for local purposes have been raised by the people or authorities at home. Court-houses, prisons, bridges, poor-houses, and the like, are thus built and kept up, and the expenses of maintaining the poor, and of prosecutions and jurors, are thus defrayed, and of late (in North Carolina) a portion of the common school fund, and a provision for the indigent insane are thus raised, while the highways are altogether constructed and repaired by local labor, distributed under the orders of the county magistrates. When, therefore, the constitution vests the legislative power in the general assembly, it must be understood to mean that power as it had been exercised by our forefathers, before and after their migration to this continent." It seems therefore to be clear that in the home land every English corporation possessed the immemorial and inherent power to impose taxes for local purposes without the aid or sanction of parliamentary authority; and such seems to have been the law in that American state in which the English customary law has had its purest and most scientific development. And yet the fact remains that it is now the settled doctrine of American law that no local corporation, municipal or quasi, has any inherent power to levy taxes for any purpose; "a municipal corporation has no inherent taxing power; the power it can rightfully exercise is that which the state may deem it expedient to delegate." 2 What general cause has been at work to bring about a change so momentous; and yet a change whose very presence seems to have escaped observation? After having sought in vain for a satisfactory solution of the problem at the hands of several of our most eminent authorities, the author has contented himself with the following explanation. From the beginning of our colonial history down to to-day Americans have been trained in the belief that legislative power- including the taxing power could only be exercised subject to the limita tions imposed first by the crown and then by the people upon the particular assembly by which such power was sought to be exercised. In the explanation hereafter to be made of the growth of constitutional limitations the fact will appear that the colonial assemblies could only legislate subject to 1 Ruffin, J., in Caldwell v. Justices, etc., 4 Jones (N. C.) Eq., p. 323. 2 Mobile & S. H. R. R. Co. v. Ken nerly, 74 Ala., p. 574. the limitations imposed by the crown in the charters by which such assemblies were created or recognized. When the tie which bound the colonies to the mother country was severed the sovereignty of the crown passed to the people of each state, who revested the legislative power in the state assembly subject to the limitations of the state constitution by which the royal charter was supplanted. When, upon the making of the federal constitution of the United States, this idea of a limited legislative authority, which had existed from the very beginning, was lifted into a higher sphere, it there crystallized into the principle that the federal assembly could legislate only in the execution of powers expressly delegated. In this way the doctrine gained fresh force that in America, as a general rule, no assembly-national or local-possesses any inherent power of taxation at all, — that the authority must come by express delegation from the people. This theory of delegation is the substructure of all the state constitutions which rest upon the principle that the whole legislative power of the state is delegated by the people to the state assembly, which must exercise such power subjected to the limitations of the state and federal constitutions. The American doctrine now is that the state assembly is the reservoir in which the people deposit the entire taxing power of the state, general and local. From this premise the conclusion is inevitable that local communities in America possess no inherent power of taxation, for the reason that the people of each local community by becoming parties to the state constitution thereby surrender the right of local taxation to the state assembly. Thus it comes to pass that every local corporation is, in contemplation of American law, a mere agent of the state, endowed with the right to exercise only such taxing power as the state may see fit to delegate. The representative branch of the English parliament is the outcome of the ancient local systems of election and representation immemorially imbedded in the organization of the shires and towns. When the crown found it convenient for financial reasons to summon to the great council representatives from the local communities, the undertaking was made easy by the fact that the shires and towns to which the writs were addressed had been so long familiar with the practice of Growth of colonial as semblies, out of the organiza tions of the counties and towns. election and representation in their local courts that they found no difficulty in applying it to the selection of representatives to speak for them in the councils of the king. Three centuries before the English settlements in America were made the representative system had thus been lifted in the home land from a lower to a higher sphere. When the English settlers in America organized themselves for local which arise purposes in shires and towns upon the old plan, they laid the foundations for that after-growth of representative assemblies which came into being as rapidly as the political wants of the several colonies required them. Such assemblies "were not formally instituted, but grew up by themselves, because it was in the nature of Englishmen to assemble." 2 Each colonial assembly has its own local and personal history, and yet in their broader outlines there is no great divergence between them. Each and every one was composed in whole or in part of representatives chosen in the local communities; and, excepting the assemblies of Pennsylvania, Delaware, and Georgia, which consisted of a single chamber, they all assumed a bicameral shape. In Connecticut, Rhode Island, and Massachusetts the assembly was composed of two houses, the upper being elected by the people at large, the lower by the towns. When the time came for severance from the mother country the first two did not find it necessary to make any change in the structure of their assemblies at all. In New Hampshire, New York, New Jersey, North Carolina, South Carolina, Georgia, Virginia, and Maryland, the colonial legislatures consisted of two houses, - the upper being the council appointed by the crown through the royal governor, the lower being a representative body elected by the people. When the Revolution came these lower houses, under the name of provincial congresses," assumed the powers of the state until, under the recommendation of the Continental Congress, the several colonies could establish independent gov They assume a bicameral shape. 1 Upon this whole subject, see below, bk. iii. ch. i. §§ 3, 4. 2 Seeley, The Expansion of England, p. 67. ware, 8 Under this recommendation DelaMaryland, New Hampshire, North Carolina, New Jersey, Pennsylvania, South Carolina, and Virginia adopted constitutions during the year 1776; Georgia and New York in 1777; Massachusetts in 1780. The charter granted to Connecticut in 1662 was continued as her organic law until 1818; while the charter granted to Rhode Island in 1663 was continued as her organic law down to 1842. ernments under formal written constitutions, in every one of which, with the exceptions of Pennsylvania and Georgia,1 the English bicameral system was reproduced. nies trans states, When the tie of political dependence which bound the col- The coloonies to the mother country was severed, the English prov- formed into inces in America rose to the full stature of sovereign states. sovereign "When the Revolution took place the people of each state became themselves sovereign." 2 And as soon as they "took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state." On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments "for maintenance of internal peace and the defence of their lives, liberties, and properties." Before the end of the year in which this recommendation was made, by far the greater part of the colonies had adopted written constitutions in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvellous process of growth through which which are the English colonies in America were rapidly developed into reproduca group of independent commonwealths in which each indi- tions of the vidual member was, in its organic structure, a substantial re- kingdom. production of the English kingdom. With the adoption of the written constitutions of 1776, the typical English state in America reached its full growth. When the offspring is compared with the parent, when the English state in America is compared with the English state in Britain,5 the resemblance is too close for the relationship to escape the most careless observer. In both, the political substructure is the samethe ancient Teutonic system of local, self-governing communities composed of the township, the hundred, and the shire. In each, municipal organization rests upon substantially the same foundation. So far as central organization is concerned, 1 In 1789 Georgia adopted the bicameral plan; in 1790, Pennsylvania. 2 Taney, C. J., in Martin et. al. v. The Lessee of Waddell, 16 Peters, p. 410. 8 Ibid., p. 416. 4 See Charters and Constitutions, vol. i. p. 3. 5 I can here say with Professor Seeley, "By England I mean solely the state or political community which has its seat in England.” — The Expansion of Eng., p. 7. substantial English Legislative department. tional limi every American state is a mere reproduction of the central organization of the English kingdom with such modifications as have necessarily resulted from the abolition of nobility, feudality, and kingship. In the new as in the old the central powers of the state are divided into the three departments — legislative, executive, and judicial — which, in the same qualified sense, are separate and distinct from each other.1 So far as the legislative department is concerned, the English bicameral system everywhere reappeared. Our houses of representatives are nothing but the house of commons over again, while our state senates represent the house of lords with the elective principle substituted in lieu of hereditary right.2 The resemblance extends, however, far beyond the mere form of the assembly. It has ever been an elementary principle of American constitutional law that every state legislature is endowed by its very nature with the omnipotence of the English parliament, save so far as that omnipotence is reConstitu- strained by the express terms of constitutional limitations 3. an American invention which rests upon the doctrine of the American sovereignty of the people as distinguished from the sovereignty of parliament. Such limitations naturally arose out of the process of historic development through which Amercan legislatures came into existence. From the very beginning the powers of the colonial assemblies were more or less limited through the terms of the charters by which such assemblies were either created or recognized. And even in colonial times, "Questions sometimes arose whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, tations an invention. 1 The English maxim as to the division of powers was followed in the structure of the state constitutions only in the limited and qualified sense in which it was understood in England. See Federalist, No. xlvi. Dawson's ed., Pp. 334-342. In the light of Madison's exposition I cannot see how Mr. Fiske can suppose that there was a "misconception" upon this subject in the minds of the framers either of the state or federal constitutions. The "literary theory" of the English constitution misled neither Madison nor Hamilton. .. See The Critical Period, etc., pp. 289292. 2 The ordinary judicial powers of the house of lords were everywhere cut off, except in New York, where the senate was made a supreme court of appeal. 8 See Cooley's Const. Lim., p. 107 (5th ed.), and cases cited; Mangan v. State, 76 Ala., p. 60; Davis v. State, 68 Ala., p. 58. See Democracy in America, vol. i pp. 123-130; Cooley's Const. Lim, ch. vii. |