872 and 1874 had begun. Since the laws passed in this decade are the basis of the present system, and have not undergone great modification, no description is needed except as is given in the outline of the system now existing. It is not proposed of course to give a detailed account, even of central control. For the minute particulars, reference must be made to the statutes.^ The principal fea- tures will be pointed out, and I shall try to give an idea of the extent of the control and its varied forms by selecting as far as possible representative provisions. Public Health will be the central figure around which other provisions will be grouped. I pray the reader to bear in mind that this is not a legal treatise and that the field I have attempted to cover ' For an interesting debate see Hansard, op. cit.. Vol. 210, 212, 213. *It embodied 47 acts wholly or partially repealed. Cf. Clifford, op. cit., ii., p. 331- ' See also Glen, The Law Relating to Public Health and Local Government, Eleventh Ed., for an excellent compilation of the statutes, the decisions of the courts, and the orders and regulations of the Local Government Board. 87] PUBLIC HEALTH AND LOCAL GOVERNMENT 87 in this chapter is the most conglomerate and confused por- tion of EngHsh local government, all of which is a product of slow growth, conservative experiments and anomalies. General rules are very dangerous, for they are seldom if ever absolutely true and the exceptions are often as important and as numerous as the conditions to which the rule is sup- posed to apply. 2. Central Authority. In general. It is not necessary to repeat what was said in the previous chapter regarding the constitution, the super- vision of subordinate officers or the general powers of in- quiry of the Local Government Board. They are the same in nearly all particulars as under the poor laws. The Board itself does not have quite as wide powers of general inspec- tion as in the case of the poor laws, but when a decision is required, or when certain powers are to be exercised, it has received ample powers of inquiry in order that its action may not be immature nor founded upon incomplete informa- tion. It does not have a representative before the parish, county or district councils, as it has before the union, but its inspectors may attend the meetings of the district councils and take part in the discussion, although they cannot vote." It may also require numerous and detailed reports from the local authorities themselves.'' The same is true in general of the other central departments that possess some control over local authorities. They are not hindered by lack of power to investigate and to ascertain the required facts. Quasi-legislative powers. To give an outline of the powers of sanitary authorities or district councils, as they are now ' 38 & 39 v., c. 55, s. 205, 293-296. About 900 local inquiries were held dur- ing 1895 by engineering inspectors of the Board. 25th Rep. of L. G. B., 1895-6, pp. 38, 120. ^ Ibid., s. 206. 88 ENGLISH LOCAL GOVERNMENT [88 called, the limits of the space at command make impossible. The Public Health and Sanitary Acts have conferred enor- mous powers and imposed vast responsibilities, but besides these there are numerous "adoptive acts," i. e., acts that may be put into operation at the option of the locality, which have -also increased their competence.' It is import- ant to note, however, the part the Local Government Board and other central administrative authorities play in the con- ferring of powers. As has been said, all England is divided into rural and urban county districts (sanitary districts) which may be said to correspond roughly with the urban or rural character of the locality, and their chief difference is in the power pos- sessed by the local authority — the district council. Very briefly one may say that the rural councils deal with sewer- age, drainage, water supply, inspection and prevention of nuisances, inspection and regulation of lodging houses and cellars, provision of hospitals, cemeteries and mortuaries, and infectious diseases. Urban councils deal with all these, and besides, undertake the maintenance, cleansing and im- provement of streets and roads, town improvements, light- ing and regulation of trafiSc.^ But the line between rural and urban county districts is not sharply drawn, and the only clear, practical distinction is whether the local author- ity is the rural district council — the transformed board of guardians — or the urban district council. As to their func- tions, the districts are more like a huge number of concen- tric circles ; the outermost, having the largest powers, being the urban district with all the functions of the public health acts, adoptive acts, and kindred others ; the innermost being the rural district of the most limited competence. Between ^ An incomplete idea may be secured from consulting the purposes for which loans were made during 1895-6. See chapter VI. ■' Wright and Hobhouse, Local Government and Local Taxation, p. 40. 89] PUBLIC HEALTH AND LOCAL GOVERNMENT 89 the two are numberless other districts having various powers and functions, and hardly any two coincide. Whence comes this queer condition ? It is partially due to the existence of adoptive acts ; but there is another explanation. The Local Government Board has power to constitute a local government district, provided a petition requesting it has been received which was passed by the owners and rate- payers of a locaHty " having a known and defined boundary," or signed by one-tenth of the persons rated for the relief of the poor in a locaHty having no defined boundaries.' This is equivalent to the establishment of a new urban district, for the local board which would come into existence is an urban district council.^ The Board is not obliged to establish the new district and may do what it pleases with the petition. Going a step further, the Board may, upon application from the rural district council or the ratepayers, the assessment of whose hereditaments amounts to at least one-tenth of the net ratable value of such district or any contributary place therein, invest such authority with any or all of the rights, privileges, duties, and powers of an urban district council, specifying conditions as to the time, portion of district and manner of assuming such functions.^ It may also invest any urban district with any or all of the powers of a rural district without any petition, but this is practically unim- portant, as the instances in which rural councils have powers not belonging to urban are very rare, the most important relating to the question of water supply in private houses.* The Board may also constitute any sanitary authority, whose district forms or abuts upon any port or harbor, a port sani- tary authority, thereby increasing its powers.^ To go still further, the Board may order a local authority to remove or ' 38 & 39 v., c. 55, s. 272. '^ Ibid., s. 6. '38 & 39 v., c. 55, s. 276; S3 & 54 V., c. 59, s. 5; 55 & 56 V., c. 57, s. 4. * 41 & 42 v., c. 25, especially s. 11. ° 38 & 39 V., c. 55, s. 287. 90 ENGLISH LOCAL GOVERNMENT [go contract for the removal of house refuse from the premises, the cleaning of earth closets, ashpits, cesspools, and the cleansing and watering of streets.' But the largest powers in this direction are in connection with epidemic, endemic and contagious diseases. Here it is almost supreme. It may make, alter or repeal such regulations as seem proper con- cerning interment of the dead, house to house visitation, medical aid, disinfection, cleansing, ventilation, et cetera; and may even determine what authorities shall enforce these regulations.^ These provisions savor much of legislative power, but their character and limitations, in certain instances, petitions being required to be first presented, stamp them as nothing more than quasi-legislative. It is to be noticed, however, that the conditions are not stringent. One-tenth of the per- sons rated for the relief of the poor was a rather high limit at one time, but there has been such a great change in the attitude of the public that it is easy now to get this number to petition, and practically it is not much of a limitation. It is more of a relic of the idea, which was so strong at one time but which has lost much of its power, that the locahty should have much to say concerning the enactment of legis- lation which is of general interest as well as that which is of a purely local character. The fundamental object of the system is to prevent powers being conferred by general act or by the Local Government Board which are absolutely not desired by the locality, and which, because not desired or needed, will not be properly exercised, and yet to avoid the other extreme of limiting too narrowly the functions of local authorities by general act, while leaving to special legislation the granting of powers ' 38 & 39 v., ^. 55, s. 42. Cf. s. 80-90. 2 Ibid.ji. 130-139; 46 & 47 v., c. 59, s. 2. QC 48 & 49 v., c. 61; 52 & 53 V., c. 72. gi] PUBLIC HEALTH AND LOCAL GOVERNMENT gi needed in certain localities but not in all. Not that there is anything inherently wrong in the ic/ea of special legislation,, but the evils arising from ill-considered legislation are so great that the work done by special legislation has been transferred to an administrative authority. The result has been, as noted, that councils exist which have every degree of power. About one hundred orders are- issued annually investing rural councils with urban powers, which usually refer to the cleansing and watering of streets^ the making of by-laws regarding nuisances and new build- ings, contracts for lighting, and the regulation of streets.^ Past experience commends very highly this easy, inexpen- sive yet highly successful method of granting local powers. The Local Government Board has other powers of a simi- lar character. It may by a provisional order dissolve a local government district, a special drainage district, or an im- provement act district whose area is co-extensive with that of a borough.^ It may likewise confirm m toto or with modifications schemes for the improvement of districts and houses unfit for human habitation according to the Housing of the Working Classes Act, 1 890.3 Under the Allotments. Act, discretionary power resides in the county council, for a provisional order must be prepared if the county council requests.'' To put into force the provisions of the Lands Clauses Consolidation Acts regarding the purchase of land otherwise than by agreement, the Board issues a provisional order; 5 and in the same manner county districts or parts thereof may be united into one district to procure a com- mon water supply, to construct a sewer, or for any purpose within their powers.* "^asth Rep. of L. G. B., 1895-6, p. 117; pp. 620-626, App. ' 38 & 39 v., c. SS. =*• 270. ' 53 & 54 v., y.. 70, s. 8, 10, 15. ♦ 50 & 51 v., c. 48, s. 3. » 38 & 39 v., c. 55, s. 176. « Ibid., s. 279. C;^ 51 & 52 v., c. 41, s. 14. 92 ENGLISH LOCAL GOVERNMENT [92 The Act of 1888 made it lawful for the Local Government Board to transfer by provisional order to county councils such powers and duties of the Privy Council, Secretary of State, Board of Trade, Local Government Board, Education Department, or any other government department, as relates to matters within the county, or as are held by any commis- sioners of sewers, conservators, or other public body (the municipal borough, district council, school board and board of guardians excepted). If the order refers to powers and duties of departments of the central government, it must be approved by the department affected.' The powers which it was thought might be transferred were enumerated in the bill as originally introduced, and dealt with burial-grounds, piers and wharves, gas and water works, tramways, electric lighting, baths and wash-houses, and the power to force sanitary authorities to perform their duties.'' As yet no transfers have been made. One was attempted in 1889, but the opposition was too great and it fell through.^ In another class of cases, the approval of the Board is the only requirement ; confirmation by Parliament is not neces- sary. Agreements made by two or more local authori- ties regarding the union of sewers,* the constitution of any portion of a rural district a special drainage district,' and the payment of expenses incurred by municipal boroughs in promoting or opposing bills in Parliament from the local rates are representative of this class.* The Board may also declare any expenses incurred by the district council to be special expenses, that is, to be borne by a portion of the dis- trict.' Next to the Local Government Board, the central depart- ' 51 & 52 v., >-. 41, s. 10. ^ Hobhouse and Fanshawe, op. ctt.,-p. 21. ' Simon, op. cit., pp. 422-3. ' 38 & 39 V., c. 55, s. 28, 32. Cf.t,i V., c. 5, s. 26. s Ibid., s. 277. ^Ibid., s. 313. Cf. 51 & 52 V., c. 41, s. 15. ' Ibid., s. 229, 230. 53 & 54 v., c. 59, s. 49. 93] PUBLIC HEALTH AND LOCAL GOVERNMENT 93 ments having important powers are the Board of Agricul- ture, the Secretary of State and the Board of Trade. The activity of the former is principally confined to the manage- ment of animals infected with contagious diseases or destruc- tive insects. When it becomes necessary, the Board of Agriculture may assume almost absolute control over local authorities as well as private individuals. It may issue or- ders that are as far reaching and that must be enforced just as rigidly as statutory enactments. The Hmitations upon its power are comparatively shght.' The powers of the Secretary of State are mostly concerned with subjects the administration of which is almost completely centralized, as the factory acts, the registration of foreigners, the manufacture of explosives and the control of prisoners. The exceptions to this rule are unimportant." The Board of Trade has large powers under the Weights and Measures Act, but they are largely of an administrative character.^ It may also authorize companies or persons to construct and maintain gas-works or water-works in any dis- trict within which there is no existing corporation or body of commissioners authorized to do so.'* It may also license any district council, company or person to supply electricity for public or private purposes where the consent of the local authorities is not given. s Local authorities owning gas- works may be relieved from the obligation of supplying gas in a place which is sufficiently well supplied with electric light and where the gas plant has ceased to be remunerative.^ 1 40 & 41 v., c. 68; 52 & S3 v., c. 30, s. 13; 57 & 58 V., u. 57. '^Vide 6 & 7 v., c. 68, s. 9; 43 & 44 V., c. 35. See also the chapter upon " Police." = 52 & 53 v., c. 21. * The consent of the local authorities is required, but may be waived by the Board of Trade. 33 & 34 V., c. 70, s. 3, 4, 6. 6 45 & 46 v., t. 56, ». 3, 4. * Ibid., s. 29. ^4 ENGLISH LOCAL GOVERNMENT [94 No local authority may transfer its powers and liabilities as jegards electric lighting without the consent of the Board of Trade.' As to the practical working of these provisions, little is ■said in the reports of the various departments. The pre- valent opinion is that they are quite satisfactory, and the absence of complaints is indirectly a high commendation. Even the latest acts contain similar provisions, and although there is a tendency towards decentralization it is principally in the direction of minor details, which since the establish- ment of the county council can be as well administered by this body as by the central departments. One great result of the transfer from Parliament to administrative authorities of legislative functions is the small amount of special legisla- tion, but this subject will be discussed in a subsequent ■chapter. Powers relating to local areas and boundaries. It is hardly possible to separate this class of powers from the preceding, for an alteration of boundaries often means an increase or decrease in the powers of a given area, and the change is -often made with this end wholly in view. It is, therefore, as much a ^«««-legislative power as any of the powers just mentioned. But from this extreme, the provisions shade off into instances where the object is purely administrative, such as the fixing of ward boundaries for election purposes. Until the Local Government Act of 1888 went into effect, the Local Government Board was practically the supreme authority over local areas as far as the Public Health and Local Government Acts were concerned. It usually had to ■exercise its powers through provisional orders, but the re- straining influence of Parliament was not large either actually or potentially. As has been noted, it had the power to con- ■stitute or dissolve, by a provisional order, a local government '45 & 46 V., c. 56,8. II. 95] PUBLIC HEALTH AND LOCAL GOVERNMENT ne districts, but it could do more. It could merge them, sepa- rate any portion, add it to another, or modify in almost any manner it chose.' The provisional order divided the district into wards and decided the number of councillors to be elected from each in case a new district was created or two or more united,' and if boundaries were altered so as to necessitate a re-arrangement, it provided for this also.3 The Act of 1888 followed this plan to a certain extent by pro- viding that the number of county councillors and their ap- portionment should be determined by the Local Government Board.'* Where the borough council is not the urban district council for all of the area of the borough, and where the borough is either co-extensive with or wholly or partially included within an urban district, the Board may make a provisional order determining the area of the county district, and if the population exceeds 50,000, may constitute a county borough.5 The Board may also issue an order alter- ing the boundary of a county or borough, uniting a county and county borough, dividing a county, constituting a bor- ough of over 50,000 population a county borough, changing the electoral divisions of a county or the number of council- lors, or modifying the boundary of any area of local govern- ment, providing the council of the county or borough has sent a "representation" to that eflfect. If the order performs any of the first four operations, it must be confirmed by Parliament, and all the changes with respect to the boundar- ies of wards and apportionment of councillors or aldermen necessitated by the exercise of the above powers may be ' 38 & 39 v., c. 55, s. 270, 271, 272, 279. '^Ibid., ». 271, 280. " Ibid., s. 270. '51 & 52 v., 0. 41, s. 2 (3). No provisional order is required. ''Ibid., s. 52. In 1883 there were 14 cases of boroughs and urban sanitary dis- tricts overlapping one another, and having an authority other than borough con- cil. Cf. Hobhouse & Fanshavire, op. cit., p. 97. 96 ENGLISH LOCAL GOVERNMENT [y6 made.' If the county council thinks that the area of a county district should be altered, divided, united with others, converted into an urban district if a rural district, or vice versa, divided into wards, or the boundaries of wards altered or the apportionment of members changed, it may so order. If the order refers to any but the last two subjects, it must be submitted to the Local Government Board, which must approve, unless a petition is presented to the contrary by at least one-sixth of the electors in the place affected, in which case it may confirm, reject or modify.^ Similar subjects under the Local Government Act of 1894 are almost entirely within the control of the county council, except so far as the poor laws and the Act of 1888 enact other provisions.^ The importance of these powers is naturally great, but owing to the confused condition of local areas and the great need of reform, it is greatly increased. During 1895, the boundaries of thirty-nine administrative counties and county boroughs, and fifteen boroughs were changed by provisional orders ; twenty urban districts were constituted and forty increased or diminished in extent by orders issued by the county council and confirmed by the Board; and 131 addi- tional orders relating to various subjects were prepared by county councils or joint committees and confirmed by the Board. + In forty-four provisional orders, sections as to alterations in electoral divisions and the number of council- lors in counties and boroughs were inserted.' All in all, the provisions described seem to be working smoothly, although the more recent ones have hardly been in operation long enough to be fairly tested. It is definitely known that the older plans have been satisfactory, and it is ' SI & 52 v., c. 41, s. 54, 55. "^Ibid., s. 57; Cf. s. 59, and 50 & 51 V., c. 61. ' 56 & 57 v., ^. 73, ». 2, 36-42, 53, 69. ' 25th Rep. of L. G. B., 1895-6, pp. 362-383, App. ^ Ibid., p. 25. In all fifty orders were confirmed. 97] PUBLIC HEALTH AND LOCAL GOVERNMENT gj very likely that the recent changes have not decentralized them to such an extent as to be disastrous. The charge of gerrymandering is almost unheard of, and although there are other causes that have led to this result, it is also certain that the possession of control over local areas and electoral divisions by a central, non-political body has contributed no small amount towards the absence of the charge. Power over local acts. The Local Government Board does not possess the large powers over local acts relating to pub- lic health that it does over those relating to poor relief. It can, however, by provisional order wholly or partially repeal, alter or amend any that do not relate to the conservancy of rivers, or do not confer powers and privileges upon corpora- tions, companies or individuals for their own pecuniary ben- efit, but which deal with the same matters as the sanitary and public health acts, an application having been previ- ously made by the local authority of the district.' It may likewise transfer to the county council any powers or duties of any quarter sessions, or justices, or committees thereof, under any local act, that are similar in character to those transferred to county councils by the Local Government Act of 1888, and in this case a previous application is not neces- sary.^ In 1895, provisional orders amending or repealing local acts relating to twenty- two places were confirmed .3 Approval of by-laws. Probably the most common provis- ion is that requiring the approval of the central government before by-laws issued by local authorities can be enforced. Those regarding the management of markets and fairs,-* allot- ments,5 baths and wash-houses,^ main roads and highways,' public museums and gymnasiums,* the housing of the work- 1 38 & 39 v., c. 55, s. 303. ^ s> & 52 v., c. 41, s. 4. 3 25th Rep. of L. G. B., 1895-6, pp. 593-595. App. ' 10 & II v., t. 14, s. 42, 44; 38 & 39 v., c. 55, s. 184. 5 50 & 51 v., c. 48, s. 6. « 34 & 35 v., c. 70, s. 2; 41 & 42 v., c. 14, s. 6. ' 41 & 42 v., u. 77, s. 26, 35. ° 54 & 55 v., ^. 22, =. 7. 98 ENGLISH LOCAL GOVERNMENT [g8 ing classes,' streets, construction, ventilation, sanitation and stability of biiildings,° and all other matters that are included under the public health acts must be approved by the Local Government Board.s Besides the acts here referred to, there are many others imposing a similar restriction upon the various local authorities, and in 1895, 283 series were confirmed under provisional orders and general and local acts upon the following subjects: scavenging and cleans- ing, nuisances, common lodging houses, streets and build- ings, markets, slaughter-houses, hackney carriages, public bathing, pleasure grounds, animals for hire, pleasure boats, houses let in lodging, cemeteries, mortuaries, offensive trades, sanitary conveniences, swings, water-closets, tramways, high- ways and locomotives, and omnibuses. The authorities in- cluded urban and rural district councils, town councils, vestries, local boards of health and county councils.* Borough councils when acting as municipal authorities, are required to send their by-laws to the Secretary of State, and if they are not disallowed within forty days by the Queen upon the advice of the Privy Council, they go into efirect,5 and in a few instances the county councils do likewise.^ The Board of Trade also possesses some powers of this nature. By-laws regulating the rate of speed to be ob- served upon tramways, the distances at which carriages may follow one another, places of stopping and general traffic must be sent to this department, which may disallow within two months. ' Those issued by urban district coun- ' 53 & 54 v., c. 70, s. 84. ' 38 & 39 V., c. 55, s. 157. ' Ibid., s. 184; 53 & 54 v., c. 59, s. 9. Vide also 47 V., c. 12. * Z5th Rep. of L. G. B., 1895-6, pp. 602-610, App. The parish council is sub- ject to the same conditions, although it does not appear upon the list. See Re- port, p. 43. * 5 & 6 Wm. IV., u. 76,5.90; 38&39V.,c. 55,5.187; 45 & 46 V., i.-. 50, a. 23. 051 & 52 V., c. 41, 5. 16; 54&55V.. c. 65,5. 12. ' 33 & 34 v., 0.78,8.46. 99] PUBLIC HEALTH AND LOCAL GOVERNMENT 99 cils relating to the prevention of danger or obstruction to the public from posts, wires, tubes or any other apparatus stretched or placed above, along or across any street for the purpose of lighting, telegraph, telephone, railway signaling or other purpose must be approved before taking effect.' The same is true of the by-laws affecting the sale of coal, its weight, delivery, fees for weighing, and even the inspection of weights and measures." To summarize ; there is hardly an instance, if any at all, where a by-law imposing an obligation upon private individ- uals is not required to be approved either directly or indi- rectly by a central authority before taking effect. This plan, which has existed ever since the first Public Health Act in 1848, being taken from the Municipal Cor- porations Act of 1835, is usually regarded with favor. In its earliest days not many by-laws were presented, but at present from three to five hundred series are approved every year.3 Formerly not much effort was made to force the local authorities to conform to the ideas of the central authorities. The idea of local autonomy did not permit it. Nevertheless, some influence was exerted by the formation of model by- laws and the distribution of information regarding the sub- ject matter. This has been continued down to the present,* and now the practice is to submit the proposed by-laws to the central authority, which examines the details from the legal, sanitary and technical points of view, and suggests what changes are needed ; then they are finally prepared, again presented, and usually approved.^ Not much friction >45&46V.,c. 56,s.6; 53454 V.,i;. 59,=. 13. ' 52 & 53 v., c. 21, s. 9, 28; 53 & 54 v., c. 59, s. 13. ' The by-laws of school authorities are not included in this list, but will be dis- cussed in the chapter on Elementary Education. They must be approved also. •For those followed in 1883, see Smith and Smith, The Laws Concerning Pui- lic Health. * 25th Rep. of L.G. B., 1895-6, p. 127. lOO ENGLISH LOCAL GOVERNMENT [joo exists between the local and central authorities, not because the latter are inactive and submissive, but because the former willingly except and follow the advice given. Great advan- tages arise from the communications and conferences.- Much litigation is prevented by the excellent legal form of the by- laws and the selection of the proper methods for enforcing their provisions. If an authority tends to overstep its bounds, the central authority with superior legal and scientific knowl- edge points out the mistake, which is at once remedied. For the same reasons the law is well enforced, and uniformity both in form and substance is secured. Although the cen- tral authorities do not compel compliance with their wishes, they have been very successful in securing the adoption of their recommendations, and I have heard of no objections to the system. Its gradual extension even to the last important act — that of 1894 — shows that it is viewed very favorably. Power over 'local officers. In the preceding pages the power to apportion county and district councillors was inci- dentally noted, but the control of the Board over local ofiS- cers is much more extensive. The former provisions did not in reality establish any control. The Board has the same powers relative to any local offi- cer a portion of whose salary is paid out of the moneys voted by Parliament, as it has over the subordinate officers of the union ; that is, it may fix their qualifications, method of ap- pointment, duties, salaries, and tenure of office. In practice, only two officers, the medical officer of health and the in- spector of nuisances, come within the requirements. The same person may be appointed to the same position in two or more districts upon the sanction of the Board, which pre- scribes the mode of appointment and the way in which the expenses necessitated by such appointment shall be divided.' 1 38 & 39 v., c. 55, s. 189-191. 51 & 52 v., c. 41, s. 24 (c), 6xed the amount to be contributed by the central government at one-half the salary. I O I ] PUBLIC HEAL TH AND L CAL G VERNMENT i q i The Board may also unite districts partially or wholly within the same county for the purpose of appointing a medical officer of health, may fix mode of appointment and removal, and apportion expenses.' To prevent rural councils from paying inadequate salaries and thus impairing the efficiency of their officers, the salaries of the clerk and treasurer in rural county districts must be approved by the Board.^ There is little danger from this source in urban districts. This plan, which was introduced in 18723 and completed in 1875, was in some degree a return to the theory, which existed prior to 1858, or 1854 at least, that the government should have some control over the local administrative authorities themselves. Its apparent basis in 1872 was the idea that if the state contributes to a local undertaking it should be granted some control over the administration. This was not the fundamental reason, however. It was the excuse for the introduction of central control rather than the cause. The foremost students saw that if the law was to be well enforced, independent officers were needed. Public opinion would not tolerate a system where local officers were appointed by or were made responsible to the central gov- ernment simply because the law would thus be better en- forced. Hence it was proposed to pay part of the expense, not merely because aid was needed, but because central con- trol ought to exist and public opinion would hardly permit it without government aid. It was thought at the time of the passage of the act that this would be sufficient induce- ment to persuade all authorities to submit to the control. But unfortunately the salaries of only two officers were par- tially paid. These were, it is true, the important factors in the enforcement of the law, and many localities refused to accept the subvention and thus avoided supervision. The law did not specify the qualifications of the persons chosen, 1 38 & 39 v., c. 55, s. 286. '' Ibid., s. 1^0. " 35 & 36 V., c. 79, a. 10. I02 ENGLISH LOCAL GOVERNMENT [l02 , and thus there was no guarantee that competent persons would be chosen in places where indifference, ignorance or opposition ruled. The districts were usually too small to support alone one officer and require him to give his whole time to the duties of the office. The union of several dis- tricts was pressed with much zeal, but as it was not until 1875 that the Board acting alone had power to unite dis- tricts, the benefits attained in this direction were not large. The salaries assigned by the local authorities were small, and they foresaw that if the central government once got a hold, it would cause a much larger expense and the subven- tion would not counterbalance the increase. Thus where moral obligations did not influence the minds of the authori- ties, the Board secured no control. In 1873, of the 1104 authorities which had appointed officers of health, only 625 were to receive half payment, 415 were not, and 64 did not report.' Probably some were too independent to submit to the control and were appointing efficient officers, but most of those not receiving aid were inefficient and negligent. The regulations imposed by the Board were not rigid at first, but the inducement was not sufficiently large to cause local- ities to submit to them. Here, as usually in cases of condi- tional subventions, those most needing central supervision were the last to submit to it. No doubt some good results were obtained during the early years of its existence, but they were not commensurate with the expectations, and it is doubtful whether they justified the expenditure of from ;^50,ooo to ;£'6o,ooo annually.'' Since 1873, many changes have occurred. There has always been a tendency to assign inadequate salaries, and the Board has felt itself bound to withhold its sanction in ' Simon, op. cit., p, 370. ' Upon this general subject see Simon, op. oil., pp. 360-371; Hansard, op. cit.. Vol. 223, pp. 1252-3. I03j PUBLIC HEALTH AND LOCAL GOVERNMENT 103 many cases. Instances have not been infrequent where aid from the Parliamentary grant has been refused, but they are decreasing/ At the same time the standards of the Board have been raised, and in 1895 about ninety per cent, of the authorities were receiving subventions for the salaries of medical ofiScers of health and inspectors of nuisances. Whether the extended application of central control was brought about by the desire for aid is a question. It un- doubtedly did have some effect, but it seems probable that the first impetus came from other directions. After the obligations resting upon local authorities came to be realized, and efficient administration had come to be sought for its own sake, then subventions increased the desire. As a means of arousing the indififerent, the slothful, the stubborn, the plan was not a great success ; but as a means of inciting to further activity, it has had some efifect. There is one other case in which the Board has control over the appointment of local officers, that of analysts whose duties are to enforce the law prohibiting the adulteration of food and drugs, and the selling of food and drugs that are adulterated or are not of the nature, substance and quality demanded. They are appointed and removed by the coun- cils of administrative counties, county boroughs or non- county boroughs having over 10,000 population — London excepted '^ — and in each case the approval of the Local Gov- ernment Board must be secured.' In 1895, the appointment of 238 analysts was approved.'* The success of this plan of inspection has been very > Rep. of L. G. B., S. P., 1884, Vol. 37, p. 82; 1S86, Vol. 36, pp. 81-82; 1888, Vol. 49, p. 94. ' In London, the commissioners of sewers, vestries or district board of works appoint. '35 & 36V., c. 74; 38& 39 v., c. 63, s. 3-11. • 25th Rep. of L. G. B., 1895-6, p. 130. I04 ENGLISH LOCAL GOVERNMENT [104 marked. Although there are still some places where the law is not executed as it should be, the number is decreas- ing and the whole country is coming under the system. The number of analyses is increasing but the percentage of adulterations is decreasing. In 1895 there were 43,962 samples examined, 9.3 per cent, of which were adulterated, a fall of over 2 per cent, in the last six years.' The change is not due to any leniency upon the part of the analysts ; upon the contrary, they have become better able to detect fraud and more determined to enforce the law. The fines are quite heavy, and although the magistrates have tended to be lenient, the law is quite rigidly enforced." The bene- ficial results are largely due to the independent position of the analysts, which is secured by requiring the approval of the Board to appointment and removal, but it is not the only cause. Powers relating to defaulting authorities. The preceding paragraphs show one method whereby the central authority may supervise the execution of the law, but there are other more direct and effective methods. The powers conferred upon the Local Government Board by the Act of 1866 and other laws passed in the next few years have been described. It only remains to note the changes made since 1870, and to ascertain their effects. In 1874, the right was granted the Board to sue out a writ of mandamus to compel rebellious authorities to act within the period determined.^ The following year it was empowered to authorize any police officer within a district having a negligent authority to institute proceedings for the abatement of nuisances.'* Otherwise, the Public Health Act ' 25th Rep. of L. G. B., 1895-6, p. 132. ' IHd., p. 131. Cf. also Monod, Les Mesures Saniiaires en Angleterre depuii iSyj et Leurs Rhultats. Revue D" Hygiene, Vol. 13, p. 440. » 37 & 38 v., c. 89, s. 20. * 38 & 39 v., c. 55, s. 106. 105] PUBLIC HEALTH AND LOCAL GOVERNMENT 105 of 1875 left the plan as previously described.' In recent years some modifications have been introduced. An act passed in 1891 gave the Secretary of State power to instruct an inspector to take steps towards the enforcement of the laws relating to public health in workshops and factories.^ Inasmuch as this duty is partially incumbent upon the local sanitary authorities, the Act of 1891 may be said to cause a slight dififusion of central supervision. The Local Govern- ment Act of 1894 made a slight step in the direction of de- centralization by providing that when a parish council resolves that a rural district council has failed to provide sufficient sewers or water supply, or to enforce any of the provisions of the public health acts which it is their duty to enforce, or to maintain highways in substantial conditions, it may complain to the county council, which may assume these powers itself or deal with the rural district council as the Local Government Board could under the Acts of 1866, 1868, 1869 and 1874.3 As has been said, the importance of the powers of the Board was greatly increased by the Act of 1872, which established urban or rural sanitary authorities throughout all of England and Wales. And recent acts amending the public health law have increased its power by extending the authority of the district councils.'* The power of the Board over defaulting authorities is far- reaching and effective. It is necessary that a complaint be filed before an inquiry can be held, but as any one can make complaint and as it has been found that if an authority is negligent there will be at least one person willing and ready to so report, this provision has not restrained the activity of the Board. There are quite a number of cases where com- plaint has been made but the Board has found no default. In the interpretation of the law by the courts, no encroach- • 38 & 39 v., c. 55, s. 299-302. ' 54 & 55 v., c. 75, s. i-s. '56&57V.,c.73,s. 16. ♦ See, for instance, 41 &42V.,t.25, I06 ENGLISH LOCAL GOVERNMENT [io6 ment has been made upon the powers of the Board, and although the cases are few, those that exist are plain and decide that in questions of expediency the judiciary will not interfere.^ Although stringent methods are provided in case the local authority refuses to act within the allotted time, it is seldom that it is necessary to go this far. In the first few years of the existence of the plan it was necessary to appoint persons to act, but of late years resort is very infrequently had to this course or to application for a mandamus. There were four cases in 1892, but in the eighteen years preceding there were not as many in any one year.'' In nearly every instance, all that is needed is an order fixing the time within which the default must be remedied, and in some cases an inquiry or even a suggestion is sufificient.3 After a complaint has been received, a local inquiry is held, and ample opportunity is given for all sides to be heard and an investigation made. If steps are not taken to remedy the default, an order is issued fixing the time within which action must be taken. If the authorities still refuse, a mandamus is applied for or persons appointed to perform the duties neglected. About nine or ten inquiries are made annually, but in less than half this number are orders issued, which is the last step neces- sary except in unusual instances. It is not to be concluded, however, that the power pos- sessed is not far reaching in its influence. The few cases in which it is exercised are sufficient to convince all that it is not a mere form, but a genuine reality, and that in case of negligence, it will be exercised. Consequently, many author- ities which would otherwise be indifferent are obliged to maintain an efficient administration, all expenses both of in- ' Cf. The Queen vs Cockerell and another, L. R., 6 Q. B., 252. " Vide Reports of I.. G. B. ^ Rep. of L. G. B., S. P., 1875, Vol. 31, p. 41. Monod, op. cit., p. 435. I07] PUBLIC HEALTH AND LOCAL GOVERNMENT 107 quiries and undertakings being ultimately borne by the locality, and the central authority having the power to take temporarily the actual administration from the local authori- ties. Of course most of the districts are maintaining an efifi- cient administration, not because of the existing penalty but because the advantages are seen and their duties recognized. There are, however, some authorities whose chief incentive to action is to be found in the existence of the central con- trol, while in former years the number was much larger. In the past, central control played a most important part, and owing to wise administration, it is still exerting an important influence, and little can be said of it that is unfavorable.' Its capability of adjustment to varying conditions is unlimited. Another method of central control of very limited applica- tion is to be found in the power of withholding the subsidy paid towards the support of medical officers and inspectors of nuisances if returns and reports are not sent to the Local Government Board as required.^ The retention of the sub- sidy is not in the nature of a fine imposed upon the officer, for the expense falls upon the locality which he represents rather than the officer himself. It contributes something, however, towards preventing the selection of incompetent officers. The Secretary of State also has powers of a somewhat similar character, although not so important or far reaching. He may, upon the report of the Lunacy Commissioners or the " visitors " of any institution for lunatics, direct the At- torney General to prosecute the parties responsible for the commission of the alleged misdemeanors.s Upon being satisfied that the laws relating to public health are not ob- served in any workshop, he may authorize an inspector ■ Cf. Vauthier, op. cit., p. 351 ; Boutmy, Le Gouvernement Local et la Tutelle de L'Etat en Angleterre, Annales DEcoU Libre, I., p. 202; Simon, op. cii.,p. 381. ■^ 5 1 & 52 v., c, 41, s. 24. "53 v., c. s, s. 328; see also s. 247. I08 ENGLISH LOCAL GOVERNMENT [io8 appointed by him to take the necessary steps to enforce them. Should the district council whose duty it is to enforce the law fail to do so, the inspector may temporarily assume the powers of the council in default/ If the justicfes of peace do not make suitable rules for insuring order and decency in theatres, the Secretary of State may alter or rescind them or make new ones.'' Whenever local authorities fail to enforce the orders of the Board of Agriculture or the provisions of the laws under its supervision, it may appoint private persons to act, and all expenses thus incurred are to be defrayed by the authority in default.3 If it finds that the subordinate officers of a local authority are incompetent or guilty of misconduct, it may direct their removal, but can not fill the vacancy thus caused.^ This is an extraordinary power, but the subject is one call- ing for large powers. Quasi-judicial powers. There are a number of instances where central authorities have been given the power of de- ciding disputes involving local authorities or of appointing persons to act as arbitrators, and although questions of law are not often involved, they partake somewhat of the nature of judicial powers. The most important will be discussed in the chapters upon Local Finance and Central Audit, but there are others that deserve notice. When the overseers of a parish are aggrieved because of the apportionment of expenses for purposes of public health acts, they may appeal within twenty-one days, and the Board has power to make and enforce " an equitable decis- ion." 5 Appeal is likewise permitted to any one who con- siders as unjust the decision declaring what expenses shall ' 54 & 55 v., t. 75, s. 1, 3, 4. A large number of the provisions of the Factory and Workshop Acts are enforced by the Factory Inspectors directly. = 6&7V.,c.68,s.9. =57&58V.,c. 57,s.34. */«. '' Md., e-j-Ti. l66 ENGLISH LOCAL GOVERNMENT \\66 tion, it may be called to account.' In case of a failure to elect members of a school board, the Department may ap- point.'' Upon all questions of fact, its decision is final, and when questions of law are involved resort may be had to the usual legal remedies.^ The introduction of the new school authority — the school attendance committee — was accompanied by an extension of the previous system with a few minor changes, the most important of which was the limiting of the time to two years for which members of the committee could be appointed by the Department. The same Act empowered the Depart- ment to dissolve boards upon an application from the electors of a district or from a borough council, if it is thought advisable.'' Not much use is made of this provision. Perhaps one or two boards are dissolved each year. The purpose is to avoid the expense of maintenance where none are needed. In a preceding place, the reason for the passage of the law of 1880, which made the enactment of by-laws obli- gatory, was noted, and reference made to the method of seeing that they were enforced. The fact was recognized that if left entirely to themselves, many authorities would not enact by-laws, or if they enacted, would not enforce them. The ordinary judicial remedies were entirely inadequate to meet the situation. Just before the passage of the Act, it was found that 450 of the 2,000 school boards, 20 of the 109 borough attendance committees, and 7 of the 6"] urban com- mittees were without any by-laws. Of the 584 unions hav- ing committees, 275 had passed by-laws for one or more parishes, only 15 had for all within the union, and 309 had none at all.s This was the condition under a system of local initiative. Undoubtedly the mere enactment of a law re- ' 33 & 34 v., u. 75, s. 1 1. » Ibid., 32. » lUd., 16. • 39 &• 40 v., c. 79, s. 41. 6 S. P., 1881, Vol. 32, p. 26. 167] ELEMENTARY EDUCATION 167 quiring by-laws to be passed by the local authorities would have altered these figures, and some would have enforced the by-laws they passed. But do they not indicate that if no further means had been taken to see that they were en- forced, they would have become inoperative in many places? The framers of the law saw clearly what was needed. It was for these reasons that the Act of 1 880 extended the process for dealing with local authorities in default to in- clude all cases where by-laws had not been passed or were not enforced. The Department was empowered to make such by-laws as it chose, and if these, or any framed by the school board or attendance committee, should not be en- forced, the Department could treat the authorities as in de- fault, a previous notice having been given.' In 1891 the duty of providing school accommodation was extended to include free school accommodation, thus again materially increasing the power of the Department." What use now has been made of this power of the Depart- ment to act in case of default by a locality? Has it been efifective? What are the results of its exercise? By June i, 1876, the Department had made a complete inquiry into the state of education in 28 boroughs and 3,052 parishes, _/?««/ notices had been issued where there was need, and the six months' time limit had expired. In 13 boroughs and 1,418 parishes, 870 school boards had been established compul- sorily, and the remainder voluntarily .3 The experience of the first few years showed that, as a rule, the boroughs and larger parishes voluntarily established boards, but the greater portion of rural boards were formed only after an order had been issued by the Department.* And this has remained '43&44V.,c. 23, s. 2. ' 54 &S5 v., 0.56,5.5. 'S. P., 1876, Vol. 23, p. 20. * Cf. Adams, op. cit., p. 308; Edinburgh Rev., 1874, Vol. 139, p. 221. 1 68 ENGLISH LOCAL GOVERNMENT [igg largely true down to the very present. On April ist» I&96, there were school boards in 182 boroughs and 2,304 town and rural districts, containing 54 per cent, of the entire pop- ulation.' Of these, 49 borough and 1,063 rural boards had been elected under compulsory orders.° The number of cases in which the Department interfered after a board had been established is much smaller, being upon an average about three or four each year. Down to 1886 the figures were:' Boards in default and members appointed by Education Department. Failed to supply deficiency, or neglected or refused to act. 13 cases. Board fell below quorum II " Not elected at time fixed for first election 6 " Ceased to exist 2 " Total ~,z cases. Boards in default and new election directed. Board fell below quorum 8 cases. Did not perform duties 2 " Total 10 cases. School a.ttendance committee in default I Grand total 43 cases. Questions will at once arise as to the reasons for the great difference between the number of boards compulsorily elected and the number declared in default. The attitude of the Department furnishes no suflficient explanation, for although it may be somewhat more willing to order a board to be established than to declare it in default, the difference is not sufficiently large to cause any noticeable variation. ' If Lomdon be excepted, in whick a board was expressly established by the- Act of 1870,. the percentage will be much higher — 63. The population of 1891 is used as a basis. Of the increased school accommodation provided between 1870 and 1895, nearly ^% was provided by school boards. Rep. of Com., 1895-6, P-IS- » Rep. oi Com., 1895-6, p. 29. » S. P., 1887, Vol. 29, pp. 1004-5. 1 69 J BLEMENTARY EDUCATION jgg The proper explanation seems to be this. Voluntary schools were the only ones in existence down to 1870, and this sys- tem was so firmly imbedded in the customs, ideas and in- stitutions of the people, that they were reluctant to adopt a new plan. Then too, a locality was naturally opposed to admit that it did not possess sufficient school accommoda- tion. Or, if it did, the levying of a local rate to defray ex- penses was often opposed. No penalty of any importance was provided for a failure to petition the Department for perniission to elect a board ; thus there was much to be gained and nothing to be lost. This practically resulted in many places in making the central government responsible for determining whether boards should be established. Until the Department interposed, the locality could remain inactive, knowing that when conditions required, it would receive notice. Too much importance should not be placed upon this last factor, for the statistics show that the differ- ence between the number receiving first notices and that where boards were chosen under direct orders from the Department, was not very large. Conditions differed in case of default. Local opposition was present, perhaps to a greater degree. The tendency to shift responsibility was probably greater. But the penalties were severe. The expense of the inquiry had to be borne by the locality, and for a time all control of education might be taken out of its hands, although it was still to bear the burdens. That the Department would exercise its prerogatives was soon proven by a few cases. There being everything to lose and nothing to gain, the local authorities wisely decided that obedience was the better course to pursue. It was only occasionally that a careless or obstinate authority had to be dealt with. What has been said is as true of the present as the past. Knowing as they do that the Department does and will exercise its power when 170 ENGLISH LOCAL GOVERNMENT [170 necessary, the local authorities are loath to come within its grasp. Another rather surprising fact is the small number of attendance committees in default. The reason is that the central government would enact much more rigorous by-laws than the local authorities, and since it also has power to en- force them, a much severer system would be in practical operation than if the committees acted voluntarily. Remem- bering that they are allowed a great deal of freedom in the framing of the by-laws, the great advantages of local action are manifest. But this explanation hardly applies to the en- forcement or non-enforcement of by-laws when once enacted. Other facts must be sought, which are these. Usually the by-laws are quite well enforced, so that there is no urgent need of interference. The Department is not as strict as might be, owing to the general opposition to compulsory education and methods. It seems to rely more upon its in- fluence through other avenues. Since attendance committees are found only in those districts where sufificient school accommodation is maintained without resort to rates, but by voluntary contributions, it is in these districts that one finds education very highly appreciated, and central interference less needed. That there is still room for improvement throughout the whole country is evident from the fact that in 1893 only 74.7 per cent, of the children between the ages of five and thirteen were in average attendance, whereas 93.4 per cent, were upon the registers.' It should not be con- cluded, however, that the power has no influence. The very fact of its existence and the liability that it may be used, coupled with the fact that occasionally it is used, serves as a deterrent force. One topic remains to be noted: the prevention of un- 'S. P., 1894, Vol. 29, p. 20. 171] ELEMENT AR Y ED UCA TION 1 7 1 necessary schools. Such a question hardly ever presents itself in any country, and it is not a very serious one in Eng- land, but some instances have arisen, chiefly due to sectarian rivalry. There is a possibihty that efficiency might be im- paired were there no control exercised. The multiplication of schools is by no means an encouraging sign in all cases. This difficulty would not arise under a plan where all schools are supported entirely from taxation, but under a plan of voluntary schools and state aid it is possible. Several methods exist whereby the tendency may be counteracted. One is by refusing to grant aid to unnecessary schools, as the Department does at present. This power is exercised upon an average about four or five times a year, and although it is not an absolute preventive, it serves its purpose. If private persons persist in maintaining a school without gov- ernment aid where it is not needed, they can not be pre- vented. No one would wish to prevent them, for the burden borne by the community would be increased by so doing. But the grant is so large that this provision is practically de- cisive. Another method of preventing unnecessary schools is to be found in the requirement that all loans must be ap- proved by the Department to render them valid. The rule has been followed that sanction would be refused whenever the school accommodation of the district is sufficient and the proposed loan would be used to increase it unnecessarily. This too is not an absolute barrier, for it affects only public authorities, not private individuals, and would only apply where the expense could not be immediately defrayed from the rates. A third method is to be found in the requirement that the consent of the Department must be obtained before a board can be established.' Thus if sufficient accommoda- tion exists, the Department may refuse to approve. And ' 33 & 34 v., c. 75, s. 12. 172 ENGLISH LOCAL GOVERNMENT ["172 still another comes from its power to dissolve a board after once being formed. Thus, as far as boards are concerned, the Department can absolutely prevent unnecessary schools, but not much use is made of this power. There is Httle need for its exercise. Besides the powers which have been stated, the Educa- tion Department has many others of more or less import- ance. The principal ones are the power to unite boroughs, parishes, or school districts into new districts, to dissolve existing combinations and reunite in a different way, to direct that one district contribute towards the maintenance of schools in another, and to sanction the union of school boards for any purpose relating to Elementary Education in those districts.' The close analogy between the power of the Department and the Local Government Board relative to local boundaries, leads one to surmise that the satisfactory experience of the latter was a prominent reason for the in- corporation of the plan in the system of Elementary Educa- tion. Time tables for schools must also be approved by the Department.'' The purpose of this provision is to prevent religious instruction from receiving too much attention, or being given such a position in the program as to necessitate the attendance of children whose parents do not approve it. The Department also decides disputes as to elections and determines the number of members of a school board, and many other matters of less importance.^ No objections have been raised to the use of these powers, and they seem to have been very satisfactorily exercised. 1 33 & 34 v., c. 75, s. 40-52; 36 & 37 v., c. 86, s. 1 1 ^/ seq. " 33 & 34 v., c. 75, 8. 7. » Ibid., 31, 33 et alia. 173] ELEMENTAR Y ED UCA TION 1 7 3 3. Past and Present Conditions. What, it is now proper to ask, has been the effect of administrative centralization upon educational conditions? In answering this question, it should be kept in mind that 1870 marks a distinct change. Two quite different systems have prevailed since 1833. Previous to the Act of 1870, there were no local school authorities except incidentally, as perhaps in some cases where a borough council, for instance, was appointed as trustee for an endowed school, or where a local authority was empowered by a local act to maintain schools, and such cases were rare. The central government dealt with private persons directly. The schools were what are known as "voluntary schools." The control exercised was wholly through the power to give or withhold grants. In 1870, school boards were provided with powers to levy rates, maintain schools, hire teachers, own property, et cetera. In 1876, school attendance committees were instituted where no boards existed. Over both kinds of authorities the Edu- cation Department possessed large control which has steadily increased, as has been shown. Over voluntary schools its supervision has not relaxed but increased ever since 1833, owing to the greater amount of government aid that could be secured upon compliance with the conditions. It is important, therefore, in studying the great progress in educational conditions to note three stages: 1833 — the time when no control existed ; 1870 — just before local school authorities were introduced ; and the present — the close of twenty-five years of central administrative control over local administration. Henry Craik has tersely described the status of the earliest period as follows:' "The full extent of the educational de- * state and Education, pp. 16, 17, 174 ENGLISH LOCAL GOVERNMENT [174 ficiency was not yet accurately gauged. But enough was known to prove that, on the whole, not more than one-half of those who should have been at school were there. In some of the manufacturing towns, where the increase of pop- ulation had been rapid, the educational destitution was com- plete. In some country districts a provision even in excess of requirements had frequently been made by the charity of previous generations, but it was casual and unequal in its distribution. In towns generally, even reckoning the Sun- day-schools and those dames' schools where the instruction was only nominal, far less than one-half of the children ever entered the door of a school. Even of those who were brought in, very few obtained such instruction as was of the slightest use. In many cases the children crowded together in the most unwholesome dens, were left, not to be taught, but only to be taken charge of for so many hours a day, by some one whose health, or age, or incapacity unfitted him to gain a livelihood even in the most menial occupations." Such was the educational condition of the country in 1839, six years after state aid had stimulated improvement; but if the picture is given a slightly darker aspect, one can begin to comprehend the utter lack of a practical, efficient educa- tion prior to 1833. By 1870 conditions had materially improved. The Com- mission of 1858-1861 claimed that the ratio of day scholars to population had increased from i in 11^ in 1833 to i in J."] in 1858, which still left about 1,000,000 children of school ag;^e that were not upon the roll of any school whatso- ever.' Be these figures what they may, it is positively known that only 1,512,684 pupils were in attendance upon assisted schools when the inspectors made their regular visit ' S. P., 1 861, Vol. 21, Pt. I, pp. 87, 294. A great amount of information is to be had in this extensive Report, but most of the figures are admittedly inaccurate and must be taken cum grano salis. 1 7 5 j ELEMENTAL Y ED UCA TION \ 7 5 in 1870.' Of these, less than 80 per cent, attended the average number of days, and only a few more were credited with two hundred attendances (100 days). The full signifi- cance of these figures does not appear until one learns that all schools unassisted by the government were greatly in- ferior to the inspected schools. In many cases the difTerence was so great that no comparison was possible, and, when re- sults were considered, the former could hardly be called educational institutions." The worst conditions were to be found in the larger boroughs, where accommodations for only fifty per cent, of the children were provided. 3 But bad as were these conditions, it must not be forgotten that an enor- mous improvement had been made as compared with 1833. The number of schools had increased not only absolutely, but also relatively to the population, and the same was true of the number of pupils. But more than this, the efiEiciency and utility of the instruction had increased at a rate out of proportion to either the number of schools or to the number of pupils. Since 1870 the improvement has been still more rapid, and although statistics furnish a poor yard- stick in many respects with which to measure this growth, the follow- ing tables may assist to some extent. ■ S. P., 1871, Vol. 22, p. 9. This figure includes both day and evening schools. The population of England and Wales was 22,712,266 in 1871, and estimating the children of school age to be one-sixth of total population, we have 3,785,378. 2 S. P., 1871, Vol. 22, pp. 7, 8. ^ Hansard, op. cit.. Vol. 203, p. 825. 176 ENGLISH LOCAL GOVERNMENT [176 England and Wales, Year Ending Aug. 31, 1895.* LZ^ Year End- l^S ing Aug. 31, &il i876.t 24,244,010 3,426,318 2,943.774 80.0 1,984,573 14,368 S8,457 ? ! !;£ 13s- Sj^d. 16.4 13s. ^y^i. 39.1 1,656,502 47.6 i£ IS. 4^d. 21.2 13s. ^d. 48.6 328,071 472.8 1,791 38.9 ,£2,920,532 223.0 Year End- ing Aug. 31, 1870.* ill 5 tn Sum o Estimated Population Accommodation — Inspected Day Schools. No. of Scholars on School Registers No. of Scholars in Average Attendance — Day Schools No. of Institutions Inspected — Day and Night Schools ; No. of Teachers — Certificated, Assistant, Pupil Average Salary, Certificated Master Average Salary, Certificated Mistress • • . Voluntary Day Schools. Cost per Scholar in Average Attendance. Annual Grant Paid ditto Average Attendance BoAKD Day Schools. Cost per Scholar in Average Attendance. Annual Grant Paid ditto Average Attendance School Boards — Number School Boards — Expenditure School Attendance Committees — Number. 30,394,078 5,937,288 5,299,469 4,325,030 23,160 112,378 122;^ 6s. 7d. 8i;S 3S- 3d. !.£ i8s. iiKd. i8s. 55^d. 2,445,812 n^ los. T-YiA' 19s. 5d. 1,879,218 2,487 ^£9,434,029 780 22,090,163 1,878,584 ? 1,152,389 28,033 94;£ 2S. id. Sli IIS. id. i;£ 5s. 5d. 9S. 9;S53 Other local sources 100,793 Fee grants 2,147,597 Grants, Science and Art Department 161,719 Annual grants of previous year 4,008,400 Total ;^9,658,748 Cost of Maintenance. Salaries ;^7i389>437 Books and apparatus 604,853 Miscellaneous 1,675,800 Total ^^9,670,090 Many interesting conclusions might be dravi^n from these •Rep. of Com., 1895-6, p. 43. 177] ELEMENTARY EDUCATION 177 tables, but I shall note only the more important. Average attendance has increased at a more rapid rate than accom- modation has been provided, than the number of scholars enrolled, or population ; and of these last three, the rates of increase stand in the order just named. But the number of teachers has increased still more rapidly, thus indicating that the number of pupils per teacher is diminishing. The cost per scholar, both in board and voluntary schools, has increased quite noticeably. All these signs are exhibited by an advancing educational system, and the fact that they are to be found in the English system is a strong testimonial of its efficiency and probable future improvement. The number signing the marriage register with a mark per 1,000 married is frequently given as a fair method of com- paring the illiteracy from year to year.' 1841 1851 1 861 1871 i88i 1891 1893 Males .■■,,.,. 326 488 ? 308 4S3 235 246 347 161 194 268 "3 '3S 177 64 73 64 21 SO Both Progress has also been made in many directions that can not be measured statistically. The school buildings are much more commodious, better ventilated, lighted and heated, and infinitely better fitted for educational work than formerly. The efficiency and ability of the teachers is much greater than the numerical increase in their salaries would indicate. The children are brighter, happier, more intelli- gent than ever before. The instruction received is practical, useful and thorough. Such, briefly traced, is the development and present status ' Newsholme, of. cit,, p. 53. Also Annual Reports of Registrar General. 178 ENGLISH LOCAL GOVERNMENT [178 of Elementary Education in England, from the point of view of central supervision. It only remains to state how far the wonderful and undisputed progress that has been made is due to central supervision. As to the period previous to 1870, it will probably be accepted without discussion that the central control, as exer- cised through conditional grants, was the prominent factor; that all else was subsidiary. The Commission of 1858-61 seems to have had this idea clearly in mind when conducting their investigation, for it is frequently mentioned, and the conclusion is always the same. The number of departments established or enlarged between 1833 and 1870 added accommodation for about 67 per cent, of the number of pupils in inspected schools.' This gain, the Commission thought, was almost entirely due to the system of govern- mental grants, and that voluntary contributions would not have filled the gap to any appreciable extent had these grants been lacking. Furthermore, it considered it very probable that the increase in voluntary contributions was largely due to the stimulation of the central government, although of course it could not be proven that an increase would not have taken place without government aid.° Con- cerning the relative efficiency of schools aided by the state and those unassisted, the Report states : " The superiority of inspected schools may be stated as beyond dispute ; and though this is partly attributable to inspected schools pos- sessing an apparatus of trained teachers and pupil teachers, which in other schools is unknown, yet much is due to the activity and carefulness which are the results of a system of constant supervision."' * * * " No unassisted public school, ' S. P., 1 87 1, Vol. 22, pp. 7, 164. »S. P., 1861, Vol. 21, Pt. I, p. 69 etseq. ' Ibid., 229. They seem to have forgotten that trained teachers were also pro- vided by means of state aid. 179] ELEMENT AR Y ED UCA TION j jg under circumstances which admit of a fair comparison, could compare with the best assisted schools." ' The enforcement of the Factory Acts undoubtedly had some slight effect in increasing the number of pupils in attendance, but even here we have seen that central super- vision was the important factor in enforcing the statutes. Their direct effect upon educational conditions is, however, probably small. Undoubtedly the spirit of reform, the pub- lic discussion of the deplorable conditions, and the increas- ing appreciation of obligations unmet, of duties unperformed, contributed somewhat, but I am convinced that these forces acted as incentives to produce the application of state con- trol, without which the country would have again relapsed into indifference, and the net gain would have been small. It seems certain, therefore, that the system of conditional grants is the sifte qua non. Its effects were of two classes, direct and indirect. The former are seen in the wonderful development of assisted schools, schools that were inspected and aided by the government. It was not the mere fact that aid was given, but that it could not be obtained without complying with certain conditions, which caused the stand- ard to be raised. The constant objection that teachers were too eager to conform to the ideas of the inspectors is con- clusive evidence. Moral responsibility was lacking. Private initiative was inadequate. Conditional aid was a mighty power. The indirect effects were seen in the improvement of many schools receiving no portion of the government grant. It is hardly proper to ascribe all this improvement to the system, but an extremely large portion may be attributed to it. An efficient school offering better instruction would tend to win pupils from the neighboring schools which were not as effi- ' S. P., 1861, Vol. 21, Pt. I, p. 277. l8o ENGLISH LOCAL GOVERNMENT \\%0 cient. Just at this point denominational rivalry served a good purpose, for it stimulated those refusing to submit to central supervision to greater endeavors and to larger con- tributions in order that they might retain their grasp upon the work of education, an invaluable means of increasing the influence and membership of the denomination. The feeling of responsibility was also stimulated, and with genuine ex- amples before their eyes, the ambitious were better able to achieve the desired results. The increase in the number of children attending is due to the increased appreciation of the value of education in general and to the greater and more practical utility and thoroughness of the new instruction, the causes of which we have just seen. Passing now to the period subsequent to 1870, the first fact to strike our attention is that development was more rapid than in the earlier period. Nor is it a simple coinci- dence. What has been said in the few preceding paragraphs applies here as well, and with added force, for the grants have been larger and hence of greater power. But other factors have been present. A new plan was adopted in 1870, a plan providing for local action with central supervision and interference in case the local authorities failed to perform their duties, thereby reaching all localities, whether in- fluenced by state aid or wholly beyond its grasp. The effects of this system have been noted. The large number of boards established compulsorily shows its influence, for it is proper to assume that had this plan not existed, these localities would have remained lacking in sufficient accom- modation, at least for some length of time. The indirect in- fluence it may have had is hard to estimate, but it probably had some. The power to act when a local authority is in default and to determine when it is in default is a most effective power, and is the cause of a large portion of the im- provement since 1870. 1 8 1 J ELEMENT AR Y ED VCA TION 1 8 1 The powers regarding compulsory education have also had some effect in raising the per cent, of the population upon the rolls and in average attendance, although, as has been said, the mere provision of better educational facilities has a great influence in inducing a larger attendance. The establishment of fee grants has also contributed its share, and as far as it has had any effect, little can be attributed to central control. It is not a necessary part of the scheme. It is concluded, therefore, that although all other forces must not be obliterated nor lost from view, yet more credit is to be given to central supervision than to all others. And while its present direct influence is decreasing because of in- creasing moral responsibility and an aroused interest in edu- cational matters, it is by no means entirely lacking nor approaching the point of extinction. It exists and exercises a wide influence through its potentiality.' ' In the Code for 1897, which was received after this chapter had been written and the proof-sheets corrected, there are but few changes, and these are com- paratively unimportant. Two or three subjects have been added to the list of studies for which grants may be obtained. The method of distributing aid has been slightly modified so as to allow more freedom in the management of schools. Otherwise the Code for 1897 >^ almost the same as the Code for 1894-5. CHAPTER VI LOCAL FINANCE — EXPENDITURE In the consideration of the control central administrative authorities possess over the finances of local authorities, there arise naturally four divisions : the assessment and col- lection of rates ; the acquisition, management and alienation of property; the raising and expenditure of loans; and the audit of accounts. The last is of sufficient importance to re- quire a separate chapter. The first two do not demand ex- tended notice, and will, therefore, be discussed in connection with the third in the present chapter. The historical development of the present control needs but slight consideration. It would merely show what has been so often pointed out, i. e., that English local govern- ment is a product of slow growth. Central supervision was first tried in a portion of the field, and being highly bene- ficial was gradually extended to other portions, until at present nearly the entire field is included. Then again, it is only within the last quarter of a century that a genuine con- trol has been needed. City lighting, street improvement, urban transportation, waterworks, sewerage, housing of the poor, pleasure grounds and many other public conveniences are of comparatively recent origin. Of still more recent date is the desire to expend large amounts for these purposes and to cast the burden of paying for them upon future gen- erations. Consequently, present conditions will alone be treated, and a few interesting facts concerning the growth and development will be inserted in connection therewith. 182 [182 183] LOCAL FINANCE 183 I. Rates. — Central administrative control over the valua- tion of property and the assessment and collection of rates is slight. Very few instances exist where a direct control may be exerted, but indirectly these matters may be reached to some extent. The quasi-legislative power of the Local Gov- ernment Board to order the performance of certain acts may influence the amount of the rates considerably. The power to act in cases of default might also be so used as to increase expenditure materially. The granting of certificates of efiS- ciency to local police forces by the Secretary of State im- plies a certain expense in order to obtain this certificate. Certain of the "adoptive acts" can not be put into practical operation until the consent of the Local Government Board has been secured, as for instance in the case of the Housing of the Working Classes Act,' the Baths and Wash-houses Acts,^ or the Local Government Acts.3 But all these pro- visions, and many others that might be given, were not en- acted to establish a control over rates ; and any control that may be exercised is an incidental effect, and considered only as a very small element in determining the course to be fol- lowed. This indirect control applies only so far as the expenditure is made from the rates, but as the central authorities practically have the power of deciding whether an expense shall be defrayed from the rates or by loans, it may exert some influence. Another indirect method of exercising a control over rates is through the power of the Board to decide appeals between private individuals and local authorities, and between two or more local authorities in certain instances,'' but here '53&S4V., t. 70, s. 8. ^9 & 10 v., c. 74, s. s; 34 & 35 v., c. 70, s. 2, 7, et alia. » 35 & 36 v., u. 79, s. 25; 38 & 39 v., u. 55, ». 277, 343. 'Many instances might be given, but see 38 & 39 V,, c, 55, s. 4, 53, 180, 229, 268; 45 & 46 v., c. 50, s. 153, 229; 43 & 46 v., c. 56, s. 28; 53 & 54 V., c. 70, S.41. 1 84 ENGLISH LOCAL GOVERNMENT [184 the control over rates is a subordinate matter and is not even a factor in determining the decision. All direct supervision which is of sufficient importance to deserve particular notice is wanting, and the nearest ap- proach 1 have been able to find is that empowering the Local Government Board to order a new survey to be made, in case it appears that a correct valuation cannot be made without such survey and an application has been received from the board of guardians or any other officers competent to make and levy the rate.' Statutory limitations and private initiative working through the usual judicial remedies are relied upon 'to keep the rating authorities within bounds. These have been quite successful, for ever since the tendency towards municipal enterprise developed, the opposition to taxation . has kept the rates from being overburdened, and the question has been how to prevent the expense from being unduly shifted to the future, rather than how to pre- vent the present rate-payers from being too heavily taxed. 2. Property. — Unless expressly or impliedly stated in an Act of Parliament, no local authority has the power to pur- chase land, buildings or property of any sort, or make loans upon the security of property or rates.'' The difference be- tween the plan of permitting a central authority to confer by a provisional order the power to perform an act, and the plan of merely requiring the consent of the authority to be obtained before an act may be accomplished is important. In both cases the central authority may grant or refuse the request, but in the former the approval of Parliament is required. 1 6 & 7 Wm. IV., c. 96, s. 3. ' The term " local authority " has a definite legal meaning in English law, and varies so greatly in different acts that its meaning here should be given to avoid misunderstanding. It includes all local authorities which are required or em- powered to enforce general acts of Parliament. 1 85] LOCAL FINANCE 1 85 Practically this difference is unimportant for although Par- liament may withhold its sanction, it is only in a small per- centage of cases that it actually does so. Presentation usually means confirmation. But the main difference lies in the fact that when a power is conferred by a provisional order, it may be exercised in all instances within the scope of the order; the one grant covers them all, and consent does not need to be secured in each individual case. By the latter method, a decision must be obtained upon every case, and each is decided according to the particular questions involved. Of late it is quite customary even when a grant of powers is made by a provisional order to require approval in each case and nearly always where it has been the custom to do so in a general act. What has been said regarding the indirect control of cen- tral authorities over rates applies to the acquisition, man- agement and disposal of public property. Whatever central control there is over these matters, is incidental. They may be passed over as before, and the plans of direct control alone considered. It is not proposed to give all the pro- visions ; that would be almost impossible, because of the great number and variety. Only the most important have been selected. The subject will be treated from the point of view of the authorities controlled, because the lack of uniformity makes any other treatment impossible. Sanitary Authorities must secure the consent of the Local Government Board in order to purchase waterworks, the right to take or convey water, property for laying out new streets, and rights, powers and privileges of gas companies already formed ; to levy tolls under Markets and Fairs Clauses Act, 1847, to let' lands, and to contract for the cleansing of streets. To purchase lands otherwise than by agreement, or to supply gas where no company exists, a provisional order or an Act of Parliament is necessary to 1 86 ENGLISH LOCAL GOVERNMENT [i86 put in operation the Land Clauses Consolidation Act, 1845, and the Gas and Water Facilities Act, 1870.' County Councils are subject to the same regulations as sanitary authorities regarding the purchase or acquisition of lands ; and to alienate lands and buildings, the approval of the Local Government Board is required. In the latter case, the proceeds must be applied as the Board directs." Parish Councils are required in many instances to obtain the consent of the parish meeting or the county council, and in some respects the control is more decentralized here than in the case of other authorities. As to the acquisition of land by agreement, there is scarcely any central control, but to obtain land otherwise a representation must be made to the county council, which may issue an order putting into force the provisions of the Lands Clauses Acts. If it re- fuses, the Local Government Board may so order. Con- firmation by the Board of the order of the county council is also provided for, but if no memorial against the order is presented, it must confirm, otherwise it may do as it pleases. To render valid the sale or exchange of lands or buildings which have been acquired at the expense of any rate, or which are or may be so applied as to furnish an income, the approval of the Board must be secured.^ Municipal Corporations can not purchase, mortgage nor lease land (except for short terms), nor convert it into sites for workingmen's dwellings if the amount exceeds five acres, without the approval of the Board which may as usual im- pose such conditions as it deems proper. The appropria- '38 & 39 v., c. ss, s. 42, 51, 154, 161, 162, 167, 176, 177. See also 53 & S4 v., c. 70, s. 57, 60, 64. ■■ 51 & 52 v., c. 41, s. 64, 65. Twenty-four orders were issued in 1895, relative to the sale or lease of property and the appropriation of proceeds. 2Sth Rep. of L. G. B., 1895-6, p. 26. " 56 & 57 v., c. 73, s. 8, 9, 10, 68. 187] LOCAL FINANCE 1 87 tion of the proceeds of the sale of land or corporate stock, the transfer of annuities, the management of sinking funds and investments are subject to the same control.' When the borough council acts as a sanitary authority, it is, of course, subject to the same restrictions as other sanitary authorities. School Boards are obliged to obtain the consent of the Education Department to sell, transfer or lease lands or buildings," and all schemes relating to endowed schools must be submitted and approved.^ The taking of land otherwise than by agreement can only be authorized by a provisional order framed and submitted by the Department.* Poor Law Officers are under similar restrictions as to the construction, renting, enlargement of workhouses and pauper schools, and the purchase, sale or lease of property .5 Local Authorities in General. Besides the preceding, there are numerous provisions scattered through the statutes which impose various restrictions upon "local authorities," and although different acts contain different definitions, in general it may be Said that the term usually includes rural and urban district councils, county councils, borough coun- cils, parish councils, and commissioners of various sorts, as improvement commissioners and commissioners of libraries. There are also various central authorities that possess more or less control, the most important of which are the Local Government Board, the Commissioners of the Treasury, the Board of Trade and the Board of Agriculture. The Local '45 & 56 v., c. 50, 105-116, 120; 53 & 54 v., c. 70. no orders were issued in 1895. Vide 25th Rep. of L. G. B., 1895-6, p. 358 App. ' 33 & 34 v., c. 75, s. 22. » 32 & 33 v., v;. 56; 33 & 34 v., u. 75, ». 75; 36 & 37 v., c. 87, s. 3. •33&34V., c. 75, S.20, 21. »4 & 5 Wm. IV., c. 76, s. 23; 5 & 6 Wm. IV., c. 69; 5 & 6 V., c. 18; 13 & 14 v., c. 57; 29 & 30 v., c. 113, s. 8; 30 & 31 v., c. 106, s. 13; 56 & 57 V., t. 73, s. 6; et alia. 246 orders were issued granting approval in 1895. 25th Rep. of L. G. B., 1895-6, pp. 93-95. 1 88 ENGLISH LOCAL GOVERNMENT [i8& Government Board must give its approval in order that these local authorities may purchase or appropriate lands, other- wise than by agreement, for the purposes of establishing and maintaining baths and wash-houses;' or may appropriate, purchase, rent, sell or exchange lands for libraries and museums.'' And under the Housing of Working Classes Act, the whole scheme for providing accommodations for the working classes must be submitted and approved.^ Although deprived of many powers by transference to the Local Government Board, the Board of Trade still maintains some of its former importance. Probably the most import- ant control it possesses is to be found in the provision requiring the construction of tramways by local authorities to be previously approved by it. To purchase the rights and privileges of a private corporation, the local authority must secure the consent of the Treasury.* The Board of Trade is also empowered to license a local authority to supply electricity for public or private purposes (under certain restrictions), and the conditions imposed upon the purchase of a plant by a local authority practically require its approval.^ The purchasing or renting of land for pur- poses of the Diseases of Animals Act must be approved by the Board of Agriculture.' The most common provision is that empowering the Local Government Board to adjust the property, debts, liabilities and other interests of parishes, unions or districts whose boundaries have been altered by its orders.' This power is very useful in preventing litigation and prolonged disputes. ' 9 & 10 v., c. 74, s. 24, 32; 34 & 35 v., c. 70, Schedule; 38 & 39 V., c. 55, s. loj 41 & 42 v., c. 14, s. g; 45 & 46 v., c. 30. " 55 & 56 v., c. 53, s. 1. ^ 53 & 54 v., c. 70, s. 8. * 33 & 34 v., c. 78, s. 4-8, 43, 44; see also 45 & 46 V., c. 62, s. 7. » 45 & 46 v., ^. 56, ». 4. 5, 27. S7 & 58 v., c. 57, s. 33. ' 18 & 19 v., c. 79, s. 2; 30 & 31 v., c. 106, s. 15; 39 & 40 v., c. 61, s 8; 56 & 57 v., c. 73, s. 68; et alia. 1 89] LOCAL Fll^ANCE 1 89 Such briefly are the most important provisions establish- ing a central control over local finances. Their great variety precludes the formation of a valuable general rule, but the following seems the best one that can be evolved. When the acquirement of property or privileges is for a pur- pose of vital interest, and one in which the local authority is not likely to exceed its proper sphere nor violate private rights in applying the law, the conditions are simple, easy of fulfillment, and the approval of a central authority is not required ; but where the opposite is true or likely to be the result, its action is beset with many restrictions, the most effective of which is the one requiring the consent of a cen- tral authority to validate the act. This rule is vague and indefinite, but there seems to be no other that will harmonize the provisions and explain the apparent great lack of uni- formity. It seems hardly necessary to say that the central control just described, is not the only restriction upon the powers of the local authorities. There are numerous statutory limita- tions besides. Further, within the last few years a slight decentralization has begun. Certain powers have been con- ferred upon the county councils, very similar to those exer- cised by the Local Government Board ; as for instance in the case of compulsory taking of land, where the Lands Clauses Consohdation Act may be put into operation under the Allotments Act by a provisional order issued by the county council.' This movement does not seem to be due to any opposition or serious objections to the present plan, but rather to the belief that the Local Government Board is overburdened with details that could just as well be en- trusted to other authorities. 3. Expenditure — Loans. — The same general remarks that '50&51 v., 0.48,3.6. IQO ENGLISH LOCAL GOVERNMENT [igo were made regarding the indirect methods by which rates could be affected apply as well to the amount, purposes and character of expenditures defrayed by loans. But the problems confronting us in the latter case are of an entirely different character. Private initiative can be depended upon to keep rates within bounds, but as to loans, it is entirely inadequate. The number of per- sons who consider themselves called upon to guard the interests of future rate-payers is very small. Thus some control is necessary, either administrative or legislative. In reality we find both, and it is interesting and important to pursue the investigation with two questions in mind : Which of these two methods is the more desirable? To what ex- tent is an efficient control exercised ? Glancing briefly at the statutory limitations upon the borrowing power which are to be enforced through private interest and the usual judicial processes, one finds several classes, viz., limitations upon the amount of indebtedness, the time and method of repayment, and the purposes of the loan. As examples of the first, it is found that the indebtedness of county councils may not exceed one-tenth,' that of guardians one-fourth,' that of parish councils one-half of the annual ratable value.^ District councils may not exceed the ratable value for two years.'* Numerous laws, such as the Small Holdings Act, Allotments Act, the Housing of the Working Classes Act, have increased these limits, although the limit for any specific purpose has remained unchanged. The maximum time which loans may run is also fixed. Loans made to defray the cost of construction or purchase of tram- ways must be repaid within thirty years,' which is also the limit for municipal corporations when borrowing for corpo- '51 & 52 v., i:. 41, =. 39. '52&S3V., 0.56,5. 2. "Se&s; v., c. 73, s. 12. *38&39V.,c. 55, s. 234. 5.33 & 34 V., c. 78, s. 20. igi] LOCAL FINANCE igi rate purposes,' and for county councils.^ Parish councils and district councils for sanitary purposes are limited to sixty years,' school boards to fifty .■• The method of repayment is also specified in many instances, but even here much dis- cretion is left to some central department,' usually the Local Government Board. The purposes of loans are also specified in general terms only, but since the approval of the central authority is usually required, the whole question is practically within its power to determine. Of course no local authority may borrow money for purposes not specified in its grant of powers, but when the power to borrow for a certain purpose is granted, the exercise of this power in a given instance must usually be approved by a central authority. The statutory limitations limit the central as well as the local authorities, but as will be shown later, they have in reality not restricted the former, for the conditions it imposes have been far within the fixed limits of the statutes. I have said that private interests are depended upon to enforce these provisions. Strictly speaking this is not quite accurate, for, as will be seen in the following pages, the cen- tral government has come to exercise a disciplinary power through its power to withhold approval to loans, and to apply for a mandamus to compel compliance with its orders and the provisions of law. Practically, the central govern- ment is depended upon to enforce the statutory provisions as much if not more than is private interest. Passing now to the consideration of the plan of central administrative control, the principle which seems to be at the basis of the system is that local authorities are incapable of ' 45 & 46 v., c. 50, s. 1 12. ' 5 1 & 52 v., c. 41, s. 69. »38&39V.,c. 55, S.234; 56*57 V.,c. 73,5. 12. • 36 & 37 V., c. 86, s. 10. » See, for example, 36 & 37 V., c. 86, s. 10; 38 & 39 V., ^. 55, s. 234; 38 & 39 V.,c. 83; 48&49V., c. 30. 1^2 ■ ENGLISH LOCAL GOVERNMENT [192 exercising a proper control over themselves, that private initiative is inadequate, and that statutory limitations do not possess the desired flexibility or capability of adaptation to varying conditions. Hence it may be laid down as a gen- eral rule, with but few if any exceptions, that the approval of some central department must be secured before a loan can be legally made. The decisions of such department are not reviewable by any authority, except so far as a question of law is involved. The courts will not go into the discus- sion of whether the decision was wise or not, but only whether it was within the power of the department.' If ap- proval is denied, the only recourse is a local act, or perhaps a curative act, but the latter is a possibility and not a probability. The same rules apply to the many con- ditions regarding the security to be given, the time and method of repayment or other matters which the central authority may impose. Indirectly another influence is brought to bear by the power of the central departments to authorize the Public Works Loan Commissioners to loan to local authorities usually at lower rates and upon more favor- able terms than can be obtained in the general market.'^ If the Local Government Board gives its sanction after an official investigation of the financial position of a local au- thority, the securities so issued cannot be impeached for in- formality or want of power to issue them.3 The comprehensiveness of the control can be best under- stood by giving a list of the authorities and purposes for ' The cases upon this point are very few, but this rule of law seems to be thor- oughly well established, so well, indeed, that it is no longer questioned. ''38&39 v., u. S5,s. 243; 36 & 37 v., c. 86, s. 10. Up to March 31, 1894, about ;£'46,ooo,ooo had been advanced since 181 7 in England and Wales to all author- ities and under all conditions, of which ;£'2i,ooo,cx)o was still outstanding. The rates varied from zK to 4 % foryear 1893-4. Wright & Hobhouse, op. cit., p. III. » 38 & 39 v., c. 83, s. 26; 47 & 48 v., c. 30. Not much advantage has been taken of this provision. 193] LOCAL FINANCE 193 which loans were sanctioned during 1895-6 by the Local Government Board. The terms are to be given the widest application, as I have combined and abbreviated them as much as possible. The size of the loan makes no difference. It may be ;^30 for office furniture or .^90,000 for sewerage.' The purposes for which District Councils borrowed money included water supply, sewerage, sewage disposal, new streets, street improvement, public lighting, fire stations, engines and appHances, improvement of markets, slaughter- houses, yards, stables, offices, mortuaries, public parks, recreation grounds and other public conveniences, gas works, electric Ughting, depots, hospitals, bridges, steam rollers, workmen's dwellings, winter gardens, urinals, hy- drants, sea defences, baths and wash-houses, band stand, libraries, allotments, costs of provisional orders, technical instruction, et cetera. The number of loans was about 1600, and the total amount sanctioned over ;£^6, 1 00,oco.° Municipal Corporations received consent to borrow for the improvement of bridges, markets, municipal buildings, lunatic asylums, lighting of town hall, improvement of estates and offices. In certain other instances, as for public libraries, baths, technical instruction and allotments, loans were also sanc- tioned, but it is difficult to say whejther the borough council was then acting as an urban district council or a municipal authority. The number of loans of the first class was forty- one, and the amount ;^252, 815.3 Poor Law Authorities, not having extensive wants, bor- rowed for purchasing or repairing workhouses, infirmaries ' 25th Rep. of L. G. B., 1895-6, pp. 554, 574, App. ^IHd., pp. 552-585, App. The most important acts are 34 & 35 V., u. 70; 38 & 39 v., c. 55, s. 234, 343; 45 & 46 v., c. 56, s. 8; 50 & 51 V., c. 22, s. 7, 8. » Ibid., pp. 356-7, 575-579, App. Vide, 9 & 10 V., c. 74, s. 21 ; 45 & 46 V., c. 50, pt. v.; 51 & 52 v., c. 41, s. 9, 106; 53 & 54 v., u. 5. 194 ENGLISH LOCAL GOVERNMENT [194 and workhouse schools, and for purchasing land, the sum of ;^858,9SO.' County Councils received consent for the following pur- poses: bridges, improvement of main roads, highways, lunatic asylums, police buildings, county offices and build- ings, technical instruction, and repayment of loans. In all £,ifj2,if2% were authorized to be borrowed in eighty-four loans." Parish Councils being of recent creation cannot be said to be thoroughly organized. The only purpose for which loans were sanctioned in 1895 was " burial ground," and the entire amount of the six loans was £2,66^)? All loans must be ap- proved by the Local Government Board'' (and the county council as well), and as there are a number of "adoptive acts " which may be applied,^ these figures will probably increase within the next few years. There are a few other authorities whose loans must be approved by the Board, such as joint boards under the Public Health Acts, metropolitan sanitary authorities, port sanitary authorities, and commissioners for public baths and wash- houses, but these are comparatively unimportant.* School Boards must secure the consent of the Education Department to borrow on the security of the school fund and local rate.' Up to September 29, 1895, ^30.225,396 had been borrowed, of which ;£^24,376,4i8 were still outstanding.* ' 25th Rep. of L. G. B., 1895-6, pp. 93-94. Vide, 13 & 14 V., c. loi, s. 3; 34 v., c. 11; 42&43 v., c. 54, s. II, 12; 52& 53 V., c. 56, s. 2. ' 25th Rep. of L. G. B., 1895-6, pp. 351-2, App. Vide, 51 & 52 V., t. 41, s. 12, 69; 52 & 53 v., c. 76; S3 v., i;. 5, s. 274. • 25th Rep. of L. G. B., 1895-6, p. 361, App. • 56 & 57 v., u. 73, s. 12. ' Ibid., 7. "25th Rep. of L. G. B., 1895-6, pp. 586-7, App. ' 36 & 37 v., I.. 86, ». 10; 39 & 40 v., t. 79, ». 15. • Rep. of Committee, 1895-6, pp. 34-35. Figures are for England and Wales. I95J LOCAL FINANCE 1 95 Besides the two central authorities mentioned, the Secre- tary of State, the Board of Trade and the Commissioners of the Treasury possess similar powers, but they are compara- tively so unimportant as not to demand careful notice. Until within the past few years, their powers were more extensive, but of late they have lost in power, and the Local Govern- ment Board has gained.' It has probably been perceived ere this that in many cases the central authorities possess a double control. For ex- ample, consent must be secured to render valid the purchase of waterworks, and if the expense is to be met by a loan, the local authority is also obliged to secure approval as to the time and method of repayment. Doubtless this is perfectly proper, for the two acts are of a different character, and need separate consideration. If the expenditure is defrayed directly from the rates, this double control does not obtain, but practically it is very extensive, for the reason that the amount that can be raised by taxation is a very limited sum, legally and practically. The statutory limitations upon the amount that may be raised by rates are not numerous nor very restrictive," but the practical hmitations are more efficacious. The dislike of heavy rates is as widespread and as strong in England as elsewhere, and since the rate-payers constitute a large portion of the electors, this feeling has con- siderable influence. Then it is much more pleasant to shift the burden than to bear it, and as long as it is possible it is likely to be done. Even the deferment of payment a few years is a favorite scheme. Where the amounts are so small that immediate cancellation will not heavily burden the rates, these remarks do not apply, but there is a strong temptation to shift all that can be shifted. It is to be concluded, therefore, that whenever the acquisi- 'C>CSi&S2V.,c.4l,s. 72. »(y 5S&S6V., C.31, s. 18; 55 & 56 v., c. 53, s. 2; 56&57V., c.73,s. 11. igQ ENGLISH LOCAL GOVERNMENT [igg tion of property requires central approval, there exists a double control, and that no important loan can be made by a purely local authority unless some central administrative authority give its consent.' Only one exception exists, and that is in case borrowing power is conferred by a special act and no approval is required. Formerly this power was much abused, but of late the tendency is more and more to require approval even under a local act, or to refuse to pass it except in extreme cases. 4. Effects of Control. The period of central administrative control over local finance may be divided into two periods, of which the years from 1870 to 1875 may be said to mark the point of transition. In the earlier period, the great question confronting the central authority in connection with sanitary administration was how to overcome the apathy and indifiference of local authorities. Poor law officers could not raise loans for many purposes, except the erection of workhouses, and they did not seem to be too eager to act even here. Municipal councils, the only other prominent class under central control, did not show a disposition to plunge too rapidly into debt, and their competence was and is still quite limited as purely municipal authorities. But the great problem was how to improve sanitary conditions, how to incite to action, how to induce the incurring of in- debtedness rather than how to check it.° Hence, the need of the system of control just described was not so apparent as at present.3 Yet when a loan was made, there was as ' Most of the acts providing for central approval extend the plan to include all expenditures vfhich the central department thinks should be extended over a period of years. ' Rep. of L. G. B., S. P., 1872, Vol. 28, pp. 43, 44. 'The total amount of loans sanctioned from 1848 to 1871 — 23 years — ^was only about ;^io,300,ooo; whereas, from 1871 to 1895 — 26years — ^;£'73,i02,03i in loans were sanctioned to urban and rural authorities alone. 25th Rep. of L. G. B., 1895-6, pp. 100, lOI. 197] LOCAL FINANCE 197 great need in that individual case as ever. There was a ten- dency upon the part of the central authority to be somewhat lax in order to induce the undertaking of sanitary improve- ment, and this partially explains why loans were allowed to run for longer periods than in recent years. The experience of this earlier period shows how easily central administrative control adjusts itself to the demands of the time, and how capable it is of infinite flexibility and expansion. The difference between this period and that embraced within the past twenty or twenty-five years is readily ap- parent. In the latter the great problem has been how local indebtedness might be kept within bounds, how authori- ties might be restrained from making loans for purposes which were unnecessary or in amounts which were excessive, how periods of repayment might be restricted within such limits that each generation would bear the expense of the undertakings by which it was benefited and not impose upon a future generation the burdens of the present, how proper methods of repayment, sinking funds, et cetera, might be secured. Just where the dividing line is to be drawn be- tween these two periods cannot be definitely determined, for there is no point where a complete transformation may be said to have occurred. Opposition to local action was great- est in 1848. Gradually it decreased, giving way to an actual desire to act, until within the last ten years, debt has been incurred with amazing rapidity. If any point exists where the change may be said to have been more rapid than at any other, the early seventies undoubtedly mark it. The reports of the Royal Sanitary Commission, the Public Health Acts of 1872 and 1875, amending and consolidating previ- ous acts, all conspired to produce the same eflfect.' The change was most noticeable in the attitude of rural sanitary authorities, which borrowed in 1874 six times as much as in the previous year." ' Rep. of L. G. B., S. P., 1877, Vol. 37, p. 56. * Ibid., 1875, Vol. 31, p. 43. ip8 ENGLISH LOCAL GOVERNMENT [198 It should not be concluded that England is now at the culmination of the tendency to make large loans for long periods upon insufficient security with no wise plan for re- payment, for high tide in these respects has passed, and illegal, unjust and unwise methods are giving way. It is doubtful, however, whether certain tendencies that may be called socialistic are becoming weaker. The opposite seems far more probable, for the tendency of the county and bor- ough councils seems to be to widen their spheres of activity and to conduct many enterprises which have hitherto been in the hands of private individuals. Passing now to discuss the effects of central control in the period from 1870 to the present, I shall first undertake to ascertain what effect it has upon the length of the period of re- payment. Here, as in the following paragraphs, I shall attempt to study but one field, sanitary administration. The reasons for this limitation are that it is more important from the present standpoint than any other one field, that the results attained in this line have been duplicated more or less in others, that the material is more complete, and that the system has been more fully tested here than elsewhere. The importance of the length of time within which loans are repaid needs no amplification. It is commensurate with the injustice, the folly and the injurious effects of an exceed- ingly long term, which thrusts the burden upon those that have received no share in the benefits, and which retards the onward march of progress because the future is obliged to bear its own burdens as well as those of previous genera- tions. The only safe rule is that all debts should be paid before the usefulness of the thing for which they were in- curred ceases. And even this must be followed with due allowance for the liability that new inventions may render present investments of little service. Nor is the danger of unduly extending the period of repayment an imaginary one. 199] LOCAL FINANCE J99 It has been frequently encountered in England, and will be brought out more clearly when we come to consider local legislation dealing with financial matters. The policy of the Local Government Board as stated in the report for the year 1871 was as follows : " In the case of every loan we have satisfied ourselves that the proposed works have been necessary and adapted for the requirements of the locality, that they would without doubt last good for at least as long a time as that limited for the repayment of the loan, and that the estimates for them have not been ex- cessive,"' The same fundamental principle of action is quoted in nearly every report, and is certainly an ideal one. To ascertain the facts i-n any specific case, inquiries were held within the localities petitioning for sanction to a loan. Previous public notice was given, and all rate-payers were invited to be present and state their opinions. Examina- tions were made into every detail, ample powers having been conferred by statute. But a question arises as to whether the powers of the Board have been properly exercised, and whether the prin- ciple enunciated has been closely followed. As to the former, there seems to be no evidence that points to an improper exercise. The inquiry has not been held without abundant notice being given to all who wish to attend. The utmost publicity obtains, and the reports sent to the central author- ity have very seldom if ever been made upon incomplete or inaccurate evidence. To answer the latter question is some- what more difficult. The exact nature of the purpose for which the loan is made must be known. The expense of securing a piece of land for a town hall may very properly be extended over a long period of years, say fifty or sixty. The grading of a street should be repaid within a period not quite as long. But when a street is paved with material ' S. P., 1875, Vol. 31, p. 43. 25th Report of L. G. B., 1895-6, p. 107. 2O0 ENGLISH LOCAL GOVERNMENT [200 which because of frequent use or other causes would involve repaying within a few years, the duration of the loan should be very brief. An examination of the loans sanctioned under the various public health acts to the urban and rural sanitary authorities during 1892 furnishes some data.' Of the 104 loans, ex- tending over a period of 50 years, 89 were specifically men- tioned as being for the purchase of land. The remaining 1 5 were distributed as follows : sewerage and sewage disposal, 2 ; street improvement, 7 ; water supply, i ; depot, i ; re- payment of loan, 4. Of these fifteen it is probable that some were really for the purchase of land, so that ninety per cent, of the total number may be considered to fall under this heading. As to' the remainder, it would be necessary to know more fully the exact nature of the purpose before ap- proving or condemning the decision of the Local Govern- ment Board. None of the loans was for a longer period than fifty years, and although the limit fixed by law is sixty, the Board ^has deemed it unwise even in the most urgent cases to permit the limit to be reached. After the fifty-year limit is passed, we find very few loans until we reach thirty, as is shown by the following tabulation of the 1122 loans sanctioned to urban and rural sanitary authorities during the year: Periods of repayment. Per cent, of total number. 50 years 9.3 31 to 39 inclusive 1,3 30 years 41.5 20 to 29 inclusive 21.7 10 to 19 " 16 I to 9 " 10.2 lOO.O Thus it is seen that only one-tenth exceeded thirty, be- ' Report of L. G. E., S. P., 1893, Vol. 43, pp. 394-411, 415-419, App. 20l] LOCAL FINANCE^ 20I tween six and seven-tenths lay between twenty and thirty inclusive, and the remaining two-and-one-half-tenths fell be- low twenty years. When with these figures is coupled the fact that by far the larger portion of these loans — comparing amounts borrowed — was for street improvements, water sup- ply, sewerage and sewage disposal, it seems very probable that the real attitude of the central authorities has accorded very closely with their principles as stated.' If we examine the figures of 1874, we find that even at that early date the Board exercised a restrictive influence, keeping the loans far within the statutory limit and permit- ting thirty years to be surpassed only in a few cases. The figures are:" Per cent, of total Per cent, of Periods. amount sanctioned. number of loans. 57 years I. 4 50 " '4- S- 31 " 5 -4 30 " 6i. 61.4 20-29 inclusive 9- '3- ' 10-19 " 3-9 «°-3 1-9 " 4.2 6.8 Not given 6.3 2.7 Total ;^940,937 223 I^ans. A comparison with the list for 1896 shows that the periods at present are much shorter and that the tendency is to further restrict them, yet no change has been made in the meantime in the statutory limits or the powers of the Board. If we compare the legislative control as exercised through local acts with the central administrative control, we again see the superiority of the latter. Even during the period 'The figures for 1895 are still more favorable than those of 1892. See 25tb Rep. of L. G. B. •Rep. of L. G. B., S. P., 1874, Vol. 25, pp. 682-6, App. 202 ENGLISH LOCAL GOVERNMENT [202 from 1875 to 1880, when the Local Government Board rarely allowed the term to exceed fifty years, it was the ex- ception rather than the rule for the time set by local acts to be below sixty years, and instances are given where it reached eighty-five, ninety, one hundred or even one hundred and ten years.' Liverpool in 1880 was granted the right to borrow ;^3, 250,000 for terms varying from 60 to 70 years in length. Manchester was empowered to borrow ;^3,425,ooo for 80 years, and the Birmingham Gas Act fixed a limit of 85 years. The bill providing for a system of water- works for the latter city approved 90, but Halifax outstripped all and was given until 1985 to repay a loan.' Although there may be some difference of opinion as to whether such undertakings should have been permitted, very few persons can be found who will support the authorizing of such long terms. But be that as it may, it is certain that as between central administrative control and legislative control the former has been much more efficient in keeping the local authorities within bounds, and exercises by far the more restrictive influence. Pursuing the investigation further, we 'find that such ex- tremely long periods are not permitted at present, and the reason is interesting. In 1872-3 the evils arising from the passage of local acts without debate, and usually without examination, began to be appreciated, and Parliament passed an order requiring all private bills in behalf of an urban or rural sanitary authority in respect to any purpose to which the Sanitary Acts relate to be referred to the Local Govern- ment Board for consideration and report.^ The effect of this plan was that defects were brought to light, attention was ' Rep. of L. G. B., S. P., 1878-9, Vol. 28, p. 84; Ibid., 1882-3, Vol. 28, p. 74. 'See Reports of the L. G. B., especially 1880, S. P., Vol. 26, p. 482, App.; i88i, Vol. 46, pp.61, 77. Also the Edinburgh Review, i88i. Vol. 153, pp. 553 It seq. ' Report of L. G. B., S. P., 1873, Vol. 29, p. 51. 203j LOCAL FINANCE 203 called to improper postponements of repayment, and much improvement was secured. At first progress was not rapid, but as the years passed, and as continued attacks of the Local Government Board upon improper provisions brought persons to perceive the wisdom of its position, the periods legalized in local acts have grown shorter and shorter. In 1883 the House of Commons passed a standing order limit- ing the time to 60 years,' which is usually followed, but now and then an authority secures an exception, as did the Stockton and Middlesborough corporations in 1884,° and Sheffield in 1887.' But it should not be forgotten that for this important and highly beneficial change in the position of Parliament towards local acts England is indebted to the attitude of the Local Government Board. What has been said applies, mutatis mutandis, to other matters which are involved in the negotiation and repayment of loans, viz., sinking funds, the payment of interest regu- larly, the expenditure of the loan for the purpose ascribed, and the many other matters that are prescribed both by law and sound finance. There are several ways in which the central departments may force compliance. Under the Pub- lic Works Loans Acts, 1 875-1 882, the Local Government Board is required to satisfy itself that all loans advanced by the Commissioners to local authorities upon the security of rates have been applied to the objects for which they were secured. If it appears that such has not been done, the Board may issue an order directing the necessary corrections to be made, and if it is not complied with it may be enforced by a writ of mandamus.'' The Board may also order unex- ' Report of L. G. B., S. P., 1883, Vol. 28, p. 100. ' Ibid., 1884-S, Vol. 32, p. C2. ' Ibid., 1888, Vol. 49, p. 123. * 38 & 39 v., c. 89, s. 35-38; 41 & 42 v., t. 18, s. 4; 45 & 46 v., u. 62, a. 8. The Education Department has similar powers relative to loans advanced to school boards. 204 ENGLISH LOCAL GOVERNMENT [204. pended balances to be remitted to the Commissioners.' Since 1873, local acts and provisional orders, with very few exceptions, have provided for returns to be made, and if it appears that the provisions of the act relating to the loan have not been followed, the Board may issue an order en- forceable by a mandamus.'' By the same means the Board may enforce obedience to any of the conditions contained in the statutes or imposed by itself relative to the numerous matters involved in the negotiation and repayment of loans^ the issuing of stock, or the management of sinking funds. Its powers are ample, both to obtain the information needed and to enforce its decisions, and while it receives many re- turns and investigates numerous cases, it is not often that it is compelled to issue orders or apply for a mandamus. Besides this direct control, there is also an indirect control which is equally efifective. This is to be found in the power of the Local Government Board to sanction or refuse to sanction a loan or the issuing of stock. Since the power is entirely discretionary, and the courts will not interfere except so far as to determine whether the Board is acting within the jurisdiction given by the law, the in- fluence of the power is determined entirely by the attitude of the Board. If a local authority applies for a loan, the central authority may inquire into the previous actions of the locality, may find out whether sinking funds have been provided as required by law, whether principal and in- terest have been paid regularly and promptly, whether loans have been honestly and wisely expended, and in short what has been the whole history of the authority making applica- tion. If the record proves to be unsatisfactory, the central authority may refuse to approve the new loan until the de- '41 & 42 v., c. 18, s. 4; 44 & 45 v., c. 38, s. 9. ;f 10,296 were lemitted in 1895. 25th Rep. of L.G. B., 1895-6, p. 113. » 25th Rep. of L. G. B., 1895-6, p. 1 1 1. 20S] LOCAL FINANCE " 20S fects have been remedied, and thus force the local authority into conformity to the law and its orders. Of course escape can be had from this " dictatorial power " by securing a local act sanctioning the loan, and this is one reason why so much use has been made of this privilege. The Local Government Board was not long in perceiving the power it possessed, and mention is made as early as 1874 of the many beneficial results following the adoption of the plan.' Nearly every report reiterates the statement,^ and although the instances where resort is had to this method are greatly diminished, it formerly exercised a very powerful in- fluence, which has now almost entirely become potential. It explains to a large extent why legal and sound financial rules have been so closely followed, and why present condi- tions are preferable to past. Its efficacy rests upon the great desire of the localities to undertake works and to pay for them through loans. Remove this factor and the control would be valueless. In the case of the issuing of stock by the local authorities, the control exercised arises from the provision requiring the approval of the Board as to the various conditions of its issue, transference, redemption, et cetera, and from the desire to issue stock because of the many advantages arising there- from.3 Its influence is seen from the fact that stock to the amount of ;£'i, 717,908 was authorized in 1895 to be issued.'* In all these plans, whether providing for a direct or indi- rect control, it must not be forgotten that whenever publicity is produced, it serves as a deterrent power. As long as the facts are not brought to the light, loose and corrupt methods may and will be employed, but the very probability that they » Report of L. G. B., S. P., 1875, Vol. 31, p. 43. ' 2Sth Report of L. G. B., 1895-6, pp. 107-8. » 51 & 52 v., c. 41, s. 70; 53 & 54 v., c. 59, s. S3. * 2Sth Report of L; G. B., 1895-6, pp. 26, no. 2o6 ENGLISH LOCAL GOVERNMENT [206 will be made public prevents their use whether statutory penalties are inflicted or not. The question will undoubtedly arise, if indeed it has not ere this, whether or not central administrative control has kept the localities from making improper loans and from plunging too heavily into debt. The Local Government Board has claimed, as has already been said, that in all its inquiries (which are made previous to the approval or disap- proval of loans) it has been particularly careful to ascertain whether estimates were excessive and the undertakings nec- essary. But little light is thrown upon the subject, unless we know what is meant by the terms " excessive " and " neces- sary." It may be stated, however, with no fear of contradic- tion, that the central government has done excellent work in preventing excessive estimates being made ; but as to whether the purposes for which loans have been negotiated might be called necessary, depends very largely upon how far govern- ment should enter the field that has heretofore been con- sidered as belonging to private enterprise, and to what extent the future should be mortgaged to construct or purchase waterworks, sewers, lighting plants, sewage disposal works, gas works, street railways and improvements. Since opin- ions differ so widely, it is impossible to arrive at any conclu- sion of scientific value. Some claim with great positiveness that local indebtedness is a sign of prosperity, that the money has been wisely and economically expended, and that the debt has been kept within bounds. Others just as positively ad- here to the opposite view, point with alarm to the great in- crease of the last twenty-five years, and claim to see therein great folly and unwise expenditure. The opinion expressed by Mr. G, H. Blunden seems to be nearly correct.' "Whilst the rapidity of the recent growth," he says, " and the mag- ' British Local Finance, Pol. Sc. Quarterly, Vol. IX., p. 93, March, 1894. 207] LOCAL FINANCE 207 nitude of the total of the local debt are, at first sight, some- what alarming, there are reassuring facts which should also be borne in mind. In the first place, the greater part of the thirty-one and one-half millions \£'\ owing in respect to harbors, piers, docks and quays is not secured upon the local rates, and is not, therefore, a public liability in the ordinary sense. Then, too, the debt on gas works, water- works, markets and cemeteries is usually secured prima- rily upon the revenues of these undertakings, and is only a charge on the rates to the extent to which these revenues may be found insufficient to meet the payments for principal and interest. As these undertakings are mainly commercial enterprises which were originally in private hands, and were then sources of considerable profit to the owners ; and as their acquisition has been, in most cases, deliberately under- taken in the public interest, it is fair to assume that, even in those cases where a charge falls upon the rates, there is a balance of advantage to the community arising out of the greater excellence or the lower price of the supplies or con- veniences obtained. In the great majority of cases the pub- lic management of gas works is productive of considerable money profits, which are available partly for the redemption of the undertakings, and partly for the relief of the rates. This is less generally, but still very largely, the case also with water-works and markets, but cemeteries are at present a charge upon the rates in a large proportion of the cases in which they belong to the local authorities. This is chiefly due to the necessity for repaying a portion of the purchase money each year, and the present provision, as a matter of prudence for enlarged needs in the future, owing to the growth of population and the closing of the church yards." It is thought best, however, not to leave the reader with- out some information upon which to base his own conclu- sions. A few statistics have been prepared, therefore ; and 2o8 ENGLISH LOCAL GOVERNMENT [208 further detailed information can be found in the Annual Re- port of the Local Government Board and the Local Taxa- tion Returns. Comparing the figures for the past twenty years, it is found that the ratable value increased 39.3 per cent, from 1874 to 1894, that loans outstanding increased 141.5 per cent, from 1874-5 to 1893-4, ^^d that loans sanctioned an- nually to urban and rural authorities increased 320.5 per cent, from 1874 to 1895. The ratable value is 83 per cent, of the gross estimated rental, and the amount of the total local debt for England and Wales per £ of the poor rate valuation was in 1894, ;^i 8 s. i d., the Metropolitan local debt being ;^i 5 s. 7d., and the Extra-Metropolitan, £\ 8 s. 9d. Com- bining these figures, it is found that the local debt outside of the Metropolis is 120 per cent, of the gross estimated rental. An examination of the indebtedness shows it to be distrib- uted among the local authorities as follows:' Local Authorities. 1893-4. Metropolitan ;^43>I9I)99S Extra-Metropolitan — Poor Law Authorities 3,497,041 County Authorities ... 2,955,273 Municipal Corporations 13,465,729 Urban Sanitary Authorities and Joint Boards 109,005,488 Rural and Port Sanitary Authorities 2,062,658 Commissioners of Sewers 77,17° Commissioners of Baths and Washhouses 9,870 Markets and Fairs Commissioners 24,880 Drainage, Embankment and Conservancy Boards 2,256,453 Harbor, Pier and Dock Authorities 32,239,746 School Boards 13,168,106 Burial Boards 2,052,804 Highway Authorities in Rural Districts 40,063 Other authorities 111,091 Total ;^224,i58,370 'The statistics here given may be found in the appendix to the 25th Rep. of L. G. B., 1895-6. 209j LOCAL FINANCE 209 If one wishes to consider the purposes for which these loans were made, the following classification is interesting: Waterworks ;^4i,8o3,889 Harbors, piers, docks and quays 32,716,623 Highways, street improvements, turnpike roads, bridges and ferries 33,389,369 Sewerage and sewage disposal works, drainage, embankment, etc. . 25,351,831 Schools 21,285,880 Gasworks and public lighting 16,996,658 Parks, pleasure grounds, libraries, museums, baths, washhouses, hos- pitals, lunatic asylumns, police stations, jails, etc 13,232,244 Markets, slaughter-houses and burial grounds 8,359,746 Poor law purposes 7,471,443 Artisans' and laborers' dwellings 4>336>5'7 Advances to Manchester Ship Canal Company 4,628,600 Tramways 1,433,744 Other purposes 13,151,826 Total ;^224,I58,370 During the same year, 1893-4, the aggregate receipts, excluding loans, of local authorities were ;^s8,377,68o, the principal items of which were : Public Rates ;^32,223,972 Treasury subventions 2,949,537 From Local Government Board out of the Local Taxation Account. 5,982,022 Tolls, dues and duties 3>5°7t937 Receipts from real and funded property (excluding sales) 1,732,962 Sales of property 381,474 Fees, fines, penalties and licenses 654,906 Revenue from waterworks 2,825,652 Revenue from gasworks 4,510,784 Revenue from markets, burial grounds, sewage farms and works, baths, washhouses, libraries, museums, lunatic asylums, hospitals, tramways, slaughter-houses, harbors, docks and piers (excluding above items) ^ 1,227,725 Repayments in respect of private improvement works 1,020,577 Total ;£'57.oi7.S48 The public local rates assessed by the principal local authorities in 1893-4 were as follows: 2IO ENGLISH LOCAL GOVERNMENT [210 s. d. England and Wales 4 O-S Metropolitan 5 4- Extra Metropolitan 3 8.3 Poor Law Authorities 10.8 County Councils — General County Purposes — Average 3.7 Town Councils acting as Municipal Authorities — County Boroughs 8.5 Other Boroughs 6.5 Town Councils acting as Urban Sanitary Authorities — County Boroughs 2 10. Other Boroughs 2 8. Local Boards and Improvement Commissioners 2 7.4 Rural Sanitary Authorities 24 School Boards — Boroughs in England 7.8 Parishes in England 7.7 Highway Authorities in Rural Districts 6.9 Such are the most valuable statistics which may be of use to the reader in forming his own conclusions. It is import- ant, however, to keep in mind a few facts. Of the total loans outstanding, nearly two-tenths have been incurred for water- works, one-tenth for sewerage and sewage disposal, one-tenth for schools, and nearly another tenth for public lighting. If the money has been honestly expended, and this fact is not disputed, these figures would indicate that the loans have been incurred for desirable purposes. Comparisons will also show that rates are not excessive and that the proportion of indebtedness to property value is not high. No doubt the great increase in the last thirty years is not due alone to the desires of the local authorities, but partially also to the large amount of money seeking investment and the rapidly- increasing wants of city life. Before forming a final opinion, it is necessary to consider the effect of local legislation upon the amount of indebtedness. 5. Influence of Local Legislation. Throughout the entire consideration of English local government, one must never 2 1 1 ] LOCAL FINANCE 2 1 1 forget that Parliament has power to pass not only gen- eral acts but also what are known in this country as " special acts," or in England as "local or private acts." The mere existence of this power would not be of so much importance were it not that it has been so widely exercised that there is no field of local government but has felt its influence. Although the origin of local legislation was centuries prior to 1865, it was not until after this date that it began to play an important part in that portion of local financial affairs in which the system of central administrative control is found. The cause of the frequent resort to local acts has been the great desire to make loans and the opposition of the local authorities to being required to secure the consent of a cen- tral authorfty. A longer period of repayment could be se- cured by a special act, purposes of a questionable character would be approved, easier methods of repayment would be sanctioned, the past actions of the officers would not be ex- amined minutely, and it was comparatively easy to get a bill passed by Parliament granting their desires. Private bills received very little attention. About 1872 Parliament recognized the evils of this plan and passed an order requiring the submission of all private bills concerning urban and rural sanitary authorities to the Local Government Board, which was to examine them and report. This method has been followed ever since and has tended to check the abuse, but the practice was so deeply rooted that years passed before great improvement was mani- fest. In 1874, thirty of the thirty-three private bills submitted contained " undesirable provisions and omissions." ' Of the ascertained amounts authorized by Parliament during the same year to be borrowed without the consent of the Local Government Board, only .4 per cent, were for terms less than fifty years and seventeen per cent, were for eighty years. ' Rep. of L. G. B., S. P., 1875, Vol. 31, p. 46. ' 212 ENGLISH LOCAL GOVERNMENT [212 The report of the Local Government Board for 1877-8 con- tains this statement of the facts :' "In the majority of cases the periods during which it has been proposed that they [the loans] should remain a charge upon the rates have appeared to us to be unduly prolonged ; the provisions for securing their repayment have frequently been defective, and there has been a prevailing tendency on the part of the pro- moters to postpone the commencement of the sinking fund until the expiration of some years after the raising of the loan. In several instances the local authorities have at- tempted to create a permanent charge upon the rates, by the issue of perpetual annuities without any obligation to set aside a sinking fund for their redemption, or any power to require the annuitant to allow them to be redeemed. We have also noted objectionable proposals as to rating; the absence of proper provisions for the keeping of separate accounts in respect of capital and revenue expenditure and for the application to capital purposes only of the proceeds of the sale of surplus lands and other property ; provisions at variance with the general law ; unnecessary provisions ; ambiguities of expression ; undesirable sanitary and local government regulations ; and omissions to provide for the adjustment of the outstanding liabilities of authorities effected by proposed alterations of sanitary areas." The tide seems to have reached its highest point about 1880. Several in- stances of extremely long periods have been given, and these are not the only ones." In 1877, ninety-nine per cent, of the loans (in amount) permitted by local acts were for fifty years or over.3 These were the evils that the Board undertook to combat, and up to the present time about half a hundred private 'S. P., 1877-8, Vol. 37, p. 85. 2 Rep. of L. G. B., S. P., 1881-2, Vol. 30, p. 120. » Ibid., 1878, Vol. 37, pp. 69, 70. 213] ^ OCAL FINANCE 2 1 3 bills have been examined every year with the best of results. Even in 1884 the extremely long periods were not so fre- quent, and the per cent, running for fifty years or over was reduced to seventy- nine.' In 1883, another step was taken in the right direction when the House of Commons passed a standing order providing that the statutory limitation in the sanitary acts — sixty years — should be applied to all local acts.'' This has been quite strictly adhered to, and although there are a few extraordinary cases which are excepted from the rule, it is rarely that the period now exceeds sixty years. The "undesirable provisions and omissions" found in the earlier acts have also disappeared, and while the periods are not as short as those approved by the Local Government Board, nor the acts as wisely modeled in many other par- ticulars as the schemes approved by the Board, yet there has been great improvement for which the Board should receive the highest praise.^ Its success in inducing Parliament to adopt the rules of procedure, and its careful and thorough consideration of all acts submitted to it, are the chief causes of the transformation. English experience definitely proves the superiority of an administrative authority over a legis- lative authority when financial bills are to be considered that involve no questions of legislative policy but merely ques- tions of expediency. The importance of this plan of permitting loans to be made without the consent of a central authority, except as its opinion is obtained through a report upon the bill, will begin to be appreciated when it is known that whereas the Local Government Board has sanctioned since August 19, 1 87 1, to urban and rural authorities loans amounting to • Rep. of L. G. B., S. P., 1884-5, Vol. 32, pp. 61, 62. *Ibid., 1883-4, Vol. 37, pp. 101-2. ' In some instances where borrowing power is conferred by a special act, the consent of the Local Government Board is required, but the number of such cases is not large. 214 ENGLISH LOCAL GOVERNMENT [214 ;^73, 102,03 1, Parliament by local acts has permitted town councils or sanitary authorities to loan ;^69, 161,066 of ascer- tained amounts, to which must be added a large sum for undertakings whose cost was unknown, but which were legal- ized, and the expense of which was to be defrayed by loans.' The construction of gas works was authorized, for instance, but as the cost was unknown it was not specified. Just what sum should be allowed for this sort of items is a matter of conjecture, but comparing various estimates it seems to be a very conservative estimate to place the total amount sanc- tioned to town councils and sanitary authorities at ;^ 1 00,000,- 000.° It is also probably true that nearly one-half of the present local indebteduess has been authorized by local acts which did not require the consent of any central administra- tive authority. The subject is of great importance for another reason, which will explain why resort has been had so often to local acts. In previous paragraphs no explanation was offered why, in the earlier years especially, the Local Government Board occasionally approved long periods, sometimes sanc- tioned schemes for repayment which were somewhat ques- tionable, and gave consent to some purposes which possibly might better have been omitted. The causes are two-fold. At first the central authorities were apt to be somewhat lenient, because of the considerable opposition to the con- struction of undertakings that were absolutely necessary to the preservation of public health, and because it was only upon the most favorable terms that local authorities could be induced to incur debt. But why should somewhat of • laxity have remained after the attitude of local officials had changed? An explanation is to be found in the position of ^ 25th Rep. of L. G. B., 1895-6, pp. loi, 108. ''The Report of the L. G. B. for 1877 estimates the unascertained amounts as equal to the ascertained. Cf. S. P., 1877, Vol. 39, p. 59. 215] LOCAL FINANCE 215 Parliament. It has been seen that the terms secured by- local acts have always been more favorable (from the point of view of the local authorities) than those approved by the central administrative authorities. The periods have been longer, the methods of repayment easier, and the purposes broader. Thus the central authorities, especially the Local Government Board, saw that if they imposed too rigid con- ditions, more and more recourse would be had to local acts. They perceived it would be impossible entirely and suddenly to change the attitude*of Parliament, that abundant use was being made of local legislation, and that many localities were escaping from their control almost entirely. It was thought better, therefore, to be somewhat lax and secure some con- trol, if it were not possible to exercise all the supervision that seemed desirable. Half a loaf was certainly better than no bread. But as has been seen, the position of Parliament has been changed to accord more closely to the central authorities, which has resulted in an actual increase of their powers, and consequently recent conditions are nearer the ideal than formerly. The conclusion is, therefore, that whatever view we may take of the proper sphere of governmental activity, central administrative control has been more restrictive in its ten- dencies than legislative control whether exercised through general or local acts. The experience has been the same whether the amount of indebtedness, the periods and meth- ods of repayment, or the enforcement of statutory provisions and sound financial principles are considered. In every case the superiority of administrative over legislative control is established, and although the latter can never be removed, it should only be appealed to in exceptional instances, as is coming to be the case in England. CHAPTER VII CENTRAL AUDIT In the preceding chapter, it was seen that the central authorities, especially the Local Government Board and Education Department, had been intrusted with the duty of seeing that loans advanced by the Public Works Loans Commissioners were expended for the purposes indicated; also that through the power of inquiry and the determination to refuse to sanction loans if improper methods were found in past financial transactions, they had brought force to bear to prevent the illegal use of money. A writ of mandamus could also be secured to enforce statutes or orders. Al- though a potent control was thus established, there were many loop-holes in the system and the legitimate expendi- ture of funds was not always guaranteed. Over expenditure from rates there was little control, and where income was derived from property, which is coming more and more be a most important factor, there was no guarantee pro- vided. The misapplication of loans not subject to central approval could be prevented only through the indirect methods just noted. It is evident therefore, that were no further control provided than is described in the preceding chapter, the system would be ratically defective. This was especially true previous to 1875, when the present indirect control derived from the requirement that loans be approved by central authorities had not become of value. As regards the use of a mandamus, it must be remembered that govern- ment inquiries into local afTairs are not favored, that in 216 [216 217] CENTRAL AUDIT 217 practice this method is not as effective as it would be in continental countries with their strong centraHzed govern- ments, and that it has not been frequently exercised. The history of the various methods of auditing accounts is interesting and important, as it points out the errors to be avoided, shows how a system of local audit has been in- effective, and demonstrates that central audit is the logical outcome of central control. Such is the excuse, if excuse there must be, for a brief history of the various systems of audit since 1834. The field of poor laws is chosen because it is the oldest by far, because around it the other fields of local government have been clustered, and because their brief history almost duplicates that of poor relief. Conditions Previous to iS^/j.. To ascertain and compre- hend the system — if indeed it can be called a system — of auditing the accounts of the poor law authorities previous to 1834, it is sufificient to begin with the 43d Elizabeth, caption 2, which declared that the churchwardens and over- seers " shall within four days after the end of their year, . . . make and yield up to such two justices of peace as is aforesaid, a true and perfect accompt of all sums of money by them received, or rated and assessed and not received, and also of such stock as shall be in their hands . . . and such sum or sums of money as shall be in their hands shall pay and deliver over to the said churchwardens and overseers newly nominated and appointed as aforesaid ' . . . Any such two justices of peace to commit to the said prison every one of the said churchwardens and overseers which shall re- fuse to accompt, there to remain without bail or mainprize until he have made a true accompt, and satisfied and paid so much as upon the said accompt shall be remaining in his hands." " The remedy provided for any one who thought himself aggrieved because of any tax or act of the church- ' Section I. ^ Ibid., 3. 2i8 ENGLISH LOCAL GOVERNMENT [218 wardens, justices of peace, or other officers, was an appeal to the court of quarter sessions, which might make such dis- posal as seemed best.' To enforce the payment of all bal- ances, as well as all other sums of money due, two justices were given power to levy by distress and sale on the offend- er's goods, and in case these were insufficient, to commit to jail until paid.'' The practical results of this provision do not appear to have been at all satisfactory, for the 17 Geo. II., c. 38, com- plained of the frequent misapplication of rates, and under- took to remedy the numerous defects by requiring all books to be submitted to the inspection of the rate-payers upon the payment of a fee of six pence. ^ " One or more justices" was substituted for the " two " to whom accounts were to be submitted according to the preceding act.'' The privilege of appeal was extended to anyone having " any material objec- tion to such account," which phrase was construed very lib- erally .5 From these and many other less important provi- sions, it is evident that the whole tendency of the act was to make it easier for any interested person to prevent misappli- cation and the payment of illegal charges. Notice should be taken that in neither of these acts was mention made of any power to disallow improper ex- penditures, except as an appeal was brought before the court of quarter sessions. The only other important power touching the system of audit was the power to imprison until a true account was submitted ; but as no mention is made of any legal right to demand the submission of extrinsic evi- dence, it was practically impossible to detect any fraud, ex- cept grossly improper returns. It was not until sixty- six years later that a general law proposing to remedy these defects ' Section 6. ^ Ibid., 3. ^ Ibid., i. ^ Ibid., i. ' S. 4. Rex V. Jxistices of Somersetshire, 7 B. & C, 681 N. Also Rex v. Guyer and Manly, 4 N. & M., 158. 219] CENTRAL AUDIT 219 enacted that two or more justices should be empowered " to €xamine into the matter of every such ^acct., . . . and to disallow and strike out of every such acct. all such charges and payments as they shall deem to be unfounded, and to reduce such as they shall deem to be exorbitant." ' For re- fusal to abide by the decisions, the previously established penalties — commitment to jail and warrants of distress and sale — were continued, but appeal could be made to the court of quarter sessions as well by the churchwardens, over- seers and other officers affected,'^ as by those entitled to do so under the two foregoing acts. It must be borne in mind that these laws did not apply uniformly to all England. Numerous local acts very fre- quently established other systems of audit, which were so varied that no general scheme can be presented, and which were unaltered by these general acts. One similarity is manifest however, for in the vast majority of cases the audit- ing — such as it was — was conducted by the local authorities themselves or by some person or persons selected by them. That the previously-mentioned systems were wrong in theory need hardly be stated. Very possibly they were the best that could have been adopted without radical changes in the methods of administration, yet the fact of their failure remains, and the reasons are obvious. Every plan involved an audit either by the very persons, or by subordinates chosen by those whose accounts were to be examined. The positions and habits of the justices, the differences of opinion that often arose, the long, intricate and confused accounts, the hurried inspection at quarter sessions, furnish sufficient explanation for the incomprehensible conditions that were found to exist. It must not be thought that no efficient audit could be found in any locality prior to 1834, for there were isolated instances — exceedingly few in number — where ' 50 Geo. Ill, c. 49, s. I. ' Ibid., 2, 3. 220 ENGLISH LOCAL GOVERNMENT [220 the expenditure of every shilling was closely scrutinized, the result of which was to keep the poor-rate at a very low fig- ure.' But viewing the country as a unit, the report of an assistant commissioner may be considered as a very repre- sentative picture. " To talk of auditing and examining par- ish accounts is in nine cases out of ten a perfect mockery. It is true that in some parishes they are said to be examined half yearly, and in others quarterly ; but the fact is that in the great majority of parishes a meeting of parishioners is convened at the end of the year to examine the overseer's accounts previous to being passed by the magistrates. This is the only examination they undergo. A whole year's ac- count, consisting of hundreds of items, and, in general, ob- scurely arranged, is professed to be investigated in the course of a few hours to the satisfaction of a most intelligent and scrutinizing audience, the majority of whom are in all prob- ability friends and partisans of the overseers ! After this solemn and public audit by the parish, they are submitted to the magistrates, are sworn to by the overseers, and the signature of magisterial approbation is affixed as a matter of course, without examination, perhaps without even a cursory glance. . . . The present system (if system it can be called) ofifers an almost irresistible temptation to dishonesty, by rendering the chances of detection extremely difficult if not impossible." ' Is it surprising that from one-seventh to one- fourth of the whole expenditure was either illegal or fraudu- lent in many cases? 3 Reform of the Poor Law Amendment Act. From the fore- going portrayal of the existing conditions, the present inves- ' C)C 1st Rep. of P. L. C, pp. 1 7 1-2. ' Rep. of an assistant commissioner appointed by the P. L. Com. of 1832-4. S. P., 1834, Vol. 28, p. 666, App. A. ' Vide Reports of Asst. Com. to P. L. Com., published in S. P., 1834, App. A. to F., Vols. 28 to 39. Two examples may be found in Vol. 28, pp. 426, 912. 22 1 J CENTRAL AUDIT 221 tigator is as easily convinced of the need of reform as were the Poor Law Commissioners. Among the many problems demanding imperative solution at that hour, that of an efficient method of audit was somewhat lost sight of; but even if it had received more attention, it is very unlikely that a more centralized system would have been adopted. It was with extreme difficulty that a central supervisory au- thority was introduced into poor law administration, and this was only permitted after nearly every other scheme the brain of man could devise had been tried and proven a failure. The apparent hopelessness of the case, the appalling condi- tion of the laboring classes, the deterioration of industry, only such factors were of sufficient force to convince the members of Parliament that a system of central control was expedient, necessary, imperative. The appointment of local authorities by a central board was something the average Englishman would hardly have tolerated, and the popularity of the justice of the peace would have prevented any serious inroads being made into his sphere of administration. These facts, coupled with the natural conservatism of all Teu- tonic races, prevented an immediate change from the ill- constructed system then in force to the efficient administra- tion evolved within the next forty years. Although progress has since been rather rapid, a thorough comprehension of the spirit of the times causes the step taken in 1834 to appear gigantic and not insignificant, as one might conclude when viewing the question in the light of present opinions, theories and ideas. The Poor Law Amendment Act of 1834 gave the Com- missioners power to direct the overseers or guardians of a parish or union " to appoint such paid officers with such qualifications as the said Commissioners shall think neces- sary . . .for the examining and auditing, allowing or dis- allowing of accounts in such parish or union." The commis- 222 ENGLISH LOCAL GOVERNMENT [222 sioners were further given the power to define the duties of such officers, delimit their sphere of action, determine mode of appointment, regulate amount of salaries, and dismiss from office.' Every person having the collection, receipt or distri- bution of moneys assessed for the relief of the poor, or any documents, goods or chattels relating thereto, was required once in every quarter to submit to the authorized auditor a full account of all funds and goods committed to his charge.^ As to what were illegal expenses, the Act declared " that all payments, charges and allowances made by any overseer or guardian and charged upon the rates for the relief of the poor, contrary to the provisions of this Act, or at variance with any rule, order or regulation of the said Commissioners made under the authority of this Act shall be and the same are hereby declared to be illegal, any law, custom or usage to the contrary notwithstanding."3 The Act in no way re- pealed the pre-existing yearly audit by the justices of the peace, and any illegal charge or allowance might be dis- allowed by them. Even the disallowance of an auditor could be rescinded by justices in petty session.* Local acts were left undisturbed except when they conflicted with the present Act, with the result that two systems were in vogue in some parishes, but the decision of the auditor acting under the direction of the Poor Law Commissioners took precedence in case of conflict.' As to remedies, nothing was ' 4 & S Wm. IV, c. 76, s. 46. « Ibid., 47. ' Ibid., 89. A perusal of expenditures shows that the practice attacked in the last phrase had grown to large proportions, and remnants are found even in recent years. Charges for the extirpation of sparrows, moles and other vermin, for marrying paupers, for champagne dinners and entertainments for local authorities, are not infrequent. The only reason offered to justify such expenses was that they always had been borne by the parish or union, and therefore ought to con- tinue to be. Cf. H. C. Stephens, Parochial Self- Government in Rural Districts, pp. 249-284; also 1st Rep. of P. L. C. * Regina v. Earl of Dartmouth and others, 5 A. & E., New Series, 876. ' Vide Regina v. Governors of St. Andrew's, etc., 6 Q. B., 78. 223 J CENTRAL AUDIT 223 said, and the former provisions remained in force. Appeals against the allowance or disallowance of any officer could, as before, be made to the court of quarter sessions.' In the case of balances shown to be due, it was the duty of the auditor to begin proceedings to enforce payment after hav- ing reported the same to the Poor Law Commissioners and after having received directions from them.^ Such was the system as established by law. How did it actually operate? Immediately after organization the Poor Law Commissioners issued an order directing the guardians at their first meeting, or within one month of that time, to appoint a competent person as auditor. Four dates were named within thirty days of which all accounts should be submitted for audit. The board of guardians was also per- mitted to determine the amount of salary with the consent of the Commissioners. As to tenure, it was stated that an auditor, once duly appointed, should remain in office until removed by the Commissioners or by the board of guardians with the consent of the Commissioners.' It will be noticed that this is a slight departure from the plan which might have been expected to have arisen from the provisions of the law. It would have been perfectly proper and natural had the Commissioners not granted the initiative in the fix- ing of salaries or the dismissal of auditors. This distinction is more than a theoretical one, for the local authority would be much more apt to secure its desires if it proposed schemes for approval, than if it was allowed no liberty in this direc- tion. In the matter of salaries much freedom was in reality allowed, but the fact that the central board had the power to fix them kept the local authorities from rendering the \yhole system void by placing the remuneration so low that an efficient person could seldom be secured. As to the ' Reg. V. Geo. Watts, 7 A. & E., 461. ' Vide 2d Rep. of P. L. C, 1836, p. 62. ' 1st Rep. of P. L. C, 1835, p. 86. 224 ENGLISH LOCAL GOVERNMENT [224 power of removal, the guardians seldom if ever tried to ex- ercise it. That the system should have a fair trial and that the best results possible should be attained, the Poor Law Commis- sioners issued numerous instructions from time to time speci- fying the exact forms of all kinds of statistics, accounts and papers required to be kept or issued. The exact number and kinds of books, the precise headings and the specific methods of keeping were prescribed. Directions were given the auditors to see that the proper forms were followed, that all important papers were submitted, that every expenditure was legal, and that all sums received or that should have been received were accounted for. Circulars interpreting the law, declaring what charges were illegal, specifying methods of conducting audits, in fact giving directions upon all subjects likely to cause disputes or upon which the law was vague, were issued.' Everything possible was done by the Poor Law Commissioners to secure an efficient system, and for defects no blame can be attached to the central authority. That a great advance was made has never been questioned, but vital defects existed, and the system was far, far from per- fect either in theory or practice. The method of local ap- pointment failed to secure persons who were not influenced by local and personal interests. It was expected that, although the auditors were chosen by the guardians, the fact of their being removable by the Poor Law Commissioners alone would destroy all feeling of local responsibility and would make them independent, impartial enforcers of the law. But such ex- pectations were not realized. The auditor did not forget by whom he was appointed, and if he seemed to be doing so, a reminder was forthcoming. The feeling of responsibility to ' The orders were so numerous that specific references would be impracticable. Consult Reports of P. L. C. The first ones issued may be found in ist Rep., pp. l\-] et seq. 22S] CENTRAL AUDIT 225 the authority electing was so prevalent and so firmly innt- bedded in the political mind that even the lack of any method of enforcing it by law was insufficient to counteract it. Illegal charges were allowed contrary to express orders.' Guardians avowed they were not subject to the decision of the auditor except from choice, and one case is mentioned where an auditor resigned because of the local animosity a disallowance of illegal items had excited, for he was thus " placed in the disagreeable position of being obligqd to act in a manner which he knew to be displeasing to those who, by electing him, had conferred a favor upon him." '■ The other defect was one arising from the small size of the district over which the auditor was in practice compelled to preside. It is true that some power to obviate this difficulty was conferred, whereby the Poor Law Commissioners were authorized to combine unions for the appointment of audi- tors,3 and in some cases this was done, but the great diffi- culty of arranging for an election by a number of boards of guardians, and of giving each union its proper relative im- portance, prevented a widespread application of this power.* The result was that a very small compensation was allowed the auditors, averaging slightly less than ;^22 for the year 1842.S Although a fair reward for the labor expended, it necessitated the selection of persons who had other occupa- ' Rep. of Select Committee, S. P., 1837, Vol. 18, Q. 2796-2804. 'loA.&E., 134, 1839; Rep. of P. L. C. to Marquis of Normanby, 1840, p. 82, One reason urged for the quashing of an indictment against overseers who failed to submit accounts to the auditor was that he was their servant, and hence subject to their action. »4 & 5 Wm. IV., c. 76, s. 46. • Vide Rep. of P. L. C. to Marquis of Normanby, 1840, p. 83. Also S. P., 1846, Vol. 19, p. 13. In 1842 there were 454 auditors distributed among 585 unions, which shows how infrequently an auditor was elected by more than one union. See also S. P. (272), 1844, Vol. 40. » Rep. of P. L. C, S. P., 1846, Vol. 19, p. 13. 220 ENGLISH LOCAL GOVERNMENT [226 tions to which they devoted nearly all their time and atten- tion. The truth was soon realized that the many difficulties confronting, the wide experience necessary to disentangle the long, intricate and confused accounts, the complete knowledge of the statutes, of the practices and transactions of the guardians, overseers and other officers required a per- son of peculiar fitness and ability, and one who devoted much time and energy to the performance of the task. Such persons were not and could not be obtained at a salary of $100 per year, and the result was the choice of inefficient auditors. But the question may be asked, why did not the Commissioners, since they had the power, increase the salary to a sum that would induce competent persons to accept the position? To have multiplied the amount paid by each union from ten to twenty times — which was requisite — would have brought down such a storm of condemnation upon the heads of the Commissioners that their existence would have been summarily cut short. It was extremely difficult, as it was, to convince the majority of the voters that a central authority ought to be maintained. Thus, practi- cally, there was a very serious limit to the power of the Commissioners. One might be led to infer from what has been said that no zealous auditors existed, but such was not the case. There were isolated instances where a remarkably efficient person had been elected,' but the following recommendation made to the House of Commons reflects the condition of the vast majority of parishes: "It is essential that he [the auditor] should be removed from any local influence, and above any temptation to abuse his trust. Your Committee are of the opinion, therefore, that it would be desirable that ' One example is cited in the Rep. of a Select Com. upon the P. \,. A. A., S. P., 1837, Vol. 17, Part I., Q. S80-893. He received a salary of 12 guineas for audit- ing the accounts of 11 parishes. 227] CENTRAL AUDIT 227 the auditor should not be confined to one union, but act for a large district, and that ... it would be better that he should be appointed by the Commissioners than by the Board of Guardians."' To remedy the foregoing defects, has been the purpose of every act dealing with the audit system since 1834. In gen- eral the practical results have been improving, and as the discussion of each successive act would bring out few new principles or effects, it is deemed sufficient to note the de- velopment as included under four divisions, and finally show the effects of the system as it exists to-day. Tenure and Method of Appointment. — No change has been made in the method of removal, either in theory or prac- tice, and the position is retained as long as efficient service is rendered, or until the auditor resigns. Only in extremely rare cases has the central authority exercised this power of dismissal." The method of appointment upon the contrary has passed through many stages of development. When the first change was made in 1844, it was considered to be too radical and too centralizing to transfer the appointment of auditors to the Poor Law Commissioners, but to make their powers of some practical utility and to secure some independence, the chairman and vice-chairman, or in case these did not exist, two elected overseers of each board of guardians were empowered to appoint an auditor.3 This step was of much practical benefit, although the policy of the Commissioners to retain in their positions every auditor who had proved himself competent, and the exist- ence of whose district did not seriously retard the general ■establishment of proper districts throughout the whole country, prevented as large districts being formed as should ' Rep. of P. L. C. to Marquis of Normanby, 1840, p. 81. , 2 Rep. of Select Com., S. P., 1862, Vol. 10, Q. 3495-3498. ' 7 & 8 v., c. 101, 3. 32. 228 ENGLISH LOCAL GOVERNMENT [228 have been.' But there were only two courses open. Either the preceding plan should be adhered to or entirely new divisions should be made, and new elections held for auditors everywhere. It was wisely decided that this latter method would probably result in the choice of entirely new men, which would be a greater loss than small districts. As it was, there were in 1846, 50 districts containing upon an average 12.38 unions — a great increase over the number previous to this act.'' The efifect upon salaries and the re- sult acruing therefrom will be discussed in another place. The new system of selection did not, however, produce the desired transformation in the relations between the auditors and the local authorities. It cannot be denied that some bonds were severed, that some independence was gained, and that there was a slight tendency to break down the principle of local responsibility ; nevertheless, there was still that feeling of the accountability' of an elected officer to his electors which had been so injurious to the former system. The auditors who were so successful as to be appointed were frequently those who had the most local influence, and re- venge was sometimes vented upon the persons opposing.' Their ideas of what constituted an illegal charge were apt to be the same as the guardians, and the requirement of the law to disallow all expenditures not expressly sanctioned by a statute was often utterly disregarded. This was not due wholly to the method of appointment, but partially to the lack of technical knowledge, which fault experience would tend to remedy. Upon the whole, this provision of the Act of 1844 was a decided gain, but what benefits did accrue were due largely to the integrity, experience and good judg- ment of the chairmen and vice-chairmen. Such was the method of appointment until 1868, when ' mh Rep. of p. L. C, 1845, p. 20. " I2th Rep. of P. L. C, p. 1 19, App. 'Rep. of Select Com., S. P., 1862, Vol. 10, Q. 1 506-1 508. 229] CENTRAL AUDIT 229 another step was taken towards the goal of complete inde- pendence, by authorizing the Poor Law Board to appoint persons to fill all vacancies as fast as they occurred.' But the climax was reached eleven years later when the question was completely settled as to whether the auditor was an agent of the local or of the central government. The 42 & 43 Vict., c. 6 empowered the Local Government Board to appoint, with the sanction of the treasury, as many auditors as thought necessary and likewise fix their salaries," and such is the present status of the method of appointment.^ Arrangement of Districts and Salaries. — These two sub- jects, apparently widely separated, are, in this discussion, inseparably bound together, as has been shown, for only by the increase of the size of the district has it been practically possible to increase salaries, except within very narrow limits. There were, just previous to 1844, as has been pointed out, nearly 450 district auditors, receiving upon an average about $100 per year. Subsequently, owing indirectly to a change in the system of election,'* the number was decreased to fifty and the salary increased to $1,300, without materially altering the contribution of each union.' The results of this change were highly beneficial. The salary was sufficient to induce abler men to accept the position. Their districts were usually not so large and important as to demand all their time and attention,* but their duties had increased ' 31 & 32 v., C. 122, S. 24. ' S. 4. 'This plan was recommended by a Parliamentary Commission as early as 1862. S. P., 1862, Vol. 10. ■ Likewise in S. P., 1864, Vol. 9, pp. 17-18. * 7 & 8 v., c. loi, s. 32. >i2th Rep. of P. L. C, S. P., 1846, Vol. 19, p. 119, App. The number of onions had increased slightly — 34. In 1859, the number of auditors was 54, but 5 of these were appointed for Metropolitan districts under local acts, which pre- rented their union with other parishes in audit districts. Rep. of P. L. B., S. P., i860, Vol. 28, p. 24. •Salaries varied from £%-i to ;f523. Rep. of Select Com., S. P., 1862, Vol. 10, Q. 2180. 230 ENGLISH LOCAL GOVERNMENT [230 SO greatly that other occupations were not all-absorbing and their increased experience enabled them to detect errors, disentangle intricate accounts, and ferret out the illegal charges often hidden within. However, the exacting requirements were not yet completely met. While it is true that more competent men might, and probably would, have been secured had they been appointed by a central author- ity, the fact still remains that the salaries were inadequate to induce men of requisite abihty and determination to accept the position.' The changes in the method of payment are interesting to note, as the growth of centralizing tendencies is thereby shown. Until 1847, the expenses of salaries had been de- frayed by the localities directly, but at that date the method of yearly appropriations by Parliament was begun.' A slight change was made in 1868, when the Treasury was given the power of determining the amount to be set aside for this purpose from moneys voted by Parliament.^ These remarks apply only to poor law officers, and as it had been the custom to extend the sphere of the district auditor from time to time and to leave to the local authorities the determi- nation of the sums they should contribute, manifestly unjust discriminations had sprung up. For instance, many urban sanitary authorities paid nothing for the services rendered.* When the final re- organization came, in 1879, all payments from local rates were abolished", and sums set aside by the Local Government Board with sanction of the Treasury were substituted. Stamp duties were levied upon all authorities whose accounts were subject to audit, varying according to the amount of expenditure, the purpose being to thus furn- •Rep. of Select Com., S. P., 1862, Vol. 10, Q. 1170, 8891-8903, 8907-8916, 8936-8933. » 10 & 1 1 v., c. 107, s. 18. ' 31 & 32 v., c. 122, s. 24. « Rep. Of P. L. B., S. P., 1880, Vol. 26, p. 49. 23 1 ] CENTRAL AUDIT 23 I ish a sufficient amount to pay the salaries and other attend- ing expenses.' Such, the system remains to-day; salaries have been greatly increased, yet the burden upon the local- ity is little more, if any, than it was in the decade subsequent to i8j4, when a very imperfect system existed. Powers of Auditors. — The history of legislation dealing with the powers of auditors is a description of a constant in- crease of authority. The first important change subsequent to 1834 was mainly an indirect one. Although their posi- tion was strengthened by increasing the powers of investiga- tion, of securing evidence and of surcharging for loss in case of negligence, the repeal of the power of one or two justices to examine, allow and disallow accounts after having been passed upon by the district auditor increased his importance very materially.'' His decision thus became final, unless appealed to the Court of Quarter Sessions or to the Court of the Queen's Bench. The duty of enforcing the payment of balances was also imposed upon him,3 but the proceedings were expensive, and frequently the justices would permit ob- jections irrelevant to the merits of the case or mere tech- nicalities to warp their decisions.'* To remedy these defects, clauses were inserted in the Act of 1848 which simplified very materially the proceedings needed to be taken against persons liable to be surcharged and the amount of proof needed to recover sums certified to be due.5 The effects are obvious. A decrease in the prob- ability of escaping payment obliged the local authority either to desist from making the improper expenditure or be prepared to sustain it personally, for the district auditor was '42 & 43 v., t. 6, s. 2, 4, Schedule; Rep. of L. G. B., S. P., 1880, Vol. 26, pp. 47-8. ' 7 & 8 v., c. loi. » Ibid., s. 32. « Rep. of P. L. C, S. P., 1847, Vol. 28, p. 15 ; Ibid., 1848, Vol. 24, p. 8, ' 7 & 8 v., c. loi, s. 5, 7, 8, 9. 232 ENGLISH LOCAL GOVERNMENT [232 very, very unlikely to allow an item previously disallowed, and either of the two courses meant a gain to the rate-payers. Since the time of the establishment of the Poor Law Com- missioners, the Local Government Board has come to have an extremely large control over the auditors. Within certain very wide limits the central authority has power to fix the time and number of audits, the rules and regulations to be followed as to form and method, the number and kinds of reports to be made; but as to individual application, no step has been taken towards interference as to the allowance, disallowance or surcharge of any account, or any other application of the law. There is a partial exception made by a law enacted in 1887,' which provided that the expenses of a local authority should not be disallowed if they had previously been sanctioned by the Local Govern- ment Board. The reason for thus permitting appeal before action was taken by the auditors was that much irritation had been caused by the strictness with which they had ad- hered to the law in cases where their decisions were per- fectly legal but when justice demanded contrary conclusions.' It is much more convenient and saves time to get the expen- diture sanctioned before submission to the auditor than after, and many avail themselves of this privilege.^ Since 1834, when the field was limited to the accounts of the poor law authorities, there has been an immense increase in the sphere of activity. The list of authorities whose ac- counts are now subject to examination and review com- prises : the poor law guardians and officers, including rural district authorities;* managers of school districts ' 50 & 55 v., c. 72. 'Hansard, op. cit.. Vol. 321, p. 215. 'During the year 1888 the Board received 490 applications, of which 404 were approved. In 1895, the numbers were 1,790 and 1,586, respectively. Rep. of L. G. B.,S. P., 1889, Vol. 35, pp. 100, 147; 2sth Rep. of L. G. B., 1895-6, p. 650, App. ♦ 38 & 39 v., c. 55, s. 245, 246, 247, 250; 39 & 40 v., c. 61, s. 37, 38; 56 & 57 v., c. 73, s. 58. 233] CENTRAL AUDIT 233 under Poor Law Amendment Act, 1844;' managers of met- ropolitan asylum districts;' urban district authorities other than town councils; 3 school boards ;■* highway boards and other highway authorities;' parish councils and parish meetings;* county councils,' and a few town councils by special acts.' Besides these there are authorities provided ior by other laws » and other acts may be adopted,"" but the system includes every authority empowered to raise money by local rating, and the only important exception is that of municipal boroughs, which have retained their right to choose their own auditors. Appeals. — From the time of the passage of the 43d Elizabeth down to the forty-fourth year of this century, the court of quarter sessions had the power to determine appeals brought against the decisions of auditors. At this date this ancient practice was done away with, because of the tend- ency on the part of the justices to interfere with the work of the auditors, and almost nullify the reforms they were trying to accomplish. In its place, the right was given to any person aggrieved of applying to the Court of the Queen's Bench for a writ of certiorari to remove into such court such allowance, disallowance or surcharge." The privilege of applying to the Poor Law Commissioners for their decision upon the lawfulness of the reasons as set forth by the auditor for his decision, was also permitted." This plan of securing an expert opinion upon the legality of an act with a trifling cost, was taken advantage of in many instances, and although • 7 & 8 v., c. loi, s. 49; 42 v., c. 6. ' 30 & 31 v., K. 6, s. 33, 34; 42 V., c. 6. ^ 38 & 39 v., c. ss, s. 245-7, 250- • 33 & 34 v., c. 75, s. 60. * 41 & 42 v., c. 77, s. 9; 45 & 46 v., u. 27, ». 7, 8. •56 & 57 v., c. 73, s. 58. 'SI & 52 v., u 41, ». 71; S3 v., c. 5, S.27S. •2Sth Rep. of L. G. B., 1895-6, p. 129. ^IHd.,-p. 650, App. '"See for example, Public Libraries Commissioners, /Hd., p. 129. " 7 & 8 v., t. 101, s. 35. " IHd., 36. 234 ENGLISH LOCAL GOVERNMENT [-234 the decision of the Poor Law Commissioners was neither directly upon the issue at stake nor final, it was almost al- ways followed, for the decision of the Queen's Bench usually coincided.' This new attribute was the precursor of a genuinely judicial power conferred in 1848, by which the Poor Law Board was given concurrent jurisdiction with the Queen's Bench in all appeals against the decisions of auditors,^ but with this difference : it might decide according to the merits of the case, but the latter could not. The court was obliged to follow the law. The experiment made four years previous had been so successful, and the remedy by applying for writ of certiorari had necessitated such delay and expense, that it was thought to be a wise solution to confer appellate juris- diction upon a central administrative authority. Another purpose, not less important, was to secure the independence of the auditors. Much pressure had been brought to bear to induce them to consider the great hardship that would fall upon many persons who filled onerous offices without remuneration, and who would be compelled to sustain loss because of acts which they believed to be lawful as well as beneficial. Whereas paid officers might be expected to ascertain the law upon any subject, it was hardly just to ex- pect unsalaried officials who frequently served for terms of one year, to break at once from all past traditions and follow only legal forms. So manifestly unjust was this, that the auditors were frequently persuaded to sanction illegal pay- ments, or to overlook cases of neglect which caused loss to parish or union.3 The ultimate end of this course would be the assumption of the right to decide upon the merits of a case, which method all the past had shown to be incapable of beneficial i-esults. The most natural solution was the one ' 13th Rep. of P. L. C, S. P., 1847, Vol. 28, p. 15. ' II & 12 v., c. 91, s. 4. » Rep. of P. L. R., S. P., 1850, Vol. 27, p. 10. 235] CENTRAL AUDIT 235 adopted, by which the Poor Law Board could confirm the decision of the auditor and remit the disallowance or sur- charge, or confirm and not remit, or reverse — refuse to con- firm but remit — or make what other disposal of the case it deemed just and equitable. Thereby it was thought that the auditors would be induced to adhere strictly to the law,. and in case justice and equity required a different decision, the central authority might so order. The right of appeal to the Queen's Bench remained intact, but although frequently used prior to the introduction of the privilege of appeal to the Poor Law Board,' it has since fallen into disuse " because of the slight expense, early decision and the frequency with which the decisions of the auditors were confirmed and the disallowance and surcharges remitted under the latter system. The result of conferring such large powers as the Local Government Board is seen to possess was to place in its hands the power of determining what should be the future of the system. By very rarely acceding to the demands of the appellants, the system could not be said to have ad- vanced very greatly. If a reversal of a decision could be easily secured, the independence of the auditors would be destroyed and the system would become little more than a method of preventing expenditures contrary to the will of the local officers. If the rule of sustaining the auditor except when justice demanded a remission should be fol- lowed, and if care should be taken not to sanction the same illegal expenditure by persons who might very reasonably be expected to have known they were acting illegally, then the auditors would tend to become independent, impartial enforcers of the law and at the same time justice would be secured by inexpensive, quick and easily accessible means, ' Rep. of P. L. C, S. P., 1846, Vol. 19, p. 14. ■ '1st Rep. of Select Com., S. P., 1862, Vol. 10, Q. 2208; Rep. of L. G. B., S. P., 1893, Vol. 43, p. 91. 236 ENGLISH LOCAL GOVERNMENT [236 Practical Working of the System. Having followed the discussion thus far, the questions now to demand attention are concerning the position of the auditor. Has the system resulted in the establishment of an impartial enforcer of the law? Is he unsusceptible to local or personal influence? Is he efficient? The plan of placing him almost wholly under the control of the central authority which also had the power of altering districts as it saw fit, resulted first in the decrease of the number of auditors and the increase of the size of their districts. The direct effect was an increase in remuneration, which was a strong incentive to more competent men to accept the position. Very justly they could now be required to devote their whole time to their duties, which meant a great increase in the thoroughness of the audit, for it is an occupation in which constant experience gives as large re- turns as any other. A knowledge of the law, of accounts and practice' is primarily essential, but will avail compara- tively little unless constant experience is added, by which one learns of the peculiarities, the many attempts to evade the law, and the actual local conditions attending. Another factor tending toward the securing of better men was the change in the method of appointment. Influence does not play such an important part as formerly, and real compe- tency is more likely to receive -its just reward. The result is that at present the district auditors are a highly capable, efficient and independent class of men. Local or personal influences have little efifect, and although it is never possible to remove these wholly, they have been reduced to a mini- mum. The law is applied with a vigor that often arouses the animosity of local officers, and were it not for the privi- lege of appeal to the Local Government Board, some trans- formation would take place. Fifteen years ago it was not infrequent to find such charges as these in the disallowances 237] CENTRAL AUDIT 237 of the auditor : Destruction of five foxes, £1 ; destruction of moles contracted for at the rate of ;^8 per year for fourteen years; " Theatre, 4s." ; two silver keys, ;^i 2 ;' traveling ex- penses, when no traveling had been done ; local festivities, as perambulating parish boundaries ; " Coppers scrambled for ^» route, £\ 2s."; "Coppers given with a bun to each child attending the perambulation, 13s., lod."" Similar items are found much less frequently to-day, and chiefly be- cause the auditor has disallowed them, although such expen- ditures had been the custom for years. That they have not more rapidly and completely disappeared is due not to any fault of the auditor, but to a cause to be spoken of subse- quently. The number of appeals from the allowances of the auditors furnishes another evidence of their efficiency. From 1876 to 1893 inclusive, only 282 appeals were taken, an average of sixteen per year. Of this number, the Local Government Board reversed the decisions in but 6 per cent, of the cases. Having previously called attention to the power of the ' central authority to make of the system what it willed, the question naturally arises, How has it used this power? From the evidence at hand, the action of the Local Govern- ment Board seems to be influenced more by a desire to do no injury than by a desire to enforce the law unalterably. It is to be expected that in the first years of the insti- tution of this plan of appeal there would be numerous in- stances in which justice would demand that the decision of the auditor be upheld as far as the legal right was concerned, but remitted as to the infliction of the penalty. It is not very surprising to find then that 83.2 per cent, of the appeals decided by the Poor Law Board for the years 1852 and 1853 were confirmed and remitted; that only 4.8 per cent, were sustained pure and simple ; that 8.6 per cent, were reversed ; ' Rep. of p. L. B., S. p., 1 882, Vol. 30, pp. 54-6. ' Ibid., 1 883, Vol. 28, p. 49. 238 ENGLISH LOCAL GOVERNMENT [238 the remaining 3.4 per cent, being decided in various other ways. Comparing these figures with the four years periods, 1880—83 ''"d 1890—93, we find no appreciable change.' Confirmed and Remitted. Confirmed and Not Remitted. Reversed. Otherwise Decided. Per Cent. Per Cent. Per Cent. Per Cent 1852-53, 2 yrs 1880-83, 4 yrs iii9c-93> 4 yrs iSot;. 1 vr ••• 83.2 83.8 82.4 82.8 4.8 H 5.8 4.0 8.6 9-7 10.4 12.7 34 ■7 1.4 •4 These figures indicate that there has been no practical de- crease in the proportion of cases where the legality of the auditor's course was upheld, but where the power of render- ing what the Board thought to be an equitable jurisdiction was invoked. In close union with this statement, the fact is to be noted, that whereas in 1880-83 29.9 per cent, of the whole number of disallowances and surcharges were ap- pealed, in 1890-93 40.1 per cent, were appealed.^ Combin- ing the results, we find that in the former period 25.2 per cent, of the disallowances and surcharges were remitted by the Local Government Board, in the latter 33.4 per cent. Since 1 88 1 there has been a great reduction in the absolute number of surcharges and disallowances.s but the largest falling off has come since 1887, when the Local Authorities (Expenses) Act was passed, permitting appeal to be taken before the accounts were audited. If the Board 'For 1852-3, vide S. P. (225), 1854, Vol. 55, p. 8. For others, vide Rep. of L. G. B. for those years. ''In 1895 °'''y 20.1 per cent, were appealed. "The highest point was reached in 1881, when the number was 7,884, being 4,052 in 1895. The number of appeals reached a maximum of 2,832 in 1885, .being 829 in 1895. 239] CENTRAL AUDIT 239 approves the expenditure, it can not afterwards be dis- allowed by the district auditor.' This privilege has been very widely used,'' for it gives the local authorities an oppor- tunity of securing the opinion of the Board as to what is lawful, and relieves them of the trouble and expense of appealing from the decision of the auditor.. If we add the number of applications under this Act to the number of accounts disallowed by the auditors, the figures have not materially changed since 1885. That it is proper to do this to ascertain the true position of the Board relative to the district auditors is unquestioned, for not a report of the Board since 1888 fails to declare that the decrease in the number of disallowances and surcharges is almost wholly due to the Act of 1887. Nor is any material change made in the percentage of the appeals confirmed and remitted, for about 88 per cent of the appeals taken prior to audit are sanctioned, and undoubtedly there are some expenditures presented for approval that would not be disallowed by the auditors. The number is probably not large, however, for the auditors' attitude of strict enforcement is quite univer- sally known. Considering all the facts, the conclusion is reached that the central authority has been so lenient in its decisions of appeals that a carelessness has arisen among local authorities regarding expenditures, for they know that if the auditor disallows the account, they can appeal to the Local Government Board, represent that they were unaware of the illegality and that they had expended the sum in good faith. The disallowance will be remitted with the admonition perhaps that a repetition of the offence will be dealt with differently. The effect of such a system is such as to make it of little ' 50 & 51 v., c. 72. "The number of applications for approval averaged 1,088 from 1S91 to 1893, and had grown to 1,790 in 1895. 240 ENGLISH LOCAL GOVERNMENT [240 value to ascertain how previous cases have been dealt with, but rather to place & premium upon ignorance of the law. A practice may be continued until the auditor discovers its nature, and manifests his disapproval by a disallowance or surcharge. Then the penalty is likely to be suspended, and the same course pursued in other exactly similar in- stances. There is only one way in which we may harmonize the figures given above, and the theory that this conclusion is false. It is upon the supposition that there is an extremely long list of items which have been considered as sanctioned by law, a dense ignorance of the requirements of the statutes, and a gradual increasing ability upon the part of the auditors to find these new illegal charges. The improbability of the existence of such conditions needs no proof; especially when one remembers that from three-fifths to two-thirds of all dis- allowances and surcharges, and appeals therefrom, are in the accounts of the parish authorities. There is plenty of posi- tive evidence to prove the falsity of this supposition and the truth of the previous conclusion.' Such is the system as it actually exists to-day, but words of condemnation must not be used until we view a few other facts. The vast improvement in every department of ad- ministration where the system is introduced should be re- membered. As late as 1867 there were places that did not come within the reach of the district auditors, because local acts preserved the ancient regime. As a result, nearly the same conditions were found there as existed everywhere previous to 1834." Before the accounts of the highway boards and surveyors were subject to examination and audit, there is every reason to believe that illegal payments were ' Upon this general subject, see Arminjon, U Administration Locale de L' Angle' ttrre, pp. 265, 266. ' Vide Index to the Rep. of Select Com., S. P., 1862, Vol. 10. 241 ] CENTRAL AUDIT 241 included.' A few towns that obtained special acts author- izing an audit by auditors appointed by the Local Govern- ment Board, add their testimonj' to the value of the system." In every question of government, the fact of the English- man's inbred opposition to centralization must not be for- gotten. It is ,by no means unreasonable to say that had the central authority held the local authorities to the very letter of the law, public opinion would have demanded the removal of this central control, and far inferior results would have been secured than in reality have been. To learn how narrow has been the escape of the principle of central ad- ministrative control, one needs only to trace the history of the Poor Law Board. Considering every factor of the prob- lem, the conclusion is reached that the system has worked admirably, that an efficient audit has been secured, that jus- tice is rendered even though the central authority has gone too far in its endeavors not to infringe upon local customs. The fault is one capable of being remedied, and the system recommends itself to students of administrative law as not only grounded upon correct theory but as proven to work satisfactorily by experience. ' Rep. of L. G. B., S. P., 1878, Vol. 37, p. 43- ' Ibid., 1893, Vol. 43, p. 137. CHAPTER VIII SPECIAL LEGISLATION To the American student of local government, the sub- ject of special legislation is both interesting and important. The exact position of the city in our political science, its relation to the state legislature, has not yet been thoroughly worked out.' We are just beginning to grasp the idea that the municipality is an agent of the state and also an organi- zation for the satisfaction of local needs. Our past failure to comprehend the truth has led us to adopt a legislative system of control, and although instances may be found of a tendency to substitute central administrative for legislative control,' the regulation of local authorities, whether dealing with state or local needs, has been almost entirely through judicial action or legislative statutes. As to questions of legislative policy or administrative expediency, we have either left the local authorities to do as they pleased or undertaken to direct and control them by general or special ' A most notable beginning has been made by Professor Goodnow in the most excellent works : Municipal Home Rule, and Municipal Problems ; and Dr. Wilcox in Municipal Government in Michigan and Ohio. ■" Cf. J. R. Commons, State Supervision for Cities, Annals of Amer. Acad., Vol. v.; also W. C. Webster, Recent Centralizing Tendencies in Educational Admin- istration. The first attempt to establish a municipal board similar to the English Local Government Board was made by a New York commission, of which Hon. Frederick W. HoUs was chairman. The bill was never passed, but was intro- duced in the Assembly in February, i8g6, as Assembly Bill, No. 6oi. The pur- poses of the bill are explained in an excellent article read by Mr. HoUs before the Third National Conference for Good City Government, Baltimore, 1896, and published in the Proceedings. It is entitled State Boards of Municipal Control. 242 [242 243] SPECIAL LEGISLATION 243 acts. Beginning with the granting of charters or the con- ferring of powers by special acts, we soon fell into the habit of regulating everything by special act. The motives were at first free from all partisan bias, but they soon degenerated, until the interests of locality and Commonwealth became subservient to party politics in their worst form. Then we tried the plan of forbidding special legislation and of regu- lating local affairs only through general acts, or rather, we inserted in our state constitutions provisions forbidding the passing of special acts. When the question came before the courts as to what constituted a special act, they were obliged, owing to the minute specifications of the general laws and the varying needs of localities, to give a very nar- row definition. The classification of localities was per- mitted, and the practical result has been either to free them from all control — except the judicial — or subject them to the same minute legislative control as had existed previously. No doubt some good results have been attained, but they are not at all satisfactory and far from expectations.' The conclusion that is now coming to be pretty generally accepted is that different localities must have, to a certain extent, different powers and different responsibilities. Were there no other reasons, the existence of large cities and country villages would justify a difference in functions. The present system of central control is also disapproved. Hence, while seeking a proper solution of the problem, it is extremely important that the English system be studied for the purpose of ascertaining whether the evils of special legislation have been avoided. It has been shown that central administrative control has been a most potent factor in producing efficient administration, but to us Americans, its effect upon special legislation is very important. In the brief resume of central administrative control, as de- ' Cf. Goodnow, Municipal Home Rule, ch. v; Wilcox, op. cit., ch. iv, v. 244 ENGLISH LOCAL GOVERNMENT [244 scribed in the preceding chapters, the many and important instances where central departments possess powers that in our system are exercised only by the legislature were prob- ably observed. It is unnecessary to restate the many pro- visions ; the most important will readily come to mind. It should not be forgotten that not only are those provisions included which authorize the departments to pass rules and regulations which local authorities must obey, but also those regarding provisional orders, the conferring of powers upon rural district councils, the borrowing of money and the var- ious other functions of similar nature. The fundamental plan is this : Local authorities are given a certain sphere of local autonomy within which Parliament will not and the ad- ministrative departments can not interfere. Then there is another sphere, larger and of much more importance than the former, within which the central administrative authorities are practically supreme, and which briefly may be said to in- clude those matters which are not of mere local interest and over which there must be some central control. The third sphere is that within which Parliament is the acting au- thority, neither delegating its power nor voluntarily limiting its activity. This logical system, which has produced ex- cellent results whenever ^consistently followed, has not always been in operation. The steps by which it was developed have been many, and the unsuccessful experiments may help us to avoid similar mistakes. The first period in the history of all functions that are now under the control of local authorities is that in which private initiative held sway. Poor relief, education, public health and safety were all matters of private concern. One by one they passed into the hands of local authorities, but before any general system of administration was created, there was a long period when powers relating to these and other sub- jects were conferred upon various bodies. In some in- 245] SPECIAL LEGISLATION 345 stances, the associations formed were purely private cor- porations; in others, the purpose was primarily a public purpose. The characteristic feature of this period was the use of local (or special) acts.' General acts relating to these matters were wanting. This period was soon suc- ceeded by one in which the necessity of general legislation became manifest, and although ' local acts still remained prominent, the relative importance of general acts constantly increased. Then came the system of central control which took from Parliament and from the local authorities certain powers and duties and conferred them upon central depart- ments. General and special acts still continued to be passed, and thus through three avenues could the functions of local bodies be increased. All of these periods did not come at the same moment in all departments of local government, and some subjects once administered by the localities have passed entirely into the hands of the central government, but it is true that the same stages of development have taken place in all and in precisely the same order. The method of dealing with local acts has also passed through various stages. At first the evidence for and against the passage of a bill was heard at the bar of the House, bujt the number of the bills increased so rapidly that committees had to be formed to consider the bill. All members who wished to attend constituted the committee, but this was so unsatisfactory that the membership was gradually decreased, until in 1855 the number was limited to five.'' The results of all these methods were unsatisfactory. The evils with which we are so conversant were present in ' I shall use the term " special " as applied to acts or legislation not in its legal meaning as defined by the courts, but as commonly understood; that is, as includ- ing legislation that applies to only one or a very few localities. ' Upon the general subject of special legislation consult De Franqueville, Le Gouvernement et Le Parliament Britanniques, iii, chapters 38, 39, 40; Clif- ford, Private Bill Legislation ; also May, Parliamentary Practice, bk. iii. 246 ENGLISH LOCAL GOVERNMENT [246 all their magnitude. A somewhat more successful plan was begun in the fifth decade, when acts were prepared known as " clauses acts." It had been noticed that many of the local acts possessed quite similar provisions regarding certain sub- jects. These were collected and formed into a clauses act. Thus when any authority wished to incorporate these provis- ions in a local bill, it simply stated this fact in the bill without repeating the provisions. In 1845, three clauses acts were passed relating to joint stock companies, the taking of land, and the building of railways. Two years later eight more were enacted, relating to markets and fairs, improvement commissioners, harbors, docks and piers, town improvement, cemeteries, gasworks, waterworks, and police. The effects of this plan were beneficial and removed some of the evils, which were constantly increasing. Many local bills incorporated these acts, thus producing more uniformity and precision. Many of the legal and technical mistakes which had crept into the earlier and inadequately considered private bills were avoided, owing to the care with which the clauses acts were prepared. The size of the bills was greatly decreased. A definite understanding of their purposes and efifects was made possible. The cost of promoting or oppos- ing was largely reduced, and litigation diminished."^ Still much was left unaccomplished. The clauses acts did not cover the whole field of local government. They were inap- plicable to many conditions, because too specific. If the promoter of the bill did not choose to adopt them, little force was brought to bear to induce him. Parliament did not amend them and thus keep pace with local needs and desires, but the great local differences made it almost ' Up to 1856, 300 acts had incorporated some of the clauses acts. De Franque- ille, op. cit., iii, p. 126. " Special Gas Acts, which in 1846 sometimes comprised yer 200 clauses, were, after the legislation of 1 847, contained within 40." Clifford, /. cit., i, p. 221 ; also ii, p. 530, 247] SPECIAL LEGISLATION 247 impossible to amend them by a general act. Thus, like all its predecessors, the plan of adopting clauses acts failed to solve the problem completely. What, we may pause to ask, were the faults of the systems of enacting local bills, which English statesmen were obliged to abandon for a system of central administrative control? I say system of enacting local bills, for the English in their opposition to the evils attending special legislation have never lost their mental equilibrium so far as to try to prevent the granting of special powers to a particular locality, pro- vided the interests of the country are not menaced, and pro- vided the locality really desires and needs the powers, and is capable of exercising them. They have always recognized that different local authorities need and must have different powers in order to serve their constituents most efficiently. American constitution makers can hardly say as much, and their futile attempts to limit the powers of our state legisla- tures without providing other means of meeting the inevi- table prove the weakness of their position. Probably the most disastrous evils are those arising from the improper consideration bills received either from the committees or from Parliament itself. To expect that Par- liament could give them the examination and discussion they required is sheer folly. But the formation of committees was not much of an advance, for when they were composed of the opponents and promoters of a bill, the decision de- pended upon numerical strength rather than upon the inher- ent virtue of the bill. Impartial persons, the very persons needed, did not often attend. The decrease in the number of members constituting the committee and the selection of unbiased persons removed some of the evils, but others still remained. Such committees, although actuated by the best of motives, did not have the experience or knowledge re- quired. The evidence presented came either from those op- 248 ENGLISH LOCAL GOVERNMENT [248 posed or those favoring the bill, and very frequently their motives were not free from taint. As a result, the act was not desired by the locality and often unsuited to the actual conditions. "The bulk of the population, in short, seldom knew anything about the local act until they were assessed to pay high rates for defective work and for legal expenses." " Until a very late period local acts conferring great powers on individuals, interfering with property, sanctioning taxa- tion, and involving in almost every shape and shade the most important public interests, were passed without inquiry being made beyond the precincts of St. Stephen's."' Local inquiries were tried later, but the results were not satis- factory.^ Another objectionable feature was the continual enactment of provisions that were recognized to be objectionable when brought to light, but which through oversight and lack of in- vestigation had received the approval of the committee. General laws were altered without any sufficient justification, and the bill was often contradictory and discordant within itself. The litigation arising was enormous, and in some in- stances the conditions became so bad that a general act was passed repealing the alterations of the general law made by local acts.3 The cost of getting bills through Parliament was enormous. From the very moment they were introduced up to the hour signed, fees of all sorts had to be paid. The expense of printing, although decreased in many instances by the incorporation of clauses acts, was no minor factor. The lawyers who managed the bill, who appeared in its behalf • Edinburgh Rev., 1850, Vol. 91, p. 224. ' Rep. from the Select Com. on Local Acts, S. P., 1850, Vol. 13. ' Cf. Rep. from the Select Com. on Private Bills, S. P., 1846, Vol. 12, where the conditions are more fully described and remedies proposed. See also Hansard, op. cit., Vol. 27, pp. 279 et seq.; Clifford, ii, p, 524; and preamble to 54 Geo. Ill, c. 170. 249] SPECIAL LEGISLATION 249 before the committees, who guarded it from attack in all its stages, who prepared the evidence, demanded large fees. The expenses of witnesses, of meetings, and of numerous other matters contributed a large quota.' The Parliamentary- cost of a water bill for Liverpool was $100,000,'' and al- though this is rather an exceptional case, there are many- others nearly as costly. To understand the importance and extent of the evils just described, it is necessary to get some idea of the num- ber of local acts, but in order to do this, one must know more exactly how the acts passed by Parliament are classi- fied. Since 1868, there have been three main classes: pub- lic general, local and personal acts. The public general acts are those printed in the statutes, and include those re- ferring to the country at large and special acts relating to the Metropolis. The local acts are those that apply to some small portion of the country or locality. A subdivision of this class called " public local acts," which will be fully dealt with in subsequent pages, embraces the acts confirming pro- visional orders and a few others that are given that name by statute. Personal acts are those dealing with the afifairs of private individuals, such as estates, divorce and naturaliza- tion. Comparing the .number of acts passed in these three classes, one finds that from 18 14 to 1895 over 14,000 local acts were passed, or nearly twice as many as the number of public general acts passed in the same period.^ In the first half of the century over 400 improvement acts were passed,-* and nearly every large city was governed by so many different acts that it was difficult to tell what the law ' De Franqueville, op. cit., iii, pp. 209-219; Clifford, ii, chap. 19; i, pp. 256-260. ''■Edinburgh Rev., 1850, -Vol. 91, p. 225. ' Cf. Clifford, i, pp. 266 et seg., also pp. 491-2. The figures for earlier years can- not be depended upon as accurate. * Iiid.,ii,p. 291. 250 ENGLISH LOCAL GOVERNMENT [250 actually was.' Thus the evils described were not limited to a few bills or a few localities, but extended to every locality and to every authority. To remedy such a condi- tion of affairs, certain powers have been conferred upon various central administrative authorities. Even as early as 1846, the Board of Trade exercised a general control over bills that sought to incorporate trading companies or related to harbors, docks, piers, canals, navigation, gas and water- works. But as private not public corporations were alone involved, this experiment is somewhat outside our sphere. It is to be noted, however, that the plan of having an admin- istrative authority examine the bills has since been widely extended, and no doubt the beneficial results of this early experiment was one of the chief causes of the extension.^ It has been frequently stated in the preceding chapters that whenever the power to issue provisional orders has been conferred. Parliament has nearly always considered the decision of the department as final and approved the order without modification. It is now necessary that the position of Parliament be considered somewhat more carefully. The number of provisional orders granted by eight differ- ent departments for all of Great Britain prior to August, 1882, was 3,554, of which 3,142, or 88.7 per cent., had been confirmed without opposition.s Of the remainder the Return does not give sufficient data to tell how many were confirmed with or without amendment, but from other information at hand it seems probable that not over 5 per cent, were con- firmed with amendment or not confirmed at all. If the orders issued by the Local Government Board for the four ' Cf. Hansard, op. cit.. Vol. 98, p. 736. ■■' Cf. Clifford, ii, p. 899. Also a Rep. from the Select Com. on Private Bills, S. P., 1847, Vol. 12, p. 17. •'' S. P. (99) 1883, Vol. 55. The acts by which the powers were given, and how they are to be exercised, are also given in this Return. 251] SPECIAL LEGISLATION 25 1 years, 1 877-1 880, be consulted, it is found that of the average number of 177 orders granted annually, 88.1 per cent, were confirmed without opposition, 2.4 per cent, were opposed but confirmed without amendment, 6.8 per cent, were confirmed with amendment, and only 2.7 per cent, were not confirmed, one-half of these being withdrawn or dropped before coming to a vote.' By 1895, the number confirmed without opposition had risen to over 90 per cent.'' If the orders are examined more closely, it will be found that the amendments that are made relate to minor matters, and are not opposed by the Board. In the few cases where orders were withdrawn or suspended, it was usually done to let the others against which there was no opposition be con- firmed, or because there was not time for consideration by Parliament.3 Most of them were probably confirmed the following year. What has been said regarding the Local Government Board applies with equal force to other departments.'' The conclusion is reached, therefore, that unless we can find some potential influence exerted by Par- liament over the central authorities, they are actually almost wholly free from any control. Provisional orders must always be confirmed by Parlia- ment before taking effect, but in considering its attitude, one must never lose sight of the confidence placed in the central authorities by Parliament. The former have always been composed of men of ability. Party politics have not injured the efficiency of the subordinates, and all orders have been thoroughly considered, legally drawn, and wisely framed. The interest of the country as well as that of the locality has been kept constantly in view, and as far as human know- ledge is able to select the wisest course, such has been fol- ' S. P. (219) 1881, Vol. 14. '' 2Sth Rep. of L. G. B., 1895-6, pp. 591-597, App. ' Ibid., pp. 28-32, 96, 113-117- ■• Rep. by the Board of Trade, S. P., 1894, Vol. 75; Clifford, ii, pp. 676-709. 2^2 ENGLISH LOCAL GOVERNMENT [252 lowed. Thus, although the possibility of refusal by Parlia- ment to confirm an order may exercise some slight influence, it is almost reduced to nothing. The suggestions of the de- partments are followed almost invariably, and I doubt if they would pursue different courses were all restraint to be removed. Should other principles than those followed at present get control of the departments, the reserve power might be so used as to exert a most potent influence, but it exerts little control at present. The advantages of the system of granting powers, whether by general order, by giving consent to perform a specific act, for which a request has been made, or by issuing a pro- visional order, are numerous and important. The system makes it possible to avoid two extremes, which are almost equally disastrous — general legislation with large grants of power, leaving to the locality the duty and responsibility of determining what powers shall be exercised, and special legislation with limited grants of power, where the legislative body decides questions of administrative policy and deter- mines local needs, for which it is unfit and was not intended. This system makes it possible to leave to the legislative body its proper duty of passing acts of general application, acts that are of interest to the people as a whole, that any local authority may adopt, and that involve no other question than that of local desire, and to transfer to a non-political body the determination of all questions of fact and expediency. The practical results have been commensurate with the soundness of the theory. Questions relating to the granting of powers are now considered by an impartial, unprejudiced authority. Every detail is examined with care, and the effect of the proposed bill upon local conditions and general laws is worked out with precision. The locality to be affected is visited in all instances of any importance, an opportunity of being heard is accorded to all who desire it. 253] SPECIAL LEGISLATION 253 and the utmost publicity is given to every proceeding. Even if personal interest is an inadequate guardian of local welfare, the central authority is almost sure to detect injurious pro- visions. Since the bill or order is drawn up by agents of this body, there is no chance for ambiguous phrases to be inserted or contradictory clauses to produce disputes and litigation. The cost of granting powers to satisfy local needs is also much reduced. The formalities to be observed in Parliament have been greatly simplified, and the expense decreased accordingly. The inquiry is now held in the locality instead of at London, and this also contributes to the same end. The large fees of lawyers and advocates have been rendered unnecessary, and the expenses incurred by central authorities do not begin to compare with the costs of local acts in former days. After the provisional order is in- troduced, if this is the method adopted, enactment follows immediately, unless there is opposition. The actual work of investigation has been done previously, and the bill is hur- ried through the required forms. If there is opposition, it is referred to a select committee, where the points at issue are alone considered. The questions are, therefore, so few that they can be fully discussed without great delay. Haste is never made the chief object, and thorough consideration is always secured when necessary. The disadvantages, or, rather, the dangers of the system, are few. There is a tendency to become mechanical, and to cling to set opinions, whereas it is impossible to apply to all localities the same principles and ideas. The inqui- ries maybe conducted to substantiate the doctrines of the central department rather than to get at the truth. There is a possibility of the system becoming centralized and bureaucratic. I say possibility, because the actual operation of the system seems to declare distinctly that it is nothing more than a possible tendency, a condition to be guarded 254 ENGLISH LOCAL GOVERNMENT [254 against. Thus far the departments have been very success- ful in preventing such charges being truthfully asserted, although they have not been entirely free from the accu- sation. The question naturally arises as to what effect the system has had upon the number of local acts passed by Parlia- ment. Consulting the statistics it is found : Average number of 1821-30 1841-50 1861-70 1871-80 1881-90 1891-95 Public general acts . 99 "3 172 ? 125 252 10 87 223 32 72 222 5° 6S 217 73 Public local acts' Since there are very few public acts that are not provis- ional orders — three or four each year, perhaps — the lower figures maybe considered for all practical purposes as being the number of acts confirming provisional orders.'' The table shows that since 1861-70, there has been a considera- ble decrease in the number of local acts, and if we subtract the number of confirmation acts, this decrease becomes much more noticeable. This is a most encouraging sign, for in all justice it may be assumed that if the methods of conferring powers had not been changed since the beginning of this century, there would have been a large increase in the number of local acts. The rapid growth and gigantic size of cities, the introduction of tramways, the construction of railways, canals, docks, piers, highways, and the almost in- numerable undertakings for the improvement of sanitary con- ^The reader must be warned against considering these figures as contradicting those given in the preceding pages. A number of provisional orders are usually combined in one confirmation act. The number of orders issued by the L. G. B. in 1895 '"'^^ ''°' '^'^t ^^ number of acts confirming these was 24. ^ Cf. Clifford, i, pp. 491-2. 255] SPECIAL LEGISLATION 255 ditions would have raised the number far above its present height. See, for example, the activity of the Local Govern- ment Board during 1895, the 19CO orders issued confirming loans and expenditures by local authorities, the 90 rural dis- trict councils upon which urban powers were conferred, the 100 provisional orders confirmed, and the hundreds of other orders of a similar nature, and remember that the Local Gov- ernment Board is only one, although the most important one,' of the eight or nine authorities having kindred powers, and it seems impossible to deny the truth. of the statement. This large number of local acts could have been avoided by the enactment of general laws, transferring large discretionary powers upon local authorities, but the result would have been to change the nature of the evils and not their disas- trous effects. The figures given in the above table include all local bills whether referring to local authorities or private persons, whether dealing with public functions or private affairs, and since this study has reference only to local authorities and public functions, the table should be further dissected. However, this is at present impossible, for no classification has yet been made which divides the acts into classes along these lines. In the matter of tramways, for example, one is unable, without reading the acts, to tell from any classifica- tion yet made how many acts relate to local authorities and how many to private corporations. But it is definitely known that the number of acts promoted by sanitary author- ities has fallen off over two-thirds since 1880, there being only eight in 1895 ;'' and all other evidence points to a decrease, more or less, in the number promoted by other authorities. It is positively certain that there has been no increase either in absolute numbers or percentages. ^The number of acts confirming orders issued by the L. G. B. is about one-third of the whole number of confirmation acts. ^25th Rep. of L. G. B., 1895-6, p. 6oi, App. 256 ENGLISH LOCAL GOVERNMENT [256 The number of acts confirming provisional orders must not be taken as the correct expression of the activity of the central authorities in preventing private bills being passed, even though it is remembered that the number of cases actually dealt with is about five per act, which proportion is increasing. The instances in which powers are conferred by orders (without confirmation), loans sanctioned, boundaries defined and financial relations adjusted must all be kept in mind. If the special acts passed by our state legislatures dealing with these subjects were subtracted from the whole body of special acts only one important class would be left, which would embrace those dealing with the organization of our cities.' This class of acts is not found in England, be- cause all the important acts dealing with local affairs leave the subject to be worked out either by the local authorities themselves or under the control of a central department, or by the central departments themselves. It is not a subject which Parliament determines except in a very general way. Thus, if we should adopt the English system, special acts would be decreased to a minimum. Besides reducing the number of private bills and removing the evils which had attended them by substituting a respon- sible administrative for an irresponsible legislative body, other beneficial results have been attained, which apply to the private bills that are still enacted. One method, briefly noted in a preceding chapter, was that of requiring all private bills relating to subjects within the jurisdiction of the Local Government Board to be referred to it for consideration and report. This plan, which was introduced in 1872-3, has secured most positive good in preventing unreasonable and im- proper provisions regarding financial matters from being en- acted, but these were not the only results. Whenever defects of any nature were discovered, they were called to the atten- ' Cf. Wilcox, op. cit., chapters iv, v, particularly pp. 78 et seq. 257] SPECIAL LEGISLATION 257 tion of the select committee that had the bill in charge. At first a large number of undesirable provisions were found, but owing to the attitude of the Board and of the select com- mittee, these have largely disappeared. The Board has held that no powers should be granted in excess of general laws, unless strong reasons existed and the desired results could not be secured by by-laws, its purpose being to prevent the nullification of central control and the introduction of local irresponsibility. The form as well as the substance of the bill is also examined and the results are most satisfactory. The report of the Board is usually accepted and followed by the select committee, whose decisions are invariably adopted by Parliament' Thus the beneficial results obtained, and they are not few, are due directly or indirectly to the attitude of the Board. Since 1873, the method has been extended, until now about sixty bills are examined annually, dealing with private corporations as well as local authorities. The same system has been applied to other departments with similar results." No doubt it has some effect in keeping the number of bills from inci'easing.s for unless much more favor- able terms can be secured by local bills than under the gen- eral laws, the trouble and expense of securing the former are not going to be undertaken. According to an act passed in 1872, borough councils must secure the approval of the Local Government Board or the Secretary of State in order to defray the expenses of promoting or opposing local bills in Parliament from the borough rate, and if a provisional order will obtain the proper result such expenses cannot be defrayed from rates under any condition.'* In 1888 the Act was extended to apply to county councils, with slight alterations.^ Thus in 1 Rep. of L. G. B., S. P., 1886, Vol. 31, pp. 87-8. 2 Clifford, ii, p. 899. » Rep. of L. G. B., S. P., 1887, Vol. 36, p. 107. ♦35 & 36 v., c. 91. =51 & 52 v., c. 41, s. 15. 258 ENGLISH LOCAL GOVERNMENT [258 another way may the central control the local authorities. These acts also show the opposition to local bills. In 1895, only 17 boroughs were given the privilege of promoting, while 44 boroughs and counties were allowed to oppose bills.' The hope has been sometimes expressed that some system might be prepared by which special legislation — local acts — might be done away with entirely, except as such bills orig- inate in some department of the central govern rnent,' and if this condition is an ideal one, it would seem to indicate that England is yet quite far from the goal. It is true that much improvement might still be made in the methods of dealing with the affairs of private persons or corporations, for of the ISO purely local bills, at least three- fourths belong to this class. This leaves the number of local bills referring to local authorities at a very low figure. Whether the number should be still further reduced depends partially upon our opinion as to whether all special legislation is an evil. Start- ing with the premise, now usually accepted as true, that there must be some sort of central control over local author- ities, either legislative or administrative control must be adopted, or a combination of the two. A purely legislative control has been proven unsuccessful, and thus the only alternatives are administrative control pure and simple, or legislative and administrative combined. If one considers the cases likely to arise, it will be found that there will always be instances of great importance, instances involving more than simple questions of local desire and expediency, in- stances that affect vast interests either favorably or prejudic- ially, that are of an extraordinary nature, and that should, therefore, be considered by the legislature rather than the administration. The Manchester Ship Canal Act, passed ' 25th Rep. of L. G. B., 1895-6, pp. 33, 124. * Various plans have been proposed to secure this result. See CUiford, ii, pp. 903 et seg. 259] SPECIAL LEGISLATION 259 within the last few years, is an excellent example. Such be- ing the facts, it can hardly be denied that all special legisla- tion should not be transferred to administrative authorities. Unless it is proposed to change the principles at the founda- tion of the government, it is hardly possible to regulate all matters by general acts and administrative control. The legislative body may ask the administrative authorities to secure information, hold inquiries, and thoroughly investi- gate the subject, but when matters of extraordinary interest and influence, and of general policy are to be decided, the legislative body must give its own decisions. Testing the English situation in the light of these facts, it is found that there is still room for improvement. Parlia- ment leans more towards an extended legislative control than towards an improper delegation of power. Especially is this true of local bills sanctioning loans, but improvement is being made even here. They are becoming fewer in number and contain fewer improper provisions as to the time and method of repayment Jhan formerly. I have no doubt but that the coming years will see a further reduction in the number of local bills, although, as has been said, they will never wholly disappear. Compared with our system and its results, the English system is far, far in advance, and the student who desires a practical solution of the problems involved in special legislation will do well to make a thor- ough study of central administrative control, and consider if possibly we may not learn valuable lessons therefrom.' ' The great difference between English and American conditions is strikingly illustrated by comparing the number of special acts passed in one American Com- monwealth — New York — with that of the local acts passed by the English Parlia- ment for England, Wales, Ireland and Scotland. The average annual number of special acts referring to cities passed by the New York Legislature from l88l to 1890 inclusive was 128. The average annual number of local and personal acts minus the provisional orders passed by Parliament for the same period, was only 172, and a large percentage of these referred to private corporations. Cf. Rep, of N. Y. Senate Com., 1891, Vol. 5, pp. 458, 506-511. CHAPTER IX THE THEORY OF CENTRAL ADMINISTRATIVE CONTROL In the preceding chapters it has been shown that in every important field of local government the idea of local self- government pure and simple has been abandoned ; that central administrative authorities have been created, upon which powers formerly possessed by the local authorities and Parliament have been conferred ; and that increased efficiency has everywhere attended this transformation. The endeavor will now be made to discover the theory upon which the English system of central administrative control is founded, to ascertain whether it is a permanent institution or only a temporary phenomenon, and to determine how far decentralization is consistent with efficiency. Properly to consider the system, it is necessary to group the provisions of the law establishing it into six classes. These are those providing for ( i ) the grant of govern- ment aid upon condition that certain requirements have been fulfilled; (2) the issue of rules, orders and regula- tions dealing with affairs locally administered ; (3) the ap- proval of acts of local authorities in order to render them valid ; (4) the decision of appeals taken from the decisions of local authorities or of disputes in which one party at least is a local authority; (s) the administration of local affairs when local authorities improperly perform or neglect to perform their duties, and the imposition of penalties for mal-administration ; (6) the holding of inquiries, the prep- aration of reports and the diffusion of knowledge. In 260 [260 26lj GENERAL PRINCIPLES 261 practice no one of these classes is entirely distinct from the others, but being quite dififerent in theory it is necessary to consider each separately. Their object is administrative efficiency, but all are not equally successful in securing it, and the extent to which the present system may be decen- tralized varies greatly with different classes. The first class of provisions, " conditional grants," may be supported upon either one of two grounds, and not infre- quently both have been put forward at the same time. One may accept as a fundamental principle the proposition that aid should be given local authorities, that it is the duty of the central government to help them bear the burdens of administration ; or one may start from the proposition that central control is desirable apart from government aid. Be- ginning with either one of these two entirely dififerent ideas, the same conclusion is reached. Admitting the necessity of state aid, the question at once arises, how is the state to be assured that the money is honestly and wisely expended? That the state has a right to impose conditions according to which aid shall be given, no one will deny, for the principle that he who contributes to the support of the government should have a voice in its afifairs is beyond dispute, and had been settled prior to the fourth decade of this century. The maxim, " Taxation without representation is tyranny," was some decades old, but was held to apply to the state, as well as to the individual. Hence, when it was decided that local authorities needed state aid, it was also admitted as a logical consequence that the state should have power to control the methods and purposes of its expenditure. Those who at- tacked the system attacked the nature of the conditions rather than the theoretical right to impose them. At the present moment no one would attempt to justify upon any grounds a plan providing for state aid without state control. Bene- ficial results might follow, but neither theory nor practice would justify the experiment. 262 ENGLISH LOCAL GOVERNMENT [262 Starting with the assumption that central control is advis- able, it is necessary only to add another premise, viz., that the opposition to central control is too strong to permit direct con- trol, to conclude that conditional grants are desirable. Espe- cially is this true if there is no important objection to grant- ing state aid, provided its wise and honest expenditure is assured. When presenting the reasons for adopting a sys- tem of conditional grants, the order of the premises would need to be reversed, for those opposed to central control would perceive the true purpose of the plan, and thus oppose it. But the real end might be, nevertheless, central control rather than state aid. The union of state aid and state control is advisable only as long as public opinion will not permit central control upon other grounds, for as a method of securing greater efficiency, it is radically defective. Those localities in which efficient administration is most needed are the very ones least affected. There must be a certain minimum amount of earnest endeavor, and where indifference and opposition most abound, least is accomplished, although there is the greatest need. It is also very difficult to frame a system which will recognize the proper standard for the distribution of the subvention. And it is still more difficult to determine what is the proper standard. The needs of the locality may not and usually do not vary directly with administrative efficiency, yet it hardly seems just to disregard the former ; and it is found to be extremely difficult properly to combine the two. A system of conditional grants can hardly be con- sidered as worthy of a permanent existence. It is only a makeshift. However, a moderately successful system may be invented. Much depends upon the nature of the condi- tions imposed and the sources from which the funds are derived that are distributed among the localities. Whether the present system could be greatly decentralized 263] GENERAL PRINCIPLES 263 without injuring its efficiency is very doubtful. The local authority best fitted to supervise conditional grants is the county council, but to make the county the area for the col- lection of revenues and the county council the disbursing authority would remove scarcely any of the present defects, but would add others. The differences between counties in needs and wealth are too great to establish a more equitable distribution of aid than the present. To permit the local authorities to determine the conditions according to which aid should be given or to decide whether those imposed had been complied with, would do violence to the theory upon w.hich the system is founded and would be entirely disastrous in practice. No one would think of proposing such decen- tralization. The only changes which appear wise are those permitting more freedom to the local authorities in matters of detail as they prove their ability properly to exercise dis- cretionary power. Passing to the consideration of the second class, it is evident that there is a vital change in the theory. In the pre- ceding method of control, a way was open to those opposed to central supervision to escape it entirely by refusing to accept government aid. But in the second class, no such opportunity of evasion exists. Parliament has defined the competence of the central authorities, and there is no escape from the control provided. The powers considered in this class include the issue of orders governing the methods of administration, the appointment of local offi- cers, their salaries, tenure and duties, and the issue of provisional orders, which, as has been seen, apply to so many other matters. The justification of the exercise of these powers by a central authority rests upon two princi- ples, viz.: Whatever is of general interest should be admin- istered or at least supervised by the general government or its agents ; and when local authorities prove their incapa- 264 ENGLISH LOCAL GOVERNMENT [264 bility to administer efficiently a matter entrusted to them, it should be given to more capable authorities. Within the past century, there has been a most marked change in what is considered of general interest, i. e., of interest to the state. In earlier years it was positively denied that England as a political unit had any intereist in the methods of administer- ing poor relief beyond the enactment of very general laws. Not until the eighth decade was it admitted beyond question that the state of the public health was of national, not local importance. The history of the factory laws also shows the great reluctance to acknowledge that the state had an interest in what had been considered of purely local or private interest. Not only has there been a far-reaching change in the com- monly accepted notion of the proper sphere of the state, but that body of afTairs that are in reality of interest to the state has largely developed. Until populous communities sprang up, the state did not have much if any interest in the solu- tion of sanitary problems. Private initiative was fully able to cope with them. Until the large factory appeared, laws regulating the hours of labor, the sanitation of buildings, the labor of women and children, were unnecessary. These facts partially account for the expansion of the conception of the sphere of the state, but not entirely. There has been a genuine change in the conception of the purposes and ends of the state, which would have produced a change in gov- ernmental activity, no matter whether the true sphere of the state had increased or remained unchanged. These transformations would not necessarily have led to central control, although it could not have been justified had they not occurred, and although they might have suggested its adoption. It was necessary that one other condition exist, viz., the inefficiency of local self-government, in order to justify central supervision, for local self-government is 26s] GENERAL PRINCIPLES 26$ much preferable, ceteris paribus. That the control should be administrative rather than legislative or judicial, is theoreti- cally correct, and experience has proved its wisdom. The latter methods were tried and shown to be inefficient. Such a result was to be expected from the fact that the purpose of legislative control is to establish general limits of activity; that of judicial control to protect private rights, while the administration is the only part of the government whose purpose is administrative efficiency. If we test each pro- vision of the second class from this point of view, that is, whether productive of efficiency or inefficiency, little is found to condemn. If one compares the beneficial results with the defects and shortcomings, the evidence is greatly in favor of the former. To what extent decentralization is possible and advisable is not so easily answered. Admitting that the object of all administrative systems should be to leave to private enter- prise and local activity all matters that will be efficiently ad- ministered by so doing, it is evident that there can be no hard and fast lines as to the proper spheres of the local and central governments. They will vary from age to age and from subject to subject. The political capacity of the men who are selected as local officers varies greatly, and conse- quently the subjects that should be entrusted to them can not remain unchanged under all circumstances. The nature of the department of poor relief makes it absolutely neces- sary that the principles according to which relief is given should be the same throughout the entire country. It is not so important that every borough, no matter what its size, should own and operate a system of waterworks. Hence some discretion may be allowed the boroughs ; whereas in the former case, decentralization could not be viewed with favor. Considering the provisions of the second class in the light 266 ENGLISH LOCAL GOVERNMENT [266 of these principles, it becomes evident that no general rule will apply to all. The issuing of orders regulating the grant- ing of poor relief could certainly not be entrusted to local authorities, although it might be preferable to allow a little more freedom as to details. Local boundaries ought not to be fixed by the authorities governing the areas whose limits arc to be determined. Particularly in the case of local areas for election purposes, should there be a superior authority to decide where the boundaries should be placed. Over the smaller areas which are wholly situated within a single county the county council might be given authority, but the impartiality and the ability of the superior authority should be beyond question. As to the conferring of import- ant powers, whether by provisional order or by simple order, it is extremely doubtful whether any local authority should be given the power to authorize another local body to assume new powers. England is not so large as to make central control inapplicable and annoying, and the transfer of these powers to certain local authorities would not give the other local authorities any more self-government, but would tend to complicate administration and render it im- practicable for Parliament to place such trust and confidence in the local authorities as is now placed in the central de- partments. If, for example, the county councils were given these powers. Parliament would have to examine carefully all provisional orders or affix its approval as a mere matter of form. Either course would lead to the very conditions to remedy which the present system was introduced. In like manner, one might consider every provision within the second class, but enough has been said to show the princi- ples to be followed and the errors to be avoided. The third class, which consists of those provisions requir- ing that the approval of a central authority be secured, is justified upon much the same grounds as the second class. 267] GENERAL PRINCIPLES 267 The argument is much the same, except that the plan of requiring approval is applied to those cases where the ne- cessity of action is not so urgent, but where the chief end sought is to assure wise, lawful and efificient action if the authority acts at all. It is a plan to provide restraint rather than to incite to action, and is inapplicable where local authorities are averse to acting. Thus it is negative rather than positive in its efifects. In practice, it has been quite effective, especially as to financial matters, but whenever the desire to act upon the part of the locality has been slight, the control exerted has been slight. Decentralization seems inadvisable in most instances. By-laws ought to be ap- proved by a central authority in order to secure uniformity and the application of successful methods of enforcement, and to prevent the enactment of contradictory and defective provisions. To decentralize the control exercised over local financial affairs would be the highest folly. The defects of local self-government pure and simple are too manifest and have been seen too often to warrant local independence. In fact, it hardly seems desirable to modify the present sys- tem in any but the most unimportant instances, for when supervision is needed a central authority is the only author- ity suited to exercise it, and where none is needed, the sub- mission of proposals for approval is not an objectionable formality. It might seem useless in the latter case, but the system is one which adapts itself to varying needs, and in the absence of important objections, the benefit of a control which may be exercised if needed, is a strong argument for its existence. The fourth class represents the central authorities in a dif- ferent light, and clearly illustrates the statement that Eng- land, and France and Germany, although starting from diametrically opposite points of view, have gradually ap- proached the same ultimate position. The quasi-judicial 268 ENGLISH LOCAL GOVERNMENT [268 powers of the central departments in England resemble some- what the jurisdiction of the administrative courts upon the Continent. Two subdivisions of these powers may be distin- guished ; one embracing those provisions whose purpose is to give the central authorities power to decide questions of legal interpretation, the other, including those requiring the exercise of discretionary power. In neither is the power given to decide whether a statute or ordinance is legal or illegal. This is a subject within the jurisdiction of the courts alone, and although a central department may to a certain extent permit non-enforcement, as in the case of cen- tral audit, no administrative authority has the power to de- clare a statute illegal. The reasons the central departments have been given power to decide any questions of legal in- terpretation, as in the case of disputes over costs of poor relief, settlement, removal, chargeability, and local bounda- ries, are the need of a short, inexpensive and easily accessi- ble process of securing a decision, and the impracticability of leaving such questions to be decided by local authorities. Especially in the administration of poor relief, has local self- government been shown to work badly, and the beneficial results obtained from the exercise of quasi-judicial powers by administrative authorities seem to justify the theoretical inconsistency. As to any possible decentralization, it seems hardly wise to substitute local for central authorities, for the questions must be submitted to a superior authority, and such being the case, it seems better to have an authority that is certainly free from all prejudice than to try to secure the slight benefits that would accrue from decentralization. Whether the powers might not be transferred to the judiciary is open to discussion. If this were done, it would be neces- sary to modify the procedure in certain instances or estab- lish special courts, and the advantages that would follow are theoretical rather than practical. 269] GENERAL PRINCIPLES 269 The justification of central control in the second subdivi- sion of this class seems to be found chiefly in experience. Where disputes arise over questions of administrative expe- diency, in which two or more local authorities are concerned, it is admitted by all that an administrative authority is the pfoper authority to render a decision, and experience as well as theory selects a central rather than a local authority. In the case of auditing accounts, it has been pretty definitely settled that discretionary power should be lodged somewhere, and that a central department is the only competent author- ity. In other instances, as for example the apportionment of private improvement expenses, it might be possible to pro- vide for appeal to a higher local authority rather than a central authority, but I cannot see that there is much to be gained by this change. Thus far nothing has been said concerning the actual ad- ministration of local affairs, or the appointment or removal of local officers, by central authorities, but as the preceding chapters disclosed a most powerful conttol in this direction, its theoretical justification is of great importance. The fundamental principle is that whatever is of interest to the country at large should be made so subject to central con- trol as to permit the central government — the guardian of the nation's interests — to step in and enforce its will in case the local authorities disregard it. The broad conception of what is of public interest has been shown in the preceding chapters, but several practical questions at once arise. Who is to determine when the central government should inter- fere? What authority should remedy the default? Who is to decide what fields of administration are of general interest? To the last the answer is unquestionably that the legislative body must determine the bounds and limits of the general interest. It is also definitely settled that when the question of enforcement or non-enforcement is raised, a local author- 270 ENGLISH LOCAL GOVERNMENT [270 ity cannot be allowed to decide, for public interest would thereby be subordinated to local interest. Such a course might be possible if the decision of a local body could be shown to accord with public interest, but such is not apt to be the case. It may be in some instances, but there is cer- tainly no assurance that it will be. An impartial judge is needed. The courts are not the proper tribunals, except so far as questions of law are involved, but these are compara- tively unimportant. The duty of the courts is to protect pri- vate rights, and whether a law is being enforced is often not a question affecting private rights at all, but a question of ad- ministration, and as such should be decided by administra- tive authorities. Whether an intermediate stage between extreme decentralization and central control, a system where a higher local authority should decide whether a subordinate local authority was in default, might not be preferable is ex- tremely doubtful. The possession of this power by a locality would not increase the interest in local government, unless it were that kind of interest which would tend to prevent the enforcement of law, and the purpose of central control is to avoid this very evil. Thus it seems conclusive that central administrative authorities should possess the power of de- termining whether a local authority is in default. Experience has shown that the danger of uncalled-for interference has been avoided, as well as that of inactivity where interference was needed. The local authorities have been given ample opportunity to act before actual administration has been taken from their hands. Likewise, the central administrative authorities or their agents should remedy the default if the local authorities refuse. This conclusion is derived from the principle that the state is interested in the execution of the law, for the central government is the only agent of the whole country, and. the administrative departments are the only ones whose object is efficient administration. They 271] GENERAL PRINCIPLES 27 1 are not justified, however, in continuing to execute the law any longer than is positively necessary to remedy the de- fault. Otherwise, the principles of local self-government would be subverted. But it is not considered as a violation of local self-government for the central government to inter- fere when a locality refuses properly to administer the laws regarding poor relief, education, public health, and allied subjects. The sixth class of powers possessed by the central author- ities can hardly be considered as establishing central control except very indirectly. The holding of inquiries, the con- ducting of investigations, the publication of reports and the dissemination of information regarding methods of adminis- tration exert only an indirect influence, but their great utility cannot be questioned. The system needs no justifi- cation. It is universally admitted that such powers belong and can be exercised best by the central government. The expense of a permanent commission or department has often been magnified and sometimes urged as a reason for abol- ishing the powers, but there is little doubt that the money is well invested. The beneficial results are much larger than at first appear. The question of decentralization of these powers is of no importance. Such a movement is never advocated ; the objections to it are too manifest. The statement is often made that the older local sub- divisions are governed by authorities over which the central administrative control is not so great, that the parish, the county and the borough possess more local autonomy than the union, the county district — sanitary district — or the school district. And this supposed fact is not infrequently used to explain the excellent condition of municipal government in England. It is important to examine the former statement and see how much truth it contains and how much error it 272 ENGLISH LOCAL GOVERNMENT [272 conveys. Owing to the chaotic condition of local govern- ment, it is almost impossible to discuss the subject from the standpoint of local areas, but resort must be had to that of local authorities. To say that the parish is less subject to central control than the union or the school district is mis- leading. What is meant by "the parish?" Is it the local area usually called by that name, or is it supposed to refer only to the activities of the newly created parish council or parish meeting? If the former the statement is inaccurate and meaningless, for the parish is a part or the whole of a union, a school district and a county district as far as area is concerned, and as such is subject to the wide central con- trol outlined in the preceding chapters. In other words, the administration of poor relief, elementary, education, public health, and many other matters of local government, do not concern "the parish as a parish and are subject to central control. But if " the parish " refers to the parish council and the parish meeting, the statement is to a certain extent true. It is to be remembered, however, that as com- pared with the other local authorities, the distinctively parish authorities have a very limited sphere of activity. The matters dealt with are : lighting, baths and wash-houses, burial grounds, recreation grounds, and public libraries, all of which are regulated by adoptive acts ; appeals against valuation lists, county rates, et cetera; the provision of books, offices and fire engines ; the management of prop- erty; allotments and, in certain instances, drainage and water supply.' But even in these matters, the district coun- cil has often preempted the field, thus excluding the parish authorities. The latter, even in the case of subjects definitely within their jurisdiction, are not, however, free from all cen- tral control. The Local Government Board possesses quite important powers of supervision, especially in the case of ' 56 & 57 v., c. 73. 273] GENERAL PRINCIPLES 273 by-laws, audit of accounts, and all subjects involving the borrowing of money. The county was quite free from central control until 1888, but its competence was indeed very limited as far as local administration was concerned. When the county council was established in 1888, it was, however, subjected to central control, and although not to the same extent as the board of guardians, the district council or the school board, it is by no means independent. The reasons for the adoption of such a course are twofold. The county council does not deal with many matters that are of interest to the whole county, but principally with those of only local importance. Then, too, the county council was established after the train- ing of many years had increased the political capacity of the people, making central control less necessary in minor mat- ters. The same explanation applies with equal force to the Act of 1894 relative to parish authorities. The position of the borough is similar yet different, and owing to the erroneous ideas that seem to be so prevalent in this country regarding the true position of the English borough, it is necessary carefully to ascertain its exact status. The American student should notice first of all that at least two important functions belong to authorities entirely separate from the borough, viz., elementary education ■ and poor relief. The borough constabulary in boroughs of less than 10,000 inhabitants is under the management of the county, and in all others is subject to central administrative control. These facts make the competence of borough coun- cils much smaller than what we have been wont to consider the proper sphere of municipal authorities. If we examine ' Where attendance committees are the only local school authorities, an excep- tion must be made, for the borough council appoints the committee. But as these exist only where voluntary contributions are sufficient, their province is limited, and the exception is not important. 274 ENGLISH LOCAL GOVERNMENT [274 the Municipal Corporations Acts, the comparatively minor importance of the functions of the borough council is again shown. The subjects we are so accustomed to find dealt with in city charters, viz., street railways, waterworks, sewer- age, and sewage disposal works, street improvement, paving, cleaning, electric lighting, gasworks, parks, and the many others embraced under " public health," are conspicuous by their absence. Perhaps the comparative unimportance of the borough council is best reflected by the amount of in- debtedness of borough councils, which in 1894 was only 7.4 per cent, of the entire local indebtedness.' The local rates of borough councils were 8.5 d. and 6.5 d. in the £ for county and other boroughs respectively, whereas the entire local rate was 3 s. 8.3 d.'' But even in the sphere thus seen to be so narrowly limited, the municipal borough is not free from central control, although it is true that it is not subject to central control to the same degree as other local authori- ties. The chapters upon Local Finance and Special Legis- lation demonstrated that it is far from being entirely inde- pendent. But the important local unit is not the borough ; it is the urban county district. It is the borough council acting as sanitary authority, the urban district council, rather than the borough council as municipal authority, that is the promi- nent local authority. To be convinced, one needs only to compare their financial transactions. As sanitary authori- ties the councils have an indebtedness eight times as large as they have as municipal authorities, or an amount equal to sixty per cent, of the total local indebtedness. Comparing ' Supra p. 208. The Metropolis is not considered in this as well as the subsequent comparisons. It is also to be remembered that I am now speaking only of borough councils as such, as municipal authorities, not as other authorities, district councils for instance. ^ Supra p. 210. 275] GENERAL PRINCIPLES 375 local rates, it is found that the former levy a rate five times as large as the latter, or a rate nearly three-fourths as large as the total local rate.' But why, it may be asked, is it necessary to call so much attention to this fact? The urban district council is the borough council ! True, but the bor- ough council and the urban district council are the same only in personnel. When the council acts as urban sanitary authority, it has entirely different powers and is subject to a different control than when it acts as municipal authority. Its organization is fixed slightly by the Municipal Corpora- tions Act, but the Public Health Acts provide for many offi- cers, specify their duties, powers, qualifications, et cetera, and otherwise determine to no small extent what its organization shall be. The powers of the urban district council are stated in the Public Health Acts, and the control, as described in the previous chapters, is wide and far-reaching. These facts have often been overlooked, especially by the American stu- dent of English local government, but their importance can hardly be overvalued. There is but little similarity between the English borough, or urban county district, and the Ameri- can city, but as between the two, the American city resembles far more the urban county district than the borough. But the most important fact to be noticed is that whenever the authority, be it district council, board of guardians or school board, exercises powers which we have been accustomed to consider as properly belonging to the municipality, it is subject to central administrative control, more or less strict according to the nature of the functions. Hence to say that the borough is quite free from central control is misleading, if not false. As municipal authority, it is less subject than the other local authorities, but the importance of this fact has been greatly exaggerated. It is the urban county dis- trict that needs to be studied more than the borough. Our ' Supra, pp. 208, 210. 276 ENGLISH LOCAL GOVERNMENT [276 problems are those connected with the former rather than the latter. To summarize : it is found that the English system of cen- tral administrative control is theoretically sound, except in a few minor instances, that it has accomplished its purpose, administrative efficiency, and that it is now recognized as a permanent factor in English government. Local self-gov- ernment pure and simple has been proven ineflScient, and it has also been shown that it is possible to establish a system of central administrative control which does not destroy local autonomy, but which secures efficient administration, while not encroaching upon those ideas and principles for which Anglican institutions have so long been prized. Cen- tral control has been the goal towards which all decentralized systems have been moving^ and the chief difference between England and the United States is that the former has adopted administrative control, while we have favored legislative con- trol. The two countries are not far apart from the point of view of centralization, except that possibly central control in the United States is stronger and more intrusive into what are purely local affairs than in England. It is also certain that local government is much more efficient in England than in the United States, and it is not at all improbable that the systems of central control contribute much to explain this fact. Whether the English system could not be somewhat de- centralized without injuring its efficiency, is a difficult matter to decide. No rule or set of rules will apply to all provisions. Each case must be decided upon its own merits. It does seem probable, however, that some minor matters could be transferred to local authorities. The political capacity and executive ability of the peojjle have been in- creasing, and if local self-government as far as consistent 277] GENERAL PRINCIPLES 277 with efficiency is desirable, a fact not usually denied, it seems probable that the local authorities could be given more freedom. Future changes will probably be in this direction. Care should be taken, however, that decentralization be in- troduced slowly, and that no changes be made in this direc- tion until beneficial results are assured. The efficiency of the present system is too great to permit innovation or alter- ation upon theoretical grounds alone. It is also certain that complete decentralization will never be possible, for local officials will never reach that high stage of development where local interests will be subordinated to the welfare of the entire country, or where they will have the ability and experience even if they have the desire to secure the bene- ficial results that may be obtained under central control. Local interests are sure to conflict occasionally with general interests, and central administrative control has been proven to be the only adequate method of quickly and effectively protecting the latter. Some stimulus will always be needed. Some restraint must ever be exercised. Just at this point, the English system again shows its admirable qualities. How often has it been pointed out in the preceding chapters that the tendency of the system is for the control to make itself felt through its potential rather than through its active exer- cise. But absence of all control would result in the destruc- tion of the present excellent influence through fear of actual control, and render it impossible to exercise supervision in the cases which must constantly arise where it is needed. The danger of unnecessary central interference is so slight as to need no consideration. The objections to the present system are, therefore, theoretical rather than practical. Consequently, important modifications can hardly be sup- ported. Central administrative control is a permanent factor, and its most excellent results demand for it earnest consideration and unstinted praise. BI BIvIOGRAPH Y Note. — In the following bibliography, I have omitted the many standard works upon English history with which every one is familiar, for the reasons that they are widely known and that they contain very little information as to the relations of central and local government. I have also omitted many unimportant Parlia- mentary documents which have been consulted, and to which an occasional refer- ence has been made in the foot-notes. They can all be found by referring to the index of the Sessional Papers, which is published annually. All important docu- ments are mentioned below. I have undertaken to divide the works consulted into four classes, and although the dividing lines may seem to be arbitrarily drawn, such a classification may be of some use to any one wishing to study central administrative control. The first division embraces the books, periodicals and reports that are of prime value and importance. Parliamentary reports form the principal portion of this class, but a few secondary sources are included. Many books, which are mere reprints of the statutes, have been placed in the second division, unless the editor or compiler has added valuable notes. Should the statutes not be available, these would, of course, be of great value. The fourth division consists of those works which from their titles might suggest that they contained valuable information, but which are in reality of no value from the present point of view. Between these two extremes are the seco.nd and third divisions; the latter embracing the material containing very little relating to central administrative control in England; the former, the material containing more information, but not of suificient importance to merit first consideration. I do not claim this method of classification to be entirely scientific, but if it is of any value to other students, it will have served its purpose. It should not be forgotten that I have not undertaken, in the slightest degree, to pass upon the real value of the works thus classified, but simply to state, in a very general way, their relative importance from the standpoint of central administra- tive control. I Archbold, John F. The Poor Law. 1 2th Edition. London, 1873. Anninjon, Pierre. V Administration Locale de V Angleterre. Especially Chap. 13. Paris, 1895. Aschrott, P. F. The English Poor Law System, Past and Present. Translated by H. Preston-Thomas. London, 1888. Blunden, G. H. British Local Finance. Pol. Sc. Quar., Vol. 9, 1889. Boutmy, fimile. Le Gouvernement Local et la Tutelle de L' Atat en Angleterre. Annales de L' fecole Libre des Sciences Politiques. Vol. I, April, 1886. 279] 279 28o BIBLIOGRAPHY [280 Clifford, Frederick. A History of Private Bill Legislation. London, Vol. I, 1885; Vol. 11, 1887. Craik, Henry. The State in its Relation to Education. London, 1884. Fowle, Thomas W. The Poor Law. London, 1881. Glen, William C. The Law Relating to Public Health and Local Government, 2 vols, nth Edition. London, 1895. Hansard's Parliamentary Debates. IH Series only, beginning with the Accession of Wm. IV. London, annually. Lushington, S. G. See Macmorran, A. Macmorran, A., and Lushington, S. G. Poor Law Orders. London, 1890. Parliamentary Reports, Returns and other Papers. Extracts from the Information received by His Majesty's Commissioners as to the Administration and Operation of the Poor Laws. London, 1833, Jndicial Statistics. Pub. annually. Minutes of the Committee of the Privy Council upon Education. Pub. annu- ally since 1 840. Minutes of Committee of Privy Council on Education, arranged in Chrono- logical Order. S. P., 1855, Vol. 41; 1858, "Vol. 46; i860, Vol. 53. Report from His Majesty's Commissioners for inquiring into the Adminis- tration and Practical Operation of the Poor Laws. S. P., 1834, Vol. 27-39. Report from the Select Committee on Poor Relief. S. P., 1862, Vol lo; 1863, Vol. 7. Reports of the Poor Law Commissioners for England and Wales. Pub. an- nually from 1835 to 1848 inclusive. Reports of the Poor Law Board. Pub. annually from 1849 to 1 87 1 inclusive. Reports of the Local Government Board. Pub. annually from 1872 to the present. Report from the Select Committee on the Health of the Towns. S. P., 1840, Vol. II. Reports of the Commissioners for inquiringinlo the State of Large Towns and Populous Districts. S. P., 1844, Vol. 17; 1845, Vol. 18. Reports of the Royal Sanitary Commission. S. P., 1870, Vol. 32; 1871, Vol. 35. Reports of the General Board of Health. Pub. annually from 1849 to 1858 inclusive. Reports of the Secretary of State for the Home Department on the Execution of the Local Government Act, i8j8. Pub. annually from 1859 to 1871 in- clusive. Reports of the Registrar General. Issued annually from 1838 to the present. Report of the Commissioners appointed to inquire as to the best means of estab- lishing an ejicient Constabulary Force in the Counties of England and (Vales. S. P., 1839, Vol. 19. Report from the Select Committee on Police. S. P., 1852-3, Vol. 36. Reports of the Inspectors of the Constabulary. Pub. annually since 1857. 2 8 1 J BIBLIO GRAPH Y 2 8 1 Return showing the Instructions issued from time to time to the Inspectors by the Committee of Council. S. P., 1851, Vol. 43. Report of the Commissioners appointed to inquire into the State of Popular Education in England. S. P., 1 86 1, Vol. 21, Six Parts. Report of Royal Commission appointed to inquire info the working of the Elementary Education Acts. S. P., 1886, Vol. 25; 1887, Vol. 29, 30; 1888, Vol. 35-7. The Parish and the Union, etc. London, 1837. Plener, Ernst Edler von. The English Factory Legislation. Translated by F. L. Weinmann. London, 1873. Preston— Thomas H. See Aschrott, P. F. Simon, Sir John. English Sanitary Institutions. London, l8go. Statutes, English. Statutes, Chronological Table and Index of the. 13th Edition. London, 1896. Stratton, Frederic. Public Health Acts. London, 1894. II Adams, Francis. History of the Elementary School Contest in England. Lon- don, 1882. American Journal of Education. Elementary Schools in England. Vol. 24, 1873. Baker, Charles E. The Local Government Act, 18S8. London, 1888. Bugnottet, G. itudes Administratives et fudiciares sur Londres et U Angleterre, 2 vols. Besanpon, 1888. Chalmers, M. D. Local Government. London, 1883. Chambers, George F. The Law Relating to Public Health and Highways. Lon- don, 1 88 1. Donaldson, James. Lessons on the History of Education in Prussia and England. Edinburgh, 1874. Edinburgh Review. Local Debts and Government Loans. Vol. 153, April, 1881. Sanitary Progress. Vol. 173, Jan., 1891. Fanshawe, E. L. See Hobhouse, Henry. Fovfle, Thomas W. The Decay of Self- Government in Villages. Fortnightly Rev., Vol. 32, i8;79. Frazer's Magazine. The Sanitary Question. Vol. 36, 1847. Gneist, Rudolf. Das En^lische Verwaltungsrecht der Gegenwart in Vergleichung mil den Deutschen Verwaltungsystemen. Berlin, 1883. Selfgovernment, Communalverfassung und Verwaltungsgerichte in England. Berlin, 1871. Goodnow, Frank J. Administrative Law. 2 vols. New York, 1893. Municipal Home Rule. New York, 1895. Municipal Problems. New York, 1897. Local Government in England. Pol. Sc. Quar., Vol. 2, Dec, 1887. Primary Education in England. Science, Vol. 8, 1886. The English Local Government Bill. Pol. Sc. Quar., Vol. 3, June, 1888. 282 BIBLIOGRAPHY [282 Hamilton, Rowland. Popular Education in England and Wales before and afier the Elementary Education Act of i8yo. Journal of the Statistical Society, London, Vol. 46, 1883. Herbert, Nicholas, and Jenkin, A. F. The Councillors' Handbook. London, 1888. Hinsdale, B. A. The System of Payment by Results. Educational Rev., Vol. 4, 1892. Hobhouse, Henry, and Fanshawe, E. L. The County Councillors' Guide. Lon- don, 1888. Hobhouse, Henry. See Wright, R. S. Jenkin, Austin F. See Herbert, Nicholas. Jenks, Edward. An Outline of English Local Government. London, 1894. Leroy-Beaulieu, Paul. V Administration Locale en France et en Angleterre. Paris, 1872. Mackenzie, William W. A Treatise on the Elementary Education Acts. Lon- don, 1892. The Poor Latu Guardian. London, 1892. Marc6, Victor. Des Autoritis Priposles a la Verification et a L'Apurement des Comptes de L'Etat et des Localites en Angleterre. Annales de L'fecole Libre des Sciences Politiques. Vol. 6. May, Sir Thomas Erskine. A Treatise on the Law, Privileges, Proceedings and Usage of Parliament. loth Edition. London, 1893. Miller, Horace. See Stephen, Henry. Monod, Henri. Les Mesures Sanitaires en Angleterre depuis iSjs «' leurs Ri- sultats. Revue D'Hygiene, Vol. 13, 1891. NichoUs, Sir George. A History of the English Poor Law. 2d vol. London, 1854. Parliamentary Reports, Returns and other Papers. Abstract of Answers and Returns Relative to the State of Education in Eng- land and Wales. S. P. (62), 1835, ^°'^- 4'-3- Report from- the Select Committee to inquire into the Present State of Educa- tion of the People in England and Wales, etc. S. P., 1835, Vol. 7. Report from the Select Committee on Education of the Poorer Classes in Eng- land and Wales. S. P., 1838, Vol. 7. Report of Schools Inquiry Commission, 1864-1867. S. P., 1868, Vol. 28. Report of the Commissioners appointed to inquire into the Working of the Factory and Workshops Acts, etc. S. P., 1876, Vol. 29. Report on the Sanitary Condition of the Labouring Population of Great Britain. S. P., 1843, Vol. 12. Reports of the Medical Officer of the Privy Council. Pub. annually from 1859 to 1871 inclusive. Probyn, J. W. Local Government and Taxation. Cobden Club Essays. Lon- don, 1875. Rees, Wm. On the Audit of Public Accounts. Transactions of the Manchester Statistical Society. May 9, 1866. 283] BIBLIOGRAPHY 283 Ryde, Walter C. The Local Government Act, 1894. London, 1894. Senior, Nassau W. Suggestions on Popular Education. London, 1861. Sharpless, Isaac. English Education. New York, 1892. Smith, Wm. Robert, and Smith, Henry. The Laws Concerning Public Health. London, 1883. Stephen, Henry, and Miller, Horace E. The County Council Compendium. London, i888. Traill, H. D. Central Government. London, 1881. Vautbier, Maurice. Le Gouvernement Local de L'Angleierre. Paris, 1895. Wright, R. S., and Hobhouse, Henry. An Outline of Local Government and Local Taxation in England and Wales. 2d Edition. I^ondon, 1894. HI Acland, Charles T. D. County Councils and Rural Education. 19th Century, Oct., 1896. "Alfred." The History of the Factory Movement. 2 vols. London, 1857. American Joilrnal of Education. Elementary Education in England. Vol. 10, 1861. Anson, Wni. R. The Law and Custom of the Constitution. Part II. — ^The Crown. 2d Edition. Oxford, 1896. Bastable, C. F. Public Finance. 2d Edition, Revised and Enlarged. London, 1895. Baxter, G. R. Wythen. The Book of the Bastiles; or, The History of the Work- ing of the New Poor Law. London, 1841. Bellot, Hugh H. L. The Local Government Act, i8g.f. Westminster Rev., Vol. 141, 1894. Bowles, Thomas Gibson. The Destruction of Self- Government. Fortnightly Rev,, Vol. 49, 1888. Bradley, George Granville. My School Days from 1830 to 1840. 19th Century, Vol. IS, 1884. Bremner, John A. On the Principle of Compulsion in Primary Education. Transactions of the Manchester Statistical Society, Jan. 14, 1870. British Almanac and Companion to the Almanac. London, 1828-1896. Annual. Chance, W. The Better Administration of the Poor Law. London, 1895. Commons, John R. State Supervision for Cities. Annals of the Amer. Acad, of Pol. Sc, Vol. v., 1895. Craigie, Patrick G. The Cost of English Local Government. Journal of the Sta- tistical Society, London, Vol. 40, 1877. Craik, Henry. A Minister of Education. Fortnightly Rev., Vol. 43, 1885. Davies, Joseph J. The New Educational Code. W estmin ster Rev., Vol. 1 34, 1 890. Mr. Acland's New Educational Code. Ditto, Vol. 144, 1895. Edinburgh Review. Centralization. Vol. 85, 1847; Vol. 115, 1862. Committee of Council on Education. Vol. 75, 1842. Local Taxes of the United Kingdom. Vol. 85, 1847. 284 BIBLIOGRAPHY [284 Poor Law Reform. Vol. 74, 1841. Results of the Education Act. Vol. 139, 1 874. Sanitary Reform. Vol. 91, 1850. The New Poor Law. Vol. 63, 1 836. Farr, William. Vital Statistics. Edited by N. A. Humphreys. London, 1885. Fonblanque, Albany de. Hoxu We are Governed. 1 6th Edition, Revised and Re-edited by W. J. Gordon. London, 1889. Eranqueville, Amable Charles de. Le Goavernement et le Parliament Britan- niques. 3d Vol. Paris, 1887. Les Institutions, Politiques, Judiciaires, et Administratives de L'Angleterre. 2d Edition. Paris, 1864. Frazer's Magazine. The Twice-Revised Code. Vol. 65, 1862. Garfit, Arthur. Some Points of the Education Question. London, 1862. Gneist, Rudolf. Das Englische Verwaltungsrecht mit Einschluss des Heeres, der Gerichte und der Kirche. 2 vols. Berlin, 1867. Gorst, John E. The Voluntary Schools, igth Century, Nov., 1896. Gregory, Robert. Report of the Education Commission. Contemporary Rev., Vol. 54, 1888. Hippeau, C. L' Instruction Publique en Anglcterre. Paris, 1872. Howard, George E. Introduction to the Local Constitutional History of the United States. Baltimore, 1889. Humphreys, N. A. The Value of Death-Rates as a Test of Sanitary Conditions. Journal of the Statistical Society, London, Vol. 37, 1874. Jevons, W. Stanley. The State in Relation to Labour. London, 1882. Kay, Joseph. The Education of the Poor in England and Europe. London, 1846. Kay-Shuttleworth, Sir James. Four Periods of Public Education. London, 1862. Public Education. London, 1853. Results of the Education Act and Code of 1S70. Fortnightly Rev., Vol. 25, 1876. Lloyd, John, and Smith, Smalman. A Sketch of the History and Progress of County Governi?ient in England. London, 1 879. Loch, C. S. Charities Register and Digest, etc. 3d Edition. London, 1890. Longstaff, George B. Studies in Statistics, Social, Political and Medical. Lon- don, 1891. Lumley, Wm. Golden. The Medical Officer's Manual. 3d Edition. London. Mackay, T. The English Poor. London, 1889. Macnamara, T. J. The Report of the Secondary Education Commission. Fort- nightly Rev., Vol. 64, 1895. Maitland, F. W. Justice and Police. London, 1S85. Maiden, Henry Elliot. The Rights and Duties of the English Citizen. London, 1894. Martineau, Harriet. History of the Peace, 1816-18^4. 3d vol. Boston, 1866. Massie, J. The Secondary Education Report. Contemporary Rev., Vol. 68, 1895. Newsholme, Arthur. The Elements of Vital Statistics. London, 1889. 285] BIBLIOGRAPHY 285 Parliamentary Reports, Returns and other Papers. Report from the Select Committee on Improvement of the Health of the Towns. S. P., 1842, Vol. 10. Report from the Select Committee on Schools of Art. S. P., 1864, Vol. 12. Report of the Select Committee to inquire into the Construction of the Com- mittee of Council on Education. S. P., 1865, Vol. 6; 1S66, Vol. 7. Report from the Select Committee on Endowed Schools Act, i86g, and Amend- ing Acts. S. P., 1887, Vol. 9. Report of Select Committee on Charitable Trusts Acts. S. P., 1884, Vol. 9. Report of the Select Committee on Charity Commissioners. S. P., 1894, Vol. II. Reports of the Poor Law District Conferences held during the year iSyj, London, 1878. Pashley, Robert. Pauperism and Poor Laws. London, 1852. Picton, J. A. Self-Government in Towns. Contemporary Rev., Vol. 34, 1879. Porritt, Edward. The Englishman at Home. New York, 1 893. Rathbone, Wm.; Pell, Albert; Montague, F. C. Local Government and Taxa- tion. London, 1885. Richardson, Benjamin W. The Health of Nations. 2 vols. London, 1887. Rigg, James H. National Education and Public Elementary School Education. London, 1873. Government Education. Contemporary Rev., Vol. 31, 1878. Runciman, James. The New Departure in Education. Contemporary Rct., Vol. <;4, 1888. Shaw, Albert. Municipal Government in Great Britain. New York, 1895. Simon, John. Public Health Reports. 2 vols. London, 1887. Smith, J. Toulmin. Government by Commissions Illegal and Pernicious. Lon- don, 1849. Local Government Unmystified. London, 1857. Parallels between the Constitution and Constitutional History of England and Hungary. London, 1849. Stephens, Henry C. Parochial Self- Government in Rural Districts. London, 1893. Thring, Lord. Local Government. 19th Century, Vol. 23, Mar., 1888. Torrens, W. T. M. Lancashire's Lesson. London, 1864. Transactions of the Sanitary Institute of Great Britain, 1879-1896. Annual. Vine, J. R. Somers. English Municipal Institutions; Their Growth and De- velopment from 183$ to i8jg. Statistically Illustrated. London, 1879. Waddington, Richard. The Voluntary School Problem. Westminster Rev., Vol. 146, 1896. Westminster Review. Education in Prussia and England. Vol. 104, 1875. Local Self-Government and Political Education. Vol. 125, 1886. The Local Government Act, 1888. Vol. 130, 1888. 286 BIBLIOGRAPHY [286 Wiese, L. German Letters on English Education. Translated by Leonhard Schmitz. London, 1877. Wilkinson, J. Frome. A New Poor Law. New Rev., Vol. 8, 1893. Williams, J. Powell. County Government. Birmingham, 1882. Willoughby, Edward F. Handbook of Public Health and Demography. Lon- don, 1893. Wisker, J. The Revised Educational Code. Fortnightly Rev., Vol. 5, 1866. Yoxall, J. \\. The Public and the Education Department. Murray's Magazine, Vol. 7, p. 117, 1890. IV Blyth, A. Wynter. A Manual of Public Health. London, 1890. Buxton, Sydney C. Notes on School Board Questions. 19th Century, Vol. 12, 1882. Clarke, C. B. Ihe Existing Poor Law in England. Macmillan's Magazine, Vol. 23, 1870. Clifford, John. The Destruction of the Board School. Contemporary Rev., Vol. 66, 1894. Diggle, Joseph R. The Abolition of School Pees. Fortnightly Rev., Vol. 49, 1888. School Fees. Contemporary Rev., Vol. 57, 1890. Dilke, Sir Charles W. 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Accounts, Effect of central control upon, 60 Methods of keeping, prior to 1834, 56 Administrative control, Continental, 17,268 Lack of, in U. S., 242 Purpose of, 16, 17 See also Central administrative con- trol. Adoptive Acts, Consent of L. G. B., 183 Allotments, Powers of county council, 91, 189 L. G. B., 91 Althrop, Lord, The opinion of, as to the poor laws, 45 Analysts, Beneficial results, 104 Control of L. G. B. over, 103 Functions, 103 Army and Navy Schools, 135 Assessment of property, 184 Audit, Administrative control defective with- out central, 216 Conditions prior to 1834, 58, 217-220 Defects of early systems, 219—220, 224-6, 228, 230 Effect of central, 231, 236-7, 240-1 Extent of central, 233 Local, inefficient, 219—220 Opposition to central, 221 Provisions in local acts, 219 Provisions of V. L. A. A., 221—3 Under 43 Elizabeth, 217 17 Geo. n, 218 50 Geo. Ill, 218 Auditors, Appeals from decisions, 217, 218, 222, 233-5, 237-240 Appointment, 222, 223, 226, 227-9 Districts, 225, 229 ^ Independent position of, 234, 236, 238 289] Auditors, Justices of peace as, 217-222, 231 Locally appointed, 217, 219, 221, 223 Number, 225 n, 229 Powers, 221-2, 231-3 Salary, 222, 223, 225-6, 229, 230, 236 Tenure, 222, 223, 227, 236 Augmentation grant instituted, 143 Blunden, G. H., Opinion as to local indebtedness, 206-7 Board of Agriculture, Functions, 93, 108, 188 Board of Trade, Powers of as to by-laws, 98 loans, 195 local bills, 250 municipal monopo- lies, 93, 98, 188 property, 188 Borough, Elementary education, 273 Police, 120-125, '26, 130, 273 Poor relief, 273 Powers of L. G. B., 95, 96 Rates, 274 Relation of, to central administrative control, 274-5 Borough council. Approval of L. G. B. required, 257 Audit of accounts, 233 Compared with urban district council, 274-5 Financial powers, 186, 187-8, 190-1 Indebtedness, 208, 274 Loans approved in 1895-6, 193 Powers, 161, 273 Rates assessed by, 210 Borrowing power, Central administrative control, 191— 210 Not much used at first, 196 Recent exercise of, 197-8 289 290 INDEX [290 Borrowing power, Statutory limitations, 190-1 See Debts and Loans. Brougham, Lord, Local administration depicted by, 42 By-laws, Approval, 97-100, 159 Compulsory education, 159-163 Capitation grant. Introduction of, 143 Central administrative control, Advantages, 252-3, 256 Based upon government aid defective, 101-3 Characteristics, 50-61 Continuity produced, 60, 64 Contrasted with legislative control, 200-2, 213, 215, 252 Dangers, 253 Decentralization, 263, 265-271, 276-7 Development, 244-6 Educational benefits, 50, 62 Effect upon administration of police, 1 3 1-3 educational conditions, 178-181 illegal expenditures, 231, 236-7, 240-1 legislation, 55, 63 local acts, 212-3, 215, 256-8 finances, 196-210 public health administra- tion, 77,85, 114-116 special legislation, 94, 254-8 Flexibility, 51,63 Justification of, 121, 128, 147, 261-2, 263-5, 267, 268-271 Loans, 191-210 Local indifference removed, 61, 62 opposition removed, 50, 51, 62 Of recent growth, 1 8 Opposition to, 19, 20 Permanency of, 262, 265-271, 277 Present importance of, 62-64, 127-8 tendency, 277 Principle of, 244 Proper sphere, 259 Property, 184-9 Provisions classified, 260 Rates, 183-4 Responsibility centralized, 50, 52, 63 Theory, 261-271, 276-7 Central administrative control Uniformity produced, 56-60, 64 Central audit, chapter VII, See also Audit. Central control, England and U. S. comfiared, 243, 276 Forms of, 1 6 The problem of, 16 See Judicial control. Legislative control. Centralization, ' Opposition to, in Eng., 19, 50 Certiorari, When writ will issue, 233 Chadwick, Mr., Pres. of Gen. B. of H., 73, 76 Charity Commissioners, 1 35 Child-labor forbidden, 160 Cholesbury, Pauperism in, 58 City, Need of defining the, 15, 242 The position of the, 14, 15, 242 Clauses acts. Beneficial results, 246 Defects, 246 Introduction, 68, 246 Code, Education, See Education Code. Compulsory education. Act of 1870, 159 Effect upon educational conditions, 181. Enactment of by-laws, 159-162, 166 Enforcement of by-laws, 159—162 Opposition to, 159 Present conditions, 163, 170 Conditional grants. See Subsidies, Government. Constabulary, See Police. Cotton famine 1860-1863, 55 County, Police, 120, 121, 123-5 Police subsidies, 122 Powers of L. G. B., 95, 96 Relation of, to central administrative control, 273 County borough. How formed, 95 County council. Approval of L. G. B. required, 257 Audit of accounts, 233 Defaulting authorities, 105 Financial powers, i86, 187-8, 190 291 ] INDEX County council, Indebtedness, 208 Loans approved in 1895-6, 194 Powers as to allotments, 91 County districts, 96 Elections, 35 Parishes, 96, 194 Rates assessed by, 210 Transfer of powers to, 92, 97 County councillors. Number and apportionment, 95 Craik, Henry, Description of early educational con- ditions, 173 Crisis of 1837. Methods used in, 53 Death rate. See Mortality. Debts, local, Amount, 208, 274 Distribution, 208 Influence of L. G. B., 206-7 Purposes. 207, 208, 209 See Loans and Borrowing Power. District councils. See Urban district councils and Rural district councils. Education, See Elementary and Secondary educa- tion. Education Code, Defects in 1870, 146 First formed, 145 Present and former compared, 154—7 Provisions of present, 1 5 1-3 Education Department, Approval of by-laws, 159, 160 loans, 171, 194 Authorities in default, 165-172, 180 Compulsory education, 159, 160, 162 Conditions as to government grants, 141, 143-7, 149-153. 155 Control over borrowing power, 192, 194 inspectors, 141, 154, 156 property, 187 Creation of, 141 Defaulting school attendance commit- tees, 166, 167-8, 170 school boards, 165, 167-8, 169 Diflficulties encountered, 137, 142, 148 Dissolution of school boards, 165, 166, 168 291 Education Department, school attendance committees, 166 Elementary schools, 141, 149, 151-5, 157 Enactment of by-laws, 162, 167 Endowed schools, 136 Enforcement of by-laws, 162, 167 Formation of school boards, 164, 167 attendance com- mittees, 166 Influence, 1 78-181 upon educational condi- tions, 157, 158 Limitations upon powers, 149, 151, 157 Loans sanctioned in 1895-6, 194 Local areas, 172 Miscellaneous powers, 172 Unnecessary schools, 171 Position of the, 158 Responsible ministry established, 144 Electric lighting. Powers of Board of Trade, 93, 188 Elementary education. Causes of increased efJBciency, 147, 178-181 Conditions in 1839, 173 1870, 174, 176 1895, 176-7 Definition, 134—6 Denominational influence, 137, 142, 180 Early management, 136-7 Extent of, 153 Statistics, 174, 176, 177 Elementary Education Act, 1870, Provisions of, 149 Expectation of life, Statistics, 112 Factory laws. Educational provisions in, 137-140 Effect upon education, 179 Enforcement of, 137-140 Inspectors established, 137 Powers of inspectors, 137-139 Fee grants. Amounts, 176 Conditions, 150 Substituted tor school fees, 1 50 Gas works, Loans for, 209 Powers of Board of Trade, 93 L. G. B., 185 Receipts from, 209 292 INDEX [292 General Board of Health, Abolished, 73-76, 79 Formation, 71 Influence, 77 Not responsible to Parliament, 74 Opposition to coercive powers of, 74 Powers of, 71^-72, 74 transferred to Sec. of State, 78 Gerrymandering unheard of, 97 Gilbert's Act, Provisions of, 30, 44 Grants, Government, See Subsidies. Guardians, Control of L. G. B. over, 28, 32 Election of, 34 Loans approved in 1895-6, 193 Powers of, 28, 30, 32, 36, 47, 161, 190, 221-3 Kural district council, 88 Health, See Public Health. Housing of the Working Classes Act, 1890, Powers of L. G. B., 91, 183 Illegitimacy, Law concerning, 47 Pauperism caused by, 44 Illiteracy, Statistics, 177 Industrial schools, 136 Inspectors, Education, 141, 143-7, I49> 'S4> 'S^i 159. '78 Factory, 137-9, 179 Local government, 87 Police, 120, 128-130 Poor law, 35 Judicial control. Influence of, upon L. G. B., 29, 36, 106 Purpose, 16 Justice of peace. Powers as to audit, 217-220, 222, 231 See Quarter Sessions. Lands Clauses Consolidation Acts, Powers of L. G. B., 91 Legislative control. Contrasted with administrative con- trol, 200-2, 213, 215, 252 History of, in Eng., 244-250 History of, in U. S., 243 Legislative control. Inefficiency of, 53, 54 Method in the U. S., 242-3 Proper sphere, 259 Purpose, 16 Loans, Amounts, 208 Approved by L. G. B., 1874, 201 1892, 200 1895-6, 193-4, 201 Central administrative control, 191— 196 Periods of repayment, 200-2, 211— 213 Permitted by local acts, 214 Principles as to repayment, 198, 199 Principles of L. G. B., 199 Purposes of, 193-4, 200, 207, 213 See Debts and Borrowing Power Local acts. Are they necessary? 258-9 Cause of decrease, 254-5 Conditions contrasted with U. S., 256, 259 Defined, 245 n., 249 Duration of loans under, 202, 211, 212, 213, 215 Effect of central administrative con- trol upon, 252-7, 259 Excessive cost, 248 Evils, 202, 212, 245, 247-250 History, 245 Improper consideration, 247-8 Influence of, upon indebtedness, 210-5 Influence of L. G. B., 202, 211, 212-3 Loans permitted by, 214 Method of considering in Parliament, 245 Number of, at present, 254-5. Number of, formerly, 249, 254-5 Origin of, 2H Power of Parliament, 210-1 Powers of L. G. B. over, 29, 97 Proper sphere, 259 Provisions as to audit, 219 Reasons for great use of, 211 Local areas. Power of L. G. B. over, 30, 31, 91, 94-97 Local authorities (general). Audit of accounts, 232-3 Indebtedness, 208 Financial powers, 187-8, 194 293] INDEX Local authorities (general), Rates assessed by, 210 Receipts in 1893-4, 209 Local authorities (poor law). Audit of accounts, 232 Indebtedness, 208 Financial powers, 187, 190, igi Power of L. G. B. over, 28, 32, 33, 36 Qualifications of, 56 Rates assessed by, 210 Removals of, 33, 37 Local authorities (public health), In default, 81-83, 104-108 Powers of, 72 Local debts. See Debts. Local government (Eng.), Development of functions, 244-5, 264 Early conditions, 18, 19 Transformation of, 19 Local government (U. S.), Functions of, 13, 14 The relation of, and central govern- ment, 13 Local Government Act, 1858, Effect upon sanitary conditions, 85 Provisions, 79-80 Local Government Act, 1888, Provisions, 92, 95, 122 Local Government Act, 1894, Provisions, 96, 105 Local Government Board, Adoptive acts, 183 Appeals from auditors' decisions, 237- 240 Appellate jurisdiction, 34, 108, 183, 233-S. 237-240 Appointment of auditors, 229 Approval of acts of localities, 92, 185- 9,192 by-laws, 97 As arbitrator, 109, 183 Assessment of property, 184 Auditors, 222-3, 227, 229, 230, 232, 237-240 Borrowing power, 192, 193-5 Creation of, 26, 84 Defaulting local authorities, 104-7 Execution of law, 36, 104-7 General position, 24, 38, 47 Grant of governmental powers, 89-91 Influence upon local acts, 202, 212-3, 215 indebtedness, 206-7 293 Local Government Board, Influence upon pauperism, 48, 50-64 sanitary conditions, 1 14-6 Inquiries, 35, 87 Issuing of orders, 28, 255 Limitations upon powers of, 28 Loans sanctioned, 193-4, 213 Local acts, 29, 30, 31, gi, 94-7, 211, 256-8 areas, 30, 31, 91, 94-7 authorities, 32, 33, 36, IC0-7 finances, 29, gi, 92, 192, 193-5, 203-5 rates, 183-4 Pauper schools, 136 Periods of repayment approved, 200, 201, 202, 214 Policy as to loans, 199, 202, 214-5 Property, 185-9 Provisional orders issued by, 251, 255 Quasi-judicial powers, 34, 108-110 -legislative powers, 87-94 Removal of auditors, 222, 223, 227 Report of 1878 as to local acts, 212 Responsibility centralized in the, 50-2, 56 Salaries of, 26 auditors, 229, 230 School attendance committee, 161 Subordinate officers, 26, 27, 87 London, Peculiar position, 21 Police, 123 n Lowe, Mr., Statement of, 146 Mandamus, Not much used, 106 When writ will issue, 104, 191, 203, 204 Martineau, Harriet, Early conditions of pauperism de- scribed by, 39-40 Mortality, Causes of high, no, 113 lower, 77, 85, III, 113-115 Importance of lower, 112 Statistics, 69, 77, 85, 110-114 Municipal Corporation Act, 1835, Provisions, 99 Municipal Corporation Acts, Provisions, 274 Officers, See Local authorities. 294 INDEX [294 Orders in Council, When issued, 71, 73, 80, 121 Parish, Relation of, to central administrative control, 272, 273 Term explained, 272 Parish council, Audit of accounts, 233 Financial powers, 186, 187—8, 190, 191 Loans approved in 1895-6, 194, Pauperism, See Poor relief. " Payment by results," Defects, 146 Introduction, 145 Modified, 155 Opposition to, 146 Personal Acts, Defined, 249. Police, Borough, 120-5, 126, 130 Causes of increased efficiency, 131-3 Central control introduced, 120 Conditions in 1856, 118-9 County, 120, 121, 123-5 Defects of early legislation, 119 Forces inefficient, 123—6 Increased efficiency, 125-7 Present conditions, 125, 131 Standard of efficiency, 125-7 Statistics, 119, 124-6, 130 Subsidies, 120, 122. Police Act, 1856, Provisions, 1 20, 131 Poor Law Amendment Act, Effect of, upon pauperism, 40, 41, 48, 49, 50-64 Provisions, 25, 26, 28, 29, 30, 32, 35, 36, 46-48 Provisions as to audit, 221-3 Poor Law Board, Appellate jurisdiction, 234 Formation of, 25 Term of, 25 Poor Law Commission, Report of, 45, 46, 49 Poor Law Commissioners, Appellate jurisdiction, 233 Appointment of, 25 Exercise of powers as to audit, 223-4, 226, 228 Powers as to audit, 221-3, 225 Purpose, 25 Poor rates, County, 59 Poor relief. Administration of, prior to 1834, 38— 40, 42, 43. 57-60 Causes of inefficient administration of, 41-46 Causes of reform, 48, 49, 61, 64 Condition after P. L. A. A., 40 False ideas as to, 44 Public health and, contrasted, 67, 73, 76,78 Statistics, 41 Statutory defects as to, 42-44 Population, Effect of, upon functions of local governments, 14 Privy Council, By-laws, 98 Contagious diseases, 79, 84 Transfer of powers, 92, 93 Property, Assessment, 184 Central administrative control, 1 84-9 County councils, 186 Municipal corporations, l86 Parish councils, 186 Ratable value, 208 Receipts from, 209 Sanitary authorities, 185 School boards, 187 Provisional orders. Advantages, 252-3 Attitude of Parliament, 250-2 Confirmation by Parliament necessary, 250,251 Number, 250, 251, 254 When issued, 24, 71, 73, 80, 91, 92, 94. 95. 96. 97. 185, 189 Public Acts, Defined, 249 Number, 249, 254 Public Health Act, 1848, Defects, 74-76 Effects, 77 Extent of application, 76 Provisions, 71-73, 99 Public Health Act, 1872, Provisions, 86 Public Health Act, 1875, Principal object, 86 Provisions, 87 et seq. Public health administration. Causes of present efficiency, 1 14 Conditions in 1S71, 83-85 295 J INDEX Public health administration, Conditions prior to 1848, 68-70 Effect of, upon mortality, no, 113 Meaning of the term, 65 Poor relief and, contrasted, 67, 73, 76, 78 Present system, 86-116 Recent increase in efficiency, 110-114 Pubhc Works Loan Commissioners, Powers, 192 295 Queen's Bench, Powers of the Court of, 34, 231, 233, 235 Quarter Sessions, Jurisdiction of, 34, 47 Powers to audit, 217-8, 219, 223, 231 Rates, Assessed in 1893-4, 210, 274 Borough, 274 Central administrative control, 183-4 County, 274 Receipts from, in 1893-4, 209 School, 176 Removal of paupers. Law of, 47 Rural county districts, Death rates in, 1 1 1 Rural district council. Audit of accounts, 232 Functions, 88, 190, 191, 193 Indebtedness, 208, 213 Loans approved in 1892, 200 1874, 201 Local bills concerning, 211 Population, in Powers of L. G. B., 89, gi, 94-6, 185, 187-8 Rates assessed by, 210 Sanitary Acts, 1866, 1868 and i86g. Compared with previous acts, 82 Modified, 104-5 Provisions, 81 Reasons for enactment, 8 1 Sanitary authorities, Financial powers, 185, 187-8 See Rural District Councils and Urban District Councils Sanitary problems. Recent origin of, 66 Scholars, Age of, 13s School attendance committee. Dissolution, 166, 168 Formation, 161, 166 How chosen, 161 In default, 166, 167, 170 Number, 176 Powers, l6l School board. Audit of accounts, 233 Dissolution, 165, 166, 168, 172 In default, 165, 168, 169 Indebtedness, 208, 209 Loans approved in 1895-6, 194 Powers, 173, 187,191 Rates assessed by, 210. Statistics, 176 When created, 161, 164, 167-9, 171 School fees. Extent of, 151 Fee grants substituted for, 150 Schools, See Elementary education. Science and Art Department, 135, 176 Secondary education, 134. Secretary of State, Approval of by-laws, 98 As arbitrator, 109, 121 Defaulting authorities, 107 Factory laws, 93, 105, 107 Industrial schools, 136 Local bills, 257 Local finance, 80, 195 Police, 117, 120-2, 129, 130 Poor relief, 29 Prisons, 93 Public health, 72, 79-81, 84. Settlement, Effect of law of, upon pauperism, 44, 48 Law of, 47. Southwell, Pauperism in, 43, 58. Special legislation (Eng.), See Local acts. Special legislation (New York), 259 n. Special legislation (U. S.), Conclusion from experience, 243 Contrasted with Eng., 256, 259 History, 243 Probable effect upon, of central con- trol, 256. Subsidies, government, Beginning of, 140 Conditions of distribution, 140, 141, 14.3-7. J49-IS3. 15s 296 INDEX [296 Subsidies, government, Decentralization impossible, 263 Defects of system, loi, 148, 262 Difficulties, 262 Influence upon educational condi- tions, 147, 157, 178-180, 181 Justification of, loi, 12 1-2, 147, 261-2 Limits of, 149-151 Not permanent, 262 Police, 121-5, 131 Public health, 101-3 Receipts from, 209 Statistics, 140, 141, 146, 149, 150, 153. 154 Theory, 147, 261-2 Taxes, See Rates, Technical education, 135 Tramways, Loans for, 190, 209 Powers of Board of Trade, 188 Treasury Department, Control over loans, 195 Powers over salaries. 26, 71, 120, 229, 230 subsidies, 140 tramways, 188 Repeal of powers, 141 Subventions to police, 120, 122 Uniformity, Central control produces, 57-60 Unions, Number of, 31 Size of, 31 Urban county districts, Death-rates in. III Population, III Urban district council. Audit of accounts, 233 Compared with borough council, 274-5 Functions, 88, 190, 191, 193 Indebtedness, 208, 213, 274 Loans approved in 1892, 200 1874, 20I Local bills concerning, 211 Powers of L. G. B., 89, 91, 94-6, 185, 187-8 Rates assessed by, 210, 274 Voluntary schools. Statistics, 176 See Elementary education. Water works. Loans for, 209 Powers of Board of Trade, 93 L. G. B„ 185 Receipts from, 209 II GERMAN WAGE THEORIES A HISTOEY OF THEIR DEVELOPMENT STUDIES IN HISTORY. ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK Volume IX] [Number 2 GERMAN WAGE THEORIES A HISTORY OF THEIR DEVELOPMENT %T JAMES W. CROOK, Ph.D. Sometime University Fellow in Economics Assistant I^ofeasor of Political Economy, Amherst College COLUMBIA UNIVERSITY Beta) pot* 1898 TABLE OF CONTENTS FACE Introduction 7 CHAPTER I Predecessors of Hermann 15 CHAPTER II Hermann 23 CHAPTER III Hermann's Successors 33 CHAPTER IV Criticism 55 CHAPTER V Von Thunen 68 CHAPTER VI The SoaALiSTS 94 CHAPTER VII Schulze-GXvernitz 107 (V) INTRODUCTION Ever since political economy received its modern form at the hands of Adam Smith, the theory of wages has been in controversy. What is true of many economic questions is true of this one: the germs of later and more complete develop- ments are found in the Wealth of Nations. Problems peculiar to the periods of historical evolution since the time of Adam Smith have brought into prominence one or more of the truths which he perceived. The system of natural liberty which he so tenaciously advocated brought the demand for its com- plement and condition — equality. But if the history of this century records a growing recognition of freedom for all classes, it has also disclosed an obstacle to the realization of freedom, viz., economic weakness. The demand for equality comes from the economically weak, the wage receivers. Hence, the investigation of the economic forces which deter- mine the incomes of those classes becomes an important in- quiry. Thus from a practical point of view the work done in this field by scientists of more than one nation is amply justified. If science is not international, it ought to be so, to such an extent that the important work of one country be not unknown to another. A survey of the somewhat voluminous German literature upon the subject of wages shows that, for half a cen- tury after the publication of the Wealth of Nations, almost no original work is to be found. That there was no lack of acad- emic activity is clear from the number of university text-books issued. These, however, for the most part repeat, summarize or but slightly modify the reasoning and conclusions of Adam 303] 7 8 GERMAN WAGE THEORIES [304 Smith. The conditions of economic life in the two countries at this period were very different. There was wanting on Ger- man soil the stimulating influence of unsolved practical prob- lems of economics. The "industrial revolution" developed more slowly on the continent. There were lacking those conditions so favorable to the growth of industry. England's insular position allowed a degree of political unity and com- parative certainty of political destiny such as was hardly pos- sible to a continental state closely surrounded by jealous neighbors or agitated by the contending forces inherent in a loose federation.' The political solution must precede the economic. The English people have also possessed, to a re- markable degree, those moral capacities which underlie any considerable industrial progress, the capacity to labor and to co-operate. If we add to these facts the favorable climate, easy communication by land and sea, and abundant supplies of coal and iron, we may reasonably account for England's industrial leadership.^ The series of remarkable inventions, beginning with that of Hargreaves, established the factory system, stimulated the growth of industrial towns, and brought into contrast the in- terests of laborers and employers. While this contrast was not exactly a new one, yet it was never sufficiently intense till then to force the legal barriers to labor combination. The place which the labor problem has occupied in the British mind may be roughly measured by that legislative accumula- tion known as the Factory Acts, which have been a model for similar legislation by other nations. All this is in contrast with the German condition. There the old industrial order with its restrictions and conservative methods prevailed long after England had replaced the old with the new. Schulze-Gaevernitz^ has described the methods • List, National System, p. 5 3. ' Hobson, Modern Capitalism, p. 73 ff. „ Grossbetrieb, p. 34. 305] INTRODUCTION g which prevailed in the i8th century throughout Germany. " Everything was done by rule. Spinning came under public inspection and the yarn was collected by officials. The privi- lege of weaving was confined to the fraternity of the guild. Methods of production were strictly prescribed; public in- spectors exercised control. Defects in weaving were visited with punishment. Moreover, the right of dealing in cotton goods was confined to the confraternity of the merchant guild; to be a master weaver had almost the significance of a public office. Besides other qualifications, there was the condition of a formal examination. The sale also was under strict supervision ; for a long time a fixed price prevailed, and a maximum sale was officially prescribed for each dealer. The dealer had to dispose of his wares to the weaver, because the latter had guaranteed to him a monopoly of export trade." ' How comparatively little progress Germany had made with machine industry under these conditions is indicated by the following facts. In 1882, 42 per cent, of the German textile industry was still conducted in the home or domestic work- shop, while only 38 per cent, was carried on in factories em- ploying more than 50 persons. More weavers were still en- gaged with hand looms than with power-looms, and the latter was so little developed that the hand loom could still hold its own in many articles. Knitting, lace making and other minor textile industries are still in the main home industries.' List, in 1844, laments the comparative infancy of German manufac- tures and continually seeks to impress upon his readers the industrial superiority of England. Marx finds England the paradise of capitalistic production, and although familiar with German conditions draws no important illustrations from his native country. Writing as late as 1873 he declared that polit- ical economy was in Germany a foreign science, there having ' Quoted by Hobson, Modern Capitalism, p. 78. ' Quoted from Social Peace, p. 113, by Hobson, p. 78. 10 GERMAN WAGE THEORIES [^06 existed there no soil for its growth.' Lassalle found German laborers unorganized and so inured to custom as to be almost deaf to his passionate appeals. These differences between the two countries may adequately account for the great disparity in theoretic development. The existence of problems calls for solution; solution requires con- structive theoretic foundations. That this is the natural order is abundantly shown in finance. Financial diflficulties or prob- lems have necessarily preceded any considerable determination of the science of finance in modern nations. The new condi- tions and new relations involved in machine production, or the great industry (Grossbetrieb) bring into relief the interests of classes and make necessary a scientific determination of both productive and distributive forces. Experience has demonstrated that it is usually in connection with industries other than agricultural that the problems pe- culiar to the relation of employer and employed come to the front. The classes subordinated come to feel their position, they startle society by proclaiming some unusual doctrine or by per- forming some destructive act. Then the scientist sets about understanding the phenomena. This is the usual sequence, but the work of von Thiinen would seem to furnish an excep- tion to this order. As an agriculturalist he became impressed with the dangers involved in the existence of the economic gulf separating classes, in advance of the feelings of those classes themselves. As early as 1826 he began a series of original investigations in connection with agricultural production, which in the course of twenty-five years yielded results that for orig- inality and value may be compared with some of the best work of Ricardo. Moreover, as proof of his practical interest, and to give his theories of distribution a practical test, he used his agricultural estate for purposes of social experiment. When Rau published the first edition of his political economy (1826) 1 Preface to 2d ed. of Capital. 307] INTRODUCTION II Germany had made some start in national activity which gave rise to industrial problems. Seven years later Hermann broke the parallel course of English and German economic writing, and started Germans on a path of their own, which they have not wholly ceased to follow to this day. Before studying theories themselves, it will be useful to take some notice of terminology. The term wages as used by the different authors does not always include the same kinds of income. It is not unnatural that men, writing under different economic conditions, and at periods so separated by time as the writers brought under review in this essay, should differ in the use of a word like wages, or a phrase like wage-class. There is great lack of unanimity even now, as will be seen by a compar- ison of the advocacy of different or competing views held by Walker, George or Sidgwick. As to definition, the Germans did not always follow Adam Smith. The latter said that the wages of labor were everywhere understood to be what they usually were, when the laborer was one person and the owner of the stock which employs him another.' This would confine wages to the income of laborers employed by owners of capital in the course of operations undertaken for a profit. It will not be necessary to point out here how Adam Smith departed from this definition in his treatment of wages. Schmalz defines wages as the income which men receive from others for important or unimportant, honorable or despicable services. Accordingly, he classes generals, state ministers and even pensioners as wage-earners. There is nothing in his subsequent treatment to reveal the gain of such a classifi- cation.^ Rau broadens the meaning to include what the undertaker saves out of his business to pay for his own activ- ity — the equivalent of what he would otherwise have to pay as wages. This is the modern conception of wages of superin- ' Wealth of Nations, Rogers' ed., 1869, v. I, p. 69. 2 Staatswirthschaftslehre in Briefen, v. I, p. 23. 12 GERMAN WAGE THEORIES TjoS tendence.' However, in the 8th ed. he considers that the most important case arises when over against the worker there is a wage-giver with whom he contracts for definite wages.' Fulda does a similar thing when he makes a part of the in- come of the capitalist his wages. But he has a different meas- ure for the amount. He says the business man, during the time he is in business, must satisfy his needs for food and shelter according to the degree of his culture. He must also hold his capital in that condition which is required to prose- cute his business. The part which his necessary support re- quires is his necessary wages; the part which his capital requires is his necessary profit.' Hermann restricts wages to a payment by one person to another for common services ren- dered. He distinguishes services as common, talented, fixed and official. For the reward of common labor he would use wages (Lohn). For the reward of labor requiring talent and education, honorar. The payments made by university stu- dents to professors for their lectures are at the present time called by that name. For fixed employment he uses salary (Gehalt), and for official services fee (Gage).* V. Thiinen would also restrict wages to payment for hired labor, but he is most anxious to distinguish between the reward for labor as such, and that which is due to the tools the laborer may em- ploy, including the simplest implements. The reward for the use of tools is interest, that for labor proper is wages.s Many writers do not consider it important to state what they mean by wages, leaving the reader to infer from the general treatment the sense in which the word is used. We are, ' Grundsdtze der Volkswirshschaftslehre, 4lh ed., 1841, p. 201. ''■Ibid., p. 252. ' Grundsdtze der Oekonomisch-politischen oder Kameralwissenschaften, 1820, 2d Ed., § 186. ^ Staatswirthschaftliche Untersuchungen, 2d ed., 1870, p. 460. ' Der Isolirte Staat, Part ii, p. 78. 309] INTRODUCTION 1 3 therefore, warned against apparent differences due to differ- ences of terminology merely. The plan to be pursued in this essay has occasioned some thought, and the arrangement finally adopted is not without objection. But since the chief object in making the study is to discover, if possible, progress of thought on this subject, chro- nology had to be sacrificed, in some instances, to a logical order. Hence while von Thiinen appears after Hermann in obedience to the time order of their work, yet von Thiinen appears after Brentano and Philippovich, because he is not so clearly a follower of Hermann as they are. It has often been remarked by students of the theoretical Economics of the Germans that there exists but a slender thread of logical con- nection between the great German writers of the last one hun- dred years. Indeed it has been said that the attitude toward the wages-fund theory is the only point common to most of them. But a study of the treatment by the Germans of the wages-fund, will not include the work of von Thunen, as is shown by Professor Taussig's admirable " Wages and Capital." Wishing to exhibit, if possible, the treatment of the entire wages question by the Germans, passing over rather lightly the part in each author which treats of the wages-fund, because Professor Taussig has made that familiar to English readers, and trying at the same time to give unity to my work, I have, so far as possible, grouped writers who appear to show the largest number of points of contact, and at the same time in- cluded writers of eminence who,, though not connected closely with German predecessors or successors, have made important contributions to the subject. Hence all the German writers treated here are placed in two groups. One contains Schmalz, Fulda, Sartorius, Lueder, Kraus, Rau, Hermann, Brentano, Roscher, Mithoff, Mangoldt and Philippovich. Hermann is the centre of this group, and the others are important only as they lead up to him, depend upon him, deviate from him, or throw light upon him. Apart from those who come first, the 14 GERMAN WAGE THEORIES [jiq common element in nearly all is the method of treatment. Other points of contact will appear as we proceed, but this is the most conspicuous. In this group there is a real unity of method and interest. The other group contains von Thiinen, Karl Marx and Schulze-Gaevernitz. These authors do not belong together in the sense that the others do. They have so little in common that it is not even necessary to speak of them as a group except for convenience. They are included in this discussion because of their importance. Von Thiinen was a genius, about whom it is desirable that American students should know more. A fair-minded and exhaustive study of Marx's theory of distribution, the full materials for which have but recently come into our hands, has yet to be made in Eng- lish. Any earnest study of his theory of wages is welcome if it adds anything to our real understanding of Marx. Schulze- Gaevernitz is noticed here because he is the chief representa- tive in Germany of those writers who regard wages as a residual share, and because the theory which he represents is exciting the interest of German students. One who goes to Germany to hear lectures on the principles of Economics, or who undertakes a study of the literature of the same, must not expect to find a body of doctrines devel- oped independently on German soil, and uninfluenced by the work of other nations. The German professor has ever on his lips the names of Adam Smith, Ricardo and John Stuart Mill. Each economist is followed, criticized or expounded according to the knowledge and idiosyncrasies of the instructor. The present German thinking has its roots in the work of the English school ; and, if the German work is to be understood, the English work must be mastered first. The same thing is true of the literature. The foundations have been laid across the Channel. Hence in exposition, the theories of Adam Smith and Ricardo are often employed in this study as standards, and in this way the English and German ideas are brought into comparison. CHAPTER I PREDECESSORS OF HERMANN, 1 776- 1 832 While this period is the least important of all in positive results, yet a consideration of the work of a few men who wrote during this time will repay the student who desires to know the beginnings of things, and who loves to trace the de- velopment of method and theoretic spirit. When Adam Smith published the " Wealth of Nations," the physiocratic doctrines of distribution were dominant. The struggle be- tween the views entertained by the Physiocrats and those introduced by Adam Smith was not so bitter as such, struggles are apt to be. There appears to have been in Germany com- paratively little objection to Adam Smith's statement. On the contrary, adherents sprang up wherever the new doc- trines became known. Within a few years German students were listening to lectures delivered by University Professors who declared themselves followers of Adam Smith. How- ever, there were some who, for various reasons, could not or would not change views already formed and expressed, and who, though partaking of the early advantages of this century, took little notice of the new movement. Among these is Schmalz,^ whom Roscher calls the last of the Physiocrats. 'Theodor Anton Heinrich Schmalz was born 1760, died 1831. He studied Theology and Philosophy at the University of G5ttingen, 1777-1780. He became a Professor of Law at Rinteln in 1788, but the following year was called to KSnigsberg, becoming Director of the University in 1801. In 1803 he was trans- ferred to Halle as a judicial counselor and Professor, where he remained till 1808. When the new University at Berlin was established he became its first Director in 1810, and as Professor of Law continued in the service of the Prussian king. As a writer his life was full of activity, his efforts centering principally upon 311] IS 1 6 GERMAN WAGE THEORIES [312 According to Schmalz, society is composed of classes or groups, differing in standard of life. Yet there is an average standard to which all groups are tending. The poor are spurred by ambition to approach the average, while shame restrains the rich from maintaining a standard far above the average. Notwithstanding the spur of ambition, wages are governed by a law. That which one is accustomed to con- sume in his class during the time that the work is being done determines the wages he will receive. Two reasons are assigned for this rate: i. The laborer demands it for a life of respectability among his class. 2. It is the laborer's right. The question of right enters, because wages are obtained from men and not from nature. When a man sacrifices his time to work for me, it is right that I give him as much for it as he consumes in that time. He has also a right to receive as much for his labor as the companions of his class consume during the time in which the labor is being performed. There is no reason why he should consume more at my cost. If I give him less, I do him an injustice. If I give him more, I make him a present. Wages correspond to the amount here indi- cated, and that which men habitually pay by contract must have back of it the force of natural right. It is not necessary to point out how far short of scientific precision this reasoning of Schmalz falls. Adam Smith's reas- oning may leave something to be desired, but it is better than that of Schmalz. This consuming rate of Schmalz is not the same as the "lowest rate consistent with common humanity" Politics, Law and Economics. In Politics he favored absolutism. In Law he represented the standpoint of natural right. In Economics the Physiocratics' views seemed to him the soundest. He compared the doctrines of Colbert and his followers to the Ptolemaic system of Astronomy, and those of the Physiocrats to the Copernican system, and regarded Adam Smith as a fad (see Roscher, Geschichte, p. 498-9). For his treatment of systematic Economics see Handbuch der Staatswirtschaft, Berlin, 1808, and StaatswirtschaftsUhre in Brief en, Berlin, 1818. For his characterization by Roscher, see the latter's Geschichte der National-Oekonomik in Deutschland, p. 498. 3 1 3] PREDECESSORS OF HERMANN j 7 of Adam Smith ; the latter was a consumption rate sufficient for both the workman and his family during the entire year; the former was a rate for the workman during the time of work. Adam Smith had in mind a corrective in a decrease of the supply of labor, if the rate fell below the standard. Schmalz was appealing to conceptions of natural right. Fulda' is important only as a transition from the old to the new point of view. While holding with Adam Smith that the state of wages is at once a sign and an effect of the different states of society, he attempts to show that wages may be af- fected by different applications of capital. To his mind ma- chinery is inimical to the interests of labor. Wages are more favorably influenced if capital is applied to agriculture rather than to trade, since in manufacture labor is displaced by the preponderance of capital in the form of machinery. From this point of view the national interests of labor may be promoted by change of national industry and without any increase of capital. Sartorius," Lueder and Kraus were prominently instru- mental in introducing the teachings of Adam Smith into Ger- many. In the extent to which they appeal to his views for an explanation of wages, they differ widely. Sartorius seems to have paid attention to the last page only of Adam Smith's chapter on wages, when he points out that the price of labor is regulated by (i) the demand for labor, and (2) the price of the necessaries and conveniences of life, and then follows this with a discussion of the influence of scarcity and plenty upon ' Friedrich Carl von Fulda, born 1774, died 1847, student at Gottingen 1794- ■97, and received in 1798 a call to Ti bingen as Professor of Kameralwissenschaft, a position which he occupied nearly forty years. His views on Economics are found in his Grundsatse der aconomisch-politischen oder Kameralwissenschaften, Tubingen, 1816, 2d ed., 1820. ' George Friedrich Sartorius was bom 1766 and died 1828. After studying at Gottingen he was, in igo2, appointed by that University Professor of Philoso- phy, and remained in that position, although called to both Berlin and Leipsig as Professor of Kameralwissenschaft. 1 8 GERMAN WAGE THEORIES [314 these two factors. Lueder ' likewise uses only a part of Adam Smith, holding that wages will be above the minimum only when the funds from which wages are drawn increase. Kraus,° however, constituted himself the special interpreter of Adam Smith to the Germans; accordingly, his book read in connection with the table of contents is found to be not a word for word repetition of the " Wealth of Nations," but a good analysis of it. Thus his treatment of wages is made to include all -the main points of Adam Smith. Up to this point the German economists stated a necessary minimum wage; a new idea was originated by Lotz,^ who first stated the conditions of maximum wages. This is the begin- ning of a new and more fertile treatment of the subject. Lotz pointed out that competition could operate only within certain limits, the lowest limit being subsistence wages and the uppei- limit that point at which wages swallow up the profits of capi- tal. All economists since Lotz have observed some such limits. Rau was the first to elaborate the point. Rau + published the first edition of his Political Economy in 1826. The doctrine of wages formulated in the first editioh received scarcely any modification in the successive nine re- visions, of which the last appeared in 1870. Rau was the first great German economist to recast the science on the principles laid down by Adam Smith. He may, therefore, be considered ' August Ferdinand Lueder, born 1760, died 1819. He was Professor of History in Braunschweig, 1797, and in 1810 Professor of Philosophy in Gottingen, where he remained till two years before his death. He published in 1800-1804, Na- tionalindustrie und Staatswirihschaft. ' Christian Jakob Kraus, born 1753, died 1807. He studied at Konigsberg ahd Gottingen, and in 1780 became Professor of Practical Philosophy in Konigsberg, a place which he kept till his death. ' Johann Friedrich Eusebius Lotz, born 177 1, died 1838. He studied in Jena. He held many government appointments and was for a lime Professor of Law and Economics at Bonn. He published, in 1821, Handbuch der StaatswirthschafK- lehre. * Karl Heinrich Rau, born 1792, died 1870. 315] PREDECESSORS OE HERMANN 19 the founder in Germany of that individualistic school which Adam Smith founded in England. While previous writers, who may be called followers, were for the most part mere copyists, Rau makes departures in statement and analysis. He also attempts to adapt the matter to the conditions of his own country. Rau was the first to enunciate the doctrine that wages are only a special form of price. In this he is truly a predecessor of Hermann. To understand Rau's discussion, we must recur to his doctrine of price. Price results from the combined action of three forces: (i) the value of the exchang- ing good, (2) the cost of the exchanging good, (3) competition. Price cannot go higher than the value of the^ good to the buyer; it cannot go below the cost to the producer; it is de- termined somewhere between these limits by the relation of supply and demand. Turning now to his discussion of wages, the value of labor is regulated by the purposes for which it is applied. Iri most cases it is applied to secure a profit. When so employed, the undertaker is in a position to give high or low wages according to the amount of net product left over after other expenses are paid. It might go so high as to swallow up the pure profit of the undertaker, and even so high as to decrease interest and rent, but it cannot destroy them, because in that case undertaking must cease. But from the fact that even pure profit usually exists, it is evident that we need other determining principles. We take a further step in advance by applying the principle of costs to labor, which, in skilled occupations, includes sub- sistence and previous outlay for training; while in simple occupations, subsistence, broadly interpreted to include family support during the intervals of idleness, is the principal consideration. Costs are determined by (i) the usual manner of life of the laborer and his family in given conditions of climate, customs, and the degree of culture of the people as a whole, as well as that of the peculiar class to which the laborer may happen to belong; (2) the price of the •20 GERMAN WAGE THEORIES [316 •commodities which enter into the laborer's consumption list. In this way is determined the cost of production of labor. Wages cannot remain permanently below this cost, for in that case the supply of labor would fail. Here we have the limit to the fall of wages. The limit to the rise of wages has already been given. Between the limits there is a wide margin. The force that determines whether wages shall tend to the maxi- mum or to the minimum, or remain intermediate, is competi- tion : the competition of labor for capital and the competition of capital for labor. The supply of labor consists in the num- !ber of men who are resolved to work for wages and are seek- ing work. The demand for labor consists in the amount -of capital which is destined to be applied to the employment of laborers in profitable undertaking. If the population is very large in comparison with the amount of capital, then wages imay sink to the minimum or below it before correction >comes. In the opposite case, it may rise till reduced profits ^correct the tendency. In these views Rau differed but slightly from the English school as known in his time. Adam Smith and Ricardo both conceived a hypothetical price which they called natural, above and below which actual market price might fluctuate. Rau designated an upper and lower limit between which actual price might fluctuate. Rau's lower limit is really iden- tical with Ricardo's central point. The fluctuations in both oases are caused by the same influence, i. e., relation of supply .and demand. In designating the upper limit, as the value of the good to the buyer, the first step was taken toward regard- ing the influence of the consumer on price, which in the hands of Hermann developed into a theory designed to refute the wages- fund doctrine. There is one other respect in which Rau and the English school differ : as to the part of the theory upon which special emphasis shall be laid. After Ricardo makes the distinction between natural and market wages, he fiays almost nothing further about market wages. He seems 317] PREDECESSORS OF HERMANN 2t to have developed his system of distribution from the point of view of his conception of natural wages. If so, he would nat- urally lay greater emphasis upon it, as his readers would thereby the better understand him. In the passages in which he re- pudiates supply and demand as determinants of prices, he is to be understood not as denying their influence on market price, but as denying their power to determine natural price, in' which he is chiefly interested. It was not so with Rau Ricardo's determinant of natural wages became for him one of the limits of fluctuation and the determinants of the fluctua- tions assumed the central place. We might therefore expect from Rau a more careful study and statement of the principles of supply and demand in their application to the problem of wages. To say that wages depend upon the relation of supply and demand is to say almost nothing at all. We want some- thing more than a definition of the terms employed in one- short sentence. Such expressions as that, when capital is large in comparison with population wages rise, and when population is large in comparison with capital wages fall, are too indefinite, and bring in direct comparison things which strictly are incapable of comparison. The foregoing discussion shows that Rau is far superior to his German predecessors. But, in justice to them, it must not be forgotten that he wrote under the influence not only of Adam Smith, but of Malthus, McCulloch, Torrens, Ricardo, and James Mill. This is proved by the fact that in the first edition of his work on political economy, he makes frequent reference to these authors whose works had been translated into German or French. It is also proved by the fact that many of his general propositions are found in the English works. For instance, his remarks on the proportions betweerj capital and labor as determining wages are found in substan- tially the same form in James Mill. Any lack of economic analysis tending to mar the work of the early German economists is fully atoned for by the publi- 22 qERMAN WAGE THEORIES [318 cation in 1832 of Hermann's "Economic Investigations." This work marks a great advance on previous theoretical economic studies, and even to-day exercises considerable in- fluence on economic thought. CHAPTER II HERMANN ' Historically considered, the " Economic Investigations " of Hermann possesses a unique interest. Unlike Adam Smith, whose " Wealth of Nations " appeared at the end of a long career, Hermann began his extended activity in economic literature with the publication of the work by which he is chiefly known, and which won from Roscher the judgment that it placed its author " among the most eminent economists of the nineteenth century." To the reviewer of the progress of economic theory in Ger- many, the work marks an important advance. Finance and Administration were ably and independently treated previous to 1832. But of the many names which appear among con- tributors on pure Economics during the half century following the publication of the " Wealth of Nations," Rau is really the only one of note, and in power of analysis and independent thought he is much inferior to Hermann. That the work of the former was always more familiar to ordinary students must be admitted ; but that is due to the fact that Hermann's style is more difficult, while Rau's book has decided pedagogical advantages. It is to Hermann's credit that, living in a country which was then far behind England in commercial and industrial develop- ment, and hence behind her in the development of capitalistic production, and the advanced relations of laborer and em- ployer, he should have been the first to assail, with some 'Freidrich Benedikt Wilhelm v. Hermann, born 1795, died 1868. 319] 23 24 GERMAN WAGE THEORIES [320 measure of success, the wages-fund theory of the English economists, and substitute for it a theory which appears in nearly every systematic treatise on political economy in Ger- many since his day. I. In the early German wage literature there appears little to which Hermann is indebted. The numerous writers previous to Rau are either avowedly expositors of Adam Smith or mere copyists. He, however, owes something to Rau. Rau was the first German economist to treat wages as only a special form of price and to apply the general principles already evolved under his treatment of price to a solution of the prob- lem of wages. It is from this point of view that Hermann opens his dis- cussion of wages. According to both men, the general prin- ciple is supply and demand, but to Hermann this, so stated, means but little. We need to trace back the causal connection one step further. Taking the demand side first, there are three factors which determine price.' First, the individual value of the good to the buyer. Secondly, the buyer's ability to pay for the good. Thirdly, the disposition to buy as cheaply as possible; the buyer will therefore pay no more than the price reduced by the competition of the sellers. Turning now to the supply side of the problem. There are here, too, three factors. First, the seller must receive as much as the good has cost. Secondly, the disposition to get as much as possible; the seller will therefore get as much above cost as the buyers raise the price. Thirdly, much depends upon the exchange value of the means of exchange. If in the above principles we will substitute for seller, buyer and good, the words laborer, employer and labor, we shall have in outline the principles according to which wages are determined." ' Staatswirthschaftliche Untersuchungen, 1870, p. 390-459. ' Staatswirthschaftliche Untersuchungen, p. 460-487. 32 1] HERMANN 25 Unfortunately, Hermann never finished the discussion, hav- ing treated the subject from the standpoint of demand only. How he would have considered the problem of population under the cost of production of laborers we have no means of knowing. Although the treatment as we have it is defective, yet we may adopt a point of view according to which the ap- parently one-sided treatment may yield results. If we note that population does not readily respond to fluctuations in de- mand for laborers, we may assume the supply side of the problem as a fixed quantity. Then a correct statement of the principles of demand may yield the determinant of wages for short periods; i. e., assuming Hermann's method to be a correct one. Hermann's views may be conveniently considered under five heads. I. The first important question is, to whom, or to what class is labor valuable? who are the real buyers of labor? To these questions Adam Smith, Ricardo and James Mill had given the unequivocal answer, the employer of labor — the capitalist. But Hermann answered that the real consumer of labor power, and hence the class to which it has value, is the class which consumes the laborers' products. The nature of the case is not changed by the fact that the producer hires and rewards the labor directly, while the consumer is uncon- scious of the labor involved in the product. The consumer is nevertheless a buyer of labor. The undertaker is considered by Hermann a mere labor purveyor, a sort of consumers' agent, who for his outlay in wages seeks a recompense in the price of the goods made by labor. This doctrine, not elaborated, but rather treated as self- evident, is the foundation-stone of Hermann's theoretic struc- ture, and upon its truth or falsity will depend the soundness or weakness of his alleged contribution to this subject. n. While Menger properly has the credit of working out in detail, and tracing to some important result the conception of 26 GERMAN WAGE THEORIES [33? stages in the productive process, the idea is clearly suggested by Hermaon. Only a sipall fraction of the nunjber of laborers engaged in productive activities are employed in putting 01} th? finishing touches to commodities. Many are getting out the raw materials, and between miners and agripulturalists at on? end of the line, and labourers ministering directly to coq^ sumers' needs at the other, there are whole groups of laborers pushing along th? commodities from a lower to a higher stag.^ io the transformations from crude products of nature to the manifold refined forms suited to serve man's wants. Hermann makes use of the theory to establish a point which seems not to have attracted the attention of subsequent writers. Most theorists since Adam Smith have felt the necessity of distinguishing between particular and general wages. They considered that when they had determined a general law of wages they had not accounted for differences of wages in dif- ferent employments. Hence we have repeated so often both in English and German treatises Adam Smith's familiar points : wages in particular employments are determined by differences in agreeableness of employment, expense of learn- ing, trust reposed, etc. Hermann offers a different view when he proclaims a difference in wages according as the employ- ment is remote from, or adjacent to, the final stage. Bakers and butchers always receive higher wages than weavers, and ^hose are in the most unfavorable position who are laboring in the initial stages of production, as in mining and agriculture. The explanation of these alleged facts is that the final prod- ucts are subject to constant daily demand, and the dealer in such commodities can and must offer his laborers higher wages than he who produces what can remain for a consider- able time in one stage. The dealer in the intermediate prod- i^cts must make good his wage outlay in the price of the product, and in order to insure this he keeps wages at as mod- erate a figure as possible. All who purchase from him buy as q^ieaply as possible. This means that a constant pressure is 323] HERMANN 37 brought to bear on all those in the previous l^bpr steps tq lirnit the wage outlay. " Uppn all the production stages there rules the economic motive to furnish to the final purchaser a^ clieaply as possible the labor contained in the product." Th^ producer of the final product is; not so pushed, since hi§ com- qipdity is subject to pressing daily demand. In connection with this there is a subordinate point whic^l \i. \vorth mentioning. What are the general principles acco);d- ing to which a change of price of goods in the final stage will affect wages in the earlier stages? Hermann answers that: this depends upon the time during which the product delays, at a given stage. The shorter the time, the more sensitively will the rate of wages respond to changes in the stages above. It will also depend upon the readiness with which undertaker^ and laborers can betake themselves to other employment?, Sprnething depends also upon whether the raw material or the partly-manufactured product is limited to a definite uge, or is capable of several applications. III. Mere demand or desire is powerless to affect wages, unless there exists also the ability to pay. To know this, one myst know the source of payment. Adam Smith and hig immediate followers considered income and capital as the true sources of all payments for wages. Ricardo laid emphasis upon capital alone. Against Ricardo's view Hermann took ^ decided stand. A mere statement of his argument reveals strong feeling. Whoever would get the la,bor he needs or wants must have the means to pay. In the case of household servants it is plain that they are paid from income. With the fluctuation of incomes, fluctuates the effective demand for servants. It is eyident that to pay them out of the stock of accumulated wealth would be wastefulness. There is no labor which does not pertain to a last consumer. This is as true of labor, for labor contractors or undertakers, as of labor in direct personal service. However numerous the technical steps in the production may be, the finished product 28 GERMAN WAGE THEORIES [324. at last becomes an object of use, either temporary or lasting^ All the intervening steps from the beginning to the end have been taken for the sake of this ultimate use. And the final recompense for all previous outlays must find its source in the- payments for the use of these final objects. " Not merely all the labor applied to every labor step in producing the imme- diate product, but also the labor contained in the replacing: and use of all kinds of fixed capital, is at last to be made good by the payments which the ultimate consumer of the product makes."' The wage outlay of the last, as well as of all previous steps of manufacture, is contained in the price of the- final product. Capital cannot be the source of wage payment,, for if restitution out of the product fails, production and hence wage-payment must cease. If production were continued without reference to the final demand, the depreciation in value of the raw products would be a severe experimental demon- stration to the producer that his capital was not the source of wage payment. Hence we get the following result. The true- and continuous source of the compensation of production is the income of the buyer of products for his own use. Capital is only the help-means to production, not the source of reward. " It is unthinkable that wages depend upon the greatness of the disposable capital in relation to the number of laborers."^ It depends in the long run always upon the price which the active buyers can and are willing to pay for the product. " To hold that the source of wages is capital is not merely a theoret- ical error, but also in practical affairs is a doctrine of the most serious importance ; because it fortifies the laborer in the super- ficial view that the undertaker is his wage-giver, and that upon him depends the scale of his wages. If the laborer holds to such an appearance of the truth and becomes hostile to the undertaker, participating in acts of violence against him, there is no cause for surprise. That the doctrine of science should! ' Staats. Unters. , p. 473, » Ibid., p. 477. 325 ] HERMANN 29 strengthen the selfish procedure of ignorant laborers in strikes, by its doctrine that the source of wages is the capital of the '* entrepreneur,' shows the need for caution." ' IV. The two considerations, need of labor service and abil- ity to pay, are operative from the side of the " entrepreneur." But these are conditions which relate to but one of the contractors. It is obvious that in general under the regime of free competi- tion, whoever employs labor will not grant higher pay than the lowest at which he can obtain the appropriate service in sufficient quantity. How low wages may go is influenced somewhat by the competition of laborers. Unfortunately Hermann did not profess to have treated the wage question from the side of supply in any thorough manner. We do not find that he took account of numbers and the forces which determine them. He confined himself to a few remarks on forces which prevent the ready access of labor to the market. Long before Cairnes^ wrote on non- competing groups, Hermann had said that efficient competition in the labor ■market exists only between groups with approximately like technical skill. A man's power to compete is limited to the employments with which he has some familiarity. For an -entire group, the duration of this limitation is the time which the young generation requires to fit itself for a new occupation, i. e., an occupation differing from the one usual to the group. But the hindrances are not confined to those between ^groups ; even within the group there are barriers in the cost of travel; delays in changing settlement; reluctance to receive strangers; difference in speech and custom; the lack of ■sociability, and religious prejudice, etc., etc. V. So much for direct competition. But Hermann regards indirect competition as often more real and effective than direct. "This is the labor involved in competing goods. " It shows ' Staats. UnUrs., p. 478. ' Some Leading Principles of Pol. Econ. , p. 66. JO GERMAN WAGE THEORIES [326 itself in the quantity of foreign products sold, which necessarily Withdraws from our laborers just so much opportunity for labor as the foreign importations would have required on our part, had we made the goods." This withdrawal of opportun- ity to labor arises as soon as the foreign product can be sold somewhat cheaper than that produced with home labor."' If the home production is to continue, either wages must be lowered, or other changes in the conditions of production must be made. Hermann was well aware of the importance of the factors of production other than labor. Equal labor with him does not always mean equal efficiency. He adduces many ex- amples to show that the products of higher paid labor can hold the market against pt-oducts of cheaper paid labor. When Hermann wrote, wages were higher in England than irt Germany, yet cotton and iron were regularly imported into the latter country. The result was that the higher paid English labor displaced the cheaper paid German labor. He laid down the general proposition that those laborers can com- mand the market whose products can on the whole be sold cheaper.* It was clear to him that many elements besides Ivages must be taken into account in commanding a market. Cost of raw material, access to sources of power, facilities of transportation, efficient management and efficient labor are all of importance. When all these elements are given proper Weight, it is clear that it is possible for a country to command a market, and at the same time to pay high wages. It is equally true, however, that by inattention to conditions of pro- duction other than labor conditions, or by relative disadvan- tage with reference to these conditions, a body of laborers may be entirely defeated in their endeavors to raise wages by limi- tation of their numbers through lower birth rate. If the limited home supply of labor diminished the home product, there is no guarantee that prices will rise, since foreign com- petition may prevent it.' • Staatsw. Unters., p. 483. '■■ Ibid., p. 483. ' Ibid., p. 483. 327] HERMANN 3 1 II Hermann's treatment of indirect competition, at first sight, Seems to lend support to the chief contention of the protec- tionist in respect to wages. The free trade doctrine has en- joyed no slight advantage, in that it could quote in its support the teachings of nearly all the respectable economists for a cen- tury or more. It would be no slight gain if the authority of Hermann could truthfully be used in support of protection. While some support might be gained from him, it will appear from the statement given above that he was free from some of the commonest errors observed in the modern discussions of the tarifiT. It would be hard to find in his discussion support for the " pauper argument," unconnected, as it commonly is, with rigid investigations as to conditions of production other than labor conditions. It is too often assumed that " cheap " labor will inevitably displace more highly paid labor. Accord- ing to Hermann's view, pauper labor, far from being a danger- ous competitor of better paid labor, might easily be displaced by the latter. The real importance of indirect competition, then, lay in the fact that such competition was made possible by various favorable conditions of production. By this means capital might be the laborer's most relentless competitor, thus rendering useless his efforts to better his condition by limiting his numbers. The treatment of direct competition is open, of course, to the charge of inadequacy, but this is true of all beginnings. It is less to Hermann's discredit that he did not complete the theory, than it is to his followers, that they ignored the theory altogether. The objections which have been urged against Cairnes' idea of the limits of competition in group arrangement may be urged against Hermann's idea. They may both have truly described conditions at the time, but the extension of machinery and modern methods of production makes modifi- cation necessary. Both writers appear to have had in mind principally a sort of contingent, not an actual, competition. It 32 GERMAN WAGE THEORIES \_l'2.'it depended upon the transference of the young from the occu- pation of parents to other kinds of work. The theory was in- tended to answer the question, What is the force of a man's competition if he tries to change his occupation ? It did not determine actual competition should a man remain in his occu- pation.' On Hermann's part the doctrine was negative. This is due to the fact that he did not complete the study as we may suppose he had planned. His idea that wages are high or low according as the labor is near to, or remote from, the final stage of production, is new and interesting, but does not seem to have large support from facts. By comparing wages paid in the earlier stages of pro- duction with those in the later, facts could be found which would seem to support a directly opposite conclusion. He points out no limited special talent as necessary to perform the labor near the final stage. He notices no obstacles to com- petition in the final group which do not apply to other groups. He provides for competition in all the groups from the new populations, and it does not appear clear why in a few generations migrations from other groups would not reduce wages to a general level for like skill. If there were reasons in general economic conditions why the highest wages could be paid for work on the final stage, and it were actually offered, there would be a tendency to overcrowd those occupa- tions, a tendency which would result in reducing wages to the level of pay in other occupations. The most interesting point, and certainly the most import- ant for later developments of wage theories in Germany, is Hermann's treatment of the wages-fund theory. But this point is so intimately connected with the teachings of Hermann's successors that a discussion of it will be deferred till the group to which Hermann belongs is brought under review. 'J. B. Clark, Limits of Competition. See Clark and Giddings, Modem Distributivt Process. CHAPTER III HERMANNS SUCCESSORS There are a number of economists who are the followers of Hermann in the sense that they are influenced by his teach- ings, but Brentano is one in the sense that he made additions to Hermann's theory. Although Brentano has made several contributions to the subject in recent years, nothing more fundamental has appeared on his theory of wages since he published the essay in Hildebrand's Jahrbiicher, in 1871, on " Die Lehre von den Lohnsteigerungen mit besonderer Riick- sicht auf die englischen Wirthschaftslehrer.'" This is a criti- cism of the English views on wages, in the course of which his own ideas are made apparent. The central point of his criticism is his opposition to the fixity of the fund involved in the doctrine of the wages-fund, as taught by the leading economic writers up to that time. He exonerates Adam Smith from the imputation of having conceived the fund as a fixed quantity; for, although he was the first to use the word, fund, and to speak of it as a source of wages, when capital and land are introduced as claimants of a share in the production, wages no longer correspond with total production, and from this point on, are not conceived as fixed by the amount of a fund. Having placed Adam Smith to one side as not open to criticism on this point, Brentano proceeds briefly to show that when other economists thought they were basing their doc- trine on a fixed fund, they were mistaken. Ricardo's doctrine of the relation between wages and profit assumes a fixed amount. At the same time his theory of the standard of life ' See yahrliicRer fur NationaloekonomU, i Folge, vol. xvi, pp. 251-281. 329] 33 24 GERMAN WAGE THEORIES [330 as determining wages makes fixity impossible, depending as a standard does upon the laborers' subjective measure of life- needs. This charge, however, of a lack of consistency be- tween two parts of a theory does not seem to be well founded, from the fact that so far as Ricardo considered the standard of life as determining wages, it was a minimum standard which he had in mind, and this he conceived as constant for long periods. Brentano also denies Senior's claim to have estab- lished the fixity of the fund upon a scientific basis. According to Senior, the wages-fund depends upon the relation in which the entire product is distributed between laborers and capital- ists on the margin of cultivation. This relation depends upon the rate of profit, which in turn depends upon the surplus above the cost of labor. In short, the fund which determines wages is itself determined by wages. John Stuart Mill is as little successful as the others in establishing the fixity of the fund. Having placed certain limitations upon the terms em- ployed. Mill holds that wages depend upon the relation of population and capital. He further states that they cannot be affected by anything else. " Wages cannot rise, but by an increase of the aggregate funds employed in hiring laborers, or by a diminution in the number of competitors for hire; nor fall, except either by a diminution of the funds devoted to paying labor, or by an increase in the number of laborers to be paid.'" He here assumes a certain degree of fixity, but Brentano points out that Mill's idea of capital allows very little definiteness to the fund, since he made the distinction between capital and not-capital to centre wholly in the intention of the owner. Human intention as to the particular employment of wealth is too changeable to allow fixity to be predicated of its object. For instance, the ordinary exigencies of life may re- quire that what to-day was intended to be devoted to the em- ployment of labor may to-morrow be spent on a journey. An ' Principlti of Political Economy, Book ii, ch. xi, § i. 33 1] HERMANN'S SUCCESSORS ^^ increased demand for goods might easily chatlg6 the wages- fund by a change in the mind of the capitalist as to the destin- ation of wealth in his possession. Thornton discussed at considerable length the possibility of an increase of wages, either at the cost of consumers by com*-- pelling them to pay higher prices for commodities, or at the cost of employers through a diminution of profits. He argued- that it could be at the cost of consumers only if there arose ar- relative increase of demand for consumable goods, or a relative-" decrease of product by monopoly. According to ThorntoriV view, in whatever way consumers are forced to bear the bur- den of the higher wage in one branch, it will be found that their power of demand for other commodities has been propor- tionately weakened, and thus laborers in other branches suffer a corresponding loss. It is evident that, if we entertain Thorn- ton's view, although we may not hold to a fixed wages-fund, we really substitute for the latter a fixed income-fund, and must admit the truth of the opinion held by the wages-fund theorists that one class of laborers can increase their wages only at the expense of another class. Brentano holds that Thornton has here made a mistake, which consists in not suf- ficiently analyzing the changed economic conditions of laborers as consumers, brought about by a rise in their wages. By as- suming a fixed income, it is true that by so much as income is allowed to expand in one direction it must contract in an- other. But Brentano continues to argue that by the very con- ditions of the supposition, the laborers' income is not fixed, but increased. Therefor, in their case no contraction is necessary.. Furthermore, the extra demand upon the incomes of others- by increase of price is exactly counterbalanced by an increased wage or purchasing power on the part of laborers. Hence ani increase of wages, by the method supposed, is not a detriment to other laborers, nor is it inimical to national accumulation, if secured at the expense of employers, for by as much as capi- talists have less inducement, laborers have greater power to save. ,6 GERMAN WAGE THEORIES [332 So far the work of Brentano seems to be purely negative, but taken in connection with his position in regard to the source of wages, both ultimate and proximate, it is enough to show the trend of his thinking. His ideas as to the source of wages is made clear in the article in the Jahrbiicher, and in some of his later works.' The capitalist secures control of laborers^ products by supporting laborers out of his capital. In what- ever form it may come, there is the purpose and expectation that the value will all return to the capitalist out of the income of the consumers of his product. Since what consumers offer is no settled amount, the wages-fund theory overlooked the "possibility of rolling off upon consumers the higher wages demanded by coalitions ; it overlooks the fact that an employer will always be ready to expend more capital in the payment of wages as soon as the consumers replace for him the sum expended thereon, and that in such a case it will always be possible for him, if he himself has no more than a certain capi- tal, to procure capital by borrowing abroad." ° We see how closely he follows Hermann in admitting the entrepreneur's possessions as the immediate source of wages, but denying that they perform the important function assigned by the wages-fund theorists. The capital of the employer is the source of wages in the first instance, but the employer himself is only a link in the chain, and that a very dependent one ; for consumers control the situation. If the latter show willingness to consume at remunerative prices, capital can ex- pand to an unlimited amount by anticipation under our credit system. This view necessitates the surrender of the idea of a fixed wage-fund. The effective criticism of that postulate of English political economy is the important contribution of Brentano to this subject, based as the criticism is upon Her- mann's positive contributions. Hermann's criticism consists largely in an interpretation of economic organization, as related 1 See Relation of Labor to Law, p. 214. * See below, p. 37. 333] HERMANN'S SUCCESSORS 37 to the laboring man, which made necessary a different view of the nature of the " fund " from that of the English school. Brentano was not content with this, but pursued the enemy into his own camp. He showed that, as judged by the very writings of those who championed the doctrine most strongly, it must suffer discredit. From his criticism of Ricardo and Mill, as of others, it is clear that Brentano does not believe in the fixity of the wages- fund. But his account of the manner in which the capital in employers' hands, which he regards as the immediate source of wages, can be changed in amount, shows that there are definite limits to the fluctuation of capital. One common method was shown by Brentano in his criticism of Mill. An employer might change his mind. But while this might affect to some extent the fixity of the funds of an individual capitalist, it becomes of less importance when applied to capitalists as a class, for an average change of intentions by a large number of employers might result in something approaching a con- stant. The same remark holds for the other cause — the use of credit. If an individual capitalist is in mind, there may be some truth in the possibility of increasing wage-paying power by credit, but when applied to all capitalists the use of credit for such purposes has definite limits. In general, we may say that Brentano's criticism of the English economists makes clear his view that the source of wages is elastic, and that his treatment of Thornton's opinions shows that Brentano regarded as possible an advance of wages to workers in one branch of industry, without necessity of loss to workers in other branches. Yet the whole treatment fails clearly to distinguish between the operations of individual capitalists and the operations of capitalists as a body. Roscher's contribution is rather insignificant. As usual with the Germans, he opens the discussion by assigning to supply and demand the highest importance. Each element is considered by itself in the discussion. The supply of labor is 28 GERMAN WAGE THEORIES [334 determined by the prevailing standard of life. And since the standard is determined by laborers, therefore the supply of labor is determined by laborers. Thus one important factor of those which determine wages is under the control of wage- receivers. Roscher seems to have understood the real signifi- cance of this fact without assigning too much importance to it. It is not true, of course, that present laborers have control of present supply. To say that laborers have control of labor- supply can only mean that present laborers can control future supply. How important this may be as a basis for shifting upon laborers the responsibility for their own condition, de- pends upon how thoroughly we hold to the solidarity of labor as a sort of corporate responsibility by which the present gen- eration is held responsible for the doings of the past genera- tion. Responsibility is of two kinds, natural and moral. Natural responsibility for past errors, either of themselves or of their ancestors, laborers cannot escape. The sins of the fathers are visited upon the children. But the moral respon- sibility for the errors of a former time cannot be ascribed to the present. But the case may be different in respect to the accountability of the present for the future. It is certain that, physically speaking, the supply of the laboring population twenty years hence will depend upon the action of population for the next ten years. But there is nothing in the nature of things that could indicate what laboring population is neces- sary twenty years hence. So that present increase is based upon present conditions, and the future must take care of itself; just as past conditions determined past increase, and the present must deal as best it can with numbers such as they are. Although Roscher does not enter at all upon this line of reasoning, he sees enough to admit that labor's control over its own supply has this limitation : that the laboring class as a body can benefit by it only after long periods of time, and that for the moment the control is of slight advantage, because the whole present supply must be carried to market for support. 335] HERMANN'S SUCCESSORS 39 Demand, according to Roscher, depends upon the value in use of labor and purchasers' capacity to pay. While the standard of life fixes minimum wages, value in use determines maximum wages. Under value in use he merely approves v. Thunen's point that additional product in any branch of in- dustry, due to the labor of the last workman employed, has a controlling influence on the rate of wages. He connects capacity to pay in a vague way with national income. In this it is easy to trace the influence of Hermann. But the points, when not fragmentary, are confused. Hermann is also fol- lowed in the opinion that the capital of the employer is not the source of wages, but acts as a sort of reservoir for the payment of wages. Demand for labor does not depend upon the size of the national capital. This view is supported by calling attention to the effect of the different uses of capital upon the demand for labor. " Every transformation of circulating into fixed capital diminishes the demand for other labor.'' " Only that part of circulating capital can affect wages which is intended, directly or indirectly, for the purchase of labor.'" He likewise follows Hermann in the view that the highest wages are paid to those who are employed on the last stages of the productive processes. This is enough to show how little of originality is to be found in this part of Roscher's work. At the same time it is enough to indicate his proper historical place on the question of wages. The method is that of Rau and Hermann, while the ideas are mostly those of the latter. While the treatment is much weaker than that of the one from whom he chiefly draws his material, the inclusion of von Thunen's undeveloped doctrine of the influence of marginal laborers on wages, having no organic connection with other parts of Roscher's work, implies, in addition, a careless attitude of mind on the whole question. Mithoff'' seems to have adopted Roscher's treatment as an ' Roscher, Pol. Eton., v. 2, p. 55. ' See SchSnberg's Handbuch der PoHtisehen Oekonomie, 40 GERMAN WAGE THEORIES [336 outline for his own discussion. The standard of life, the ele- ments of which he states in detail, here also determines mini- mum wages and is treated under supply, while the usefulness of labor and money demand (Zahlungsfahigkeit) determine maximum wages. The larger part of his treatment comes under ability to pay, and is hence an attempt to give a more precise determination to the wages-fund. It must be confessed that the exposition is somewhat hackneyed. The capital of the employer and that of others over which he has control by means of credit is a reservoir for the payment of wages. What flows out of the reservoir in the form of wages is restored by consumers of the goods produced by labor's help. Hence consumers are the buyers of labor, and their income, or that portion which is paid to labor, is the true source of wages. This is, however, not a fixed amount in the sense that it re- mains fixed during a productive period as it was at the begin-" ning. At any moment it is a fixed, but not a foreordained amount. If at any moment we divide this amount by the number of laborers, the quotient is the average wage. How- ever, Mithoff shows his practical turn of mind and his agree- ment with Brentano by asking what purpose such a procedure would answer. The amount of capital, however, applied to the purchase of labor is unknown. If it is a certain sum to-day, by a change of rate it is a different sum to-morrow. A change of rate is possible by a transference of part of the profits to wages, or by drawing more heavily upon consumers. " If neither of these assurnptions can be made, then the under- takers will not apply a greater amount of capital to the pur- chase of labor. In this case, certainly, the average rate of wages remains dependent upon the capital which the under- takers determine shall be applied to the purchase of labor." However, the amount is not made unchangeable during the production period. How much of the national income is ap- plied to payment of wages depends upon two factors : the first is direction of consumption ; the second is the character of produc- 337] HERMANN'S SUCCESSORS ^i tive industries. " If consumption seeks preponderatingly for such goods as require for their production much human labor^ a greater part of the national income is required for the pur- chase of labor than would be required if such goods were con- sumed which required less labor and more capital and a larger draught upon nature's powers." If we suppose an in- crease of total capital the evolution of technical branches of production will promote a more universal application of capital and a diminished use of human labor. We perceive that Mithoff' s views are for the most part such as we find in the works of his predecessors. We have supply and demand as the great law, supply as connected with cost of labor, demand for labor as connected with its utility, and lastly consumers' income as the true source of wages, which is but a repetition of Hermann's view. How much consumers contribute to wages depends, he says, upon the direction of consumption and the character of productive industries. If consumption takes the direction of demanding goods chiefly made by labor, wages tend upward ; or, if the state of the arts is such that what is demanded is made largely by machinery ,^ human labor is displaced and wages tend downward. The comments of Professor Taussig' on this point are so admirable that I shall be pardoned for quoting him. After pointing out that this reasoning as to the direction of consumption is derived apparently from Roscher, who states that the demand for unskilled labor is much affected by the direction which con- sumption takes, being greater if the luxury of the rich takes the form of hiring many dependents, and less if expenditure takes modern form, he continues ; * * * " The whole consid- eration of the direction of consumption as affecting wages, the discussion of demand for hand-made goods or machine-made goods * * all goes back to consumers' demand or income as the source of wages. It can really bear, therefore, only on the 1 Quarterly Journal of Economics, v. 9, p. 19, 42 GEKMAN WAGE THEORIES [338 demand for one sort of labor as compared with another. * * * The form which it takes with Mithoff, and apparently with Roscher, overlooks the simple fact that machines are made by labor, and that a demand for machine-made goods affects, not the total demand for labor, but the direction of demand (say) towards laborers who make and tend shoe machinery rather than towards old-fashioned cobblers.'' There is a good deal in Mangoldt to remind one of Senior, both in spirit and in treatment of the subject. Senior, how- ever, did not employ such terminology as to obscure rather than illuminate his text, nor did he cumber the treatment with such barren analysis. Mangoldt's teachings agree for the most part with contemporary English political economy. This is seen most clearly, perhaps, in his treatment of the wages-fund. The supply of the means of support of labor is said to constitute the demand for labor. This supply makes up the greater part of circulating capital. For theoretical purposes, says Mangoldt, we may treat circulating capital and means of support of labor as identical, and say that wages are determined by the relation of circulating capital to labor supply. But this comes dangerously near saying that wages are determined by the relation of labor supply to wages. This declaration so lacks in scientific precision that it may not be improper for Professor Taussig to say that Mangoldt " gives the subject a wide berth." His fragmentary treatment may be exemplified by the fact that, like Roscher, he merely ap- proves one of von Thiinen's most important points, but makes no use of it in further discussion. He says the demand for labor proceeds from employers, and can continue only so long as the service of labor surpasses in value that which the em- ployer pays in the form of wages. Since employers apply labor to the most productive parts of their business, and only have recourse to less productive parts as more labor is employed, it is possible to say that the wages which secures equilibrium between supply and demand is of like im- 3 ^9] HERMANN'S SUCCESSORS 43 ■portance with the anticipated pure return of the labor last .applied.' The treatment of our subject by Philippovich" is of interest because he endeavors to give a systematic account of Political .Economy as it now stands. He does not represent any economic school, but tries to retain the best from all writers, -and thus exhibit a progressive science. His method is thor- oughly German, following as he does Rau and Hermann in treating wages as only a part subject, under price of commodi- ties. If faithfully followed, this method insures the inclusion in the discussion of all the important commercial influences ijpon wages. To avoid error, however, it is necessary to notice in what respects labor differs from commodities. Philippovich escapes this error only in part. He merely mentions the laborer's relations to the thing which the laborer sells. Since the laborer cannot separate himself from his labor-power, and the fulfilling of the labor contract involves the use of the man, the wage-question involves more or less the physical, moral, spiritual and social welfare of wage-earners. These non- material elements of the problem affect the practical working out of the forces of supply and demand. In critical periods of the relation of employers and employed, the local bonds of ■workmen preventing movement, as well as lack of accumulated means of support, operate against them. The ease with which -employers organize, and their command of the supplies of life, -give them the advantage in the struggle, and as a conse- quence laborers are apt to suffer in their rate of wages. These are obvious considerations, and were well expressed long ago by Adam Smith. The peculiar bearing which they ought to have upon the method employed by nearly all the economists of the group now under consideration, will be .noticed when we have finished the exposition of Philippovich's ' Grundriss der Volkwirihschaftslehre, p. 158. ' Grundriss der Politischen Oekonomie. 44 GERMAN WAGE THEORIES [340' views. Philippovich follows Hermann in the manner in which he examines the forces of supply and demand. On the side of demand we have (i) the number of undertakers; (2) the amount of service desired by them ; (3) their valuation of the service ; (4) their ability to pay. On the side of supply we have (5) the number of those desiring work ; (6) amount of service demanded of workers; (7) laborers' own valuation of labor power ; (8) value of money paid for labor. I. The influence of the number of employers, says our author, lies in competition. The more employers there are, the more will wages have a tendency to rise. From this- point of view it would seem that laborers' interests are inimical to the concentration of industry. If this be true, laborers have a discouraging prospect ahead. But our author does not hint that laborers have any control in the matter. Whether a country shall have a large or small number of employers depends upon many conditions, he says, among which are the degree of culture, distribution of wealth, the or- ganization of credit, and the manifoldness of the directions of production. None of these is under the control of laborers. II. The amount of labor which is sought for in the general labor market is determined by the amount of land and capital which the owners employ in productive industry. The- strength of this labor demand is much affected by the distribu- tion of wealth and the productivity of wealth. Individuals who own large amounts of wealth apply a larger proportion ta direct satisfactions than those who have small possessions, since the latter are more strongly moved to the increase of income. Concentration of wealth, then, in the hands of single individuals is a hindrance to the demand for labor. If wealth has become less productive, there may be increased activity in productive enterprises, since decrease of income leads many individuals and families to increased effort to bring incomes up' to a former standard. Since the opposite is likewise true in the case of other individuals and families, the demand for labor is affected by fluctuations of income from investment. -341] HERMANN'S SUCCESSORS 45 III. Labor is valued by undertakers, not in itself, but in its products. The price of products, however, gives us slight indications of what wages are or can be, since price must cover -all costs of production, of which wages may be but a small part. The highest amount which can be paid will be much affected by the price of products in connection with the extent of the market, the technical skill of workmen, and the relation -of efficiency to wages. Philippovich lays emphasis upon laborers' responsibility. Under normal circumstances, the most important element operating in the laborers' favor is the personal element. It is only by greater skill, greater industry, -and greater care that their condition is elevated. IV. Under "Ability to pay," little is said by this author. While accepting Hermann's view that undertakers stand be- tween laborers and consumers of laborers' products, and that their ability to pay is affected by what consumers pay, he yet points out that undertakers may replenish their fund of dispos- able wage capital by means of credit. But how this fact may affect wages is not made clear. This is a point which has been mentioned by both Brentano and Philippovich, but has fceen left undeveloped by both. V. To understand adequately how laborers compete with each other we must perceive that industry is carried on in branches and laborers are divided into groups, separated more •or less completely by differences in skill, special aptitude and training. However, there are in all branches of industry oc- •cupations which require only ordinary skill or intelligence and hence can be filled by the common laborers of all branches. Here exists almost complete competition and the lowest wages prevail. As we ascend in the scale of skilled and special em- ployments up to the liberal professions, we find more and more important the group formations. Even in groups there are forces at work which tend to break down the barriers to ■competition. One such force is the existence in modern times of octended enforced idleness. Such idleness, not accidental but 46 GERMAN WAGE THEORIES [342- largely the result of the unsteadiness of industrial evolution, im- pels men to seek new employments, thus breaking down former^ group arrangements. There is always a readjustment of employ- ment after an extended period of enforced idleness. Under cer- tain exceptional conditions there are natural limitations to com- petition. When unoccupied land is plentiful competition will- cease at the point where wages sink to the level of what labor can make on such land. But this is not the law under ordi- nary circumstances. The openings to labor without capital are small in number. As a rule labor power without capital has no value to its owner. VI. By the amount of labor offering service our author does not mean the number of persons seeking work. That is measured by the labor power and skill of laborers and the number of hours during which daily its labor power can be- active. The only point made under this head beyond the fore- going definition is that relating to the correspondence between time and service. Up to a certain point as the hours of the working day are shortened the quality of the service per hour increases. No attempt is made to determine this point, but it is brought out that if this point of maximum service is passed in the direction of shorter hours, the effect is the same as if the number of workers were decreased. VII. The laborer's valuation of his labor power may be affected by two circumstances. Under the exceptional con- ditions of the existence of large quantities of fertile unoccupied land accessible to laborers, wages cannot sink below the in- come obtainable by the laborer in independent undertaking.. But under ordinary conditions the opportunities for independ- ent undertaking without large capital are insignificant, so that from this standpoint labor pqwer has no value to the owner. A basis for its valuation is found by recognizing the personality of the laborer. This appears by reason of the cost value of labor and the standard of life. The cost of labor is not so simple as might at first appear. Even a narrow view must 343] HERMANN'S SUCCESSORS 47 include in addition to support during the time of work, costs of bringing up and development of the laborer, support during the period of old age, and a reserve as a provision against sickness and other causes of loss of employment. But the laborer as a human personality is more than an individual. He is also the father of a family; and no fair judgment of the value of labor can ignore that fact. That it is so often ignored is accounted for by our author by a reference to the strong competition of labor, and the admittance of women to men's employments. The question of costs is much influenced, whether as an individual or the head of a family, by the standard of life, which is defined as the expense which one is induced on the average to incur for the satisfaction of wants, in accordance with the habit and custom of the group to which one is attached by his calling ; or shortly, support conformable to one's rank. This differs so much according to peoples, times, and places, that it is impossible to reduce the standard of life to any law. In general it may be said that much depends upon the position accorded to the laboring class in society and political life. The different amount of contact with other social strata and the means of culture become of prime importance. Of course, the standard of life is a powerful force among all classes of society ; but that of the laboring class has a special interest to students of society, because the integrity of the standard has a more or less precarious support in their case, and a failure to maintain it may mean a real degradation. It is because laborers are affected in their social position and their respectability that such fierce opposition is made to wage reductions. It is only by raising the standard of life that we can have a permanent rise of wages. VIII. Wages may be said to be affected by money in that wages fall if money increases in value, and vice versa. The cause is a double one. If money becomes dearer, other things, including labor, become cheaper; but in the face of a falling market, production tends to diminish, and thus the demand for ^8 GERMAN WAGE THEORIES [344 labor is lessened. It will be noticed that this argument for the most part applies to money wages only, and, indeed, the treat- ment thus far contemplates no determination of commodity ■wages. The entire treatment by Philippovich may be summarized as follows : Wages are determined by the combined action of the following forces : i. The competition for labor is greater, the larger the number of employers. 2. The demand for labor ■depends partly upon the amount of land and capital which the owners employ in productive industry. This employment is favored by small owners. 3. Labor is largely valued accord- ing to the efficiency and skill of workmen. 4. The power to •employ labor is affected by the degree in which undertakers ■can restore capital either from consumers' incomes or by the use of credit. 5. Laborers are limited in their competition against each other by social and industrial group arrange- ments. 6. The labor supply is influenced by the length of the -working day. 7. Wages, in many instances, are largely de- termined by what laborers can make in independent undertak- ings, although ordinarily there are no lucrative independent undertakings open to them. 8. The standard of life is an ever active powerful force affecting the supply of labor. These will be recognized as important elements, but the analysis would be much more complete if some attempt were ■made to measure the relative importance of the factors. Under given circumstances, some factors are peculiarly active, while others are quiescent. If we are not to be confused by a mass of meaningless details, we must know these facts. There are still two points under dispute which Philippovich ■discusses briefly. They pertain to the effects of a supposed rise of wages. I. May wages rise at the cost of the undertakers? To answer this question intelligently we must analyze the under- taker's income. It is in the aggregate composed of (i) wages of superintendence, (2) interest, (3) profit. A rise of wages at 345] HERMANN'S SUCCESSORS 45 his cost would affect him, therefore, either as leader, capitalist, or speculator. We may assume that his first two functions cannot be affected by this cause except through the last. If a rise should occur at the cost of profits, the undertaker would be in a more unfavorable position than the ordinary capitalist, for the latter includes in the rate of interest insurance against risk. Such a position he would not endure permanently, and the only reason he might temporarily would be the inability to withdraw his capital. Moreover, no one would embark in industries in which such conditions prevailed, so that in course of time production would decline, and with a rise in price profits would become normal. There are certain kinds of industries in which wages might rise with no unfavorable effect upon profits. Such are certain forms of monopoly, or industries for whose products there is a rising market, or those in which the costs of production de- crease more rapidly than wages increase. In such cases the advantages could be appropriated by labor only through com- bination. Labor unions, as instruments to keep wages from falling, are beneficial under certain circumstances, both in competitive and monopolized undertakings. In the first, to prevent undertakers from lowering wages under the stress of competitive pressure among themselves ; in the second, where there is no pressure of competition, to force those to allow better conditions who can but will not voluntarily do so. II. It has sometimes been said that if wages should rise at the cost of consumers, laborers would be sufferers in the end. The argument is that by so much as prices rise, consumers, having fixed incomes, must curtail their consumption. This means a weakened purchasing power in certain directions, resulting in a decrease of production and a falling off in the demand for labor power. But this is a point to which Brentano paid special attention, and Philippovich, without mentioning his authority, employs Brentano's argument. It is simply that any loss of former consumers' purchasing power is fully made JO GERMAN WAGE THEORIES [346 up by the new additional purchasing power of laborers whose wages have been increased. Philippovich, however, did not fail to notice that, if prices were increased by a rise of wages, laborers would lose a part of their wage advance by having to pay higher prices for consumption goods. He at the same time pointed out that they would not lose all their advance, since a part of the burden of higher prices would be borne by capitalists, land-owners and professional men. The discussion of these two questions becomes clearer by noticing the views of Thornton, whom both Brentano and Philippovich are either following or criticising. Brentano would naturally consider Thornton, for his article in Hilde- brand's Jahrbucher was devoted to a study of the doctrine of wage increase. Philippovich took up the discussion doubtless because he felt that no systematic work on Political Economy would be complete without it, although he had nothing espe- cially new upon the subject. Thornton' desired to determine whether trades unions could be instrumental in securing for laborers a permanent advance in wages above what would be secured without union action. He was met at the beginning of the discussion by the objection that whatever the unions might succeed in extorting would either have been granted eventually without union action or could not be lasting, according to circumstances. The first objection was supported by the contention that if labor organizations should force a wage advance in some par- ticular trade, at a time when business was improving and profits abnormally advancing in that same trade, it would be but to an- ticipate what must occur later by forces purely economic when capital should be attracted to that trade by reason of the extra- ordinary profits prevailing. The advent of new capital would cause an increase of demand for labor, and wages must rise in consequence. Thornton admitted the force of this argument, 1 On Labour, p. 279-321. 347] HERMANN'S SUCCESSORS 5 1 but claimed that unless the unions intervened at the beginning of the process the employers would pocket the whole advant- age during the time preceding the advent of competition. Furthermore, if laborers waited for competition to raise their wages they would suffer loss, for increased production follow- ing competition in production would lower prices, and thus the source of higher wages would be partially cut off. This point Philippovich also notes. So much for the efficiency of union action in case profits are above the general level. The second objection that higher wages, extorted at a time when profits were at an equilibrium or were below the general level, could not be permanent, Thornton denied for the greater number of cases to which the rule was applicable. Unionism can raise wages permanently in the following cases: (i) Those in which there exists monopoly, for prices can be raised against consumers to meet the increased cost. (2) Those in which, whether monopolized or not, the demand of customers is increasing. Prices may be raised. (3) Those in which economizing machinery and processes are being introduced. By these means laborers are more efficient and a greater num- ber of products at old prices is as beneficial to employers as the same number at higher prices. (4) A rise of wages is also possible if all trades were united in a combination so that an equal and simultaneous rise of wages would produce a uni- versal fall of profits. In this case, capital having no place to which to flee for relief, must submit. There are other cases mentioned, but these are the more important. In all the cases mentioned above, except the third, higher wages are obtained only at the expense of undertakers or consumers. Indeed, Thornton lays it down as a general proposition that wages cannot rise except as prices rise or profits fall. Hence it be- comes important to enquire : in all cases in which unionists are the gainers, who are the losers? This is, of course, a difficult problem, since all are consumers. We shall indicate briefly Thornton's answer, as it is to his 52 GERMAN WAGE THEORIES [348 Answer that the German economists take exception. He says )4hat this will depend upon many circumstances, the important .ones being, whether the gain has taken place in a competitive ^r in a monopolized trade, or whether it has taken place during a ^stationary or a progressive period. We will simply notice here the case of monopolized industries. If the rise occurs in such an industry in a prosperous period, employers are not injured, for they can raise the price. Consumers are the only positive losers ; for, although they may be compelled to pay more for one class of commodities than formerly, they may still be able to spend as much as before on the produce of other trades. In that case laborers in general would not be deprived of anything tthey were accustomed to ; " they would merely be excluded from participating in unaccustomed gains of which otherwise they would have had their share." If a rise in wages is forced in monopolized industries during a period of stagnation, consumers are not the only losers. The main body of laborers, excluding those laborers the rise of whose wages is contemplated, are injured by the fact that .the unionists have intercepted an amount of money which would otherwise have been expended in the purchase of com- modities which the main body of laborers produces. In a stagnant period, incomes are regarded by Thornton as fixed ; therefore, if the producers of one class of goods succeed in absorbing more than the former usual share of consumers' income, less remains for expenditure in other departments of trade. The curtailment of expenditure in these other direc- tions diminishes demand for goods in these trades, and thus laborers employed in these trades are injured. Thus Thornton regarded the gain to a particular group of laborers under the circumstances noted above as offset by a double detriment ; first to consumers, whose consumption was thereby curtailed, and secondly to the general body of laborers, the demand for iwhose products was thereby diminished. This is the point to which both Brentano and Philippovich 349] HERMANN'S SUCCESSORS 53 object. As already noticed, they call attention to the increased purchasing power of the group of laborers whose wages by supposition have been increased. They would admit that con- sumers of the products whose price has been raised are suf- ferers, but they deny that the general body of laborers are necessarily affected. The aggregate demand for goods has not decreased because one class of consumers has benefited at the expense of another class. Laborers whose wages have been increased are more extensive consumers than formerly. They now possess an augmented purchasing power just equal to the diminished purchasing power of consumers affected by higher prices. The conclusion then is that when wages have been increased at the expense of consumers, the consumers; are the chief sufferers, and that the general body of laborers are not affected by a diminution of demand for commodities. This view would doubtless have been admitted by Thornton if his attention had been called to it, for on its face there does not appear any reason why the general labor market need suffer because purchasing power has been transferred from one class of laborers to another. If Philippovich corrected one of Thornton's errors, he did not avoid falling into another one of the same author. They both teach that in case of monopoly a rise of wages may occur at the expense of consumers. Both assume that monopolies have such control of the market that they can raise prices to meet extra expenses; thus there can be shifted upon con- sumers the burden of a higher wage cost. But if monopolists can increase prices to their advantage after a rise of wages, the question forces itself upon us as to why they could not do it before the event. Since precise studies have been made of the relation between the price of monopolised goods and monopoly profits, it seems clear that monopolists possess no power to shift upon consumers the burden of a higher wage rate. Monopolists always charge the highest price consumers are willing to pay. The principle of charge from the monopolist 54 GERMAN WAGE THEORIES [350 standpoint is the establishment of such a balance between costs and gross income as shall yield the highest net return. In general, the number of consumers of a particular good varies inversely as the price. An increase of wages constitutes an expense chargeable to an undertaking as an undivided whole, and is not one which varies with the amount of the commodity produced. Such a charge must be borne by the monopolist, for if he attempted to escape it by raising prices, consumption would be diminished so that the monopolist's net income would be decreased. CHAPTER IV CRITICISM It is proposed now to discuss briefly two points pertaining to the work of this entire group, the centre of which is Her- mann. The first point concerns the method of approaching the wages question by all the German economists from Rau to Philippovich. The characteristic method is to state that wages depend upon the law of supply and demand. In the same manner that that law determines the price of commodities, so with a few corrections it determines the price of labor. The reader of the German work on wages is referred to the analysis of supply and demand as applied to commodities, and then finds the author employing the same terminology, with here and there a word changed designed to suit the special case in hand. The criticism of this method as applied by the group under consideration is that not sufficient emphasis is laid upon the very peculiar nature of labor as a commodity. This peculiar characteristic is illustrated by the application of the law of supply and demand to different kinds of exchangeable values, and by the analogy that may be drawn between labor power and certain kinds of goods. If we undertake to rely upon the operation of demand and supply as a practical rule to regulate prices in all industries and for all services, we shall find that the rule does not apply with equal facility. The law of supply and demand as a regu- lator of price can be applied with the least advantage with regard to goods or utilities which are produced by a body of capital that can be easily, and with small loss by the change, 351] SS jg GERMAN WAGE THEORIES [352 increased or diminished. Such would be the case with capital invested in the stock exchange or in banking. Supply and demand have somewhat less application in a merchant's busi- ness, still less in manufacturing, and least of all in transporta- tion, especially railroad transportation.' Banking, trading, manufacturing, and railroad transportation constitute a series of undertakings, at one end of which, banking, the principles of supply and demand in regulating price from the standpoint of costs, apply with the most satisfactory results; and at the other end these principles have less validity. In the bank- ing business, nearly all the capital is circulating capital, but in the railroad business a larger proportion is fixed, and these opposed conditions make a great difference in the practical working out of prices. In the banking business, under free competition, if the price goes much above the costs of produc- tion, the unusual profits attract capital into the business till an equilibrium is established. If price's fall below costs of pro- duction, further production ceases till the equilibrium is again restored, and thus prices hover close to costs. Of the wholfe capital invested, the greater the proportion that is fixed, the more difficult it is to adjust investment to change of price. When it comes to a business like the railroad business, the costs of pro- duction or the cost of service have but slight influence upon charges. If competition forces prices below costs, there is no economic force to restore it, except such as work through long periods. In a merchant's business, sales below cost cause a greater loss the greater the amount of sales. But in the railroad traffic, any business that pays more than immedi- ate expenses is worth more than no business. When a mer- chant becomes bankrupt he ceases to compete. But a bankrupt railroad is a more dangerous competitor than a sound road. In a merchant's business the law of supply and demand may be relied upon to adjust prices for the best good of the com- ' Hadley, Railroad Transportation, p. 40. 353] CRITICISM 57 munity. But in the railroad business combination and agree- ment seem the only means to avoid industrial warfare. Now the question occurs, is labor power, as a commodity, analogous to bank service or merchants' goods, or is it more analogous to factory products and railroad service? This is important, because upon the answer will depend the extent to which we can wisely and without great modification employ the sarrie analysis of supply and demand that might be em- ployed in reference to competitive goods. The laborer, for the purpose contemplated, now occupies the same position in rela- tion to his labor power that the business man or capitalist does to the commodity or utility he produces. The laborer's capital is himself. As the business man maintains his capital only by producing and selling the utility his capital is fitted to pro- duce, so the laborer is maintained by exercising and selling his labor power. The kinds of business referred to above as a series differ in two respects. First, in the ability to cease producing without serious detriment to the investment. Secondly, in the freedom and ease of transferring the value of the investment. In these two particulars banking is at one extreme of the series and the railroad business at the other. A banker may cease discounting without serious injury to the plant, and may easily close up business entirely, transferring the value of the capital to another business. A railroad cannot cease transporting without serious losses in fixed charges and in deterioration. It is comparatively useless as a body of mere property. Nearly all the value is in the business, so that it is next to impossible to decrease the supply of transportation according to the demand for it at old prices. The supply is kept up at such prices as will secure business. With reference to these last points labor is more analogous to the railroad business than to banking.' A laborer cannot cease selling his product without serious, and it may be permanent, detriment to ^Hadley, Railroad Transportation, p. 78. 58 GERMAN WAGE THEORIES [354 his investment, that is himself. And here the laborer's position is peculiar, in that he carries upon his shoulders, so to speak, the future supply of labor. If his labor should cease, not only is his own investment damaged, but that of others who are de- pendent upon him. It is as if a business were being conducted not alone for the sake of the owner, but also as a support for the business of others, so that if the one ceases the others of necessity fall also. Neither is the laborer free to withdraw his capital and pro- duce something else. The laborer never has anything to sell except labor power. If capital does not wish to buy what he offers for sale, there is no hope for it. Capital buys at some price or the laborer goes to the poor-house. These two con- siderations make it as impossible for labor to cease selling its product, as for a railroad to cease running its trains. This analysis discloses the peculiar nature of labor-power as a commodity. Its immobility is a serious obistacle to the reduction of wages to a common level. Its comparatively permanent supply, together with its necessary productive activity, retards the correcting power of supply and demand. We may say that the operation of the law of supply and de- mand in its application to labor is greatly impeded by friction. And in any practical treatment of the wages question such as is found in the German literature, the friction-element ought to dominate the discussion more than it does. None of the authors of this group take pains to point out these characteristic differences between labor and competitive commodities except Philippovich. But the differences dis- cussed by him have slight effect upon his subsequent treat- ment. Rau designated an upper and lower limit of price, and appealed to supply and demand as forces operating to deter- mine wages at some definite figure between those limits. But the result is vague and indefinite. Hermann employed the familiar procedure, but omitted a discussion of that part of the question which, according to his method, would have given 355] CRITICISM 59 him an opportunity to point out the comparatively permanent character of the supply of labor. Having, however, placed wages in the same category as the prices of commodities, he practically sets aside all factors as having no force except con- sumers' income. Although his followers, for the most part, enter upon the discussion of wages by an elaboration of factors identical with those applied to determine the prices of commo- dities, they ultimately appeal to some one as really final. When this is not done, as in the case of Philippovich, the whole treatment is confused. All recent writers practically adopt Hermann's view. It is desirable, therefore, to enter upon some discussion of consumers' income as the source and determinant of general wages, and this is the second point in the criticism. It will be recalled that Adam Smith pointed out that there was necessarily a minimum rate, below which it seemed im- possible that even the lowest grade of labor could subsist for any considerable period of time. This lowest rate for any family must be more than sufficient to support the man and wife. When it went below this, it failed to be consistent with the needs of common humanity, and had the effect of produc- ing a dearth of workmen. However, the possibility of raising wages above the minimum depended upon the increase of the " funds " which are " destined for the payment of wages." These funds were of two kinds: first, the revenue which is over and above what is necessary for the maintenance of the employer, and secondly, capital which is over and above what is necessary in order that the employer may conduct his business on any given scale. In the first part of the section on wages, he showed that wages were the result of a contract entered into by laborers and employers. In settling the terms of the con- tract, the employers have the advantage. In the long run, laborers may be as necessary to employers as employers are to laborers, but, practically speaking, it cannot be a question of " long run " with workmen. Employers could subsist for a 6o GERMAN WAGE THEORIES [356 long time on present accumulations. " Many workmen could not subsist a week, few could subsist a month, and scarce any a year, without employment." ' Notwithstanding the fact, however, that employers have the advantage, wages for the most part are above the minimum, and this fact is not to be regretted ; for good wages, by increasing the efificiency of work- men, redound to the distinct advantage of society. Some modification of this last proposition is necessary, since there are two kinds of laborers corresponding to the two kinds of funds for the payment of wages : (i) Laborers who are paid from stock are such as by their exertions add to the wealth of society. They are " productive." (2) Laborers who are paid from revenue and render services simply. They minister to personal enjoyment, but their product perishes with the first use, and there is added nothing to social wealth. Such labor is " unproductive." Adam Smith makes it clear that produc- tive processes extend over periods of time, and that wages are advanced to laborers by the owners of wealth as the result of a bargain. But the exact nature of the funds held by employ- ers is not made lucid.' Thus there are two theories of wages in the Wealth of Nations. One is the minimum wage theory* the other is the theory of demand and supply, the latter con- nected with the idea of funds for the payment of wages. Ricardo's treatment differed somewhat from Adam Smith's. The minimum wage is with Ricardo the natural price of labor, a reward which is " necessary to enable the laborers, one with another, to subsist, and to perpetuate their race, without either increase or diminution." Any deviation from this rate, by the operation of supply and demand is called a " market " rate. The laborers are in a flourishing and happy condition if the market rate is above the natural rate, and in a " most wretched " condition if it is below the natural rate. This statement is ' Rogers' 2d ed., v. I, p. 70. ' Taussig, Wages and Capital, p. 150. 357] CRITICISM 6 1 much qualified by Ricardo later, either in statement or in emphasis, as follows : 1. The " natural " rate is not to be understood as absolutely fixed. The habits and customs of the people make a difference between different nations, and between different periods of the same nation. 2. Notwithstanding the statement of the importance of the standard of life, it is practically ignored in the subsequent dis- cussions on taxation, and the general problems of distribution. 3. Market wages seem to have small interest to Ricardo, probably because natural wages furnished the key to distribu- tion. Revenue nowhere appears as playing a part in the demand for labor. He took into consideration only those laborers who are hired by capitalists with a view to realize on the invest- ment, and so far as market wages are considered, he regards them as determined by the relation of capital and population. In his essay " On the Influence of the Low Price of Corn on the Profits of Stock," Ricardo says that the rise or fall of wages in the stationary state is regulated wholly by the increase or de- crease of the population. In the advancing state it depends on whether the capital or population advance at the more rapid course. In the retrograde state it depends upon whether population or capital decrease with the greater rapidity." As the income mentioned by Adam Smith was that of the employer, and in his view would exercise influence on wages only so far as it was used to employ domestic servants, the in- come side of Adam Smith's wages-fund would be naturally neglected so soon as writers come to regard the most im- portant case of wages as arising when men were employed for a profit. Neglected it certainly was and, if for the reason stated above, the negligence is justified. But viewing Eco- nomics from the side of production, and production from the 1 Works, p. 379. 62 GERMAN WAGE THEORIES [358 side of capital, English writers were led away from consump- tion and the demand of consumers as leaders in economic activity. It is at this point that Hermann made a departure from the traditions of the science, and intercepted the parallel course of thinking on wages in England and Germany. Cap- ital is repudiated as the source and determinant of wages. The key to the situation is no longer held by the employers but by the consumers. Employers are mere agents, middlemen, who do the consumers' bidding for a commission. The consumer is the real buyer of labor. All the steps leading to the final product are taken for the final consumer. The true and con- tinuous source of compensation for production is the income of the buyer of the product for his own use. This doctrine has been followed generally by the German economists ; but in England it has not received very strong support. In the first place, Mill attacked its main position in his famous proposition that a demand for commodities is not a demand for labor. Mill thought it important to support this proposition because its contrary was so widely assumed by common apprehension ; and because, with the exception of Say and Ricardo, most economists fell into the error in some part of their thinking. Up to Mill's time, however, it formed no integral part of their theories of wages. Although of late some of Mill's reasoning on this point is not accepted, the whole of it passed practically unchallenged for twenty years. In the second place, when Longe and Thornton adopted Hermann's point of view, and tried to persuade their countrymen of its soundness, with some success, if judged by Mill's action, Cairnes submitted the doctrine to a careful analysis and published the results in the form of an elaborate attack in his " Some Leading Principles in Political Economy Newly Expounded." There is something very plausible in the idea that demand for commodities determines the aggregate amount of wealth spent in wages. It is of a kind with the popular conviction 359] CRITICISM 63 that the " extravagance of the rich is the gain of the poor," or that " profusion is for the good of trade.'" The source of the error, as to wages, seems to be the failure to distinguish between general and particular wages, wages of all laborers and those of groups of laborers. The discussions on wages are for the most part grouped about three questions : (l)What is the true source of the quantity of real goods which laborers as a body receive ? (2) What determines the quan- tity ? (3) What determines the share of any particular group ? Let us consider briefly these questions in the order stated. I. It is evident that it is from the total productions of society that ultimately all wages must come. It is also evident that, under our present system, wages cannot absorb the whole of that product. The first difference of opinion appears when the attempt is made to designate the particular part of this total product which furnishes wages, or the habitual form which it assumes as a source of wages. All goods have a career. For some, the career is short, for others long ; some are destined to give direct enjoyment to society, others to help in the process of production. The trac- ing of the career of goods is a comparatively simple process. Under our wage system they are first in the hands of the en- trepreneur class, then in those of the trading classes, and finally in those of the consumers or users. To be sure, some goods suffer destruction by fire and some by accident, while some may revert to the trading classes as second-hand goods ; but if they fulfill their proper destiny, they finally disappear in the users' hands. There is a continual inflow at the one end of the line, and a continual outflow at the other. The complication comes when we attempt to note the causes which determine the posi- tions which classes hold with reference to the flow and ebb of goods, and the relations of the classes to each other as an out- come of the various positions. Could we cause the economic • Cairnes, Political Economy, p. 163. 64 GERMAN WAGE THEORIES [360 flux and the social flux to cease for a time while we noted the various positions of goods and classes, we would find some goods just issuing forth, others passing away, still others in all stages of intermediate progress. We should also find all classes of men concerned with the dissipation of goods in the process of what we call consumption. There is great diversity in the value of goods thus consumed, as also in the economy and profuseness of consumption. Of these some take no part whatever in the inflow of goods. Of those who do, we distinguish (i) the so-called small pro- ducer who combines his labor with some accumulation in the production of goods ; (2) those who have large accumulations of their own, or that which belongs to others ; (3) those who have little or no accumulation, and are employed by the second class. The problem of distribution is a study of the causes which determine, for final consumption, the propor- tionate assignment of the total productions of society to social classes. And the wage problem, as a part of the question of distribution, so far as the source of wages is concerned, is a double one. 1st, To what stage must products arrive before they become the source of wages ? 2d, Into the possession of what class must they come to be such a source ? Some hold that the source of wages is a portion of wealth held by em- ployers in its form of food (capital) ; others that part which the laborers have immediately helped to produce (product) ; still others that part held by dealers of commodities in the form of laborers' consumption goods held for sale, i. e., capital in the hands, not of employers, but of merchants; and, finally, some regard it as that part of wealth which is, or is about to be, in the hands of the consumers of laborers' product as a money income. Hermann and his followers, of course, are identified with the last view. II. The second question pertains to the determination of the quantity of real goods going to labor. As men differ in regard to the source of wages, so they differ as to the cause of 36 1 J CRITICISM 65 the amount. Those who look to the employers' capital as the source, think that the state of the arts principally determines what portion of total capital shall be used to employ labor. This determines the sum total that can be divided among laborers. Those who look to labor's product as the source, lay stress upon labor's efficiency or productivity as chiefly fixing the quantity. Here the element of time is important, for in short periods contract may prevent an adjustment to- efficiency. A perfect competition on the part of capitalists is also postulated in order that interest may be kept at a mini- mum rate and prevented from absorbing the share of laborers. Those who look to merchants' capital as the source of real wages make the volume of the flow of consumable goods to laborers dependent upon the volume of money wages. Such wages are in general dependent upon employers' means. Hence a rise in wages, other things being equal, can occur only if the directors of industry are able to add to their money resources and enlarge their undertakings. Finally, those who appeal to the income of consumers rest their case upon the assumption of a more or less definite proportion between wages and consumers' income. This is also the point of view of Hermann and his followers. For completeness there ought to be some attempt to distinguish between the power of con- sumption of laborers and that of other classes, and the extent to which laborers are the consumers of their own products. On the most superficial view, it must appear that laborers and their families, constituting as they do a considerable propor- tion of the population, are large consumers of their own pro- ducts. Just in so far as this is true, wages appears as a determinant of itself, and thus we reason in a circle. Her- mann did not escape this kind of reasoning, though Brentano did. HI. Writers on wages have not always distinguished be- tween general wages and group wages. Some have evolved a theory explanatory of the wages of laborers as one body 66 GERMAN WAGE THEORIES [362 opposed to all other classes. They have determined certain principles applicable to the larger problem, and then have pro- ceeded to draw certain conclusions about the wages of groups based upon those principles, without perceiving the change of problem. Others have pursued^the opposite policy. Having perhaps correctly observed the relation of cause and effect in the case of wages of groups, the principles so evolved are likewise used as a solution of the other problem, which is so dififerent. Hermann and his followers seem to be guilty of this last error. They observed that individual employers enter upon industry with a view to gain profit, that they regulate their production by their customers' demands. If demand increases, more is invested; if demand falls, less is invested. This increase or decrease of investment carries with it corre- sponding changes in the amount paid in wages. As individual employers do, all do; therefore wages depend ultimately upon consumers' demand. If we have regard to a single industry, it seems clear that the investment of capital and the total amount paid in wages follow closely the lead of consumers' demand. There can be little question but that it is efifective in distributing the relative amounts of capital over the whole field of pro- duction. Production is for no other purpose than to meet the varying demands of men, and capital is ever on the alert to anticipate, if possible, the growing and changing wants of humanity. There is thus a re-shifting of industry and employ- ment, and wages are sensibly affected, at least for short periods. However, even here it can scarcely be said that demand determines the amount of investment. What it does is to influence it more or less. These matters are important as throwing light on the determination of group wages. But the problem of general wages is a different one. Here we view income as a whole, and industry as a total. The effectual demand of society is the offer of total income. We are unable to conceive of an increase or decrease of demand without at 363] CRITICISM 67 the same time conceiving an increase or decrease of produc- tion. In the view of Hermann, an increased demand is viewed as a cause of which increased investment and increased pro- duction is the efifect. While viewing total demand and total production, increased production must ever be the cause of increased demand. We see, therefore, how unfitted this theory is as an explanation of general wages, although it may throw light on particular wages.' ^ See Caimes, Political Economy, and Taussig, Wages and Capital. CHAPTER IV VON THUNEN JoHANN Heinrich VON Thunen, born 1783, died 1850, was a Mecklenburg aristocrat who, as a scientific land cultivator, endeavored to put to a test, on his own property, the theoretical conclusions of his economic studies. He is re- garded by the Germans as their most original theoretical economist. As a close student of English political economy he professed to have little confidence in its conclusions ; yet he did not succeed in emancipating himself from either the char- acteristic method, or some of the more important results of his English preceptors. There runs through his thinking on the subject of wages the fundamental assumption that neither wages nor interest can rise except at the expense of the other. They are supplied from a fixed amount, and whatever causes a rise in one must produce a corresponding fall in the other. He proceeds, as Smith and Ricardo, did by assuming simple primitive conditions or hypothetical cases. His method is wholly deductive and highly abstract. Thiinen's confidence in future economic peace is disturbed by his belief that the laborer is separated from the results of his productive power.' It was his opinion that, so long as such a state of things lasts, hostility between labor and capi- tal is inevitable and not without justification. Under present arrangements labor does not get all it produces, but there is no reason in justice why it should not. It is not enough to ask what wages are. We must enquire what wages ought to be. 1 Der Isolirte Staat, ii, p. 210. 68 [364 365] ^ON THUNEN 69 Wages are, roughly speaking, determined by the relation of supply and demand, and under this influence they tend to the standard of life minimum. This point is treated in a most original manner, if we remember that it was written in the early part of this century. Business men will employ addi- tional laborers up to the point at which the last laborer employed produces his own wages; beyond that they can- not go without loss; to that point self-interest prompts them to go. Under the operation of competition all laborers of like grade receive the same wages as the last one em- ployed. If at this point all are miserable, what remedy is there? The undertaker cannot be blamed, for, while he may make a surplus from the earlier laborers employed, to suppose that he will bestow it as a free gift to his laborers is to fail to distinguish between moral obligations and busi- ness principles. A rise in wages without a decrease in the number of laborers employed is not possible, for then the last employed laborer produces less than his wages. Employers must discharge men until wages equal production. On the other hand, rather than remain breadless, discharged men are willing to work at a figure which makes their employment possible. If we suppose an increase in the number of laborers without a corresponding increase of capital and land, wages must fall, for the undertaker can employ additional labor only on less productive objects. If laborers increase, in spite of sinking wages, the only limit to population is the means of sub- sistence. How productive the object is upon which the last laborer is employed depends upon the supply of labor. The greater the supply of labor, the less productive will the capital be upon which the last laborer employed works. To what limit wages may sink depends upon the sum of the means of subsistence. Between the real worth of labor, the supply of labor, and the means of subsistence of labor there is an inti- mate connection. The economists have considered the last two factors only, and have thereby drawn the conclusion that 70 GERMAN WAGE THEORIES [366 Providence has designed for laborers nothing except necessary support during the period of their life.^ Such a conclusion can not be admitted, and will be found to be scientifically unten- able when we have investigated the real worth of labor. Von Thiinen complained that Adam Smith's law of the rela- tion of supply and demand as determining wages was dependent upon changes in the national wealth. He desired to discover a law of wages for a persistent condition of society. In such a condition, demand and supply are in equilibrium ; each cancels the other. Since they appear to be inactive, there must be some other law. To the question, what is the natural share of the laborer in products brought forth by him, Adam Smith answers, that which he usually gets. But that which he usually gets through competition is subject to continual change. We must ask which one of all those actually received is the right one, the natural one. Adam Smith did not investi- gate this question." If we compare von Thunen's conception of natural wages with that of Ricardo's, we find them quite different. Ricardo was the analyst of actual economic facts. In the realm of distribution he sought to establish no reform. Hence he of- fered no criticisms of the social method of awarding shares. To his mind the essential task at that time was to establish, if possible, beyond all question, what the social method actually was. He found it convenient to adopt Adam Smith's distinc- tion between wages which fluctuate in short periods accord- ing to the varying strength of demand for labor, and wages which prevail in the long run and are connected with the de- crease or increase of population. Ricardo called wages nat- ural which enabled laborers under the influence of climate and habit to perpetuate their kind without increase or diminution. Von Thiinen's interest in economic questions was different. 1 Der Isolirte Staat, ii, p. 86-90. ^ Der Isolirte Staat, ii, p. 64. 367] yON THUNEN 7 1 He was not less keenly alive than Ricardo to the importance of a theoretical statement of actual distribution, and in this field he achieved probably as notable success. But he brooded over the miseries of the poor, and sought for the causes in the national economic system. To him a wage which was divorced from correspondence with production was unjust and unnat- ural. In a word, he called wages natural when they were in agreement with justice ; and justice required that a man should be rewarded according to his production. But in seeking the law of wages the interests of both capitalists and laborers must be taken into account. To eliminate the complicating effect of rent, von Thiinen seized upon the idea of the isolated community. He supposes a large city situated in the centre of a fruitful plain. To eliminate unnecessary causes of unequal opportunity, he sup- poses the plain not crossed by river or canal. At a consider- able distance from the city the plain ends in a wilderness which wholly separates the supposed state from the rest of the world. All laborers are equally strong, wise and skillful. The num- ber of laborers remains the same, i. e., there are just enough children brought to maturity to fill the ranks depleted by age and death. The population is also so limited that plenty of land awaits occupation. Hence there is a border where no rent is paid, for rather than pay rent the Bauer viovXA take new land. Conditions on the border determine for the entire com- munity what wages shall be paid, for there wages are not determined by the will of the employer, the competition of laborers, or the means of subsistence, but by what the laborer can himself produce. Such wages are paid throughout the entire community by the force of competition. Conditions on the border also determine interest, since there capital has its highest uses, and being highly volatile, it finds the place of highest reward. Von Thiinen was careful to credit as much to interest as belonged to it. Not all that falls into laborers' hands, ostensibly as wages, is properly to be considered as 72 GERMAN WAGE THEORIES [368 such. Nearly all workmen are furnished with equipment of one sort and another, such as implements or tools to assist them in labor, and a part of what they receive is to be ac- credited to interest for their use. In order that labor may not be at the mercy of competition, he supposes conditions under which labor may freely apply itself to unoccupied land. An investigation as to how high wages may be under these conditions will teach us what natural wages are, for here the laborer will get what belongs to him. The total product is divided between two claimants : laborers and capitalists. It will be found that the interests of both are best subserved when the so-called natural wages are paid. The problem, then, is to determine the relation of the rate of wages to the rate of interest. This Von Thiinen at- tempts to do by reducing the efficiency of capital to labor- terms. It involves the most difficult problem of determining the shares attributable to labor and capital out of a product which is the result of the two in co-operation. Before enter- ing upon this discussion, it will be perhaps best to give some explanation of the mathematical terms employed. A represents the wages for the year of a family, including the wife and young children under fourteen years old. These wages are expressed in bushels of rye. To determine how much such a family would consume would manifestly depend upon the number of children. In this investigation it is von Thiinen's aim to find a law for the regulation of wages and rate of interest for the stationary state of society; hence the working population is supposed to be constant. Each family will therefore on the average succeed in raising a suffi- cient number of children to replace the losses by age and death. The necessaries of life, which are required to keep such an average family in labor power for a year, are assumed to be such value as is equal to the value of a bushel of rye. If from the total wages A the necessaries be subtracted, there will be a surplus which is designated by the letter y. Then 269] ^0^ THUNEN 73 A = a -\-y. That part of the gross product which is left after deducting repairs of all sorts, costs of raw material, and admin- istration, as well as profits to the undertaker as such, is called by Thiinen the " product of labor." This is a technical ex- pression, as evidently the product is the joint result of the co- operation of labor and capital. If we divide the product of labor by the number of laborers employed, we get the amount of the labor-product of one man, which is designated by "/>■" We now turn to the reduction of the efficiency of capital to labor-terms, and it is necessary to follow our author somewhat closely. If we suppose a capital Q and a wage a-\- y expressed in bushels of rye, dollars, or any other measure of value, and that Q be divided by a +y, we have as a result an expression for capital in terms of the year's labor of a family, or we have discovered how many years' labor of a family a capitalist with Q capital can employ.' If this labor quantity be represented by n^, then ^ = ng, and Q = nq{a ■\-y). If a +y be re- a +y garded as equivalent to a unit of capital, then Q = nq units of capital. In case the capitalist lends his capital to an under- taker who employs n laborers, then each laborer is assisted by — = ^ capital. The product of a laborer employed with a capital q for a year is designated by "p;" p, then, is a joint product, and the problem is to find an equitable division be- tween the laborer and capitalist. If n laborers are employed, the product of all laborers is «/ ; their wages are «(«-Fji/); the capitalist has the difference : np — n{a+y') = n{p—{a -f-j/] )• The capital employed is nq {a +y). If the rate of interest be J ■ . 4u *u Hp-[_a+y']) p-{a+y) r^, designated by z, then s = ;,^(^+j/) = q{a+y) " ^^" laborer's share can now be expressed in terms of labor-product, rate of interest, and capital. '^Der holirte Staat, ii, p. 124. 74 GERMAN WAGE THEORIES [370 From^r = -^ — )' , ^ is obtained qz{a,-\-y)= p — {a-\-y); from this is obtained the following: {\ ■\- qz) {a -\- y) = p; whence a + r = — — — = laborer's share. ■^ \+qz The capitalist's share is found by subtracting the laborer's share from the product of labor: / ^ ^P+P^'-P = IM. = capitalist's share. I + qz I +qz I + q2 From the above it appears that the relation of the laborer's share to that of the capitalist is as i : qz. This relation may be variously expressed : The reward of q units of capital equals the wages of qz laborers, and the reward of one unit of capital is equal to the wages of z laborers, or as is subsequently required in the discussion : The wages of one year's labor are to the earn- ings of q units of capital as i is to qz, or the wages of one year's labor are to the earnings of one unit of capital as i is to z. Von Thiinen has now succeeded in finding a mathematical expression for the relation of the reward of capital and labor. He must proceed one step further to express the relation of their efficiencies. Since in the production of one and the same product/, a part of the capital may be replaced by labor and vice versa, it appears that each is a competitor of the other. It is therefore in the power of the undertaker who with Q capital hires, say n laborers, to give any desirable value to q by increase or decrease of the number of laborers. The undertaker who knows and follows his interest will raise q to the point where capital-cost and labor-cost are in direct relation to the efficiency of both. Hence the reward of both capital and labor is measured by the efficiency of each.' If the reward of labor is to the reward of capital as i is to z, and the efficiency of labor is to the efficiency of capital as the reward of labor is to '^Der Isolirte Staat, ii, p. 126. 37 1] VON THUNEN 75 the reward of capital, then the efficiency of labor is to the effi- ciency of capital as i is to z. We arrive, then, at the following very important conclusion : When capital and human labor are measured by the same rule, viz., the year's labor of an individ- ual man, the rate of interest, " z" is the factor by which the relation of the efficiency of capital and that of labor is ex- pressed. By this we can reduce to labor terms the co-operation of capital in the production of goods. Furthermore, in so far as land rent does not enter, it is possible by this to express in terms of labor the cost of production of a commodity, and thereby labor becomes a true measure of the value of goods.' The place which the " reduction of the efficiency of capital to labor-terms " has in the general discussion will be more clearly seen later on. Von Thiinen has to exercise constant care that at every step in the process no unknown term shall be allowed to do duty for known ones. He started out to obtain an ex- pression for natural wages. He has obtained an expression for wages under existing conditions with which he cannot rest, for it contains too many unknown quantities. In the expression ■h a+j/ = ^^ — the value of a+j)/ is dependent upon the value of z, so that to get the value of a+j/ we must know the value of z. Now /> is not constant, but increases and diminishes with the value of g and is therefore dependent upon it. Upon the value of / depends again the value of j/ and z. There- fore p, y and z are functions of q. The problem therefore is to find the value of p,y and z for a given value of q? He then turns to his favorite hypothetical society in paragraph I4, in which he says that it is on the margin of cultivation of the isolated state that we are to find the conditions for the development of the relation between wages and the rate of interest.' Here it is possible to be free from the confusion 1 Der IsolirU Staat, ii, p. 127. "^ Ibid., p. 139. ' Ibid., p. 140. 76 GERMAN WAGE THEORIES [372 due to the presence of land rent. Here laborers are free to choose whether they will continue as wage laborers or move to unoccupied land and lay out a property of their own. If laborers are to be kept as farm hands, their total income, made up of wages and interest upon capital required to lay out a farm, must equal the product of labor procurable from a marginal farm which they might themselves have laid out.' Von Thunen expresses this mathematically. If wages = a +j/, product of labor =/ and the capital required to lay out a small farm = q (a +j/) — all expressed in bushels of rye — and the rate of in- terest = s per cent., then that laborers may be retained the following equation must hold : a +y + g{a -\-y)z ■=p. From this results: « + y= — 7- — ; and z= , , — V- In this ex- \-k- qz^ q{a +/) pression under the conditions assumed a, p and q are constant quantities, only y and z being variable. It is of the first im- portance to find the exact relation between y and z, for upon that solution depends a knowledge of the relation between wages and interest." He then undertakes to find an expression for J/ which does not contain the quantity for z. He supposes that a number of laborers form a combination on the margin of cultivation of the isolated state to put into cultivation a new farm. That there may be no disadvantage attached to this farm on account of its size, it is supposed to be as large as the average in the state. The laborers united for this purpose divide themselves into two groups. Group I is busied preparing the land for cultivation, erecting buildings, etc. Group II is composed of men who for the time being remain as laborers for hire, and by means of the surplus which they have above that required for their own support, offer the means of support of Group I. Under these conditions, says von Thunen, in the preparation of the farm, none of the existing national capital is consumed. The sum of those 1 Der Isolirte Staat, ii, p. 141. ^Ibid., p. 142. 373] VON THUNEN 77 objects of value after completing the farm is as great as be- fore its completion. The new farm has cost labor, and noth- ing but labor.^ These two groups of laborers have really devoted their surplus to the production of this farm, and the farm may be spoken of as their invested capital, the interest of which must come from the future products of the farm. Groups I and II are called throughout von Thiinen's discussion " capital producing laborers." Now the question occurs, how shall the wages of farm hands be de- termined? Von Thiinen answers that it must be sufificiently high so that the surplus of a laborer put out at interest will equal the interest of a " capital producing laborer;" for if this were not the case the laborers would immediately go to capi- tal producing. It is the interest of each, both laborers and capitalists, to get as high a return as possible, but there is no opposition between the two classes. In economic life, as we know it, if efficiency is not affected by changes in wages, capi- talists' interests are promoted by lowering wages; but, under the simple conditions which von Thiinen supposes, this does not follow. As will be more clearly seen later on, the follow- ing question is to the point: what rate of wages can capitalists pay and draw the highest rate of interest, supposing the effi- ciency is not considered, and that capitalists were to have the same rate of wages when they were producing capital ? To show what he means by this question, and also as an aid in the solution of the same, it will be necessary to recur once more to his use of mathematical symbols, n represents the number of labor families whose continuous labor is required to culti- vate the farm after its preparation, nq represents the number of laborers in Group I. In this expression is included the co- operation of capital." A laborer employed with q capital pro- duces /, and the product of n laborers equals np. Group I has in the course of the year consumed anq bushels of rye. 1 Der Isolirte Slaal, ii, p. 151. ' IHd., ii, p. 152. 78 GERMAN WAGE THEORIES [374 Since Group II devotes its surplus to the support of Group I there are as many laborers in Group II as the number of times that^f, the surplus of each man, is contained in anq, the amount consumed, hence the expression — - . The whole number of " capital producing laborers " then is nq + ^—= nq —. The entire wage expense for farm cultivation is « (« + y). If we subtract this outlay from the total product np we have np — n[a-\-y) — n{^p—\a + jj']). It is the yearly pro- duct of the farm, which belongs to nq- — — and is their profit, or interest on the capital invested. To find each man's share we only need to divide the farm profit by the number of owners. Therefore — ^£- — != ^ = —^ — != — ZJiZ equals a+y nq{a+y) y each man's share. The question next occurs : how is the share of each " capital- producing laborer " affected by changes in the rate of wages ? It is here assumed that the requirements of life, "«," remain the same, and that any change in wages affects y, the surplus only. It will be seen ' that changes in y result in contrary effects upon each capital producer's share. First, an increase or decrease of jj' is equivalent to an increase or decrease in the cost of the cultivation of the farm. So far an increase of y works to the detriment of each man's share, and a decrease of y works in favor of each man's share. Second, on the other hand, an inspection of the expression for Group I reveals the fact that an increase of _j' results in a decrease of the number of owners, with a resulting increase in each man's share. The decrease of y gives a contrary result. Hence changes in y work double and opposite results. It follows that there must • See table below, p. 79. 375] VON THUNEN 79 be a fixed amount for the labor surplus at which the profit share reaches its maximum amount. Von Thunen shows by means of the following table how — the product 300 c being unaffected, the wages increasing — the profit share is affected, supposing the number of laborers to remain a constant : Where a=ioo, equals Capital in Group II reduced to labor. y=i2 y'rs 1. 120 c 13 150 c 12 180 c 12 aioc 12 240 c 12 270 c 12 300 c 12 Capital in Group I reduced to labor. -^^ year's labor. y Sum of labor in Groups I and II. y (<» + .y) y Interest on farm investment. A single capitalist receives q{a->ry) 100 X 12 SO 100 X 12 80 100 X 12 110 lOoX 12 140 100 X 12 = 60 = 24 = 15 =10.9 =8.57 7.06 12(100+20) 100 X 12 =6 72 36 27 22.9 20.57 X9.06 18 30GC — 120 c= 180 c 150 c 120 C 90 c 60 c 30 c 300 c [l00 + 20]20 12(100+20) 2.5 c 4.x6 c 4-44C 3.91 c 3.92 c 1.57 c It is seen that the total number of " capital producing laborers " decreases with the increase of y because a smaller number of Group II is required to support Group I. We see, too, that total farm profit decreases because the more the laborers take from a constant product, the less is the remain- der. The profit share of each man increases for a time, but later diminishes till finally the farm laborers get all that is produced. This gives the conclusion again that there must be a point in the amount of wages where the profit share is the highest. The specific question is : what value shall y have in order that the profit share -^ — S yi)y shall have its maxi- q{a+y) mum value? This is a question for the calculus. Accord- 8o GERMAN WAGE THEORIES [376 insfly — — — — , ■^}'-^ must be differentiated with respect to y q{a ^ry) and the differentiation placed equal to o. L q{a-\-y) J q{a.+y) =g{a+y) {p — a — 2y)dy — (j>y — ay—f)qdy = o therefore {a-\r y){p — a— iy) =py — ay —f ap — d — 2ay-\- py — dy — 2y'^= py — ay—y^ ap — c^ — 2ay — 2^ = — y f -\- 2ay — ap — c^ [a ■'f yf = ap a+y^ V ap Expressed in words this means that it is in the interest of capitalists that wages be equal to the square root of the prod- uct of the necessaries of life and the product result of labor/all expressed in some common measure. Such a wage, not determined by supply and demand, or springing from the necessities of the laborer, but from the free determination of the laborer, von Thiinen calls natural wages.' This discussion, so far, aims to show that it is in the interest of the " capital producing laborers " that wages be V ap. If it can be shown that laborers themselves receive the highest amount as interest upon the investment of their surplus when wages are '^ ap, the claim that it is the natural wage has some reinforcement. He proceeds to show this in the following manner : According to a former expression (see p. "jS) (i + qz) (a+y)=p, whence a+y = — f- — , and 1/= — ^- a. Were ^ -' ' -r ' -' i+qz' ■' \-\- qz a workman to loan at interest his surplus j/, or its equivalent -a, his total return would amount ~ to — f- az. 1+ qz ' 1 + qz Now what rate of interest will make this amount the largest ? ' jDer Isolirte Staat, ii, p. 157. 377] ^ON THUNEN 8 1 The differential calculus yields for z the value — - — '^ . If ap P we substitute this value oi z in the equation a +j/ = — -r — , P we have a +jf = -= afi va/> — a=——j= =Vap. Hence I -\ — a-tvap — a ^ aq ^^ it appears that when a laborer receives V ap wages he receives the highest return on his surplus invested, and his interest coincides with that of the " capital producing laborers " when wages are at that figure.' The critics of von Thiinen may be roughly divided into two classes. First, those who deny the validity of the formula because of the unreality of the assumptions upon which it is based. Secondly, those who impeach the consistency of his mathematical reasoning. The second class is more worthy of attention, because a mathematical criticism requires a pro- founder study and clearer understanding of the author. Roscher thinks that we cannot place so high a value upon the law as von Thiinen does, for it could hold only where the severe struggle between capital and labor does not exist. In young agricultural colonies, where fruitful soil exists in super- fluity, where every laborer can save a surplus, where there are no capitalists in the narrow sense, and all the laborers are nearly alike, and, furthermore, colonies where perhaps no in- dustry exists that requires large capital or superior labor, there a wage of V ap might be natural." Schaffle takes a similar position when he says that the law is valid only for a hypothetical economy. It presupposes an unchanging tech- nique, a mere replacement of the number of laborers, a constant price for grain, and other fictions which suppose variable amounts for constant. Especially does he regard the hypothe- 1 Der Isolirie Staat, ii, p. i6o. ^Geschichte der Nationalokonomik in Deutsckland, p. 896. 82 GERMAN WAGE THEORIES [378 sis of a constant number of laborers as in reality no basis for natural wages.' Likewise Lehr objects that in the formula the number of laborers who compete with each other and press down wages plays no part. But (/) the product will be affected by the number of laborers. With a growing popula- tion the amount of land not yet occupied becomes continually smaller and less productive. Under a given condition of technique, the transference to more intensive operations yields to the last laborer less and less. The more/ approaches a in amount, the more does the formula lose its significance. If p — a, then the laborer can lay up nothing. Objections as given above are shared by many other writers, as Leymarie, Mangoldt and Mithoff. Dr. Joh. von Komor- zinski ' has more recently and in greater detail pointed out one of von Thiinen's limited assumptions which is worth noting by itself. Von Thiinen had argued that it was for the interest of the laborer that his wages should be at such a point that the interest upon the investment of his surplus be as high as possible. This Komorzinski clearly points out would not be true for all laborers. The laborer has two sources of income: wages, and interest on savings. He desires that with a given effort the total income be as large as possible. The relative importance to the laborer of wages and interest on savings de- pends upon the quantitative relation which each has to the whole income. A laborer who is just beginning to save de- sires that his wage be as high as possible. The rate of interest upon his small investment is a relatively unimportant matter to him ; while the laborer who has saved much during a long period may regard the amount of his wage as a matter of com- parative indifference. His chief source of income being interest upon invested surplus, he is led to desire a maximum rate. If ^Das Gesellschaftliche System dtr Menschlichen Wirthschaft, 1873, p. 440. -Zeitschrift iir Volkswirthschaft, Socialpolitik und Verwaltung, B. iii, Heft i, p. 27-62. 379] yO^ THUNEN 83 von Thiinen's argument is to be valid, laborers must have saved an equal length of time and an equal amount. These objections are for the most part only repetitions of von Thiinen's stated assumptions, and we cannot suppose that he is taken unawares. Ricardo assumes for the economic world at large conditions which were familiar to him on the stock exchange, and upon these he developed principles of rent that might have been more accurately developed if he had been more familiar with farm economy. Subsequent thinkers have had to make the necessary corrections. Ricardo's assumptions were not so violent as to belie his observations, for he really thought his assumptions, in general, were true. This cannot be said of von Thiinen. He did not attempt to develop princi- ples of banking investment based upon farming experience. Had Ricardo written on the exchange he would have traversed paths familiar to him. When von Thiinen wrote on farming he wrote accurately. He was a practical farmer, as well as a scientific thinker. The world of his assumptions and that of reality are too far removed from each other for us to suppose him ignorant of the radical difference between them. He is con- stantly drawing contrasts between reality and the isolated state. He has a different law of wages and of interest for each. How shall we explain his confidence in a law based upon conditions so far removed from the real world and so lacking in completeness ? Only on the assumption that he regarded present conditions as unnatural, and the wage of the present order as an unnatural wage. He said that the present regime was likely to result in the starvation and misery of the labor- ing classes. The present system must therefore lack equity. He professed to have investigated the relation of wages and interest from several standpoints, and to have found that, when wages were at ^Z ap, they agreed with the nature of man, and of the physical world.' He regarded his formula as a foot- ' Dtr Isolirti Siaat, ii, p. 206. 84 GERMAN WAGE THEORIES \l^O rule by which to judge whether a wage were at once natural and righteous. It was, therefore, to express a condition that in his opinion ought to exist, a goal which laborers ought to strive for, and one that employers and society should help labor to reach. We cannot but admire the spirit of von Thiinen, who, in mediating between the extremes of the adherents of the " iron law " and those of the socialists, endeavored to lay a scientific foundation for the elevation of mankind. That he does medi- ate is shown by an inspection of the formula. If/ were equal to a, then, according to the equation, wages would equal the necessaries of life, and wages would absorb the entire product. But with von Thiinen, / is always greater than a -\-y. Wages then would be above the necessaries, but below the total pro- duct. Most men regard this as just. Our admiration of his spirit, however, must not blind us to the faults of his work. A man may love his neighbor, and may give him a formula by the realization of which in life, he may be landed in a state of comfort and right economic relations with his fellows. But if that formula can be realized only in a state of society far re- moved in nature from the present, and if that state, in addition, is so primitive and simple as to preclude the social complexi- ties of modern life, the author of the formula may not com- plain if he is rejected as an unsafe and impractical social guide. Such is the position to which von Thiinen is reduced by this method of criticism. The second method of criticism is quite as important in re- sults, assuming the points well taken, because it discredits the mathematical reasoning by which the formula is evolved. The method of procedure is to show that von Thiinen treated as constant or known some quantity which in reality is vari- able or unknown. Among the first to do this was Falck.* 1 Faick, Die ThUnensche Lehre vom BildungsgeseU des Zinfusses und vom naturgemdssen ArbeiUlohn. 381] VON THUNEN 85 He says " the formula ^ — f — , ^^ was obtained from the q [a +JJ') «[/>-(g+7)] formula nq(a-\-y) . The numerator denotes the rent y from the farm, the denominator the number of those among whom the rent is divided. But is the y of the denominator really equivalent to the y of the numerator ? The y of the numerator denotes the surplus that is paid to the laborer at this particular time ; but the j of the denominator denotes the surplus of wages that existed before the laying out of the farm. Only by placing the two y's equal to each other has it been possible for the rent (or interest) to obtain a maximum value at a definite rate of wages.'" This would be a just criticism if it were conceived that von Thiinen was dealing with two widely different economic regimes at the same time. But a sympa- thetic study of von Thunen makes it fairly clear that he regarded the economic conditions under which both Group I and II worked as identical. He assumed that natural wages already existed in the isolated state ; and as a means of discovering the mathematical expression for such wages, he supposed that a number of laborers, to whom it is a matter of indifference whether they labor for wages or cultivate a marginal farm on their own account, combined to lay out a farm.^ If the social arrangements are the same in both cases ; if the society is sta- tionary, as the isolated state was conceived to be ; if men were equal in skill and the standards of life were the same among them all, then the necessaries or life subtracted from an equal wage would have equal surplus, and the y's would be equal. Thus Falck's objection falls to the ground. Komorzynski in the article referred to above also attacks ' Quoted by H. L. Moore in his Von Thunen's Theory of Natural Wages. See Quarterly Journal of Economics, v. 9, p. 389. ^Q. J. ofEcon.,y. 9, p. 391. 86 GERMAN WAGE THEORIES [382 the formula, but in a somewhat different way. He inquires whether a general relation between the rate of interest z and wage surplus y exists which finds its proper expression in z = - — 7^-; — ^. He defines p as the exchange value of the product after the deduction of all outlays except wages and interest on capital, q (a +_j/) expresses the value of the capital invested. ^ = the number of year's wages which equals the value of the capital. The question now relates to the pro- priety of treating p as constant, and of valuing capital in the manner indicated. That/ should not be treated as a constant must be evident, says Komorzynski, from the fact that / is a dif- ferent quantity in every different process of production. More- over, it is straining matters to suppose / the same when great changes may occur in wages and interest. Likewise the value of the capital, a complex of goods, is treated as constant, al- though the formula for wages, a changeable factor, is used to ex- press its value. It is difficult to regard capital as having a static value when it is itself a dynamic entity. The goods of capital become in turn products, and other goods take their place, yet the value is conceived as the same. Products of one process find application as capital in some other production process, in all of which cases von Thiinen conceives the value of capital as dependent upon the rate of wages. Von Thiinen does not seem to have applied a consistent theory of price determination. It follows that, if p and q {a +y) vary by no known law with every different process of production, z^- — —-. — 4^ cannot q(a+j) express a constant relation between interest and surplus in all industries. It is unsuited to express a general relation, how- ever well it may represent the relation between wages and in- terest in specific industries. Komorzynski errs in two particulars : first, in not remember- ing the static conditions of the isolated state ; secondly, in dis- regarding the author's definition of/. Von Thunen nowhere 383] ^ON THUNEN 8/ has/ represent value. If he speaks of mining,/ stands for so many pounds of silver; if of agriculture, then so many bushels of rye. It will be seen that this error vitiates the argument of the example upon which he relies to prove his position. He says, " If the rate of interest is 5 per cent, and the rate of wages 400 florins, then, in three different forms of production, these equations may exist: S 2i;oo — 400 , " I. -^— = — ^ — , where / = 2,500 and g = 105. 100 105 X 400 « TT 5 1200 — 400 , , J " II. -^— = — , where / = 1,200 and g = 40. 100 40 X 400 " III. — — — , where / = 460 and g= 3. 100 3 X 400 " But if {a +j/) should rise from 400 to 450 florins, then the following unequal rates of interest would result : 2500 — 450 "T 4-33 100 "II, 4.16 100 "TT T 741 105 X 450 1200 — 450 40 X 450 460 - 450 ,. 1 100 " 3 X 450 If / represents not value but product in kind, there is no necessity of assuming that / remains constant when the rate of wages changes. Why may not / change in quantity so that the value of the product may so adjust itself as to counteract the disturbance of a change in wages ? In which case the rate of interest would remain the same.'' The only remaining criticism of von Thiinen which will be noticed here is that by Professor H. L. Moore in the articles referred to above.' Says Moore, " Thiinen's purpose in the ' Quoted by Moore, see Quarterly J. of Econ., v. 9, p. 398. ' Quarterly Journal of Economics, v. 9, p. 399. * Ibid., April and July, 1895. 88 GERMAN WAGE THEORIES [384 whole work is to find mathematical expressions for the natural rate of interest and the natural rate of wages. The method by which he does this is first to find a formula expressing the interdependence of wages and interest in the isolated state. The formula, z = - — 7^^- — v^ , we shall call formula A. In q {a +j/) this formula all the quantities are known except _/ and z. In order to find the values of j/ and z, he next attempts to find an independent expression for_y or what is the same thing, since a is known, an independent expression for {a +^); and by substitut- ing for {a +7) in formula A obtain the value of z. The form- ula which enables him to find the independent expression for (a +y) is nq {a+j/) . In this formula, which we shall call formula B, all the quantities are assumed as known excepting _y. But how did von Thiinen obtain the quantity nq? He (von Thiinen) says : Suppose ' the laying out of the farm required the year's labor of nq men .... Unquestionably in order to provide a new farm is needed not only labor, but also the use of capital; (but) according to § 13, we can reduce the co-operation of cap- ital to terms of labor, and thus express the costs of laying out the farm entirely in terms of labor-' When we refer to § 13 to see how the reduction is to be performed, we find that it is done by means of the rate of interest. The fallacy in the argument is evident. Thiinen's whole procedure is a mere begging of the question. His problem is to find the values of jy and z in the formula A ; and, to solve the problem, he undertakes to find an independent expression for [a -hjj/) by means of formula B, and by substituting for {a -V y) in formula A obtain the value of z. But, in order to get the quantity nq in formula B, he assumes that z is known. If, however, z is known, then, according to formula A, y is known. Thiinen undertakes to find the value of the unknown quantities _y and z\ and, in attempting to solve the problem, he uses the very quantities that he wants to find 385] VON THUNEN gg as known quantities.'" This expresses in the clearest possible manner Prof. Moore's position. It is a position which appears unassailable. I can discover no flaw in his argument ; his study of von Thiinen has evidently been thorough and candid. Of von Thunen's critics and commentators he seems to me to be the best informed on the author's fundamental ideas. He was the first adequately to grasp the true limitations of the isolated state ; to note the true difference between the dynamic and static conditions of von Thiinen's problem. A proper emphasis on the last mentioned point has enabled Prof. Moore successfully to defend von Thiinen against those who have not adequately comprehended him. This same insight has enabled Prof. Moore to hit upon the real weakness of von Thiinen's work, and to show that, after all the laborious work on the isolated state, the conclusion is worthless. In two particulars, then, we find von Thiinen's formula for wages unsatisfactory : First, assuming the conditions of the isolated state as admissible, the formula is not obtained by a proper method. Secondly, if the formula were properly ob- tained, it would be useless on account of the extreme limita- tions of the isolated state upon which the formula is based. If the results based upon the isolated state may not be accepted, and it is found necessary to set aside that part of the discussion which relates to wages as of slight value, it will not be denied that there are some things of real interest in his treat- ment based upon the objective economic world. By many years von Thiinen anticipitated a theory of prevailing wages' that was independently developed and made known to the world by Professor J. B. Clark — a theory which is quietly finding its way into the pages of economic works, and becoming a sort of common property with almost no knowledge or acknowledg- ment of its source. As will be seen, however, von Thiinen found slight comfort in the theory for the future of the race. ' Q- 7- of ^-i V- 9, P- 405- '^Der holirte Staat, ii, p. 178-193. go GERMAN WAGE THEORIES [386 He pointed out that an undertaker will not employ additional laborers unless they earn for him at least as much as he pays them. If the point of equivalence between return and wage- payment has been reached, then a rise of wages with a station- ary value of product {i. e., output of laborers) brings about a decrease of laborers employed, and, as a result, a decreased output. Further, an increase of value of product with station- ary wages yields the opposite result, viz., additionally employed labor with an increased output. Since it lies in the interest of the undertaker to increase the number of his laborers so long as by their employment a net advantage accrues to him, the limit of that increase is reached when the output of the last laborer employed is entirely absorbed by his wages. The wages, then, of the last laborer employed must about equal his output. But these wages are normal for all laborers of like skill, because for like service unequal wages cannot be paid. Employing the term "marginal" for "last employed," we reach the following law: wages are determined by the product of marginal laborers. Von Thiinen did not discuss this doctrine in detail. Much was left to the easy acquiescence or imagination of the reader. For instance, one feels the lack of scientific explanation of the true significance of marginal employment. That von Thiinen himself recognized the widefield of resort for the unemployed in the marginal uses of capital can scarcely be doubted, other- wise he could not have assigned so important an agency to it. That the theory attracted almost no attention among thinkers, who must be supposed to have read the work, may be attrib- uted to its fragmentary treatment. As it stands in von Thiinen's pages the theory is a digression. Von Thiinen laid comparatively no emphasis" upon the matter, because he was not primarily interested in the statement of the law of present wages. He was far more concerned with the discovery of a law of distribu- tion, the realization of which should secure to the laboring cla.ss wages adequate to a reasonably high level of life. He 387] V^ON THUNEN gi was convinced that the present system did not do this. It was not enough for him if the wages received were equal to amount produced. More important was the inquiry: Are laborers secure from misery and want ? After stating the above theory of wages, he proceeds by means of the theory to correct some misapprehensions in re- gard to the labor problem. The socialists deny that one man, whatever his skill may be, should receive as much, or more, for an hour's work as another man receives for twelve hours. But, says von Thunen, it is idle to complain of an undertaker who pays his superintendent a superior reward. He pays it simply because the overseer's product at least equals his wages. The socialists' scheme of using labor time as a measure of wages is a dream. The misery of the laboring class cannot be laid to the fault of the " entrepreneurs," for they cannot pay more to labor than labor is worth to them. If some one objects that the earlier employed laborers produce more than they receive, and that thus the conductor of industry has a surplus at his disposal for higher payments which, if he withholds, makes him responsible for the laborers' lot, it is to be said that such an objection shows a confusion of moral and business princi- ples. If one undertaker alone did what is here suggested he would be driven out of business by his competitors ; and, if a nation did this, it would suffer by foreign competition. It may be laid down as an absolute principle that no laborers should be employed whose output does not cover the cost of their employment, otherwise the wealth of society, which ought to be increased by the labor force of a nation, would be by it di- minished. No, the misery of the laboring class may not be remedied by an appeal to the sense of duty of the rich, but must be met in some other way. Von Thunen proceeds to show by means of this law of wages that under the present system the fate of the laboring class may be a melancholy one. There seems to be no escape from the main conclusions of the theory. If we suppose wages to g2 GERMAN WAGE THEORIES [388 increase, without a decrease in the number of laborers, the last laborers employed do not earn their wages. Employers will then discharge men till the last one retained earns what is paid to him. Thereby many laborers are made idle, and rather than starve they will be willing to work for the old rate. Hence under these circumstances no rise of wages can occur. If, on the other hand, the laboring population should increase, while capital and land remain constant in amount, then the new laborers can find no employment at the present rates. This is plain from the fact that, since this wage already absorbs the entire product of the marginal laborers and every addi- tionally employed laborer produces less than the one previously employed, the hiring of the new laborers at the present rate involves a loss to the undertaker. It follows that the new laborers can find employment only at a lower rate. If addi- tional population makes necessary the employment of labor upon less and less productive objects, wages must continue to fall till the limit of subsistence is reached. The increase of population under these circumstances, bringing its attendant evils, seems, however, to von Thiinen a certainty. But the evil, he thinks, will not fall upon all indiscriminately. He holds to the doctrine of the salvation and survival of the fittest. By constitution men differ in soundness and skill. By reason of life's changes men's industrial fitness differs with age. Hence if there is a surplus of population, only the healthy, the most skillful, the most efficient and those in the prime of life will be retained. The old, the decrepit, the weak, the inefficient will be industrially left behind. We may thus approach conditions in which the only relief from actual suffering is an appeal to charity funds. Reckless increase of population is an evil from which even good harvests may not rescue us. Von Thunen is haunted by the suggestion that prosperity (economically) gives well-being, well-being overpopulation, and over-population misery; and he asks whether there is no escape from this vicious circle. Has Providence designed that as the earth be- 389] '^ON THUNEN 53 comes inhabited, the future should become darkened by the vision of increasing misery? He thinks there must be an escape. Providence is not so cruel ; but clearly to define the conditions whose fulfilment will ensure happiness to men, is a problem with which he cannot attempt to deal. CHAPTER V THE SOCIALISTS What is often called the pessimistic side of Ricardo's eco- nomic ideas, viz., the side which rests wages upon some neces- sary demand on the part of laborers, reached its highest de- velopment in the socialistic view of wages. Marx,' like Von Thiinen, was dissatisfied with a simple appeal to supply and demand as an explanation of wages. According to him it ex- plains nothing but wage changes. " The price of labor at the moment when supply and demand are in equilibrium is its natural price determined independently of the relation of supply and demand, and how this price is determined is the question at issue.'' His treatment of wages is a unit with the treatment of the value of commodities. " That which deter- mines the magnitude of the value of any article is the amount of labor socially necessary for its production.'" The value of a commodity being determined initially by conditions of pro- duction, it is put into the course of trade or circulation in order to realize upon it, during the process of exchange, a surplus value. Commodity is exchanged for money, and money for commodity, so that with each transaction an increase of value or surplus is exacted. If it were otherwise, the exchange would not take place. A similar process, says Marx, occurs with respect to labor. To make this point clear, a distinction is made between labor-power and labor. By labor-power, or capacity for labor, is to be understood the aggregate of those mental and physical capabilities existing in the human being ' The references to Capital are to Sonnenschein's edition. ' Capital, p 548. ' Ibid., p. 6. 94 [390 39 1] THE SOCIALISTS nj which are exercised whenever there is produced a use value of any description.' Labor is labor-power in use.' A laborer is labor-power in action. The value of the two may be, and usually is, quite different. The value of labor-power is the price of labor on the market, or wages. The value of labor is the value of labor-power when it is embodied in a product ; and that value must be greater than the former, as a rule, or the capitalists would not deal in labor. At one point in the discussion, Marx sees that the price of labor-power will be fixed by the bargaining powers of each party to the contract. He also says that the minimum limit of the price of labor-power is determined by the value of the commodities for consumption, which are required to renew labor energy and to renew the supply of laborers from fresh generations.' But in his further treatment he assumes that wages will not be much above this lowest limit. He does say that if it falls to this minimum it falls below its real value, for then it would exist in a crippled state. " The value of every commodity is determined by the labor time required to turn it out so as to be of normal value.'" The method of converting the value of labor-power into the value of labor and thus securing a surplus value, is the kernel of Marx' severe indictment against capitalistic production. Assuming that the product of six hours of labor almost covers the cost of the maintenance of labor, or wages, the capitalist class is guilty of wrongful appropriation of all values created in the remaining hours of the working day. This analysis of the industrial situation has considera- ble enforcement in Marx' historical account of movements to secure a shorter legal working day. Such movements have usually encountered the united opposition of the employing class. The inference is easy on a superficial view ; it is be- cause employers dread a curtailment of a surplus which they •■ Capital, p. 145. ^Ibid., p. 156. ^Ibid., p. 152. * Ibid., p. 152. g6 GERMAN WAGE THEORIES [502 have marked as their own. Marx' accumulated mass of evi- dence from the English Blue Books as to the barbarously- long hours of labor of men, women and children, exacted in the early history of English manufacture, constitutes some of the most tragic chapters of history. His account is admirably calculated to enlist a lively sympathy for the innocent and almost helpless class of wage earners, and at the same time calls forth deep resentment against the powerful capitalists whom we are led to regard as heartless and rapacious to the last degree. The real point made here by Marx is that, as machin- ery has increased the efficiency of labor to the extent of en- abling a worker to accomplish as much, say, in four hours as could formerly be done in ten, the hours of labor in a day have not been reduced in proportion. It must not be lost sight of, however, that hours of labor have been materially shortened as society has become ad- justed to machine and factory conditions of production. Where the factory system has developed most completely the hours are not so long as to excite pity. The condition of things in this respect under the domestic system, and in the early factory period, as well as those where older forms of production still survive, is far less favorable than in the fully developed factory system. In the second place, physical productivity of capital may not necessarily be value productivity. Under modern conditions laborers cannot, and ordinarily would not, desire to be paid in the commodities of their own making. They prefer payment in a universally ac- ceptable commodity representing some proportionate value of their product. The working man is interested in the value of his total product, not in the number of pieces turned out. The figures commonly employed to show the enormous increase of productive power by the use of capital nearly always fix the attention upon the physical facts of the case, and the result is sufficiently startling. But if comparison were made only be- tween the values of the product with and without machinery, 393] '^^^ SOCIALISTS gj a different impression would result, especially if account were taken of all the labor involved in the production of the capital. Those who read the earlier portions of Capital and not the later are apt to get erroneous notions of the amount of exploitation of laborers which exists according to socialistic conceptions. If six hours of labor are sufficient to support the worker, but the employer forces him to add four or six hours more to each day's labor for the employer's special benefit, an injustice is apparent. But if from the product of the additional hours, all capital which makes possible this large production for the laborer, must be replaced, and all losses incident to capitalistic risk must be met, the amount remaining over as a true surplus value on a priori grounds may not appear great. Marx does not ignore replacement of capital. " Whatever the form of the process of production in a society, it must be a continuous process, must continue to go periodically through the same phases." "When viewed, therefore, as a connected whole, and .as flowing on with incessant renewal, every social process of production is, at the same time, a process of reproduction." ' The very condition of production with the aid of capital, whether the economic organization be the so-called " capital- istic " or socialistic, requires that a large share of the annual income or social dividend be reconverted into means of pro- duction, or in other words, that it be devoted to the service of replacement of capital whose energies have been transmitted into products of a lower degree, to use Menger's conception. Marx has devoted much space to show the process of the flow of products and the conversion of a part of this flow into capital. And there is much in that part of his work which will repay ■diligent study. However, Marx regards even the replacement of capital to be as much an exploitation as is the personal consumption ^f the capitalist. If we suppose that a capitalist has made an investment of a certain sum, and yearly devotes enough of the J Capital, 1887, p. 577-8. q8 GERMAN WAGE THEORIES \l9\ product to replace the yearly wear of the capital, and consumes the rest, it will be but a few years when he will have consumed a value equal to his capital. Now, the capitalist thinks that he has consumed the product of unpaid labor, says Marx, and that he has kept his capital intact. But that is not Marx' interpretation. In fact, the capitalist has consumed his own capital, which he may have himself produced, but has appro- priated surplus value without payment to the amount of his original capital. Thus replacement is an exploitation.' Of special interest is Marx' conception of the relation be- tween wages and product, as well as between wages and capi- tal. This relation is first indicated by an illustration.* A peasant, who is liable to do compulsory service for his lord, works three days for himself and three on the lord's domain. Under these circumstances the peasant reproduces his own labor fund. If the lord appropriates to himself the land and other means of production of this peasant, the latter will be obliged thenceforth to sell his labor-power to the lord. Under these circumstances, he continues to work three days for him- self, the time necessary to obtain his necessaries, and three days for his lord. "As before, he will use up the means of production, as means of production, and transfer their value to the product. In the same way, a definite portion of the pro- duct will be devoted to reproduction [replacement]. But from the moment that the forced labor is changed into wage-labor, from that moment the labor-fund, which the peasant himself continues as before to produce and reproduce, takes the form of a capital advanced in the form of wages by the lord." The economists of Marx' day regarded wages as advanced from capital, but Marx regards wages as paid from current pro- duct. He says that it is only here and there on the face of the earth that what laborers receive as wages is not what laborers have already themselves produced." He complained of classical » Capital, p. 582. ' Ibid., p. 580-1. ^ Ibid., p. 581. 39S] ^-^^ SOCIALISTS gg economy, that it always loved to conceive social capital as a fixed magnitude of a fixed degree of efficiency.' As will be seen in the subsequent treatment, Marx regards the capital of a country as constantly changing in quantity, and in the relative proportions of its elements. Upon these two facts — accumulation of capital and the change in the constitu- ents of capital — rests the fate of the working classes. As a first step in the argument, we must make clear what Marx meant by the terms constant and variable capital. In the pro- cesses of production, he desired to place in clear light the pre- cise part which labor performed, as well as that of capital. It is a common observation that, under ordinary circumstances, values in means of production are perpetuated in their products. Of this there may be more than one explanation. One com- monly entertained is that capital possesses the capacity in itself of erecting new values which take the place of those values dissipated while capital is performing its industrial functions. This view Marx rejects. Another explanation is that capital has no such capacity, but is a dead, inanimate, passive complex of things upon which labor operates. Capital can, therefore, create no values of any sort.^ But human labor possesses the capacity to transfer values from capital, in which values already exist, to products. And this labor does unconsciously and inevitably while it is performing another function as well. It is a common observation of economic life that products possess greater value than is to be found in their means of production. The true explanation is, according to Marx, that while labor is transferring old value, it is also creating new value. Thus labor performs a double function in the same act. In the process of production itself, or that part of the process which is represented in the transferring of value, no quantitative change in value occurs. That part of capital which is repre- sented by means of production, by the raw material, auxiliary '^Capital, p. 622. ^Ibid., p. 383. 100 GERMAN WAGE THEORIES [3^5 material, and the instruments of labor, is called constant capital. On the other hand, that part of capital represented by labor- power does in the process of production undergo an alteration of value. " It both reproduces the equivalent of its own value, and also reproduces an excess, a surplus-value, which may itself vary; may be more or less according to circumstances. This part of capital is being continually transformed from a constant to a variable magnitude, and is called variable capital." ' Marx opposes the idea of Adam Smith and Ricardo, that capital in its ultimate analysis may be resolved into advances to labor. All surplus value is divided into means of produc- tion, and the direct support of laborers. It is illogical, he de- clares, to admit, as Adam Smith did, that in the case of the individual capitalist, all capital does take these two directions, and then deny it for the capital of society.' Marx does not minimize the importance of capital as a pro- ductive agent. He shrinks from conceiving it as possessing power, preferring to regard capital as loaded with value trans- ferable by labor. Although he is usually an unsparing critic of the capitalist class, at times he is forced to give capitalists credit for the social service of having forced the human race to produce and develop its powers. Without the capitalist, society might not have created the material conditions which alone can form the real basis of a high form of society, and in which the full development of every individual forms the ruling principle.' But in performing this service, the capitalist has exalted the principle of saving. Accumulation has come to be the law and the prophets. In Marx's view, at the bottom of all accumulation is the propensity and power to withhold from labor a part of its just share of social product. But capitalists are charged with having sometimes forced conditions which result in adding to their profits at the expense of laborers' necessary support. Wages are forcibly reduced below the value of labor power. ^Capital, p. 191-2. ^ Hid., p. 601. 'Ibid., p. 603. 397] ^-^^ SOCIALISTS lOI A second factor in accumulation is relief from the necessity of furnishing capital in proportion to labor employed. Any given capital is made sufficient by requiring longer hours in factories, by day and night shifts in extractive industries, and by the reliance upon nature in agriculture as an immediate source of greater accumulation. The general result is that " by incorporation with land and labor, capital acquires a power of expansion that permits it to expand its accumulation be- yond the apparent limits of its own magnitude.' But the most important factor in accumulation is the pro- ductivity of social labor. All nature works in the interest of the capitalist. While machines are wearing out, and having their value transferred to products, science and technology are making their advances, the results of which are incorporated in the new machines without additional burden to the capitalist.' Then, too, labor's capacity to transfer value from capital to product in the very act of creating new value, is nature's gift, since it is done unconsciously and without merit on labor's part. Capital in this case is nature's beneficiary. The same fact becomes evident if we regard capital from another stand- point. As capital increases in quantity, the difference be- tween fixed and circulating capital (to adopt an old classifica- tion, but excluding wages from circulating capital) increases. That is to say, the number and mass of those things which yield up their utilities but slowly, constantly increase in pro- portion to those whose utilities are transferred at once. Now, just so far, says Marx, as those things which lose their value piecemeal, are " wholly employed, but only partially consumed, they perform the same gratuitous service as natural forces, water, steam, air, etc. This gratuitous service of past-labor, when filled with a soul by living labor, increases with the advancing stages of accumulation." ' This general idea has further enforcement by a course oi ^Capital, p. 616. ^liic^., p. 6lJ. ^ Ibid., p. 620. I02 GERMAN WAGE THEORIES [3^8 argument which is designed to show the influence of the growth of capital upon the fate of the laboring class, and which ends with a melancholy picture of the pauperism to which the laboring population of the world is inevitably tending by the very essence of the capitalistic mode of production. Accumulation and consequent growth of capital yield the following results : I. Diminution of the mass of employed labor in proportion to the mass of the means of production. II. Accelerated diminution of variable as compared with constant capital. III. Increase of surplus population more rapidly than the diminution of the variable part of capital. Before taking these points in order, it is desirable to show a direct relation between accumulation and rate of wages. A rise in wages has one of two possible meanings, with reference to accumulation. Either it does not interfere with accumula- tion, in which case capital is in excess, not because labor power or labor population is diminished, but because, given excess of capital, exploitable labor-power is insufficient. It is not a case of stationary capital with a diminishing population, but one of increasing accumulation, and not enough laborers for capital to exploit with the highest advantage. Or, on the other hand, accumulation is reduced in consequence of the rise in the price of labor. In this case capital is insufficient, not be- cause of increase of labor-power, but because, by a relative diminution of capital, there exists more labor-power than capital can exploit to the advantage of accumulation. The rate of accumulation is the independent variable; the rate of wages is the dependent one. The correlation between accumu- lation of capital and rate of wages is nothing else than the cor- relation between unpaid labor transformed into capital, and paid labor necessary to set the capital in motion. It is simply the relation between paid and unpaid labor of the same popula- tion. Wages rise whenever the quantity of unpaid labor in- 399] ^^^^ SOCIALISTS 103 creases so rapidly that its conversion into capital requires an extraordinary addition of paid labor, thus diminishing unpaid labor in proportion. But the movement of the rise of wages receives a check whenever this diminution touches a point at which surplus-population which nourishes capital, is no longer supplied in normal quantity, and accumulation lags.' The first of the above propositions, viz. : that the mass of employed labor diminishes in proportion to the means of pro- duction,'' is one very difficult to prove, and might be more difficult to deny. The fact that, in modern civilized countries, wealth increases more rapidly than population, creates a pre- sumption that means of production increase faster than em- ployed labor; but it is only a presumption. Observation, how- ever, supports the view that as time proceeds, of the total capital employed, a larger proportion is devoted to purchase and maintenance of means of production. The diminishing proportion goes to pay for labor-power. It is desirable that this proposition should be put to some statistical test if it is to be used as a step in an argument. But Marx does not do that, but is satisfied with very general statements, such as that it is brought about by the compound ratio of impulses which the capitalistic mode of production and accelerated accumulation give one another,' or that it is due to the concentration of wealth, the domination of larger capitals, or the credit system. In the second proposition, we have a more radical doctrine still. It is that variable capital diminishes at an accelerated rate as compared with constant capital.' Variable capital diminishes more rapidly than total capital increases. Increased accumulation and concentration of capital are regarded as the source of this new change in the composition of capital. We are not furnished with the proofs of the alleged fact, nor have we any convincing account of causes. ^Capital, 363-4. ^I6id., p. 636. 8 IHd., p. 639. ' Itid., p. 643. I04 GERMAN WAGE THEORIES [400 But the third proposition that surplus population increases more rapidly than the diminution of the variable part of capital,' is in greater need of demonstration than the others ; Marx, how- ever, does not supply it. If it were not maintained that varia- ble capital was devoted to the support of the laboring population, that it is always distributed so meagrely as to supply mere encessaries, and that the laboring class had practically no other source of supply, it might not appear out of place to hold that population managed to exhibit signs of independence of the variable capital as the source of its food supply. It would be quite easy to believe that there existed no such strict corre- spondence between variable capital and population, as to pre- vent a slight relative increase or diminution of either. One might even admit for population a slower movement than for variable capital, the former lagging behind the latter. One might doubt whether population could increase in a constant ratio as variable capital diminished in the same ratio ; but that population should actually increase faster than the variable capital diminishes, and that too not for short periods, but con- tinually as a permanent movement, and furthermore, that this movement should be the natural fruit of accumulation, needs a logical statement of social and industrial sequences. But this is just what Marx does not give us. There are but hints as to the means by which the laboring population is made superfluous. Such are the magnitude of social capital, the degree of its increase, the extension of the scale of production, and of the mass of laborers set in motion, and the greater breadth and fullness of all sources of wealth. These doctrines, supported by such reasonings, constitute the theoretical bases for Marx's law of wages. In this view, surplus population is a necessary product of accumulation. There is provided an industrial reserve army which it is for the interest of capital to have on hand for new enterprises, and as a general source of exploitation. '^Capital, p. 650. 40 1 ] THE SOCIALISTS I05 Marx thinks that he has here hit upon the true explanation of general wages, which must be distinguished from any ex- planation of local wages. When the older economists ex- plained a rise of wages as a consequence of increase of capital over population, and a fall of wages as a consequence of in- crease of population over capital, representing the population as in prosperous times increasing its numbers but in times of misery and want checking the increase, the explana- tion employs a local or temporary cause to account for a general or permanent movement. A working population tends to distribute itself over the entire field of production in obedience to the desire for the largest gain. Where capital is found in relative abundance, there capital tends to accumulate; and if the movement has given any locality a population rela- tively too large, wages fall and population tends to diminish. This, Marx says, is an accurate description of the relation be- tween wages and the distribution of population over the differ- ent spheres of production. But it would be untrue to conclude that for all society when wages rise, population increases by reason of fewer deaths and more births per thousand; and that wages again fall as a result of a redundant population, because " before, in consequence of the rise of wages, any positive in- crease of the population really fit for work could occur, the time would have passed again and again."' The other great exponents of German socialism were Rod- bertus and Lassalle. Nothing but the briefest notice of their views can be given here. Rodbertus, like Marx, was a master mind, and it is noteworthy that, working quite apart, they came to much the same conclusions on many important points. Rodbertus, when he seriously compares modern laborers with slaves, states as strongly as possible the minimum support of labor as a determinant of wages. He regards the unlimited right to the fruit of one's own labor as the natural basis and essence of property right. He says that this principle is con- ' Capital, p. 651-3. I06 GERMAN WAGE THEORIES [402 tinuously violated, in connection with the ownership of land and capital, by the present legal economic arrangements. That laborers have the fruit of their labor transferred to others is due to positive law and continual force.' Under slavery, the force, instead of being exercised by positive law, was exercised by the masters. They took the product, but gave the slave only as much as was necessary for the continuation of his labor. How is it under the present regime, when all the soil and all the capital have been made subject to private property? As under slavery, the product belongs not to the laborers, but to the lords of capital and land. As under slavery, laborers are comparatively happy if they secure from the product of their own labor such a part as is required for life's support; i. e., for the continuation of their labor. If it is said that in place of slave possession we have free contract, it must be an- swered that the contract is only formally free. Hunger has taken the place of the whip. What was formerly called fodder is now called wages.'' This doctrine has become a fixed article in the theoretical economic creed of the German working men, largely through the agitation of Lassalle, who never lost an opportunity to enforce upon the Germans that their wages were down to the subsistence point, and that they were kept there, under pres- ent economic arrangements, by a law as inexorable as iron. As an authority for, and an expositor of, this law he appealed to Ricardo. If wages rise above the minimum more laborers are born into the world, and competition reduces their re- muneration. If wages fall below the minimum labor popula- tion fails at the source, and again demand causes wages to rise. It will not escape notice that on this point Marx and Las- salle were in opposition. Marx endeavored to strike deeper. ' Das Kapital, 1884, p. 214-5. ^ ZurBeletichtung der Socialen Frage, 1875, p. 33. CHAPTER VII SCHULZE-GAEVERNITZ The reaction against the wages-fund theory, which was first expressed by Hermann and and carried on by Brentano and others, is issuing forth in a group of thinkers of which Schulze-Gaevernitz ' is an important member. The earlier reactionists drew attention away from past accumulation in the hands of employers, as the true source of wages, to that of the consumers' income, which is devoted to the purchase of lab- orers' product. The latest development of wage theory in Germany holds the so-called residual theory, and points to the conclusion that in the evolution of centralized industry (Grossbetrieb) there falls to labor a continually more favorable share of the product. This view is summarized in three pro- positions : {a) In respect to any given product the amount of reward which accrues to capital decreases, not only absolutely, but also relatively to labor. (b) The amount which accrues to labor decreases absolutely with reference to a single product, but increases relatively. (c) Within a defined product the amount falling to both capital and labor absolutely decreases with the development of centralized industry. The process is a cheapening of produc- tion in favor of the consumer. {d) The increase of the national product makes possible for labor and capital an absolutely greater return, with the de- velopment of industry, but the share of capital relatively decreases, that of labor relatively increases.^ I See his Dtr Grossbetrieb, 1892. ' Der Grossbetrieb, p. 224. 403] 107 I08 GERMAN WAGE THEORIES [404 It is held that in the earher period of the modern industrial evolution the laboring classes still belonged psychologically to an earlier date. Their wages were more or less near to the so-called life minimum.' The great pioneers of industry, with disposable capital in their hands, had a double advantage. First, the new order of things with its high demand for capital gave its possessors a high bargaining power. Hence, interest was extrordinarily high. Secondly, the talent brought to bear in the new fields, being of a rare and special quality, deserved, and was able to obtain, great rewards. Both these forces, when united in the same individuals, as they usually were, in reference to the ownership and management of a given body of capital, gave them such advantage in the industrial order that the additional values created by the new organization fell easily into their hands. They may be said to have re- ceived the remainder after the usual costs were paid. Since that initial period of capitalistic production to the present time a great change has occurred. Now capital has increased enormously and interest has been gradually falling for many years. And talents which were once so rare no longer enjoy the monopoly of old.'' The characteristics of the early period were : high costs due to high interest and high prices, together with high profits due to the element of monopoly.' Our author justifies this regime on the grounds that in no other way could the great masses of capital, which were necessary for the successful conduct of business in the new order, be brought together, that the habits and tradi- tions of an earlier time favored a comparatively inferior order of men in the industrial field, and therefore the large accumu- lations with high profits were necessary to win capable heads for industrial callings, and, furthermore, that these capable heads came to have political influence, and social development was pushed forward through the exercise of political power by ' Schulze-Gaevernitz, Der Grossbetrieb, p. 215. '^Ibid., p. 218. ' Ibid., p. 217. 405 ] SCHULZE- GAE VERNITZ j 09 the industrial element. In contrast with the characteristics of the opening period of modern industry, the present shows low costs due to low interest, and the substitution of more produc- tive capital for labor; low prices with an advantage to the poor consumer, the laborer, whose real wages are thereby in- creased.' The struggle to lower costs is a leading motive and agency in centralized industrial development. A similar amount of capital, because of technical advance, produces more than it did fifty years ago. Interest and profit have not advanced, hence the increasing surplus must be going to labor.* Edward Atkinson, whom Schulze-Gaevernitz so often quotes, puts the case as follows: Wages are a remainder from the sale of the product. To ascertain the share of labor the following deductions must be made : 1. Replacement of capital used. 2. A sum equal to the average rate of profit on capital in- vested in the very safest securities, and enough in addition to cover risks. 3. Cost of materials. 4. Cost of the very best administration. 5. Taxation. The remainder constitutes the wages of labor, whatever that remainder may be. Wages constitute all there is left, and under the inexorable law of competition of capital, the profits of capital are constantly tending to a minimum, while the rate and purchasing power of wages are constantly tending to a maximum.' Let us now consider first the implication of these views, and then show their bases in theory. That laborers are abso- lutely better off now than they were in the early part of the century, there can be little doubt. But that the growing advantages of civilization are being secured more fully by the laboring classes relatively than by the other classes in society » Schulze-Gaevernitz, Der Grossbetrieb, p. 219. ' Jbid. 3 Atkinson, The Distribution of Products, 1885, p. 70. no GERMAN WAGE THEORIES [406 is by no means free from dispute. The question cannot be discussed properly apart from a consideration of the relative numbers in the social classes — those who live directly on the proceeds of capital, and those who depend upon the proceeds of manual labor. Marx' contention that there always exists a reserve army, although he may not have correctly traced a causal connection between the growth of such a reserve and accumulation, has enough truth in it to make the problem of the unemployed one of grave concern. Concentration of indus- try is certainly eliminating the small producer and small dealer and converting them into laborers. If the class laborers is constantly growing relatively larger, and the class capitalists is growing relatively smaller, the returns to capital, though relatively less per unit, could secure to the capitalist relatively more as a whole than the laborer progressively receives. The question of concentration of property is of great importance, because we desire to know not so much the progressive return to capital, as the progressive return to the capitalist. Moreover, the annual wealth of a country is by no means measured by the products of manufacture, agriculture and trade — using these terms even in a wide sense ; but must in- clude the increase of the value of what from one standpoint may be called idle property. Such are city lots and other property that increase in value annually by mere situation and growth of population. These increased values accrue to persons as owners. Laborers have small share in these increments. Further, it is not certain what these authors mean by capi- tal. What is often called capital, and upon which the usual rate of interest is computed, is so often mere " water," and rep- resents no real investment, but results from capitalization. It is not, however, with the alleged fact of the relative gain of caf)ital and labor in growing industry that we have in this essay primarily to do ; but rather with the law of wages according to which the result is said to issue, viz., that wages are the residual share of the total national income to be distributed. 407] SCHULZE- GAE VERNITZ 1 1 1 So far as known to the present writer, no German author has formulated in detail the grounds of this theory. But since the residual wage theory is the basis of Schulze-Gaevernitz' work, it is desirable to make some examination of it. According to this theory, rent, interest, and profits are each governed in amount by independent laws, while wages remain as a residual share. The owners of land receive rent, the own- ers of capital receive interest, and the owners of undertakers' ability receive profits. Rent is fixed in amount by the Ricar- dian law. Interest is fixed by the law of supply and demand. Profit, the share of the undertaker as such, which hitherto had been confounded with the capitalist's share, has been of recent years differentiated as the peculiar reward for initiating and "captaining" industry, and has been assimilated to the law of rent for the use of land. Francis A. Walker, who called profits the rent of ability, has the credit of being the first clearly to expound in detail this theory of profits as well as the residual theory of wages. According to this view, profits may be stated in terms of the law of rent; profits are determined by the dif- erences existing in the productiveness of different abilities or opportunities of employers engaged at the same time in sup- plying the same market.' Profits range from the return to the poorest undertaker, who receives ordinary wages and who is called the no-profit undertaker, to the return which is limited only by business ability. All three shares are so determined that they can in no way interfere with the laborer's share. Thus runs the theory: "un- less by their own neglect of their own interests, or through inequitable laws or social custom having the force of law, no other party can enter to make any claim on the product of in- dustry, nor can any of the three parties already indicated carry away anything in excess of its normal share."' This state- 1 Walker, Political Economy, 3d ed., 1888, p. 236; Marshall, Principles of Economics, 2d ed., 1891, Book vii., oh. v , § 7. 2 Walker, Political Economy, 1888, p. 251. 112 GERMAN WAGE THEORIES [408 ment of the theory has been interpreted to mean that the laborer's share is wholly dependent upon the laborer's contri- bution to the total product.' This conclusion is not unnatural from an exclusive attention to particular parts of Walker's work,'' and an endeavor to connect wages and laborer's contri- bution from the statement that " wages equal the whole pro- duct minus rent, interest and profits."' But attention to all that Walker has written on the question of distribution makes it reasonably clear that he did not intend to teach a strictly productivity theory. That is, he did not attempt to establish any identity between the sum of values received as wages, and the sum of values produced by labor in the productive co- operation. He attempted to show that, when all the factors are working under normal conditions, there is a process of carving out shares from the total product by all the productive factors except labor; that whatever may remain after the slic- ing process is complete goes to labor as its share. If, now, the total product is increased by the energy, economy or care of labor, assuming no change in the other factors, and assuming the absence of friction, that increase goes to labor. In other words, if laborers make the total larger, and no change occurs in the efficiency of the other factors, the enlargement of labor- ers' remainder equals the enlargement of the total. This is an identity between an increment of product attributable to labor and an increment accruing to wages. At most, by this theory, the productivity theory applies to an increment and does not extend to total wages. " So far as by their energy in work, their economy in the use of materials, or their care in dealing with the finished product, the value of that product is increased, that increase goes to them by the force of natural laws, provided only competition be full and free." * '^Journal of Political Economy, y. 2, pp. 77-87, especially pp. 81-2. 'See especially Wages Question, pp. 1 29, I30. •Walker, Political Economy, 3d ed., 1888, p. 284. * Walker, Political Economy,'^. 251. 409] SCHULZE-GAEVERNITZ 113 The Germans under consideration do not attempt to modify in any important particular the main feature of Walker's theory. Hence a consideration of this part of German theory calls for no extended criticism. Such would be a criticism, not of the German work, but of that of President Walker. It may be re- marked, however, that an appreciation of the strength of this theory requires a careful consideration of wage conditions for short and for long periods of time. Attention to that differ- ence might have saved some criticisms. Walker admits that for short periods his theory does not hold true. When we have made all allowances, the theory fails to satisfy the mind completely. An efficient competition of capi- tal is assumed, while the equally at times efficient competition of labor is minimized. Money wages are for the most part in the author's mind, and there is hence a lack of definiteness as to the true relation of capital to wages, and no determination of consumable goods as the source of real wages. in THE CENTRALIZATION OF ADMINISTRATION IN NEW yORK STATE STUDIES IN HISTORY. ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK Volume IX] [Numbers THE CENTRALIZATION^ OF ADMINISTRATION IN NEW YORK STATE BY JOHN ARCHIBALD FAIRLIE, Ph.D. University Fellow in Administration COLUMBIA UNIVERSITY 1898 TABLE OF CONTENTS CHAPTER I PAGE Introduction ii The process of decentralization 1 1 Minimum of central control 12 Beginning of the reflex movement 12 Development of central organs of control 13 Direct State administration 14 Local centralization 15 Effects of urban development 16 Increased powers of city mayors 17 Purpose and outline of essay - 20 CHAPTER II PUBLIC EDUCATION I. The Common School System I. The development of State aid and State control 22 First State appropriation, 1795 22 Organization of the common school system 23 Appellate jurisdiction of the State Superintendent, 1822 . . 24 The County Superintendents, 1841-1847 26 Increased State grants 27 Department of Public Instruction established, 1854 ... 28 District Commissioners, 1856 29 Additional powers to the State Superintendent 30 Teachers' Institutes and Normal Schools 30 Rapid development of school expenditure 31 Period of quiescence, 1868-1885 32 Recent increase of expenditure and central control .... 32 Summary 32 415] V vi TABLE OF CONTENTS [416 PAGE 2. Local School Authorities 33 School districts and trustees 34 Union free school districts 35 School Commissioners 36 Cities : Boards of Education 38 3. The State Superintendent of Public Instruction 39 His position in general 39 Apportionment of State grants 39 Reports of local officers 40 Direction of School Commissioners 40 Appellate jurisdiction 41 Statutory powers and judicial decisions 41 Character of appeals and rulings 44 Advisory influence 48 Plans for school buildings 48 Outline course of study 48 Legislative control over studies 49 Supervision over enforcement of Truant Law 50 Control over the education and selection of teachers ... 52 Uniform teachers' examinations 52 Direction of Teachers' Institutes 53 Normal schools and training classes 54 Principles of State control 56 Results 57 II. The University of the State of New York Origin of the Regents of the University 59 Incorporation of institutions 61 Distribution of State aid 64 Reports and Visitations 66 Academic examinations 68 Examination of professional and technical students .... 69 University Extension 72 Administrative Organization 73 Unification of the State educational bureaus 74 417] TABLE OF CONTENTS vii CHAPTER III Charities and Correction PACK 1. Historical development of charity administration 78 The town system of relief 78 Transition to county administration, 1820-1830 80 State aid to special classes 81 State Board of Charities, 1867 84 Legislation of 1873 85 State Commission in Lunacy, 1889 86 State care of the insane consummated 87 The Estimate Law, 1894 87 Additional powers to the State Board of Charities .... 88 2. The State Insane Hospital system 91 Local management 91 The State Commission in Lunacy 92 Membership 92 Powers of inspection and recommendation 93 Rules and regulations 93 Approval of estimates for expenditures 94 Results of centralization 94 3. The State Board of Charities 97 Membership and organization 97 Supervision and control 99 Legal authority before 1894 99 Results accomplished 100 Improvement in county poor houses loi Better management of local institutions 103 State institutions 104 Additional powers granted, 1894-1896 106 Department of Inspection 108 Approval of new incorporations no Direct Administration no The Superintendent of State and Alien Poor . . . .111 General estimate of the extent of centralization] 112 viii TABLE OF CONTENTS T^iS PAGE 4. The administration and supervision of penal institutions . .114 Prison administration in the colonial period 114 The establishment of State prisons 115 Centralization of State prison management 116 The development of penitentiaries 117 The State Commission of Prisons established, 1895 . . . .118 The new system of convict labor 119 Supervision of county jails and penitentiaries 119 Additional authority conferred on the Commission, 1898 . 122 CHAPTER IV Public Health Administration I. Historical sketch of health legislation 124 Early quarantine regulations 124 New York City Board of Health, 1 796 125 Local boards of health, Acts of 1832 and 1850 126 The Metropolitan Sanitary District, 1866-1870 129 The State Board of Health, 1880 130 Increased powers given to the State Board 131 Summary 132 2. The State Board of Health 133 Organization 133 Advisory and educational influence 134 Reports and Vital Statistics 136 Approval of plans for sewage systems 137 Powers of positive control 138 Direct administration 139 3. The results of central supervision 141 The organization of local boards of health 141 Sanitary conditions in 1880 142 Improvement tested by mortality statistics 144 Decreased death rate from causes influenced by sanitary conditions 145 Relation of central supervision to this decrease 145 419] TABLE OF CONTENTS ix PAGE Further improvement possible 145 Increased supervision advocated 146 CHAPTER V Taxation and Local Finance 1. The evolution of decentralized tax administration 148 The Dutch period. Customs and Excises farmed . . . 148 The direct administration of customs, 1664 149 Establishment of the county rate, 1664 149 Origin of the county supervisors, 1691 151 The general property tax as a province tax 151 Supervision by justices of the peace 153 Complete decentralization established 154 Legislative control over customs and excise 155 Excise revenue localized, and administration decentralized. 156 Customs assumed by the federal government 157 Brief period of central control in property tax administra- tion, 1799-1801 158 Summary 159 2. The equalization of tax assessments 159 Undervaluation and unequal rates of assessment 159 Inequalities accentuated by increased taxation, 1850-1860. 160 The State Board of Equalization established 161 Its authority, methods and results 162 Complaints against equalizations 163 Irregularities and variations shown in the results 165 Undervaluation in personal property assessments 166 Increased central control proposed by Tax Commissions and State Assessors . . 167 The Tax Commissioners, i8g6 ; their additional powers . . 168 Increased Assessments in 1897 169 New system of county equalizations 170 3. Administration of new State taxes 171 The Corporation Tax 172 Centralized, but with no subordinate force 172 X TABLE OF CONTENTS [420 PACE Special commissioners appointed, 1892 173 Appeals from Comptroller's valuations 1 74 Comptroller's directory power over sheriffs 1 74 The Inheritance Tax 175 Local administration with no central control . . . .175 Surrogates' reports to Comptroller 176 Provisions for re-appraisals 177 Comptroller's audit of appraisers' accounts 178 The Liquor Tax 178 Local boards of excise before 1896 179 The Liquor Tax Law of 1 896 1 79 The State Excise Commissioner 180 Deputy commissioners and special agents 180 Administrative results of the new system 182 Central control sustained by courts 183 4. Central control over local finance 184 Audit of County Treasurer's accounts 184 Improved results secured by central control 185 Legislative control of city finances 186 Proposed administrative control 189 CHAPTER VI Conclusion Causes of centralizing tendencies 192 Changed economic conditions 193 General centralizing movement 196 Different grades of centralization 197 Administrative policy 197 Functions of central and local administration 198 Justification of central supervision 199 Forms and methods of central control 202 Purposes of administrative control 203 Different forms of central organs 205 Co-ordination of State bureaus 206 CHAPTER I INTRODUCTION The government first established over the early settle- ments within the present limits of New York State centralized all power in the hands of the Governor. The Directors General appointed by the Dutch West India Company and the first Governors sent over by the Duke of York possessed supreme legislative, judicial and executive powers; and these were exercised at first not merely in matters concern- ing the colony as a whole, but also over the purely local affairs of the various settlements. The constitutional history of the colony during the seven- teenth and eighteenth centuries is a history of constant aggressions upon the powers and prerogatives of the Gov- ernor. First, the outlying towns gained a practical inde- pendence in their local affairs, which was more fully recog- nized under the English rule by the Duke of York's Laws. Later, the cities of New York and Albany received a large degree of autonomy. The establishment of a legislature in 1691 was followed immediately by the creation of an elected county authority; and by gradual steps, during the next hundred yfears, the powers of both legislature and county supervisors were increased at the expense of the central executive. This decentralization, however, did not become so com- plete in New York as it was in the New England States. Much that was done by the New England towns was in New 421] 11 1 2 CENTRALIZA TION IN NE W YORK [422 York performed by the county authorities ; and a consider- able part of the work of local administration remained sub- ject to the control of the central government, through the power of appointing and removing sheriffs, justices of the peace and the mayors of the cities.' The maximum of de- centralized administration was not reached until the third decade of the present century, when the local officers ap- pointed by the central government became elective officials. The Common Councils of the cities were given the power to select their mayors by the Constitution of 1821, which also provided that the sheriffs should be elected in each county ; and in 1826 a constitutional amendment made the justices of the peace elective. But even at this time central control over local officers was not altogether abandoned. The Constitu- tion of 1 82 1, while making the sherifTs elective, gave the Governor a limited power of removal over various county officers. Any sheriff, county clerk or register could be re- moved during his term of office, provided that before any removal, the officer should be given a copy of the charges against him, and an opportunity to be heard in his defense. These restrictions on the power of removal were serious limitations on the control which could be exercised over the local officers, but it is important to notice that even in the period when administration was most decentralized, there was at least a limited control over the county officials. It was only a year after the adoption of the Constitution of 1 82 1 that an important, though isolated, step was taken in the reflex movement toward a more centralized administra- tion. This was the grant to the State Superintendent of Common Schools of an appellate jurisdiction over the acts ' Before the Revolution this appointing power was held by the Governor. By constitutional amendment in 1801 it was transferred to the Council of Ap- pointment, consisting of four members of the State Senate elected annually by the Assembly. 423] INTRODUCTION 1 3 of all local school officers. For the next three decades there was little further permanent advance in this direction ; but since the middle of the century, and especially in the last twenty years, the return tide has become stronger, so that a considerable degree of centralization in New York State administration has now been reached. In the first place, we may note the extensions of the cen- tral control first established : The Constitution of 1846 in- cluded the county coroners and district attorneys in the list of officers subject to removal by the Governor ; and by a statute of 1892' county superintendents of the poor and notaries public are also included. Thus practically all the county administrative officers may be removed for proven violation of the law or other malfeasance in office. The authority of the State Superintendent of Schools has also been much extended from time to time ; and that officer now possesses a most important power of control over the com- mon school system throughout the State. Over the second- ary schools and higher institutions of learning, a no less effective power of supervision is exercised by the Regents of the University. In other spheres, formerly left to the independent action of local officials, there have been established central authori- ties with powers of investigation, advice, direction and some- times of compulsion. In 1859 the State Board of Equaliza- tion was created; in 1867 the State Board of Charities, and in 1880 the State Board of Health. The Civil Service Com- mission through its power of approving the rules of City civil service boards has gained a slight control over the choice of subordinate officials in cities. The Comptroller has been given a limited control over the assessment and collection of the Inheritance Tax, and over county treas- ^ Laws' o/i&(j2, u. 681. J 4 CENTRALIZATION IN NEW YORK [424 urers ; the supervision over the local assessment of the general property tax has been made more stringent by the law of 1896 establishing the Tax Commissioners ; and a still more thorough control has been established over the administra- tion of the Liquor Tax Law, through the Excise Commis- sioner and his subordinates. The Commission of Prisons, created in 1895, exercises a central supervision over county jails and penitentiaries. Finally, by an Act of 1898, the State Engineer is given important powers in preparing plans and supervising the construction of certain highways, to which State aid is to be given. In some fields of governmental activity formerly left to local governments a more complete centralization has been established. The most important of these has been the care of the insane, all of this class being now maintained in the State insane hospitals. These and other charitable in- stitutions, normal schools. State prisons and reformatories provide a large sphere of direct State administration over education, charities and correction, subjects which were, at the beginning of the century, entirely under local control. Direct State administration has also developed through the creation of bureaus for the exercise of new governmental functions. Thus the management of the State canals, the supervision over certain kinds of business by the Superin- tendent of Banking, the Superintendent of Insurance and the Railroad Commissioners, the work of factory inspection, the arbitration of labor disputes, and a number of less im- portant matters are completely centralized. The perform- ance of some of these functions might have been entrusted to the localities. A strict adherence to the policy of decen- tralized administration would have given over the supervision of factories and the arbitration of labor disputes to local officers. The direct administration of these functions by the State is, therefore, significant and indicates that centralized 425] INTRODUCTION 1 5 administration has been sometimes established in preference to a possible system of local administration. Even those bureaus which deal with matters which could not be attended to by local authorities have a part in the centralizing move- ment. They help to increase the total amount of direct State administration, and thus to make that relatively more important than the sphere of administration left to local officers. The extent of this direct State administration deserves notice. There are over forty permanent State bureaus and commissions, besides a number of temporary boards ap- pointed for special purposes. The roster of State employees occupies over 130 pages in the report of the Civil Service Commission and includes over 6,000 persons. These figures make it evident that the amount of central administration in New York State is very considerable. Its comparative im- portance may be indicated by noting that in 1890 the ex- penditures by State authorities (excluding funds turned over by the State to local officials) was almost equal to the ex- penditures by counties and towns.' Since 1890 the direct State expenditure of New York has nearly trebled, a large part of the increase being caused by the assumption of func- tions formerly left to the local governments. Apart from the cities, the expenditures of the local authorities are now insignificant compared with those of the State. In addition to these tendencies toward State control and direct State administration, there has been a marked devel- opment of what may be called local centralization. This has taken place to some extent by the transfer of certain functions from the towns to the counties, notably the super- vision of public schools and the administration of poor relief. But by far the most important phase of this development has 1 Eleventh Census of the United States : Wealth, Debt and Taxation, ii., 441. 1 6 CENTRALIZATION IN NEW YORK [426 been in connection with tlie growth of cities and with recent changes in the organization of city government. The progress of urban development acts of itself as a cen- trahzing force in two directions. With the concentration of a large population, even within the original boundaries of a town, the local government becomes a mass of details, most of which require specialized knowledge and are of little gen- eral interest; popular knowledge of the government disap- pears, and the local ofiScials, with a larger and growing field of action, are less and less subject to popular control. When, however, the increase of population goes beyond former boundaries, we have not only a steady increase of the influences mentioned, but in addition, as the boundaries of the city are extended, there is the abolition of former local governments and local centers of action. One city govern- ment takes the place of several towns or a large part of a county, and in the most recent and most noted instance sev- eral counties have been included within the limits of the single city of New York. This process has been going on throughout the United States, but in New York State it has reached vast and most significant dimensions. In 1 790 New York city was the only community in the State of more than 8,000 population, and its population was less than one-tenth of the entire State. By 1830 there were seven cities of over 8,000, and the urban population had increased in the forty years nine-fold ; but the relative increase of city population had not as yet be- come marked — the ratio in 1830 was only fourteen per cent. It is since 1830 that the wave of urban movement has set in most strongly. In the next forty years the city population had again been multiplied by nine, and had reached forty- three per cent, of the entire population of the State. By 1890, the city population was double that of 1870, and the thirty-six cities of over 8,000 inhabitants had nearly sixty 427] INTRODUCTION 17 per cent, of the population of the State.' During these six decades the non-urban population of the State has remained at almost the same figures. Since 1890 the increase of city population has continued with no signs of cessation. By the extension of the boundaries of New York City one-half of the inhabitants of the State came under one local govern- ment, and almost a half of the rest are in the other forty cities of the State. Hardly a fourth of the people of New York State are in communities small enough to retain ef- fective local self-government, and deducting the inhabitants of incorporated villages, probably less than fifteen per cent, are under the true democracy of the town meeting. The centralization in local government resulting from the development of urban communities has been further intensi- fied by changes in the organization of city governments. The first changes from the colonial system of council govern- ment had tended to a distribution of functions among inde- pendent executive boards; but the recent tendency has been to concentrate authority in the hands of the Mayor, through his power of appointment and removal of the heads of de- partments, and by requiring a large majority to override his vetoes. The first city charter to adopt this centralizing principle 'URBAN POPULATION OF NEW YORK STATE. New York City Brooklyn Other cities over 8,000. Total urban population Population of the State Per cent, of urban popu- lation Number of cities with over 8,000 population 1790. 33.131 33.131 340,120 10% I 1810. 96.373 10,762 107.13s 959.049 11% 2 1830. 197,112 74.369 271,481 1850. 5 "5.547 96,838 236,000 848,000 1,918,608 3,097,394 Hfo 7 21% 14 1870. i8go. 942,292 396,099 540,000 1,890,000 4.382,759 43 f« 23 1.515.301 806,343 1,172,000 3,494,000 5.997.853 58 f« 36 ]8 CENTRALIZATION IN NEW YORK [428 was the revised charter for Brooklyn of 1882, which gave the Mayor of that city absolute power of appointing nearly all the heads of the city departments. In 1884 the Mayor of New York City was given absolute power of appointment by taking away the confirmatory power of the Board of Aldermen ; but removals were subject to the consent of the Governor until 1895, when an absolute power of removal was granted for the first six months of each Mayor's term. By 1 89 1, the Mayor's absolute power of appointment of most or all of the department heads had been established in Long Island City, Ithaca, Syracuse and Utica. In Binghamton, Newburgh, Poughkeepsie and Yonkers the Mayor held the independent power of appointing some officials, although for most positions the confirmation of the Council was neces- sary.' In 1 89 1 a revision of the Buffalo charter established the Mayor's independent appointing power in that city;^ and charter revisions for Hudson in 1895 and Kingston in 1896, included these also in the list of cities having auto- cratic Mayors.* On the other hand, Troy and Yonkers have had complete charter revisions without introducing this principle,* and only two of the ten cities incorporated since 1890 give the Mayor this absolute control over appoint- ments.^ The charter for New York city,' however, introduces a still further centralization in the hands of the Mayor. His absolute power of removal is still limited to the first six months of his term ; but his control over the expenditures is so complete that his power over the entire administration is much increased. This control over the finances is secured first, by the fact that he and his appointees constitute a ' Fassett Committee Report. ' Laws of 1891, c. lOJ. '/*«V., 1895, t. 751. Laws of iZq6, c. l/^."]. */(5»V., 1895, u. 277; c. 635. * Geneva and North Tonawanda. Zawj tf/" 1897, c. 360; 0.361. 'Laws ofiSgj, c. 378. 429] INTRODUCTION 1 9 majority of the board of estimate and apportionment which frames the budget for all the city departments ; and secondly, by his veto over any change in the budget made by the Council, which veto can only be overridden by a five-sixths vote of all the members of both branches of the Council. The views of the Mayor will thus, in practice, determine the expenditure of every department of the city government; and through this financial control he can limit, if he cannot altogether direct, the work of the departments, even after his power of removal has expired. The centralization is made even more complete by the fact that these administrative departments now possess most of the authority formerly possessed by the City Council. Another change made by the new charter has been the extension of the Mayor's term to four years, so that for this length of time the government of the city of New York is almost completely in the control of one man. The uniform charter for the government of cities of the second class,' which goes into effect on January ist, 1900, places a much more sweeping power of control in the hands of the Mayors of these cities. All of the administrative officers, except the Comptroller, Treasurer and Assessors are to be appointed by the Mayor, and to be subject to his absolute power of removal at any time during their term of office. Moreover, a meeting of these heads of the depart- ments with the Mayor for consultation and advice is to be held at least once a month, while the Mayor can at any time call for reports or summon conferences. It is thus the evident purpose of the law that the Mayor shall direct and control the administration in every way. If further authority were needed, it could be secured by the Mayor's control over the board of estimate, and over the board of contract ' Rochester, Syracuse, Albany and Troy. 20 CENTRALIZATION IN NEW YORK [430 and supply, which makes all contracts where the cost ex- ceeds two hundred dollars. He and his appointees consti- tute a majority of the former board, and four of the five members on the latter. Finally, the Mayor may veto any ordinance or any part of an ordinance passed by the com- mon council ; and his veto can be overcome only by a three- fourths vote of the entire council. It is the purpose of this essay to consider, in some detail, those of the centralizing tendencies here outlined where a State administrative control or direct State administration has been established in matters formerly left to the inde- pendent action of the localities. In these departments cen- tralization indicates a more open departure from the former policy of local independence than in the other instances mentioned. At the same time it is possible in these fields of governmental action to trace the steps in the centralizing movement, to measure the stage now reached, and by a comparison of present with earlier conditions to consider whether or not the results have justified the change of policy. The field of education, in which central control first ap- peared and in which it has been farthest developed, will be given first consideration. The central authorities in the two departments of common schools and higher education have been so completely differentiated that a separate treatment must be given of each ; but the fact that both authorities deal with the same general subject of education justifies unit- ing them in the one chapter. The second chapter — on Charities and Correction — deals with three State authorities. The grouping of the State Commission in Lunacy and the State Board of Charities is warranted by the historical development as well as by the kindred nature of the subjects ; and the work of the Commission of Prisons is sufficiently allied to include it in the same division. The relations of the State Board of Health to the local authorities have 43 1 ] INTRODUCTION 21 no close connection with other subjects, and fail naturally into a separate chapter. Following this, in the chapter on Taxation and Local Finance, three different authorities are included — the State Tax Commissioners, the State Comp- troller and the Excise Commissioner. After the consideration of the development, present status and results of the leading centralizing tendencies, an attempt will be made in the concluding chapter to analyze the gen- eral causes of the movement and to discuss the principles which should determine administrative policy. CHAPTER II PUBLIC EDUCATION I. THE COMMON SCHOOL SYSTEM I . The Development of State Aid and State Control The early history of education in New York gives little promise of the high degree of central control which has come to be established during the present century. Through- out the colonial period the only action by the Province legislature concerned the establishment of academies, and whatever was done in the way of common school education was through private or local action.' The relations of the State government to this latter problem begin with the law of i79Si^ appropriating ;^20,ooo annually for the encourage- ment of schools. This amount the legislature apportioned among the different counties ; the apportionment to the various towns was entrusted to the supervisors in each county, and the local management was entirely in the hands of elected town commissioners and school district trustees. The trustees were required to make reports to the town commissioners as the basis for the district apportionment of the State appropriation; and reports of the number of schools, scholars and days of instruction were to be for- warded through the town commissioners and county treas- ' As early as 1691 a bill was proposed in the New York Assembly "to appoint a school-master for the educating and instructing of children and youth, to read and write English in every Town in the Province." No action was taken on this bill. — Journal of New York Assembly, 1 691-1743, p. 7. 'Laws 0/1795, c. 75. 22 [432 433] PUBLIC EDUCATION 23 urers to the Secretary's office at Albany. There is, however, no provision for either State or county control or super- vision in the system of school administration thus set up ; and although the State appropriation was continued annually for ten years, there was no action taken towards inspection or control of the schools aided from the State funds. In 1805 the school appropriation was allowed to lapse, and although the accumulation of a Common School Fund was at the same time provided for, there was to be no dis- tribution until the annual interest of this fund amounted to $50,000. It was not until 18 14 that this situation was reached, and during this interval common school education became again entirely a subject for local action or inaction as the case might be. With the renewal of State aid for schools from the interest of the Common School Fund, Acts were passed for the organization of the school system throughout the State.^ The Massachusetts "district sys- tem" was made the basis, probably because existing local schools were established on that plan. Each district meet- ing of freeholders and taxpayers was authorized to locate its school, levy local taxes, and elect a board of trustees, who employed the teachers and directed the management of the schools. There were also to be school commissioners in each town, to whom the trustees were to make reports, and town inspectors to examine candidates for positions as teachers. The grants from the State were made conditional on the raising of an equal amount by local taxation, and the first step was taken in the direction of central supervision by providing for a Superintendent of Common Schools, selected by the Council of Appointment, at an annual salary of $400. The chief duties of this officer were in the management of '^ Laws o/lSl2, c. 242. Laws of 1814, c. 192. 24 CENTRALIZATION IN NEW YORK [434 the Common School Fund, his powers of control over the schools and local officers being but slight. He was, how- ever, to prepare plans for the better organization of the schools, to apportion the State appropriation among the counties according to their population, and the reports of the school trustees to the town commissioners were to be forwarded to him. In the introduction and organization of the new school system, the first Superintendent, Gideon Hawley, did not limit himself to the duties specified in the statute. By his activity he demonstrated the possibilities of his position, and the successful establishment within eight years of 5,500 schools with an enrollment of over 300,000 pupils has been ascribed in very large degree to his work. The uncalled for removal of Superintendent Hawley, in 1821, caused the leg- islature, as a means of censuring this action of the Council of Appointment, to transfer the duties of Superintendent of Schools to the Secretary of State. This change was in effect a reduction of the central control over the educational sys- tem, for although that officer could perform the specific duties laid down in the law, his other functions made im- possible the same active work outside the letter of the statute as could be done by a separate official. The first step in the direction of an increase in the central control was in 1822,' when the acting Superintendent of Schools was given an appellate and final jurisdiction over all acts and decisions of local school officials. The power thus conferred on the State Superintendent has been of the greatest importance ; it in effect constituted him an ad- ministrative court, and his decisions on the thousands of cases that have been presented form a body of administrative law controlling the powers and duties of all local school of- ^ Laws of 1S22, t. 245. 435] PUBLIC BDUCATION 25 •ficials. The scope and significance of this authority will be •considered in detail later ; it is only necessary here to note its general character and its place in the historical develop- anent of central control. The need for a more effective supervision of the schools and local school authorities soon began to be felt. Gov- pernor De Witt Clinton, in his message to the Legislature in 1826, pointed out that the Superintendent of Schools was prevented by his other official duties as Secretary of State from visiting the schools in person, while in fact he had no legal authority to make such visits. The Governor held that " a visitorial authority for the purpose of detecting abuses in the application of the funds, of examining into the modes and plans of instruction, and of suggesting improve- ments would unquestionably be attended with the most pro- pitious effects. " ' These opinions were endorsed by the Literature Committee of the State Senate, whose chairman ■urged that " the State, which contributes so large a pro- portion of the compensation of the teachers, has a right to direct its application in such a way as to effect the object of procuring useful instruction." '^ Similar recommendations -were made in the following year by the Secretary of State in his capacity as Superintendent of Schools. But no action was taken by the legislature ; and the local authorities con- tinued for fifteen years more to direct the management of the schools free from any effective inspection and supervision. In 1839, John C. Spencer, Chairman of the Senate Litera- ture Committee of 1826, became Secretary of State, and ex- ^fficio Superintendent of Common Schools. With the earlier proposals still in mind, he secured from the legislature the authority to appoint unsalaried county boards of visitors to ^ S. S. Randall : History of the Common School System of the State of New York, p. 51. ^ Randall, op. cit., loi, 105. 26 CENTRALIZATION IN NEW YORK [436 visit the schools and report with suggestions for improve- ment.' The reports of these boards of visitors recommended the estabUshment of an efficient and systematic county super- vision under the general direction of the State bureau, as a substitute for the existing inefficient method of town inspec- tion. These reports and the greater official influence now held by Mr. Spencer secured the enactment, in 1841, of the scheme proposed by him fifteen years before. The Act of 1 84 1 '■' provided for the appointment by the Secretary of State of a Deputy Superintendent of Schools,, thus making possible a greater central activity in carrying out the powers conferred by previous statutes. For the vis- itation and inspection of the schools, there was to be a Superintendent in each county, who should recommend to school trustees and teachers the proper studies, books, dis- cipline and conduct of the schools; examine and grant, certificates of qualification to teachers ; and also decide in the first instance on appeals subject to the jurisdiction of the State Superintendent. These county superintendents, al- though appointed by the supervisors in each county, were to act subject to the rules and regulations of the Superin- tendent of Schools, and half of their salaries was paid by the State. With the Deputy Superintendent at Albany and this corps of county officials, a much more thorough system of school supervision and a much more effective central control was made possible. The new system of inspection brought about great im- provements in school administration, and its benefits were so clear that Superintendent of Schools Young, who when he succeeded Mr. Spencer as Secretary of State was a violent opponent of the change, soon became its enthusiastic sup- porter.' Legislative committees and prominent educators. '^ Laws 0/1839, >^- 33°- ^ Ibid., 1841, c. 260. ^Reports of Supt. of Schools, 1843, '844, 1845. 437] PUBLIC EDUCATION 2 J also strongly approved of the plan and methods adopted. Nevertheless, there arose a strong demand for the abolition of this system of supervision.' Local trustees and town commissioners were not pleased to find their former inde- pendence interfered with, while injudicious pohtical selec- tions by supervisors in some counties resulted in the ap- pointment of some incapable and oppressive officials,^ For these and other reasons the clamor against the Act con- tinued, the pressure on the legislature finally became too strong, and in 1847 the county superintendent system was abolished.* On the face of it, the result was to place the town and district officers in direct connection with the State department ; but in fact, as the State Superintendents recog- nized, any effective supervision of the local officers without a corps of officers acting under the direction of the State bureau was impossible, and the result was plainly a long step in the direction of decentralization. The reaction was only temporary. Other forces were at work, and soon new measures were taken which so increased the amount of State aid to the common schools that a re- turn to the policy of further State intervention in the man- agement of the schools was inevitable. Already in 1838 the interest of the United States Deposit Fund had been appro- priated to the schools,* increasing the annual State appro- priation from $110,000 to $275,000. Just at the time the office of county superintendent was abolished the agitation for free schools was beginning; in 1849 the Free School Act was adopted by a referendum vote ; ° and, although the prac- tical realization of free schools did not come until much later, an important step in that direction was taken in 1851, when a State tax of $800,000 was imposed by the legislature for the support of the common schools, in addition to the 1 Randall: op. cit., 177. ''Ibid., 233. 'ZaroJ ij/" 1847, c. 480. * Hid., 1S38, c. 22J. '/W(f., 1849, c. 151. 28 CENTRALIZATION IN NEW YORK [438 income of the Common School and United States Deposit Funds. The increase of State aid was not for the purpose of in- creasing State control, for the new appropriation was turned over to the town commissioners and district trustees, to be expended at their discretion in the same way as the earlier grants. Nevertheless, the increased State appropriation paved the way for a larger degree of inspection and super- vision of the schools, and in fact made a more thorough con- trol almost essential. An important step in this direction was the organization, in 1854, of a separate Department of Public Instruction.^ The general oversight of the schools had hitherto been en- trusted to an oiificial burdened with many other duties, and although since 1841 there had been a special Deputy Super- intendent of Public Instruction, his duties were those of a subordinate, and the Secretary of State remained as the head of the school system. An independent Superintendent of Public Instruction, freed from all other functions, could necessarily exercise a greater activity beyond the sphere of statutory duties. In addition to the former powers of the Secretary of State, the Superintendent of Public Instruction was given authority to visit the schools and make inquiries into the course of instruction, management and discipline. Even although he could not personally visit any large num- ber of schools, the grant of this power is significant of the tendency towards a larger control over the local school officers. In 1856 the State school tax was changed from a tax for a fixed sum to a ^ mill tax,^ which at the existing valuation gave an immediate increase of $300,000 in the State grants for schools. At the same time came the re-establishment of ^ZazKj 0/1854, c. 97. ''Ibid., i856,i;.i79. 439] PUBLIC EDUCATION 29 an effective system of supervision, which had been urged constantly by the State Superintendents since the repeal of the county superintendent system in 1847. The new system differed in some respects from that established in 1841. There was to be a school commissioner for each Assembly District, instead of a Superintendent for each county, and the commissioners were to be elected instead of appointed by the board of supervisors. Although chosen by local election, the district commissioners being subject to the rules and regulations of the State Superintendent, and receiv- ing their salary from State funds on his order, were under the direction of that officer, and the introduction of the system marks an important step in the extension of state control. The powers and duties of the district com- missioners included the examination of the management, instruction and discipline of the schools, and the condition of school buildings and grounds ; the recommendation of improvements in all these lines ; the examination, licensing and annulling licenses of teachers, and the organization of teachers' institutes. The authority of the district commis- sioners did not, however, include the city schools. The re-introduction of the system of supervision evoked at first considerable complaint,' but the State Superintendents were satisfied that it produced good results, and it has con- tinued as a permanent part of the New York school system. Acting State Superintendent Keyes, in his report for 1862, summarizes the benefits derived from the system in these words: "An officer of extended jurisdiction has a higher and wider range of influence, is more generally consulted upon questions of school policy and in matters of school controversy, and his opinions and advice have a consequence and weight that cannot attach to a local officer of limited jurisdiction." ^ ^ Randall, op. cit., 338. ' Ibid., 349. 30 CENTRALIZATION IN NEW YORK [440 After the establishment of the commissioner system of supervision, the next few years showed no new developments in the New York school system. But in the middle of the decade, 1 860-1 870, came a new period of activity, in which the scope of both local and central governmental action along educational lines was much increased. The general revision of the School Law in 1864' contains some additions to the powers of the State Superintendent over the schools, authorizing him to appoint unsalaried school visitors in the counties, and to remove school commissioners or other school officers for wilful violation or neglect of duty. The powers of the district commissioners were also increased by giving them authority to condemn unfit school buildings, and to direct trustees to make necessary repairs, in addition to their former powers of recommendation. The most im- portant advance at this time was in the introduction of cen- tral control in the management of teachers' institutes. The Act of 1856 had authorized the district commissioners to organize such institutes in the various counties; and in 1861 they were held in 47 counties, with an attendance of 7,488 teachers. Under the law of 1864, the organization of such an institute in every county was required, a State appropria- tion was set aside for their support, and they were placed more directly under the jurisdiction of the State Superin- tendent by requiring the district commissioners to act in arranging these meetings under his advice and direction, and further by authorizing him to employ persons to conduct and teach at the institutes. These gatherings of the teachers for even a single week in each year gave opportunity for helpful comparisons of methods, and increased the interest and enthusiasm of those attending for their work. The ex- tension of the State Superintendent's authority over this ^Laws, 1864, c. 555. 441 ] PUBLIC EDUCATION 3 1 field was, therefore, an important advance in his control of the educational system, and enabled him to influence more directly than before the instruction given in the district schools. In addition to the institutes intended for those actually engaged in teaching, a system of normal schools for train- ing a body of teachers was also developed. The State Normal School at Albany was established in 1844;' in 1866 the more important State officers were constituted a Com- mission to determine the location of other schools,' and within four years eight additional normal schools had been established in different parts of the State. The administra- tion of this normal school system was entirely centralized under the control of the State Superintendent. For each school there was provided a local board to direct and super- vise the instruction ; but these boards were appointed by the State Superintendent, and all their more important acts were subject to his approval. Along with these developments of central control over school administration there went a rapid increase in the amount of State aid. In 1863, the State School Tax amounted to a little over $1,000,000 ; in 1868, itwas $2,400,- 000. At the same time came the final step in the complete realization of the Free School Act of 1 849 ; in 1 867 an Act was passed by the Legislature abolishing all rate bills in the public schools, making them free to every scholar. The in- creased State activity in educational affairs was accompanied by a no less increase in local educational activity in the same period. This is shown clearly by the enormous increase of yearly local taxation for school purposes from $2,500,000 in 1 863 to $7,000,000 in 1 869 ; and it is worthy of note that this development is equally striking in both city and rural taxation. * Laws 0/° 1 844, c. 3 1 1 . ' IHd., 1 866, c. 466. 32 CENTRALIZATION IN NEW YORK [442' The unusual progress shown during these few years both, in administrative centralization and in the extension of school facilities and equipment was followed by a long period in which little further advance was made. For nearly twenty years there was no extension of the powers of the State authorities, and during these years the increase in both State and local expenditure for schools was at a rate which barely kept pace with the growth of population. In the last twelve years, however, there have been further rapid advances along both lines. From 1885 to 1896 the annual State school tax increased from $3,000,000 to $4,000,000; the total annual expenditure for school purposes rose from less than $12,000,000 to $25,000,000 ; and at the same time there has been a considerable development of central control over the school system. Thus, in 1887, a uniform system of teachers' examinations under the direction of the State Department was substituted for the former method of independent commissioner exam- inations. In 1889, the supervision of teachers' training classes in high schools and academies was transferred from the Regents of the State University to the Superintendent of Public Instruction. The Compulsory Education Law of 1894 provided for a small force of inspectors attached to the State department to investigate the enforcement of the Law. These and other minor additions to the authority of the State Superintendent in the aggregate materially strengthen the central control over the school system. To review this brief sketch : — we note that the development toward central control in the first half of the century was not without reactionary steps. The office of State Superin- tendent of Schools, created in 18 12, was abolished in 1821, and the powers of that officer conferred on another official busied with other and unrelated duties. The county super- intendent system of supervision, established in 1841, was 443] PUBLIC EDUCATION 33 abandoned after six years' experience. Nevertheless, even in this period, there were permanent measures in the direc- tion of increasing the central authority, prominent among these being the appellate jurisdiction of the State Superin- tendent, conferred in 1822, and the provision for a Deputy Superintendent in 1841. Since the creation of a separate Department of Public Instruction in 1854, the movement has been uniformly but not always steadily in the direction •of strengthening the authority of that department. The system of district commissioners, established in 1856, made ■possible a closer supervision of the local schools ; in the leg- islation of 1864-67 the State Superintendent's control was increased through the supervision of training teachers, and in other details ; during the last ten years the entire system of examining teachers has been placed under his imme- diate direction, and the supervision of school attendance and other details of school management have come to a greater or less degree under his general oversight. The present stage of central control has been reached not by any sudden change of policy, but through a series of measures extend- ing over a period of a hundred years. This development of central control has moreover been -closely connected with the increase of State grants. For al- though State aid does not seem to have been given for the purpose of establishing control, the State appropriations have rendered necessary State supervision, and, as these State grants have increased, the control over the local authorities has been made more complete and more effective. 2. Local School Authorities The discussion of the existing system of State control over the public school system necessitates some understanding of the local organizations over which this control is exercised. Jt is not possible to give here any detailed account of the 34 CENTRALIZATION IN NEW YORK [444 various local authorities and their functions in school admin- istration ; but with a brief statement of the broader outlines of this organization the fuller discussion of the authority of the State Superintendent of Public Instruction will be more intelligible, and his position in the general school system better understood. The School District. — The primary unit for rural school administration in New York is still the school district. There are now over 11,000 such districts in the State, an average of twelve to each town. In each district there is a meeting of all tax-payers and resident citizens on the last Tuesday in August of each year for the discussion and de- cision of school matters for the district. This district meet- ing, which is in fact a town meeting on a small scale, appoints its chairman, elects district officers (one or three trustees, a district clerk, collector and librarian), designates school- house sites, selects text-books, and votes local taxes for school purposes to supplement the district's share of the state grant. The taxing power of the district meeting is however limited to certain specified purposes, for certain of which a maximum amount is also set in the statute ; while the trustees are also authorized to levy a tax to pay defici- encies in the teacher's salary, even if no vote is passed by the district meeting. The important officer of a school district is the trustee. If a district has a sole trustee, his term is one year ; if there are three trustees, one is chosen each year for a three years' term. The trustees of every school district prepare the tax list and direct the collection of the school tax in their dis- trict. They carry out the votes of the district meeting in regard to the purchase or lease of a school-house site, and the erection, purchase or lease of a school house. They have also the custody of the school house, which they must keep in repair, suitably furnished and supplied with fuel; 44 5 ] PUBLIC ED UCA TION 3 5 they must engage a teacher under contract, and in order to secure the quota of State aid the school must be in opera- tion for at least 32 weeks in the year. For expenses in- curred under these provisions the trustees can levy a tax,, even without special authorization from the district meetings Without dwelling on the various arguments for and against the district system, we need only notice here some of the^ actual results of the system in this State. In 1870 there? were 1,500 school districts with an average daily attendance of less than ten ; to-day there are more than 3,000 such dis- tricts, and over 7,500 of the 11,000 rural districts with an average attendance of less than twenty. There are 2,750 districts in the State where the total resident population of school age is less than twenty, and 500 districts where it is less than ten.' In one district a teacher was appointed who received the district's share of the State appropriation and conducted school for three weeks with no pupils in attend- ance, as the only two children in the district had been kept at home by illness. These small districts are obviously un- able to take advantage of the vast improvements in educa- tional methods, and with the retention of the district system the inefficiency of rural schools must be expected to be- come more and more marked. Every State Superintend- ent since i860 has approved of the abolition of the district system, and the adoption in its stead of the township sys- tem; but in the face of their opinion, the judgment of other experienced educators, and the example of twenty-three States, the petty school district is still retained in the rural sections of New York State. Union Free School Districts. The only legislation looking toward the disappearance of the " district system" in this- State has been the statute of 1853 permitting the consolida- ' Report of Superintendent ofPttblic Instruction, xlii, 9; jtliii, 10. -J 6 CENTRALIZATION TN NEW YORK [446 tion of two or more districts into a Union Free School Dis- trict, on the vote of the inhabitants at a meeting held for the •purpose. A single school district may in the same manner 1)6 established as a Union Free School District. In each such Union Free School District there is a board of education, consisting of nine unpaid trustees, three elected each year for a term of three years. These boards of edu- cation have much the same authority as the trustees of a district school, and in some matters have also the powers of a district meeting. They have charge and possession of all the school property. They employ teachers, establish rules .on school discipline, prescribe text-books, grade and classify ;the course of study, and have in all respects the superin- •tendence, management and control of the schools in the imion districts. The boards of education are in addition made bodies corporate, and in union districts whose limits do jnot correspond with those of an incorporated city or village ihey have power to appoint a district treasurer and collector, and to call special meetings of the voters of the union dis- trict. If any annual union district meeting does not vote a tax to cover the estimates of school expenses, the board of ^education may levy the tax without such vote. The School Commissioners. In the ascending scale of school administrative officials in New York, the second rank is held by the school commissioners. The State, outside of the cities, is divided into 1 14 commissioner districts, 14 of which include an entire county, while the remaining counties are each divided into two or three districts. The smallest commissioner district has 13 school districts, the largest has 179, but generally the number is not far from 100. Where -there are more than 200 school districts under one commis- sioner, the supervisors of the county are authorized to divide the commissioner district. The school commis- sioners are elected by the voters of the district, at the general 447] PUBLIC EDUCATION 37 State elections, for a term of three years, women being eligible and sometimes chosen. The salary is $I,000 a year from' the State, to which the board of supervisors must add, from the county revenues, $200 for expenses ; they may also make any increase in the salary they may deem advisable. The school commissioners are required: (i) to visit and inspect all the schools in their respective districts at least once a year ; (2) to consult with and advise the trustees in all matters relating to the studies, discipline and manage-- ment of the schools; and (3) to order repairs to school- houses, the abatement of nuisances, and the construction of; new school buildings where necessary. They also license five-sixths of the entire teaching force of the State ; they have' the power to alter school district boundaries, and to form: new districts; and sites for school-houses must have their approval. The responsibility and authority of the school commissioners over the management and improvement of the schools are thus extensive, and their duties are such as to call for considerable ability and marked educational require- ments. A qualified and earnest commissioner has ample' opportunities to secure more competent teachers and better school accommodations within his district, and the educa- tional interests of a large part of the State depend on the faithful discharge of their duties by these officers. The testimony of the State Superintendents indicates that the great body of commissioners are conscientious and com- petent officials, and it is encouraging to note that in the last election, of the 114 commissioners, 60 were re-elected, and 14 others had previous experience in this work.' There are, however, a good number of commissioners chosen who lack the necessary qualifications. Complaints are made that- political influence and log-rolling between the political can^ ^Report of Superintendent of Public Instruction, '^yo, 12. In 1890, 51 Com' missioners were re-elected. 38 CENTRALIZATION IN NEW YORK [447 didates often result in the election of inefficient and incom- petent persons, and that there have been some commission- ers who could not pass the higher examinations for the teachers whose work they are supposed to criticise.' The establishment of educational qualifications for the office has been proposed, and also a change in the method of selection from a popular election to appointment by the County Judges.' Cities and Incorporated Villages. In all the cities, and in a considerable number of the incorporated villages of the State, the local school management is regulated by special statutes, and in consequence there are wide variations in the methods and organization. In general, however, there is a board of education, though ihe number of its members and the method of selecting them are differently regulated for each city or village. These city boards of education act much as the boards of education in the union free school districts, but having usually a number of schools under their control, there is also a Superintendent of Schools (who in the larger cities has also assistants) for the detailed inspec- tion and direction of the schools. All but four of the cities are excepted from the commis- sioner districts, so that the city superintendents and boards of education are not within the jurisdiction of any school commissioner. Over the four excepted cities and thirty villages with superintendents, the school commissioners have the same legal powers as in the rural districts ; but, nat- urally, with the better organization in these more urban dis- tricts, there is less occasion for the exercise of their authority. Although the city boards of education are not within the jurisdiction of the school commissioners, they are not merged into the city corporations so as to lose their charac- ' Report of Superintendent of Public Instruction, xxiii, 23 ; xxxvi, 20; xlii, 8. ' /Wfl'., xxxvi, 29 ; xli, 28; xliii, 13. 449] PUBLIC EDUCATION 39 ter as agents of the State and part of the general school sys- tem. This point has been specifically decided by the Supreme Court, which holds that a city board of education is not a part of the city corporation, " but is itself a local school corporation, like every board of school district trus- tees throughout the State, and is like every such board an integral part of the general school system of the State. It is a State and not a city agency, doing State and not city work and functions."' 3 . The State Superintendent of Public Instruction At the head of the New York common school system is the State Superintendent of Public Instruction, elected by joint ballot of both houses of the legislature for a term of three years, at a salary of $5,000 a year. His department is one of the most important of the State administrative bureaus, and is the most striking illustration in New York State of a high degree of central administrative control ex- ercised over local ofificials. This control over the instruction and management of the common schools is exercised in several ways, each of which requires separate consideration. In the apportionment of the State tax to the various school districts, the State Superintendent, though closely ^ Ridemour m. Board of Education of Brooklyn. N. Y. State Reporter, vol. 72, p. 155. The same point is established by two legislative decisions allovring an inspector of schools of New York (1876) and a member of the board of education of Al- bany (1880") to hold seats in the State legislature, although the charters of these cities declared the board of education to be a department of the city government and enumerated the members of the board in the list of city officers, and the State Constitution provided that no officer under any city government should be eligible to the legislature. The decisions of the investigating committees, which in both cases were adopted by the house concerned without a dissenting vote, were that no matter what was said in the charters " the board of education was possessed of powers and charged with the performance of duties not of a corpor- ate or local character, but for the maintenance of a State system of education." — A. S. Draper in Educational Review, xv., iii. ^O CENTRALIZATION IN NEW YORK [450 bound by the provisions of the statute, is given a limited de- gree of discretionary authority. In making the allotments, he must be satisfied that each school district maintains school for at least 160 school days in each year, and that each city, village or union free school district with over 5,000 popula- tion employs a competent person as Superintendent, whose time is exclusively devoted to the general supervision of the public schools. Further, the State Superintendent may withhold a district's share for wilful disobedience to any of his decisions, orders or regulations, and he may withhold one-half of the allotment from any city or district which in his judgment wilfully omits to enforce the Truant Law. In the second place, the State Superintendent is author- ized to prepare the forms and regulations for the reports which the local school officers make to him, and to transmit them to the local officers "with such information and in- structions as he shall deem conducive to the proper organi- zation of the common schools, and the due execution of their duties by the school officers." He has also authority to remove school officers for violation or neglect of such or- ders, so that he can compel the local officers to give the in- formation as to the condition of their schools. Further, the whole body of school commissioners may be considered as subordinates of the State Superintendent. His authority over them is limited by the fact that he does not have any control in their selection ; but in the discharge of their many functions they are required to act under rules and regulations adopted by the State Superintendent, and the authority to remove school commissioners for wilful violation or neglect of duty places in his hands the means to secure obedience to the law and to his instructions. The actual exercise of these compulsory powers is infrequent, since the possession of the power is usually sufficient to secure obedience. 45 I ] PUBLIC ED UCA TION 4I The appellate jurisdiction of the State Superintendent gives him a comprehensive authority over the whole field of school management; and is of such importance both in powers granted and in the actual exercise of these powers as to deserve fuller consideration. The right of appeal to the State Superintendent may be exercised by : " Any person conceiving himself aggrieved in consequence of any decision made: " I. By a school district meeting." " 2. By any school commissioner or school commissioners and other officers in forming or altering, or refusing to form or alter any school district, or in refusing to apportion any school moneys to any such district or part of a district." "3. By a supervisor in refusing to pay any such moneys to any such district." " 4. By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school." "5. By any trustees of any school library concerning such library, or the books therein or the use of such books." " 6. By any district meeting in relation to the library." " 7. By any other official act or decision concerning any other matter under this Act, or any other Act pertaining to common schools." ' All such appeals the State Superintendent of Public In- struction is " authorized and required to examine and de- cide . and his decision shall be final and conclusive, and not subject to question or review in any place or court what- ever." '^ Consolidated School Law. Title xiv. From 1841 to 1847 the County Super- intendents heard appeals in the first instance, and only after their decisions could the matter come to the State Superintendent. In 5 Howard's Practice Reports, p. 417 (1851), it was held that the Free School Act (1849) repealed the appellate jurisdiction of the State Superintendent; but in 1853 it was restored by the Legis- lature (c. 78). 42 CENTRALIZATION IN NEW YORK [452 The appellate jurisdiction of the State Superintendent does not debar a plaintiff from bringing action in the courts, pro- vided he does so before appealing to the State Superintend- ent; but where any such action is brought against school officers for any act performed by them by virtue of or under color of their offices, which might have been the subject of an appeal to the Superintendent, no costs are allowed to the plain- tiff where the court certifies that it appeared on the trial that the defendants acted in good faith. These provisions were intended, to quote the opinion of the Supreme Court, "as a cheap and expeditious mode of settling most if not all of the difficulties and disputes arising in the course of the execution of the law organizing and regulating common schools. The legislature has virtually declared that where a party will forego that convenient method of adjusting such a controversy . . . and resort to the ordinary courts, it shall be at his own expense as regards costs." ' The same view of the scope of this power is taken by the Court of Appeals. The grant of appellate jurisdic- tion to the State Superintendent "is broad and compre- hensive in its terms, and evidently includes any and all acts which may possibly arise in regard to the official proceed- ings of these [school] officers . . . The legislature no doubt intended to prevent needless prosecutions and un- necessary suits against officers of this character, who had acted in good faith in the discharge of their official duties." ' ■3 Denio, 175; similar opinions given earlier in 2 Wendell, 287, and II Wendell, 91. ' 38 New York Reports, 58 (1868). In People vs. Martin (Monroe County Supreme Court, 1855) Judge Welles held that appeals to the Stale Superintendent could only be taken on acts of local authorities, and not on questions involving their discretion, such as certifying to moral character of a candidate for teacher. He was not, however, supported in this opinion by the other two judges, and the decision rested on other grounds. 21 Barbour, 252. 453] PUBLIC EDUCATION 43 The courts have also on several occasions declined to re- view the action of the State Superintendent on appeal cases, in obedience to the provisions of the statute that his decision " shall be final and conclusive and not subject to question or review in any court whatever." ' In one of these cases, the Judge raised the query whether the appellate jurisdiction of the State Superintendent was not unconstitutional, because it did not provide a trial by jury/ However, in this case the defendant by acquiescing in the jurisdiction of the State Superintendent had waived his right to a jury trial, and the question did not have to be decided by that court. The fact that this argument has not been used in subsequent cases, the other decisions accepting the law as constitutional, and the long established exercise of the appellate jurisdic- tion, together establish a strong presumption against this power of the State Superintendent being overthrown by the ! courts. The authority of the State Superintendent over appeals includes the regulation of the procedure. Under this power, rules of practice have been established,' requiring the appeals to be in writing, with the testimony in the form of afiSdavits ; a copy of the appeal must be served on the officer whose act or decision is complained of, and the officer must answer within ten days. The decision of the Superintendent can dispose of all the questions connected with the case, reverse a wrong proceeding and also direct the appropriate remedy, so as to afford redress to all persons who have been injuri- ously affected. In these respects, the appeal to the State Superintendent is preferable to a common law action, which ' People vs. Collins (1867), 34 How. Pr., 336; People vs. Draper, (1892), 63 Hun., 389; People vs. Eckler, (1880), 19 Hun., 609. ^ 19 Hun., 609. Smith, in 34 How. Pr. (1S67), had said : " I have no doubt this is a valid act, and that the legislature had ample power to pass it." ' Rules of Practice in School Code (1887), 123-4. 44 CENTRALIZATION IN NEW YORK [454 inures only to the benefit of the person who brings it, and gives to him pecuniary damages only, without substituting a correct proceeding in the place of an erroneous one.' The State Superintendent can enforce his decisions against any school officer by exercising his power of removal or by withholding the district's share of the State grant.' In the case of supervisors, or town clerks, the only method of enforcement is by application to the Supreme Court for a mandamus. In general, however, there is no need of com- pulsory action, as the decisions are submitted to without objection. The effective authority of the State Superintendent's ap- pellate jurisdiction is shown not so much by the text of the law, or the language of judicial decisions, as by the actual use made of the powers conferred. Judged by the number of appeals, and the questions involved, the powers actually exercised by the State Superintendent are seen to be fully as comprehensive as those conferred in the statute. As early as 1836, Secretary of State Dix declared that the duty of determining appeal cases was the most important and arduous of his functions as Superintendent of Schools.' For the last forty years, the number of appeal cases annually decided has averaged over a hundred. The decisions of the most important cases are annually published in the State Superintendent's Report ; and the Code of Public Instruction contains a digest of the decisions of over 300 pages, which,, no less than the statutes, guide the school officers through- out the State in the discharge of their duties. The scope of the authority of the State Superintendent may be shown by a consideration of the character of questions which are in- ' Report of State Suferintindent of Public Instruction xlii, 33, ' People vs. Allen, 78 New York State Reporter, 566. ' Report of Superintendent of Common Schools, xxiv, 31. 45 S] PUBLIC EDUCATION 45 volved in these appeal cases, with some indications as to the general policy shown in the decisions. Many cases are brought which concern the action or inac- tion of school commissioners, In those concerned with the formation, alteration or dissolution of school districts, the policy of the State Superintendents has been to favor con- solidation and to discountenance the formation of weak dis- tricts. Annulments or refusals to grant teacher's certificate are not sustained if made on trivial charges or without a proper inquiry. In matters involving the approval of school- house sites, and plans for heating, lighting and ventilating school buildings, and the condemnation of school buildings, the policy has been to leave more to the discretion of the commissioners ; but where abuse of this discretion is shown their actions will be vacated. The cases concerned with the proceedings of school dis- trict meetings are much more numerous and perplexing; they involve questions as to the legality of elections, of votes ordering the levy of taxes, the designation or purchase of school house sites, and the construction of school houses. The entire proceedings of a meeting are frequently set aside by the State Superintendent on account of lack of proper notice, precipitancy in organization, or turbulence and dis- order ; and a decision by a close vote at a meeting held on a stormy night has been re-opened. The selection of an un- sanitary site for a school house has been set aside, and the delegation of the power of selection is not permitted. Tax votes must name specific objects, and an exorbitant appro- priation for any object will be set aside ; if no tax is voted the trustees have been directed to levy a tax. Purely technical omissions are not, however, allowed to void the proceedings of a district meeting, — such as bad spelling in the notice or the neglect to send notice to every tax- payer. 46 CENTRALIZATION IN NEW yORK [456 The appeals against the acts and decisions of school trus- tees form another large class of cases which come before the State Superintendent. The regulation of studies and choice of text-books are left to the discretion of the trustees, except when the latter is limited by the statute prohibiting changes oftener than once in five years. The use of buildings for other than school purposes is also left to the discretion of trustees, though their use by secret societies is not approved. Questions of residence involving the right to attend school have been decided against the trustees, and also the exclu- sion of colored children where no special school is provided for them. The employment and dismissal of teachers leads to a vast number of cases, and certain general principles are now laid down. The pay of teachers must continue if school is closed during the contract period on account of an epidemic, fire, or the attendance of the teacher at a teachers' institute. Contracts must be for a reasonable length of time ; janitor's work is not included in a contract to teach ; dismissals must be for cause specified, and the holder of a state certificate cannot be removed (even by a city superintendent) until the state certificate is annulled either by the State Super- intendent or by the city board of education. The exclusive employment of members of a particular organization (sisters of charity) for a particular school, and the wearing of the garb of the organization by the teachers pn duty, has been ordered discontinued. Cases against city boards of education are not so frequent as those against district trustees ; but the jurisdiction of the State Superintendent over boards organized by special Act has been distinctly asserted and recognized. In one such instance, it was held that the failure of a city council to levy the school tax did not justify the board of education in clos- ing the schools, since the city was liable for the expenses 457] PUBLIC ED UCA TION 47 which could be collected by due process of law.' In another recent case, where the dispute between the two halves of a bi-partisan board of education left the city schools unpro- vided for, the State Superintendent appointed a city super- intendent and teachers and opened the schools. This action was sustained by the Supreme Court on the ground that it was the function of the State to see that the schools are maintained.'' Besides the many cases against local school officials, appeals have also been made to the State Superintendent against disciplinary regulations of teachers ; and his decis- ions on these establish rules for even this detail of school management. Cruel and unusual punishments are repre- hended ; expulsions for leaving the school grounds during recess, or for a more serious breach of discipline which was the result of momentary impulse, have been disallowed. Fines, even if imposed by the trustees, are not permitted. On the other hand, appeals to secure the discontinuance of corporal punishment have not been successful. From these illustrations of the subject matter of appeals and the decisions of the State Superintendent, it will be evi- dent that through his appellate jurisdiction he exercises an extensive control over local school management and admin- istration throughout the State. This form of authority does not, however, give him control over the entire field of edu- cational administration; and there remain to be noticed some other methods by which he influences and directs the common school system. These methods include the ad- visory influence over the construction of school buildings and the curriculum of instruction, the supervision of the enforcement of the Compulsory Attendance Law, and the 'Elmira Board of Education, Decisions nos. 3990 and 3993 (1890). ^Educational Seview, XV, 100, 11 1. 48 CENTRALIZATION IN NEW YORK [458 much more highly centralized control over the education and examination of teachers for the public schools. As has been indicated, the State Superintendent has no direct authority or control over the course of study in schools, or over the construction of school buildings. Never- theless, within recent years, he has come to wield a consider- able advisory and educational influence in such matters. Acting under the provisions of a statute of 1887, a pamphlet of architects' designs for school-houses, with suggestions as to lighting, warming and ventilating school buildings and preparing grounds, was published under the supervision of the state department, and distributed freely to local author- ities. On a design being selected by a local board of educa- tion, the state department furnishes working plans and esti- mates for the building desired.' The practical benefit derived from the publication has been shown by the numerous calls on the department for working plans, by applications from other States for the pamphlet of designs, and by the request of the United States Commissioner of Education to repub- lish the book as one of his circulars of information. To supplement this book, the late reports of the State Superin- tendent contain exhibits of views and plans of school buildings erected in the State, selected so as to show the best suggestions for buildings of dififerent types and cost of construction. These illustrative pamphlets must be of very material help to school boards, furnishing them with informa- tion as to the latest improvements of use in meeting the problem of school construction. It is only within recent years that any active attempt has been made to regulate the course of study in district schools so as to prevent the interruption and retrogression resulting from frequent changes of teachers, and to secure some uni • Report of Superintendent of Public Instruction, xxxv, 59. 459] PUBLIC EDUCATION 49 iormity of purpose in the various schools. The first action was taken some fifteen years ago, when certain school commis- sioners prepared and recommended an outline course of study for grammar grades. This course was improved in several revisions, suggestions on classification and methods were added, the system received the sanction of the State association of school commissioners, and by voluntary adoption went into use in about ninety commissioner dis- tricts. In 1895 the State Superintendent was requested to undertake the supervision of this matter, and in the follow- ing year a new edition was issued by the state department. The suggested courses of study are only in outline, leaving much to the teacher's experience and discretion, and no attempt is made to establish any rigid system. Nevertheless, this extension of the State Superintendent's jurisdiction, even if only an advisory influence, is of some importance. There can be little doubt that the official position given to the course of study will cause its more general adoption, and thus tend to establish closer relations and a more uniform system among the public schools. At the same time, the absence of any compulsory provision should prevent the adoption of methods not adapted to local conditions. Some legislative regulations on the subjects to be studied in the common schools should be here noticed. In 1875' the teaching of free-hand drawing was made compulsory in all schools in cities and union districts ; and at the same time training in manual arts was authorized. In 1893' the study of vocal music in the public schools and teachers' institutes was authorized. A more rigid requirement is that prescrib- ing a course of study in hygiene and physiology, with special reference to the effects of alcohol and other narcotics ■on the human system. This was first required in 1880, but ' Laws ofx^lt), t. 322. ^ Ibid., 1896, c. 636. JO CENTRALIZATION IN NEW YORK [460 in 1 896 another law enacted much more detailed regulations on this subject.' By the later statute, the subject must be studied every year in the course, with three, lessons a week for ten weeks in each year ; a series of graded books must be used, and examinations given each year. This detailed legislation is due to moral sentiment on a particular sub- ject, and is in no sense indicative of any tendency toward general legislative regulation and interference in the courses of study; but it may be pointed out that the same con- siderations which make any legislative regulation of the general school curriculum inadvisable apply with equal force to the detailed regulation of this particular subject. The serious objections to a rigid system of instruction for the entire State, even if prepared by experienced and expert officers in the State department, become more pronounced when the legislature, in the midst of its many and conflicting duties, attempts to frame minute provisions as to the number of hours of instruction, the character of text-books to be used, examinations, etc., and imposes this iron-clad system on every school in the state. Another method of legislative action is seen in the provisions for instruction in natural his- tory, geography, and kindred subjects, made in 1897.^ An appropriation of $15,000 for this purpose is made, to be used for illustrated lectures on these subjects, to be given under the direction of the State Superintendent. The Compulsory Education Law of 1894 contained im- portant advances over the former ineffective law of 1874. Parents are made responsible for the non-attendance of their children at school ; cities and villages are required to pro- vide school attendance officers to enforce the law, and the State Superintendent is authorized to employ assistants to investigate the extent to which the act is carried out. The ' Laws of 1896, c. 901. ^Ihid., 1897, c 79°. 46 1 ] PUBLIC ED UCA TION 5 i inspectors appointed under this provision have no compul- sory powers; but on their investigations and reports the State Superintendent can withhold from any district not obeying the law one-half of its quota of the State appropria- tion for common schools. The reports of these inspectors ' show that New York City appoints twenty school attendance officers, four other cities have from five to nine officers, four cities have two, and twenty-nine cities have one officer each ; Brooklyn, Rochester and Syracuse have provided Truant Schools, and other cities have special classes for truants. In the four years since the Act went into ertect the total enrollment at the common schools has increased by 120,- 000, and the average attendance by 130,000. The previous four years showed an increase of only 50,000 ; while for the twelve years before 1889, there had been no increase in the total enrollment, and the annual increase in average attend- ance had been only about 6,000.' There is still room for much improvement before anything like a full attendance of children will be secured ; but one result of the investigations of the State inspectors has been to attract attention to the fact that in twenty-one of the cities in the State, the school accommodations were not sufficient for those who attend voluntarily. This knowledge, through force of public senti- ment, is compelling the local authorities to provide the necessary schools, without which compulsory attendance is impracticable. ^ Report of the State Superintendent of Public Instruction, xliii., 1002. Average 2 Enrollment. Attendance, 1872 1,024,130 494.850 1876 1,067,190 541,610 1881 1,021,282 559,399 1885 1,024,845 611,019 1889 1,033.813 637,487 1893 1,083,228 688,097 1897 1,203,199 820,254 52 CENTRALIZATION IN NEW YORK [462 The education and examination of teachers for the pubUc schools are now carried on under the supervision of the State Superintendent to a much greater extent than any other part of the school system. This power is exercised through the system of uniform teachers' examinations, the direction of teachers' institutes, and the supervision of normal schools and teachers' training classes in high schools and academies. The examination and licensing of teachers for the public schools has been, and is now in form, a function of the school commissioners. The State Superintendent has also the right to examine and grant certificates ; but these State certificates, being for life, have been placed on a much higher standard than the commissioner examinations, and only a small number of teachers have applied for them. Before 1887 the commissioner examinations were conducted inde- pendently, each commissioner choosing his subjects, and having his ov/n method of examination and marking the re- sults. In that year, the State Superintendent attempted to secure the passage of a law providing for uniform examina- tions ; but this failing in the legislature, the department, at the request of a number of commissioners, prepared a series of uniform question papers.' These were used that year by 65 commissioners, and in the following year all of the com- missioners had voluntarily adopted the new system." This secured uniformity in questions and written examinations for all teachers; but as the answers were still examined and marked by the various commissioners, certificates from different commissioners had still a widely different value. In 1893, however, the State department called in and marked all the papers of candidates for first grade (five year) certificates, and in 1894 an increased appropriation ' Report of the State Superintendent of Public Instruction, xxxiv, 22. ^ IHd., XXXV, 32. 463] PUBLIC EDUCATION 53 for the department made possible the appointment of a State board of examiners to examine and mark all the papers.' At the same time, the authority of the State Superintendent was confirmed by a clause in the Consoli- dated School Act, providing that commissioners' examina- tions should be under rules and regulations prescribed by the Superintendent of Public Instruction. The uniform system of examinations has also been voluntarily adopted in 24 of the cities in the State.^ The work of the examination division of the Department of Public Instruction consists in preparing different series of question papers for three grades of examinations, and of examining and marking the papers of over 20,000 candidates a year. Of these candidates over 50 per cent, fail to obtain certificates. The State Superintendents have been unanimous in testi- fying to the beneficial results of the uniform system of examinations. " It has led every person desiring to enter the teaching service to know that the first requisite quali- fication of the teacher is scholarship ... It has placed the work of teachers upon a professional basis and given the calling added respect and dignity.'" Indirectly this system of uniform teachers' examinations has served to introduce a graded course of study in a large number of rural schools, and in other ways its influence broadens and makes more useful the work of these schools. The management of the teachers' institutes in the various commissioner districts is now almost completely in the hands of the State department. The instruction is given by members of the State corps of institute conductors and spe- cial instructors, according to a definite program furnished in advance to the teachers. Over a hundred institutes are held each year, with an aggregate attendance of 16,000 teachers; ' Report of the State Superintendent of Public Instruction, xl, 32; xli, 30. ' Ibid., xliii, 23. ' Ibid., xlii, 20. 54 CENTRALIZATION IN NEW YORK [464 and there can be no question that the instruction given in subject-matter and methods of teaching, as well as the new life and inspiration received by the teachers, has far-reaching results in improving the work of the schools. Incidentally, the institutes serve other purposes ; through them the State department is- kept in touch with all the educational forces of the State, while the evening lectures given at the institutes are a means of educating and interesting the public in edu- cational matters. The appointment of the local board for each of the normal schools in the State would of itself give the Superintendent of Public Instruction a large authority over their manage- ment, although the necessity for securing the consent of the Chancellor of the University to a removal might serve as a limitation. But the direct authority of the State Superin- tendent extends to many other matters than the appointment of the local boards. The course of study adopted by the local boards must secure his approval; he determines the number of teachers to be employed and their wages, he fixes the number of pupils and the method of selection, and grants diplomas. The direction of teachers' training classes in high schools and academies, transferred to the State Superintendent in 1889, gives him an equal if not a greater authority over the education of teachers in these institutions. The State Super- intendent names the schools and academies to which the State appropriation for special instruction to teachers will be apportioned, prescribes the conditions of admission to such training classes, the course of instruction, and the regula- tions under which the instruction shall be given. Such training classes are also subject to inspection by the State department, two special inspectors being employed for this purpose. Since the transfer of the supervision of these classes from the Regents of the University, the number of 465] PUBLIC EDUCATION 55 classes increased from 49, with 758 pupils, to 140, with 2500 pupils, in 1894-5. The adoption of higher requirements for admission in 1895-6, however, cut down these last figures by more than one- half. The graduates from these training classes and normal schools are licensed to teach without passing the special teacher's examinations ; and the number of such teachers is constantly increasing. In 1 864, 300 teach- ers were graduates of these institutions; in 1881 there were 1 100; and in 1896, nearly 4000 out of a total of 28,500 teachers were of this class. The extension of the State Superintendent's control over the training of teachers for city schools, which went into effect in 1897, is of no little importance. Under this law' no new teacher can be employed in any city school who has not had three years successful experience in teaching, or has graduated from a high school or academy having a course of study of not less than three years prescribed by the State Superintendent, and has also graduated from a course in practical and theoretical pedagogy of not less than thirty- eight weeks, approved by the State Superintendent. Under this law, the State Superintendent has prepared a minimum three years' course of study, which must be adopted by all high schools and academies whose graduates wish to teach in any city schools. Through this wide control over the education and the ex- amination of teachers the Department of Public Instruction can and does exercise a profound influence over the charac- ter of the instruction in all the public schools of the State. The Superintendent of Public Instruction also exercises some important functions over matters not directly part of the common school system, but closely connected therewith. He is charged with providing schools for the Indian children • Laws o/iSgj, c. 1031. 5 6 CENTRALIZATION IN NEW YORK [465 in the State, and appointing superintendents for the same. He has the duty of visiting and inspecting all the institutions in the State for the instruction of the deaf and dumb, and blind, and of suggesting improvements in their instruction and discipline ; he also has the power of appointing State pupils to these various institutions. Finally the State Sup- erintendent is ex-officio a regent of the University of the State of New York, a trustee of Cornell University, and of the New York State Asylum for Idiots. This discussion of the functions and authority of the State Superintendent of Public Instruction must have demonstrated that in practice as well as in legal theory, " education is not city, village, county or town business. It is a matter belonging to the State government." ^ Nevertheless, through the continued use of local officers and the traditions of earlier days, there are still traces of the opinion that educa- tional affairs are matters of purely local concern for each community to manage or mismanage as it pleases. It may be well therefore to note the principles on which State supervision and control are founded. The exercise of State authority may be justified on the ground that the power of taxation, the essential element in any system of public education, is a State power, and the localities can exercise it only so far as conferred by the State.' The State may, therefore, fairly claim that it must see that this power of taxation is properly used by the localities and yields the results for which the grant of power has been made. This principle would justify State supervision of all local taxation and expenditure ; but where the functions of local government concern only the localities, and where mismanagement results mainly in pecuniary loss which falls on the community responsible for the mistakes, State control 'Judge Gaynor, in New York State Reporter, vol. 72; p. 155. * A. S. Draper, in Educational Review, i, 30. 467] PUBLIC EDUCATION 57 has not as yet been introduced. With school administration, however, this is not the case. The loss falls on more than the locality immediately concerned, and affects the intellec- tual virility and moral powers of the whole people.' In the words of the Massachusetts Constitution, " knowledge and and learning, as well as virtue, generally difTused throughout the community, are essential to the preservation of a free government, and of the rights and liberties of the people." Acting on this principle, the State not only authorizes local taxation, but also uses part of the State revenue for the sup- port of the schools. To see that this State grant is used wisely, and that the schools it helps to maintain provide the quality of instruction which the State grant is meant to secure are reasonable grounds for the extent of State control exercised. It should, however, be noticed that the system of State supervision in no way restricts the local authorities in adding to their educational arrangements. It is a control exercised to bring the schools throughout the State up to a minimum standard ; beyond that, the local officials are free to extend their school system to any degree. In the cities such exten- sions are generally made, and for that reason there is less occasion for the exercise of the State Superintendent's au- thority; but, as we have seen, when occasion arises his powers are not limited by the fact that city boards of educa- tion hold their powers under special statutes. It is not possible to measure accurately the total results due to the central control now exercised over the common school system of New York State. On the one hand, other causes than central control have operated to produce the present situation, and on the other hand much of the im- provement cannot be described in any mathematical terms. ' Educational Review, xv, 109. 58 CENTRALIZATION IN NEW YORK [468 We have, however, seen the recent improvement in school attendance which has appeared since the enactment of the Compulsory Education Law. Statistics of illiteracy may also serve as an indication of how far the fundamental task in public education is being met; and the following table shows the conditions in New York State at the last three decennial censuses : Native- Illiter- Illiter- Native- born il- Per cent. Total ates over Per cent. ates 10 born literates native- Popula- 10 years illiterate. to 20 Popula- over 10 born il- tion. of age. years of age. tion. years of age. literates. 1870.... 4.382,759 239.271 5-84 40,533 3,244,406 70,702 2.18 1880.... 5,082,871 219,600 4-32 27,416 3.871.492 70,941 1.83 1890.... S.997.843 266,911 4-45 23,889 4,426,804 68,755 1-55 The columns for the total population include illiterate for- eigners, most of whom have grown to manhood beyond the reach of the public school system. In the columns for chil- dren between ten and twenty years of age and for native- born population there is seen to be not only a relative decline in the proportion of illiterates, but also an absolute decrease in the number of persons unable to read. Much of the advance in educational lines which has pro- duced these results must be ascribed to the authority and activity of the State department. Even where its authority has not been directly exercised much is due to it. Through the State officials educational improvements have been brought to the attention of backward localities, and have thus been more widely used than if there had been no State agency. Moreover, the concentration of educational activity 469] PUBLIC EDUCATION 59 has served to attract public attention to the importance and needs of the schools ; and this has been an important factor in securing the large increments of local taxation without which no such rapid development could have been made. These results are not capable of statistical demonstration ; but that central control is responsible, directly and indirectly, for a vast deal of recent educational advance is shown by the unanimity of opinion among educators, and by the ready ac- ceptance of the steadily increasing authority of the State de- partment. II. THE UNIVERSITY OF THE STATE OF NEW YORK. Origin of the Regents of the University. State supervision of institutions for secondary and higher education was established in New York before the beginnings of the Com- mon School system ; and the State organ provided has continued as a separate authority, exercising its control independently of the State Superintendent of Public Instruc- tion, and on widely different principles. During the early part of the eighteenth century several acts were passed by the New York provincial assembly establishing academies and King's college;' but these were not the result of any well-defined policy, and were accompanied by no central control over the institutions. The beginning of more sys- tematic action was brought about by the necessity of reorgan- izing the college, which during the Revolutionary War had practically disbanded. In 1784, a corporation was created, termed the Regents of the University of the State of New York, composed of the principal State officers and fifty-seven other persons named by the legislature. This body suc- ceeded to all the corporate rights of King's College, whose name was now changed to Columbia College, and it was further authorized to establish additional schools and col- ' Colonial Laws of New York, chaps. 120, 594, 658, 840, 860, 909. 6o CENTRALIZATION IN NEW YORK \_^^0' leges in the State, which should together form the University of the State of New York, under the control of the Regents.' Three years' experience revealed certain defects in this scheme. No new colleges were created, and the hopes of those who had looked for a comprehensive system of educa- tional institutions in different parts of the State were disap- pointed. At the same time, the control of the Regents over the government of Columbia College had proven inconvenient. The large number of regents made full meetings impossible ; and, while the Columbia men in New York city could ordinarily control the meetings of the board, there was always friction between them and the rural members. The result of this mutual dissatisfaction was a reorganization of the system in 'i^^^' A separate Board of Trustees was established for the management of Columbia College. The Regents were continued as a supervisory authority over all the colleges and academies in the State; the number of members was reduced to nineteen, elected for life by the legislature, with the Governor and Lieutenant-Governor of the State as ex officio members.^ The principles of the law of 1787 have been followed in all later legislation in reference to higher education in New York. The immediate management of each institution has been left to its own board of trustees or other local officers, and in the case of the colleges this independence has been almost complete. Over the academies and high schools, however, the Regents exercise a general oversight and con- trol. In form, the University is a system of federated insti- tutions, and the board of Regents is a private corporation ^Laws o/"i784,c.5i. ' A full discussion of the early history of the Regents is given in S. Sherwood : University of the State of New York, published as Regents^ Bulletin for 1893, No. II. ^ Laws ofi'jZ'], c. 82. 47 1 J PUBLIC ED UCA TION 6 1 chartered by the State. In fact, the Regents constitute a State bureau of higher education, with powers of supervision over private and local institutions, and also with some pow- ers of direct administration. The work of the Regents has increased steadily with the growth of the State, and there also have been some changes in their methods and additions to their powers. Especially within the last decade their field of activities has been broadened and their supervision of schools has become more ■effective. This development can, however, be better noted in connection with their various forms of action, than in a <;ontinuous sketch of the entire history. Incorporation of Institutions. Under the authority to in- corporate colleges and academies, the Regents of the University early established certain conditions requiring a suitable equipment and endowment of proposed institutions before granting charters. These rules have prevented the establishment of weak and temporary enterprises, and have also checked the ambition of academies which aspired to the dignity of colleges. The first college chartered by the Re- gents was Union, in 1795 ; no other applications were granted until 1 812, when Hamilton College was incorporated; and in 1822, a college charter was bestowed on Geneva Academy. Charters to academies were, of course, more numerous. Two were granted in 1787; by 1800, nineteen academies had been chartered; and by 1820, forty-eight charters had been issued.' Some of these, however, failed to comply with the conditions imposed, and others had been discontinued. In 1820, thirty were reported to the legislature as making re- turns and receiving their share of the State grants. The restrictions established by the Regents on the issu- ance of charters caused many proposed institutions to turn to the legislature. The Constitution of 1821, con- ' Hough, Historical and Statistical Record, p. 28. 62 CENTRALIZATION IN NEW YORK [472 tained a clause requiring the assent of two-thirds of the members of each house of the legislature for the passage of any act creating a corporation. The question whether this abrogated the powers of the Regents was raised, and although never clearly settled, the legislature began to exercise its power of granting special charters. Between 18 19 and 1830 more than forty academic charters were granted by the leg- islature, and in the next decade a still greater number, in most of which no conditions were imposed.' In 183 1, the University of the City of New York was chartered by the legislature, and for the next forty years most of the new col- leges were incorporated by the legislature. After 1 840, legislative charters to academies became much less frequent, and new institutions received their authoriza- tion from the Regents, who, in 185 1, established fixed regu- lations for such charters. In 1853, their power to grant charters was affirmed and extended. An act of that year required the Regents, to establish general rules prescribing the conditions for the incorporation of any institution of learning, and authorizing them for cause shown to annul, alter or amend any charter granted by them. Power to incor- porate medical colleges was also specifically granted." In 1892, the Regents were given exclusive power to grant charters to educational institutions, and any such institution which discontinues educational operations is required to sur- render its charter. Since the grant of this power, the Regents have adopted a standard form of charter.^ The former system of accepting charters drawn up by the appli- cants had produced the same confusion and uncertainty as ' Of 435 charters granted before 1865, 213 were by the legislature and 222 were by the Regents; 61 of the former and 104 of the latter were extinct in 1865. Reports of the Regents, vol. 80, p. 274. ' Laws o/"l853, t. 184. 'Reports oftlu Regents, vol. 107, p. 122. 473] PUBLIC EDUCATION 63 to powers granted to colleges and academies, as exists in reference to municipal corporations. Under the new system a simple and uniform charter is issued to all institutions. These charters are, moreover, granted only after personal ex- amination by agents of the board, to make certain that suit- able equipment and ample provision for the support of the proposed institution has been provided. The early charters were all granted to private institutions, supported by private endowment and tuition fees, and managed by a private board of trustees. The Union Free School law of 1853 ' authorized the establishment of academ- ical departments in the union district free schools, and provided that whenever an academy existed within a district it might be transferred to the trustees of the union district. The academical departments in these tax-supported schools were subject to the same supervision by the Regents as the private academies, and received their share of the State grants on the same basis. The transition from endowed academies to tax-supported high schools was not rapid at first. By 1871, there were only 45 of the latter to 164 of the former in operation. Since then, however, there has been a steady abandonment of the academies and a constant increase in the number of free high schools, and in the last ten years the addition to the latter class has been especially rapid. From 1888 to 1896 there was an apparent growth in the number of academies, but this was due to a number of long-established Roman Catholic institutions connecting themselves with the Univer- sity. Even with this addition, the number of academies on the Regents' list in 1897 was but 119 with 9500 students, to 464 tax-supported high schools with 44,000 students." Of the higher institutions of learning connected with the Univer- >Zawj 0/1853, c. 433. ^Reports of the Regents, vol. 102, p. 36; vol. Ill, p. 68. ^4 CENTRALIZATION IN NEW YORK [474 sity, there are 34 colleges with 8000 students, and 7 1 profes- sional and technical schools with nearly 20,000 students. Distribution of State Aid. State grants to the colleges have in all cases been made directly to the particular institu- tions without the intervention of the Regents. The first grants to the academies were similarly made ; but in 1790 the legislature authorized the Regents to lease certain State lands, and to apply the rents and profits to the academies. In 1793, the first apportionment was made to the ten academies then in the University,' and in 1794 ;^ 15 00 was distributed among twelve academies.' In 181 3 the proceeds from certain land sales were to be invested and the interest distributed by the Regents, and the Literature Fund thus es- tablished was afterward increased from other sources. The principle of distribution was changed from time to time. In 1817, a general regulation was made by the Regents that future apportionments should be in proportion to the num- ber of students pursuing the branches of study preparatory to "well-regulated colleges." In the law of 1827, it was directed that the basis should be the number of pupils "who shall have pursued classical studies or the higher branches of English education or both." The Revised Statutes which went into effect in 1830 required the Regents, in the first place, to divide the amount equally among the eight senator- ial districts, and this plan, although obviously unfair and opposed by the Regents, was continued for nearly twenty years. Up to 1832, part of the securities constituting the Litera- ture Fund had been held by the Comptroller, and the income from these investments had been appropriated by the legis- lature to such academies as had the most influence. In 1832 all the securities were transferred to the custody of the ' Reports of the Regents, vol. 107, p. 53. ^ Hough, Historical and Statistical Record, p. 31. 475 J PUBLIC EDUCATION 65 Comptroller, and the distribution of all the income was as- signed to the Regents.' On the receipt of the United States deposit, in 1837, a part of the interest from this fund was assigned to the academies, increasing the total annual appropriation from $10,000 to $40,000. Perhaps the larger amount of State aid made more evident the unfairness of the rigid system of equal distribution by senatorial districts, for in 1847 this requirement in the statute was omitted." The adoption of the system of Regents' preliminary ex- aminations, in 1 86s ,3 made possible a more uniform standard in apportioning the State grants, but did not change the principles of distribution. After 1880, however, the distri- bution was based in part on certificates granted to those who passed Regents' examinations in advanced or academic subjects, and only the balance of the State appropriation was awarded according to the attendance of those who had passed the preliminary examinations. The State grant of $40,000 a year, fixed in 1837, ^^" mained unchanged for fifty years. Meanwhile the number of academies had trebled, the number of scholars had quad- rupled, and the expenditure of the academies had multi- plied sevenfold. This increasing divisor with a constant divi- dend had the effect of decreasing the amount to each school, and considering the total expenditures, the State grant be- came insignificant. Accordingly, in 1887, an appropriation of $60,000 was added to the $i2,ooo from the Literature Fund and the $40,000 from the United States Deposit Fund. This increase was, however, soon made insignificant by the enormous development in secondary education which set in at this time. Within the next eight years the number of high schools and academies had almost doubled again, ^ Laws ofl&'^z, i;. 8. ''Laws o/iS^y, c. 258. ' See p. 68. 6Q CENTRALIZATION IN NEW YORK [476 and their expenditures had increased 250 per cent." The increase in the number of students who passed the ad- vanced examinations was so large that the amount appor- tioned on this basis almost equaled the total appropriation, and the payment for the number of academic scholars in attendance was reduced, until in 1893 it was only one-fifth of a cent for each student. To meet this situation, the Horton Law of 1895 ' provided for a quota of $100 to each school, with one cent for each day's attendance of each academic student, $S for each regular academic certificate issued, and $5 extra for each student's first diploma or col- lege entrance certificate. Instead of a fixed amount, the annual appropriation would vary so as to meet these condi- tions, and in practice the effect has been almost to double the amount of State aid to the academies. In 1897 the total grants amounted to $193,000.^ Reports and Visitations. The Board of Regents is author- ized, by its officers, committees and agents, to visit and inspect all the colleges and academies in the State ; and each of these institutions is required to make an annual report of its affairs to the Regents. As early as 1804, a system of printed blanks for detailed reports came into use ; but after four years the reports became very brief, simply stating the numbers in attendance at the colleges, the num- ber graduating, and as to the academies that their affairs were " in a flourishing condition."'' In 1835 fuller reports ' Academies No. of Total and High Schools. Scholars. Expenditures. 1839 118 10,881 i!208,864 1887 294 39,523 1,383.609 •895 498 49,937 3,'33,2i8 1897 583 53,464 3,284,246 ^ Laws o/'i895, "^^ 34'- ' Reports of the Regents, vol. 1 1 1, p. 84. * Hough : Historical and Statistical Record, p. 70, 477] PUBLIC EDUCATION ()y from the colleges and academies began to be published, and since that time the series of educational statistics is un- broken. With the later development, the details become more complete, accurate and systematic, giving information upon the financial resources, expenditure, courses of in- struction, apparatus, teachers and students in each institu- tion. These reports when printed make an annual volume of over looo pages, while the more important facts are summarized and abridged in carefully prepared abstracts and statistical tables. The early reports of the Regents contain no records of systematic visitations of the schools under their supervision ; but beginning in 1858 a list of the visitations by the Regents and Secretary in the previous year is presented in the reports to the legislature." After 1882, visitations were also made by the inspector of teachers' training classes, then under the supervision of the Regents ; but on the transfer of this duty to the Superintendent of Public Instruction, in 1889, this method of making personal examinations of the academies was no longer possible. The value of a system- atic visitation of the academies by an officer of the Uni- versity was by this time realized, and in 1890 an inspector of schools was appointed ' to visit the schools, inform him- self of their condition or needs, and make suggestions for improvement. Additional inspectors have since been ap- pointed, so that each school might be visited at least once a year. The inspection system was placed on a more secure basis by the University Law of 1892, which forbids the Regents to apportion the State grants to institutions which have not been personally inspected by an officer of the Uni- versity. In 1896 there were six inspectors, who made in all 915 visits during the year. The inspectors have no com- ^ Reports of the Regents, vol. 71, p. 18. ''Report of the Regents, vol. 104, p. 15. 68 CENTRALIZATION IN NEW YORK [478 pulsory authority ; but their advice and suggestions are well received, and their visits much appreciated by the local principals and directors. The result of six years' experience ■with this system of inspection has confirmed the Regents' opinion of the advantages it secures in improving the schools and academies. Academic Examinations. The early system of determin- ing the number of qualified scholars, for the apportionment of the State grants, was the simple method of accepting the reports of the academies. Under this system it was to the self-interest of each academy to lower its standards, as in this way it could report a larger number of qualified scholars, and receive a larger share of the State moneys. To counter- act this tendency, and also to secure a uniform standard on which to have an equitable apportionment, the Regents, in 1865, arranged simultaneous written examinations in all the institutions under their care.' The examinations were in arithmetic, EngHsh grammar, geography, and spelling; and only those who could show a fair knowledge of these pre- liminary subjects were after this accepted as academic scholars. The first result of these examinations was a reduc- tion in the number of academic scholars, from 21,947 claimed in 1865 to less than 6,000. This showing had the natural effect of causing the academies to improve their standards and methods of instruction; and in consequence the number of successful candidates has steadily increased. From 1890 to 1896 the number securing these certificates, which mark the completion of the grammar school courses, increased 128 per cent., while the attendance at the common schools had increased but 12 per cent.'' The success of the practical supervision over the academies exercised by these examinations in preliminary subjects led " Reports of the Regents, vol. 79, p. 18. * Reports of the Regents, vol. no, p. 73. 479] PUBLIC EDUCATION 69 the legislature, in 1877, to authorize the extension of the system to more advanced or academic studies.' In 1880, the future distribution of the State grants was made dependent in part upon the examinations in these higher subjects. Regents' certificates were issued to those who passed the examinations, and Regents' diplomas to those who passed in a number of subjects determined as the standard for a high school course. The influence of these advanced examina- tions and certificates was beneficial in the highest degree. They made clear to many schools weak points not evident so long as their results were tested only by defective local standards. With improved methods and additional courses of studies came the demand for further extensions of the Regents' examinations ; and additions were made after care- ful comparison of views between the Regents and the schools. In 1878, examinations were offered in twenty subjects ; by 1896 the number had been increased to eighty." The num- ber of candidates for the examinations has also increased at an even more rapid rate. In 1865 there were 20,000 ex- amination papers; in 1880 there were over 80,000, and in 1896 nearly 400,000. The number of papers allowed by the Regents averages about 60 per cent, of the number of papers written. Dr. William T. Harris, the United States Commissioner of Education, has said of the results of this system : " The Regents have proved that a state examining board can exer- cise a stimulating, elevating and unifying influence upon hundreds of institutions of secondary education scattered over a large state, and can wield that power with machinery which, considering the scale of operations, may fairly be called simple and inexpensive." Examinations of Professional and Technical Students. A '^ Laws ofi^Tj, t. 425. ^ Reports of the Examination Department, iv, 102. 70 CENTRALIZATION IN NEW YORK [480 rule of the Court of Appeals adopted in 1882 required that all persons before entering upon a clerkship or substituted course of study for admission to the New York bar, if not a college graduate must pass certain of the Regents' academic examinations. In 1889, a similar requirement was exacted by statute ' of all candidates for the degree of doctor of medicine; in 1894 every dental school in the State volun- tarily adopted the Regents' academic credentials as the re- quirement for admission, and a year later the same prelim- inary education standard required in medicine was provided by statute for all dental and veterinary students.'' To meet these requirements the Regents have provided special examinations in academic subjects for those profes- sional students who are not college graduates, and who have not already received the Regents' certificate of graduation from an academy or high school. These add somewhat to the examination work of the University, but they constitute a much less important share of the work than the regular academic examinations. In 1896 the total number of papers in the preliminary examinations for professional students was 23,000, and 1 100 certificates were granted on the examina- tions. The significance of these preliminary tests is in setting a minimum standard of general education — the full high school course — for professional students. A further development of the Regents' examination system has been in providing examinations in medicine, law, and for public accountants. Provision was made for medical exam- inations as early as 1872,3 but as graduates of registered medical colleges were allowed to practice, there were almost no candidates for the Regents' examinations. In 1890, however, the University was made the only authority which ' Laws 0/" 1889, t. 468. ' Laws of 1895 ; c. 626, c. 860. ' Laws o/lSj2, c. 746. 48 1 J PUBLIC EDUCATION 7 1 could issue licenses entitling doctors of medicine to practice in New York.' At the same time, three boards of Medical Examiners — one for each school of medicine — ^were created. The members of these boards are appointed by the Regents from nominations made by the State Associations of practi- tioners. The Regents provide the examinations, each board examines and marks the papers of the candidates belonging to its school, and on the reports of these examiners the licenses to practice are issued by the Regents." In 1895 similar boards of Dental Examiners and Veterinary Medical Examiners were established, which are appointed in the same way and perform similar functions as the boards of Medical Examiners.3 The State Board of Pharmacy, created in 1884, and appointed by the Governor, examines candidates in pharmacy and grants licenses independently of the Regents.-* The examinations in law are held directly by the Regents, who confer on successful candidates the degree of LL. B. In two charters granted to new law schools in 1891, the Regents reserved to themselves the degree-conferring power ;s and in the following year they held examinations for the law degree.* These examinations have been held annually since that time ; the average number of candidates has been about 150, and the number of degrees granted about 125.' The Regents' degree has the same position as those granted by private institutions, and holders of it to secure admission to the bar must also pass the examinations con- ducted by the Court of Appeals. In 1896, the Regents were required to provide examina- tions for public accountants, and to issue credentials to • Imws of 1890, c. 500. • Laws of 1890, c. 507. *Zazc/j »/■ 1895, c. 626, t. 860. ^Laws of \%%^,c.-ifi\; Laws of lS8^, c. 360. ' Reports of Regents, vol. 105, p. 70. * Reports of Regents, vol. 106, p. 70. ' Reports of Examination Department, Iv., 34. 72 CENTRALIZATION IN NEW YOK&. [482 persons who had passed the tests, giving them the title cer- tified public accountant. A board of examiners composed of experts has accordingly been appointed by the Regents, and the system of public accountant examinations inaugu- rated. University Extension. By the University Law of 1889. the field of the Regents was extended to include the charter- ing of libraries, museums, summer schools, correspondence schools, permanent lecture courses, and all other institutions for promoting higher education. On the basis of these powers, and under the leadership of Melvil Dewey," the Secretary of the University, a large and far-reaching plan of university extension was formed. On the application of the Regents, the legislature in 1891 appropriated $10,000' for this work, and the machinery for the extension of university teaching was at once put in operation. In this work the Regents occupy the same position as they do in relation to secondary education. They stimulate and supervise local action, but the immediate and direct management is in all cases under some local organization. The work of the Regents' extension department is in four divisions — public libraries, extension teaching, summer schools, and study clubs. There are now about 150 local libraries chartered by the University, and subject to the in- spection of its officers. The University, in addition, has nearly five hundred traveling libraries, which are loaned to villages for a brief period on the petition of taxpayers. The frequent result of the loan of one of these traveling libraries is the establishment of a local public library. Extension teaching has for its object instruction by lectures and classes, with oral and written exercises for those who cannot utilize • See address by Mr. Dewey at the 27th Annual Convocation, on The Extension of the University of the State of New York. Conv. Proc, 1889, p. 73. "^ Laws of 1891, c. 303. 483] PUBLIC EDUCATION 73 regular teaching institutions.' The University has a list of lecturers who may be engaged for different courses, and Regents' examinations and certificates are provided at the completion of a course. This division is as yet less import- ant than the public libraries work ; in 1895, 29 courses were offered at 21 local centers, with a total attendance of 37,600.^ In reference to summer schools, the chief work of the University has been the preparation of an annual bulletin containing a brief account of the courses, work and situation of the various schools in this country. Traveling libraries are loaned to these schools in New York State, and Regents' examinations and certificates are also provided. Study clubs are associations for home study, which may be organized in villages unable to employ a lecturer and maintain an extension course. Syllabuses of different courses of study prepared by the University can be used by such clubs, and further assistance is offered in guiding their read- ing and in placing at their disposal books, apparatus, traveling libraries, and exchanges.' In 1896 there were 122 of these clubs registered with the Regents, an increase of 52 over the previous year; 88 of these clubs had borrowed traveling libraries. Administrative Organization. The board of Regents of the University now consists of the Governor, Lieutenant Governor, Secretary of State and Superintendent of Public Instruction ex-officiis, and nineteen members elected for life by the legislature. No salary is attached to the position. From its constitution the board is necessarily a slowly changing body, and this with the character of the members chosen places it above the distractions of political issues. The full board meets several times each year, but it is also ^ Reports of the Regents, vol. 109, p. 89. ' Extension Department Reports, III, 346. ^Reports of the Regents, vol. 108, p. 119. 74 CENTRALIZATION IN NEW YORK [484 divided into seven committees, changed every two years, each of which has special charge of some department of the University's work. The Regents choose a Chancellor and a Vice-Chancellor from among their own number; they also elect a Secretary, who is a salaried officer and the executive head of the administrative details. Under the Secretary, who is also director of the State Library, is a large force of clerks, assistants and professional experts busied with the operation of the State Library and State Museum, the super- vision of extension work, the marking of examination papers and the inspection of schools. The State Boards of Medical, Dental and Veterinary Examiners, and the Board of Ex- aminers for certified public accountants are also part of the University organization. Finally there are four councils, representing the convocation on higher education, the col- leges, the academy principals and the libraries, which are composed of five members each, appointed by the Chan- cellor of the University, one councillor each year to serve for five years. These councils are advisory bodies with which the Regents may consult on the interests of the insti- tutions represented by them. Unification of the State Educational Bureaus. — The expla- nation of the existence of two separate and independent State bureaus of education is to be found in historical condi- tions which are now outgrown. The academies and colleges which came under the supervision of the Regents of the University during the first half of the century all had their origin in voluntary private action ; they were mainly sup- ported by private endowments and tuition fees, and the amount of State aid given was small. These institutions were therefore considered as having only a quasi-public character, and the supervision exercised by the Regents was of a very unobtrusive character. On the other hand, the com- mon schools, when established, were from the first intended 485] PUBLIC EDUCATION 75 as a system of public education, supported mainly, and eventually altogether, by public taxation, and. receiving a large share of the necessary funds directly from the State. For these public schools, receiving large State grants, and intended to provide a minimum of education for every child in the State, an elaborate organization and a thorough central control were considered necessary. This work was entirely different in character from the supervision then per- formed by the Regents, and the enormously greater number of common schools as compared with the number of academies placed the task beyond the powers of the Regents under their existing methods. Therefore, although the Regents had been active in securing the establishment of the common schools, a distinct and independent authority was established to direct and control the new system. To-day, however, these conditions have entirely changed. The secondary schools are no longer only quasi-public; they are, to almost the same extent as the common schools, supported by public taxation, and part of the local public school systems. Even more important than this change in the character of the schools has been the change in the methods of supervision exercised by the Regents. They are now simply a board of directors, governing an elaborate organization of administrative subordinates, who perform the work of supervision. The system of inspection and the ex- tensive scheme of examinations exercise a more thorough control over the curriculum and the character of the instruc- tion in the academies than is exercised by the Superin- tendent of Public Instruction over these features in the common schools. In view of the fact that the secondary schools are now for the most part public schools, and that they are subject to an even stricter central control than the common schools, a unification of the dual central organization would seem to 76 CENTRALIZATION IN NEW YORK [486 offer certain advantages. It would get rid of a perplexing and unnecessary complexity in the State administrative system, and possibly some saving in the expenses of central management could be made. Even more important gains from a union of this sort would come from the centralization of the experience of both departments, so that the methods which were found successful in one might be readily adopted in the other. Still further, if the consolidation were estab- lished on the wisest basis, the entire educational system might be placed wholly beyond the domain of partisan politics. With the spoils system eliminated, and educational officers selected entirely on grounds of competency, large improvements in the methods and results of public education could be expected. Propositions for the unification of the dual educational system came before the Committee on Education of the Constitutional Convention of 1894; and on the abstract principle that unification would be advantageous to all con- cerned the committee was unanimous. Three dififerent methods of bringing about the desired result were sug- gested: — 1. To make the Superintendent of Public Instruction elective by the Regents of the University. 2. To create a new central authority uniting in itself the functions of the University and the Department of Public Instruction. 3. To subordinate the University to the Department of Public Instruction. The third of these plans was not seriously considered by the committee. The practice of the legislature in electing the Superintendent of Public Instruction on party grounds made it obvious that this method would only increase the influence of party politics upon the educational interests of the State. It was similarly felt that if a new central autho- 4.87] PUBLIC EDUCATION jy rity was created, it was highly probable that partisan con- siderations would have a predominating influence in the selection of the officers. On the other hand, the record and traditions of the Regents were a guarantee that their selections would be based solely on grounds of tested com- petence and the public interest. The discussion of these methods brought out wide differ- ences of opinion in the committee, especially on the fundamental question as to whether it was advisable to determine the matter by constitutional provision.' Accord- ingly the new constitution contains no provision for uni- fication. It does however recognize the Regents of the University,'' and so makes it impossible for the legislature by any plan of consolidation to abolish that body. Unification can therefore come only by transferring the State supervision of the common school system to the Regents. ^Report of the Committee on Education, '\a Reports of the Regents, vol. 108, p. 52. ' Constitution of iSg^., art. ix, 2. CHAPTER III CHARITIES AND CORRECTION I . Historical Development of Charity Administration Throughout the colonial period the administration of public relief to the poor in New York was localized in the hands of town oflScers.' Legislation established rules of set- tlement, ordered the removal of vagrants and authorized the local rates \' but the assessment and collection of the rates was made by the town assessors and constables, and the dis- tribution of relief was managed by the town overseers. The tax levy, however, had to be made by the supervisors as part of the county rate, the receipts were turned over by the town constable to the county treasurer, and then paid out to the local overseers.' This was the general system; but there are also some exceptional provisions suggestive of the later development of county in place of town administration. The amendments to the Duke of York's Laws issued Oct. 30, 1665, contain a provision:* "That in regard the conditions of distracted persons may be both very chargeable and troublesome, and ' See J. Cummings, Poor Laws of Massachusetts and Ntw York, lot steps in the development of taxation to supplement the earlier system of voluntary relief. He does not, however, note that the Duke of York's Laws (1665) provided for the election of town overseers of the poor. Probably, too, the English settlements on Long Island had levied poor rates even before 1665. '' Colonial Laws of New York, 1683, u. 9; Ibid., 1691, c. 6. ' This county supervision was established in 1 69 1; in 1775 (c. 63) it was re- pealed for Ulster and Dutchess counties. * Colonial Laws of New York, p. 79. 78 [488 489] CHARITIES AND CORRECflON 79 SO will prove too greate a Burthen for one Toune alone to beare, each Toune in the Rideing ' where such person or persons shall happen to bee, are to Contribute towards the Charge which may arise upon such occasions." The laws passed by the Assembly in 169T and afterwards contain no reference to this, and probably the entire problem of relief of insane, as well as other poor, was left to the towns. Another exception was established by a law of 1740,' which provided that in Dutchess county the supervisors should pay from the county treasury for the expense of in- quests and burials of persons dying without estate, and for assistance to persons " in real need of relief." The last pro- vision evidently was intended, like the Massachusetts law of 1659,^ to furnish aid to those without a settlement in any town. Like all New York province laws, this had to be re- enacted from time to time to keep it in force, and when the enactment of 1760 expired in 1770 the law was not renewed. Later legislation, however, shows that, without any legislative authority, some counties recognized and supported a special class of county poor besides the settled town paupers. In the decade following the battle of Saratoga, three laws on settlement and poor relief, passed by the State Assembly, make some changes in administrative methods. By the law of 1780* the county became more prominent. The super- visors not only levied the poor rate as part of the county tax, but also determined the amount of this tax for each town. But each town continued to pay for its own poor, and in- stead of the former roundabout method, the tax was to be paid by the collectors directly to the town overseers, while ' Yorkshire, which included Long Island and Staten Island and the settled country north of the Harlem river, had been sub-divided into three administrative districts known as Ridings, cf. Yorkshire in England. " Colonial Laws of New York, v.. 705. • J. Cummings, op. Hi., p. 24. * Laws of 1 780, c. 68. So CENTRALIZATION lA NEW YORK [490 the accounts of the overseers were to be audited by two justices of the peace in the county. The important change made by the law of 1784' was to substitute public officers for church officers in the administration of relief in New York and several other counties. The Act of 1788 regu- lated in great detail the questions of settlement and immi- gration, and made some changes in administrative methods. In granting relief, the overseers were allowed to make only such allowances as were ordered by a justice of the peace; the erection of work-houses was authorized, and small towns might unite for the joint erection or purchase of such a house. The amount of the tax for poor relief was to be de- termined for each town by the annual town meeting instead of the supervisors ; but where a class of county poor was recognized, the county might continue its aid from the county revenue for that class. This last provision indicates that town aid did not fully meet the situation, and the general tendency of these changes is toward a larger administrative unit. In 1809, the class of county poor was recognized by statute.'^ The support of destitute, unsettled persons who on account of sickness could not be removed to their place of settlement, was made a charge on the counties. The aid was to be furnished by town overseers, their allowances being subject to the approval of the board of supervisors.' It was not until the third decade of this century that the system of county administration supplanted the town system. The first active measure in this direction was the Act of 1820,* authorizing the supervisors of Rensselaer County to erect a house of industry to which judges might order appli- cants for relief and disorderly persons to be moved, and to which overseers might send children found begging. The ' Laws of 1784, c. 35. ' Ibid., 1809, c. 90. ' Ibid., 1817, c. 177. * Ibid., 1820, c. 51. 49 1 ] CHARITIES AND CORRECTION 8 1 management of this house of industry was to be by superin- tendents appointed by the supervisors; and the expense was to be a charge on the county, but assessed on the towns in proportion to the cost of supporting the paupers from each town. Furthermore, no town could be made subject to the act without its own consent. Although referring specifically to one county, the powers under this act could be exercised by the board of super- visors of any other county on a two-thirds vote. The new system of relief rapidly commended itself, and in 1824 an act was passed providing for the erection of poor-houses in 18 counties, and authorizing the excepted counties to adopt the act. In the next few years special acts for over twenty other counties had been passed ; and before long, through- out the state, the system of county poor-houses ' supple- mented, in many places supplanted, the method of outdoor relief in the various towns.'' In some counties the erection of the county poor-house did away with the distinction be- tween county and town poor, the county assuming all the expenses without reference to the number of paupers from the different towns.'' In other counties, each town bore the expense of supporting its own inmates, the county main- taining the poor-house and the expense of supporting the " county poor." The management of the poor-houses was in all cases under superintendents appointed annually by the board of supervisors ; and the provisions for committal were similar to those for the Rensselaer county house of industry. The same years in which occurred the transition from town to county administration are also marked by the de- velopment of a definite policy of state aid for special classes ' Cf. Poor Law Unions in England, 1835. ' Outdoor relief might continue to be granted by overseers on written order of s. justice of the peace. Laws ofi%2'], c. 99. ' E.g., Warren County. LawsofiZz'j, c. 197. 82 CENTRALIZATION IN NEW YORK [^g2 of poor not reached by the local relief arrangements. Even before this there had been some state action of this sort. Thus, by an act of 1778, state aid was furnished to the fam- ilies of New York soldiers in the war of the Revolution.' At the beginning of the century the support of manumitted slaves was undertaken by the state, allowances being made to the local overseers ; and isolated cases of state relief to particular individuals are also found. In the aggregate, however, these early instances of state charities are in- significant. In one sense the entire state appropriation to the common school system, begun in 18 12, can be classed as a state char- ity ; but the question of public education presents other than problems of relief ; its administration has always been on dis- tinct principles, and for these reasons it has been considered in another chapter. But the provisions for the education of the deaf and dumb partake much more of the nature of philanthropy, and the state aid for this purpose first granted in iSig'' marks the beginning of a rapid development of the policy of state support to special charitable institutions. The first grant to the New York institution for the instruc- tion of the deaf and dumb was followed by others to the same institution, and in 1823 a similar grant was made to a second institution in central New York.' The Act of 1827' placed the New York city institution under the supervision of the superintendent of common schools, who was also author- ized to appoint the state pupils for that institution. A further development of state I'elief for special classes of dependents began with the establishment of a state lunatic asylum. Early legislation" had simply authorized the local '^221/^0/1778, c. 45. 'Hid., 1819,0.238. ' liid., 1821, c. 250; Hid., 1822, c. 234; Hid., 1823, c. 189. '/ijoT., 1827, c. 97. '/W-^2^ (January, 1898). 1 1 4 CENTRALIZA TION TN NE W YORK [524 through such sources in the State is equal to 50 per cent, of that furnished through public and private institutions. This expenditure is not subject to any direct government control and direction, but is organized so as to secure intelligence and security through the Charities Organization Society, another voluntary organization founded in 1882 through the initiative of the State Board of Charities.' The existence of this vast amount of private and voluntary relief must be borne in mind in any estimate of charity administration in New York State. 4. The Administration and Supervision of Penal Institutions Under the Dutch governors of New Netherlands, Fort Amsterdam was used as the only prison in the colony, its management being part of the central government. But with the development of the colony, after the transfer to the English, there arose the need for jails or prisons in the out- lying districts, and these were accordingly constructed under the direction of the justices of the peace, while the care and management of the prisoners was one of the functions of the sheriffs. The establishment of the supervisor system of county taxation'' did not involve the transfer of prison man- agement to the new officials, and until the middle of the eighteenth century the appointed justices of the peace con- tinued, under special acts of the legislature, to levy taxes for repairs and the construction of new buildings.' Beginning in 1 741, the acts authorizing the levy of taxes for county jails and court-houses sometimes designate the supervisors in place of the justices;' but in other cases the • National Conference on Charities and Correction, 1893, P- 59- ' See chap, v, i. ^ Laws of 1704, i;. 144; ihid., 1715, t. 300; ibid., 1719, c. 373; ibid., 1725, c. 505- ^ Ibid., 1741, c. 715; ibid., 1745, c. 807; ibid., 1751,0. 915; ibid., 1760, t. 1115; ibid., 1765, c. 1288; tbid., 1768, c. 1349. 52 5] CHARITIES AND CORRECTION 115 justices continued to be named,' and it is not until 1760 that the transition to independent local control of prison con- struction was fully accomplished. The management of county jails and the care of prisoners by the sherififs re- mained longer under some central control. As we have seen, the sheriflfs were appointed by the central government until the adoption of the constitution of 1821," and it was not until then that jail management became completely localized. Before that time, however, a centralized system of prison administration for certain classes of criminals had been established. In 1796 the construction of two state prisons at New York and Albany was provided for, and in 1815 another prison at Auburn was authorized. To these state prisons were sent all convicted felons or habitual criminals, and only the misdemeanants or less hardened and vicious cases were sentenced to confinement in county jails. A system of classification was thus established, and the care and management of the most important part of prison ad- ministration became a function of the state authorities. The number of state prisons naturally increased with the growth of population. In 1825 the Sing Sing prison was authorized, and in 1844 that at Clinton. The New York and Albany institutions were, however, turned over to the local authorities to be used as. county penitentiaries. The managers of the various state institutions were independent of each other and of all central supervision. In 1847 ^ board of Inspectors of Prisons, elected by popular vote, was created.* Their power at first included the visitation and examination of county jails, but in 1849 that part of the law was repealed.* Their authority over the state institutions included the power to visit and examine the prisons, to make regulations for their government and discipline, to prescribe •Zawi 0/1743,1;. 756; j^jV, 1758, u. 1060. 'Seep. 12. ^Constitution 0/1846; Laws 0/1847, c. 460. * Laws 0/1849, c. 331. Il6 CENTRALIZATION JN NEW YORK [526 articles and quantities of food, and to appoint the officers. Instead of acting jointly, each inspector was given complete charge of a particular prison ; and through this provision the management of each prison continued, as before, to be very largely independent. This system of prison administration was continued for nearly thirty years. In 1876, however, as the result of an investigation into the condition of the State prisons by a legislative commission, the management of these State insti- tutions was concentrated under a single officer. The report of the commissfon had shown that the prison officers were appointed mainly through political influence; that ap- pointees were inefficient, discipline was lax, the prisons were much overcrowded and the convicts subjected to much abusive treatment.' The result of this report was the adop- tion of a constitutional amendment creating the office of Superintendent of Prisons. To this officer, who was ap- pointed by the Governor, was given the management and con- trol of all state prisons, including all matters relating to their government, discipline, police, contracts and fiscal concerns.'' The wardens, physicians and chaplains were made appointees of the Superintendent, who had also the authority to remove any of them and to designate the num- ber of subordinate officers. The effects of the change in the system of prison adminis- tration were seen most strikingly in the fiscal statistics. In 1876, the deficit after deducting the earnings from prison in- dustries was $605,040. In 1877, the expenditures were $625,003, and the deficit $317,000.' Under the new man- agement, the expenditures were at once reduced by fifty per cent, and the earnings so increased that by 1879 the deficit was only $20,000, and by 1881 it had been changed ' Report on Investigation of State Prisons, 1876. '^ Laws ofiZ'jl, c. 107. ' Report 0/ the Superintendent of Prisons, iii, 3 ; xvi, 9, 527] CHARITIES AND CORRECTION wj to a surplus. The prisons continued to be self-supporting until 1887, when the agitation against the competition of prison-made goods with free labor led to legislative regula- tions which hampered the prison industries, and deficits again appeared. In 1877 the State Reformatory at Elmira was opened, where, for the first time in America,' adult felons were com- mitted on an indeterminate sentence, and treated under a system of progressive classification and conditional release based upon attainments in conduct and character while in prison. This institution was not placed under the State Superintendent of Prisons, but has an independent manage- ment, although, as we have seen, it was under the general supervision of the State Board of Charities until 1894. While the management of the state prisons became completely centralized, changes of another character had been gradually made in other features of prison administra- tion, through the development of the penitentiary system. When, in the counties where large cities grew up, the former jails became entirely inadequate for the large number of misdemeanants, the construction of new and larger institu- tions was authorized. These penitentiaries, which were built in six counties, at first contained the same class of prisoners as the county jails ; but subsequent changes led to the concentration in these large institutions of all classes of prisoners, thus breaking down to a large extent the system of classification which the use of state prisons had inaugu- rated. The first measures leading to this result were the laws authorizing the penitentiaries to receive prisoners from other counties. Many counties soon found it cheaper to board their prisoners at the large penitentiaries than in their own ' R. Brinkerhoff, The Prison Question, in Report of the National Conference of Charities and Correction, 1893, p. 149. 1 1 8 CENTRALIZA TION IN NE W YORK [528 small jails; and the result was that the latter became very largely places for the detention of persons awaiting trial, while the great number of convicted misdemeanants were sent to the penitentiaries. The county magistrates further pro- moted this tendency by abandoning, in large measure, twenty, thirty and forty day sentences, punishing by fine those not sentenced for the sixty days necessary to secure admission to the penitentiaries.' This concentration of misdemeanants at the penitentaries would not have been important but for other measures which have filled these institutions with grosser and more vicious felons. The penitentiary managers were authorized to re- ceive prisoners from federal courts, both in and out of New York State ; and in this way homicides, counterfeiters, stage- robbers and felons of various kinds were admitted. Still further, statutes were passed permitting the state courts to sentence to a penitentiary felons whose terms of imprison- ment did not exceed five years. For the board and care of such felons the state paid the penitentiary authorities, although they could have been maintained at less expense at the state prisons, where the state would also have had the benefit of their labor. It was about twenty years after the complete centraliza- tion of state prison management before any steps were taken toward any central control of the penitentiaries and county jails. The constitution of 1894 directed the legislature to provide a Commission of Prisons to " visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors." Under this provision, the legislature in 1895 pro- vided for a commission of eight persons, to be appointed by the Governor, one from each judicial district, one member to retire each year.' The commissioners receive ten dollars "^Reports of tht State Commission of Prisons,\, 21. 'Laws ofiS^^, c. 1026. S29] CHARITIES AND CORRECTION ng per day for time employed in attending the meetings of the commission ; and the secretary, elected by the commission, receives a salary of $3,000 per year. The functions of the State Commission of Prisons are in part administrative, in part supervisory. In the first class fall its duties in reference to the employment of convicts in the State prisons. The statute establishing the commission required it to prepare a Convict Labor Law, providing for the employment of prisoners in the manufacture of articles required by the State, or its political divisions. Such a law was prepared and enacted in 1896.' In the operation of this law the Commission assigns the industries to be performed in each of the State prisons ; and, in conjunction with the Comptroller, the Superintendent of State Prisons, and the Commission in Lunacy, it fixes the prices to be charged for the articles made. The general management of the prison industries is under the direction of the State Superintendent of Prisons. The new system has been in operation only a short time, and the financial results are as yet unfavorable. In 1897 the receipts from prison-made goods were less than the expenditures for these institutions by $560,000. It is hoped that after the new method has been in operation longer a better showing may be made ; but in any case it has been demonstrated that the requisitions of state and local officers and institutions will be sufficient to provide productive em- ployment for all the available convicts in the prisons.^ The supervisory powers of the Commission of Prisons resemble those of the State Board of Charities. It does not interfei'e with the detailed administration of the State Super- intendent of Prisons ; but it has general authority to visit and inspect the state prisons and reformatories, and also ^ Laws .of i&g6, c. 429. ' Reports of the Superintendent of State Prisons for iSqj. I20 CENTRALIZATION IN NEW YORK [530 the county jails and penitentiaries. This authority makes it their duty to investigate the management of all these insti- tutions, and the conduct and efficiency of persons charged with their management; to aid in securing just, humane and economic administration ; to secure the best sanitary condi- tion of buildings and grounds; and to aid in securing the erection of suitable buildings. For this last purpose it is authorized to approve or reject plans for the construction or improvement of buildings. Further, it iS to collect statis- tical information concerning the various institutions, for which purpose the wardens and keepers of the various insti- tutions are required to make reports. The visits and inspection of the local institutions by the commission have disclosed the importance of a central super- vision of these institutions. In the penitentiaries the elTects of the association of felons and misdemeanants was at once evi- dent, and the commission has secured the passage of laws re- quiring all felons sentenced for a term exceeding one year to be sent to the state prisons or reformatories,' and prohibiting the reception of United States convicts in the penitentiaries.' These statutes will secure the separation of misdemeanants and felons, and thus establish a distinct differentiation of functions between the state and county institutions. The commission's inspections have also shown that in several penitentiaries there are a large number of convicts who are not kept employed ;3 while in forty-nine of the sixty counties the jail convicts are not employed in any form of labor at all.* The period of detention is thus rather a vacation than a punishment; and in idleness the young offenders listen to the stories of older criminals and receive lessons in criminal ways. The commission has attempted to '^ Laws o/iSgS, c. 553. ^ Ibid., 1896, c. 429. "Reports of the State Commission of Prisons, iii, 81. ' IHd., iii, 86. 531] CHARITIES AND CORRECTION 12 1 secure a more general obedience to the law on this sub- ject. It has especially advocated the employment of con- vict labor in building and improving highways; not only as the best way of employing convicts without afifecting outside labor, but also as a means of securing well-built and passable country roads. The most serious defects in the county care of prisoners were found in the condition of the county jail buildings. " The great majority of the jails in this State are relics of another generation, when the sole object was confinement, and no consideration was given to the health or reformation of the inmates."' One building now in use was constructed in 1801, and ten are more than forty years old. Some of these have had later additions and improvements, but most of them, and many of those constructed later, have insufficient accommodations for the number of inmates they at times receive. Westchester county jail with 72 cells has held 500 prisoners. Many jails have no system of separat- ing different classes of inmates; and debtors, witnesses, women and children are confined together. In Greene county a boy 14 years old, charged with assault on a school- mate, was in the same compartment with persons indicted for murder and bigamy, and it was believed that when the grand jury met in three months the boy would be acquitted. Even where there was some classification it was frequently inadequate for all purposes. Still more frequent were cases of poor ventilation, poor drainage and bad sanitary condi- tions. More than half of the jails examined in 1896 were defective in one or more of these respects, rendering them sources of danger to the health not only of the inmates, but also of the localities where they were situated. The visiting commissioners called the attention of the 1 Reports of the State Commission of Prisons, iii, 84. 122 CENTRALIZATION IN NEW YORK [532 county authorities to these defects, and recommended im- provements. Five jails were in such condition that they were considered unfit for occupation and beyond hope of improvement by repairs ; the only advice to be given in these cases was to tear down the old jail and erect a new building. The recommendations of the commissioners were in many counties favorably received by the supervisors.' The officials have shown a disposition to improve the clean- liness of the jails, and to act on suggestions for the separa- tion of different classes of prisoners so far as practical with the buildings in use. In some cases more radical improve- ments were begun, and in two counties steps were taken to build new jails. The inspections of the commission have therefore done much good already; but as in all cases where the central body has only an advisory authority, im- provements recommended by it come gradually, and the full results of the supervision of county jails by the Commission of Prisons can be tested only after a lapse of years. There is, however, in the revised Prison Law of 1898, some extension of the authority of the commission. It is empowered to appoint salaried inspectors to visit penal institutions, thus making possible a more constant super- vision of the local institutions. In making investigations it is authorized to issue subpoenas and examine persons under oath. It is required to make and enforce uniform rules and regulations for all county jails and penitentiaries in respect to the separation, labor, treatment and discipline of all prisoners confined therein. The commission is also given statutory authority to issue specific orders to the local officials in regard to the construction and management of county penal institutions ; and provision is made for the enforcement of these orders. These directions may ask for a ' Reports of the State Commission of Prisons, ii, 28. 533] CHARITIES AND CORRECTION 123 modification in the treatment of prisoners, or a change in the method of management ; they may require the construction of new buildings or improvements, so as to provide adequate accommodations, separation of prisoners, ventilation, bathing facilities, or to remove any conditions which are liable to affect the health or morals of the prisoners. If the directions of the commission are not followed, it may apply to a justice of the Supreme Court for an order requiring that the directions be obeyed. To secure these judicial orders, it will be necesssary to satisfy the judges that the improvements ordered by the commission are reasonable ; and the commission's power of enforcement is, to this extent, limited. But with the increased scope of authority granted in the statute, and with the power of initiative to secure the judicial orders, the influence of the commission should be much enlarged, and its control over the county institutions should become more effective. Whether it prove an important advance or not, this latest legislation is at least an indication that the movement towards further central control is not losing ground. CHAPTER IV PUBLIC HEALTH ADMINISTRATION I . Historical Sketch of Health Legislation The object of all but the latest public health legislation in New York State has been to guard against the danger from epidemic and contagious diseases. The first efforts were directed solely against the introduction of such diseases from abroad, and it is only within recent years that the im- portance of internal sanitary conditions on the health of the community has come to be recognized. The early quarantine regulations were both issued and enforced by the central administrative authorities of the colony. As far back as 1647, we find the Council of New Netherlands taking measures to prevent the introduc- tion of yellow fever, then prevailing in the West India Islands. In 1714 a quarantine was established at Staten Island by order of His Majesty's Council. In 1743 Gov- ernor George Clinton required all vessels coming to New York to be inspected and a health certificate issued before landing was allowed.' Such executive orders continued to be the basis of quar- antine rules until 1755, when the provincial assembly passed an act' forbidding all vessels having on board contagious distempers from approaching nearer the city of New York than Bedlow's island, and providing that a surgeon should be appointed by the governor to visit suspected vessels. ' Chadbourne and Moore, Public Service of New York, ii, 425, 446. ' The Colonial Laws of New York, c. 973. 124 [534 535] PUBLIC HEAL TH ADMINISTRA TION \ 2 5 In 1784' this law was substantially re-enacted by the state legislature, with the additional provision that in the absence of the Governor the execution of the act was to be under the direction of the mayor of New York City. Ten years later,' the scope of the act was extended to the whole of the State, the appointment of inspecting physicians at Albany and Hudson was authorized, and the mayors of these cities were empowered to enforce the law.3 The powers thus vested in the mayors did not, however, constitute any great decentral- ization in the administration of the quarantine regulations, for the mayors were appointed by the Governor, and, what is more important, the real work of carrying out the law rested with the inspecting physicians or health officers appointed by the Governor. Thus far the only means of internal sanitary regulations was through orders for the removal of nuisances, which, under the common law, could be issued by any justice of the peace. A yellow fever epidemic in the summer of 1795 "• roused the legislature to the need of more efifective measures. By a statute of 1796,= a health officer and seven commis- sioners of the health office were to be appointed to enforce the quarantine regulations ; and the need for internal regu- lation was recognized by authorizing the corporation of New York City to make rules for cleaning streets, and for the re- moval of offensive articles. The next year* the number of health commissioners was reduced to three, and the above powers of the city corporation were transferred to this board of state officials. A centralized system of sanitary regu- lation, as well as of quarantine, was thus established. ^Laws 0/1784, c. 57. ' Jitti; 1794. c- 53- 'Troy was added in 1827, c. 14. 'There were 525 deaths in New York City between July 19th and October 6th. Memorial History of New York, iii, 139. ' Laws of 1 796, t. 38. « Ibid., 1 797, t. 1 6. 126 CENTRALIZATION IN NEW YORK [536 In 1805 ' a statute was enacted transferring the powers of the health commissioners to the mayor, aldermen and com- monalty of the city of New York, who were authorized to establish a local board of health." Quarantine remained as before under the control of the state officials, but internal sanitary regulations were now placed in charge of a local authority independent of any central control. The city of Albany received similar power in iSoS^ to establish a local board of health; and in 1824'' the trustees of the village of Brooklyn were constituted a board of health. Although these local boards of health dealt with internal sanitary conditions, their activities were confined to efforts to check the ravages of yellow fever, which in spite of quar- antine regulations reappeared and became epidemic from time to time. As these epidemics were confined for the most part to the ports which had direct communication with the yellow fever regions in the West Indies, the interior towns found no need for special health authorities. Hence the small number of local boards in the first quarter of the century. In 1832, however, the first visitation of Asiatic cholera to America forced on the legislature the temporary adoption of a more comprehensive scheme of local organizations for protection against, that scourge. In New York City alone there were 2996 deaths, and whether due to the nature of the disease or to the increasing facility of transportation, there were victims of cholera in almost every considerable town in the state.^ The Act passed by the legislature of New York in this emergency provided that: ^ Laws 0/180^, i;. 31. 'The creation of a local board was made mandatory by Act of 1820, c. 229. 'Laws o/"i8o6, c. 109. 'liid., 1824, t. 201. 'D. Atkins, editor. Report on the Epidemic of Cholera (1832). 537] PUBLIC HEAL TH ADMINISTKA TION \ 2 ^ "It shall be the duty of the common council of every city, and the trustees of every incorporated village in the several counties of this State bounded by Lakes Erie, On- tario and Champlain or on the rivers St. Lawrence or Hud- son, or bounded on or intersected by any of the canals of this state, ... to appoint a board of health to consist of not less than three nor more than seven persons for such village, and a competent physician to be the health officer thereof." "The supervisors, overseers of the poor and justices of the peace or the major part of them of each town in the aforesaid counties, shall be a board of health for such town ; and they shall forthwith appoint some competent physician to be the health officer for such town."' The trustees of any village or the town authorities of places not in the counties specified were also given power to constititute themselves a board of health. There was no intention at this time of permanently estab- lishing any such elaborate scheme of local boards of health. The Act was to be in force only until February 1833, though circumstances required its renewal for a second ,year, and in 1835 a recurrence of the cholera led to its re- enactment for still another year.= But while the first act made the expenses incurred by the local boards a charge on the counties, the first renewing act provided that expenses for removing local nuisances should be borne by the city, village or town concerned ; and the second provided that all expenses should be paid by the city, village or town. This first attempt at anything like a general system of local health authorities contained no provision for any central control or direction. The system was completely decentral- ized. One result is that it is impossible to learn how far the ' Laws of 1832, c. 333. ' Ibid., 1833, c. 221 ; lUd., 1835, <=• I°3- 1 2 8 CENTRALIZA TION IN NE W YORK [538 provisions of the Act were obeyed. In the light of later history, it seems probable that even the mandatory clauses were to a large extent a dead letter. A second visitation of cholera in 1 849 led to the perma- nent adoption by the legislature of the system of local boards of health. As soon as the probability of an epidemic became known, the Governor was authorized to revive by proclamation the law of 1832;' but after the experience of the second epidemic a permanent statute was passed of broader scope than the Act of 1832. By this statute, local boards of health were required to be organized in every village ; and in towns, the supervisor and justice of the peace were to constitute a local board of health "whenever in the opinion of a majority of said board the public good requires it."' As in the Act of 1832, there was no attempt at establishing any supervision or control over the local autho- rities. This thoroughly decentralized and practically optional scheme remained the basis of the rural health administration for thirty years. At the end of that time perhaps twenty of the 947 townships and twice as many of the incorporated villages in the State had some form of sanitary government, and but few of these local boards exhibited any activity .3 Probably it was never expected that any general system of local boards would be permanently established under the Act of 1850. That law was enacted in fear of a particular invasion of cholera, and when that had passed, in the public ' Laws 0/1849, t. 364. ^ Ibid., 1850, u. 324. Under this statute the expenses of these local boards were made a charge on the counties; but in 1854 (c. 169) t^fx^ was fixed as the limit which one town might impose on the county. In 1868 (c. 761) all expenses of local boards of health were made a charge on the town, village or city. In 1867 (c. 790) the powers of the local boards of health were somewhat increased. * Reports of the State Board of Health, ii, 13. 539] PUBLIC HEALTH ADMINISTRATION 129 opinion of the|time, all need for the local boards in the rural districts had disappeared. The need for health legislation apart from the special pre- cautions in times of epidemic was, however, beginning to be realized. In i860' the vaccination of all school children was made obligatory, the enforcement of the law resting with the school trustees; in 1864 a law prohibiting the adulteration of milk was enacted ;" and in 1869 a general law on the subject of the drainage of swamp lands took the place of the frequent special laws that had been enacted at every session of the legislature since the beginning of the century .3 In the cities, where, of course, the need was much greater, there were local boards of health, established under the pro- visions of the various city charters. In response to inquiries sent out by a committee of the American Public Health Association in 1872, reports were received from boards of health in eleven of the twenty-four New York cities.* All of these seemed to display some activity, but only in New York and Buffalo was there any considerable corps of assist- ants to the health officer. In 1880 each of the cities had a local board, but in by far the greater number of these the health officers held their places rather as a matter of favor than of fitness ; hence, in only a few of the cities was there any efficient health administration.s During the years 1866 to 1870 New York City, Brooklyn, Staten Island, and parts of Westchester and Queens counties were formed into a metropolitan sanitary district, with a board of health appointed by the Governor of the State. ^La7us 0/1860, u. 438. 'liiii., 1864, i,-. 544; iMd., 1878, u. 220. 'liU, 1869, c. 220; iiU, 1871, c. 303; Hid., 1873, c. 243. * In Auburn, Brooklyn, Buffalo, Cohoes, Elmira, Hudson, Newburgh, New York, Poughkeepsie, Rochester and Troy. I'roceedings of the American Public Health Associalion, i, 506. ^Jieporis of the State Board of Health, ii, 13. 130 CENTRALIZATION IN NEW YORK [540 This, however, is an instance of state control over the local government of the metropolitan district rather than an illus- tration of any tendency to establish a central control over the local health authorities throughout the State. In any case, the state control lasted for but a few years, and with this single temporary exception the administration of health laws, other than quarantine regulations, remained entirely in the hands of independent local authorities, until the creation of the State Board of Health in 1880. From the time of the organization of the Massachusetts State Board of Health in 1869, leading physicians and public-spirited citizens in New York had been urging the necessity of the creation of a state sanitary system, under a central board of health.' Other states soon followed the example of Massachusetts, but it was not until after ten years of discussion, when twenty-two other state boards had been established, that the New York legislature passed the neces- sary law. The specific powers of the New York State Board of Health as first created were limited.' It was to " take cog- nizance of the interests of health and hfe among the people of the State," to make inquiries and investigations into nuisances and causes of disease, and to have supervision of the state system of registration of births, marriages and deaths. The jurisdiction of the state board did not impair in any way the authority of the local boards, but was rather intended to supplement their powers in matters that could not be attended to by local authorities. Even in super- vising the registration of vital statistics the central authority did not at first have any compulsory powers. Once established, however, the State Board of Health exerted an educational influence over local boards much ' E. Harris, in Chadbourne and Moore, The Public Service of New York, ii, 447. ''Laws tf/i88o, c. 322; u. 512. 5 4 1 ] PUBLIC HEAL TH ADMINISTRA TION 1 3 i wider than the authority conferred by the text of the law ; and it so proved its usefulness that new powers have been conferred on it, increasing both its work of direct adminis- tration and its power of supervision, though in no case sup- planting the local authorities. One of the earliest and most important tasks of the state board was to organize and stim- ulate into activity the local boards. In 1881' it received authority to direct the supervisors to call town boards of health into life; and by calling attention to the law of 1850, requiring the formation of village boards of health, it brought many of these into existence. In 1885 '^ the supervisory authority of the state board was increased by requiring local boards to use the forms for registration of vital statistics prepared by it; by requiring local boards to report facts relating to infectious diseases; by authorizing the state board to summon a meeting of any local board to consider some specific subject recommended by the state board ; and by empowering the state board to compel local boards to perform their duties by applying to the courts for a mandamus. A further power was conferred at first by special acts, and in 1889 by a general act, requiring villages proposing to build sewage systems to submit their plans for approval to the State Board of Health.^ And again, by the Revised Pubhc Health Law of 1893, local boards are required to re- port certain classes of diseases in addition to vital statistics, and in case of the neglect of local authorities to establish a local board of health, the state board may perform directly the duties of a local board. By means of this legislation the various local boards, from being independent units, have been co-ordinated and com- ' Laws ofl%%\, c. 431. ^Ibid., 1885, i;. 270. ^ Ibid., 1886, c. 608; ibid., 1887, c. 609; ibid., 1888, c. 311; ibid., 1889,0.375") 1 3 2 CENTRALIZA TION IN NE W YORK [ 5 42 bined into a state system, under a central board which stim- ulates them to action, is an advisory resource, and in case of last resort can exercise mandatory powers. This supervision exercised only to keep the local authorities active in the discharge of their duties is radically different from a system of centralized administration, and the powers of the central board are vastly less than those possessed by the English Local Government Board over public health regulations. Along with this development of the supervisory authority of the state board has gone an increase in the powers of direct administration entrusted to it ; and at the same time an increase in the powers of the local authorities. The statute of 1850 remains the basis of the authority vested in the local boards, but later amendments ' have added much to their jurisdiction and their powers of enforcement. To the state board has been given the duty of enforcing new statutes, which would otherwise have been left to enforce themselves, such as the Foods & Drugs Adulteration Acts, the Act forbidding the use of explosive oils below certain tests, the investigation and suppression of tuberculosis in cows.° These Acts mark an increase in the sphere of central administration, but this increase has been through the extension of governmental activities, and not by limiting the powers of the local officials. To sum up the leading points of this historical sketch. The first health regulations in New York consisted of execu- tive orders establishing quarantine — a thoroughly centralized system. In 1755 the legislature began to enact laws on this subject, but the administration of quarantine has continued to be wholly centralized. Further health legislation was ^ Laws of 1881, c. 431; ibid., 1885, c. 270; ibid., 1888, c. 146; ibid., 1897, <=• 138, 169. '' Jbid., iSii, c. 407; ibid., 1885,1;. 176; ibid., 1886, t. 407; ibid., 1882, c. 292; ibid., 1892, u. 487; ibid., 1895, ^- l°3l- 543] PUBLIC HEAL TH ADMINISTRA TION \ 3 3 enacted by laws for special localities and enforced by local boards of health. In 1832 a complete system of local boards was temporarily provided for, and in 1850 a perma- nent statute of the same nature was enacted ; but although these Acts were mandatory in form, there being no authority to enforce them but few local boards were established ; while the custom of creating city boards of health and defining their powers by special legislation continued to be followed. In 1880 a State Board of Health was established with very limited powers. Later legislation has increased the powers of both local boards and the state board, and has also added to the supervisory authority of the state board over the local organizations. This recent development is not in the nature of centralization, but shows rather the evolution of a system of strong local organizations subject to central advice and control. 2. The State Board of Health The State Board of Health is composed of three classes of members ; first, three State health commissioners appointed by the Governor; secondly, three city health officers, two selected by the Governor, the health officer of New York acting ex-officio; thirdly, the Attorney General, the State Engineer and Surveyor, and the health officer of the port of New York, ex-officiis. The last named official is appointed by the Governor for a term of four years ; the other five members named by the Governor are appointed for three years ; the two State officials are elected for two-year terms ; and the New York City health officer is appointed by the city health board for six years. In practice, the State com- missioners have been frequently re- appointed, one member having served for nine years, and the average term of ser- vice before 1895 being five years. None of the members of the board receives a salary as such. I J 4 CENTRALIZA TION IN NE W YORK [ 5 44 The board forms its own internal organization. One of the State health commissioners is elected President, and a Secretary is appointed, at a salary of $4500, who directs the routine administrative work. Quarterly meet- ings of the board are provided for, but in practice from ten to twelve meetings are held each year. Seven standing committees, on each of which the President and Secretary are members, are appointed for different phases of the board's activities. Considering first those functions of the board by which it exercises a supervision and control over local authorities, it may be noted again that in the early years of the board its powers of this nature were only advisory, and that it pos- sessed little real authority. This limitation of its powers probably arose from the distrust of any marked centraliza- tion in a field of administration formerly left wholly to local action ; and this distrust made it important for the board to make clear the difference between its authority and a cen- tralized administration. Accordingly we find from the first an emphasis on this distinction, a declaration of a purpose to proceed by means of consultation and advice rather than by command. In the first report, the statement is made that "without any abridgment of the rights and privileges of local government of the towns, villages and cities of the Commonwealth, the State Board of Health has been organ- ized and put in operation,"' Two years later the same point was emphasized in these words :° "Though not want- ing in certain kinds of authority, the policy of this depart- ment of the State's service has mostly been directly the con- verse of centralization or dictation. From first to last, and from centre to circumference, the service has been, and will continue to be, chiefly a work of studious instruction and guidance in the work required." • Reports of the State Board of Health, i, 94. ' Bid., iii, 63. 545] PUBLIC HEAL TH ADMINISTRA TION \ 3 5 The work accomplished by the board by this method of advice and instruction has been by no means insignificant. One of the first tasks undertaken was the preparation and distribution among the various local authorities of a com- pend of the public health laws in force. By thus calling attention to the provisions of the almost forgotten statutes, the organization and activity of local boards of health in hundreds of towns and villages were secured.' In addition, by preparing, distributing and recommending sets of local sanitary ordinances, the state board made clear to the new, and also to older local boards, that there were opportunities for their activity even with no epidemic disease in sight. Then, too, on account of the frequent changes in the per- sonnel of the local boards, bringing persons unfamiliar with the duties of sanitary administration into office, there soon developed a constant inquiry and correspondence with the central office regarding the routine of work, and the most elementary questions of sanitary requirements." This work of sanitary correspondence with the local boards, by giving them the accumulated experience of the state board, greatly added to the usefulness of the former. The inquiries from, the local ciuthorities were not long confined to matters which could be answered off-hand. The advice and assistance of the state board is frequently asked on questions of sanitary improvements requiring more tech- nical knowledge than the localities can command. 3 In such cases, the policy of the state board has been to make, through its sanitary inspectors, engineers and chemists, the ' Town Boards of Health consist of the Supervisor, Town Qerk and four Justices of the Peace, ex-officiis, and one citizen member. In the incorporated villages and cities there are generally no cx-officio members, and the number in the board varies. Each board chooses a health officer, (who must be a physician) and a reg- istrar of vital statistics. ' Reports of the State Board of Health, vi, 6. ' Ibid., 1, 20. 136 CENTRALIZATION IN NEW YORK [546 necessary expert examination, to decide as to the necessity for tiie proposed works, and as to their general character, leaving to the community to make its own plans in detail. Not only have the local boards thus asked for advice and technical assistance from the state board, they have also appealed to it to secure redress from unsanitary conditions beyond their control.' In some cases the complaint is against conditions beyond their jurisdiction ; in others the cause of the trouble may be a powerful railway corporation which pays Httle heed to the remonstrances of the local board of health in a small town. Here again, the state board makes a direct investigation, and its recommendations for sanitary improvements have been generally followed. Complaints from individuals as to the inaction of their local authorities in the face of necessary sanitary reform are simi- larly investigated, and such improvements as are required recommended to the localities. In many such cases there has been a local conflict of opinion, and the decision of the state board as a competent and impartial authority is ac- cepted without demur. In some matters, too, the board can compel the acceptance of its recommendations, but this power belongs to another phase of the subject. Even where it has had no mandatory authority, the State Board of Health has accomplished much through its educational and advisory in- fluence. The only provision in the legislation of 1880 requiring the local boards to come into relations to the state board, was in regard to the registration of vital statistics. The collection of these statistics was to be under the direction of local boards of health, and the state board was to prepare the necessary forms for preserving the data collected. The state board prepared the forms and distributed them over the ' Reports of the State Board of Health, v, 19. 5 47] PUBLIC HEAL TH ADMINISTRA TION 1 3 7 state ; but the actual returns received were at first so meagre that not until April, 1884, was it found practicable to attempt any compilation of the returns, which even then were very- far short of completeness.' The amendments to the law in 1885 required the local boards to secure and report the record of vital statistics in accordance with the methods and forms prescribed by the state board. Under this provision the returns improved in completeness; but in 1889 there were still 80 towns which made no reports, and for the por- tion of the State outside of the cities the low death rate of 13.10 per 1000, showed that the returns were still deficient.^ The number of towns making no returns has now diminished to fifteen or twenty, but the superintendent of this depart- ment of the state board's work reports in 18963 that "un- doubtedly many local boards have not reported fully" on the mortality in their district. On the whole, however, the death statistics have been reasonably complete for the last eight years ; but the data on births and marriages have not yet warranted their compilation and publication. The later legislation has required the local boards to re- port promptly to the state board, in addition to vital statis- tics, facts relating to infectious and epidemic diseases, and by the law of 1893 all cases of infectious and contagious diseases must be reported monthly, and the number of cases of consumption must be reported annually. The statistics secured in this way are not only valuable for purposes of comparison, but an increased death-rate in any locality will also draw the attention of the state board to the need of investigating local sanitary conditions, and exercis- ing its functions of positive control over the localities. In addition to the regular reports of vital statistics, city and village authorities desiring to construct or extend sewerage ' Reports of the State Board of Health, v, 2. ■'Ibid., ix, 35, 51. ' Ibid., xvi, 448. 138 CENTRALIZATION IN NEW YORK [548 systems must have their plans approved by the State Board of Health. With this approval of their plans, the villages are now authorized by general law to proceed with the con- struction, where formerly a special statute was necessary for each village system and even for each extension of an exist- ing system. The increase of administrative supervision has, therefore, been accompanied by the diminution of legislative control, and has to the same extent relieved the legislature of a considerable amount of special legislation. On the submission of plans and specifications for any pro- posed sewerage system or extension, these are referred to one of the consulting engineers of the board, and on his exami- nation and report the board takes action on the question of approval. In the first six years under the general law, 71 cities and villages submitted to the State Board of Health plans and specifications for proposed sewerage systems or ex- tensions of existing systems. The one statute has supplied all the legislation necessary, where under the old method 71 different Acts would have been passed ; and there can be no question that the method of expert examination by the consulting engineers of the state board ensures more scien- tific and efficient sewer constructions than any investigations made by a temporary legislative committee. Moreover, the new method makes it much easier for sewer systems to be built, whether the initiative comes from the localities voluntarily, or after suggestion from the state board. The wisdom of the law is well exemplified by the number of plans that have been brought to the state board for review. The degree of positive or compulsory authority which the State Board of Health can now exert over local boards is limited to certain specific provisions of the law. By means of these it can ( i ) require local boards to take action in any particular case recommended by the State Board; (2) over- rule acts of local boards where they affect the public health S 49] PUBLIC HEAL TH ADMINISTRA TION 1 39 beyond the jurisdiction of the local board; (3) secure the enforcement of any duty prescribed by statute on local boards, through the use of mandamus proceedings in the courts ; and (4) assume direct control where no local board is organized. Under these provisions a considerable degree of positive central control over the local boards might be exerted except for two causes. The legislative appropriation for the ex- penses of the state board sets a limit to its activity in this as in other directions; but equally potent is the fact that the policy of the board has been to use its mandatory and com- pulsory powers as little as possible. It has acted on the principle of " working through the local organizations estab- lished by law, preserving their autonomy and independence, settling their disputes, supplementing their deficiencies and endeavoring to elevate the plane of their usefulness." ' Thus, the whole tendency has been to leave the actual sanitary ad- ministration in the hands of the local authorities, and to make the central board an educational bureau, rather than an office for issuing mandatory orders to the local boards.^ The absence of any strong centralizing tendency may be explained in part by the board form of organization, and by the presence of local health officers on the central board ; but the unanimity of opinion on the subject is a strong indi- cation that the energetic exercise of the compulsory powers would be unwise. The scope of the direct administrative authority possessed by the State Board of Health has already been seen in noting the grants of powers made by the legislature; 3 and it is only necessary here to call attention to the various means used to carry out these powers. The compilation, indexing and pub- lication of the vital statistics collected from the local authori- ^ Reports of the State Board of Health, viii, 9. ''Ibid., i, loi; iii, 63; x, 36. 'See p. 132. I40 CENTRALIZATION IN NEW YORK [550 ties requires several clerks and assistants at the central office of the board. A small force of chemists is employed for making analyses of foods and drugs to discover adulterations. There are also several consulting engineers (of the State Engineer's staff) employed in making investigations on drainage, pollution of water supplies and general sanitary conditions. More important investigations, including those on epidemics of contagious diseases, are made by the med- ical expert of the board or by the secretary. In these various investigations no sharp distinction is made between cases involving the relations of the state board to local boards, and those of larger interests involving state action to suppress unsanitary conditions. One noted instance of sanitary improvement far beyond the control of any local authority is the suppression of the Newton Creek and Hun- ter's Point (Long Island) nuisances by order of the Governor, after investigation by the state board. Three counties, three cities and fifty millions of capital invested in the offend- ing industries presented such varied and conflicting interests that only through the action of a state authority could the necessary sanitary regulations be prescribed and enforced.' The drainage of extensive areas of overflowed and miasmatic lands presents another problem as yet largely unsettled, but which is far beyond the scope of any local authority to rem- edy. A special investigation into the existence and cause of tuberculosis in cattle, undertaken by the State Board of Health, led to the appointment in 1894 of a commission to carry on the investigation. In 1895" the state board was authorized to appoint three special cattle inspectors to con- tinue a systematic investigation of all dairy cattle with a view of killing tuberculous animals. The appointment of special inspectors by the State Board ' Reports of the State Board of Health, iv, 23. ' Laws of lSg$, t. 1013. 5 5 I ] PUBLIC HEAL TH ADMINISTRA TION 1 4 1 of Health in the summers of 1892 and 1893,' when an in- vasion of cholera was apprehended, indicates that in time of epidemic, when the whole state is seriously threatened by an outbreak in any locality, the general and vaguely defined powers of the board over the health of the state will bring about a great increase in the sphere of direct administration. In ordinary times it concerns itself only with special cases which threaten the health of more than one community. The State Board of Health has also the power of issuing certain administrative regulations in connection with the enforcement of various statutes. It makes rules and regula- tions for the protection of water supplies from contamination, to guard against the dangerous use of explosive oils, and allowing certain technical adulterations in food and drugs which it considers harmless and not inadvisable. These regulations, not for subordinates nor for local officials, but for the general public, correspond to the administrative ordi- nances of European countries, and indicate that the New York legislature has come to recognize some sphere of de- tailed regulation which can be determined better by an administrative than by a legislative authority. 3. The Results of Central Supervision The most evident results of the work of the State Board of Health are to be seen in the organization of the local health authorities throughout the State. In 1880 there were less than fifty local boards of health in the entire State, and these, except in half a dozen of the largest cities, were in- active and inefficient. Within two years the secretary of the board stated that a thousand local boards had been organ- ized," thus claiming that by 1882 practically every town in ^Reports of the State Board of Health, xiii, 15. '^ Dr. E. Harris in Chadbourne and Moore, The Public Service of the State of New York, ii, 452. 142 CENTRALIZATION IN NEW YORK [552 the State had its local board. The great deficiency in regis- tration returns indicates pretty clearly that active local boards were by no means at work then, nor for several years afterwards. But in 1892 the state board published a list of the members of the town and village local boards, showing that the organization throughout the State was by that time complete, and the registration statistics prove that they are active to the point of securing returns of mortality. More- over there is evidence to show that these local boards are active in other directions in looking after the sanitary condi- tions of their communities. From reports received in 1892 the state board considered that it was " clearly evident that the local boards have greatly improved in all that goes to make effective and trustworthy guardians of pubHc health. The various communities have awakened to a realization of the importance of these boards, and, as a rule, members are selected from the best class of citizens, men of personal integrity with the welfare of their communities at heart. These boards, in turn, select as health officers physicians of good standing, and the wisdom of these selections has been made manifest by the excellent work of the past year."' A more effective test of the efficiency of the local boards of health, and at the same time of the results of the creation of the state board, will, however, be be found by considering the evidences of improvement in the sanitary condition of the State. The condition in 1880, if by no means so alarming as the situation in England in 1848, was far from satisfactory. Among the features of the sanitary situation were an " increasing prevalence of miasmatic diseases . . . the frequent recurrence of small-pox and diphtheria in widely separated communities, the appearance of scarlet fever in every county of the State, and the frequent preva- ^ Reports of the State Board of Health, xiii, 11. 553] PUBLIC HEAL TH ADMINIS TRA TION' 1 43 lence of measles and whooping cough." ' It has been esti- mated that in two decades before 1880 there had been 70,000 deaths from diphtheria alone. The condition of affairs in the village of Johnstown during a diphtheria epi- demic in 1878 shows the dangers of the existing situation and the need for some central health authority to induce such localities to take the necessary preventive measures. " No public measures against the disease were instituted, except that the schools were closed for a period of three weeks at the height of the epidemic. The funerals were public, corpse-watching was a custom, and children were pall-bearers at the funerals. Visiting among the sick does not seem to have been feared, and was freely indulged. The disease once introduced spread rapidly ; after a time the school-houses seem to have become foci of infection. . . One family had diphtheria three times during the three years, and six families twice."= Under these condi- tions it is not surprising to learn that in a population of 5,200 there were 219 cases and 61 deaths. In another instance nearly one-third of all the inhabitants of a large incorporated village were found suffering from malarial fever, arising from stagnant pools and sodden grounds a little distance beyond the corporate limits of the village. It was considered that fully a half of the entire population of the State was living in the immediate presence of such sources of malaria as could be removed by the adop- tion of drainage measures and sanitary improvements.3 The extent of the improvement in sanitary conditions and of greater efiSciency in sanitary administration since the days when such conditions were possible, can be best tested by noticing the extent to which diseases caused by unsanitary conditions have decreased. The usual test for sanitary con- ditions is the zymotic death rate, and this rate by giving '^Keportsof the State Board of Heallh,'-a.,-i. ' Ibid.,i, 118. ' Ibid., ii, 16, 2Z. 144 CENTRALIZATION IN NEW YORK [554 approximate indications possesses considerable value. But some diseases classed as zymotic, such as whooping-cough and measles, are much less amenable to sanitary measures than others, as diphtheria and fevers.' More accurate tests can therefore be obtained by considering, in addition to the total zymotic death rate, the death rate for the particular diseases which are most subject to control by sanitary regu- lations. In the following table these death rates in New York are presented for each year since the reports to the State Board of Health have been published. By comparing the number of deaths from the specified causes with the total number of deaths reported, the error from deficiencies in the reports may be considered to have been avoided, since we may fairly assume that the unreported deaths con- tain about the same proportion of zymotic deaths as the cases reported. Mortality Statistics, New York State:' 1,1 1000 n of sorted. Number of deaths in every 1000 deaths from oi pi be en 'rt e per ulatio ths re a. M 8 H 4) > -s^- n 1 l^ Rat pop dea ^0 ^ .3 5 D p. 5 56.06 w- u 75 £U 1885 . . 80,407 222.17 139-76 90.80 13-27 1886.. 86,801 217.23 137-66 80.97 64.48 '3-47 1887.. 96,453 227.80 120.35 96.00 67.24 13-75 i888.. 104,119 17.62" 220.80 II8.5S 84.00 61.7s 14.18 8.2 23.0 8.8 8.2 1889.. 103,969 17.00 210.34 120.01 79- "i 6 56.12 14.86 7-1 22.2 12.8 9-5 1890.. 118,552 18.85 164.80 118.37 72.48 42.07 1.3-79 6.2 7.0 9-9 9-9 1891.. 122,398 19.20 178.80 109.50 74-1 S 40.78 15-52 5-2 17.8 6.8 lO.I 1892.. 128,015 19.70 181. i8 104.80 72.72 46.86 13-25 4-9 17.4 6.9 10.5 1893.. 122,841 19.00 181.85 107.21 73-30 48.00 13-51 4-2 14.1 9-9 6-5 1894.. "9.774 18.2c 193.00 106.85 7S-77 55-77 13-87 .3-5 11. 1 8.8 7-9 1895 •• 121,297 18.60 159.60 109.65 74-55 41.00 14.10 2.6 7-1 9-5 9-3 1896.. 120,683 18.50 156.00 110.54 72.70 38.00 12.75 3-7 6-3 «-3 12.4 1897.. 117,075 18.40 140.00 108.13 62.50 3.5- 1 5 11.5s 3-2 7-2 7-1 7-S 'Newsholme, Vital Statistics,^. 174. ' Compiled from reports of the State Board of Health. SSS] PUBLIC HEALTH ADMINISTRATION 145 From these figures it appears that the total zymotic death rate, though subject to some variations, has on the whole rapidly declined during the past twelve years. In the col- umns for particular diseases, the variations in the statistics for measles and whooping cough illustrate what has been said as to the difficulty of controlling these diseases by sani- tary measures. On the other hand, the proportion of deaths from malarial diseases, from scarlet fever, and from diphtheria — those most subject to sanitary control — show a large and steady decrease, the proportion of deaths from these three causes being only a half of that twelve years ago. The deaths from diarrhcEal diseases and typhoid fever also show a noticeable decrease. In these respects, then, the results show that the enforcement of sanitary regulations and the suppression of unhealthful conditions are more efficiently carried out at present than formerly. And the cause of that greater efficiency of the local authorities is largely, if not mainly, due to the activities of the State Board of Health in stimulating the local authorities by its educational propa- ganda and occasionally by the use of its more mandatory powers. In the case of the diminution in the proportion of deaths from diphtheria the state board makes the specific claim, that it " is pretty certainly due to the more intelligent management of these epidemics, and the enforcement of quarantine under the direction of this board."' But while we recognize this improvement in sanitary con- ditions, the study of the situation shows that further improve- ment might have been made. The proportion of deaths from typhoid fever and from diarrhceal diseases has not been reduced to any very great extent, and the present ratio is much higher than exists elsewhere. Nor is the situation in respect to scarlet fever and diphtheria wholly satisfactory. In '^Reports of the State Board of Health, xiii, 13. 146 CENTRALIZATION IN NEW YORK [556 1895, the former was prevalent in three-quarters of the counties of the State ; only three counties were entirely free of the latter, and in twenty-five of the sixty counties it was prevalent to a considerable degree. These facts show that much yet remains to be done in the way of sanitary improvement, and that local boards are de- ficient either in authority or in energetic activity. If the former, we should expect to find appeals to the legislature for an increase in their statutory powers, and in the absence of that we may conclude that much could be gained by further increasing their activity. As in all questions in this country, much can be done by arousing public opinion ; but another method is also at hand — to increase the powers of the State Board of Health. Nor is it necessary in order to gain the desired ends that this increase should be along the lines of direct centralization of health administration, nor even of an increase in the mandatory powers of the state board. Under American conditions the general policy of the state board to act as an advisory rather than a manda- tory bureau seems likely to accomplish the most valuable sanitary results, and much can be accomplished by extend- ing the activities of the state board along the lines of its policy in the past. More specifically, the establishment of a systematic visita- tion of the locaUties by ofificers of the central bureau would keep the local boards at a much higher grade of activity and efficiency. During the summers of 1892 and 1893, when there was the possibility of cholera invading the State from Europe, such inspectors were appointed by the state board for the districts along the Canadian border, where the possi- bility of the disease making an entrance was greatest. The work of these inspectors, the board announced, " has resulted in other good than merely preparing for an epidemic. It has aroused more interest in preventive medicine, and added 557] PUBLIC HEAL TH ADMINISTRA TION \ 47 to the efficiency of local boards by stimulating them to more decisive action in sanitation. The advantage of having au- thorized representatives of the state board to visit and con- sult with local officers encourages the latter in their duties, is a practical assurance of State aid, and gives to the local authorities an assistance which counteracts local pressure." ' In the report of the State Board of Health for 1895 Dr. Curtis, in his review of "The Sanitary Condition of the State," urges that "The state board could effect a greater fidelity to their duties by keeping in closer touch with the local boards through the personal and frequent visitation of an inspector from this board." '' We may add that with such a force of inspectors the state board might find it possible to apply the mandatory powers already possessed to a much larger number of cases ; but it is not necessary to emphasize this feature. The most important results would be those accomplished through the educational and advisory influ- ence as described in the extract quoted. Although the state board has recognized the use to which such a force of state inspectors would be put, it has not urged on the legislature the importance of making this ex- tension of their work. The main difficulty would be to secure the necessary appropriation from the legislature, and undoubtedly the suspicion of centralization would be added to the spirit of economy as an opposing force. Certainly, however, so long as the state board itself does not insist on this further step, it is not likely to come voluntarily from the legislature. If the State Board of Health will advocate what it has already recognized as a natural and rational develop- ment of its functions, it is possible that the opposition in the legislature might not prove so vigorous as has been antici- pated. 1 Reports of the State Board of Health, xiv, 9. ^ Ibid., xvi, 448. CHAPTER V TAXATION AND LOCAL FINANCE I . The Evolution of Decentralized Tax Administration The earliest form of tax administration in New Nether- lands was the simple and centralized method of collection by the financial agent of the Dutch West India Company. The duties on imports and exports established at the time the company gave up its monopoly of trade in 1640,' and the excises instituted in 1644 and 1647,^ were collected by this officer, known as the Schout Fiscal, who beside his duties as tax collector was also sheriff and prosecuting attorney for the colony. He was appointed either by the authorities in Holland or by the Director General. About the middle of the decade 1 650-1660, the method of collecting these customs and excise taxes was changed to that of farming them out to the highest bidder. This was done with the excise as early as 1653; and in 1655 the amount of the excise farm for New Amsterdam was 5030 guilders, for Beverwyck, 2013 guilders.^ The customs seemed to have been first farmed in 1656 for 3000 florins. The directors in Holland did not approve of this last change;* but Stuyvesant continued his own policy, and the farming of customs as well as excise duties continued until the English 'Freedoms and Exemptions of 1640, in New York Colonial Documents, i, 121. Laws and Ordinances of New Netherlands, p. 31. 'Laws and Ordinances of Nenv Netherlands, 1644, p. 38; 1647, p. 67. ' Brodhead, History of New York, i, 610. * New York Colonial Documents, xiv, 389. 148 [SS8 559] TAXATION AND LOCAL FINANCE 149 occupation.' During the last ten years of the Dutch govern- ment the tithes for the support of the ministers and school- masters were collected by the province government. The magistrates of the diflferent villages, mainly on Long Island, compounded with the Director and Council for a lump sum in produce," while the assessment and levy of this total on individuals was under the control of the local authorities. When the English gained possession of the Dutch colony in 1664, the existing system of taxation was retained, and in the collection of the excise the method of farming the tax was also continued.^ But for the administration of the im- port and export duties a Collector and Receiver General was appointed, who acted also as the general financial agent of the Duke of York. This officer occupied a position very largely independent of the Governor ; he was appointed by the authorities in England, and although the Governors on several occasions exercised a power of suspension, this was only on charges of flagrant misconduct.* The financial ad- ministration was not subject to the active control and direc- tion of the Governor, so that thus early we find the begin- ning of independent and unrelated administrative bureaus, — a characteristic feature of State government to-day. Besides the customs and excise taxes. Governor Nicolls ordered the levy of a general property tax of one penny in the pound, to meet the expenses of the new county courts he had established. This tax was not a province tax, but a " publique rate " for county expenses, and the receipts did '^ Laws and Ordinances of New Netherlands, 1663, p. 441. ^New York Colonial Documents, xiv, 421, 503, 531. ^The Acts of the Assembly after 1691 speak of paying the excise duties at the ofiSce of excise, but other references show that the farming system was continued, so that this office of excise must have been the office of the farmer. Cf. New York Colonial Documents, iii, 335; Colonial Laws, 1699, c. 68. ^New York Colonial Documents, iii, 221, 335, 422; iv, 320, 1143. I go CENTRALIZATION IN NEW YORK [560 not go to the Receiver General. As, however, it was from this county rate that the general property tax for province purposes was later developed, its early history is of interest to our subject. The local machinery of assessment and collection already employed in the English settlements on Long Island for poor rates and local expenses was naturally adopted for this county tax. On February 26th, 1665, Nicolls issued a warrant to the High Sheriflf of Yorkshire, directing him to send warrants to the high constables of the ridings into which it had been divided, requiring them to send warrants to the constables and overseers in each town to levy and collect the tax.' The Duke of York's Laws promulgated later in the year, regulated the system of tax administration in more detail. The assessment and collec- tion of the tax continued to be vested in the overseers chosen by each town ; but they were subject to the super- vision and control of officers appointed by the Governor. The assessment had to be at certain fixed rates for each kind of property, and the assessment lists were to be examined and approved by the High Sheriff, and by him transmitted to the Governor. = The constables were required to make returns to the High Sheriflf, and the accounts of both sheriflf and constables must be audited at the semi-annual courts of sessions of the justices of the peace.^ The Dongan Assembly of 1683 repealed the existing laws regulating the county rates, and provided for an elected authority in each city, town and county for " supervising the publique aflfairs and charge of each respective City, Towne and County."'' Probably, with the suspension of assemblies, ^ New York Colonial Documents, -xxv, 573. ' Duke of Yorke's Laws, in J. B. Linn, Charter and Laws of the Province of Pennsylvania, pp. 44, 48, 49. ^ Ibid., Amendments of 1673, p. 73. * Colonial Laws of New York, 1683, t. 6; i.. 9. 5 6 1 ] TAX A TION AND L CAL FINANCE 1 5 1 these vague provisions were neglected, and the former meth- ods continued to be used for the county rate. The legisla- ture of 1 69 1, however, abolished the control over the local officers exercised by the appointed sheriffs and justices of the peace. Instead, there was to be "a certain freeholder . . . chosen in each respective Town ... to supervise and examine the public and necessary charge." ' In 1701 this law was repealed, and the justices of the peace were again directed to supervise the county tax ; = but it is doubtful if this was enforced. Town records show that supervisors continued to be elected,^ and the famous Supervisor Law of 1703 assumes the law of 1691 to be still in force.'* At any rate, after 1 703 the elected supervisors were the final author- ity in the administration of the county rate. They were to determine the proportion of the county tax to be collected in each town; and the town assessors and collectors were required to make the rate and collect the tax according to these apportionments. The money collected was to be paid to the county treasurer, who was appointed and his accounts audited yearly by the supervisors. The only control over the supervisors was in the courts, which could impose a penalty for neglect or refusal to perform their duties, on complaint of any person injured. If, however, any town neglected to choose any of the officers provided for, the jus- tices of the peace in the county were authorized to appoint persons to act. These last provisions would become effect- ive only in exceptional cases, and the ordinary administra- tion of the county tax was now completely decentralized. The first general property tax imposed on the entire province was a tax of one penny in the pound ordered by ' Colonial Laws of New York, 1691, c. 6. ^Sbid., 1701, c. 96. 'Records of Easihampton, iii, pp. 28, 6l. ' Colonial Laws of New York, 1703, c. 133. 1 5 2 CENTRALIZA TION IN NE W YORK [_ 5 62 the Dongan Assembly of 1683, as a "free and voluntary- present to the governor." The machinery of local assess- ment and collection which had been in use for the county rate for twenty years in Long Island, and for ten years in the rest of the province, was to be employed for this general tax; but there were also provided commissioners for each county — named in the act — who were to direct the local officials, and to equalize assessments on complaint.' The proceeds of the tax were to be paid over to the receiver general. The cessation of assemblies in New York after 1684 prevented the development at this time of any regular system of provincial direct taxation ; and for the next seven years the revenue was derived as before from the customs and excise duties. But when, after the English Revolution of 1689, New York became involved in a struggle with the Indians, as a part of the conflict between William III and Louis XVI, the expenses of the military campaigns necessi- tated new sources of revenue, and at the same time the grant of a legislative assembly to New York provided the means for raising this revenue by means of direct taxation. The extra-legal Leisler Assembly in 1690 passed two acts levying a general province tax on real and personal property;" the assembly called by Governor Sloughter in 1691 levied ;^3500, by a similar direct tax, for maintaining the troops at Albany ; and for each of the following six years provincial direct taxes were levied. The taxes were, however, only for military purposes, and with the conclusion of peace ceased to be levied. The renewal of the war brought the re-appear- ance of the tax; and the story of the eighteenth century struggle between France and England can be traced in the 1 Colonial Laws of New York, 1683, c. 14. "^ Ibid., i, 218. ^Ibid., chaps. 8, 15, 20, 22, 29, 30, 39, 41, 43, 50, 51, 53, 56, 58, 63. 563J TAXATION AND LOCAL FINANCE 153 tax legislation of New York. During the first forty years of the century the provincial direct tax was only occasional, but in the last two periods of active struggle (1744-47, 1754-63) the levies were made annually and for much larger amounts than before.' The administrative machinery provided for the collection of the tax of 1690 is unknown, as no copies of the laws have been preserved. In the law of 1691, the method followed in 1683 of utilizing the local officers for assessment and collec- tion was again pursued; and, as in the law of 1683, there was provided a supervision over the local officials. Instead, however, of commissioners named by the legislature, this supervision was entrusted to the justices of the peace in each county, while in New York and Albany, the mayor, recorder and aldermen performed this duty. The functions of these supervising authorities consisted in apportioning the county quota — which was specified in the act — among the various towns and manors, and in ordering the local assessors to assess and levy the tax, under penalty of imprisonment. They had, however, no authority to revise or alter the indi- vidual assessments of the local assessors. The proceeds of the tax were to be paid over to the Receiver General of the Customs, but that officer had no control or supervision over the local authorities." The Act of 1691 was passed on the same day as the act establishing the supervisor system ; and it is significant of the different conception of the new tax, that while the supervision of the appointed justices of the peace was at this time abolished for the county tax, it should be retained for the provincial tax. The provisions of the Act of 1691 were repeated in subse- quent acts, and the underlying principle of local assessment "^ Colonial Laws of New York, chaps. 112, 116, 191,222,447,541,775, 825, 832, 854, 920, 977, 988, 1082, 1472. »/«7 5,440,640 7,230,976 14,285,976 14,206,680 9,232,542 9,160,405 8,619,748 13.906,346 12,033,681 State and Local Taxes. $4,647,461 6,312,787 11,676,172 18,956,024 45,961,440 50,328,684 56,926,470 49,117,782 57,262,650 60,493,038 72.557.905 80,865,704 ' Laws a/ iSs9, c. 312. 1 52 CENTRALIZATION IN NEW YORK \iT2. county in the State, at least once in two years, and investigate the relation of real estate assessments to valuation. From their reports the State Board of Equalization could increase or diminish the aggregate valuation of the real estate of any county, but without reducing the aggregate values of all the counties below the aggregate of the values returned by the local assessors. This statute also attempted to guard against unjust equalizations by county boards of supervisors. The supervisor of any town which considered itself aggrieved by the equalization of the board of supervisors was entitled to appeal to the State Comptroller, who was authorized, if he upheld the appeal, to make deductions from the town's share of the State tax for the following year. In 1874' this appellate jurisdiction over county equalizations was trans- ferred to the State Assessors; but in practice there have been few appeals made, and little control over the local officers has been exercised through this provision. The control of the State authority has also been limited by the absence of any power to correct individual assess- ments, or to compel the local assessors to change their sys- tem. The state board could act only by changing the aggregate valuation for entire counties. Along this line, however, the State Assessors and Board of Equalization have been active and energetic in the exercise of their powers. The assessors visit a number of counties each year, and in each county examine several hundred parcels of real estate, comparing the local assessment with the actual values, as evidenced by sales and the testimony of witnesses. From this evidence, the State Assessors form their opinion as to the ratio of assessed to real value in the various counties, and submit to the Board of Equalization a table of the different ratios. On this information, the state board determines the ^Laws of 1874, c. 351. 573] TAXATION AND LOCAL FINANCE 163 average rate of assessment to value for the entire State. An amount is then added to or subtracted from the assess- ment of each county equal to the difference between this average rate and the rate ascertained for that county. Al- though the board might raise the aggregate of valuations for the entire State, in practice this is never done, and whatever amount is taken from one county is added to another. The tables of ratios presented from year to year show that while in some counties real estate is valued as high as 90 per cent, of its true value, in others it has been valued as low as 50 per cent. The state board has attempted to equalize the assessments so as to reach a uniform rate, which is usu- ally about 65 per cent. To do this has involved considerable changes. The most striking instance is that of Westchester county, where the aggregate assessment, and consequently its proportion of the State tax, has been increased about thirty per cent, each year. In perhaps a third of the counties the increase or decrease has been more than ten per cent, of the county valuation. In the remaining two- thirds of the counties the changes indicate less glaring inequalities, and the aggregate of changes made is less than five per cent, of the aggregate assessed valuation of the entire State. On the face of the reports of the State Assessors, it is evi- dent that there was a considerable need for a system of equalization, and in the case of some counties the widely varying rates of assessment had produced inequalities which rendered imperative some method of adjusting the assess ments of the different localities to a common basis. Nor can it be denied that the work of the State Assessors resulted to some degree in a more equitable distribution of the state tax than would be the case if there were no such central authority. But while recognizing the need for equalization, and ad- 1 64 CENTRALIZA TJON IN NE W YORK [ 5 74 mitting that the work of the State Assessors secured some improvement, it was far from clear that the results of the state board's equalizations had been fully adequate in secur- ing the fairness and equitable distribution aimed at by the law. It was urged from many sources that the State Asses- sors had acted unfairly, either through prejudice or with delib- erate intention to lighten the burden of taxation in districts where they had special interests. Since the establishment of the State Board of Equalization such complaints have been presented by every county in the State." The most persistent case is that of New York county, which has steadily protested against the increase of about $100,000,000 yearly added to the local valuations. In 1886, for example, counsel for New York appeared before the state board, sub- mitting statements showing a lower ratio of assessment to valuation in all other counties than in New York, and claim- ing that for a proper equalization of the state tax, the assessment for New York county as made by the local authorities should be reduced by $271,000,000." In the face of these protests, the New York county figures were increased by $112,000,000. The State Assessors asserted, as they have on other occasions,^ that their investigations prove the ratio of assessment to valuation in New York county to be much lower than claimed, and their estimate of the ratio at 60 per cent, to be rather over than under the true situation. In answer to the general complaints, the State Assessors admit that their equalizations do not always secure perfect results, because " no board or officials, however diligent or however conversant with the subject, can make an equaliza- tion which to themselves will be absolutely satisfactory." • Report of the State Assessors, 1888, p. II. * Ibid., 1886, p. 18. '^ Report of Tax Commissioners, 1897, p. 19. 575 J TAXATION AND LOCAL FINANCE 165 They do claim, however, that real estate is approximately- equalized, so that all counties carry their just share, and therefore the complaints have no adequate foundation." As between the complainants and the State Assessors it is not easy to decide, but an examination and comparison of the equalization tables of the State board for a number of years throws some light on the problem. Such an investigation makes it clear that the equalizations do not in all cases show uniform tendencies, but that in many instances there are eccentric changes, which indicate, at least, that the action of the State assessors has been based on inadequate informa- tion. Thus, in 1879, the proportion of the State tax paid by Lewis, Madison and Oneida counties was suddenly reduced by a fourth, and in the following year was as suddenly raised to the former ratios. In 1889 the Cayuga county, in 1895 the Schuyler county and in 1896 the Wayne county ratios show similar variations. For Franklin county in 1894, and for Jefferson county in 1896, there were sudden temporary additions to the ratio of State tax paid. The equalized assessments for Cattaraugus county show sudden and irrational changes for every year since 1891.^ The local assessment of Essex county (roughly, $11,000,000) has usually been reduced by $1,000,000 in the equalization ^Report of the State Assessors, 1888, p. II. ' Cattaraugus county assessments, (ooo's omitted.) Year. 1891. 1892. 1893, 1894. 1895 1896. 1897. Local Valuation. 19,712. 23,105, 19,094, 22,622, 20,615, 23,508, Change by State iioard. —4,058, —2,502, —2,136, —2,582, —2,805, —3,115, Final Valuation. ;?' 7,613. 15,563, 20,603, 16,958, 20,040, 17,810, 20,393, Per cent, of State Tax Paid. .466 •399 .510 .404 .466 .408 •453 1 66 CENTRALIZATION JH NEW YORK [576 tables; but in 1892 the State Assessors, without having visited the county, added $2,500,000 to the local valuations,' and the county's share of the State taxes was increased by one-third. In the following year, the county was restored to its former position among the counties which had their local assessments reduced. In 1894, the Richmond county local valuation was raised from $10,000,000 to $20,000,000; yet the State Assessors ignored the obvious increase in the i^ate of assessment and doubled the equalizing increment from $3,000,000 to $6,000,000. These instances serve to show that the results of the sys- tem of equalization established in 1859 have not always been consistent; and it is clear that some of these sudden variations have been very far from the approximation to fairness claimed by the assessors. In the case of Richmond county, just mentioned, the fact that the higher valuation continued in the years following 1894 may indicate that it is not too far beyond a fair arrangement ; but the rapidity of the change shows that the equalization increments before 1 894 were much less than should have been added. In addition to these defects in the operation of the system of equalizing real estate valuations, a more important prob- lem in the administration of the general property tax arose in connection with the assessment of personal property. As early as 1859, the state comptroller called attention to the fact that not one-fifth of the taxes fell on personal property;' and in 1864 one of the State Assessors claimed that not one- fifth of the personalty was then reached in the assessments." Since then, the personalty assessments have continued to show a large relative diminution, in the face of the well- known increase in the amount and value of property of this • Report of State Comptroller, 1859, p. 34. ^ Report of Tax Commission ofiS"]!, p. 44. 577] TAXATION AND LOCAL FINANCE 167 kind. From i860 to 1880 real estate valuations doubled, but personalty increased from $320,000,000 to only $340,- 000,000. During the next decade real estate valuations were increased by $1,000,000,000 to $3,400,000,000; but personalty increased by only twelve per cent., to $382,000,- 000, or one-ninth of the real estate. The census estimate of the value of tangible personal property in New York State in 1890 was $2,700,000,000, more than seven times the assessed valuation of all personalty. After 1890, there appeared a slight tendency to an increase in personalty valuations, but by 1896 the total for the state was only $544,000,000, or less than one-seventh of the real estate valuation. Proposals to remedy these conditions by means of a more thorough central control over the local assessors were fre- quently made. The celebrated Tax Commission of 1871 asserted that "The fault [in ill-adjusted and unfair valua- tions] is not in the statute, but its administration. The remedy, therefore, must be found in making the administra- tion more efifective or in compelling the assessors to do their duty in accordance with the strict meaning and provisions of the statute. And this, in the opinion of the commissioners, can only be effected by the creation of some central au- thority . . . who, clothed with all proper authority and sup- ported by the law officers of the State should be required to practically enforce the laws. ... As it is now, the system has no recognized head or central spirit of authority, whose sole province is to secure alike the enforcement of the laws and to learn by experience and investigation how best to remedy their imperfections." ' The State Assessors, in 1877, urged the establishment of a State department of assessment and taxation, with power to make rules and regulations for ' Report of Tax Commission, 1 871, p. 48. 1 68 CENTRALIZA TION IN NE W YORK [578 the government and control of local assessors, and to remove them for incompetency, neglect of duty, and violations of the rules and regulations of the department. One of the asses- sors, in 1879, advocated an increase in the number of State Assessors to nine, in order to allow of more accurate ex- aminations and a better knowledge of local conditions. There is no evidence of any recognition by the legislature of any of these recommendations, and the powers of the State authorities remained unaltered. The Tax Commission of 1880 seem to have failed to recognize any need for strengthening the hands of the State Assessors, but the counsel appointed by the Governor in 1892 to revise the tax laws strongly urged that " a thorough and complete super- vision by a competent and authorized board will, to a very great extent, by an energetic administration of the present laws, prevent very many of the existing abuses, and result in the enforcement of very salutary provisions now neglected or ignored." ' The specific recommendations made at this time were that the number of State Assessors should be increased to five, who with the State Comptroller should constitute a board of Tax Commissioners for the supervision of all assessments and matters of taxation. At the meetings of the county equalizing boards a State Assessor should be present to make the decision in case of disagreement be- tween the town assessors and supervisors ; the right of appeal to the state board being also granted.'" The first legislation along the lines of these recommenda- tions was enacted in the revised Tax Law of 1 896.3 The State Assessors were replaced by three Tax Commissioners appointed by the Governor, to whom were given, in addition to the former powers of the State Assessors, authority : "^ Report of Counsel, 1893, p. 12. 'Ibid., 1893, P- '8, 89. 'Laws o/iSg6, c. 908. 579] TAXATION AAW LOCAL FINANCE 169 "To investigate and examine methods of assessment within the State." " To furnish local assessors with information to aid them in making assessments." "To make rules and regulations to enforce these pro- visions." " To ascertain whether the assessors faithfully discharged their duties, and particularly as to their compliance with this act requiring the assessment of all property not exempt from taxation at its full value." This law thus authorized a more thorough supervision and control over the local assessors ; but it will be noticed that in two important particulars it fell short of the recommenda- tions already cited. In the first place, there was no increase in the number of state officers, so as to make possible a more extended and more careful comparison of local values with assessments on which to base a more accurate adjust- ment of equalizations. Secondly, the tax commissioners were given no authority over individual assessments, and the decisions of local assessors, in this respect, remained subject to no revision by a higher authority. The additional authority provided by the new law has, however, secured some tangible results. Acting on the powers conferred, the tax commissioners during the year 1897 issued instructions to the local assessors insisting that all property must be assessed at its true value, and threaten- ing to prosecute any local board of assessors that failed to make an honest assessment. This pressure on the local as- sessors secured a large increase in the assessment in some counties. In seven counties the increase in real estate valu- ations was more than 50 per cent, over the figures for the previous year; in Herkimer county the increase was $10,- 000,000, or 70 per cent. ; in Westchester county $73,000,000, or 78 per cent.; and in Suffolk county $26,000,000, or 137 1 70 CENTRALIZA TION IN NE W YORK [ 5 go per cent. In most of the counties where real estate valua- tions had been at a low rate, as shown in the equalization tables, the assessment rate was raised to a point much nearer the average rate for the entire state. This average rate, however, is still much below the true value, and there are yet many variations between the rates in different counties. Moreover, local equalizations by the county supervisors con- tinued in many cases to increase rather than diminish the injustice of varying rates of valuation.' A more significant change secured was the increase in personalty assessments. In twenty-eight counties there was an increase of over 50 per cent, and in thirteen counties of over 100 per cent. In Richmond county the increase was from $115,000 to $1,628,000; and in Westchester county from $4,000,000 to $24,000,000. For the entire State, the increase on personalty was $105,000,000, nearly twenty per cent, over the figures for 1896.= But, "the en- forcement of the law resulting in such increase has, in many instances, caused added injustice to rural communities, where the burden of taxation has hitherto fallen most heavily."3 New York county had shown almost no increase in personalty valuations, and the other counties containing large cities, where personalty has been most undervalued, have a much smaller increase than the rural counties. The total assessment for personalty is yet only a seventh of the real estate assessments; and the Tax Commissioners con- sider it manifest that the operation of the law as regards the taxation of personalty is still a practical failure. The Tax Commissioners, taking warning from the failure of earlier proposals for radical changes, have not advocated any further additions to their power ; but they have recom- '^ Report of the Tax Commissioners, 1897, P- 9- » Ibid., 1897, p. 32. ' Ibid., p. 3. 5 8 1 ] TAXA TION AND LOCAL FINANCE j 7 1 mended and secured from the legislature of 1898 a reorgani- zation of the system of county equalizations. Under this plan the equalizations of the difTerent towns in each county are to be made not by the board of supervisors, but by three commissioners appointed by the supervisors for the purpose. These commissioners are required to make care- ful examinations of the conditions in the different towns, and their equalizations should thus be based on more accurate information than was possible under the supervisor system. The operation of this law and further experience under the law of 1896 may secure a more equitable apportionment of the general property tax. If, however, serious inequal- ities continue, there remain but two possible remedies. The general property tax may be abandoned as a state tax. Already a large part of the State income is from other sources, and it would not be impossible to rearrange the system so as to secure all the revenue for the State from these, and leave the general property tax as a purely local tax.' The other alternative is to accept the proposals for further centralization. The steps already taken in that direction have produced some improvement in the situation, and a more thorough central control might secure still better results. 3. Administration of New State Taxes The revenue of New York State is to-day derived in large part from other sources than the general property tax. In 1880, the tax on corporations was established; in 1885, the inheritance tax; and, in 1896, the excise tax became once more in part a source of state revenue. From these taxes the State receives annually over $8,000,000, more than two- thirds the amount received from the State property tax. ' TThis has been advocated by the present State Comptroller, in' his Report, 1898, pp. 12—20. 172 CENTRALIZATION IN NEW YORK ["582 The administrative arrangements for the assessment and collection of these new taxes show examples both of central- ization and of central control over local ofificials. The cor- poration tax has been from the first assessed and collected solely by the ofiScers of the State Comptroller's department; the inheritance tax is administered by local ofificials, but subject to a limited amount of central direction and super- vision by the State Comptroller; and in the new excise tax both methods are employed. A consideration of the system of administration for each of these taxes is, therefore, of in- terest to our subject. The Corporation Tax. Under the corporation tax law of 1880,' the president or treasurer of corporations subject to the tax was required to report to the comptroller, making statements under oath of the valuation of capital stock, of dividends, premiums or gross receipts, as the case might be for different sorts of corporations. The assessment of the tax was to be made by the comptroller practically on these val- uations furnished by the corporation officers, since no means were provided to enable him to correct their statements. The administrative machinery thus provided for the exe- cution of the corporation tax law does not seem to have been adopted as the result of any conscious and deliberate policy of centralization ; but rather arose from the nature of the large railroad and insurance companies from whom the bulk of the tax must be collected. The activities of these corpo- rations reaching far beyond the limits of any local adminis- trative district, it was almost self-evident that the only practicable valuation was on the business throughout the whole of the state, and that the simplest form of collection was by a single payment direct to the state treasury. More- over, although the administration was centralized in form, ^Laws of\%%o, c. 542. 583] TAX A TION AND L OCAL FINANCE 1 7 3 there was no important increase in the number of State administrative officials. There was not even any machinery provided by which the Comptroller could secure a list of all the corporations subject to the tax, and the additional duties imposed on the Comptroller were almost purely clerical, and conferred little increase of real authority. An amendment to the tax law in 1882' authorized the Comptroller to appoint commissioners to examine the books and records of any corporation, in order to determine the amount of the tax due from it ; but the lack of an appro- priation prevented this provision from going into effect, and the enforcement of the law continued for ten years longer in the hands of the corporations themselves. In 1892, the Comptroller called the attention of the legislature to the fact that this method of administration involved a serious loss to the state treasury, and stated emphatically that there was " not sufficient authority provided for this department to determine the amout of the tax fairly due, or to make proper examinations and investigations, and enforce liability."" This secured the necessary appropriation, and the law of 1882 was then acted on by the appointment of a commis- sioner to examine the accounts of corporations in New York City, and in the following year a second commissioner was appointed with headquarters at Buffalo. The result of their examinations, in which the attendance of witnesses and pro- duction of book accounts and vouchers were compelled, enabled the Comptroller to secure the facts necessary for a true valuation. The list of corporations paying the tax, however, remained largely incomplete. The great transportation, telegraph, telephone and lighting companies were shining marks and had soon appeared on the Comptroller's records ; but many 1 Laws of\%%2, c. 151. ' Comptroller's Report, 1892, p. 23. 174 CENTRALIZATION IN NEW YORK [^84 of the smaller corporations avoided the tax. In 1894 Comp- troller Roberts secured an appropriation to carry on an in- vestigation of the records in the offices of the Secretary of State and the county clerks, for the purpose of ascertaining and taxing the delinquent corporations. In two years, the number of corporations paying the tax was doubled, and more than half a million dollars was added to the State's in- come from these newly added corporations.' A continuation of the work further increased the number of corporations and the annual revenue from the corporation tax. The force employed in making these investigations is, however, only temporary, as it is expected when a complete list of existing corporations is secured that reports from the Secretary of State to the Comptroller of new certificates of incorporation issued will enable the list to be kept complete. The per- manent administrative force employed in the administration of the corporation tax law is thus insignificant, and apart from the two commissioners in New York and Buffalo, con- sists of clerks in the Comptroller's ofHce at Albany. The original assessment for the corporation tax may be reviewed and altered on the claim of any corporation for a reduction, after a rehearing had before the Comptroller or his deputy. Appeals from the Comptroller's final valuations now follow the usual American course in being taken to a judicial and not to an administrative authority. Under the original law the State Board of Equalization decided on such appeals, and by law of 1882 the Secretary of State, Attorney General and State Treasurer were made the appellate au- thority; but since 1889 the remedy has been by writ of cer- tiorari before the Supreme Court, from whose decision either party may carry the question to the Court of Appeals.^ The compulsory collection of the tax where payment is ' Comptroller's Report, 1896, p. 8. ^ Laws oj 1889, c. 463. 585] TAXATION AND LOCAL FINANCE 175 refused is accomplished by the sheriffs of the counties acting under instructions from the Comptroller; and the warrant of the Comptroller commanding the sheriff to levy on the real and personal property of the delinquent must be acted on by that officer in the same manner as a warrant issued upon a judgment of a court of record. In this feature of the law we have a significant instance of a central administrative power of direction over local officials. The Inheritance Tax. The assessment and collection of the Inheritance Tax could not, like the Corporation Tax, be attended to directly from the State Comptroller's office. A system of local officials to appraise and value the property to be taxed is necessary, and the collection of the tax can be facilitated by the use of local agents. A machinery of local subordinates to the Comptroller's department might have been created for this purpose ; but in fact the local administration of this tax was turned over to already exist- ing local officials. Appraisers are appointed by the surro- gate of the county, since that officer is in charge of the probate of wills and grants letters of administration, and thus receives notice of any decease where property is left. On the appraiser's report, the surrogate determines the value of the property and the amount of the tax. Payment is made to the county treasurer, who remits the amount to the State Treasurer ; and in cases of failure to pay the tax the county treasurer notifies the district attorney to prosecute the delinquents in the surrogate's court. It was perhaps natural that these new duties placed on local officials by a general law without providing any central supervision or direction, should not at first be thoroughly performed, but there is also evidence that these local officials were openly negligent. Comptroller Campbell says that "for several years after the passage of the Act of 1885 it received only a negative support from local officers. Estates 176 CENTRALIZATION IN NEW YORK [586 were settled in surrogates' courts and the funds distributed without any inquiry being made as to whether there was a tax due the State thereon. County treasurers received such sums as were paid to them voluntarily by executors or ad- ministrators, without knowing or taking any steps to ascer- tain whether the amount of the tax had been fixed and determined as required by law. The methods pursued were extremely lax ; the law was evaded and violated with appar- ent impunity, and the State deprived of a large amount of revenue to which it was entitled."' When the collateral inheritance tax was transformed to a tax on all inheritances by the transfer tax law of 1892,= the administration of the tax was better provided for. The new law entered into more cumbersome and complicated details as to the duties of local oflScers, required them to use blank forms provided by the Comptroller, and directed the surro- gates to make regular reports to that officer of applications for letters of administration on estates, the amounts of legacies, deeds and conveyances, the proceedings to deter- mine the amounts of the taxes, and the amounts assessed. These provisions gave the Comptroller a certain power of control over the surrogates and county treasurers. At the same time, an appropriation for assistants to the Comptroller made possible an investigation of the records in the surro- gates' offices. These measures secured a more effective en- forcement of the law, evidenced by the disappearance from the Comptroller's reports of the former complaints of negli- gence on the part of local officials. There was also a strik- ing increase in the revenue derived from the tax; and al- though part of this was due to the change in the tax, in part it was the result of the change in administrative methods strengthening the Comptroller's authority .3 ' Comptroller's Report, 1893, p. 23. 'Laws o/iSg2, c. 399. " Comptroller's Report, 1894, p. 24. 587] TAXATION AND LOCAL FINANCE 177 The central control established in 1892 had removed the most striking deficiencies of the former system ; but only to reveal the possibility of securing still greater efSciency by further increasing the power of the Comptroller. The locally appointed appraisers seem to be in many cases sub- ject to local influence in making their valuations, and make reports which do not give the State the full amount of the tax it should receive. Comptroller Roberts has urged that as the inheritance tax is a State tax for the collection of which the Comptroller is nominally responsible, he should be authorized to appoint appraisers, at least for the import- ant counties.' The legislature has not so far seen fit thus to centralize the assessment of the inheritance tax ; but to avoid under- valuations has provided under certain conditions for a reap- praisal of estates subject to the tax. Under laws of 1896 and 1897,° a copy of every appraiser's report must be filed with the State Comptroller, and if he is dissatisfied with the assessment he may apply to a justice of the Supreme Court of the district to appoint an appraiser to revalue the estates. On the report of an appraiser so appointed the justice may make a new determination of the amount of the tax. The power of initiative here conferred on the Comptroller gives him a limited power over the surrogates : but the effective control established is that of the justices of the Supreme Court. It is interesting to note here the imposition of admini- strative functions on judicial officers in the execution of the inheritance tax law. The duties assigned to the surrogates under the law are a clear departure from the idea of the separation of judicial from administrative functions. Under 1 Comptroller's Report, 1895, p. 18. '^ Laws 0/1H96, t. 908; iiitf., 1897, <=. 248. 178 CENTRALIZATION IN NEW YORK [588 these more recent amendments the Supreme Court justices are made to act first as an administrative court in deciding on the appeal of the Comptroller, and then in a purely ad- ministrative capacity in appointing the appraiser and in fixing the amount of the tax. Another complaint made by the Comptroller has been that the allowances made by the surrogates to the appraisers are in some counties far in excess of the value of any service rendered. In one county the fees have been about forty per cent, of the tax collected.' In 1895, the Comptroller asked for legislative authority to audit appraisers' accounts before they had been allowed ; but no action was taken. The following year the department ruled that it already pos- sessed this power under section 3295 of the Code of Civil procedure, which provides that "when the fees or other charges of an officer are chargeable to the State, they must be audited by the Comptroller and paid on his warrant, except as otherwise specially prescribed by law." The Comptroller's power of control in the assessment of the inheritance tax is thus exercised by means of the reports required from the appraisers and surrogates, by examinations of county|_ records, through the power of appealing to the Supreme Court justices for a re-appraisal, and by this audit of the accounts of appraisers. It is even yet a very limited authority, and if it is sufficient to secure efficiency in the administration of the law, it illustrates the great extent to which decentralization may be safely allowed in this country. TkelLiquor Tax. The history of excise legislation during the century and a quarter in which the revenues received from the liquor traffic went solely to local treasuries, and the administration was in the hands of local officials, does not concern our present subject. The only attempt to control * Comptroller's Report, 1896, p. 14. 589] 7'AXA TION AND LOCAL FINANCE 179 the administration of the liquor laws by the State officials was under the law of 1866, providing that the board of health for the Metropolitan Sanitary District (the members of which Were appointed by the Governor) should be the board of excise within the same district. This however proved only temporary, as with the charter of 1870' the local officials were again placed in control. Until 1870 the general system of administering the excise laws outside of the cities was determined by the law of 1857,'' which was in the main a re-enactment of the system in force before the prohibition law of 1855. Three commis- sioners of excise were appointed in each county by the county judge and two justices of the peace ; these com- missioners granted licenses under the provisions of the statutes. In 1870 3 this county system was changed to a system of town boards, and in 1873 a system of local prohi- bition at the option of any town was provided for.'* Before the passage of the law of 1896, there were 925 town, 2 village and 37 city boards of excise. The changes made by the statute of 1896= were radical in their nature. Instead of licenses issued in the discretion of local authorities, the liquor traffic was made free to all persons who should pay the required tax; the amount of this tax varied with the population of different localities, but was much higher than the former license fees ; one- third of the revenue was reserved for the State treasury; the system of local option was extended by providing several alternative schemes of partial and complete prohi- bition ; and finally, the administrative machinery, with which we are here especially concerned, was completely altered, ^Laws 0/1870, c. 137. ''Ibid., 1857, c. 628. ^ Ibid., 1870, c. 175. * Ibid., 1873, c. 549, § 6. People v. Excise Commissioners of Randolph, 75 Hun's Reports, p. 224. *IUd., 1896,0. 112. l8o CENTRALIZATION IN NEW YORK [590 both in form and in its relations to the State government. Existing town and city boards of excise were abolished, and the collection of the liquor taxes was transferred from town and city officers to county treasurers, who were also charged with the distribution of the revenue between the State and towns and cities. Still further, there was created a State department of excise, with a corps of State officers to exercise supervision over the local officers, to investigate the enforcement of the statute, and in New York, Kings and Erie counties to administer the law in every respect. At the head of the department was placed the State Com- missioner of Excise, appointed by the Governor for a term of five years at a salary of $5,000 per annum. In each county containing a city of the first class the State Commis- sioner appoints a special deputy commissioner to collect and distribute the liquor taxes in these counties. For the super- vision of these deputy commissioners and the county treas- urers in other counties, these officers are required to use books of record and account and forms of bonds and tax certificates provided and directed by the State Commissioner, and to make such reports and exhibit such records as the State Commissioner shall require. At the same time it is made the duty of the State Commissioner to "cause the ac- counts and vouchers of all excise moneys collected and paid over to the State and to the several localities by each county treasurer and special deputy commissioner of excise in the State, and the records of all transactions by them under the liquor tax law to be carefully examined, and the result of such examination certified to the State Comptroller at least once in every year." To make effective this supervision by means of audit of accounts and examination of records, and for other purposes, the State Commissioner of Excise is directed to appoint not more than sixty special agents to " investigate all matters relating to the collection of liquor 59l] TAXATION AND LOCAL FINANCE igl taxes and penalties under this act and in relation to the compliance with law by persons engaged in the traffic in liquors." The actual enforcement of the law through criminal prose- cutions still depends mainly on the local courts. Actions for imposing the penalties in the act must be handled by district attorneys, and must go through the regular channels of local grand and petit juries. It is, however, the duty of the special deputies and special agents (as well as the county treasurers, sheriffs and police officers) to notify the district attorney of any violation of the law. By thus furnishing a large amount of material evidence their investigations aid in securing the enforcement of the law ; but if a district attorney neglects or refuses to perform his duty, the only remedy is to prefer charges to the Governor, who, on examination, may remove him from office. In two respects, however, a more direct authority is given to the State Excise officials to se- cure enforcement of the law. Where any person unlawfully traffics in liquor without obtaining a liquor tax certificate, or contrary to any provision of the act, the State Commissioner or any of his subordinates may apply to a justice of the Supreme Court of the judicial district for an order enjoining the traffic in liquor by the person charged. If the injunc- tion is issued, its violation is deemed a contempt of court and punishable accordingly. The State Commissioner of Excise may also bring a civil action in any court of record for the recovery of any penalty imposed for a violation of the liquor tax law;' this authority being conferred for use where the local authorities cannot or will not do their duties. The State Commissioner is further authorized to ap- point attorneys to act with any special deputy or special agent in the prosecution of any action or proceeding brought '^ Laws e/iS^j, c. 312. 1 82 CENTRALIZATION IN NEW YORK [592 under the provisions of the Liquor Tax Act or the acts re- pealed by it. The State excise department by these various provisions has an effective control over the collection of the excise revenue; its officials serve to aid the local officers in the en- forcement of the penal provisions of the law; and in cases where local officers do not act vigorously, the State depart- ment has a limited power of direct enforcement by means of civil actions and applications for injunctions. A discussion of centralization in administration is not con- cerned with the questions of public policy that have been raised in connection with the new liquor law. The wisdom of using this source of revenue for state purposes, and the relative advantages of the tax system and other systems of controlling the liquor traffic are alike beyond the scope of this inquiry. Whatever may be the decision on these points, from the purely administrative point of view the operation of the more centralized system during its past two years has given satisfactory results. The excise revenue of $12,000,- 000 a year has been collected under the new arrangements for the same expense as the former revenue of $3,000,000 a year. The examination of the county treasurer's accounts, besides guarding the state against loss of revenue, has promoted uniformity of system and has been of much help to the local officials in their work.' As a result of the work of the special agents the number of those illegally trafficking in liquor has been greatly reduced." Formerly, in certain localities, liquor was sold without license as openly as other merchandise, some localities going so far as to refuse or neglect to elect the boards of excise provided for in the old law. The results of criminal prosecutions which are not subject ^Excise Commissioner's Reports, i, 22; ii, 25. ^ Ibid., ii, 7. 593] TAXATION AND LOCAL FINANCE 183 to active central control are much as they have always been. " In localities where there is a healthy public sentiment in favor of law and order, convictions for violations of excise laws are common. In other places, where public sentiment is indifferent or hostile to the execution of any law regulating the liquor trade, and where jurors and other public ofificials are selected with reference to protection rather than punish- ment of violators, few, if any, convictions occur or can be expected."' The court proceedings instituted by the state department have been of some efifect. Eleven proceedings were instituted to restrain illegal traffic in liquor, which se- cured the issue of injunctions in eight cases. Twenty-two proceedings were commenced by the department, and fifty actions by citizens to revoke and cancel liquor tax certifi- cates, which resulted in orders revoking and cancelling 36 certificates, 26 cases were dismissed or discontinued and 13 were still pending.' This indicates that the authority of the state department to initiate proceedings in the courts has been of considerable efifect in securing obedience to the law. The exercise of State control over the collection of any part of the State revenue would not be inconsistent with the widest extension of local self-government. The New York liquor tax, however, while partly a State tax, goes in large part to the local treasuries of the towns and cities. It is therefore of interest to note that the Court of Appeals in sustaining the law has declared emphatically that excise ad- ministration in this State has always been a State function, and that even the officials who executed the former laws were acting not as local but as State officers. The former excise commissioners, says the court, "although locally elected, were State agencies for administering the excise system. ... In granting licenses they were not exercising ' Excise Commissioner's Report, ii, 11. * Ibid., li, 20. 1 84 CENTRALIZATION IN NEW YORK [594 a jurisdiction as agents of the corporation within which they acted, for the granting of licenses for the traffic in liquor was not a power vested in towns, villages or cities. They exer- cised their functions under the authority of the State, which prescribed their powers and duties, and the mode of their appointment was a convenient method for designating the agencies through which the system should be administered. .... The granting of licenses for the liquor traffic has never been a corporate function or duty of a city as such. It is a function which the State in its aggregate capacity has administered. It has made use of local machinery, .... and it has permitted the cities to use excise moneys for local purposes. But excise laws do not relate to the affairs of cities.'" This position is also indicated in earlier opinions on closely related questions ;° and the decision upholding the State control over excise administration on this ground is significant in view of the many other functions performed by city officials which are likewise not of a corporate character but are duties of State administration. Over all such mat- ters in which the city officials act as agents of the State, a similar central control might be established. 4. Central Control over Local Finance The first act defining the duties of the State Comptroller authorized him " to audit, liquidate and settle all accounts . . . between this State, and any person acting or having acted under the authority of the same." ^ This compre- hensive provision would seem to have authorized a central ' 149 New York Reports, p. 375. ' Lorrillard v. Town of Monroe, 1 1 New York Reports, p. 392; People v. Board of Town Auditors, 74 New York Reports, p. 310. ^ Laws ofi-jZi, c. 21. 595] TAXATION AND LOCAL FINANCE 185 audit of all county and city treasurers' accounts so far as they were concerned with the collection of State revenues. In practice, however, no such control was ever exercised under this provision, and it is only within recent years that a limited amount of control over county treasurers, through central audit of some of their accounts, has come to be established. Attention has already been called to the audit by the Comptroller over the accounts for the inheritance tax, and by the Excise Commissioner over accounts for the liquor tax. In addition, the Comptroller has the power of auditing the Court and Trust Fund accounts of the county treasurers. This power was conferred by certain amend- ments to the Code of Civil Procedure, made in 1892, trans- ferring the supervision of the Court and Trust Funds in the hands of the various county treasurers from the various courts to the State Comptroller.' That official is directed to " prescribe regulations and rules for the care and disposition thereof, which shall be observed by all parties interested therein, unless the court having jurisdiction over the same shall make different directions by special orders." He is also required to name depositories for such funds, and at least once in each year to cause an examination to be made of the accounts of the officials having the custody of these funds, and is authorized to employ special clerks for this purpose. The introduction of this system soon disclosed the fact that there had been no uniform method pursued by county treasurers in keeping such funds, and in many instances no separate account had been kept of different funds, but all were bunched together in almost inextricable confusion." These accounts were straightened out, a uniform system of ^ Laws o/lSgz, c. 65 1; Code 0/ Civil Procedure, § 744. » Comptroller's Reports, 1894, p. 13; 1895, P- 3°- 1 86 CENTRALIZA TION IN NE W YORK [5 96 book-keeping introduced, and rules formulated for the ad- ministration of these funds. By means of these arrange- ments and examinations, deficits and defalcations in these accounts are made more difficult, and if made are discovered in time to prevent loss, whereas under the former system it was sometimes years after the defalcation before discovery was made. Inquiries showed that within recent years defal- cations or shortages had taken place in thirty-three counties. This condition of affairs naturally has led to the suggestion that the system of examination by a State authority now established for court and trust funds, the collateral inheri- tance tax and excise accounts, be extended to include all the county treasurers' accounts.' No action has, however, been taken as yet on this suggestion. City finances are now subject to external control only through the constitutional limitations on the total amount of city debt and the city tax rate. But formerly they were limited by a legislative control over the taxing power, which -in the case of New York city was used at one period to actively control the city's expenditures. The historical explanation of this legislative control lies in the fact that the early municipal charters, following the precedents of English borough charters, conferred on the municipal corporations no power of taxation. When the colonial legislatures authorized the cities to levy taxes, those were at first only for limited amounts necessary for specific purposes," and the tax laws had to be repeated from year to year. Early in this century, however, these special laws gave way to general authorizations, and new city charters conferred on the municipal corporations the authority to levy taxes. But for New York city the practice of passing annual tax ' Comftr oiler's Reports, 1896, p. 451; 1897, p. 51. ^ Colonial Laws of New York, 1691, c. iZ; 1701,0.96; 1724,0.454; 1753, c. 941; 1764, c. 1259; c. 1261. 597j TAXATION AND LOCAL FINANCE 187 laws was continued, though up to the middle of the century the action of the legislature was merely formal. The laws did not prescribe the details of the city budget, and little if any change was made in the bills submitted by the city for approval.' The period of active legislative control over New York city finances is closely connected with changes in the or- ganization of the city government which took place at the same time. As early as 1844 the board of education was given authority to determine the amount of the expenditure for schools,' and the council ceased to have any control over this item. In 1849 the department of charities and correc- tion was also placed under an elected board,^ which deter- mined the amount of taxes necessary for its use indepen- dently of the council. These changes, while weakening the financial responsibility of the council, did not establish any central control. The first step in that direction is seen in the city tax law of i85i,'' which, for the first time, named in detail the items for which the tax should be levied ; but as no change was made in the appropriations voted by the city authorities, no effective control was yet established. In 1856, however, the legislative committee took testimony of witnesses and made changes in ten items, reducing the total levy authorized for general purposes from $3,485,944 to $3,247,189. The next year important changes were made in the city organization. A separate board of county super- visors was provided, elected by a system of minority rep- resentation which gave the minority party half of the board. This board was to have entire charge of all county expendi- tures. At the same time a State Park Commission and a ' E. D. Durand, The Finances of New York City, p. 27. The account of legis- lative control over New York City finances is based on the facts in ch. iv. of Mr. Durand's book. »Zawfl/'l844, c. 320. »/«