blance be Virginia into close English parish stripped of some of its civil functions. In ResemVirginia the parish as it existed in England was instituted, tween the although, on account of the peculiar circumstances of the English and young colony it. . . never possessed civil powers entirely parish; equal to those of the same institution in the mother country."1 Such local powers as the parish did possess were exercised by the vestry,2 a body generally composed of twelve members, who were originally elected by the parishioners themselves under the supervision of the sheriff. But as the vestrymen were elected for an indefinite term, and as it was provided by statute in 1661-62 that, in the event of the death or removal of any one of them, his place could be filled by the vestry itself,3 the governing body of the Virginia parish ceased to be representative, and like its English parent hardened into a close corporation. The executive officers of the parish were two both harder church wardens whom the vestry elected each year out of corporatheir own number. Every fourth year the vestry under the order of the county court divided the parish into precincts, in each of which two persons were appointed to "procession the lands, that is, to mark anew their boundaries. Twice at least in each year the vestry met to discharge its intermingled ecclesiastical and civil duties, chief among which was the laying of the annual levy to defray parish expenses. After the parish debts were computed the sum ascertained was divided by the number of tithable persons in the parish, and the sum thus apportioned to each family was paid by its head to the parish collector. It was also the duty of the vestry to hire ministers and to present them to the governor for induction, to provide glebes, parsonages, and salaries, to take charge of the poor, to bind out foundlings or bastards, to present to the court those who offended against good morals, and the like. In the early days, prior to the rise of towns, 1 Local Institutions of Va., p. 52. 2 In 1643 a statute was passed requiring a vestry to be held in every parish. See Hening, Stat., vol. i. p. 240. 8 See Laws in Force in 1769, p. 2; Hening, vol. ii. p. 44. 4 For the history of this process in England, see Sir T. Erskine May, Const. Hist., vol. ii. p. 461; for its history in Virginia, see Town and County Govt., p. 57. A partial remedy for this tions. The south functions; "The vestries . . represented all the local and municipal government there was in Virginia," 1 that is, all local government which was not supplied by the larger and more potential governing body — the county. County administration in Virginia, which was closely modern county: elled after that of England both in its civil and military aspects, was vested in the lieutenant, who under the honorary title of colonel was at the head of the militia, in the sheriff, the executive head of the county, and in the county court, which like its English prototype was charged not only with judicial but administrative functions. As finally organized, the county court consisted of eight or more justices or magistrates appointed by the governor, four of whom, one being of the "quorum," constituted a court for the dispatch its judicial of business. At the time of the Revolution the jurisdiction of the county court extended to all equity causes, and to all cases at common law which did not involve loss of life, limb, or outlawry, and to all matters involving the administration of estates and the care of orphans. In the exercise of its judicial functions it could employ both grand and petit jurors administra- according to the course of the common law.2 Chief among the administrative functions of the county court were its duty to lay the county rate to defray county expenses, to make in connection with the representatives from the parishes by-laws for the county, to build and keep in repair the courthouse, public bridges, and causeways, to keep the public roads in order and the water-ways free from obstructions, to license taverns, recommend inspectors of tobacco, to appoint surveyors of highways, and annually to present to the governor the names of three of its members from among whom a sheriff might be appointed for the ensuing year. The meeting of a tribunal which touched the life of the people at so many different points naturally excited general interest. "Court-day was a holiday for all the country side, especially in the fall and spring. From all directions came in the people on horseback, in wagons, and afoot. On the court-house tive. Court-day. 1 Hist. of Augusta County, p. 97. 8 As to its administrative functions, see Local Institutions of Va., pp. 92-97; Town and County Government, pp. 45 48. 1 in local or between green assembled, in indiscriminate confusion, people of all classes the hunter from the backwoods, the owner of a few acres, the grand proprietor, and the grinning, heedless negro. Old debts were settled and new ones made; there were auctions, transfers of property, and if election times were near, stump-speaking. Virginia had no town meeting as New England, but it had its familiar court-day." Such was the nature and influence of the southern county which in Virginia, and in the other agricultural states of the south and the southwest, dominated local administration as did the township in New England. The essential difference in local Difference organization between the northern and southern colonies was ganization therefore only that which exists between the compact organ- north and ization of an English town and the laxer organization of an south. English county. In both, the colonists grouped themselves together for local government upon the old plan, and yet under different circumstances; and both became not only training-schools for the new political life that was soon to come, but levelling-schools, in which were wiped out all inequalities arising out of prior distinctions of class or nobility of blood. When the appointed time came the indomitable spirit of the new American democracy, which the colonial towns and counties had nourished, went down to the battle of the Revolution; and, when the battle was won, it embodied itself in the constitution of the federal republic of the United States. Neither the New England town nor the southern county Incorporais in contemplation of American law a municipal corpora- England tion. Both belong to that class of public corporations known towns. as quasi,—a term used to denote the fact that the corporate body to which it is applied has not been completely organized as a full corporation. The status of a New England town whose government is administered by the townsmen themselves in town meeting, and through executive officers chosen by themselves, may be compared to that of an English borough that had won exemption from the jurisdictions. of the sheriff and the lord, with the right to establish an independent magistracy with a reeve or bailiff as its head, but 1 Local Institutions of Va., p. 90. 2 See Dillon, Municipal Corp., vol. i. pp. 91-107; Overseers of Poor, etc. v. Sears, 22 Pick., pp. 122, 130; Hooper v. tion of New which had not yet completed its municipal character by the election of a "mayor," whose appearance marked in the home land the final transition from the primitive system of township government to the new system in which the borough community appears as a communitas or corporation. A like transition takes place in New England whenever a town grows too large for its affairs to be conveniently administered by the whole body of freemen assembled in town Municipal meeting. A typical illustration of this process may be found history of Boston. in the case of Boston, whose affairs continued to be administered under the primitive system down to 1822, at which time its qualified voters numbered seven thousand. The inconveniences growing out of this state of things finally induced the townsmen to obtain a charter 1 vesting the government of the city in a mayor and elective council, according to the system adopted in London in the reign of Edward I. Impelled by the same reasons, other New England towns, following the lead of Boston, have given up the primitive communal system, which is purely democratic, for a municipal system purely representative.2 Not until a town community is duly incorporated, and the management of its affairs vested in a mayor and representative council, does it satisfy the American conception of a complete municipal corporation. Incorporation of southern towns. With the history of the English shire the history of the English town is closely interlaced. The Old-English town or borough was, in fact, nothing more than a subdivision of the shire, "in which men lived closer together than elsewhere; it was simply several townships packed tightly together; a hundred smaller in extent and thicker in population than other hundreds."3 The burgemot or hustings of the Old-English town was nothing but the hundred court in a slightly different form; its origin was the same, and its procedure substantially the same. The struggle of such a town for municipal existence may be roughly divided into 1 See Josiah Quincy's Municipal Hist. of Boston, pp. 28, 41; Dillon, vol. i. p. 101, and note. Although when the population of a town exceeds 10,000 or 12,000 it is usual for it to be incorporated as a city, "the town system is the general one; the city, or representative sytem, is the exceptional one," etc. - Dillon, vol. i. p. 101. See, also, Am. Political Ideas, p. 33. 8 Freeman, Norm. Cong., vol. v. p. 312. As to the identity of town and hundred in Virginia in the early days, see Local Institutions of Virginia, pp. 43-45. four stages: first, for emancipation from the jurisdiction of the sheriff; second, from that of the lord upon whose land the town had grown up; third, for the right to elect its own magistracy with a reeve or bailiff as its head; fourth, to elect in the place of the bailiff a "mayor," whose appearance completed the transition from the old system of township government to the new system in which the borough community appears as a communitas or corporation, which by the common law had the full right to regulate its own affairs without the aid of any statute.1 Through a similar though less complicated process the southern town or city usually acquires distinct municipal existence and virtual emancipation from the control of the southern county. The first step is taken whenever a settlement or village in any part of the county has become sufficiently populous to require a more strictly organized form of local administration than that supplied by the general county government. When that point is reached it is usual for the legislature to supply through general laws an inchoate form of incorporation to the new civic community sufficient for its needs during the intermediate period through which it must pass before it is prepared for complete municipal existence. Not until that stage of development is reached is it usual for the legislature, by the grant of a special charter, to raise it to the full dignity of a municipal corporation. corpora inherent taxation. The English self-governing communities which have mul- American tiplied so rapidly upon American soil have, in one serious tions posparticular, silently passed through a marked transformation sess no which seems so far to have escaped the attention of his- power of torians of American law. A great common law judge, in expounding the immemorial and inherent right of every English local community to tax itself for local purposes, has said that: "From time immemorial the counties, parishes, towns, and territorial subdivisions of the country have been allowed in England, and, indeed, required to lay rates on themselves for local purposes. . . . From the foundation of our government, colonial and republican, the necessary sums 1 See below, bk. iii. ch. i. § 3. 2 A good illustration of the process may be found in the legislation of Alabama. See Code of 1886, §§ 1486- |