Civil government in the United States : considered with some reference to its origins

Front matter

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OUTLINES OF COSMIC PHILOSOPHY. Based on the Doctrine of Evolution, with Criticisms on the Positive Philosophy. Tsth Edition. 2 vols., 8vo, J6.00

THE UNSEEN WORLD, and other Essays, ijth Edition. i2mo, J2.00.

Preface

Some time ago, my friends, Messrs. Houghton, Mifflin & Co., requested me to write a small book on Civil Government in the United States, which might be useful as a text-book, and at the same time serviceable and suggestive to the general reader interested in American history. In preparing the book certain points have been kept especially in view, and deserve some mention here.

It seemed desirable to adopt a historical method of exposition, not simply describing our political institutions in their present shape, but pointing out their origin, indicating some of the processes through which they have acquired that present shape, and thus keeping before the student's mind the fact that government is perpetually undergoing modifications in adapting itself to new conditions. Inasmuch as such gradual changes in government do not make themselves, but are made by men — and made either for better or for worse — it is obvious that the history of political institutions has serious lessons to teach us. The student should as soon as possible come to understand that every institution is the outgrowth of experiences. One probably gets but little benefit from abstract definitions and axioms concerning the rights of men and the nature of civil society, such as we often find vi PREFACE.

at the beginning of books on government. Metaphysical generalizations are well enough in their place, but to start with such things — as the French philosophers of the eighteenth century were fond of doing — is to get the cart before the horse. It is better to have our story first, and thus find out what government in its concrete reality has been, and is. Then we may finish up with the metaphysics, or do as I have done — leave it for somebody else.

I was advised to avoid the extremely systematic, intrusively symmetrical, style of exposition, which is sometimes deemed indispensable in a book of this sort. It was thought that students would be more likely to become interested in the subject if it were treated in the same informal manner into which one naturally falls in giving- lectures to young people. I have endeavoured to bear this in mind without sacrificing that lucidity in the arrangement of topics which is always the supreme consideration. For many years I have been in the habit of lecturing on history to college students in different parts of the United States, to young ladies in private schools, and occasionally to the pupils in high and normal schools, and in writing this little book I have imagined an audience of these earnest and intelligent young friends gathered before me.

I was especially advised — by my friend, Mr. James MacAlister, superintendent of schools in Philadelphia, for whose judgment I have the highest respect — to make it a little book, less than three hundred pages in length, if possible. Teachers and pupils do not have time enough to deal properly with large treatises. Brevity, therefore, is golden. A concise manual is the desideratum, touching lightly upon the various points, bringing out their relationships distinctly, and

PREFACE. vii

referring to more elaborate treatises, monographs, and documents, for the use of those who wish to pursue the study at greater length.

Within limits thus restricted, it will probably seem strange to some that so much space is given to the treatment of local institutions, — comprising the governments of town, county, and city. It may be observed, by the way, that some persons apparently conceive of the state also as a " local institution." In a recent review of Professor Howard's admirable " Local Constitutional History of the United States," we read, " the first volume, which is all that is yet published, treats of the development of the township, hundred, and shire ; the second volume, we suppose, being designed to treat of the State Constitutions." The reviewer forgets that there is such a subject as the " development of the city and local magistracies " (which is to be the subject of that second volume), and lets us see that in his apprehension the American state is an institution of the same order as the town and .county. We can thus readily assent when we are told that " many youth have grown to manhood with so little appreciation of the political importance of the State as to believe it nothing more than a geographitcal division." ^ In its historic genesis, the American state is not an institution of the same order as the town and county, nor has it as yet become depressed or " mediatized " to that degree. The state, while it does not possess such attributes of sovereignty as were by our Federal Constitution granted to the United States, does, nevertheless, possess many very important and essential characteristics of a sovereign body, as is here pointed out on pages 172-177. The study of our state governments is inextricably wrapped

1 Young's Government Class Book, p. iv.

Viu PREFACE.

up with the study of our national government, in such wise that both are parts of one subject, which cannot be understood unless both parts are studied. Whether in the course of our country's future development we shall ever arrive at a stage in which this is not the case, must be left for future events to determine. But, if we ever do arrive at such a stage, " American institutions " will present a very different aspect from those with which we are now familiar, and which we have always been accustomed (even, perhaps, without always understanding them) to admire.

The study of local government properly includes town, county, and city. To this part of the subject I have devoted about half of my limited space, quite unheedful of the warning which I find in the preface of a certain popular text-book, that " to learn the duties of town, city, and county officers, has nothing whatever to do with the grand and noble subject of Civil Government," and that " to attempt class drill on petty town and county offices, would be simply burlesque of the whole subject." But, suppose one were to say, with an air of ineffable scorn, that petty experiments on terrestrial gravitation and radiant heat, such as can be made with commonplace pendulums and tea-kettles, have nothing whatever to do with the grand and noble subject of Physical Astronomy! Science would not have got very far on that plan, I fancy. The truth is, that science, while it is perpetually dealing with questions of magnitude, and knows very well what is large and what is small, knows nothing whatever of any such distinction as that between things that are " grand " and things that are " petty." When we try to study things in a scientific spirit, to learn their modes of genesis and their present aspects, in order that we may foresee their tendencies,

PREFACE. ix

and make our volitions count for something in modifying them, there is nothing which we may safely disregard as trivial. This is true of whatever we can study ; it is eminently true of the history of institutions. Government is not a royal mystery, to be shut ofp, like old Deiokes,^ by a sevenfold wall from the ordinary business of life. Questions of civil government are practical business questions, the principles of which are as often and as forcibly illustrated in a city council or a county board of supervisors, as in the House of Representatives at Washington. It is partly because too many of our citizens fail to realize that local government is a worthy study, that we find it making so much trouble for us. The " bummers " and " boodlers " do not find the subject beneath their notice ; the Master who inspires them is wide awake and — for a creature that divides the hoof — extremely intelligent.

It is, moreover, the mental training gained through contact with local government that enables the people of a community to conduct successfully, through their representatives, the government of the state and the nation. And so it makes a great deal of difference whether the government of a town or county is of one sort or another. If the average character of our local governments for the past quarter of a century had been quite as high as that of the Boston town-meeting or the Virginia boards of county magistrates, in the days of Samuel Adams and Patrick Henry, who can doubt that many an airy demagogue, who, through session after session, has played his pranks at the national capital, would long ago have been abruptly recalled to his native heath, a sadder if not a wiser man ? We cannot expect the nature of the aggregate to be

^ Herodotus, i. 98.

X PREFACE.

much better than the average natures of its units. One may hear people gravely discussing the difference between Frenchmen and Englishmen in political efficiency, and resorting to assumed ethnological causes to explain it, when, very likely, to save their lives they could not describe the difference between a French commune and an English parish. To comprehend the interesting contrasts between Gambetta in the Chamber of Deputies, and Gladstone in the House of Commons, one should begin with a historical inquiry into the causes, operating through forty generations, which have frittered away self-government in the rural districts and small towns of France, until there is very little left. If things in America ever come to such a pass that the city council of Cambridge must ask Congress each year how much money it can be allowed to spend for municipal purposes, while the mayor of Cambridge holds his office subject to removal by the President of the United States, we may safely predict further extensive changes in the character of the American people and their government. It was not for nothing that our profoundest political thinker, Thomas Jefferson, attached so much importance to the study of the township.

In determining the order of exposition, I have placed local government first, beginning with the township as the simplest unit. It is well to try to understand what is near and simple, before dealing with what is remote and complex. In teaching geography with maps, it is wise to get the pupil interested in the streets of his own town, the country roads running out of it, and the neighbouring hills and streams, before burdening his attention with the topographical details of Borrioboola Gha. To study grand generalizations about government, before attending to such of

PREFACE. XI

its features as come most directly before us, is to run the risk of achieving a result like that attained by the New Hampshire school-boy, who had studied geology in a text-book, but was not aware that he had ever set eyes upon an igneous rock.

After the township, naturally comes the county. The city, as is here shown, is not simply a larger town, but is much more complex in organization. Historically, many cities have been, or still are, equivalent to counties ; and the development of the county must be studied before we can understand that of the city. It has been briefly indicated how these forms of local government grew up in England, and how they have become variously modified in adapting themselves to different social conditions in different parts of the United States.

Next in order come the general governments, those which possess and exert, in one way or another, attributes of sovereignty. First, the vai'ious colonial governments have been considered, and some features of their metamorphosis into our modern state governments have been described. In the course of this study, our attention is called to the most original and striking feature of the development of civil government upon American soil, — the written constitution, with the accompanying power of the courts in certain cases to annul the acts of the legislature. This is not only the most original feature of our government, but it is in some respects the most important. Without the Supreme Court, it is not likely that the Federal Union could have been held together, since Congress has now and then passed an act which the people in some of the states have regarded as unconstitutional and tyrannical ; and in the absence of a judicial method of settling such questions, the only available xu PREFACE.

remedy would have been nuUificatioii. I have devoted a brief chapter to the origin and development of written constitutions, and the connection of our colonial charters therewith.

Lastly, we come to the completed structure, the Federal Union ; and by this time we have examined so many points in the general theory of American government, that our Federal Constitution can be more concisely described, and (I believe) more quickly understood, than if we had made it the subject of the first chapter instead of the last. In conclusion, there have been added a few brief hints and suggestions with reference to our political history. These remarks have been intentionally limited. It is no part of the purpose of this book to give an account of the doings of political parties under the Constitution. But its study majT^ fitly be supplemented by that of Professor Alexander Johnston's " History of American Politics."

This arrangement not only proceeds from the simpler forms of government to the more complex, but it follows the historical order of development. From time immemorial, and down into the lowest strata of savagery that have come within our ken, there have been clans and tribes ; and, as is here shown, a township was originally a stationary clan, and a county was originally a stationary tribe. There were townships and counties (or equivalent forms of organization) before there were cities. In like manner there were townships, counties, and cities long before there was anything in the world that could properly be called a state. I have remarked below upon the way in which English shires coalesced into little states, and in course of time the English nation was formed by the union of such little states, which lost their

PREFACE. xiu

statehood (i. e,, their functions of sovereignty, though not their self-government within certain limits) in the process. Finally, in America, we see an enormous nationality formed by the federation of states which partially retain their statehood; and some of these states are themselves of national dimensions, as, for example, New York, which is nearly equal in area, quite equal in population, and far superior in wealth, to Shakespeare's England.

In studying the local institutions of our different states, I have been greatly helped by the " Johns Hopkins University Studies in History and Politics," of which the eighth annual series is now in course of publication. In the course of the pages below I have frequent occasion to acknowledge my indebtedness to these learned and sometimes profoundly suggestive monographs ; but I cannot leave the subject without a special word of gratitude to my friend. Dr. Herbert Adams, the editor of the series, for the noble work which he is doing in promoting the study of American history.

It had always seemed to me that the mere existence of printed questions in text-books proves that the publishers must have rather a poor opinion of the average intelligence of teachers ; and it also seemed as if the practical effect of such questions must often be to make the exercise of recitation more mechanical for both teachers and pupils, and to encourage the besetting sin of " learning by heart." Nevertheless, there are usually two sides to a case ; and, in deference to the prevailing custom, for which, no doubt, there is much to be said, full sets of questions have been appended to each chapter and section. It seemed desirable that such questions should be prepared by some one especially familiar with the use of schoolxiv PREFACE.

books ; and for these I have to thank Mr. F. A. Hill, Head Master of the Cambridge English High School. I confess that Mr. Hill's questions have considerably modified my opinion as to the merits of such apparatus. They seem to add very materially to the usefulness of the book.

It will be observed that there are two sets of these questions, entirely distinct in character and purpose. The first set — " Questions on the Text " — is appended to each section, so as to be as near the text as possible. These questions furnish an excellent topical analysis of the text.^ In a certain sense they ask " what the book says," bui the teacher is advised emphatically to discourage any such thing as committing the text to memory. The tendency to rote-learning is very strong. I had to contend with it in teaching history to seniors at Harvard twenty years ago, but much has since been done to check it through the development of the modern German seminary methods. (For an explanation of these methods, see Dr. Herbert Adams on " Seminary Libraries and University Extension," J. H. U. Studies, V., xi.) With younger students the tendency is of course stronger. It is only through much exercise that the mind learns how to let itself — as Matthew Arnold used to say — " play freely about the facts."

In order to supply the pupil with some wholesome exercise of this sort, Mr. Hill has added, at the end of each chapter, a set of " Suggestive Questions and Directions." Here he has thorouglily divined the purpose of the book and done much to further it.

1 " This," says Mr. Hill, " will please those who prefer the topical method, while it does not forbid the easy transformation of topics to questions, which others may demand."

In the table of contents I have made a pretty full topical analysis of the book, which may prove useful for comparison with Mr. Hill's.

PREFACE. XV

Problems or cases are suggested for the student to consider, and questions are asked which cannot be disposed of by a direct appeal to the text. Sometimes the questions go quite outside of the text, and relate to topics concerning which it provides no information whatever. This has been done with a purpose. The pupil should learn how to go outside of the book and gather from scattered sources information concerning questions that the book suggests. In other words, he should begin to learn hoio to make resea7'ches, for that is coming to be one of the useful arts, not merely for scholars, but for men and women in many sorts of avocations. It is always useful, as well as ennobling, to be able to trace knowledge to its sources. Work of this sort involves more or less conference and discussion among classmates, and calls for active aid from the teacher ; and if the teacher does not at first feel at home in these methods, practice will nevertheless bring familiarity, and will prove most wholesome training. For the aid of teachers and pupils, as well as of the general reader who wishes to pursue the subject, I have added a bibliographical note at the end of each chapter, immediately after Mr. Hill's " Suggestive Questions and Directions."

This particular purpose in ray book must be care fully borne in mind. It explains the omission of many details which some text-books on the same sub ject would be sure to include. To make a manual complete and seK-sufficing is precisely what I have not intended. The book is designed to be suggestive and stimulating, to leave the reader with scant information on some points, to make him (as Mr. Samuel Weller says) " vish there wos more," and to show him how to go on by himself. I am well aware that, in making an experiment in this somewhat new direction.

XVI PREFACE.

iiothiug is easier than to fall into errors of judgment. I can hardly suppose that this book is free from such errors ; but if in spite thereof it shall turn out to be in any way helpful in bringing the knowledge and use of the German seminary method into our higher schools, I shall be more than satisfied.

Just here, let me say to young people in all parts of our country : — If you have not already done so, it would be well worth while for you to organize a debating society in your town or village, for the discussion of such historical and practical questions relating to the government of the United States as are suggested in the course of this book. Once started, there need be no end of interesting and profitable subjects for discussion. As a further guide to the books you need in studying such subjects, use Mr. W. E. Foster's " References to the Constitution of the United States," the invaluable pamphlet mentioned below on page 277. If you cannot afford to buy the books, get the public library of your town or village to buy them ; or, perhaps, organize a small special library for your society or club. Librarians wiU naturally feel interested in such a matter, and will often be able to help with advice. A few hours every week spent in such wholesome studies cannot fail to do much toward the political education of the local community, and thus toward the general improvement of the American people. For the amelioration of things will doubtless continue to be ef= fected in the future, as it has been effected in the past, not by ambitious schemes of sudden and universal reform (which the sagacious man always suspects, just as he suspects all schemes for returning a fabulously large interest upon investments), but by the gradual and cumulative efforts of innumerable in-

PREFACE. xvn

dividuals, each doing something- to help or instruct those to whom his influence extends. He who makes two clear ideas grow where there was only one hazy one before, is the true benefactor of his species.

In conclusion, I must express my sincere thanks to Mr. Thomas Emerson, superintendent of schools in Newton, for the very kind interest he has shown in my work, in discussing its plan with me at the outset, in reading the completed manuscript, and in offering valuable criticisms.

Cambridge, August 5, 1890.

>7~

Chapter I. Taxation And Goveenment

FAfiS

« Too much taxes " 1, 2

What is taxation ? 3

Taxation and eminent domain 4

What is government ? 5

The " ship of state " 6

" The government " 6

Whatever else it may be, " the government " is the power

which imposes taxes 7

Difference between taxation and robbery .... 8

Sometimes taxation is robbery 9

The study of history is full of practical lessons, and helpful

to those who would be good citizens . . . 9, 10

Perpetual vigilance is the price of liberty ... 11

Suggestive Questions and Directions . . 12-14 Bibliographical Note 14, 15

CHAPTER II. THE township

The most ancient and simple form of government . . 16 New England settled by church congregations . . 16, 17 Policy of the early Massachusetts government as to land grants 17

XX CONTENTS.

Smallness of the farms 18

Township and village 18

Social position of the settlers 19

The town-meeting 19

Selectmen ; town-clerk 20

Town-treasurer ; constables ; assessors of taxes and overseers of the poor 21

Act of 1647 establishing public schools . . . .22

School committees 22, 23

Field-drivers and pound-keepers ; fence-viewers ; other

town officers 23, 24

Calling the town-meeting 24

Town, county, and state taxes 25

Poll-tax 25

Taxes on real-estate ; taxes on personal property . . 26 When and where taxes are assessed .... 26, 27

Tax-lists 27

Cheating the government 28

The rate of taxation 28

Undervaluation; the burden of taxation .... 29

The " magic-fund " delusion 30

Educational value of the town-meeting .... 31

By-laws . . .31

Power and responsibility . 32

There is nothing especially American, democratic, or meritorious about " rotation in office " . . . . .32 Questions on the Text 32-34

Town-meetings in ancient Greece and Rome . . .34

Clans ; the viark and the tun 35

The Old-English township, the manor, and the parish 36, 37 The vestry-meeting ........ 37

Parish and vestry clerks; beadles, waywardens, hay wards, common-dl'ivers, churchwardens, etc. . . . .38

Transition from the English parish to the New England

township 38, 39

Building of states out of smaller political units . . 39 Representation; shire-motes; Earl Simon's Parliament . 46 The township as the "unit of representation" in the shire-mote and in the General Court . . . . . 41 Contrast with the Russian village-community which is not represented in the general government . - .42

CONTENTS. XXI

Chapter III. The County

§ 1. The County in its Beginnings.

Why do we have counties ? 48

Clans and tribes 49

The English nation, like the American, grew out of the

union of small states 49, 50

Ealdorman and sheriff; shire-mote and county court 50, 51 The coroner, or " crown officer "..... 51, 52 Justices of the peace ; the Quarter Sessions ; the lord lieutenant 52

Decline of the English county ; beginnings of counties in

Massachusetts 53

§ 2. The Modern County in Massachusetts.

County commissioners, etc. ; shire-towns and court-houses 55 Justices of the peace, and trial justices .... 55, 56

The sheriff 56

Virginia sparsely settled ; extensive land grants to individuals 57, 58

Navigable rivers ; absence of towns ; slavery ... 68 Social position of the settlers ...... 59

Virginia parishes ; the vestry was a close corporation 59, 60

Powers of the vestry 60

The county was the unit of representation . . . .61 The county court was virtually a close corporation . . 61, 62

The county-seat, or Court House 62

Powers of the court ; the sheriff 63

The county-lieutenant ........ 64

Contrast between old Virginia and old New England, in respect of local government ...... G4, 65 xxil CONTENTS.

Jefferson's opinion of township government . . .65

" Court-day " in old Virginia . . . . , . 65, 66 Virginia has been prolific in great leaders . . . 66, 67

Suggestive Questions and Directions . . 68-70 Bibliographical Note 70

Chapter IV. Township And County

§ 1. Various Local Systems.

Parishes in South Carolina . . . . . . .71

The back country ; the " regulators " 72

The district system 72, 73

The modern South Carolina county 73, 74

The counties are too large 74

Tendency of the school district to develop into something like a township ........ 74

Local institutions in colonial Maryland ; the hundred . . 75 Clans ; brotherhoods, or phratries ; and tribes . . 75 Origin of the hundred ; the hundred court ; the high constable 76

Decay of the hundred ; hundred-meeting in Maryland . 77 The hundred in Delaware ; the levy court, or representative county assembly ....... 78

The old Pennsylvania county 78

Town-meetings in New York ...... 79

The county board of supervisors 79, 80

Westward movement of population along parallels of latitude 81

Method of surveying the public lands . . . 81-83

Origin of townships in the West 83

Formation of counties in the West .... 84, 85

Some effects of this system ...... 85

The reservation of a section for public schools . . .86 In this reservation there were the germs of township government ...... .... 87

CONTENTS. xxiii

But at first the county system prevailed . . . 87, 88 Questions on the Text ..... 88

§ 3. The Representative Township-County System in the West. The town-meeting in Michigan ...... 89

Conflict between township and county systems in Illinois 89, 90

Effects of the Ordinance of 1787 90

Intense vitality of the township system . . . . 91 County option and township option in Missouri, Nebraska,

Minnesota, and Dakota 91, 92

Grades of township government in the West . . .92 An excellent result of the absence of centralization in the

United States 93

Effect of the self-governing school district in the South, in

preparing the way for the self-governing township . . 94 Woman-suffrage in the school district . . . . 94, 95

Suggestive Questions and Directions . . 96-98 Bibliographical Note 98

Chapter V

the city.

Summary of the foregoing results ; township government is direct, county government is indirect ... 99

Representative government is necessitated in a county by the extent of territory, and in a city by the multitude of people 100, 101

Josiah Quiney's account of the Boston town-meeting in 1830 101, 102

Distinctions between towns and cities in America and in

England 102, 103

§ 2. Origin of English Boroughs and Cities.

Origin of the chesters and casters in Roman camps . . 104

Coalescence of towns into fortified boroughs . . 104, 105

The borough as a hundred ; it acquires a court . . . 105

The borough as a county ; it acquires a sheriff , 105, 106

XXIV CONTENTS.

Government of London under Henry I. , . . , 106 The guilds ; the town guild, and Guild Hall . . 106, 107 Government of London as perfected in the thirteenth century ; niayor, aldermen, and common council . . 107, 108 The city of London, and the metropolitan district . . 108 English cities were for a long time the bulwarks of liberty 109 Simon de Montfort and the cities ..... 110

Oligarchical abuses in English cities, beginning with the

Tudor period 110

The Municipal Reform Act of 1835 Ill

Government of the city of New York before the Revolution Ill, 112

Changes after the Revolution . . . . . 112, 113 City government in Philadelphia in the eighteenth century 113, 114