PART THIRD.

WHAT POWERS, CAPACITIES, AND DUTIES ARE CONFERRED OR IMPOSED UPON THE NATIONAL GOVERNMENT, AND WHAT ARE CONFERRED OR IMPOSED UPON THE SEVERAL STATES.

CHAPTER I.

THE LEADING IDEAS OF CIVIL POLITY WHICH ENTER INTO THE ORGANIZATION OF THE UNITED STATES.

§ 151. I Now pass to the third grand division of the subject, which is the one of most practical importance, and in respect to which the most minuteness of detail and illustration is needed: What are the powers and capacities of the government of the United States?

In treating of this theme I shall proceed in the following order:

First. To develop, in a brief manner, the leading ideas of civil polity which are involved in the whole complex system of political organization;

Secondly. To describe the external form of the government, and the methods by which the machinery is kept in motion; and

Thirdly. To state and discuss the powers and functions of the Legislative, the Executive, and the Judicial Departments separately.

§ 152. What are the leading ideas of civil polity involved in the complex system of political organization, which the people of the United States has contrived?

Thus far our thoughts have been constantly directed to the nationality of the one people of the United States, and to the

capacities which inhere in them by virtue of that nationality. I have purposely refrained from speaking with any emphasis and at any length of the limitations which the people has placed upon its rulers. The division of powers and the rights of the separate states under the Constitution have been designedly kept out of view. The phrase, "rights of the states," is used advisedly. The quality of sovereignty is denied to these local communities; the term "sovereign states," I deem to be illogical, absurd, opposed to the truth of history. But, still, the states have rights as perfect within their sphere, in the present condition of our organic law, as those of the general government. Their only badge of inferiority is, that the people, if they see fit to proceed by the means of amendments to the Constitution, may abridge, or even destroy them.

§ 153. But while our fundamental law stands untouched, the powers of legislation and administration held by the several states, are derived from the same source, rest upon the same foundation, are affected by the same attribute of inviolability, as those reposed in the government of the United States. That single source, that common foundation, is the people. It is true that the powers and functions intrusted to the central organization have a wider field of activity, are, in their essence, higher and more national than those intrusted to the local commonwealths; but within their respective limits of operation, each class is uncontrolled by the other.

§ 154. Such is the plan of the entire political structure, and its wisdom and efficiency have been proved by the whole course of our history. Those affairs which are peculiarly national, which affect the body of citizens, are managed by the one central government created by the people. Those affairs which are local, which affect the individual citizen in his private capacity abstracted from his relations to the whole political society, are managed by the separate state governments which were found in existence and left remaining in existence by the same Constitution.

§ 155. The whole civil polity is thus based upon two grand ideas as its foundations and supports; the idea of Local SelfGovernment, and the idea of Centralization. The first was

104 CENTRALIZATION AND LOCAL SELF-GOVERNMENT.

borrowed from the tribal customs of the Saxons and other Germanic tribes who invaded Western Europe; the second is a heritage from Rome. The one is the safeguard of liberty; the other the source of power;-liberty and power, two elements which should enter into every political society. The history of the world is the history of struggles between these contending forces. In a perfect State they would be so combined that there should be just so little power as was necessary to protect and guarantee the largest amount of liberty. It is a nice equation to adjust so that these variables may exactly counterbalance each other. The endeavors of the one force to rise, and of the other to repress, have checkered the annals of every people with wars, anarchy, oppression, and revolt. History points to but few instances in which an equilibrium has been reached and for any long period of time maintained. England and our own country are, perhaps, the only countries in our own age in which it can be pretended that the contending forces have settled to rest.

§156. A single, centralized government is necessary in order that there should be power to maintain the integrity of the nation. Local self-governments are necessary in order that there should be individual liberty enough to meet the encroachments of the central power and maintain the freedom of the citizen. As political writers have regarded the one or the other of these results the more important, they have favored the one or the other form of administration.

Jefferson was, in theory, a passionate lover of liberty, and he was fearful that the Constitution gave too much scope to the national rulers. Other public men of a former day dwelt more on the necessity of a strong force at the centre to keep together the parts whose natural tendency was outward; and they feared that the several states had been left in possession of too many and great capacities, which would finally be destructive of unity, and, as a consequence, of liberty. We be lieve that both these schools of theorists were wrong. We believe that the Constitution grants to the agents appointed to manage the national affairs, power enough to meet any emergency. We also believe that it has clothed the separate states

with capacities to limit and restrain any unlawful exercise of that power, and to preserve our liberties to all time. Our fathers, by an almost divine prescience, struck the golden mean, and devised a scheme in which these opposing forces meet, not to neutralize and destroy, but to support and strengthen each other.

§ 157. Both of these elements are necessary to the highest good of the nation. Blot out the states, or reduce their functions to a mere form, and the general government, although elective, would ere long, become a despotism. We should have repeated, in our own country, the imperial policy of the French, of an emperor who was chosen by the almost unanimous vote of his subjects. Blot out the general government, or reduce it to a shadow, and we should destroy our prosperity, and with it the means of maintaining our position and influence among nations; we should inaugurate a condition of prostration and anarchy worse even than that of the Confederation. While, therefore, I oppose any attempts on the part of the separate states to assert their own sovereignty, I would oppose, with equal earnestness, any attempts on the part of the nation towards consolidation.

§ 158. Let us examine a little more closely the manner in which the idea of local self-government has been applied in organizing the American people. The principle is made effective at the very foundation of the system. We have the ascending scale of towns, counties, states, nation. Villages and cities are modifications of towns, created under special acts of incorporation, rather than by the general laws of the commonwealth. In each of these four grades, rights, powers, and capacities are exercised, which are limited by the territory and the peculiar local needs of the particular class. The people of a town meet to discuss and settle certain matters which relate solely to their own small vicinage. The people of a county choose a legislative body which manages the concerns of that community, consisting of several towns. The people of a state delegate their powers to a government, whose jurisdiction extends through the limits of that commonwealth, and includes all subjects of legislation which affect the citizen in

his personal and private relations, which define his rights of security and property, and the obligations he incurs by virtue of his being a local inhabitant, or by virtue of his acts towards others. Finally the people of the United States delegate a portion of their powers to rulers, who may legislate for them in respect to all matters which peculiarly concern them as a nation.

§ 159. According to our present policy, this gradation is fixed. It might, indeed, be destroyed. Any state might so change its organic law as to dispense with the divisions into towns and counties, and might commit to the state legislature the entire control over subjects of the most trivial and local interest. That body might be invoked to lay out every road, build every bridge, or lay every partial tax and assessment.

Such an alteration would be antagonistic to principles which are a part of our race life. For we did not invent this method of distributing legislative and administrative functions among local communities, this scheme of dividing the labors and duties of government, and allotting a special portion to that body most capable of performing it. The germs of this policy are to be found among the rude Saxons in England at the earliest period which history permits us to reach in our explorations of the past. The other Germanic tribes who settled in Western Europe, exhibited traces of the same ideas among them, before being overwhelmed by the barbaric force of feudalism, and buried under the imperial policy borrowed from the traditions of Rome. The Saxon Hundreds and Shires are the historical representatives of American towns and counties.

$160. The free Anglo-Saxons and their territory were divided up, for the purposes of civil administration and the preservation of peace and mutual protection, into separate local organizations. At the basis of this lay two elementary principles, the tie of the family, kindred or clan, and the tie of territory. During the period of Anglo-Saxon history with which we are acquainted, the Tything was the elemental division. This does not seem to have been founded upon a territorial basis, but was composed of ten families or households of freemen not in the 'mund,' or under the protection, as vas