Local government in counties, towns and villages

Front matter

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Part II. The County

rv General Characteristics 57

V The County Board 75

VI Justice and Police — Courts 95

Prosecuting Attorneys 100

The Sheripp 106

Coroners. 112

Court Clerks and County Clerks .... 115

^ vn Other County Officers 119

Finance Officials 119

Registers of Deeds 127

School Officials l32

Minor Officers 135

Part III Minor Divisions

vni New England Towns 141

Town Meetings 147

Town Officers 156

zi

CONTENTS CsAFm Pagi

t IX Townships in the CKNTRAii States .... 164

Township Meetings 168

Township Oppicbrs 174

School Districjts 182

X County Districts in the South and West . 186

Southern States 187

Western States 195

XI ViLiiAGEs and Boroughs 200

PART IV. STATE SUPERVISION XII Public Education 215

xm Charities and Correction 225

XIV Public Health 237

xv Local Finance 249

Taxation 249

Auditing and Accounting 255

XVI Miscellaneous 264

Index 281 xu

PAET I HISTORICAL

LOCAL GOVERNMENT IN COUNTIES, TOWNS AND VILLAGES

Chapter I

Local government in the United States has developed from institutions established in the colonies, which institutions were in many respects similar to those existing at the time in England. The origin and early history of these English institutions are difficult to trace. In many important features the later Anglo- Saxon system bears close analogies to the Germanic system in the first century a. d., as described by the Roman historian, Tacitus, and it is evident that the one has developed from the other. But in the historical records there is a long gap which makes it impossible to describe the process of evolution. Also there are many unsettled questions in connection with the extent of the early Roman influence on the development of institutions in England during the first centuries of the Anglo-Saxon period. It will be sufficient for our purpose here to sketch briefly the growth of English local institutions from the time when they can be clearly understood, in the latter part of the

Anglo-Saxon period, describing somewhat more at length the system of local government existing at the time of the first settlements in America.

When in the ninth century the various Anglo- Saxon kingdoms had been united in the kingdom of England, the country was divided for purposes of local government into shires, these into districts, known as hundreds, and these again into townships. The township, whether a development from the so-called Teutonic mark, or from the Romto villa, was a social and economic, rather than a political, district. It was a sbiall rural community composed mainly of peasants. Local aflfairs were managed by an assembly of the inhabitants, who elected a president, known as the town-reeve, a tithing man, constable, and four men, who with the reeve and priest represented the township in the courts of the hundred and the shire. After the organization of the Church, parishes had also been established, usually coterminous with townships; and ecclesiastical affairs were managed by a similar assembly of inhabitants under the name of the vestry.

The hundred was a district composed of several townships. Here the management of affairs was nn the hands of a court held monthly, composed of all individual landlords within the district and the representatives from the various townships noted above. As executive ofl&cials there were a deputy of the shire-reeve, an elected hundreds-ealdor, and (at any rate towards the close of Anglo-Saxon times) a standing committee of twelve senior thegns. The main functions of this court were judicial in character, including both civil and criminal jurisdiction. In theory justice was administered by the whole body of lawful attendants or suitors at the court; but in practice this function fell very largely to the committee of twelve, whose further duty it was to present persons accused of more serious crimes in the shire court.

Above the hundreds were the shires. These were, in the south and extreme north, the districts of older kingdoms or distinct bodies of the Teutonic peoples which retained certain features of self-government after their absorption into the larger kingdom. In the midlands the shires were artificial districts created for convenience of administration. Whatever its origin, the affairs of each shire were managed by a semi-annual court, composed of the representatives from each township and the individual landowners, though later the place of the latter may have been taken by the twelve senior thegns from each hundred. The principal function of this court, as in the hundred, was the administration of justice.

The initative and active control of business rested in three oflBcials : the ealdorman or earl, the shire-reeve oi^sheriff, and the bishop. The ealdorman represented the extinct royalty in the earlier kingdoms; and although later nommated by the King, he retained much of the dignity suggested by the origin of the office. Several shires were grouped under each ealdorman, who was preeminently the leader of the military forces. The sheriff originally had been the steward of the royal estates and chief representative of the Crown, but became also the president and chief executive of the shire court. In ecclesiastical cases, however, the bishop presided over the court.

After the Normau conquest the earls retired from the active administration of shire business, and the position became merely a title of nobility and highest dignity. At the same time the separation of civil and ecclesiastical jurisdiction led to the disappearance of the bishop from the shire court. These changes paved the way for the supremacy of the sheriff in the county, as the shire came to be called. This officer became the King's representative in military affairs; as police magistrate he was responsible for maintaining the peace and supervising the elaborate system of securities for good behavior; as steward of the royal estates, his financial powers were increased; and for a time his judicial functions gained in importance with the development of the shire court and the decline of the hundred court. The jurisdiction of the shire court was extended, and its sessions became more frequent, until they were held as often as once a month. This led to a falling off in attendance of the local representatives, with a corresponding increase in the influence of the sheriff. Criminal courts in each hundred were also held by the sheriff twice a year. In fact the sheriff became the chief agent in a strongly centralized prefectoral administration.

Another result of the Norman conquest was the development of feudal manorial courts, at the expense of the hundred courts. Even in Saxon times many thegns had judicial jurisdiction within their estates, covering one or more townships; and these were exempt from the hundred court. This system was now extended with other features of the feudal regime. In each manor, courts or assemblies of the inhabitants were held, different sessions being known as the court customary, the court baron, and the court leet. Here, as in the hundred and shire courts, the judgments were rendered hf the whole body of attendants, but under the supervision of the lord's steward, who occupied in a smaller way a position similar to that of the sheriff in the shire court.

Arbitrary exercise of his enormous powers made the sheriff an unpopular official, and at the same time the tendency for the office to become hereditary in powerful local families caused it to be distrusted by the Crown. As a consequence his authority was gradually reduced by the development on the one hand of the itinerant royal courts, and on the other of the justices of the peace, until he became simply a ministerial officer of the courts, a conservator of the peace, and returning officer in elections.

Special royal commissioners had occasionally been sent throughout the kingdom from the time of Alfred. A regular system of circuit judges was established under Henry I; and under Henry II this developed into the common law courts, which took over the most important judicial business from the sheriffs and the shire courts.

During the thirteenth century a new class of peace officers were appointed from time to time, with executive police powers of rather more importance than the old constables. Those appointed were landowners, who served without salary. In the reign of Edward III judicial powers were given to these magistrates;

and in the next century many of the functions of the sheriflf were transferred to the new justices of the peace; in other respects they replaced the manorial courts, while still more powers were added. Most of the remaining jurisdiction of the shire court was transferred to the quarter sessions of the justices, and the former remained in existence mainly for the election of coroners and members of Parliament. The hundred as an administrative district almost disappeared. The old local officials— sheriffs, coroners, constables, and manorial bailiffs— became the servants of the justices and often their nominees. The justices at their quarter sessions also constituted the fiscal board of the shire, which assessed, levied and managed the expenditure of county funds and maintained county roads and bridges, prisons and public buildings.

Under the Tudors there was a further development in the power of the justices of the peace, with other changes in county government; and at the same time the establishment of new organs of local government in the parishes made the town of much greater relative importance than before.

Additions to the authority of the justices may be noted in three directions: They became charged with the duty of preliminary investigations in criminal cases of all kinds. They were given control over the administration of a vast mass of statutory police legislation, both old and new, including laws against vagabonds and beggars, the regulation of wages, apprenticeship and prices, licensing beer-houses and other trades, and, after the Reformation, ecclesiastical laws against papists and non-conformists. Lastly they were given important powers of supervision over the newly established parish system, in reference to police matters, poor relief, highways and local taxation. These, with their former powers, gave the justice of the peace the position well described as **the state's manof-all-work."

Other changes in county government affected the militia system, the local administration of which was placed in the hands of a new official, known as the lord-lieutenant. Most of the important judicial business was now in the hands of the royal judges, although the sheriff's county court and in some places the manorial courts lingered on as decaying institutions.

While in earlier times the township had never been an important unit of civil administration, on its ecclesiastical side the parish had always an active and a continuous existence. With the separation from Rome, the priest was replaced by the rector as the ecclesiastical head of the parish, assisted in financial matters by two churchwardens chosen by the parish vestry— which had the power to levy a local tax or church rate for the maintenance of the church property.

This ecclesiastical organization was now made the basis of a distinctly civil administration. Under Mary, the parish vestry was authorized to elect a surveyor of highways, and levy a highway rate ; but local roads continued to be maintained for the most part by a labor tax. Poor relief had always been considered an ecclesiastical affair, administered through the parish or in later times largely by the monasteries. But the dissolution of the monasteries and economic changes made necessary a new system; and a long line of Parliamentary statutes, beginning in the reign of Henry VIII and culminating in the Poor Law of 1601, definitely established a system of parish taxation for the care of the poor, to be administered by the churchwardens and a new class of officials, known as overseers of the poor. It may also be noted that whatever was done in the way of popular education was also done through the parish ofiBcials, but this was as yet considered a purely ecclesiastical matter.

As has been seen, the parish officials in the exercise of these new functions were placed under the active supervision of the justices of the peace. The justices, in turn, and other executive officers, were controlled in all their functions by the statutes of Parliament enforced by the royal judges. There was also an active administrative control exercised by the Privy Council. Also, as a means of central control, sheriffs, justices and local executive officers, down to village constables, were subject to dismissal from office.

Pew changes of importance were made in English local government under the first two Stuarts, and those made can be best noted in a description of the whole system as it existed in the early part of the seventeenth century, at the time when the first permanent English settlements were being made in America.

At the head of the county or shire were now two officials, the sheriff and the lord-lieutenant. The sheriff was the more important and was still an official of considerable power and much dignity, although the requirement of constant residence in the county and the expenditures made necessary by law and social customs were heavy burdens. Sheriffs in most cases were chosen by the King, each from a list of three, selected by the Privy Council, and by law the same man could not be appointed for two successive years. The duties of the sheriff were many and varied. Each month he held a county court for small civil cases, although this was a fast-waning institution. He presided also at the sessions of the county court for the election of members of Parliament, and here often wielded considerable influence on the result. At the semi-annual aissizes of the royal judges, the sheriff summoned juries, executed the judgments of the courts, had charge of the jail, and acted as local host to the visiting representatives of the Crown.

More dignified was the position of lord-lieutenant, which in some sense revived that of the Anglo-Saxon earl. This post was usually given to the highest nobleman with estates in the county, and appointments were not frequently changed. It was the main duty of the lord-lieutenant to supervise the local militia, which was called into service to suppress riots and the like, but other duties were added under the Stuarts.

Much less dignified and less powerful than either of these was the ancient office of coroner, filled by election in the county court. His functions were now mainly confined to the duty of investigating sudden deaths, and binding over for trial those indicated by the inquest jury. As a survival of his former importance the coroner under some circumstances took the place of the sheriff.

But the real work of county administration was now performed by the justices of the peace. There were from twenty to sixty of these in each county, chosen by the lord chancellor from the rural gentry. They were usually men of good family and of some ability and education, who discharged the burdensome duties practically without pay, but were recompensed by the social dignity and sense of authority conferred in the oflSce.

The powers and duties of the justices of the peace were so multifarious as to defy classification or simplicity of statement. A writer of the time names 293 statutes passed before 1603 in which justices are mentioned and given some jurisdiction and duties ; and 36 more were added in the reign of James I. Legal text-books on the subject required 500 or 600 pages to enumerate the list. Some of their functions were performed by individual justices, others by two or more acting jointly, and the most important by the justices in each county in their regular quarter sessions, held four times a year.

At the quarter sessions all of the justices in the county were presumed to attend, but in practice attendance was irregular and incomplete. One justice at least had to be from those known as the ** quorum,'* presumably those learned in law. There had a J so to be present the cusios rotulorum, or keeper of the rolls, who was apt to be the lord-lieutenant ; but he was usually represented by a deputy. In addition there was necessary the sheriff or his deputy, the jailor with his prisoners, the high constable and bailiffs, the coroners, jurors, and all persons committed for trial.

Primarily the quarter session was a court of criminal jurisdiction for the trial of all but the most petty and the most serious crimes. It was also the administratis board for the county, charged with the care of roads and bridges, county property and the levy of county taxes.

In petty sessions of two or more, the justices also performed both judicial and administrative functions. They had summary jurisdiction in petty cases, and single justices committed accused persons to trial before the higher courts. They granted licenses to ale-houses, regulated wages and apprenticeship, and punished ecclesiastical recusants. They were frequently called in to give special relief or to take other action in emergencies, while, in addition, they were constantly subject to the instructions of the Privy Council, whose communications became more frequent and more drastic from the end of the sixteenth century.

Some important functions which were to come within the sphere of civil administration in America, were under the control of the ecclesiastical courts, held in each diocese by the bishop or a judge ordinary appointed by him. These functions included substantially all matters connected with marriage and divorce, the proof of wills, the granting of letters of administration and of guardianship, and the administration of personal estates.

The hundred had become the least important admin- 13 istrative division of England. The sheriff continued to hold a desultory semi-annual *'tourn'' in each hundred, and the district was also used for the purposes of taxation, military organization and in the maintenance of peace. The high constables, chosen annually at the quarter sessions, were the only oflBcers of the hundred.

For the smallest administrative district the use of terms was confusing and often indiscriminate. Town or township was the most general term, applying to either manor or parish. Manors with their special privileges and duties were fast becoming obsolete; but courts leet and courts baron continued irregularly in a few places. The parish was now the most usual name for the smallest unit of local government; and the development of its functions, already described, made it an important district.

The most active and conspicuous oflScer of the parish was the constable, chosen in some places by the steward or lord of the manor, elsewhere by the court leet, by the vestry, or by the justices of the peace. Although charged with a long list of duties as peace oflScer on his own initiative, practically the constable was now simply the agent or instrument of the justices, for making arrests and executing warrants and judicial sentences, for collecting taxes, or for other purposes.

Other parish oflScials of some importance were the churchwardens chosen at a vestry meeting of the parishioners in Easter week of each year. They levied the local taxes imposed by the justices and those for parish purposes and were ex officio overseers of the poor.

A vestry clerk existed in some parishes, the prototype of the American town clerk. And there were many other petty officers such as beadles, sextons, haywards, ale-conners, way-wardens, sidesmen, synodomen, and questmen.

All of these parish officials were drawn from a lower social rank than the gentry who filled the posts in the county government. The offices in the rural parishes were usually given to copyholders, small retailers, artisans or even laborers. Their duties were simple and in most cases took but little time, so that, except for constables and a few others paid by fees, there was no payment attached to the offices.

It remains to describe the vestry meeting or general assembly of the parish. All inhabitants were ordinarily entitled to attend these meetings,— landowners, free tenants, copyholders, laborers, and even those who held land in the parish but lived elsewhere. But there is little evidence as to the actual practice. What records exist do not suggest an active assembly. The attendance consisted only of the more substantial members of the community and of the officers who had to present reports. The name vestry, taken from the small room where the meetings were held, indicates that only a few persons were usually present. Early in the seventeenth century it was customary to appoint in the open vestry a select committee to advise the parish officers, which suggests the selectmen of the New England towns. In England, however, in many parishes this committee came to fill vacancies in its own membership, and the select vestry— as it was called— developed into a close corporation, whose powers were later recognized as legal by prescription.

The whole system of local administration was under the control of an energetic national government; the bulk of active administration was performed by the county officials drawn from the propertied classes, but acting largely under instructions from above; while at the bottom was the parish with indefinite, but unutilized powers of self-government. It differed from the decentralization of the Anglo-Saxon period, and the feudal disorganization of the Plantagenet era, and also from the extreme centralization under the Norman kings. In form it was highly centralized, with sheriffs and justices appointed by the central government, and under the active supervision of the Privy Council. But the hierarchy of control was not systematically organized, as it might have beeiKhad the former authority of the sheriff been revivea. Moreover the local officers, instead of being trained and salaried, were usually unpaid and the most important were drawn from an independent class— the rural gentry— while the traditions of the offices went back to a time of large local autonomy.

Such were the local institutions with which the English colonists in America were familiar; and as was natural, most of them were introduced in the new colonies. But different conditions led to many important changes. The central government of England could not exercise direct control over minor officials at such a distance, and indirect control through the colonial governors was very ineffective. Many of the most important functions of local government in England, such as poor relief, were of no importance in the colonies. Other functions, such as education, became important. The class of rural gentry did not exist in America, and even with similar laws a different class of officials appeared. And as time went on additional changes were introduced from various causes. But the development of American local government is a continuous process from the English institutions of the first part of the seventeenth century.

Chapter II

In the European settlements established within the limits of the thirteen colonies, there was at first no distinction between the local and central government of each colony. But as population increased and spread over a larger area, special local institutions became necessary; and those established were naturally similar to those of the mother country. There were, however, important modifications of the English institutions almost from the beginning ; and other changes developed during the colonial period.

Virginia followed the English system most closely. The first subdivisions of this colony were styled plantations and hundreds, but there was no revival of the organization of the old English hundred. These early districts soon became de facto parishes; and before long the latter name became the more common, and new parishes were established from time to time. Each parish, as in England, was both an ecclesiastical and civil district, with a vestry, minister and churchwardens for the management of local affairs. The vestry consisted usually of twelve ** selected men," chosen at first by the parishioners, but later the practice of cooptation became established as in the ** select vestry*' of England.

But on the large scattered plantations which physical conditions made the economic unit in Virginia, many local matters were attended to by the owners ; there was little opportunity for political activity ; and before long the parish was overshadowed by the county as a district for local administration. In 1634 Virginia was divided into eight shires and new shires or counties were gradually organized. The county became the unit of representation in the colonial assembly, and the unit of military, judicial, highway and fiscal administration. The officers were the county lieutenant, the sheriff (who acted as collector and treasurer), justices of the peace and coroners. All were appointed by the governor of the colony on the recommendation of the justices, and the latter thus became a self-perpetuating body of aristocratic planters controlling the whole county administration. The justices also appointed the clerk of the monthly county court, who acted also as recorder of deeds; and each county had also a land surveyor, appointed by the surveyor-general of the colony.

Maryland was originally organized for purposes of local government, like the county palatine of Durham in England, with hundreds and manors as the subdivisions. But in 1650 three counties were established ; and new counties were organized from time to time. At the same time the hundred as a subdivision of the county was continued, and new districts of this name were organized for election, fiscal and military purposes. The erection of manors also continued until towards the close of the seventeenth century, but very soon after the transfer to a royal province the counties were subdivided into parishes. And during the eighteenth century a number of towns were created by special acts.* Thus, while the orgauization of hundreds and manors delayed the development of counties and parishes in Maryland, toward the end of the colonial period the local institutions tended to become more nearly like those in Virginia.

Outside of Maryland hundreds and manors had little permanent influence on local government. The name hundred appears in the early records of Virginia and Maine; and was permanently established in Delaware, where it was in fact a modified township. Manors were established in New York, and were provided on paper for Carolin^a.

In New England the main unit of local government was the town, although the county was also organized as in England. The notable development there of the town was due to various causes. It has been described as a revival of the early Germanic and Anglo-Saxon institutions, and analogies can be drawn in many features. But the historical connection is through the later English parish and manor, and there is no evidence of conscious imitation of older institutions. The recurrence of primitive conditions explain the reappearance of some similarities, but a more important factor was the system of settlement in compact communities (partly as a means of protection against Indian attacks) by groups of small landed proprietors, each of which formed at the same time a church congregation, while an underlying cause was the democratic philosophy of the Puritans, which aflPected

1 Mereness, '^Maryland as a Proprietary Province, " Ch. 6. 20 alike their economic, ecclesiastical and political organization.

The New England town has been described as a manor without a lord. But its activities included those of the English manor, the civil functions of the parish and many others. In addition to maintaining highways and caring for the poor, it supported public schools, regulated private business of every sort in most minute fashion, and was the unit for the assessment and collection of taxes, for militia organization and for representation in the colonial assemblies, and in some colonies, also for land records and judicial purposes. In most of the New England colonies some of the towns were older than the central government ; and in Connecticut and Rhode Island the latter was considered' more as a federation of towns than as a superior sovereign authority.

Control of town affairs was in the hands of the town meeting of the inhabitants, held in the early days with great frequency. Each town meeting organized itself by the election of a moderator. At the annual meeting a long list of town oflScers were elected,— but these were limited by the appropriations made, taxes levied, and by-laws passed by the town meeting, which thus retained an active supervision over every branch of local administration. The meeting resembled the assembly of freeholders and tenants in the manorial courts, without the presence of the lord's steward. It was clearly more democratic than the ** close vestry," and probably was more democratic in practice than the open vestry.

In England and Virginia large landed estates and 21 the Episcopalian Church system encouraged the rule of a small class, while in New England the small freeholders and Congregational Church system promoted a more popular participation. At the same time even in the New England towns there were leading families which exercised a large measure of influence in town affairs.

Most important of the town oflScers were the selectmen or townsmen, a committee of three to thirteen members, annually elected at the town meeting. This feature of the town government seems to have been a development from the committee or ** selected men," which formed a stage in the evolution of the select vestry in England and Virginia. But the New England selectmen were simply an executive body for the town meeting, and never became a close corporation, taking the place of the open meeting of all the inhabitants. Even where the same persons continued to fill the office from year to year, they were regularly elected at the town meeting, which issued instructions and formed an active center for discussion of their actions. In Rhode Island the body corresponding to the selectmen was known as the town council.