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liabilities as such, capable of suing and the crown was aimed at the liberties possubject to be sued in the courts of justice, sessed and exercised by Boston and the in disputes with any parties individual or other towns in the meetings of their free. corporate. Once a year the corporation Pitkin, Hist. of Uniteu States, chooses the administrators of its affairs, I. 265–267 ; Bancroft Hist. of United and determines the amount of money with States, VI. 518 ; Life of Samuel Adams, which it will intrust them, and how this II. 142. The earlier attempts under the shall be raised. If the State levies a gen Stuarts to introduce arbitrary authority eral tax, it is the town treasuries that must through taking away the colonial charters pay it ; and the State fixes the proportion proved wholly ineffectual while the lower due from each town, leaving it to the town municipal governments remained. When to distribute the burden of its share in the the charter of Rhode Island was suspended assessment among its own people. As to it is said that “the American system of inatters of their own interest, the towns town governments, which necessity had present their petitions, and as to matters compelled Rhode Island to initiate fifty of general concern they send their uvico years beforo, becume the means of preserve to the central authorities. By their magis- ing the liberty of the individual citizen trates they exercise a responsible super when that of the State or colony was vision of the elections of officers of the crushed.” Arnold, Hist. of Rhode Island, town, the county, the State, and the na.
ch. 7. In Massachusetts, where the civil tion.” And he very justly adds : "The polity had a theological basis, it was even experience of later times dictated improve. insisted by the deputies that to surrender ments of detail in the municipal system local government was contrary to the Sixth of New England ; but its outline was com Commandment ; for, said they, “Men may plete when it was first devised." Hist. of not destroy their political any more than New England, II. 11-13.
their natural lives.” So they clung to The political organizations under the “the civil liberties of New England” as State were less perfectly formed, less com part of the inheritance of their fathers." pletely endowed with corporate life and Palfrey, Hist. of New England, III. 301vigor, and brought local affairs less gener 303 ; Bancroft, Hist. of United States, II. ally under local control in the Southern 125-127 ; Mass. Hist. Coll. XXI. 74-81. colonies than in the Northern ; but the The contest with Andros, as well in New same principle of decentralization was re England as in New York and New Jersey, cognized, and the difference of application
was a struggle of the people in defence of was due to a difference of circumstances; in the right of local government. ' EveryVirginia the county was the unit. So far
where the people struggled for their rights as there was difference Mr. Jefferson la and deserved to be free." Dunlap, Hist. mented it, and sought to put an end to it of New York, I. 133. See Trumbull, in Virginia through a division of tho coun Hist. of Connecticut, I. 15. ties into hundreds. “ These little repub If we question the historical records lics," he says, “would be the main strength more closely we shall find that this right of the great one. We owe to them the
of local regulation has never been undervigor given to our Revolution in its com stood to be a grant from any central aumencement in the Eastern States.” Letter thority, but it has been recognized as of to Governor Tyler, Jefferson's Works, V. course from the first : just as much of 527. In this Mr. Jefferson was historically course, and just as much a necessary part and literally correct. The effective resist of the civil polity, as the central author. ance to the inroads of tyranny in New ity itself. Sometimes it was one and some. England was through the local municipal- times the other which first assumed form ities, and the first hostile blow struck by and organized vitality, but the precedence
was determined by the circumstances as they see fit to establish, upon the dewhich made the one or the other the more partments and officers of government immediate need. For all practical pur which by their constitutions they create poses they may be regarded as having been
for the States respectively. simultaneous in origin, and as having 3. The municipal organizations exersprung from an unquestioning conviction cise a delegated authority under the State, among the people that ench was essential, and may also be regarded as governments and that both were to run parallel to each of enumerated powers. The State legislaother indefinitely.
tive authority shapes their charters accordSuch was the system which was found ing to its view of what is proper and in force when tho Constitution of tho politic, and it determines their territorial United States superseded the Articles of extent. And upon both theso subjects it Confederation. Thirteen States were in exercises a discretion to enlargo, diminish, existence, cach of which had its subilivi. or wholly take away what it has conferred. sions of counties, towns or parishes, cities, In the eye of the law they are mere boroughs, and villages ; and all these pos- agencies of the State, created and em. sessing powers of local control more or less ployed for the convenience of government, extensive. The most of the States had and the State may therefore set aside their established new constitutions which recog. action when the purpose of their creation nized these subdivisions, without, how is being disregarded, or exercise a compulever, as a rule, making their perpetuation sory authority over them whenever duties in express terms imperative. With this are neglected or unwisely, negligently, recognition they remained and still remain or dishonestly performed. See Booth v. a part of the American system as in colo Woodbury, 32 Conn. 118 ; Frost v. Belnial times.
mont, 6 Allen, 152 ; Petersburg v. MetzIt may be well now to see what is the ker, 21 ill. 205 ; Ottawa v. Walker, 21 theory of Stnte constitutionnl Inw rogard III. 605 ; Commonwealth v. Pittsburg, 34 ing these political entities. Upon this Penn. St. 496 ; Abendroth v. Greenwich, subject it has not ofton been nccdful to 29 Conn. 356 ; New London v. Brainard, examino very closoly the limitations, if 22 Conn. 562 ; Bailey v. New York, 3 Hill, any there are, tipon Stato power, because 631 ; Peoplo v. Draper, 15 N. Y. 632 ; the Stato has generally abstained from as Wecks v. Milwaukce, 10 Wis. 242 ; Inserting any unusual authority, and has dianapolis v. Geisel, 19 Ind. 344 ; State confined itself to that immemorially ex v. St. Louis County Court, 34 Mo. 572 ; ercised. Certain principles, however, have St. Louis v. Allen, 13 Mo. 400 ; State v. been often laid down by the courts, to Cowan, 29 Mo. 330 ; McKim v. Odlorn, 3 which attention may be here directed. Bland, 407 ; Harrison Justices v. Holland,
1. The federal government is one of 3 Grat. 247; Mills v. Williams, 11 Ired. enumerated powers, the Constitution being 558; Langworthy v. Dubuque, 16 Iowa, the measure thereof, and the powers not 271 ; State v. Branin, 3 Zab. 484 ; Aspindelegated thereby being reserved to the wall v. Commissioners, 22 How. 364. In individual States or to the people. This none of the States, however, has it been we need not enlarge upon here, or cite
hitherto understood that when a municipal other authority for than the book before charter was taken away, the exercise of
local authority terininated with it; on the 2. The powers of sovereignty not thus contrary, some general rule for local gove delegated rest in the people of the indi. ernment has been universal ; the special vidual States, who confer the same for charters have only conferred special priv. ordinnry exorcise, with such exceptions ileges, which when tnken awny ronitted and limitations and under such regulations the corporators to their previous condition,
which was one in which they exercised un Wheat. 663, 694, 695 ; Trustees v. Tat. der well-understood principles the usual man, 13 III. 30. A change in corporate powers of local regulation. For a State bounds, a modification of corporate author. wholly to take away from any of its people ity, and sometimes other circumstances these powers would be not only unprece- may make it necessary for the State to in. dented, but would be so entirely opposed tervene, and by virtue of its sovereign to the common understanding of the man. power to take possession of corporate propner in which the powers of government erty with a view to its proper appropriawere to be apportioned and exercised with tion or division ; but when she shall do. in the State, that the authority to do so so, it will be as trustee merely, and her could not justly be regarded as within any duty will be to make the appropriation, grant which the people of the State have not arbitrarily, but with due regard to the made of the legislative authority to their purposes of its acquisition, so that the representatives. In other words, the right people concerned shall still reap the benefit of local self-government is so universally thereof so far as the circumstances and the undorstood and conccded ; its exercise has nature of the caso will admit. always been so entirely without question ; But while the corporations exist, though to dispense with it would require and ac. the State may lay down rules for the regucomplish so complete a revolution in lation of their affairs and the management the public administration, involving, as of their property, it is nevertheless a part thoughtful men believe, the destruction of of the right of self-government that the the chief prop and support of our liber. people concerned should choose their own ties, – that its purposed continuance must officers who are to administer such rules be regarded as having been within the and have the care of such property, and contemplation of the people of every State, the State cannot appoint such officers, as when they framed their Constitution, and it might those who are to perform duties that instrument must be read and inter of a more general nature for the public at preted accordingly. Local self-govern. large, such as mustering or disciplining ment is consequently matter of constitu. the State militia, enforcing the State health tional right, and the State cannot abolish and police laws, and the like. See Warner it and regulate the local affairs through v. People, 2 Denio, 275; People v. Blake, agents of its own appointment.
49 Barb. 9; State v. Kenyon, 7 Ohio, 4. Considered as corporations, the mu N. S. 546. nicipalities have a two-fold aspect. They Such we believe to be the true doctrine are agents of the State in government, and regarding these municipalities. Instances they also have capacity to make contracts have perhaps occurred in which legislative and acquire property, as may be needful or bodies, under the belief that interference desirable in providing such local conven in local matters was essential to the coriences for their corporators as may be con rection of local abuses, have disregarded templated by the laws under which they the usual bounds which limit their action exist. 2 Kent, 275 ; Ang. & A. on Corp. in this direction, and taken npon them§ 145; Reynolds v. Stark County, 5 Ohio, selves the performance of duties not prop204. As mere corporations, buying, con. erly pertaining to the central authority. tracting, holding, and improving property, whether, if this might rightfully be done, they aro entitled to the samo protection as it would be likely to result in correcting all other corporations, and the State can more abuses than it would create, is not not take away what they acquire, nor de for us to speculato ; it is enough that our vote to foreign uses that which they have institutions rest upon an acceptance of the provided for the convenience of their peo doctrine that matters purely local are best, ple. Dartmouth College v. Woodward, 4 most economically, honestly, and efficiently
managed by the people immediately con interested body, which, while open to the cerned, who can see and know and com same temptations as the local authorities, prehend and personally supervise them, would be neither under the like restraint and that the local communities should be of interest, nor subject to have its doings expected to rely upon themselves for the exposed to the same watchful observation correction of local evils, and not upon any of the parties concerned. C. distant, imperfectly informed, and slightly
OBJECTIONS TO THE CONSTITUTION.
§ 281. LET it not, however, be supposed, that a Constitution, which is now looked upon with such general favor and affection by the people, had no difficulties to encounter at its birth. The history of those times is full of melancholy instruction on this subject, at once to admonish us of past dangers, and to awaken us to a lively sense of the necessity of future vigilance. The Constitution was adopted unanimously by Georgia, New Jersey, and Delaware. It was supported by large majorities in Pennsylvania, Connecticut, Maryland, and South Carolina. It was carried in the other States by small majorities, and especially in Massachusetts, New York, and Virginia by little more than a preponderating vote.1 Indeed, it is believed that in each of these States, at the first assembling of the conventions, there was a decided majority opposed to the Constitution. The ability of the debates, the impending evils, and tho absolute necessity of the casc, scem to have reconciled some persons to the adoption of it, whose opinions had been strenuously the other way. 2 (a) “In our endeavors,” said Washington, “to establish a new general government, the contest, nationally considered, seems not to have been so much for glory as for existence. It was for a long time doubtful whether we were to survive; as an independent republic, or decline from our Federal dignity into insignificant and withered fragments of empire.” 3
$ 282. It is not difficult to trace some of the more important causes which led to so formidable an opposition, and made the Constitution at that time a theme, not merely of panegyric, but
1 2 Pitk. Hist. 265, 268, 273, 279, 281; North Amer. Rev. Oct., 1827, pp. 276 to 278.
2 2 Pitk. Hist. 266, 269, 281; 5 Marsh. Life of Wash. 132, 133, 188. 8 5 Marshall's Life of Washington, 138.
(a) See Rives, Life of Madison, ch. 35; 60; Van Buren, Political Parties, 57; Hammond, Political History of New Austin's Life of Gerry, II. ch. 2 and 3. York. ch. 1; Life of Samuel Adams, ch.