Imágenes de páginas

§ 280. Thus was achieved another and still more glorious triumph in the cause of national liberty than even that which separated us from the mother country. By it we fondly trust that our republican institutions will grow up, and be nurtured into more matured strength and vigor; our independence be secured against foreign usurpation and aggression; our domestic blessings be widely diffused and generally felt; and our union, as a people, be perpetuated, as our own truest glory and support, and as a proud example of a wise and beneficent government, entitled to the respect, if not to the admiration of mankind.1

tion that they would not long continue to resist the necessities of their situation and persevere in their refusal to take their proper places in the American family. Hildreth, Hist. of United States, IV. 147, 149; Pitkin, Hist. of United States, II. 336.]

[1 LOCAL SELF-Government. At this point it may not be inappropriate, in view of the discussions and controversies which have arisen since this work was published, and which still demand some portion of the attention of both the statesman and the jurist, to call attention to certain principles and usages in American constitutional government, which, though pertaining more particularly to State than to Federal policy, are nevertheless necessarily had in view when a complete survey of our political system is desired and sought. We allude here to the system of local self-government, which, in respect to local concerns, prevails universally.

In another work the present editor has had occasion to say, that, "in the examination of American constitutional law we shall not fail to notice the care taken and the means adopted to bring the agencies by which power is to be exercised as near as possible to the subjects upon which the power is to operate. In contradistinction to those governments where power is concentrated in one man, or in one or more bodies of men, whose supervision and active control extend to all the objects of government within the territorial limits of the State, the American system is one of complete decentralization, the primary and vital idea of which is, that local affairs shall be managed by local authorities, and only general affairs by the central authority. It was under the control of this idea that a national Constitution was formed, under which the States, while yielding to the national government complete and exclusive jurisdiction over external affairs, conferred upon it such powers only, in regard to matters of internal regulation, as seemed to be essential to national union, strength, and harmony, and without which the purpose in organizing the national authority might have been defeated. It is this, also, that impels the several States, as if by common arrangement, to subdivide their territory into counties, towns, road and school districts, and to confer upon each the powers of local legislation, and also to incorporate cities, boroughs, and villages wherever a dense population requires different regulations from those which are needful for the rural districts. This system is one which almost seems a part of the very nature of the race to which we belong. A similar subdivision of the realm for the purposes of municipal government has existed in England from the earliest ages. Crabbe's History of English Law, ch. 2; 1 Bl. Comm. 114; Hallam's Middle Ages, ch. 8, pt. 1; 2 Kent, 278; Vaughan's Revolutions in English History, b. 2, ch. 8. And in America the first settlers, as if instinctively, adopted it in their frame of government, and no other has ever supplanted it, or even found advocates." Cooley, Const. Lim. 189.

The writers upon our civil polity, who have carefully studied its philosophy, have not only taken notice of this primary fact, but they have invariably attributed to it the liber13


ties we enjoy. De Tocqueville discusses it with clearness, and contrasts it forcibly with the French idea of centralization under which constitutional freedom has never become an established fact. Democracy in America, ch. 5.

The same comparison is made by Dr. Lieber, who shows that a centralized government, though it be by representatives freely chosen, must be despotic, as any other form of centralization necessarily is. Civil Liberty and Self-Government, ch. 21. Mr. Jefferson in his retirement writes thus to a friend: "The way to have good and safe governments is not to trust all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be intrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics, from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or of France, or of the aristocrats of a Venetian Senate. . . . The elementary republics of the wards, the county republics, the State republics, and the republic of the Union would form a gradation of authorities, standing each on the basis of law, holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. Where every man is a sharer in the direction of his ward republic, or of some of the higher ones, and feels that he is a.participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the State who shall not be a member of some one of its councils, great or small, he will let the heart be torn out of his body sooner than his power be wrested from him by a Cæsar or a Bonaparte." Letter to Cabell, Jefferson's Works, VI. 543. Mr. Burke also indicates the fatal defect in the French system when he says, "The hand of authority was seen in everything and in every place. All, therefore, that happened amiss, even in domestic affairs, was attributed to the government; and as it always happens in this kind of officious universal interference, what began in odious power ended always, I may say without exception, in contemptible imbecility." Thoughts and Details on Scarcity; Works (Little, Brown, & Co.'s ed. 1869), V. 168.

Regarding the usual division of authority between the States and the lower municipalities, De Tocqueville, speaking of New England township government, says: "In this part of the Union the impulsion of political activity was given in the township, and it may almost be said that each of them originally formed an independent nation. When the kings of England asserted their supremacy, they were contented to assume the central power of the State. The townships of New England remained as they were before, and, although they are now subject to the State, they were at first scarcely dependent upon it. It is important to remember that they have not been invested with privileges, but that they seem on the contrary to have surrendered a portion of their independence to the State. The townships are only subordinate to the States in those interests which I shall term social, as they are common to all citizens. They are independent in all that concerns themselves, and among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the State has any right to interfere in their local interests." Democracy in America, ch. 5. Mr. Palfrey goes more into detail; speaking of the New England colonies collectively, he says: "While the superior magistrates were elected by the votes of the freemen of the whole colony counted together, the deputies were chosen for each town by a majority of its voters. The

[ocr errors]

share which, through their delegated voice in the general courts, the towns had in the general legislation, was not the chief of the functions which belonged to them. The municipal jurisdictions present a peculiarity of the social system of New England, than which none more attracts at this day the attention of intelligent strangers, or has had more influence on the condition and the character of the people through the eight generations of their history. The territory of these States, with the exception of that small portion at the north which remains unoccupied, is laid off into districts of moderate extent, and the inhabitants of each form a little body politic, with an administration of its own, conducted by officials of its own choice, according to its own will, within certain limits imposed by the higher common authority. With something of the same propriety with which the nation may be said to be a confederacy of republics called States, each New England State may be described as a confederacy of minor republics called towns. The system is the extreme opposite of a political centralization. To the utmost extent consistent with the common action and the common welfare of the aggregate of towns that make the State, the towns severally are empowered to take care of those interests of theirs which they respectively can best understand, and can most efficiently and most economically provide for; and these are identical with the interests which most directly concern the public security, comfort, and morals. Thus it belongs to them, and they are compelled by general laws of the States within which they are severally included, to protect the public health and order by means of a police; to maintain safe and convenient communication about and through their precincts by roads and bridges; to furnish food, clothing, and shelter to their poor; to provide for the education of all their poor at their common charge. By force of this institution every man in New England belongs to a small community of neighbors known to the law as a corporation, with rights and liabilities as such, capable of suing and subject to be sued in the courts of justice, in disputes with any parties individual or corporate. Once a year the corporation chooses the administrators of its affairs, and determines the amount of money with which it will intrust them, and how this shall be raised. If the State levies a general tax, it is the town treasuries that must pay it; and the State fixes the proportion due from each town, leaving it to the town to distribute the burden of its share in the assessment among its own people. As to matters of their own interest, the towns present their petitions, and as to matters of general concern they send their advice to the central authorities. By their magistrates they exercise a responsible supervision of the elections of officers of the town, the county, the State, and the nation." And he very justly adds: "The experience of later times dictated improvements of detail in the municipal system of New England; but its outline was complete when it was first devised." Hist. of New England, II. 11 – 13.

The political organizations under the State were less perfectly formed, less completely endowed with corporate life and vigor, and brought local affairs less generally under local control in the Southern colonies than in the Northern; but the same principle of decentralization was recognized, and the difference of application was due to a difference of circumstances which need not here be gone into. So far as there was difference Mr. Jefferson lamented it, and sought to put an end to it in Virginia through a division of the counties into hundreds. “These little republics," he says, "would be the main strength of the great one. We owe to them the vigor given to our Revolution in its commencement in the Eastern States." Letter to Governor Tyler, Jefferson's Works, V. 527. In this Mr. Jefferson was historically and literally correct. The effective resistance to the inroads of tyranny in New England was through the local municipalities, and the first hostile blow struck by the crown was aimed at the liberties possessed and exercised by Boston and the other towns in the meetings of their freemen. Pitkin, Hist. of United States, I. 265-267; Bancroft, Hist. of United States, VI. 518; Life of Samuel Adams, II. 142. The earlier attempts under the Stuarts to introduce arbitrary

authority through taking away the colonial charters proved wholly ineffectual while the lower municipal governments remained. When the charter of Rhode Island was suspended it is said that "the American system of town governments, which necessity had compelled Rhode Island to initiate fifty years before, became the means of preserving the liberty of the individual citizen when that of the State or colony was crushed." Arnold, Hist. of Rhode Island, ch. 7. In Massachusetts, where the civil polity had a theological basis, it was even insisted by the deputies that to surrender local government was contrary to the Sixth Commandment; for, said they, "Men may not destroy their political any more than their natural lives." So they clung to "the civil liberties of New England" as part of the inheritance of their fathers." Palfrey, Hist. of New England, III. 301 - 303; Bancroft, Hist. of United States, II. 125-127; Mass. Hist. Coll. XXI. 74-81. The contest with Andros, as well in New England as in New York and New Jersey, was a struggle of the people in defence of the right of local government. "Everywhere the people struggled for their rights and deserved to be free." Dunlap, Hist. of New York, I. 133: see Trumbull, Hist. of Connecticut, I. 15. If we question the historical records more closely we shall find that this right of local regulation has never been understood to be a grant from any central authority, but it has been recognized as of course from the first: just as much of course, and just as much a necessary part of the civil polity, as the central authority itself. Sometimes it was one and sometimes the other which first assumed form and organized vitality, but the precedence was determined by the circumstances which made the one or the other the more immediate need. For all practical purposes they may be regarded as having been simultaneous in origin, and as having sprung from an unquestioning conviction among the people that each was essential, and that both were to run parallel to each other indefinitely. Such was the system which was found in force when the Constitution of the United States superseded the Articles of Confederation. Thirteen States were in existence, each of which had its subdivisions of counties, towns or parishes, cities, boroughs, and villages; and all these possessing powers of local control more or less extensive. The most of the States had established new constitutions which recognized these subdivisions, without, however, as a rule, making their perpetuation in express terms imperative. With this recognition they remained and still remain a part of the American system as in colonial times.

It may be well now to see what is the theory of State constitutional law regarding these political entities. Upon this subject it has not often been needful to examine very closely the limitations, if any there are, upon State power, because the State has generally abstained from asserting any unusual authority, and has confined itself to that immemorially exercised. Certain principles, however, have been often laid down by the courts, to which attention may be here directed.

1. The Federal government is one of enumerated powers, the Constitution being the measure thereof, and the powers not delegated thereby being reserved to the individual States or to the people. This we need not enlarge upon here, or cite other authority for than the book before us.

2. The powers of sovereignty not thus delegated rest in the people of the individual States, who confer the same for ordinary exercise, with such exceptions and limitations and under such regulations as they see fit to establish, upon the departments and officers of government which by their constitutions they create for the States respectively.

3. The municipal organizations exercise a delegated authority under the State, and may also be regarded as governments of enumerated powers. The State legislative authority shapes their charters according to its view of what is proper and politic, and it determines their territorial extent. And upon both these subjects it exercises a discretion to enlarge, diminish, or wholly take away what it has conferred.

In the eye of the law they are mere agencies of the State, created and employed for

the convenience of government, and the State may therefore set aside their action when the purpose of their creation is being disregarded, or exercise a compulsory authority over them whenever duties are neglected or unwisely, negligently, or dishonestly per. formed. See Booth v. Woodbury, 32 Conn. 118; Frost v. Belmont, 6 Allen, 152; Petersburg v. Metzker, 21 Ill. 205; Ottawa v. Walker, 21 Ill. 605; Commonwealth v. Pittsburg, 34 Penn. St. 496; Abendroth v. Greenwich, 29 Conn. 356; New London v. Brainard, 22 Conn. 552; Bailey v. New York, 3 Hill, 531; People v. Draper, 15 N. Y. 532; Weeks v. Milwaukee, 10 Wis. 242; Indianapolis v. Geisel, 19 Ind. 344; State v. St. Louis County Court, 34 Mo. 572; St. Louis v. Allen, 13 Mo. 400; State v. Cowan, 29 Mo. 330; McKim v. Odorn, 3 Bland, 407; Harrison Justices v. Holland, 3 Grat. 247; Mills v. Williams, 11 Ired. 558; Langworthy v. Dubuque, 16 Iowa, 271; State v. Branin, 3 Zab. 484 ; Aspinwall v. Commissioners, &c., 22 How. 364. In none of the States, however, has it been hitherto understood that when a municipal charter was taken away, the exercise of local authority terminated with it; on the contrary, some general rule for local government has been universal; the special charters have only conferred special privileges, which when taken away remitted the corporators to their previous condition, which was one in which they exercised under well-understood principles the usual powers of local regulation. For a State wholly to take away from any of its people these powers would be not only unprecedented, but would be so entirely opposed to the common understanding of the manner in which the powers of government were to be apportioned and exercised within the State, that the authority to do so could not justly be regarded as within any grant which the people of the State have made of the legislative authority to their representatives. In other words, the right of local self-government is so universally understood and conceded; its exercise has always been so entirely without question; to dispense with it would require and accomplish so complete a revolution in the public administration, involving, as thoughtful men believe, the destruction of the chief prop and support of our liberties, that its purposed continuance must be regarded as having been within the contemplation of the people of every State, when they framed their Constitution, and that instrument must be read and interpreted accordingly. Local selfgovernment is consequently matter of constitutional right, and the State cannot abolish it and regulate the local affairs through agents of its own appointment.

4. Considered as corporations, the municipalities have a twofold aspect. They are agents of the State in government, and they also have capacity to make contracts and acquire property, as may be needful or desirable in providing such local conveniences for their corporators as may be contemplated by the laws under which they exist. 2 Kent, 275; Ang. & A. on Corp. § 145; Reynolds v. Stark County, 5 Ohio, 204. As mere corporations, buying, contracting, holding, and improving property, they are entitled to the same protection as all other corporations, and the State cannot take away what they acquire, nor devote to foreign uses that which they have provided for the convenience of their people. Dartmouth College v. Woodward, 4 Wheat. 663, 694, 695; Trustees v. Tatman, 13 Ill. 30. A change in corporate bounds, a modification of corporate authority, and sometimes other circumstances may make it necessary for the State to intervene, and by virtue of its sovereign power to take possession of corporate property with a view to its proper appropriation or division; but when she shall do so, it will be as trustee merely, and her duty will be to make the appropriation, not arbitrarily, but with due regard to the purposes of its acquisition, so that the people concerned shall still reap the benefit thereof so far as the circumstances and the nature of the case will admit.

But while the corporations exist, though the State may lay down rules for the regulation of their affairs and the management of their property, it is nevertheless a part of the right of self-government that the people concerned should choose their own officers who are to administer such rules and have the care of such property, and the State can

« AnteriorContinuar »