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JOHNS  HOPKINS  UNIVERSITY  STUDIES 

IN 

HISTORICAL  AND  POLITICAL  SCIENCE 

HERBERT  B.  ADAMS,  EDITOR 


History  is  past  Politics  and  Politics  present  History.- freeman 

EXTRA  VOLUME 
IV 


"  But  when  several  families  are  united,  and  the  association  aims  at  something  more 
than  the  supply  of  daily  needs,  then  comes  into  existence  the  village  .  .  .  When  several 
villages  are  united  in  a  single  community,  .  .  .  the  state  comes  into  existence  .  .  . 
Seeing  then  that  the  state  is  made  up  of  households,  before  speaking  of  the  state,  we  must 
speak  of  the  management  of  the  household." — Aristotle  (Jowett). 

"Wherever  the  primitive  condition  of  an  Aryan  race  reveals  itself  either  through 
historical  records  or  through  the  survival  of  its  ancient  institutions,  the  organ  which  in 
the  elementary  group  corresponds  to  what  we  call  the  legislature,  is  everywhere  discern- 
ible. It  is  the  Village  Council  .  .  .  From  this  embryo  have  sprung  all  the  most  famous 
legislatures  of  the  world." — Maine. 

"  Die  Hunderte  is>t,  insofern  ihr  eben  urspriinglich  Zahlverhaltnisse  zu  Grunde  liegen, 
nicht  so  naturlich  und  frei  erwachsen,  wie  die  Dorfschaft  auf  der  einen,  die  Landschaft 
auf  der  andern  Seite.  Sie  hat  etwas  gemachtes,  mechaniscb.es  an  sich.  Sie  ist  eine 
Abtheilung  des  Volks  und  Staats  fur  bestimmte  Zwecke." —  Waitz. 

"  If  the  shire  be  the  ancient  under-kingdom,  or  the  district  whose  administrative  system 
is  created  in  imitation  of  that  of  the  under-kingdom,  the  shiremoot  is  the  folkmoot  in  a 
double  sense,  not  merely  the  popular  court  of  the  district,  but  the  chief  council  of  the 
ancient  nation  who  possessed  that  district  in  independence,  the  witenagemot  of  the  pre- 
heptarchic  kingdom." — Stubbs. 

"Kenner  des  englischen  Staatswesens  sind  heute  wohl  einverstanden,  dass  es  nicht 
ausreichend  ist  imrner  nur  das  Parlament  im  Auge  zu  haben  ;  dass  die  Darstellungen  der 
Constitutional  Law  in  Blackstone,  seinen  Nachfolgern  und  Bearbeitern  unvollstandig 
sind  und  Haupttheile  der  Verfassung  gar  nicht  enthalten." — Gneist. 


AN  INTRODUCTION 


TO    THE 


Local  Constitutional  History 


OF    THE 


UNITED  STATES 


BY 

GEORGE  E.  HOWARD 

Professor  of  History  in  the   University  of  Nebraska 


Vol.  I 
Development  of  the  Township,  Hundred,  and  Shire 


BALTIMORE 

PUBLICATION  AGENCY  OF  THE  JOHNS  HOPKINS  UNIVERSITY 
1889 


TS 


COPYRIGHT,  1889,  BY  N.  MURRAY. 


w  * 

JOHN   MI 


JOHN  MURPHY  &  CO.,  PRINTERS. 
BA  LTIMORE. 


PREFACE 


Since  the  appearance  of  Freeman's  Comparative  Politics  the 
theory  of  an  English  local  constitution  whose  origin  is  coeval 
with  the  origin  of  the  race  has  become  familiar  to  every  scholar. 
In  that  work  the  real  extent  and  the  real  limitations  of  our  com- 
mon Aryan  heritage  were  first  disclosed.  Already  an  extensive 
monographic  literature,  every  day  increasing,  bears  witness  to  the 
high  value  set  upon  the  study  of  local  institutions. 

But  it  is  a  noteworthy  fact  that  local  constitutional  history,  as 
a  unity  deserving  of  sustained  and  comprehensive  treatment,  has 
as  yet  found  few  expounders.  Bishop  Stubbs,  it  is  true,  in  his 
account  of  the  higher  organism  has  assigned  to  the  lower  its 
proper  space  and  rank.  George  Waitz  has  rendered  a  similar 
service  for  Germany ;  and  the  evolution  of  the  mark,  village,  and 
other  communities  on  the  Continent,  has  been  described  at  great 
length  by  George  L.  v.  Maurer.  But  the  treatise  of  Dr.  Gneist 
is  the  only  work  of  first  rate  importance  which  has  yet  been 
devoted  exclusively  to  the  history  of  local  self-government  in 
England.  This  book,  however,  is  a  practical  demonstration  that 
the  history  of  the  local  constitution,  for  weight  and  dignity,  may 
rightly  take  its  place  on  a  level  with  that  of  the  state  itself. 

No  compendious  treatise  on  the  development  of  local  institutions 
in  the  United  States  has  yet  appeared.  Indeed,  until  recently, 
the  attempt  to  produce  such  a  work,  if  not  premature,  would  at 
least  have  proved  extremely  difficult.  Even  now,  notwithstanding 

v 


vi  Preface. 

the  rapid  progress  of  investigation  during  the  past  few  years,  I  am 
oppressed  by  the  consciousness  that  this  effort  to  perform  the 
task  is  far  from  being  entirely  satisfactory.  And  it  must  have 
been  unsatisfactory  in  some  degree,  though  undertaken  by  hands 
much  more  skilful  than  my  own.  For  the  field  is  so  vast,  the 
differentiated  organic  forms  and  administrative  devices  so  various, 
that  an  ideal  general  history  cannot  be  written  until  every  part  of 
the  territory  has  been  minutely  explored  by  separate  investigators. 

This  book  is  intended  simply  as  a  general  introduction  to  the 
study  of  our  local  constitution.  It  is  not  designed  to  render 
unnecessary  the  special  treatment  of  the  subject  for  any  locality. 
On  the  contrary,  here  is  a  rich  field  in  which  many  laborers  may 
find  profitable  employment.  The  institutional  history  of  every 
state — not  merely  an  analysis  of  its  present  civil  government — 
ought  to  be  written.  And  if  it  were  written  from  a  full  mind, 
competent  to  bring  it  into  its  proper  relations  with  the  past  and 
the  present  on  both  sides  the  ocean,  it  would  constitute  a  most 
valuable  and  not  uninteresting  addition  to  our  literature. 

To  all  who  have  assisted  me  in  any  way  during  the  progress  of 
this  work,  I  desire  to  express  my  thanks. 

Among  those  who  have  given  me  information  in  reply  to  letters 
of  inquiry,  I  wish  particularly  to  acknowledge  the  kindness  of  Hon. 
P.  F.  McClure,  Commissioner  of  Immigration  and  Statistics  for 
Dakota,  Hon.  Michael  Shoemaker,  Chairman  of  the  Committee 
of  Historians  of  the  Michigan  Pioneer  and  Historical  Society, 
and  Mrs.  Stephen  B.  Weeks,  of  Chapel  Hill,  North  Carolina. 
For  the  loan  of  valuable  books,  I  am  indebted  to  Messrs.  S.  T. 
Viele,  of  Buffalo,  Charles  L.  Smith,  Instructor  in  History  at  the 
Johns  Hopkins  University,  R.  C.  Davis,  Librarian  of  Michigan 
University,  Addison  Van  Name,  Librarian  of  Yale  College,  and 
Mellen  Chamberlain,  Librarian  of  the  Boston  Public  Library. 
Through  the  courtesy  of  Mr.  Charles  M.  Andrews,  I  have  had 
the  advantage  of  reading  the  manuscript  of  his  forthcoming 


Preface.  vii 

monograph  on  Anglo-Saxon  Manorial  Life,  a  thorough  study  of 
the  subject  from  the  sources. 

I  am  under  obligations  to  Mr.  S.  L.  Geisthardt  and  to  Mr. 
Jesse  H.  Holmes  for  the  investigation  of  certain  local  questions 
respectively  in  Connecticut  and  Virginia.  And  for  similar  favors, 
I  am  indebted  to  my  colleagues  Instructor  T.  M.  Hodgman  and 
Professors  L.  A.  Sherman  and  H.  W.  Caldwell.  Mr.  H.  H. 
Wilson  has  repeatedly  and  without  stint  given  me  the  benefit  of 
his  wide  and  accurate  knowledge  of  American  law  and  institu- 
tions. Judge  S.  B.  Pound,  likewise,  has  aided  me  with  informa- 
tion on  legal  topics. 

To  Dr.  A.  G.  Warner  my  grateful  acknowledgments  are 
especially  due.  Without  his  scholarly  assistance,  freely  ren- 
dered in  countless  ways,  the  difficulties  of  my  task  must  have 
been  greatly  enhanced.  Dr.  Herbert  B.  Adams  has  courteously 
placed  many  rare  volumes  at  my  service ;  and,  it  is  but  just  to 
add,  I  have  derived  much  advantage  from  the  suggestiveness  of 
his  various  monographs  on  the  origin  of  New  England  institutions. 

LINCOLN,  March  19,  1889. 


CONTENTS. 


PART  I. 

THE  TOWNSHIP. 

PAGE. 

CHAPTER  I. — EVOLUTION  OF  THE  TOWNSHIP  ORGANISM 3-49 

i.— THE  CLAN 3-10 

ii.— THE  MARK 10-18 

(a). — The  Primitive  Community  of  Csesar  and  Tacitus 10-14 

(6).— Growth  of  the  Mark  Constitution 14-16 

(e).— Economy  of  the  Mark 16-18 

in.— THE  TTTNSCIPE 18-23 

(o).— Relation  to  the  Mark 18-20 

(6).— Old  English  Town  Organization 20-22 

(c). — The  Germ  of  Representative  Government 22-23 

rv. — AFFILIATED  AND  DIFFERENTIATED  FORMS  OF  THE  TOWN- 
SHIP: THE  TITHING  AND  THE  MANOR 23-31 

(a).— The  Tithing 23-25 

(6).— The  Manor 25-31 

v.— THE  PARISH 31-49 

(a).— The  Ancient  Parish 31-42 

(1).— Evolution  of  the  Parochial  District 32-34 

(2). — Growth  of  the  Constitution 34-36 

(3).— Differentiation  of  Offices 36-40 

(4).— The  Open  Vestry 40-42 

(5).— The  Select  Vestry 42 

(6).— The  Modern  Civil  Parish 43-46 

(c). — The  Modern  Ecclesiastical  Parish 47—49 

CHAPTER  II. — RISE  OF  THE  NEW  ENGLAND  TOWN 50-99 

i. — RESTORATION  OF  THE  MARK 50-56 

ii. — RELATION  OF  THE  TOWN  TO  THE  GENERAL  COURT 56-62 

(a). — The  Court  was  the  Source  of  Authority 56-59 

(&).— The  Town  was  the  Constitutional  Unit 59-62 

IX 


x  Contents. 

PAGE. 

in. — THE  TOWN-MEETING 62-74 

(a). — Membership  and  Organization 62-64 

(6). — Powers  and  Functions 64-74 

iv. — THE  SELECTMEN 74-88 

(o).— Evolution  of  the  Office 74-78 

(&).— Functions  of  the  Selectmen 78-82 

(c). — Officers  Appointed  by  the  Selectmen 83-84 

(d). — Extracts  from  the  Selectmen's  Records 84-88 

v. — THE  TOWN  OFFICERS  AND  THEIR  DUTIES 88-99 

(a).— Principal  Officers 88-96 

(&).— New  England  Functionalism 96-99 

CHAPTER  III. — THE  TOWNSHIP  AND  ITS  DIFFERENTIATED  FORMS 

IN  THE  MIDDLE  AND  SOUTHERN  COLONIES 1 00-1 34 

i.— THE  TITHING 100-101 

ii. — DUTCH  COLONIES  AND  VILLAGE  COMMUNITIES 102-105 

in. — THE  TOWN  OF  THE  DUKE'S  LAWS 105-109 

iv. — THE  TOWN  OF  THE  NEW  YORK  PROVINCE  LAWS 110-112 

v.— THE  MANOR 112-117 

vi.— THE  VIRGINIA  PARISH 117-124 

(a). — Genesis  of  the  Organization 117-119 

(6).— The  Vestry 119-122 

(c).— Officers  of  the  Parish 122-123 

(d). — The  Parish  as  a  Unit  of  Self-Go vernment  and  Repre- 
sentation   123-124 

vii. — THE  PARISH  IN  MARYLAND  AND  THE  CAROLINAS 124-134 

(a).— The  Maryland  Parish , 124-127 

(6).— The  South  Carolina  Parish 127-128 

(c). — North  Carolina  Precincts  and  Parishes 129-134 

CHAPTER  IV. — RISE  OF  THE  TOWNSHIP  IN  THE  WESTERN  STATES,  135-238 

i. — EVOLUTION  OF  THE  TOWNSHIP-COUNTY  SYSTEM 135-156 

(a).— The  Fundamental  Ordinances  of  1785  and  1787 135-142 

(6). — The  Sectional  Rivalry  of  Local  Organisms 143-148 

(c). — The  Economic  Rivalry  of  Local  Organisms 148-156 

ii. — CONSTITUTIONAL  LIMITATIONS  OF  THE  TOWNSHIP 156-162 

(a).— Differentiated  Forms 156-158 

(6). — Subordination  to  the  State 159-160 

(c). — Subordination  to  the  County 160-162 

in. — THE  TOWN-MEETING , 162-167 

(a). — Membership  and  Organization 162-164 

(6).— Functions  of  the  Town-Meeting 164-167 

iv. — WESTERN  SELECTMEN 167-173 

(a).— Differentiated  Forms 167-169 

(6).— The  Trustee  or  Supervisor 169-171 

(c).— The  Town  Board 172-173 


Contents.  xi 

PAOK. 

v. — VARIOUS  TOWNSHIP  OFFICERS  AND  THEIR  DUTIES 173-176 

(a).— The  Clerk 173-174 

(6).— The  Treasurer 174-175 

(e).— The  Constable  and  the  Justice  of  the  Peace 175-176 

vi. — THE  ASSESSOR 176-191 

(a).— Evolution  of  the  Office 176-185 

(6). — Rise  of  the  Assessor  in  the  American  Colonies 186-188 

(c).— The  Western  Assessor 188-191 

vn. — THE  OVERSEER  OFTHE  POOR 191-202 

(a).— Evolution  of  the  Office 191-194 

(6). — Rise  of -the  Overseer  in  the  American  Colonies 194-197 

(c).— The  Western  Overseer 198-202 

vin. — THE  OVERSEER  OF  HIGHWAYS 202-214 

(a).— Evolution  of  the  Office 202-206 

(6). — Highway  Surveyors  in  the  American  Colonies 207-210 

(c).— The  Western  Overseer -. 210-214 

ix. — PERAMBULATORS  AND  FENCE  VIEWERS 214-225 

(a).— The  Mark  Procession 214-215 

(6). — Parish  Perambulations  and  Haywards 215-218 

(c). — Perambulators  and  Fence  Viewers  in  the  New  Eng- 
land and  Middle  Colonies 219-222 

(d).— The  Virginia  Processioners 222-224 

(e).— The  Western  Fence  Viewer 224-225 

x. — THE  TOWNSHIP  IN  THE  EAST  AND  SOUTH 225-234 

(a).— The  Present  Constitution  of  the  New  England  Town,  225-229 

(6).— The  Reconstruction  Township 230-234 

xi. — THE  SCHOOL  DISTRICT  AS  A  DIFFERENTIATED  FORM  OF 

THE  TOWNSHIP 234-238 

PART  II. 
THE   HUNDRED. 

CHAPTER  V. — EVOLUTION  AND  DECAY  OF  THE  HUNDRED  OB- 

GANISM 241-286 

i. — THE  BROTHERHOOD  OR  WARD 241-252 

(a).— The  Phratria 241-244 

(6). — The  Curia  in  its  Relations  to  the  Centuria 244-249 

(c).— The  Iroquois  Brotherhood 249-252 

II. — THE  HUNDERTSCHAFT 252-263 

(a).— The  Pagus  or  Gau 252-257 

(&).— The  Centena  or  Untergau 257-263 

ni. — THE  OLD  ENGLISH  HUNDRED 264-271 

(a).— The  Primitive  Constitution 264-269 

(6).— Dissolution  of  the  Organism 269-271 


xii  Contents. 

PAGE. 
rv. — EISE  AND  DECAY  OF  THE  HUNDRED  IN  THE  AMERICAN 

COLONIES : 272-286 

(a). — The  Name  Hundred  in  Maine  and  Virginia 272-274 

(&).— The  Hundred  in  Maryland 274-281 

(e).— The  Hundred  in  Delaware 281-286 

PART  III. 
THE  SHIRE. 

CHAPTER  VI. — EVOLUTION  OF  THE  SHIRE  ORGANISM 289-318 

i.— THE  TRIBE 289-292 

(a).— The  Phule 289-290 

(&).— The  Tribus 290-292 

ii.— THE  VOLKERSCHAFT 292-298 

(a).— The  General  Assembly 292-294 

(6).— The  Magistrates 294-295 

(c).— Comitatus 296 

(d).— The  Old  Saxon  Volkerschaft 296-298 

in.— THE  OLD  ENGLISH  SHIRE 298-309 

(o).— The  Origin 298-301 

(&).— The  Scirgerefa  and  the  Ealdorman 301-302 

(c).— The  Scirgemot 302-303 

(d). — Comparison  of  the  Shire  System  and  the  German 

Gauverfassung., 304-309 

iv.— THE  NORMAN  COUNTY 309-314 

(a).— The  County  at  the  Mercy  of  the  Sheriff. 309-311 

(&). — The  National  and  the  Local  Organisms  meet  in  the 

County  Court 312-314 

v. — THE  MODERN  ENGLISH  COUNTY:   DISSOLUTION  OF  THE 

COUNTY  COURT 314-318 

CHAPTER  VII. — EISE  OF  THE  COUNTY  IN  THE  NEW  ENGLAND 

COLONIES 319-357 

i. — ORIGIN  IN  VARIOUS  JURISDICTIONS 319-322 

ii. — EVOLUTION  OF  THE  SHIRE  COURTS 322-339 

(a).— The  Quarter  Courts 322-327 

(&).— The  County  Courts 327-331 

(<•).— General  Functions  of  the  County  Court 331-332 

(d).— Subordination  of  the  Towns  to  the  County  Court 333-335 

(e). — Records  of  a  Court  of  General  Sessions 335-338 

(/)._Officers  of  the  County  Court 338-339 

in. — THE  SHIRE  AS  A  FISCAL  UNIT 339-344 

(a).— The  County  Bate 339-341 

(&).— The  Country  Kate 341-342 


Contents.  xiii 

PAGE. 

(c). — Equalization  of  Assessments 342-343 

(d).— Taxes  Payable  in  Kind 343-344 

iv. — THE  SHIRE  AS  A  MILITIA  DISTRICT 345-351 

(o).— Train  Bands 345-346 

(&).— The  Regiment  Formed 347-349 

(c).— Boy  Train  Bands 349-350 

(d). — Overthrow  of  the  Democratic  Constitution 350-351 

v. — GENESIS  OF  THE  PRIMARY  AND  THE  NOMINATING  CON- 
VENTION   351-356 

(a).— Election  by  Sealed  Proxies 351-352 

(6). — Method  of  Nominating  Assistants 353-355 

(c). — The  Shire  Proposed  as  the  Unit  of  Representation....  355-356 
vi. — IMPORTANCE  OF  THE  MASSACHUSETTS  COUNTY  AS  COM- 
PARED WITH  THE  ENGLISH  SHIRE 356-357 

CHAPTER  VIII. — RISE  OF  THE  COUNTY  IN  THE  MIDDLE  COLONIES,  358-387 

i.— THE  NEW  YORK  COUNTY 358-364 

(a).— The  Riding 358-360 

(6).— The  County  Courts  of  the  Royal  Province 360-362 

(c). — Dual  Civil  Administration  of  the  Supervisors  and 

Justices 362-363 

(d}. — The  County  as  a  Military  and  Representative  Unit,          364 

ii.— THE  NEW  JERSEY  COUNTY 365-367 

(o). — Under  the  First  Proprietors 365 

(6).— Under  the  Second  Proprietors 366-367 

(c) —Under  the  Royal  Province 367 

in. — THE  PENNSYLVANIA  COUNTY 368-387 

(a). — Genesis  of  the  Organism 368-373 

(1).— Records  of  a  County  Court,  1676-1681 371-373 

(2). — The  County  Reconstructed  by  the  Proprietary 373 

(6). — Judicial  Administration 373-377 

(c). — General  Civil  Administration 377-379 

(d).— Fiscal  Administration 379-383 

(«).— Self-Government  of  the  County 383-387 

(1). — Prototype  of  the  County-Precinct  and  Township- 
County  Systems 385-386 

(2.)— Origin  of  Judges  and  Clerks  of  Election 386-387 

CHAPTER  IX. — RISE  OF  THE  COUNTY  IN  VIRGINIA  AND  THE 

SOUTH 388-407 

i. — ORIGIN  AND  CHARACTER 388-390 

ii. — EVOLUTION  OF  THE  COUNTY  COURT 390-393 

(a). — Development  of  the  Organization 390-392 

(&).— The  Officers 392-393 

in. — REPRESENTATION  AND  CIVIL  ADMINISTRATION 393-397 

(o).— Election  of  Burgesses 393-394 


xiv  Contents. 

PAGE. 

(6).— General  Functions 394-395 

(c). — Survival  of  Legislative  Power  and  Local  Representa- 
tion   395-397 

iv. — FISCAL  ADMINISTRATION , 397-399 

v. — MILITARY  ADMINISTRATION 400-404 

vi. — THE  COUNTY  IN  MARYLAND 404-405 

VIT. — THE  PROVINCIAL  COUNTY  COURTS  A  SURVIVAL  OF  THE 

QUARTER  SESSIONS  AND  NOT  OF  THE  SHIREMOOT 406-407 

CHAPTER  X. — RISE  OF  THE  COUNTY  IN  THE  WESTERN  STATES...  408-473 
i. — GENESIS  OF  THE  COMMISSIONER  SYSTEM  IN  THE  NORTH- 
WEST TERRITORY 408-426 

(a).— The  First  Territorial  Constitution 408-410 

(b). — The  Inauguration  of  Civil  Institutions 411-412 

(c). — The  First  County  Organization 412-414 

(d). — Judicial  Administration 415-416 

(e).— A  Barbarous  Criminal  Code 416-420 

(/).— Sabbath  Laws  and  the  Debtor's  Prison 420-423 

(</). — Civil  Administration  of  the  Quarter  Sessions  and  Tax 

Commissioners 423-425 

(A). — Emancipation  of  the  County 425-426 

ii. — GENESIS  OF  THE  SUPERVISOR  SYSTEM  IN  MICHIGAN  TER- 
RITORY  ; 426-438 

(a). — French  Manors  and  Common  Fields 426-430 

(6). — British  Commandants  and  Courts  of  Arbitration 430-435 

(c). — Rise  of  the  Board  of  Supervisors 435-438 

m.— THE  COUNTY  BOARD 438-450 

(a). — Composition  and  Differentiated  Forms 438-440 

(6).— Relation  to  the  County  and  the  State 440-442 

(c). — Powers  and  Duties 442-450 

iv. — THE  COUNTY  OFFICERS  AND  THEIR  FUNCTIONS 450-458 

(a). — The  Clerk,  Auditor,  and  Register 450-453 

(6). — The  Treasurer  and  Assessor 453-455 

(c). — The  Sheriff,  Coroner,  Surveyor,  and  Superintendent...  455 

(d). — The  Prosecuting  Attorney,  Public  Administrator,  and 

County  Judge 456-458 

v. — THE  COUNTY  IN  THE  EAST  AND  SOUTH 458-470 

(a). — Rise  of  Elective  Commissioners  in  New  England 458-464 

(b). — Transformation  of  the  County  in  Virginia 464-468 

(c). — Rise  of  Democratic  County  Government  in  other  States 

of  the  South 468-470 

vi. — THE  ELECTIVE  COUNTY  BOARD  A  SURVIVAL  OF  THE 

SHIREMOOT 471-473 

LIST  OF  AUTHORITIES , 475-498 

INDEX...  ..  499-526 


Errata.  xv 


ERRATA. 

Page  12,  note  2,  for  "proprius"  read  "proprios." 

Page  62,  note.  3,  seventh  line,  for  "Mass.  Col.  Ree.  II"  read  " Mass.  Col. 
Rec.  IV,  Part  I." 

Pages  183-4,  for  "  1792"  read  "  1692,"  and  for  "  1797  "  read  "  1697." 

Page  222,  for  "  1761-2  "  read  "  1661-2." 

Page  230,  for  "  1869  "  read  "  1870  "  :  the  date  when  the  conditions  pre- 
scribed by  Congress  were  accepted. 

Page  258,  fourth  line,  for  "  district "  read  "  distinct." 

Pages  338  and  360,  for  "  1791 "  read  "  1691." 


PART    I 


THE    TOWNSHIP 


THE   TOWNSHIP. 


CHAPTER  I. 

EVOLUTION  OF  THE  TOWNSHIP  ORGANISM. 
I.— THE  CLAN. 

One  of  the  most  interesting  and  important  results  of  the 
study  of  comparative  sociology  is  the  disclosure  of  the  fact 
that  the  family  and  not  the  individual  was  the  unit  of  ancient 
society.  Among  all  the  races  of  antiquity  "  the  constitution 
of  the  family  was  the  basis  and  prototype  of  the  constitution 
of  the  state."1  But  the  ancient  or  patriarchal  family  was  some- 
thing quite  different  from  the  modern.  In  the  first  place,  it 
was  a  much  more  extended  group,  embracing  under  the  head- 
ship of  the  eldest  valid  ascendant  all  agnatic2  descendants  and 
all  persons  united  to  it  by  adoption,  as  well  as  clients  and 
other  dependants.3  Again  the  authority  of  the  house-father 

1  Marquardt,  Das  Privatleben  der  Homer,  I,  p.  1 ;  cf.  also  Schrader,  Sprach- 
vergleichung  und   Urgeschichte,  394-5;    Maine,  Village  Communities,  15   ff. ; 
Spencer,  Principles  of  Sociology,  I,  705-45  ;  II,  451-71 ;  Gilbert,  Handbuch 
der  griech.  Staatsalterthiimer,  II,  302. 

2  Agnates  were  those  who  could  trace  their  kinship  through  males :  the 
offspring  of  married  daughters  were  excluded,   as  belonging  to  another 
family:  Maine,  Ancient  Law,  p.  56,  141  f . ;  Hadley,  Roman  Law,  130  ff. ; 
Puchta,  Instilutionen,  II,  17  ff. ;    Lange,  Rb'mische  Alterthumer,  I,  211  ff. ; 
Muirhead,  Hist.  Int.  to  Private  Law  of  Rome,  43  ff,  122  ff. 

8  Clients,  servants,  slaves,  and  even  those  admitted  to  the  hearth  as  guests, 
by  observance  of  the  proper  rites,  were  according  to  the  primitive  conception 
members  of  the  family  group  and  sharers  in  its  sacra.  Hearn,  Aryan  House- 
hold, 73, 108 ;  Fustel  de  Coulanges,  Ancient  City,  150 ;  Maine,  Ancient  Law,  158. 

3 


4  Evolution  of  the  Township  Organism. 

was  of  a  most  despotic  character,  though  exercised  during  his 
entire  lifetime  over  even  the  married  sons  and  their  wives  and 
children  :  the  patriarch's  arbitrary  commands  were  originally 
the  only  forms  of  law.1  But  the  family  as  thus  organized 
was  already  a  mere  survival,  or  found  only  among  uncivilized 
races,  when  noticed  by  the  earliest  observers.  Thus  Homer 
says  of  the  Cyclops  :  "  They  have  neither  assemblies  for  con- 
sultation nor  themistes,2  but  everyone  exercises  jurisdiction  over 
his  wives  and  his  children,  and  they  pay  no  regard  to  one 
another."3  And  probably  the  poet  has  here  ascribed  to  the 
Cyclops  the  characteristics  of  savage  tribes  with  which  the 
Greeks  were  acquainted.4  The  theory  that  the  family  is  the 
type  of  political  organization  is  by  no  means  of  recent  origin. 
It  is  clearly  set  forth,  and  the  process  of  expansion  accurately 
described  by  Plato  and  also  by  Aristotle,  who  base  it  upon 
their  own  observation,  "  both  among  Hellenes  and  barbarians," 
and  each  illustrates  it  by  reference  to  the  passage  from  Homer.5 


1  The'  absolute  power  of  the  house-father  was  an  Aryan  characteristic. 
Schrader,  Sprachvergleichung  imd  Urgeschichte,  386  ff.     Among  the  Romans, 
as  is  well  known,  the  father  had  jus  vitae  necisque,  in  respect  of  his  children, 
could  sell  them  into  slavery,  and  even  sons  who  filled  the  highest  offices  of 
state  could  originally  own  no  property.     Puchta,  Institutionen,  II,  384  ff ; 
Scheurl,  Instilutionen,  pp.  271  f. ;    Maine,  Ancient  Law,   133  f . ;   Hadley, 
119  f. ;  Clark,  Early  Roman  Law,  25.    The  power  of  the  father  to  expose 
female  infants  was  a  great  evil  during  the  early  empire :   Capes,  Age  of 
Antonines,  19  f.     See  further  Muirhead,  Hist.  Int.  to  the  Private  Law  of  Eome, 
27  ff.,  118,  222;  Lange,  Eb'mische  Alter thumer,  I,  112  ff. 

2  On  the  themistes,  or  inspired  commands  of  the  hero-king,  handed  down 
to  him  from  Zeus  by  Themis,  see  Maine,  Ancient  Law,  Chap.  I. 

3  Odyssey,  Book  IX,  11.  106  ff.,  as  rendered  by  Sir  Henry  Maine,  Ancient 
Law,  120.     Cf.  Odyssey,  Book  VI,  11.  5  ff. :   Bryant's  Translation,  I,  144, 
215-16. 

4  "It  may  not  perhaps  be  an  altogether  fanciful  idea  when  I  suggest  that 
the  Cyclops  is  Homer's  type  of  an  alien  and  less  advanced  civilization," 
Maine,  Ancient  Law,  120.     But  see  Freeman,  Comparative  Politics,  379,  note 
20,  who  regards  this  as  an  exceptional  case. 

5  Plato,  Laws,  Book  III,  680-81:   Jowett,  Dialogues,  Vol.  IV,  p.  209; 
Aristotle,  Politics,  Book  I,  2 :  Jowett,  Vol.  I,  p.  2  ff. ;  both  also  cited  by 
Maine,  Early  Law  and  Custom,  p.  196. 


The  Clan.  5 

The  family,  then,  was  the  germ  from  which  have  been 
evolved,  as  in  concentric  circles,  all  the  forms  of  political 
organism.1  By  process  of  natural  growth  a  certain  number 
of  families  became  united  wi  a  clan,  the  Roman  gens  or  the 
Ionic  genos.  In  like  manner,  in  course  of  time,  a  union  of 
gentes  formed  a  phratna  or  curia;  and  a  gathering  of  phratries 
or  curies  formed  a  tribe,2  famous  illustrations  of  which  are  the 
tribm  of  early  Rome — Ramnes,  Tities,  and  Luceres — and  the 
Ionic  phulai  of  the  Homeric  age — Geleontes,  Hopletes,  Aigi- 
koreis,  and  Argadeis.3  Each  of  these  groups,  in  ascending 
series,  must  be  regarded  as  successively  representing  a  newer 
and  more  enlarged  conception  of  the  state :  the  lower  being 
retained  as  subordinate  members  of  the  higher  organism.4 

But  it  is  the  clan  or  gens  with  which  we  are  here  directly 
concerned.  The  point  to  be  noticed  first  of  all  is  that  already 
when  history  dawns,  it  had  become  the  starting  point  of  politi- 
cal life ;  the  family  was  no  longer  employed  directly  as  a 
member  of  the  .state.  The  gens,  like  the  family  which  it 


1  In  general  on  the  patriarchal  family,  see  Schrader,  Sprachvergleichung 
und  Urgeschichte,  379-95;  Fustel  de  Coulanges,  Ancient  City,  111  ff. ;  Maine, 
Ancient  Law,  Chap.  V;  Hearn,  Aryan  Household,  Chaps.  Ill,  IV;  Letour- 
neau,  La  Sociologie;  Lange,  Rom.  Alt.,  I,  102  ff. 

Morgan,  Ancient  Society,  pp.  383-508,  traces  the  growth  of  the  family  from 
original  promiscuity  through  various  different  forms  before  the  monogamian 
is  reached.  See  also  McLennan,  Studies  in  Ancient  History  for  the  theories 
of  promiscuity,  endogamy,  exogamy,  and  marriage  by  capture.  These  two 
works  are  discussed  by  Maine,  Early  Law  and  Custom,  Chap.  VTI,  and  by 
Lubbock,  Origin  of  Civilization,  pp.  50-113;  McLennan  is  criticised  by  Her- 
bert Spencer,  Principles  of  Sociology,  Part  III,  and  by  Morgan,  pp.  509  ff. 
See  J.  D.  Mayne,  Hindu  Law  and  Usage,  pp.  33-87  for  much  curious  infor- 
mation on  the  family  customs  of  India.  Also  Schrader  above  cited. 

2  According  to  tradition,  among  the  lonians,  30  families  formed  a  genos, 
30  gene  a  phratria,  and  3  phratriai  a  phute  or  tribe.    Schomann,  Antiquities, 
317,  364;  Grote,  III,  52-3;  Wachsmuth,  I,  342  f. 

8  See  the  comparative  table  of  groups  in  the  order  of  their  expansion : 
Schrader,  Sprachver.  und  Urgesch.  394;  Miiller,  Handbuch  der  klassischen 
Alterthumswissenschaft,  IV,  17-22;  Schomann,  Athenian  Const.  Hist.,  3-10. 

*  The  curia  or  phratria,  however,  as  we  shall  see  was  a  more  artificial 
group  and  discharged  more  special  functions.  See  Chap.  V,  I. 


6  Evolution  of  the  Township  Organism. 

superseded,  was  therefore  a  state  in  miniature ;  and  when  it, 
in  turn,  expanded  into  higher  groups,  it  nevertheless  continued 
to  survive  as  the  political  unit.  But  what  renders  it  of  sur- 
passing interest  for  our  present  purpose  is  the  fact  that  in  it 
we  behold  the  embryo  or  prototype  of  the  township.  The 
latter,  in  the  modern  territorial  organization,  occupies  in  one 
form  or  another  the  same  relative  place  which  the  former  held 
in  the  tribal  constitution  of  early  Aryan  society.  But,  at  first 
glance,  there  is  little  in  the  form  of  the  primitive  institution 
to  remind  us  of  this  relation. 

The  clan  was  no  artificial  product.  It  was  by  no  arbitrary 
legislative  act  that  its  elements  were  "  incorporated : "  it  was 
merely  the  expanded  form  of  the  family  itself,  and  its  organiza- 
tion was  on  the  same  patriarchal  model.1  As  in  the  case  of  the 
family,  the  double  tie  which  held  its  members  together  was 
real  or  assumed  blood  relationship  and  a  common  worship. 
This  is  the  most  primitive  bond  of  human  society.  Of  the  two 
elements  entering  into  it,  the  worship  of  a  common  ancestor2 
was,  perhaps,  the  more  essential  and  it  was  regarded  as  the 
test  of  kinship.3  But  the  various  names  of  the  institution  dis- 
close the  bond  of  blood-relationship :  the  Latin  gens,  the  Greek 
genos,  the  Gaelic  clan,  the  Anglo-Saxon  cynn,  all  are  sugges- 
tive of  common  descent.4  Each  gens  had  an  altar  and  a  ritual 
exclusively  its  own  which  could  not,  without  profanation,  be 

1  Fustel  de  Coulanges,  Ancient  City,  141  if.     Compare  on  the  gens  Miiller, 
Doric  Races,  II,  75-84 ;  Schomann,  Antiquities,  317,  364 ;  Maine,  Ancient  Law, 
256,  123-4;  Early  Law  and  Custom,  Chap.  VII;     Morgan,  Ancient  Society, 
214-34  (the  Greek),  276-99  (the  Koman),  357-79  (of  other  tribes) :— Mr. 
Morgan,  however,  regards  the  family  as  derived  from  the  gens,  p.  227. 

2  Fustel  de  Coulanges,  Ancient  City,  9-52,  has  the  best  discussion  of  ances- 
tor-worship ;  he  is  followed  by  Hearn,  Aryan  Household,  15  ff.    Maine,  Early 
Law  and  Custom,  Chaps.  Ill  and  IV  has  an  admirable  discussion.     See  also 
Taylor,  Primitive  Oulture,Vol.  II.  (Animism).    For  India,  J.  D.  Mayne,  Hindu 
Law  and  Usage,  55,  438 ;  on  deification  of  men  in  India,  Lyall,  Asiatic  Studies, 
Chap.  II ;  on  the  Koman  lares  see  Duruy,  Hist,  of  Rome,  I,  206. 

3  Fustel  de  Coulanges,  49-51;  Hearn,  66. 

*Skeat,  Etymological  Dictionary;  Freeman,  Comp.  Pol.,  103,  394;  Fustel  de 
Coulanges,  140-41. 


The  Clan.  7 

imparted  to  a  stranger ;  and  "  stranger  "  meant  anyone  not  a 
member  of  the  clan.  Race  isolation  and  religious  isolation 
were  the  almost  insuperable  obstacles  to  political  development 
in  early  Aryan  society.  Even  the  gradual  expansion  of  family 
into  gens,  of  gens  into  curia,  and  of  curia  into  tribe  must  have 
been  slow  and  painful.  As  is  well  known,  political  isolation 
is  the  clue  to  the  peculiar  history  of  the  Hellenic  states :  even 
Athens,  save  for  a  moment,  never  overcame  the  tendency  of 
the  lonians  to  eity  autonomy  and  exclusiveness ;  while  the 
later  attempts  to  form  federations  came  too  late  to  stay  the 
inevitable  disruption.1  On  the  other  hand,  the  fact  that  Rome 
did  finally  surmount  this  barrier  explains  largely  the  won- 
derful career  of  the  mistress  of  the  world.2  But  in  expansion 
of  the  primitive  groups — the  growth  of  the  state — the  fiction 
of  adoption,  by  which  relationship  was  artificially  extended 
and  strangers  admitted  to  the  sacra,  was  of  immense  service. 
Indeed,  as  Sir  Henry  Maine  has  said,  it  is  difficult  to  see  how 
early  society  could  otherwise  have  escaped  from  its  "swaddling 
clothes." s  S 

Little  can  be  said  of  the  officers  or  organization  of  the  clan. 
Each  had  its  chief,  archos  or  princeps,  who  acted  as  its  "judge, 
priest,  and  military  commander."4  He  was  probably  elected5 
by  the  clansmen — an  important  modification  of  the  strictly 
patriarchal  constitution  of  the  family.  There  may  have  been 
also  an  executive  council  whose  number  seems  to  have  been 
usually  five.6  Our  knowledge  of  the  primitive  Aryan  clan  is 


1  See  Freeman,  Hist,  of  Federal  Government,  Vol.  I ;  Comparative  Politics, 
90  f. ;  Cox,  Greeks  and  Persians,  9  f. ;  Athenian  Empire,  3  f.,  39  f.,  51  f.,  etc. 

2  Freeman,  Cbmp.  Pol.,  97 ;  Fiske,  American  Political  Ideas,  79. 

8  Ancient  Law,  26,  125,  126.  On  the  present  use  of  adoption  in  India  see 
J.  D.  Mayne,  Hindu  Law  and  Usage,  88  ff. 

*  Fustel  de  Coulanges,  137 ;  Dion.  Halic.,  II,  7 ;  Boeckh,  Corp.  Inscrip.,  397, 
398. 

5  Marquardt,  Staatsverwaltung,  III,  133,  says  the  Roman  gens  had  an  elected 
flamen  to  guard  the  sacra.  Morgan,  225,  297. 

"This  is  discussed  by  Hearn,  128  ff.  See  further  on  the  Greek  and 
Roman  gens  Pauly,  Real-Encyclopddie,  III,  700  ff. ;  Mommsen,  Staatsrecht, 
III,  3-53;  Miiller,  Handbuch,  IV,  19  f.,  491  f.;  Muirhead,  6  ff. 


8  Evolution  of  the  Township  Organism. 

vague  and  fragmentary ;  but  much  help  may  be  obtained  from 
India  where  an  immense  mass  of  indigenous  custom  has  been 
preserved,  and  where  the  clans  and  other  genealogical  groups 
may  be  seen  in  actual  process  of  growth  and  disintegration. 
Here  the  concentric  circles  of  affinity  are  numerous  and  intri- 
cate and  often  artificially  extended.1 

In  like  manner  the  gentile  organization  among  the  Celts  of 
the  British  islands  survived  far  down  into  historic  times ;  and 
here  scholars  have  been  able  to  study  its  essential  principles 
in  full  operation.2 

But  for  a  clear  realization  of  society  under  the  clan  organi- 
zation it  is  only  necessary  to  turn  to  living  examples  among 
other  branches  of  mankind.  Undoubtedly  the  nomadic  Tur- 
anians of  Asia,  the  Semites  of  the  deserts,3  and  the  savage  races 
of  Africa  and  Oceanica,  when  due  allowance  for  ethnological 
characteristics  is  made,  present  true  pictures  of  such  society ; 
and  the  researches  of  an  American  scholar  have  revealed  the 
exact  counterpart  of  gens,  curia,  and  tribe  among  the  Iroquois 
and  other  red  Indians  of  this  continent.4  In  the  primitive 
ages,  it  is  probable  that  our  Aryan  ancestors  also  led  a  pas- 
toral life  and  had  no  conception  of  property  in  land.  But  the 
nomadic  stage  was  superseded  at  an  exceedingly  early  day  by 
that  of  permanent  settlements  in  village  communities ;  for  the 
latter  wherever  found,  are  but  localized  clans,5  whose  origin  is 
coeval  with  the  beginning  of  communistic  occupation  and  cul- 
tivation of  the  soil.  Among  the  Hellenic  and  Italic  gentes, 
as  elsewhere,  a  pastoral  probably  preceded  a  village  life;  but 
at  the  very  dawn  of  history  this  second  or  township  stage 
had  already  yielded  to  the  city ; 6  only  in  the  wild  regions  of 


1  See  the  interesting  discussion  of  Lyall,  Asiatic  Studies,  Chap.  VIII. 

2  Freeman,  Norman  Conquest,  V,  310;  Comp.  Pol.,  102,  116,  394;  Frederic 
Seebohm,  Eng.  Vil.  Com.,  181-251 ;  Maine,  Early  Hist.  Inst.,  Chaps.  II- VII ; 
Ancient  Law,  260. 

3Duruy,  Hist,  of  Rome,  I,  190-1. 

*  Lewis  H.  Morgan,  Ancient  Society,  New  York,  1878. 

5  Freeman,  Comp.  Pol.,  102,  117. 

6  Athens,  Sparta,  Mantineia,  Rome  and  various  other  places  seem  certainly 


The  Clan.  9 

western  Greece  did  the  "tribe  and  the  village"  survive  in  the 
classic  age.1 

At  the  period  described  in  the  Homeric  poems,  the  Greeks 
had  reached  a  form  of  the  state  still  higher  than  the  phul6 : 
the  polis  or  city,  formed  by  the  gathering  of  tribes  or  parts  of 
tribes — for  all  the  Ionic  cities,  including  Athens  were  com- 
posed of  the  four  phulai.2  The  polis  was  the  highest  concep- 
tion of  the  state  which  the  Greeks  attained.  Four  stages  of 
development — gens,  phratry,  tribe  and  city,  the  latter  wonder- 
ful in  what  it  compassed  for  civilization — were  successively 
reached;  but  every  attempt  to  pass  beyond  the  latter  to  a 
fifth  and  grander  phase — the  nation — failed.  That  glory  was 
reserved,  not  even  for  the  Romans,  but  for  the  third  of  the 
great  races  which  have  in  turn  filled  the  page  of  history.3 
With  the  growth  of  the  city  the  old  bond  of  common  blood 
and  common  religion  had  to  yield  to  the  needs  of  a  more 
comprehensive  state.  The  efforts  of  Solon  and  Kleisthenes  to 
supersede  the  qld  religious  bodies  for  political  functions,  by 
the  creation  of  artificial  classes  and  phulai  with  local  sub- 
divisions, are  but  marks  of  the  change;  just  as  the  tradition 
of  the  formation  of  new  gentes  and  tribes  by  the  Tarquins  is 
significant  of  a  similar  crisis  at  Rome.  But  to  the  end  the 
clan,  or  its  local  substitute,  remained  the  political  unit.  Such 
was  the  demos  of  the  Kleisthenian  constitution ; 4  and,  accord- 


to  have  been  formed  by  the  coalescence  of  village  communities.  Maine, 
Early  Hist.  Inst.,  84 ;  Freeman,  Comp.  Pol.,  88-9,  106,  380-3 ;  Grote,  II, 
258-61.  In  historic  times  private  property  was  the  rule  in  both  Rome  and 
Greece :  Fustel  de  Coulanges,  76  ff.  But  various  things  point  to  an  earlier 
communistic  stage. 

1  Freeman,  Comp.  Pol.,  88-9. 

8  In  like  manner  in  Sparta  and  in  the  Dorian  cities,  generally,  there  were 
three  tribes:  Hylleis,  Dymanes  (Dymanatae),  and  Pamphili:  Miiller,  Doric 
Races,  II,  76.  Cf.  Schomann,  Antiquities,  211,  128  f.,  38,  39 ;  Miiller,  Hand- 
buch  der  Idass.  Alt.,  IV,  21. 

'Freeman,  Comp.  Pol.,  120. 

*Demes  existed  before  Kleisthenes  and  were  probably  the  townships 
settled  by  gentes ;  but  now  the  tribes  were  regularly  divided  into  districts, 


10  Evolution  of  the  Township  Organism. 

ing  to  tradition,  the  Roman  senate  was  originally  composed 
of  300  members — one  for  each  of  the  gentes  of  the  three 
primitive  tribes.  But  at  a  later  time  local  tribes  and  their 
divisions,  the  pagi,  were  substituted  as  military,  fiscal  and 
legislative  districts.1 

II.— THE  MARK. 

(a). — The  Primitive  Community  of  Ocesar  and  Tacitus. 

The  earliest  traditions  of  Rome  reveal  to  us  society  in  an 
earlier  stage  than  that  of  the  Greeks  in  the  age  of  Homer : 
for  the  process  of  incorporating  the  tribes  in  the  city  is  clearly 
described,  a  fact  without  parallel  in  Hellenic  legend.  On 
the  other  hand  the  conception  of  the  state  to  which  our  own 
ancestors  had  attained,  when  they  first  emerge  to  view,  was 
still  more  primitive  than  that  of  the  founders  of  the  Eternal 
City.  "Among  the  ancient  Germans  and  Scandinavians," 
says  Freeman,  "and  not  least  among  the  Teutonic  settlers 
in  our  own  island,  we  see  many  things  face  to  face  which  in 
Greece  and  Italy  we  see  but  darkly ;  we  see  many  things  for 
certain  which  in  Greece  and  Italy  we  can  only  guess  at ;  we 
see  many  things  still  keeping  their  full  life  and  meaning,  of 
which  in  Greece  and  Italy  we  can  at  most  spy  out  traces  and 
survivals.  It  is  among  men  of  our  own  blood  that  we  can 
best  trace  out  how,  as  in  Greece  and  Italy,  the  family  grew 
into  the  clan — how  as  in  Greece  and  Italy  the  clan  grew  into 


though  those  of  the  same  tribe  were  not  adjacent.  Wachsmuth,  I,  398, 
453  f. ;  Herodotus,  I,  60,  62 ;  Schomann,  Antiquities,  366 ;  Athenian  Const. 
Hist.,  64-8. 

1  Smith,  Diet.  Antq.,  848  (Pagi),  1149  (Tribunus). 

Mr.  Freeman  regards  the  original  tribes  as  "  essentially  local "  and  holds 
that  early  localization  was  a  distinguishing  mark  of  the  Italic  communities; 
doubtless  the  genealogico-religious  bodies  often  settled  together :  Comp.  Pol., 
108-9.  The  Ionic  gen§  also  settled  together,  and  some  of  the  demes  of 
Kleisthenes  seem  to  have  corresponded  with,  and  borne  the  names  of,  gene". 
Grote,  IV,  131  ff.,  Ill,  63  f. ;  Wachsmuth,  I,  397  f. ;  Schomann,  Antiquities,. 
366 ;  Athenian  Const.  Hist.,  10,  11 ;  Gilbert,  Handbuch,  II,  307. 


The  Mark.  11 

the  tribe — and  how  at  that  stage  the  development  of  the  two 
kindred  races  parted  company — how  among  the  Teutons  on 
either  side  of  the  sea,  the  tribe  has  grown,  not  into  the  city, 
but  into  the  nation."1 

At  the  dawn  of  history  Teutonic  society  had  already  attained 
a  complex  development.  The  initial  organism  was  the  mark 
or  markgenossenschaft,  a  group  of  clansmen.  Several  mark 
societies  united  to  form  the  hundertschaft — the  analogue  of 
the  curia  or  phratria.  Finally  an  aggregation  of  hundert- 
schaften  constituted  the  volkerschaft  or  tribe.  Each  of  these 
organizations,  larger  and  smaller,  seems  to  have  been  united 
by  the  tie  of  kindred,  though  fast  yielding  to  the  influence  of 
localization ;  and  each  had  a  special  part  to  perform  in  the 
social  order.2  The  mark  was  the  self-governing  local  com- 


1  Comp.  Pol.,  111.     Cf.  Waitz,  Verfassungsgeschichte,   I,   19;    and  for  an 
admirable  account  of  the  civilization  attained  by  the  primitive  Germans, 
Ib.,  29-48 ;  Dahn,  Urgeschichte  der  Germanen,  etc.,  I,  31  ff. ;  Arnold,  Deutsche 
Urzeit,  187  ff. 

2  The  commonly  accepted  theory  represents  mark,  hundertschaft,  and 
volkerschaft  as  successive  evolutions — as  organisms  formed  on  the  same 
general  model.     An  exception  is  made  in  the  case  of  the  mark  whose 
assembly  is  denied   true  judicial  functions;   but  the  assemblies  of  both 
hundertschaft  and  volkerschaft  are  "essentially  courts:"  Waitz,  Verfassungs- 
geschichte, I,  316;  Das  alte  Recht,  143;  Freeman,  Comparative  Politics,  118; 
Grimm,  Rechtsalterthumer,  745;  Schulte,  Reichs-  und  Rechtsgeschichte,  25-6. 

But  Sohm  combats  this  theory  and  insists  that  each  member  of  the  social 
body  had  a  distinct  character.  He  thus  summarizes  his  argument:  — 

"  Von  den  drei  Gliederungen  des  nationalen  Organismus  hat  jede  ihre 
besondere  Aufgabe  zu  erfiillen.  Der  Stammesverband  bildet  die  Einheit 
fur  das  allgemeine  ethische,  der  Volkerschaftsverband  die  Einheit  fur  das 
politische,  der  Hundertschaftsverband  die  Einheit  fur  das  gerichtliche 
Leben.  In  der  Vereammlung,  der  Gesandten  aller  Volkerschaften  "dessel- 
ben  Bluts"  tritt  uns  die  Cultusgemeinde,  in  der  Vereammlung  der  Volker- 
schaft tritt  uns  die  souveriine  Gemeinde,  in  der  Hundertschaftsversammlung 
tritt  uns  die  Gerichtsgemeinde  entgegen.  Die  Sfammesverfassung  ist  Cul- 
tusverfassung,  die  Volkerschaftsverfassung  ist  Staatsverfassung,  die  Hun- 
dertschaftsverfassung  ist  Gerichtsverfassung.  Der  Stammesgenosse  ist  der 
Bluts-  und  Sinnesgenosse,  der  Volkerschaftsgenosse  ist  der  Staatsgenosse, 
und  der  Hundertschaftsgenosse  ist  der  Gerichtsgenosse : "  Reichs-  und 
Oeri-JUsverfassung,  I,  7-8 ;  57-74.  See  also  Stubbs,  Qmst.  Hist,,  I,  28-9. 


12  Evolution  of  the  Township  Organism. 

nmnity.  The  hundertschaft  discharged  the  functions  of  a 
military  and  judicial  unit.  The  volkerschaft  was  the  bearer 
of  political  sovereignty.  It  was  the  civitas  or  state  itself. 
Beyond  this — the  tribe,  as  the  highest  conception  of  govern- 
ment, of  political  union — the  Teutonic  mind  had  not  passed. 
The  city  did  not  exist.  The  stamrn  or  union  of  kindred 
volkerschaften,  the  analogue  of  the  Doric  or  the  Ionic  race, 
had  as  yet  no  political  significance.  It  was  merely  an  ethnic 
and  religious  unit — a  Cultuseinheit.  Much  less  was  there  a 

O 

conception  of  German  nationality  in  the  modern  sense.  There 
existed,  at  the  utmost,  but  a  dim  consciousness  of  a  unity  of 
all  the  stamme  of  Teutonic  blood.  As  yet  the  stamna  was 
the  bearer — to  use  an  expression  of  Sohrn — of  the  natural 
attributes  of  nationality.1 

In  the  Commentaries  of  Caesar  our  Germanic  ancestors  are 
seen  in  a  state  of  transition  from  the  pastoral  to  the  agricultu- 
ral life.2  There  is  as  yet  no  permanent  occupation  of  land ; 
no  villages  with  substantial  dwellings.  Lands  for  pasturage 
and  cultivation  are  assigned  to  each  larger  and  smaller  group 
of  kindred  by  the  chiefs.  There  is  no  private  ownership  of 
land  in  definite  quantity  with  fixed  boundaries ;  it  is  held  but 
a  single  year  when  the  community  is  compelled  to  move  else- 
where to  take  possession  of  new  allotments.  Little  attention 
is  given  to  agriculture ;  but  war  and  the  chase  are  the  chief 


1  Aber  nicht  der  gesammtnationale,  nicht  der  Volkerschafts-,  nicht  der 
Hundertschaftsverband,  der  Stammesverband  ist  der  Trager  der  natiirlichen 
nationalen   Einheit.     Es  hangt  damit   zusammen,   dass  die   natiirlichen 
nationalen  Giiter  Stammesgiiter  sind.     Aus  diesem  Grunde  ist  Sprache, 
Sitte,   Recht  und  Religion  (die  heidnische  .Religion  ist  eine  nationale) 
Stammessprache,  Stammessitte,  Stammesrecht  und  Stammesreligion.     Der 
Stamm  ist  die  Einheit  fur  die  natiirliche  nationale  Entwickelung."    Sohm, 
Beichs-  und  Gerichtsverfassung,  I,  2. 

2  Caesar,  De  Ed.  Gal.,  VI,  22 :   Agriculturae  non  student   .   .   .   Neque 
quisquam  agri  modum  certuni  aut  fines  habet  proprios ;  sed  magistratus  ac 
principes  in  annos  singulos  gentibus  cognationibusque  hominum,  qui  una 
coierunt,  quantum  et  quo  loco  visum  est  agri  attribuunt,  atque  anno  post 
alio  transire  cogunt.     On  the  Suevi,  76.,  IV,  1. 


The  Mark.  13 

occupations.1  Clearly  here  we  find  society  in  a  very  rude 
condition  ;  the  nomadic  life  is  scarcely  yet  ended,  though 
allowance  must  be  made  for  the  fact  that  Caesar  saw  the  Ger- 
man tribes  in  a  state  of  unusual  movement  and  disruption.2 

In  the  Germania  of  Tacitus,  one  hundred  and  fifty  years 
later,  we  find  a  decided  advance  upon  the  state  of  things 
described  by  the  conqueror  of  Gaul.  There  are  now  perma- 
nent settlements,  substantial  villages,  and  an  increased  agricul- 
ture. But  the  arable  lands  are  changed  each  year,  or  at  least 
periodically,3  there  are  both  "  shifting  occupation "  of  the 
entire  allotment  of  each  group  and  "  shifting  cultivation  "  of 
the  arable.4 

But  Tacitus,  as  usually  interpreted,  appears  to  describe  two 
forms  of  settlement.  On  the  one  hand  were  isolated  home- 
steads or  simple  family  groups,  planted  wherever  "  fountain, 
field,  or  forest"  invited;  on  the  other  hand,  villages,  each 
dwelling  being  surrounded  by  an  open  space ;  but  cities  were 
as  yet  unknown.5  We  are  here  particularly  concerned  with 


1  But  see  Meitzen,  Der  Boden  des  Preuissischen  Staates,  I,  344. 

2  On  the  Germans  as  described  by  Caesar,  see  Waitz,  I,  92-102;  Thudi- 
chum,  Der  altdeutsche  Stoat,  91  ff. ;  Stubbs,  Const.  Hist.  I,  13-17.     But  par- 
ticularly, the  searching  criticism  of  Hanssen,  Agrarhistorische  Abhandlungen, 
77  ff. ;  G.  L.  v.  Maurer,  Einleilung,  3,  5. 

s  Tacitus,  Germania,  c.  26 ;  Agri  pro  numero  cultorum  ab  universis  in 
vices  occupantur,  quos  mox  inter  se  secundum  dignationem  partiuntur; 
facilitatem  partiundi  camporum  spatia  praestant.  Arva  per  annos  mutant: 
et  superest  ager. 

4  Prof.  W.  F.  Allen,  Primitive  Democracy  of  the  Germans,  p.  12.     On  the 
much  discussed  Chap.  26  of  the  Germania,  and  its  relation  to  Caesar's 
account  see  Hanssen,  Agrarh.  Abhl.,  91  f.  who  thinks  it  probable  that,  in 
the  time  of  Tacitus  as  well  as  that  of  Caesar,  the  entire  feldmark  of  the 
settlements  in  some  gauen  may  have  been  periodically  changed ;  while  in 
other  gauen,  only  the  fields — aecker — within  the  feldmark  may  have  been 
shifted.     See  also  Waitz,  I,  1 03  ff. ;    Inama-Sternegg,  Deutsche  Wirthschafta- 
geschichte,  7  ff. ;  Thudichum,  Der  altd.  Staat,  96  f. ;  Baumstark,  Erlauterung, 
714  f,  where  various  interpretations  are  collated  and  criticised. 

5  Tacitus,  Germania,  c.  16.    "  Nullas  Germanorum  populis  urbis  habitari, 
satis  notum  est:  ne  pati  quidem  inter  se  junctas  sedes.    Colunt  discreti  ac 
diversi,  ut  fons,  ut  campus,  ut  nemus  placuit.    Vicos  locum,  non  in  nostrum 


14  Evolution  of  the  Township  Organism. 

the  village  settlement,  not  only  because  it  was  probably  of  far 
greater  importance  in  the  life  of  the  primitive  Germans — the 
separate  farmsteads  being  usually  found  only  under  exceptional 
circumstances — but  because  it  is  identical  with  the  mark-society 
or  village  community  whose  history  from  a  very  early  time  is 
full  and  distinct.  Let  us  then  examine  its  constitution  and 
character  as  a  member  of  the  political  organism. 

(6). — Growth  of  the  Mark  Constitution. 

The  mark  or  markgenossenschaft  was  in  its  origin  a  local- 
ized clan,  held  together  by  the  double  tie  of  common  religion 

7  O  *  C-3 

and  real  or  assumed  blood-relationship.1    But  the  relationship 


morem,  connexis  et  cohaerentibus  aedificiis :  suam  quisque  domum  spatio 
circumdat,"  etc. 

This  passage  has  given  rise  to  much  discussion.  G.  L.  v.  Maurer  holds 
that  there  were  two  modes  of  settlement,  both  prevailing  among  freemen — 
single  Hofe  or  farmsteads  and  the  vici  or  Dorfschaften.  But  the  former  were 
not,  as  Moser  and  Kindlinger  imagine,  mere  Einzelnhofe — holdings  of  inde- 
pendent proprietors ;  on  the  contrary  several  such  family  groups  formed  a 
union,  called  also  vicus,  having  community  of  enjoyment  in  the  waste,  but 
not  in  the  arable — no  Feldgemeinschaft :  Einleitung,  2,  5,  30-35.  But  the 
Dorfschaft  had  community  in  both  arable  and  waste.  The  village  system 
was  of  far  greater  importance  than  that  of  the  single  homesteads — the  latter 
being  found  usually  in  mountain  districts,  as  at  present  in  the  Odenwald, 
Tirol,  Voralberg,  etc.,  Ib.  6,  9,  10,  11,  12.  Denman  Ross  contends  that  the 
Einzelnhofe  were  the  private  estates  of  freemen,  while  the  vici  were  villages 
of  slaves  and  dependants  who  cultivated  those  estates:  Early  History  of 
Landholding  among  the  Germans,  1  ff.  Frederic  Seebohm  agrees  substan- 
tially with  Mr.  Boss :  Eng.  Village  Community,  338  f.  Prof.  W.  F.  Allen  of 
the  University  of  Wisconsin  has  ingeniously  suggested  that  those  described 
by  Tacitus  as  living  diversi  ac  discreti  were  the  chiefs  or  principes  surrounded 
by  their  comitatus ;  while  the  mass  of  freemen  lived  in  villages :  Prim. 
Democracy  of  the  Germans,  6-7.  Cf.  Dahn,  Urgeschichte,  I,  54-5. 

1  Caesar,  VI,  22,  states  that  land  was  granted  to  gentibus  cognationib  usque. 
Tacitus,  c.  7,  says  the  army  was  organized  according  to  familiae  et  propinqui- 
tates.  Cf.  Schmid,  Glossar,  626 ;  Waitz,  I,  76  ff.  notes ;  Maurer,  Einleitung, 
3,  4,  13 ;  Thudichum,  Der  altd.  Stoat,  35 ;  Laveleye,  Primitive  Property,  106 
(religious  ceremonies  of  the  mark) ;  Hanssen,  Abhand.,  87 ;  Dahn,  Urge- 
schichte, 103-4;  Kemble,  Saxons,  I,  56  f. ;  Inama-Sternegg,  Deutsche  Wirth- 
schaftsgeschichte,  73  ff. 


The  Mark.  15 

was  more  frequently  artificial  and  the  religious  tie  was  much 
weaker  than  in  the  clan.  Nevertheless  for  a  considerable  time 
after  settled  life  began  the  principles  of  the  family  union — of 
which  the  clan  here  as  elsewhere  was  but  the  expanded  form — 
were  determinative,  not  only  for  the  relations  of  the  mark-men 
among  themselves,  but  also  for  the  relation  of  the  mark-society 
to  the  hundertschqft  and  state.1  But  gradually  an  entirely 
new  principle,  that  of  local  contiguity,  became  more  and  more 
prominent  as  a  condition  of  social  and  political  privilege.  The 
derivation  of  the  word  mark  is  significant  of  this  new  principle  : 
it  means  primarily  any  token  or  sign,  hence  a  border,  a  boun- 
dary ;  and  probably  it  was  originally  applied  to  the  fringe  of 
forest  which  surrounded  the  occupied  territory  of  the  commu- 
nity.2 But  in  practice  the  term  is  also  used  not  only  for  the 
entire  landed  possession,  whether  arable  or  waste,  but  for  the 
society  itself.  Above  the  mark  in  ascending  series  were  the 
hundertschaft  or  gau  —  the  pagus  of  the  Germania ; 3  and  the 
volkerschaft  or  eivitas — the  state  itself.  In  these  we  recognize 
at  once  the  curia  and  tribe  in  their  territorial  aspect.  And,  as 
in  the  case  of  the  clan,  the  mark  is  the  political  unit.4  But  it 
is  something  more.  The  mark-moot  is  the  centre  of  an  active 


1  The  great  importance  of  the  family  constitution  in  the  genesis  of  the 
Markgenossenschaft  is  ably  set  forth  by  Inama-Sternegg,  Die  Ausbildung  der 
grossen  Grundherrschaften  in  Deutschland,  6-24.    He  thus  concludes  his  argu- 
ment :  So  ist  es  denn  wohl  gestattet,  den  Gedanken  auszusprechen,  dass  die 
Familie,  wie  sie  die  Wurzel  des  markgenossenschaftlichen  Verbandes  war, 
so  auch  noch  lange  zeit  massgebend  fur  die  Ausgestaltung  der  markgenos- 
eenschaftlichen  Verhaltnisse  blieb.     In  dem  Familienverbande,  der  das 
Geschlecht  zusammenhielt,  liegt  die  Erkliirung  fiir  die  personliche  Einheit 
der  Genossenschaft,  wie  fiir  ihren  Gesammtbesitz ;  sie  war  eine  rechtliche 
wie  okonomische,  eine  sociale  und  religiose  Einheit,  wie  das  immer  von  der 
markgenossenschaft  spaterer  Zeit  ausgesagt  wird.     Ib.,  p.  11. 

2  Kemble,  Saxons,  I, 42  f. ;  Grimm,  Rechtsalterthtimer,  496-8 ;  Maurer,  Ein- 
leitung,  40-45;  Laveleye,  Prim.  Prop.,  105.  N 

3  On  the  significance  of  gau  and  pagus  see  below,  Chapter  V,  II,  (a),  note. 
4Sohm,  however,  denies  that  the  mark  has  any  political  significance: 

Reichs-  und  Gerichtsverf.,  I,  7,  231.     Cf.  Allen,  Town,  Township  and  Tithing, 
142  ff. 


16  Evolution  of  the  Township  Organism. 

civil  self-government  of  ever  increasing  importance.  Under 
the  presidency  of  an  elected  or  hereditary  chief/  in  the  open 
air,  the  assembly  of  mark-men  constitutes  at  once  a  judicial 
and  a  legislative  body.  Here  petty  differences  are  determined,2 
strangers  are  admitted  to  the  Genossenschaft,  the  beginning 
of  seed-time  and  harvest  is  agreed  upon,  and  measures  for 
securing  the  peace  of  the  community  and  touching  all  that 
concerns  the  common  economic  life  are  devised.  Such  is  the 
typical  "  village  council "  which  Sir  Henry  Maine  declares  to 
be  the  embryo  from  which  "  have  sprung  all  the  famous  legis- 
latures of  the  world."3 

(c). — Economy  of  the  Mark. 

The  question  of  land-holding  and  agriculture  among  the 
early  Germans  has  recently  received  from  writers  on  institu- 
tions more  attention,  perhaps,  than  any  other  topic.  The 
question  is  of  course  important  from  a  social  as  well  as  an 
economic  point  of  view.  But  for  our  purpose  a  bare  state- 
ment of  the  present  results  of  investigation  will,  perhaps, 
suffice.  According  to  the  theory  which  has  thus  far  pre- 
vailed the  mark  is  represented  as  a  village  community  hold- 
ing and  cultivating  the  land  in  common.  Private  property 
in  land — sondereigen — is  at  first  unknown.  The  tenure  is 


1  Maurer,  Einleitung,  241.     For  various  names  of  chief,  see  76.,  138-41. 
The  chief  is  elected  in  the  Russian  Mir  and  the  Swiss  Almend:  Laveleye, 
9,  95 ;  in  South  Slavonic  house  communities  the  eldest  brother  of  the  last 
chief  is  usually  chosen ;  but  eminent  fitness  alone  sometimes  determines  the 
choice  even  of  a  woman :  Maine,  Early  Law  and  Custom,  247-8. 

2  But  Tacitus  ascribes  the  functions  of  judge  in  the  court  of  the  vicus  to 
the  principes :  Germ.,  c.  12.     The  same  seems  to  be  affirmed  by  Caesar :  De 
Eel.  Gal,  VI,  23.     But  Sohm,  Reichs-  und  Gerichtsverf.,  p.  6,  note  17,  main- 
tains that  the  per  vicos  of  Tacitus  is  but  a  repetition  ofperpagos :  there  was  no 
public  court — offentliches  Gericht — in  the  mark.    But,  whether  it  had  proper 
judicial  authority  or  not,  the  mark-moot  certainly  arbitrated  local  disputes. 

3  Early  Hist.  Inst.,  388.     On  the  mark  constitution  see  Maurer,  Einleitung, 
140-72;  Markenverfassung,  71-450;  Kemble,  I,  53  f. ;  Laveleye,  Prim.  Prop., 
Chap.  II  (Russian  Mir),  Chaps.  V,  VI  (Swiss  Almend). 


The  Marie.  17 

merely  gewere1  or  possession.  Private  ownership,  according 
to  this  theory,  is  the  comparatively  late  result  of  the  "disen- 
tanglement of  individual  from  collective  rights."2  Of  late, 
however,  a  series  of  able  writers  have  attacked  this  view  and 
substituted  a  theory  precisely  the  reverse.  According  to  these 
writers  private  property  in  land  existed  first  among  the  Ger- 
mans, and  collective  ownership  was  the  late  result  of  the 
"  entanglement  of  individual  rights,  and  the  gradual  annihila- 
tion of  them.*'3  .But  whatever  view  may  eventually  prevail 
as  to  the  origin  of  private  property,  common  cultivation  seems 
everywhere  to  have  been  a  characteristic  of  the  mark  from 
very  early  times.  The  entire  territory  of  the  community  was 
divided  into  three  portions :  the  village  mark,  the  arable  mark, 
and  the  waste  or  undivided  mark.  The  village  was  sur- 
rounded by  a  wall  or  hedge,  and  within  it  each  family  had 
its  dwelling  with  a  hof  or  plat  of  ground,  likewise  enclosed. 
Each  cultivator  was  entitled  to  a  fixed  share  of  the  arable  and 
to  a  certain  enjoyment  of  the  waste. 

An  intricate  system  of  agriculture  was  gradually  developed. 
The  arable  land  was  usually  divided  into  three  fields  or  zelgen: 
one  for  summer  grain,  one  for  winter  grain,  and  one  to  lie 
fallow  in  rotation.  Sometimes  the  zelgen  were  further  divided 
into  acre  strips  and  then  distributed  by  lot  among  the  mark- 


JOn  gewere  see  Maurer,  Einleiiung,  97-105;  for  the  derivation,  Ross,  22, 
167-8 ;  Grimm,  Reehtscdt.,  555-6. 

2  This  theory  finds  its  chief  exponent  in  G.  L.  v.  Maurer,  who  has  written 
a  series  of  works  on  the  history  of  the  Mark,  Dorf,  Hof  and  Stadt  constitu- 
tions, embodying  the  results  of  immense  research.     His  view  is  adopted  by 
the  great  majority  of  the  very  numerous  writers  on  the  village  community 
and  land-holding. 

3  One  of  the  first  to  raise  serious  doubt  as  to  the  truth  of  the  popu- 
lar theory  was  Inama-Sternegg,  Deutxche  Wirthschaftsgeschichte,  first  three 
Abschnitte.     This  was  followed  by  the  Early  History  of  Land-holding  among 
the  Germans  by  Denman  Ross  of  Cambridge,  Mass.,  and  Frederic  Seebohm's 
English  Village  Community,  both  of  which  show  much  originality  and  re- 
search.     Recently  Fustel  de  Coulanges,  Recherches  sur  quelques  Problemet 
(fHistoire,  189-315,  has  taken  substantially  the  same  position  as  Mr.  Ross. 


18  Evolution  of  the  Township  Organism. 

men.  Such  are  the  broad  outlines  of  the  so-called  "three  field 
system  " — Dreifeldwirthschaft,  which  seems  to  have  been  the 
more  common  method.  But  in  the  days  of  Tacitus,  and  for 
sometime  thereafter,  it  is  "probable  that  a  much  ruder  system 
prevailed — the  so-called  Feldgraswirthschaft  of  the  German 
writers.1  This  consisted  simply  in  cultivating  a  portion  of 
land  until  it  became  exhausted ;  then  allowing  it  to  lie  fallow 
while  another  tract  was  cultivated  in  its  stead. 

III. — THE  TUNSCIPE. 
(a). — Relation  to  the  Mark. 

In  the  early  records  of  English  history  the  tunscipe  or 
township  appears  as  the  lowest  form  of  self-government  and 
the  primary  division  of  the  state.2  The  name  itself  shows  its 
continuity  with  the  mark :  under  whatever  form — the  old 
German  zun,  the  modern  German  zaun,  the  Anglo-Saxon 
tun,  the  English  town — it  means  hedge  or  fence,  just  as  mark 
means  boundary.3  The  historic  identity  of  clan,  mark,  and 
tunscipe  is  further  disclosed  by  the  fact  that  the  names  of 
individual  townships  are  often  patronymics.  "  It  is  probable," 
says  Stubbs,  "  that  all  the  primitive  villages  in  whose  name 
the  patronymic  syllable  ing  occurs  were  originally  colonized 
by  communities  united  either  really  by  blood  or  by  a  belief  in 
a  common  descent." 4  Kemble  has  given  a  long  list  of  names 


1  Hanssen,  Agrarhist.  Abhandl.,  125  ff. ;  Inama-Sternegg,  Deutsche  Wirth- 
schaftsgeschichte,  400  ff.     For  other  systems  of  cultivation  see  Hanssen,  171 
ff. ;  Seebohm,  Eng.  Vil.  Com.,  368  ff. 

2  Tun  in  Hloth.  and  Ead.  5,  Schmid,  16,  seems  plainly  to  mean  township 
(7th  century).     Tunscipe  for  the  inhabitants  or  community  of  a  tun  occurs 
in  Eadgar  IV,  8:  Schmid,  196.    Tunesmen  appears  in  /&.,  IV,  8, 13:  Schmid 
196,  199.     Aelfred's  Baeda,  III,  17,  V,  10,  renders  vicus  and  viculus  by  tun 
and  tunscipe :  Stubbs,  I,  82,  note  6.     But  tun  in  the  early  laws  often  means 
merely  the  fortified  house  of  a  king  or  lord.     Schmid,  Glossar,  663. 

3 Schmid,  Gloss.,  663;  Skeat,  "Town;"  Allen,  Town,  Township,  and  Tith- 
ing, 145. 
*  Const.  Hist.  I,  81. 


The  Tunacipe.  19 

of  places  which  he  regards  as  being  originally  names  of  groups 
of  kindred  settled  in  mark-societies.1  But  it  is  a  matter  of 
dispute  whether  the  mark  system  of  free  genossen  or  associates 
ever  existed  in  England.  Mr.  Kemble2  maintained  that  it 
was  transplanted  in  its  purity  to  the  soil  of  Britain;  and  Pro- 
fessor Freeman  has  given  this  theory  his  powerful  support.3 
But  for  a  hundred  and  fifty  years  after  the  first  English 
settlement  there  is  a  complete  blank  in  historic  records. 
Bishop  Stubbs,  ever  cautious  as  to  his  inferences  touching  this 
early  period,  says  of  the  township  that  "  in  its  earlier  form  it 
may  have  been  the  community  of  free  and  kindred  cultivators, 
or  what  is  called  the  Mark.  It  cannot  be  safely  affirmed  that 
the  German  settlers  in  Britain  brought  with  them  the  entire 
mark  organization,  or  that  that  system  was  ever  in  Anglo- 
Saxon  times  the  basis  of  local  organization.  .  .  .  But  of  such 
an  institution  there  are  distinct  traces."  "*  The  recent  investi- 
gations of  Frederic  Seebohm  have,  however,  established  a 
strong  probability  that  from  the  earliest  Teutonic  settlements 
in  Britain  society  was  developing  itself  on  manorial  lines, 
lands  being  cultivated  in  common,  chiefly  by  serfs,  according 
to  the  "  open  field  system." 5  But  whatever  the  original  state 


1  Saxons,  I,  58  ff.,  449-86.     See  however  Waitz,  I,  79,  who  thinks  that  the 
endings,  ing,  ingen,  ungen  may  denote  connection  in  general — eine  Zugehorig- 
keit:  eben  so  gut  geographische  als  personliche  Beziehungen  liegen  dabei 
zu  Grunde.     Konrad  Maurer,  Krit.  Ueb.,  I,  70,  follows  Kemble,  but  urges 
caution  in  inferences  from  names. 

2  Saxons,  I,  35-71. 

3  Comparative  Politics,  123,  395,  409  f ;  Norman  Conquest,  I,  57  ;  Growth  of 
the  English  Const.,  Chap.  I.     This  view  is  also  held  by  Green,  Hist.  Eng. 
People,  I,  10  ft'.;  Making  of  England,  Chap.  IV;  Short  Hist.,  41.    K.  Maurer, 
Krit.  Ueb.,  I,  63  ff.  agrees  mainly  with  Kemble,  comparing  the  views  of 
other  writers. 

^Const.  Hist.  I,  83.  Gneist,  Selfgovernment  (1871),  p.  2,  says:  Die  gemein- 
samen  Marken  der  Hundertschaften  und  Dorfschaften  haben  hier  von 
Anfang  an  keine  fiir  die  Verfassung  entscheidende  Bedeutung. 

5  The  English  Village  Community,  particularly  p.  179.  Mr.  Seebohm's 
theory  has  been  attacked  by  Prof.  Allen,  for  the  ante-Norman  period  in 
1  he  Village  Community  and  Serfdom  in  England,  and  by  Mr.  Paul  Vinogradoff 


20  Evolution  of  the  Township  Organism. 

of  English  society  may  have  been,  the  labors  of  the  last  named 
scholar  and  various  preceding  writers  have  proved  conclusively 
that  common  fields  still  exist  and  have  existed  for  ages  in 
England  and  that  common  cultivation  lasted  until  very  recent 
times.1 

(6). — Old  English  lown  Organization. 

Let  us  now  pass  to  the  question  which  more  nearly  concerns 
our  present  purpose — the  character  of  the  township  organiza- 
tion. As  we  have  already  seen  it  bore  traces  of  the  essential 
elements  of  the  primitive  clan.  There  was  originally  com- 
munity of  blood  and  even  of  worship  :  and  when  the  ancient 
gods  were  dethroned,  the  pagan  fane  was  superseded  as  a 
common  sanctuary  by  the  parish  church.2  But  the  principles 
of  blood  and  religion  were  shadowy  and  no  longer  constituted 
the  real  bond  of  society.  The  township  appears  in  a  strictly 
political  aspect  as  the  unit  of  the  "  constitutional  machinery." 
Distinction  is  made  between  "free"  and  "dependent"  town- 
ships :  the  former  "  may  represent  the  original  allotment  of  the 
smallest  subdivision  of  the  free  community,  or  the  settlement 
of  the  kindred  colonizing  on  their  own  account ; "  the  latter 
is  "the  estate  of  the  great  proprietor  who  has  a  tribe  of 


in  his  Inquiries  into  the  Social  History  of  Mediaeval  England,  which  treats  of 
the  llth,  12th  and  more  particularly  of  the  13th  centuries.  This  work 
though  untranslated  from  the  Russian  has  been  ably  reviewed  and  a  clear 
outline  of  its  purpose  given  by  Prof.  Kovalevsky  in  the  Law  Quarterly 
Review  for  July,  1888. 

JMr.  Seebohm  has  traced  the  system  and  illustrated  it  with  charts,  in  his 
own  township  of  Hitchin,  which  is  also  a  royal  manor.  See  Nasse,  On  the 
Land  Communities  etc.  in  England ;  Maine,  Village  Communities,  Chap.  Ill ; 
William  Maurer,  Anglo-Saxon  Mark  Courts;  Gomme,  Traces  of  Primitive 
Village  Communities  in  Eng.  Munc.  Inst.,  Archaeologia,  Vol.  46,  1880-81.  On 
rights  of  Common  and  the  Enclosures,  Williams,  Eights  of  Common  ;  Elton 
The  Law  of  Common  and  Waste  Lands ;  and  Observations  on  the  Sill  for  the 
Regulation  and  Improvement  of  Commons.  Laveleye,  Prim.  Prop.,  Chap. 
XVIII.  See  also  Gomme,  Primitive  Folk-Moots,  9,  10,  116-118;  Pollock, 
Land  Laws,  19-50;  Taylor,  Domesday  Survivals,  Cont.  Rev.,  Dec.,  1886. 

2  Kemble,  Saxons,  I,  73 ;  II,  424. 


The  Tunscipe.  21 

dependents."1  At  least  from  the  beginning  of  the  tenth 
century,  it  is  likely  that  the  majority  of  communities  had 
become  economically  dependent;  and  before  the  Norman 
Conquest  the  infeudation  of  the  land  was  nearly  if  not  quite 
complete,  while  jurisdiction  had  also  in  most  cases  been  gained 
by  the  thegns  or  territorial  lords.2  But  whether  free  or 
dependent  the  constitution  of  the  township  was  practically  the 
same.  In  the  tungemot  or  town-meeting  was  transacted  all 
the  important  business  of  the  community.  Here  by-laws3 
were  enacted  by  the  assembled  freemen  or  tenants,  the  less 
important  contentions  between  man  and  man  adjusted,  and 
petty  offenders  tried  and  punished.  But  the  hundred  moot 
was  the  regular  tribunal  for  the  more  important  judicial 
business.  The  tungemot  was  a  "meeting"  rather  than  a 
court.4  The  officers  of  the  township  were  the  gerefa6  or 
head-man,  the  bydel  or  messenger,6  and  the  tithingman.  In 
the  free  township  these  were  probably  elected  by  the  people, 
but  in  the  dependent  the  reeve  and  bydel  were  appointed 
by  the  lord;7  while  the  tithingman  was  probably  always  an 


lStubbs,I,82. 

2  This  is  the  view  of  Stubbs,  Const.  Hist.,  Chap.  VII ;  but  if  Seebohm  is 
correct  manorial  townships  prevailed  from  the  beginning.  For  views  of 
older  writers  see  Ellis,  Int.  to  Domesday,  I,  224-5 ;  Spelmann,  Origin,  etc.,  of 
Feuds  and  Tenures,  in  English  Works,  1-46. 

3 That  is,  "town-laws:"  from  the  Danish  by:  Skeat;  Stubbs,  I,  90; 
Palgrave,  Commonwealth,  I,  80. 

*  Stubbs,  I,  90. 

6  The  derivation  of  gerefa  is  obscure.  Skeat,  "  Keeve,"  derives  it  from 
A.  S.  r6f,  active,  or  excellent;  Kemble,  Saxons,  II,  154,  gives  the  same 
derivation.  Skeat  denies  its  connection  with  German  Graf.  Spelmann, 
Glossary  (1626),  pp.  319-20,  derives  it  from  A.  S.  redfan,  to  plunder; 
therefore  exactor.  See  Kemble,  II,  151-4,  and  Stubbs,  I,  82,  note  7,  for  a 
discussion  of  views. 

6  Canute,  1, 26 ;  Eadgar,  IV,  1,  \  2 ;  Schmid,  268, 194.    In  Schmid,  Anhang, 
IV,  19,  p.  387,  the  bishop  is  called  the  "  bydel  of  God's  law." 

7  Stubbs,  I,  82,  who  quotes  Aethelstan,  III,  7,  §  1 :  Si  tune  sit  aliquis, 
qui  tot  homines  habeat,  quod  non  sufficiat  omnes  custodire,  praeponat  sibi 
singulis  villis  praepositum  unum.     Schmid,  149 ;  Palgrave,  I,  82. 


22  Evolution  of  the  Township  Organism. 

elective  officer.1  In  the  town-meeting  were  also  executed  the 
decrees  of  the  higher  courts  relating  to  taxation,  pursuit  of 
criminals,  and  the  search  for  stolen  goods ;  but  in  the  depen- 
dent townships  some  of  these  duties  devolved  upon  the  lord's 
steward  or  gerefa.2 

(c). —  The  Germ  of  Representative  Government. 

Besides  its  powers  as  a  self-governing  body  and  as  agent  of 
the  higher  administration,  the  township  possessed  one  privilege 
of  surpassing  interest :  the  right  of  representation  through  the 
"reeve  and  four  best  men"  in  the  assemblies  of  the  hundred 
and  the  shire.  In  this  we  see  the  germ  of  that  representa- 
tive system  which  characterizes  English  civil  and  ecclesiastical 
government.  From  this  humble  beginning  it  has  gradually 
expanded  until  it  now  embraces  the  united  church  in  convo- 
cation and  the  united  kingdom  in  the  House  of  Commons ; 
while  in  America  it  has  proved  its  capacity  to  bind  together 
in  a  strong  federal  union  a  still  broader  empire.3  Simple  as 
is  the  expedient  of  popular  representation,  it  is  none  the  less 
true  that  it  never  once  occurred  to  the  Hellenic  or  Roman 
world  save  perhaps  vaguely  in  the  decline  of  the  Grecian 
States. 

The  concentric  circles  of  Aryan  social  and  political  organism 
each  finds  its  analogue  in  our  own  institutions ;  but  each  has 
become  a  strictly  local  group,  a  mere  neighborly  association. 
The  once  sacred  and  imperative  conditions  of  social  or  politi- 
cal privilege,  community  of  blood  and  religion,  have  long 
since  ceased  to  be  more  than  a  recollection.  Township  ex- 
panded into  hundred,  and  hundred  into  shire ;  but  the  shire 


1  Stubbs,  I,  90,  note  3. 

2  Stubbs,  I,  90,  where  the  laws  are  cited.     On  the  primitive  "  open  air  " 
meetings  and  their  functions  much  interesting  information  is  given  by 
Gomme,  Primitive  Folk^moots,  London,  1880. 

3  See  on  the  township  and  representation,  John  Fiske,  American  Political 
Ideas. 


The  Tithing  and  the  Manor.  23 

became  u  part  of  the  kingdom,  not  the  territorial  appendage 
of  a  city.  In  England  the  city  has  always  constituted  an 
intend  and  dependent  part  of  the  shire,  at  most  having  an 
independence  in  local  affairs  based  strictly  on  the  concessions 
of  its  charter. 

IV. — AFFILIATED  AND  DIFFERENTIATED  FORMS  OF  THE 
TOWNSHIP:  THE  TITHING  AND  THE  MANOR. 

The  history  of  the  various  offshoots  of  the  township  fur- 
nishes one  of  the  most  interesting  examples  of  institutional 
evolution.  In  the  adaptation  of  its  organism  to  the  discharge 
of  new  groups  of  functions,  required  by  a  more  developed  and 
complex  social  life,  a  process  takes  place  strictly  analogous  to 
the  differentiation  of  variety  or  species  in  animal  or  vegetable 
forms.  The  township  is  historically  identical  with  no  less 
than  four  bodies,  none  of  which  are  popularly  associated  with 
it.  These  are  .the  tithing,  the  manor,  the  parish,  and  the 
borough.  The  development  of  the  latter  from  the  burh  or 
more  strictly  organized  township  of  the  old  English  period, 
constituting  a  most  interesting  example  of  institutional  evolu- 
tion, cannot  here  be  traced  :  the  others  will  be  noticed  in  the 
order  named.1 

(a}.— The  Tithing. 

The  origin  of  the  teothung  or  tithing  is  very  obscure.  The 
name  itself  seems  to  imply  either  a  tenth  of  some  larger  whole, 
as  the  hundred,  or  a  union  of  ten  men  or  families.  On  the 
Continent  traces  of  such  an  institution  as  a  mere  numerical 
division  of  the  host  have  been  discovered  in  the  laws  of  the 
Franks,  Bavarians  and  Burgundians.-  Simply  as  a  personal 
body  it  may,  perhaps,  be  regarded  as  a  common  Germanic 


'On  the  evolution  of  the  Borough,  see  Vol.  II. 
2  K.  Maurer,  Krit.  Ueb.,  I,  76. 


24  Evolution  of  the  Township  Organism. 

institution;1  but  on  the  Continent  it  does  not  appear  any- 
where to  have  reached  the  stage  of  localization..  Whatever 
may  have  been  its  original  character,  the  tithing  first  comes  to 
view  in  England  in  the  laws  of  Eadgar,2  seemingly  as  both  a 
personal  and  territorial  division  of  the  hundred.3  In  some 
instances,  therefore,  it  would  probably  already  correspond  to 
the  township :  for  the  name  had  lost  the  exact  numerical  sig- 
nificance which  it  may  once  have  possessed.4  At  any  rate  the 
result  was  in  many  cases,  that  sooner  or  later  both  the  name 
and  the  functions  were  sunk  in  the  township.  On  the  other 
hand  it  is  remarkable  that  in  some  shires  an  opposite  process 
has  taken  place.  According  to  Pearson  "all  the  counties 
south  of  the  Thames,  except  Kent  and  Cornwall,  and  the  two 
counties  of  Gloucestershire  and  Worcestershire,  contain  one  or 
more  tithings,  which  still  have  distinct  limits.  In  some  cases 
two  or  more  tithings  make  up  a  parish  ;  in  others  the  tithing 
is  added  on.  Elsewhere  sub-divisions  of  this  sort  are  known 
as  townships  or  hamlets.  The  former  is  the  usual  term  in 
the  west  and  north  :  the  latter  in  the  east."  5 


1  Waltz,  I,  167,  denies  that  the  tithing  was  an  original  Teutonic  institu- 
tion.    Gneist,  Hist.  Eng.  Const.,  I,  51,  458  f.,  declares  that  the  decania  or 
decuria  of  the  Franks  and  other  continental  Germans  was  a  mere  division 
of  the  host  without  constitutional  significance.      See   his  Selfgovernment 
(1871);  cf.  Creasy,  Hist,  of  England,  I,  169. 

2  Eadgar,  I,  2 :  in  case  of  stolen  cattle  "  let  it  be  made  known  to  the  hun- 
dredman,  and  let  him  (make  it  known)  to  the  tithingmen ;  and  let  all  go 
forth  to  where  God  may  direct  them  to  go :  let  them  do  justice  on  the  thief," 
etc. :  Thorpe,  I,  259.    Cf.  Eadgar,  I,  4.    Canute,  Secular  Laws,  20 :  Thorpe, 
I,  387,  orders  every  free  man  to  be  brought  into  a  hundred  and  a  tithing. 

'Gneist,  Hist.  Eng.  Const.,  I,  51-2,  denies  that  the  old  English  tithing 
had  any  local  significance,  local  tithings  appearing  first  in  the  14th  cen- 
tury. But  see  Pearson,  Mid.  Ages,  I,  250-1 ;  Palgrave,  Commonwealth,  II, 
CXX1 ;  Phillips,  Angelsachs.  Rechts.,  82 ;  Stubbs,  I,  86. 

4  Palgrave,  Commonwealth,  I,  192;  II,  CXXI;  Waitz,  Verfassungsgeschichte, 
I,  448.     Cf.  Spencer,  Principles  of  Sociology,  II,  462  ff. ;  Dr.  H.  B.  Adams, 
Saxon  Tithingmen,  16  ff. 

5  Pearson,  Historical  Maps,  57.     Cf.  16.,  p.  29;  Stubbs.  Const.  Hist.,  I,  86, 
note  2. 


The  Tithing  and  the  Manor.  25 

In  the  tenth  century,  however,  the  tithing  was  employed 
mainly  as  a  police  organization.  The  only  officer  was  the 
tithingmaii — the  prototype  of  the  petty  constable.  His  duties, 
like  those  of  the  huudredraan  above  him,  were  largely  con- 
cerned with  the  pursuit  of  thieves  and  other  malefactors  and 
the  search  for  stolen  goods.1 

(b).—The  Manor.2 

It  was  by  an  interesting  but  entirely  natural  process  that 
the  tunscipe  became  transformed  into  the  manor.  The  name* 


1  See  further,  Kemble,  Saxons,  I,  Chap.  IX,  who,  however,  confuses  the 
tithing  with  the  gegyldan  and  the  frankpledge.  The  whole  subject  is 
reviewed  by  Waitz,  Verfassungsgeschichte,  I,  Beilage  I,  424  ff. ;  K.  Maurer, 
KriL  Ueb.,  I,  87-96;  Toulmin  Smith,  The  Pariah,  15-16;  Hallam,  Mid. 
Ages,  II,  265,  273  ff. ;  Taswell-Langmead,  Const.  Hist.,  35-6;  Barnes,  Origin 
of  the  Hundred  and  Tithing,  in  Journal  of  Brit.  Arch&ological  Association, 
1872,  pp.  21  ff. ;  Allen,  Town,  Township  and  Tithing,  152  ff. 

1  One  of  the  earliest  treatises  on  manorial  law  is  Le  Court  Leete  et  Court 
Baron  of  John  Kitchin,  1598.  It  is  written  in  French  and  was  designed 
as  a  practical  manual  for  guidance  of  the  courts.  I  have  used  a  copy  from 
the  edition  of  1623,  kindly  loaned  me  by  Dr.  H.  B.  Adams,  of  Baltimore. 
A  later  and  more  convenient  work  is  the  Practice  of  Courts-Leet  and  Courts- 
Baron,  by  Chief-Justice  Scroggs,  London,  1728.  On  the  history  of  the  manor 
some  valuable  notices  may  be  found  in  Ellis'  Introduction  to  Domesday  Book', 
and  Pearson's  Historical  Maps  of  England  contains  very  interesting  matter, 
especially  the  discussion  of  the  relations  of  the  manor  to  the  township, 
parish,  tithing,  and  hundred  :  see  pp.  29  ff,  56  ff.  The  functions  of  the 
manorial  courts  are  illustrated  in  Edward  Peacock's  Notes  from  the  Court 
Rolls  of  the  Manor  of  Scatter,  where  curious  extracts  from  the  original  records 
are  given.  Glanville  has  one  or  two  important  passages;  and  manorial 
tenures  are  treated  in  Elton's  Tenures  of  Kent  and  Somner's  Of  Gavelkind. 

Among  modern  accounts  I  have  found  that  of  Gneist  in  his  Selfgovernment 
and  the  Const.  Hist,  most  satisfactory.  For  the  early  period  Stubbs'  Constitu- 
tional History  is  indispensable.  Biener's  Geswornengericht,'Vo\.  I,  Seebohm's 

3Skeat:  properly  "a  place  to  dwell  in;"  from  old  French  memoir,  maneir, 
to  dwell :  from  Latin  manere.  Cf.  Littre,  manoir.  Mansus  is  the  cor- 
responding Latin  word  in  the  documents  of  the  Saxon  period.  Gneist, 
Hist.  Eng.  Const.,  I,  148. 


26  Evolution  of  the  Township  Organism. 

and  the  full  development  of  the  usages  and  organism  of  the 
latter  belong,  of  course,  to  the  Norman  era.  But  territorially 
it  originated,  if  not  already  in  the  age  of  Tacitus,1  at  least 
early  in  the  old  English  period,  being  identical  with  the 
dependent  township,  already  mentioned.  In  the  later  Saxon 
reigns  great  numbers  of  such  large  estates  must  have  been 
created  by  grants  of  folc-land,  and  the  grants  usually  included 
the  profits  of  jurisdiction,  if  not  the  jurisdiction  itself.  And 
in  those  instances  where  full  jurisdiction,  civil  and  criminal, 
equivalent  to  that  of  the  hundred  court,  was  gained  by  lords 
with  grants  of  sac  and  soc,  the  development  of  the  manor  was 
essentially  complete.2 


Village  Community,  Blackstone's  Commentaries,  Toulmin  Smith's  Parish, 
Stephen's  History  of  Criminal  Law,  Spelmann's  Glossary,  and  various  other 
authorities  have  been  of  service.  The  difficulties  of  the  question  as  to  the 
origin  of  manors  and  of  the  original  status  of  the  bulk  of  the  population 
whether  free  or  servile,  are  clearly  explained  in  Mr.  W.  J.  Ashley's  Intro- 
duction to  English  Economic  History  and  Theory. 

Leading  special  works  on  the  law  and  procedure  of  the  manorial  courts 
are  Scriven,  Treatise  on  Copyhold;  Ritson,  Jurisdiction  of  the  Court  Leet; 
Jacob,  Complete  Court  Keeper  or  Lord  Steward's  Assistant;  Watkins,  On 
Copyholds;  Elton,  Custom  and  Tenant  Right;  Hazlitt,  Tenures  of  Land  and 
Customs  of  Manors.  For  a  bibliography  of  the  subject  see  Gomme,  Litera- 
ture of  Local  Institutions,  168  ff.,  where  may  also  be  found  a  good  historical 
sketch. 

Lawrence's  Extracts  from  the  Court  Rolls  of  the  Manor  of  Wimbledon  is  a 
mine  of  information  with  respect  to  local  customs  and  the  business  of  the 
courts  leet  and  baron.  The  as  yet  unpublished  manuscript  of  Mr.  Chas. 
M.  Andrews,  Fellow  in  History  at  the  Johns  Hopkins  University,  on  the 
Anglo-Saxon  Manorial  Life,  contains  the  best  treatment  which  I  have  seen 
of  that  phase  of  the  subject.  Mr.  Andrews'  work  will  be  published  in  the 
University  Studies. 

1  As  held  by  Ross  and  Seebohm.     Stubbs,  I,  33,  thinks  the  "lordship — 
that  quasi-manorial  system — is  only  in  very  few  particulars  reconcilable 
with  the  sketch  of  Tacitus." 

2  Whether  grants  of  anything  more  than  the  profits  of  jurisdiction  existed 
until  the  very  eve  of  the  Norman  Conquest  is  a  matter  of  dispute.     Stubbs, 
I,  184-6,  believes  private  jurisdiction  may  have  existed  very  early,  and 
become  general  in  the  reign  of  Canute ;  but  see  on  the  whole  question  the 
Anglo-Saxon  Courts  of  Law,  by  Prof.  Henry  Adams,  Essays,  pp.  27-54,  who 


The  Tithing  and  the  Manor.  27 

Tli<>  single  manor  was  merely  the  town.slii|>,  territorially  and 
personally,  under  new  judicial  and  economical  conditions.  The 
great  honor  or  liberty,  it  is  true,  often  comprised  an  entire 
hundred,  or  even  a  county  or  parts  of  several  counties;  but 
these  were  composed  of  single  manors  whose  organization  was 
not  destroyed  by  their  incorporation  in  the  larger  body.1  The 
transformation  of  the  township  into  a  manor  did  not  necessarily 
imply  a  loss  of  liberty,  of  the  right  of  self-government.  The 
feudal  lord  might  by  usurpation  become  a  grievous  oppressor, 
but  organically  the  old  privileges  were  maintained  :  "  the 
existence  of  the  relations  of  homage  made  no  difference  in  the 
fact  of  Local  Self-Government — only  in  the  particular  form 
under  which  it  should  be  exercised."5  The  essence  of  the 
change  lay  in  the  fact  that  a  public  jurisdiction  was  lodged  in 
private  hands.3  In  the  Norman  manor  the  old  township 
gerefa  is  represented  by  the  lord's  steward ;  and  the  Saxon 
bydel  appears  as  the  bailiff;  but  it  is  interesting  to  note,  as  an 
instance  of  the  differentiation  of  functions,  that  the  old  reeve 
and  bydel  still  exist  side  by  side  with  the  new  functionaries, 
but  in  a  subordinate  capacity  under  the  name  of  grave  and 
bedell ;  while  for  purposes  of  representation  the  "  reeve  and 
four"  still  appear  in  the  hundred  and  shire  moots.4 

The  local  affairs  of  each  manor  were  transacted  in  several 
dilTerent  courts  or  assemblies.  .In  the  "court  customary" 
held  before  the  steward  the  business  of  the  domestics  and 
tenants  of  the  domain  lands — the  villani,  later  copy-holders — 


maintains  that  no  such  jurisdiction  existed  before  Edward  the  Confessor. 
Contrary  to  the  usual  view,  he  holds  that  socn  means  a  grant  of  the  profits  of 
jurisdiction,  and  that  sacu,  German  sache,  means  jurisdiction.  Ib.,  p.  40  ff. 
Cf.  K.  Maurer,  Krit.  Ueb.,  II,  57  f.;  Schmid,  Glossar,  pp.  653,  and  Giu-ist, 
Hint.  Eng.  Const.,  I,  52,  147  f.,  170,  who  favor  the  earlier  origin.  See,  also, 
Ellis,  Int.  to  Domesday  Book,  I,  224  ff. ;  Pearson,  Historical  Maps,  29 ;  Elton, 
Tenures  of  Kent,  9,  121 ;  Gomme,  Literature  of  Local  Inst.,  171  ff. 

'Stubbs,  I,  399-402;  Gneist,  Hist.  Eng.  Const.,  I,  148-9,  173  note. 

2  Toulmin  Smith,  Self-Gorernmcnt,  223-4. 

"Stubbs,  Const.  Hist.,  I,  401. 

4Stubbs,  Oonst.  Hist.,  I,  274. 


Evolution  of  the  Township  Organism. 

was  dispatched.  This  consisted  of  all  civil  actions  concerning 
their  services  or  holdings,  or  disputes  among  themselves.1  The 
court  baron2 — the  freeholder's  court — was  simply  the  old  tun- 
gemot  with  a  new  name.  This  court  exercised  jurisdiction  in 
all  civil  actions  and  in  cases  of  theft  and  other  minor  criminal 
offences.  The  suitors  were  the  freeholders  of  the  "  tenemental " 
lands,  including  all  undervassals  or  "  grantees  "  of  the  lord  of 
the  manor.  As  in  the  old  tungemot  they  made  their  own 
by-laws  and  were  the  sole  judges,  deciding  all  questions 
according  to  the  custom  of  the  particular  neighborhood.3 

But  by  far  the  most  interesting  thing  connected  with  the 
manor  is  the  court  leet,  literally  the  folkmoot.4  The  term  is 
generic  :  courts  leet  were  not  only  granted  to  lords  of  manors, 
but  to  monasteries,  boroughs,  and  even  villages ;  or,  on  aliena- 
tion of  the  landed  estates,  the  leet  jurisdiction  might  be  reserved 
and  thus  become  exercised  over  a  district  with  which  the  pos- 
sessor of  the  leet  had  no  other  connection.5  But  wherever 
found,  according  to  the  later  theory  of  the  lawyers,  the  leet 
must  be  regarded  as  an  offshoot  or  branch  of  the  sheriff's 
tourn 6 — that  is,  of  the  shire  court  sitting  twice  a  year  in  each 
hundred  of  the  county;  and  as  such  it  is  held  to  be  always  the 


JOn  court  customary  see  Wood,  Institute,  511-16;  Gneist,  Hist.  Eng.  Const. 
I,  169 ;  Scroggs,  Courts-Leet  and  Courts-Baron,  80 ;  Maine,  Village  Communi- 
ties, 134 ;  Stubbs,  I,  399. 

2  Baron  from  O.  H.  G.  bar,  a  man,  Skeat.    On  the  various  uses  of  the  word 
see  Spelmann,  Glossary  (1626)  p.  76  ff.     The  legal  maxim  is:  man  ne  posit 
est  sans  court  baro :  Kitchin,  Court  Leete  et  Court  Baron,  4. 

3  On  the  court  baron  see  Biener,  Das  Eng.  Geschwornengericht,  I,  50,  52 ; 
Blackstone,  III,  33-4 ;  Gneist,  Hist.  Eng.  Const.,  I,  170  f.,  190 ;  Stubbs,  I, 
184-6,  399 ;  Glanville  XII,  6,  Phillips,  Eng.  Reichs  u.  Eechtsgeschiehte,  II, 
443 :   Placita  cujusque  curiae  secundem  consuetudines  suas  agitantur,  etc. 
Cf.  text  of  Phillips,  II,  86  f. 

4  Leet,  cognate  with  German  Leute.    Gneist,  II,  166 ;   Adams,  Norman 
Constables,  13. 

5  Gneist,  II,  167. 

6 The  tourn  was  therefore  the  "great  court  leet,"  as  the  old  hundred  court 
was  the  court  baron  of  the  hundred  and  the  county  court  that  of  the  shire. 
Stubbs,  I,  104 ;  Scroggs,  Courts-Leet  and  Courts-Baron,  1  ff. 


The  lithing  and  the  Manor.  29 

creation  of  royal  prerogative.  Accordingly  in  case  of  extinc- 
tion by  forfeiture  or  otherwise  the  leet  jurisdiction  merges  in 
the  tourn.  It  is  a  manorial  court ;  but  suitors  are  obliged  to 
attend  not  as  tenants  of  the  franchise  but  as  subjects  of  the 
crown — suit  real.1 

The  jurisdiction  of  the  manorial  court  leet  was  coordinate 
with  that  of  the  sheriff's  tourn,  extending  to  all  crimes  and 
offences  punishable  by  common  law,  except  pleas  of  the  crown, 
being  chiefly  such  as  by  the  old  system  could  be  settled  by 
money  composition  ;  and  it  is  curious  to  observe  that  after 
magna  charta  had  declared  that  liberi  homines  should  not  be 
amerced  save  by  the  judgment  of  their  peers,  it  became  cus- 
tomary to  choose  two  suitors  as  "affeerers"  to  assess  the 
penalties.2  Grants  of  the  right  to  have  a  court  leet  were 
eagerly  sought  in  the  Norman  period,  and  paid  for  by  heavy 
subsidies  or  fines.  Three  powerful  motives  for  securing  such 
grants  existed :  escape  from  the  jurisdiction  of  the  sheriff  or 
his  bailiff,  who  was  arbitrary  and  negligent  in  the  perform- 
ance of  his  duties;  the  desire  of  the  local  communities  to  have 
restored  the  right  of  controlling  their  own  affairs ;  and  the 
wish  of  both  lord  and  people  to  gain  a  criminal  jurisdiction 
more  extended  than  that  of  the  court  baron.  And  in  this  last 
right  we  have  a  signal  proof  that  the  functions  of  the  town- 


1  Gneist,  II,  166  f.,  Hist.  Eng.  Const.,  191-2. 

There  is  considerable  variation  in  the  application  of  the  nomenclature : 
"court  of  the  manor"  is  used  to  comprehend  the  three  courts  as  later  dis- 
tinguished ;  the  curia  baronum  is  also  sometimes  used  to  comprehend  the 
"  customary  court."  In  a  certain  sense,  the  court  leet  is  but  an  emanation 
of  the  court  baron,  through  the  tendency  of  legal  science  to  differentiate 
and  sharply  define.  It  may  therefore  be  regarded  as  originating  in  the 
ancient  town  and  hundred  moots.  The  theory  that  the  leet  is  essentially 
a  branch  of  the  royal  jurisdiction  is  a  part  of  the  tendency  to  make  the 
king  the  source  of  justice.  See  Maine,  Village  Communities,  139-40.  The 
jurisdiction  of  the  curia  baronum  was  also  converted  into  a  personal  grant 
which  could  be  refused.  Gneist,  Hist.  Eng.  Const.,  I,  172;  Leges  Hen.  I, 
19 :  Schmid,  p.  446. 

'Gneist,  II,  168;  Scroggs,  Courts-Leet  and  Courts-Barvn,  6,  29. 


30  Evolution  of  the  township  Organism. 

ship  were  not  curtailed  by  its  conversion  into  a  manor.  There 
is  in  this  instance  an  actual  gain  :  while  retaining  its  powers 
as  a  moot,  the  township  has  added  the  judicial  powers  of  the 
hundred  court — even  those  of  the  old  county  court  as  exer- 
cised by  the  sheriff  in  his  tourn. 

In  the  leet  the  steward  was  judge;  but  the  verdict  was 
rendered  by  a  jury  or  rather  committee  of  the  suitors,  the 
latter  consisting  of  all  persons  between  the  ages  of  12  and  60, 
residing  within  the  precincts  of  the  manor,  except  peers  and 
clergymen.  The  leet  jury  is  thus  the  representative  of  the 
ancient  participation  of  the  whole  community  in  the  local 
courts,  reminding  us  of  the  twelve  seignior  thegus  of  the 
hundred  and  the  shire  moots.1  In  this  court  the  suitors  chose 
constables,  enacted  by-laws,  kept  the  roll  of  their  own  mem- 
bership perfect  ;2  and  the  judicial  procedure  was  identical  with 
that  of  the  ancient  popular  courts.3  Leets  were  held  regularly 
but  twice  a  year;4  and  were  therefore  totally  inadequate  to 
discharge  properly  the  functions  of  police  or  peace  tribunals. 
Hence  with  the  rise  of  justices  of  the  peace,  and  the  coopera- 
tion of  other  causes,5  they  gradually  fell  into  decay.  But  the 
entire  manorial  machinery  has  survived  to  our  own  times, 
though  shorn  of  much  of  its  importance,6  and  the  various  courts 
have  continued  to  discharge  functions  which  demonstrate  the 
identity  of  the  manor  with  the  most  ancient  form  of  local  gov- 


1Gneist,  II,  167.  For  illustrations  of  the  composition  and  procedure  of 
the  leet  juries,  see  Lawrence,  Extracts  from  the  Court  Rolls  of  Wimbledon. 

2  Toulmin  Smith,  The  Parish,  47-8,  note.  See  interesting  examples  of 
by-laws  and  orders  in  Peacock,  Notes  from  the  Court  Rolls  of  the  Manor  of 
Scatter,  377-9,  383  fl'.  Cf.  Kitchin,  Court  Leete  et  Court  Baron,  45. 

3Gneist,  II,  168-9,  describes  the  procedure.  Cf.  Toulmin  Smith,  Sdf- 
Government,  225;  Stubbs,  I,  401. 

4  But  according  to  18  Henry  III,  1234,  they  were  to  be  held  once  in  three 
weeks ;  and  they  had  been  held  under  Henry  II  twice  a  month.     Toulmin 
Smith,  Self-Government,  220-21. 

5  Summarized  by  Gneist,  Hist.  Eng.  Const.,  I,  173-5 ;  cf.  76.,  190  f. 

6  This  is  the  regret  of  Toulmin  Smith  who  pleads  for  a  revival  of  the 
courts:  Self -Government,  273  f . ;  The  Parish,  23,  216,  369,  etc. 


The  Parish.  31 

eminent.  "The  right  of  the  markmen  to  determine  whether 
:i  new  settler  should  be  admitted  to  the  township  exists  in  the 
form  of  admitting  a  tenant  at  the  eourt  bamn  and  customary 
court  of  every  manor;  the  right  of  the  markmen  to  determine 
the  by-laws,  the  local  arrangement  for  the  common  husbandry, 
or  the  fencing  of  the  hay-fields,  or  the  proportion  of  cattle  to 
he  turned  into  the  common  pasture,  exists  still  in  the  manorial 
courts  and  in  the  meetings  of  the  townships  :  the  very  customs 
of  relief  and  surrender  which  are  often  regarded  as  distinctly 
feudal,  are  remnants  of  the  polity  of  the  time  when  every 
transfer  of  property  required  the  witness  of  the  community, 
to  whose  membership  the  new  tenant  was  thereby  admitted."1 


V.— THE  PARISH. 

(a). — The  Ancient  Painsh. 

In  several  respects  the  parish  is  the  most  interesting  of  local 
institutions.  Every  phase  of  its  development — the  growth  of 
its  territorial  area;  the  way  in  which  its  name  and  organiza- 
tion became  identical  with  those  of  the  township,  while  it 
discharged  at  the  same  time  separate  ecclesiastical  functions; 
its  connection  with  the  manor;  the  differentiated  forms  and 
the  complex  relations  which  it  has  developed  in  recent  times — 
all  this  illustrates  in  a  wonderful  manner  the  vitality  of  social 
organisms:  the  persistence  of  the  essential  type  in  the  midst 
of  superficial  change. 


1  Stubbs,  I,  84-5. 

On  the  court  leet  see  also  Burn,  Justice  (175G),  456-7  ;  Wood,  Institute 
(1754),  509-11;  Bohn,  Pol.  Cyc.,  Ill,  238-45;  Blackstone,  IV,  273-4; 
Stephen,  Hist,  of  Orim.  Law,  1,  82,  126  f . ;  Toulmin  Smith,  The  Parith, 
index ;  Merewether  and  Stephens,  Hist,  of  Boroughs,  who  insist  on  their 
continuity  with  the  Saxon  folkiuoots:  see  index;  Kitchin,  Court  Leete  et 
Court  Huron,  47-53.  Gomme,  Primitive  Folk-Moots,  113-135,  lias  an  excel- 
lent account  of  the  "open-air  courts"  of  the  manor. 


32  Evolution  of  the  Township  Organism. 

EVOLUTION  OF  THE  PAROCHIAL  DISTRICT. 

Almost  from  the  first  advent  of  the  Roman  priest  in  Britain 
began  the  process  of  building  or  reconsecrating  local  churches 
and  the  adoption  of  the  townships  or  marks  as  districts  of  the 
officiating  clergy.  For  a  time,  however,  the  bishops  and  their 
assistant  priests  led  coenobitical  or  monastic  lives ;  but.  not 
according  to  the  strict  rule  of  St.  Benedict.  And  this  was 
in  accordance  with  the  usual  practice  of  the  early  Christian 
missionaries  elsewhere  among  uncivilized  or  dangerous  tribes. 
From  such  central  stations  the  clerks  or  monks  sallied  forth 
on  their  "  circuits  "  to  preach  and  to  administer  the  offices  of 
religion,  each  in  his  own  particular  district.  Such  a  circuit 
or  area  was  called  a  scriftscir,1  or  shrift-shire,  but  it  is  not 
regarded  as  the  basis  of  the  parish.  It  had  no  organic  sig- 
nificance for  the  people  within  its  limits;  but  the  entire 
territory  under  supervision  of  the  clergy  of  the  station  or 
minster — the  diocese  or  mynster-scir2  —  was  a  unit  for  the 
collection  of  oblations  and  for  the  spiritual  jurisdiction.  The 
circuits  were  merely  convenient  areas  designed  to  facilitate  a 
division  of  labor  among  the  priests  of  the  station.3 

This  state  of  things  could  not  long  endure.  With  the 
spread  of  the  conversion  and  the  expansion  of  settlements 
there  would  gradually  arise  on  the  part  of  the  various  com- 
munities a  demand  for  local  churches  and  separate  terri- 
torial organization.  The  creation  of  parishes  in  England  has 


1  Canute's  Canons,  6,  9 :  Thorpe,  II,  244,  246  ;  Aethels.,  II,  25 ;  Aethelr., 
V,  12 ;  Canute,  I,  13 :  Schmid,  146,  222,  262 ;  Anhang,  I,  42,  p.  366.     Cf. 
Selden,  On  Tithes,  252. 

2  Aelfred's  Baeda,  V,  19,  III,  19.     See  Toulmin  Smith,  The  Parish,  24, 
note.     On  the  whole  subject  of  the  origin  and  original  names  of  the  paro- 
chial districts  see  Pearson,  Historical  Maps,  55—9,  who  regards  the  parish  as 
identical  with  the  ancient  mark  and  tithing. 

3  On  the  early  stations  see  Selden,  On  Tithes,  151-5;  Kemble,  Saxons,  II, 
414  ff.;  Baeda,  Ecc.  Hist.,  Ill,  17,  26,  IV,  27:  Bohn  ed.,  pp.  135,  161,  226; 
Bohn,  Pol.  Cyc.,  Ill,  451 ;  Stubbs,  I,  222. 


The  Parish.  33 

been  ascribed  both  to  Honorius,1  Archbishop  of  Canterbury, 
627-653,  and  to  Theodore  of  Tarsus,  668-690.  But  the 
parochiae  mentioned  in  connection  with  the  former  were 
probably  the  dioceses  or  districts  of  the  bishops  just  referred 
to.  For  the  word  parochia  was  used  in  early  days  for  a 
bishoprick  as  well  as  the  smaller  division;2  and  there  seems 
to  be  no  good  authority  for  assigning  their  creation  to  Theo- 
dore3— the  Aelfred  of  English  ecclesiastical  history.  The 
establishment  of  parishes  was  a  gradual  process  and  took 
place  contemporaneously  in  several  different  ways.  Many 
churches  were  founded  by  the  great  landed  proprietors  on 
their  estates ;  others,  in  a  similar  way,  on  the  lands  of  the 
bishops  and  abbots  and  on  the  royal  domains.  Lay  founda- 
tions seem  to  have  been  very  numerous;  and  the  founders,  as 
a  condition  of  acceptance,  were  required  to  endow  each  church 
with  a  glebe  or  parochial  estate,  receiving  in  return  the  right 
of  patronage.4  In  this  way  some  parishes  at  a  very  early  day 
must  have  become  identical  with  the  lordships  or  dependent 
townships.  It  is  probable,  however,  that  from  the  beginning 
the  majority  of  local  districts  were  becoming  parishes  in  a 
quite  different  and  less  artificial  way.  According  to  Kemble, 
before  Jthe  advent  of  Christianity  every  mark  or  township 
"  had  its  fanum,  delubrum,  or  sacdlum,  as  the  Latin  authors 
call  them,  its  hearh,  as  the  Anglo-Saxons  no  doubt  designated 
them ; "  and  these  temples,  in  accordance  with  the  "  well- 
grounded  plan  of  turning  the  religio  loei  to  account,"  were 
converted  by  the  missionaries  into  baptismal  churches.5  By 


1  Joscelin,  Hist,  of  Archbishops  of  Canterbury,  according  to  Selden,  On 
Tithes,  p.  256. 

2  Bingham,  Origines,  III,  37,  208 ;  Selden,  On  Tithes,  p.  257-9. 
'Lingard,  Hist,  and  Antiquities  of  A.  S.  Church,  I,  158. 

4  Selden,  On  Tithes,  259  f . ;  Kemble,  Saxons,  11,419-23;  Lingard,  Hist. 
and  Antiquities  of  Anglo-Saxon  Church,  I,  156-7.     Baeda,  Ecc.  Hist.,  V,  4,  5, 
I,  33,  II,  14,  III,  7 :  Mon.  Hist.  Brit.,  pp.  251,  144,  165, 179,  furnishes  exam- 
ples of  foundations  by  king  and  lords. 

5  Kemble,  Saxons,  II,  423  f.    As  proof  he  collects  Baeda,  Ecc.  Hist.,  Ill, 

3 


34  Evolution  of  the  Township  Organism. 

the  time  of  Baeda  (673-735),  it  is  thought,1  parish  churches 
had  been  generally  established;  and,  without  doubt,  before  the 
Norman  Conquest  the  parochial  system  had  been  extended 
throughout  the  kingdom.2 

GROWTH  OF  THE  CONSTITUTION. 

The  evolution  of  a  distinct  organization  and  of  special  func- 
tions for  the  parochial  community  as  such  must  have  proceeded 
very  slowly  from  the  beginning.  But  little  can  be  said  with 
regard  thereto  until  the  thirteenth  century.  The  parish  was, 
of  course,  the  area  for  the  collection  of  tithes  and  for  the 
expenditure  of  the  portion  devoted  to  the  fabric  or  the  poor.3 
The  mass-priest4  was  at  first  the  only  officer.  Besides  his 
spiritual  duties  he  discharged  several  important  civil  functions. 
He  was  custodian  of  weights  and  measures.  "  With  his  rod 
were  decided  all  disputes  respecting  the  measurement  of  field- 
labour."  5  By  law  he  was  constituted  a  sort  of  notary  public 
in  the  witness  of  bargains ; 6  and  he  was  practically  one  of  the 
most  powerful  peace  officers  of  the  township.  It  was  the  duty 
of  his  spiritual  office  to  shield  the  weak  from  the  oppression  of 
the  strong,  and  to  act  as  general  arbiter  and  peace-maker  in 


3,  22,  30,  IV,  27.  Cf.  Selden,  On  Tithes,  351-2 ;  Stubbs,  I,  227  ;  Bohn,  Pol. 
Oyc.,  Ill,  451.  See,  however,  Haddan  and  Stubbs,  Councils,  III,  30,  where 
Gregory  enjoins  Aethelberht  to  destroy  the  fanes :  idolorum  cultus  insequere, 
fanorum  aedifitia  everte. 

1  Kemble,  Saxons,  II,  425. 

2  See  further  on  growth  of  the  parish,  Lappenberg,  Anglo-Saxon  Kingsr 
I,  248-9. 

5  On  the  first  authorization  of  tithes  by  law  in  England  and  elsewhere, 
see  Selden's  treatise ;   Stubbs,  I,  228  ff. ;   Lingard,  I,  181  ff. ;   Kemble,  II, 
Chap.  X ;  Spelmann,  Larger  Work  of  Tithes,  English  Works,  69-154. 

4  The  Saxon  word  preost  was  used  for  "  any,  even  the  lowest  member  of  the 
clerical  body :  he  who  had  received  the  order  of  priesthood  was  distinguished 
by  the  prefix  maesse :  he  was  the  maesse-preost,  because  it  was  his  peculiar 
office  to  consecrate  and  offer  the  sacrifice  of  the  mass."  Lingard,  I,  147. 

6  Lingard,  I,  171. 

6Aethelstan,  II,  10;  Eadmund,  III,  5:  Schmid,  136,  181. 


The  Parish.  35 

local  disputes.  If  a  person  fought  or  was  guilty  of  any 
violence  at  the  folkruoot  in  the  presence  of  a  priest,  he  was 
liable  to  a  fine,  just  as  he  was  punished  for  similar  conduct 
before  the  ealdorman.1 

In  1127  at  the  synod  of  London2  churchwardens  were  insti- 
tuted to  take  charge  of  the  church  edifice  and  other  property 
and  to  see  that  the  priest  performed  his  duty.  But  the  most 
important  fact  in  the  history  of  the  parish  was  the  rise  of  the 
vestry3  meeting . which  first  comes  to  view  sometime  in  the 
thirteenth  century.  The  primary  cause  which  led  to  the 
development  of  this  body  was  the  same  which  produced  Con- 
vocation and  the  House  of  Commons :  the  need  of  money. 
Gradually  the  appropriation  of  tithes  and  other  ecclesiastical 
property  by  the  clergy  had  rendered  the  ordinary  income 
insufficient  for  the  support  of  the  fabric,  necessitating  an 
appeal  to  the  parishioners  for  voluntary  contributions.  But 
the  "free  gifts"  were  really  made  compulsory  upon  individu- 
als by  the  denouncement  of  spiritual  penalties.  The  result 
was  a  resort  to  united  action ;  and  thus  arose  the  "  church 
rate  "  voted  in  the  "  open  vestry  "  meeting  by  the  ratepayers 
themselves — the  first  example,  in  the  modern  sense,  of  a  self- 
taxing  local  body.4 

With  the  rise  of  the  vestry — another  form  of  the  ancient 
tungemot — the  constitution  of  the  parish  may  be  regarded  as 
organically  complete.  At  this  point  the  interrelations  of  the 
three  institutions — township,  manor,  and  parish — superim- 
posed, so  to  speak,  one  above  the  other,  are  extremely  interest- 
ing. The  boundaries  of  the  latter  were,  as  a  rule,  identical 
with  those  of  a  township  or  group  of  townships.  In  the 


1  Aelfred,  38 :  Schmid,  p.  92,  where  eyninges  preost  is  mentioned :  any 
mass-priest  is  probably  meant. 

1  Fonblanque,  How  We  Are  Governed,  68. 

s  So  called  from  the  place  of  assembly :  the  sacristy  or  vestry  room  of  the 
church :  Gneist,  II,  614. 

4  On  the  rise  of  the  vestry  see  Gneist,  II,  613  f. ;  Chalmers,  Local  Govern- 
ment, 38. 


36  Evolution  of  the  Township  Organism. 

north,  particularly,  the  area  of  the  parish  was  very  great, 
often  comprehending  several  townships ;  in  the  south,  it  some- 
times embraced  a  number  of  smaller  districts — boroughs,  vills, 
or  tithings ;  the  subordinate  districts  being  practically  separ- 
ately organized  parishes,  differing  from  the  larger  body  only 
in  not  having  each  a  constable  and  a  church.1  A  large  por- 
tion of  the  original  functions  of  the  township  were  discharged, 
as  we  have  seen,  in  the  various  courts  of  the  manor.  But  the 
powers  of  the  latter,  under  the  influence  of  the  lawyers,  came 
more  and  more  to  be  strictly  defined  in  the  charters.  Hence 
the  residue  of  the  civil  business  of  the  township  and  such  new 
functions  as  were  evolved  with  the  progress  of  society  were 
relegated  to  the  vestry.  The  point  to  be  carefully  noted  is 
the  fact  that  already  the  parish  represented  a  double  principle. 
On  the  one  side  it  was  a  civil  township  under  the  headship 
of  the  constable.  On  the  other,  it  was  an  ecclesiastical  body 
under  the  presidency  of  the  parish  priest.2  But  its  lay  attri- 
butes predominated  more  and  more  and  thrust  the  clerical 
into  the  background.3  The  old  name  of  "township"  is  gener- 
ally used  when  the  "  inhabitants,"  irrespective  of  jurisdiction 
lay  or  temporal,  is  meant.  But  there  is  a  wonderful  blend- 
ing of  the  terminology  of  the  three  different  institutions. 
Sometimes  in  the  same  passage  of  judicial  opinion  or  statute, 
"manor,"  "parish,"  and  "township"  are  alternately  em- 
ployed as  interchangeable  terms ;  vill  and  tithing  are  also 
used  in  the  same  sense.4 

DIFFERENTIATION  OF  OFFICES. 

Few  things  can  be  of  greater  interest  to  the  student  than 
the  luxuriant  growth  of  assemblies  and  offices,  all  springing 


1  Elton,  Ency.  Britannica,  XVII,  296 ;  Toulmin  Smith,  The  Parish,  33. 

2  Compare  Chalmers,  Local-Government,  37  f. 

3  Toulmin  Smith's  The  Parish  is  an  elaborate  polemic  to  vindicate  the 
" purely  secular  character"  of  the  institution.     See  particularly  Chap.  I. 

4  See  for  examples,  Toulmin  Smith,  The  Parish,  47-8,  note,  52,  16.     Cf. 
Elton,  Ency.  Brit.,  XVII,  p.  295 ;  Adams,  Norman  Constables,  14  ff. 


The  Parish.  37 

from  the  simple  mechanism  of  the  ancient  mark.  In  the 
courts  baron,  customary,  and  leet ;  in  town-meeting  or  vestry, 
each  inhabitant  was  judge  or  legislator.  In  place  of  the  two 
or  three  officials  of  the  old  township,  we  find  a  formidable 
series  of  parish  functionaries. 

The  minister — rector,  vicar,  or  incumbent — was  the  spirit- 
ual head  of  the  community.  And  in  acknowledgment  of  this 
dignity,  he  enjoyed  the  honorary  privilege  of  presiding  in  the 
vestry  meeting— that  function  in  his  absence,  devolving  upon 
an  elected  chairman,  usually  the  senior  churchwarden.1  More- 
over, from  an  early  day,  the  minister  has  performed  important 
civil  duties  as  ex-officio  registrar  of  births,  deaths,  and  mar- 
riages.2 

But  the  constitutive  officer  of  the  parish,  in  its  civil  capacity, 
was  the  constable  who  appears  under  a  great  variety  of  names.8 
It  became  a  maxim  of  the  common  law  that  "  where  there  is 
a  constable  there  is  a  parish." 4  He  was  an  elective  officer ;  and 
it  is  a  curious  illustration  of  the  intermingling  of  institutions 
that  sometimes  the  election  took  place  in  the  manorial  court 
leet,  sometimes  in  the  vestry  meeting.5  In  ancient  times,  the 
constable  was  the  most  important  peace  magistrate  and,  as  a 
rule,  the  post  was  filled  by  the  most  respectable  men  of  the 
neighborhood. 

Next  to  the  constable  in  importance  were  the  churchwardens. 
These  may  be  regarded  as  a  sort  of  connecting  link  between 
the  lay  and  ecclesiastical  sides  of  the  parish.  But  they  were 


1  Gneist,  II,  614,  617,  625 ;  Toulmin  Smith,  The  Parish,  58,  292,  288,  who 
insists  that  the  minister  can  only  preside  by  consent  of  the  body :  he  is  a 
mere  "individual"  of  the  parish. 

2  Smith,  The  Parish,  187-89. 

sLambard,  Eirenarcha,  14,  uses  "petie  constable,"  "  borsholder,"  "borow- 
head,"  "thirdborow,"  and  "tithingman"  in  the  same  sense  to  "signifie  the 
chiefe  man  of  the  free  pledges  within  that  borow  or  tything."  For  other 
designations  see  76.,  Duties  of  Constables,  4  ff. 

4H.  B.  Adams,  Constables,  14-15,  Tithingman,  12;  Selden,  Table  Talk 
(Arber),  83;  Toulmin  Smith,  The  Parish,  16  note,  120. 

'Toulmin  Smith,  The  Parish,  125  f.;  Gneist,  II,  50. 


38  Evolution  of  the  Township  Organism. 

created  as  lay  guardians  of  the  church  building  and  the  trea- 
sures therein  deposited ;  and,  from  a  legal  point  of  view,  they 
have  always  been  regarded  as  civil  officers.1  Churchwardens 
were  originally  chosen- — usually  two  for  each  parish — in  the 
open  vestry;  but  by  the  canons  of  1603  the  right  of  election 
was  lodged  jointly  in  the  vestry  and  minister.2  Their  duties 
have  been  divided  into  two  groups — ecclesiastical  and  lay ; 3 
but  both  classes  are,  in  reality,  of  a  temporal  character,  being 
chiefly  concerned  with  protecting  the  interests  of  the  commu- 
nity in  the  ecclesiastical  property.4  They  were  curators  of  the 
church  building  and  other  realty,  formed  a  corporation  for 
the  management  of  the  movable  property  of  the  church,  and 
performed  various  police  functions  laid  upon  them  by  statute. 
But  their  most  important  duty  was  the  making  of  the  church 
rate  and  the  calling  of  the  vestry  to  authorize  the  levy.  The 
churchwardens  were,  in  fact,  the  fiscal  officers  of  the  parish, 
and,  as  such,  were  required  to  render  an  annual  account  to 
the  vestry.5 

Two  other  important  officers  were  the  parish  clerk  and  the 


1  Toulmin  Smith,  The  Parish,  68  ff.,  insists  upon  this.    The  churchwarden 
constitutes  a  lay  corporation.     Lambard,  Constables,  71,  74. 

2  Toulmin  Smith,  The  Parish,  72  ff.     It  has  been  decided  that,  in  case  of 
disagreement,  the  parson  shall  choose  one  and  the  ratepayers,  the  other  : 
Chalmers,  Local  Government,  48 ;  Gneist,  II,  618. 

3Gneist,  II,  618-23;  Selfgovernment  (1871),  657. 

*  Lambard,  Duties  of  Constables,  p.  72 :  "And  for  as  much  as  these  church- 
wardens bee  Officers,  put  in  trust  for  the  behoofe  of  their  parish,  therefore 
also  are  they  not  enabled  with  any  other  power,  then  for  the  good  and  profit 
of  the  parish.  So  that  churchwardens  can  neither  give  away,  nor  release 
at  their  own  pleasure  the  goods  of  the  church.  For  if  the  Parishioners  shall 
finde  that  they  doe  unprofitably  wast,  or  mispend  the  goods  of  the  Parish, 
then  may  they  remove  such  Churchwardens,  by  making  their  choice  of  new." 
Burn,  Ecc.  Law,  I,  398.  See  Edward  Peacock's  Notes  on  the  Churchwardens' 
Accounts  of  the  Parish  of  Stratton,  in  the  County  of  Cornwall,  Archaeologia,  Vol. 
XLVI,  195-236.  This  record,  prefaced  by  an  interesting  account  of  the 
church  revenue,  extends  from  1512-1547. 

5  On  the  whole  subject,  see  Lambard,  Constables,  69-82 ;  Wood,  Institute, 
92-98 ;  Burn,  Justice,  128-34 ;  Burn,  Ecc.  Law,  I,  397  ff. ;  Stephens,  Laws  of 
Clergy,  I,  331  ff.  See  the  last  note. 


The  Parish.  39 

vestry  clerk.  Both  were  originally  elected  in  the  vestry 
meeting,  and  both  are,  in  theory,  temporal  officers.1  But 
the  parish  clerk  was  not  clerk  of  the  parish,  the  latter  function 
being  discharged  by  the  clerk  of  the  vestry.  Indeed  he  was 
not  "  clerk "  at  all  in  the  modern  sense.2  In  its  origin  the 
office  was  spiritual  and  the  incumbent  was  probably  always 
a  clerk  in  holy  orders.  But  since  the  Reformation  it  has 
become  temporal,  though  it  may  still  be  held  by  a  parson  in 
orders ;  and  certain  secular  duties  have  been  imposed  upon  it 
by  statute.  For  example,  the  parish  clerk  is  depositary  of 
" parliamentary  notices  and  other  important  documents."* 
The  office  is  now  often  united  with  that  of  sexton. 

On  the  other  hand,  the  vestry  clerk  is  the  real  secretary  of 
the  parish.  Theoretically  he  is  elected  for  a  single  meeting, 
but  in  practice  the  post  is  held  by  the  same  person  for  a  year. 
Many  rural  parishes  have  no  vestry  clerk ;  and  in  such  cases 
the  minutes  are  recorded  by  one  of  the  churchwardens  or  by 
the  minister.4  This  office  is  of  peculiar  interest  as  being  the 
prototype  of  our  township  clerk. 

Minor  officers  of  the  parish  were  the  beadle  or  vestry  mes- 
senger, the  sexton,  waywardens  or  surveyors  of  highways,5 
collectors  of  taxes,  and  auditors  of  accounts :  all  these  were 
elected  by  the  ratepayers  in  vestry  assembled.  Originally 
other  officers,  such  as  the  "  common  driver  "  and  the  "  hay- 


1  Under  authority  of  the  canons  of  1603  the  parish  clerk  is  often  appointed 
by  the  minister ;  but  in  some  parishes  the  office  is  still  elective.  Toulmin 
Smith,  The  Parish,  198  ff. ;  Bohn,  Pol.  Oyc.,  Ill,  453-4. 

J  Toulmin  Smith,  The  Parish,  197  ff. ;  Bohn,  Pol.  Cyc.  Ill,  453-4.  Gneist, 
II,  623-4,  confuses  the  two  offices ;  but  the  error  is  corrected  in  Self  govern' 
ment  (1871),  663  ff. 

'Toulmin  Smith,  The  Parish,  203. 

*  Toulmin  Smith,  The  Parish,  204  ff. 

'Other  names  are  "waymen,"  "supervisors  of  highways,"  "overseers  of 
highways."  All  these  terms  appear  in  the  records  of  a  single  parish — those 
of  Steeple  Ashton  in  Wiltshire,  1542  onward.  These  records  furnish  admir- 
able illustration  of  the  growth  of  the  parish  constitution.  See  the  extract* 
in  Toulmin  Smith,  The  Parish,  491  ff. 


40  Evolution  of  the  Township  Organism. 

ward,"  or  watcher  of  bounds  and  enclosures,  were  chosen  in 
the  court  leet. 

By  the  famous  act  of  43  Elizabeth  the  care  of  the  poor  was 
assumed  as  a  public  burden,  and  the  administering  of  the  law 
laid  upon  the  parish.  For  this  purpose  the  churchwardens 
were  made  ex  officio  overseers  of  the  poor  to  act  conjointly 
with  other  special  overseers,  two  or  more  from  each  parish, 
appointed  "  under  the  hand  and  seal  of  two  or  more  justices 
of  the  peace."  But  the  overseers  like  the  earlier  "  collectors" 
and  "distributors"  of  alms,  were  probably  elected  by  the  par- 
ishioners and  then  formally  "  inaugurated "  by  the  justices.1 
The  board  of  overseers  were  authorized  to  lay  and  assess  a 
"  poor-rate,"  and  expend  it  in  accordance  with  the  provisions 
of  the  act,  for  the  benefit  of  those  entitled  to  alms.  Before 
this  time  the  constable's  office  had  gradually  fallen  into  decay, 
and  with  the  acquirement  of  these  powers  of  overseer,  the 
churchwarden  began  to  rank  as  official  head  of  the  parish. 
Moreover  many  police  and  executive  duties  were  laid  by 
statute  upon  both  overseers  and  churchwardens ;  so  that  from 
the  beginning  of  the  seventeenth  century  the  constabular 
duties  of  the  ancient  tithingman  were  shared  among  three 
sets  of  officers.2 

THE  OPEN  VESTRY. 

The  vestry  meeting  was  a  genuine  folkmoot  in  which  all 
who  paid  scot  and  lot  had  equal  voice.  Even  villeins  could 
participate  in  its  deliberations3  It  was  a  local  legislature  in 
which  were  enacted  by-laws  touching  all  matters  of  public 
concern.  The  meeting  was  formerly  called  by  the  constable ; 
but  with  the  gradual  decline  of  that  office  the  duty  has  long 


1  Toulmin  Smith,  The  Parish,  145-6. 

2  Gneist,  II,  614,  622-3.     Churchwardens  and  constables  were  also  often 
appointed  conjointly  for  the  same  duties.     See  examples  in  Lambard,  Con- 
stables, 81  f. 

s  Toulmin  Smith,  The  Parish,  52. 


The  Parish.  41 

since  devolved  upon  the  churchwardens.1  "On  account  of  the 
gathering  of  all  weekly  in  the  church,  the  custom  grew  up  of 
notice  being  always  given  there,  in  th'e  middle  of  the  service. 
The  old  custom  further  was — which  prevailed,  indeed,  till  the 
close  of  the  last  century — to  hold  the  parish  meeting  on  Sun- 
day, after  church." 2  Vote  was  by  show  of  hands  or  by  division 
in  case  of  disagreement.  In  the  management  of  the  parish 
affairs,  important  use  was  made  by  the  vestry  of  the  principle 
of  representation  through  the  appointment  of  committees. 
Interesting  examples  of  such  committees  were  the  ancient 
"sidesmen,"  "synodsmen,"  or  "questmen,"  whose  duty  it 
was  to  appear  instead  of  the  whole  people,  as  originally,  at 
the  synods  or  ecclesiastical  visitations,  and  make  presentment 
or  "  give  information  on  oath  concerning  the  manners  of  the 
people;"3  the  "jurats"  or  sworn  arbiters  in  private  disputes ; 
and  the  committee  of  "watch  and  ward"  consisting  of  the 
constable  or  "  provost "  and  four  inhabitants  annually  chosen 
as  his  assistants  or  advisers.  Besides  these  were  the  commit- 
tees of  "assistance"  and  "assessment" — both  of  which  will  be 
again  referred  to — and  various  other  committees  called  into 
being  by  recent  statutes  to  carry  out  the  requirements  of  the 
modern  sanitary  and  economic  systems.4 

In  addition  to  its  general  functions  as  a  local  self-governing 
body,  the  parish  was  employed  as  the  unit  of  the  county  and 
national  administrations.  For  ages  the  reeve  and  four  appeared 
as  the  representatives  of  their  township  in  the  county  court ; 
and,  unless  excused  as  having  a  court  leet  of  their  own,  the 
parishioners  as  a  body  were  bound  to  attend  the  sheriff's 
tourn  for  view  of  frankpledge.  The  parish  was  also  used  as 
a  military  district  for  the  levy  of  troops  and  arms;6  and,  what 


1  Toulmin  Smith,  The  Parish,  55. 

'Toulmin  Smith,  The  Parish,  53. 

•Bishop  Gibson,  Visitations  (1717),  59-61,  cited  by  Toulmin  Smith,  The 
Parish,  70-71. 

*  All  these  are  discussed  in  Smith,  The  Parish,  229-65 ;  Gneist,  Selfgovcrn- 
ment(  1871),  675-7. 

6  Toulmin  Smith,  The  Parish,  18. 


42  Evolution  of  the  Township  Organism. 

is  of  more  importance'  it  was  the  initial  area  for  the  collection 
of  imperial  taxes.1  The  assessment  in  each  parish  was  origi- 
nally made  by  four  or  more  sworn  men — a  part  of  the  system 
of  assessment  by  juries  inaugurated  by  Henry  II.2  Thus  arose 
the  "  committee  of  assessment "  consisting  of  the  "  reeve  and 
four,"  or  other  persons  chosen  by  popular  vote.3 

THE  SELECT  VESTRY. 

The  most  important  innovation  in  the  history  of  the  parish 
was  the  rise  of  the  "  select  vestry."  At  the  beginning  of  the 
seventeenth  century  it  was  already  customary  to  appoint  a 
committee  of  "  Assistance/'  composed  of  former  or  "  passed  " 
officers,  whose  duty  it  was,  in  the  intervals  between  the  meet- 
ings of  the  vestry,  to  advise  the  officers  for  the  time  being  in 
the  management  of  the  parochial  affairs.  This  committee  was 
elected  annually  in  open  vestry.  But  in  many  parishes  the 
assistants  gradually  usurped  the  power  of  filling  vacancies  in 
their  number  by  co-optation,  thus  becoming  close  corporations. 
These  were  then  called  "  select  vestries,"  reminding  us  of  the 
"select"  or  "governing"  bodies  which,  during  the  same 
period,  were  gaining  control  of  the  boroughs.  The  open 
vestry,  in  some  instances,  was  entirely  superseded  so  that  at 
length  an  institution  which  began  in  aggression  was  rendered 
legal  by  prescription ;  and  many  similar  bodies  were  created 
by  statute.  Thus  an  oligarchy  appears  in  the  parish  simul- 
taneously with  the  despotism  of  Laud  and  the  Stuarts  in 
national  affairs.4 


1  Stubbs,  II,  213,  422,  gives  examples;  Toulmin  Smith,  The  Parish,  17,  20, 
21,  27-28. 

2  Stubbs,  I,  586. 

3  Stubbs,  Select  Charters  (1232),  p.  360  f.     Here  the  four  who  act  with  the 
reeve  are  elected:  Ib.  (1237)  p.  366  f.    The  four  assessors  are  also  elected. 
Cf.  Toulmin  Smith,  The  Parish,  230,  231.     See  below,  Chap.  IV,  vi,  (a). 

*On  the  rise  of  the  select  vestry  see  Gneist,  II,  627-9,  Selfgovernment  (1871), 
674,  704,  who  thinks  the  leet  jury  may  sometimes  have  been  the  origin. 
Toulmin  Smith,  The  Parish,  229,  237  f. 


The  Parish.  43 

(6). — The  Modem  CimL  Parish. 

The  ancient  parish  may  be  regarded  as  one  body  discharg- 
ing two  kinds  of  functions — the  one  temporal,  and  the  other 
spiritual.  In  other  words,  for  a  long  time,  the  units  of  the 
lay  and  ecclesiastical  systems  were  identical  in  respect  both  to 
territory  and  organization.  But  gradually  during  the  last 
two  hundred  and  fifty  years  has  been  effected  an  almost  com- 
plete separation  of  the  civil  from  the  spiritual  body.  The 
beginning  of  the  differentiation  may  perhaps  be  found  in  the 
enactment  of  the  great  poor  law  of  1601.  From  its  origin, 
at  that  time,  the  poor  rate  became  constantly  a  matter  of  more 
and  more  concern  to  the  community.  Year  by  year  the  burden 
of  taxation  for  relief  of  the  poor  was  increased,  until  in  the 
beginning  of  this  century  it  had  assumed  almost  incredible 
proportions.1  And  over  the  levy  and  administration  of  this 
fund  the  parish  exercised  no  real  control.  True,  the  church- 
wardens were  elected  by  the  ratepayers;  and  probably  the 
other  overseers  were  nominated  by  them.  But  the  board  as 
thus  constituted  was  practically  irresponsible.  They  levied 
and  assessed  the  poor  rate  without  vote  of  the  people,  and 
were  only  directly  accountable  for  their  administration  of  it 
to  the  justices  of  the  peace  who  represented  the  landed  gentry 
rather  than  the  ratepayers  at  large.  The  care  of  the  poor, 
which  gradually  thrust  all  other  parochial  interests  into  the 
background,  was  thus  a  mere  "appendage"2  of  the  parish; 
and  this  fact  was  the  underlying  reason  for  rearranging  parish 
boundaries  for  civil  purposes.  Mr.  Chalmers  assigns  two  sets 
of  causes  for  the  separation  of  the  civil  from  the  ecclesiastical 
parish.  On  the  one  hand,  "under  the  powers  given  by  numer- 
ous Church  Building  Acts,  populous  parishes  have,  for  ecclesi- 
astical purposes,  been  sub-divided  into  distinct  parishes.  This 
division  has  not  affected  the  parish  in  its  civil  aspect.  The 


1  Gneist,  II,  656,  gives  the  amounts. 
'Gneist,  II,  629. 


44  Evolution  of  the  Township  Organism. 

lay  causes  have  been '  more  complicated.  In  the  first  place, 
outlying  townships  of  large  parishes  seem  long  ago  to  have 
acquired  by  custom  the  right  of  appointing  separate  overseers, 
and  of  being  separately  rated  for  the  poor  rate.  By  an  Act 
of  1819  this  customary  separation  from  the  mother  parish  was 
confirmed  in  the  case  of  all  places  which  had  enjoyed  the  right 
for  sixty  years,  but  the  fresh  creation  of  parishes  by  custom 
was  forbidden.  Secondly,  the  same  end  was  in  certain  cases 
arrived  at  by  direct  legislation.  An  act  in  1662,  after  recit- 
ing the  largeness  of  the  parishes  in  some  northern  counties, 
provides  that  in  every  township  or  village  in  these  counties 
there  should  be  separate  overseers.  Again,  by  custom  there 
were  certain  places,  originally  perhaps  marsh  or  forest  lands, 
which  were  extra-parochial.  By  virtue  of  two  acts  passed  in 
1857  and  1868,  these  extra-parochial  places  have  been  merged 
in  adjoining  parishes.  The  meshes  of  the  poor  law  net  now 
cover  the  whole  of  England,  and  no  ratable  person,  however 
slippery,  can  elude  them.  Another  series  of  statutes  has  pro- 
vided for  the  merging  of  detached  parts  of  parishes  in  parishes 
with  which  they  are  contiguous.  As  a  result  of  these  various 
causes,  about  one-third  of  the  civil  parishes  have  no  connec- 
tion with  ecclesiastical  parishes."1  The  civil  parish  always 
either  forms  a  sub-division  of  a  poor  law  union,  its  boundaries 
never  intersecting  the  boundaries  of  the  latter,  or  it  constitutes 
a  union  of  itself.2  But  according  to  the  report  of  a  select 
committee  appointed  in  1873,  it  bears  no  definite  relation  to 
any  other  territorial  area.  "  A  parish  may  be  situated  partly 
in  one  county,  partly  in  another ;  partly  in  a  county,  partly 
in  a  municipal  borough ;  partly  within  the  jurisdiction  of  a 
local  board,  partly  without."3  Many  still  have  detached  por- 
tions, separated  by  a  considerable  distance,  and  intermingled 
with  the  lands  of  other  parishes.  Formerly  the  boundaries  of 


1  Chalmers,  Local  Government,  39-40. 

2  There  are  649  unions,  of  which  25  are  single  parishes.    Chalmers,  51. 

3  Chalmers,  Local  Government,  33. 


The  Parish.  45 

all  parishes  were  ascertained  and  preserved  by  annual  "  per- 
ambulation "  of  the  inhabitants ;  but  by  the  poor  law  act  of 
1844,  it  seems  to  have  been  intended  that  the  perambula- 
tions should  be  made  but  once  in  three  years.1  Parishes  vary 
greatly  in  size.  Many  have  an  area  of  lass  than  fifty  acres ; 
others  contain  over  ten  thousand  acres.  Some  have  a  popu- 
lation of  less  than  fifty ;  others  of  more  than  one  hundred 
thousand.2 

The  parish  is  now  of  little  importance  as  an  administrative 
unit.  One  by  one  its  functions  in  this  respect  have  been  taken 
away  and  given  to  other  bodies.  But  it  remains  the  unit  for 
taxation,  all  rates  being  collected  parochially ;  and  it  is  also 
the  district  for  preparing  the  list  of  voters  for  parliamentary 
and  municipal  elections.  "  Civil  parish "  and  "  poor  law 
parish  "  are  now  practically  interchangeable  terms.3 

The  official  corps  of  the  parish  has  undergone  some  important 
changes  in  recent  times.  The  minister  may  still  preside  in 
the  vestry  meeting  and  he  has  duties  connected  with  registra- 
tion. The  office  of  constable — once  the  civil  head — is  now 
practically  extinct.  The  principal  officers  are  at  present  the 
overseers  of  the  poor.  These  are  nominated  annually  by  the 
justices  of  the  peace ;  and  when  the  civil  parish  is  also  an 
ecclesiastical  parish,  the  churchwardens  are  still  overseers. 
Overseers  are  unpaid ;  but  assistant  overseers  may  be  elected 
by  the  vestry  and  receive  salaries  payable  from  the  poor  rate. 
Since  1834  the  overseers  have  had  no  share  in  the  administra- 


1  Chalmers,  Local  Government,  33-4.  On  perambulations  see  Toulmin 
Smith,  The  Parish,  542-51,  and  Chap.  IV,  ix,  (6),  below. 

*  Several  in  Northumberland  have  but  5  or  6  persons.  Chalmers  has  the 
following  note :  "  Mr.  Fry  mentioned  a  parish  in  which  there  was  only  one 
ratepayer.  That  man  may  well  say  L'etat  c'est  nun.  He  must  rate  himself. 
Presumably  he  is  the  overseer,  the  vestry,  the  chairman  of  the  vestry,  and 
the  guardian.  When  he  meets  himself  in  vestry  we  may  surmise  that  he 
takes  the  opinion  of  the  meeting  by  show  of  hands.  It  may  be  an  open 
question  whether  he  might  not  constitute  himself  the  burial  board  and  bury 
himself."  Local  Government,  34,  note  1. 

s  Chalmers,  Local  Government,  32,  40. 


46  Evolution  of  the  Township  Organism. 

tion  of  the  poor  relief,  that  business  having  devolved  upon  the 
guardians ;  but  they  may  order  relief  to  be  given  in  urgent 
cases.  Their  chief  duties  now  consist  in  making  out  jury 
lists,  preparing  and  publishing  lists  of  voters,  and  lists  of 
claims  and  objections,  and  assessing  and  collecting  the  poor 
rate.  Every  parish  elects  at  least  one  guardian,  who,  how- 
ever, has  no  duties  separate  from  his  functions  as  member  of 
the  board  of  guardians  for  the  union  in  which  the  parish  is 
situated.  And  the  union,  in  its  turn,  is  entirely  under  the 
control  of  the  Local  Government  Board. 

Other  officers  are  the  vestry  clerk,  waywardens,  and  col- 
lectors of  rates;  the  latter  elected  on  application  of  the 
guardians. 

The  vestry  is  still  the  most  important  institution  of  the 
parish.  By  a  series  of  acts  its  organization  has  been  largely 
remodelled  during  the  present  century.1  At  present  a  vestry 
may  be  either  "  common  "  or  "  select."  The  common  vestry 
consists  of  all  ratepayers,  whether  resident  or  non-resident; 
and  women,  if  contributors,  enjoy  the  right  of  suffrage.  Vote 
is  by  show  of  hands  or  by  poll.  Select  vestries  are  either 
"  customary  "  or  "  statutory."  The  latter  were  created  by  the 
Hobhouse  Act,  1831,  and  are  now  of  little  importance.  The 
former  are  the  old  oligarchic  bodies  whose  origin  has  already 
been  described,  and  which  have  remained  untouched  by  every 
statute  that  has  yet  appeared. 

In  conclusion  it  may  be  noted  that  the  name  parish  is  now 
applied  to  several  other  administrative  districts.  Such  are 
the  "land-tax  parish,"  the  "burial  acts  parish,"  and  the 
"  highway  parish."  The  boundaries  of  these  districts  do  not 
necessarily  coincide,  one  with  another,  or  with  those  of  the 
poor  law  parish.2 

'The  "General  Vestries  Act,"  58  George  III;  the  "Select  Vestries" 
or  "  Sturges  Bourne's  Act,"  59  George  III ;  and  the  "  Hobhouse  Act,"  2 
William  IV,  c.  60.  On  these  see  Gneist,  II,  629-37. 

2  On  the  civil  parish  see  Elton,  Encyc.  Brit.,  XVIII,  296;  Chalmers, 
32-45 ;  Gneist,  II,  625-723,  Selfgovernment,  684-769,  where  the  entire  poor 


The  Parish.  47 

(o.) — The  Modern  Ecclesiastical  Parish. 

Through  the  operation  of  causes  already  mentioned  the  area 
of  the  ecclesiastical  parish,  in  many  cases,  no  longer  coincides 
with  that  of  the  civil.  A  hamlet,  for  example,  may  lie  in 
one  parish  for  civil  and  in  another  for  spiritual  purposes.  In 
1871,  according  to  Chalmers,  there  were  in  England  14,945 
civil  and  13,000  ecclesiastical  parishes.  Of  the  civil  parishes 
not  more  than  10,000  corresponded  in  boundaries  with  eccle- 
siastical parishes  of  the  same  name.1  Compulsory  church 
rates  were  abolished  in  1868,  and  since  that  time  the  ecclesi- 
astical parish  has  been  of  comparatively  little  importance  as 
an  instrument  of  local  government.  "  It  is  almost  entirely  a 
permissive  institution."  But  for  more  than  two  centuries 
preceding,  the  ecclesiastical  parish  was  an  organization  of 
great  significance  to  every  inhabitant.  "  Besides,"  says  Mr. 
Chalmers,  "  though  an  English  citizen  owes  but  few  duties  as 
an  ecclesiastical  parishioner,  he  has  some  important  general 
rights  in  that  capacity  which  the  law  will  give  effect  to.  In 
the  theory  of  the  English  law  every  Englishman  is  a  member 
of  the  Church  of  England.  The  privilege  of  dissent  is  con- 
ferred on  Englishmen  by  a  long  series  of  statutes,  each  deal- 
ing with  a  particular  point  and  removing  some  special  griev- 
ance, but  by  the  exercise  of  dissent  an  English  citizen  does 
not  forfeit  his  legal  rights  as  a  member  of  the  national  church ; 
he  is  only  relieved  from  certain  corresponding  and  irksome 
duties  which  were  formerly  imposed  upon  him.  It  must  not 
be  forgotten  that  dissenter  and  churchman  alike  pay  tithes 
both  ordinary  and  extraordinary." 2 

relief  and  vestry  legislation  is  discussed  at  great  length.  Cf.  also  Nicholls, 
Hixt.  of  Kng.  Poor  Law,  II,  192  ff.  passim ;  Pashley,  Pauperism  and  Poor 
Laws,  257  ff. ;  Toulmin  Smith,  The  Parish,  contains  much  criticism  of 
recent  innovations. 

1  Chalmers,  Local  Government,  35,  39.    Cf.  Brodrick,  Local  Government  in 
England,  12  f. 

2  Local  Government,  45,  46. 


48  Evolution  of  the  Township  Organism. 

The  vestry  is  the  legislative  and  administrative  body  of  the 
parish.  Legally  it  is  defined  as  "  an  assembly  of  the  minis- 
ter, churchwardens,  and  parishioners."  Though  compulsory 
church  rates  have  been  abolished,  their  validity  is  still  ac- 
knowledged by  statute,  and  they  are  still  voted  by  the  vestry. 
In  case  of  default  in  payment,  a  person  is  not  allowed  a  vote 
as  to  the  expenditure  of  the  money  derived  therefrom.  "  Church 
rates  therefore  form  an  apt  illustration  of  what  lawyers  desig- 
nate a  duty  of  imperfect  obligation — that  is  to  say,  a  duty 
recognized  as  such,  but  enforced  by  no  sanction." x 

The  minister — rector,  vicar,  or  incumbent — is  the  spiritual 
officer  of  the  parish.  As  parson  he  constitutes  a  corporation 
sole,  and  has  a  freehold  right  in  the  glebe,  churchyard,  and, 
for  some  purposes,  also  in  the  church  building.  Besides  his 
clerical  duties  he  is  required,  as  already  mentioned,  to  regis- 
ter all  baptisms  or  marriages  at  which  he  officiates,  and  all 
burials  which  take  place  in  his  churchyard  ;  and  for  the  latter 
he  receives  the  fee,  whether  he  officiates  or  not.2 

The  churchwarden  is  the  principal  civil  officer  of  the  ecclesi- 
astical parish.  Any  ratepayer  is  eligible  whether  or  not  a 
member  of  the  Church  of  England,  only  peers,  members  of 
Parliament,  and  certain  professions  being  exempt.  Acceptance 
of  the  office  is  compulsory ;  and  even  Jews  have  been  elected 
to  the  place.3  It  is  still  the  duty  of  the  churchwardens  to 
estimate  the  amounts  needed  from  time  to  time  for  repairs  and 
summon  the  vestry  to  make  the  rate.  When  the  civil  parish 
is  also  an  ecclesiastical  parish,  the  churchwardens  are  ex-officio 
overseers.  This  fact  together  with  the  circumstance  that  the 
minister  still  enjoys  the  honorary  privilege  of  presiding  in 
the  vestry  meeting  of  the  civil  parish,  furnishes  an  interesting 
survival  of  the  former  identity  of  the  temporal  and  spiritual 
bodies. 


1  Chalmers,  Local  Government,  46. 

2  Chalmers,  Local  Government,  47. 

3  Fischel,  Eng.  Const.,  346. 


The  Parish.  49 

Other  lay  officers  of  the  ecclesiastical  parish  are  the  parish 
clerk,  and  the  sexton.  The  former  office  may  now  be  conferred 
upon  a  curate,  and  its  only  surviving  civil  function  is  the  care 
of  "  certain  maps  and  documents  required  to  be  deposited  with 
him  before  certain  public  works  are  begun." 

Of  the  office  of  sexton  Mr.  Chalmers  states  that  it  is  "  re- 
markable as  being  probably  the  only  ecclesiastical  preferment 
which  may  be  bestowed  upon  a  woman.  The  point  was  argued 
in  the  court  of  King's  Bench  and  the  judges  solemnly  decided — 
first,  that  a  woman  was  eligible;  and  secondly  that  women  who 
were  ratepayers  might  vote  at  the  election.  The  ratio  decidendi 
is  not  complimentary.  On  the  first  point  the  court  felt  no 
doubt;  on  the  second  the  court  hesitated,  but  eventually  upheld 
the  right  of  women  on  the  ground  that  'this  being  an  office  that 
did  not  concern  the  publick,  or  the  care  of  and  inspection  of 
morals  of  the  parishioners,  there  was  no  reason  to  exclude 
women  who  paid  poor  rates  from  the  privilege  of  voting.' '; 


1  Local  Government,  50. 


CHAPTER  II. 

RISE  OF  THE  NEW  ENGLAND  TOWN.1 
I. — RESTORATION  or  THE  MARK. 

It  was  the  parish  of  the  Stuarts,  already  in  some  places 
passing  into  the  hands  of  an  irresponsible  oligarchy,  the 
select  vestry,  with  which  the  pioneers  of  New  England  were 
acquainted.  But  it  was  not  this  institution  which  they  intro- 
duced into  the  new  world.  In  the  transplanting  of  English 


1  The  Germanic  origin  of  New  England  towns  has  already  been  thoroughly 
treated  by  Dr.  Adams,  in  co-operation  with  other  scholars.  Dr.  Levermore's 
Republic  of  New  Haven  has  revealed  to  us  the  entire  history  of  a  model  com- 
munity from  its  first  planting  in  the  wilderness  to  its  present  flourishing 
condition  as  a  populous  city.  In  like  spirit  Prof.  Fiske  of  Cambridge  has 
traced  the  development  of  the  town-meeting,  emphasizing1  its  special  mission 
in  the  growth  of  the  federal  union. 

It  will  therefore  be  the  primary  object  of  the  ensuing  sketch  to  present  a 
somewhat  more  detailed  analysis  of  the  township  constitution  than  has  yet 
appeared.  The  following  typical  records  have  been  used :  Boston  Records 
(both  of  the  town-meeting  and  of  the  selectmen),  1634-1701,  2  vols. ;  Boston 
Town  Records,  1701-1777,  5  vols.;  Records  of  the  Boston  Selectmen,  1701-1753, 
4  vols. ;  the  Boston  Book  of  Possessions ;  Charleston  Land  and  Church  Records; 
Koxbury  Land  and  Church  Records;  and  the  Dorchester  Town  Records.  The 
foregoing  are  all  comprised  in  the  Reports  of  the  Boston  Record  Commission. 
The  following  have  also  been  consulted :  Braintree  Town  Records,  1640-1793, 
edited  by  S.  A.  Bates;  Wenham  Town  Records,  extracts  from,  edited  by 
Wellington  Pool :  in  Hist.  Coll.  Essex  Inst.,  Vols.  XIX-XX ;  Worcester 
Town  Records,  1740-1783,  and  the  Records  of  the  Worcester  Proprietors,  both 
edited  by  F.  P.  Rice:  in  Procds.  Worcester  Society  of  Antiquity;  Groton  Town 
Records,  1662-1678,  edited  by  Dr.  S.  A.  Green ;  Salem  Town  Records,  1634- 
1659,  edited  by  W.  P.  Upham  :  in  Hist.  Coll.  Essex  Inst.,  Vol.  IX ;  Newark 
(N.  J.)  Town  Records,  1666-1836:  in  Coll.  N.  J.  Hist.  Society,  Vol.  VI;  The 
50 


Restoration  of  the  Mark.  51 

local  organisms  to  American  soil,  two  remarkable  phenomena 
attract  attention.  On  the  one  hand  there  is  so  much  that  is 
new  in  constitutional  names  and  functions,  so  much  of  original 
expedient  and  experimentation,  as  to  render  New  England 
town  government  almost  unique,  while,  at  the  same  time,  its 
continuity  in  general  outline  with  that  of  the  mother  country 
can  be  plainly  discerned.  On  the  other  hand  occurs  a  most 
interesting  example  of  institutional  retrogression.  Many  fea- 
tures of  the  primitive  village  community  are  revived.  The 
colonists  go  back  a  thousand  years  and  begin  again ;  or,  to 
speak  with  greater  accuracy,  new  life  is  infused  into  customs 
which,  though  passing  into  decay,  are  yet  not  wholly  extinct 
in  the  old  English  home.  All  this  is  perfectly  natural :  it  is 
a  case  of  revival  of  organs  and  functions  on  recurrence  of  the 
primitive  environment. 


Early  Records  of  Rowley :  in  Hist.  Coll.  Essex  Inst.;  XIII ;   and  the  New 
Hampshire  Town  Papers,  XI-XII. 

Besides  these,  the  Colonial  Records  of  Massachusetts,  Rhode  Island,  New 
HaVen,  Connecticut,  and  Plymouth,  the  Acts  and  Resolves  of  the  Province  of 
Massachusetts  Bay,  edited  by  Ames  and  Goodell,  and  the  New  Hampshire 
Province  Records  and  Court  Papers:  in  Coll.  New  Hamp.  Hist.  Soc.,  VIII, 
1-303,  are  of  the  utmost  importance. 

The  Collections  of  the  Rhode  Island,  New  Haven,  and  New  Hampshire 
Historical  Societies,  the  Collections  of  the  Essex  Institute,  and,  particularly, 
the  Collections  and  Proceedings  of  the  Historical  Society  of  Massachusetts,  all 
contain  much  valuable  matter  bearing  upon  the  subject.  But  it  is  note- 
worthy that  the  great  majority  of  these  documents,  however  precious  for 
the  general  historian,  yield  little  or  nothing  for  local  institutions ;  and  the 
same  is  substantially  true  of  most  of  the  writings  of  the  Colonial  era. 

Among  the  innumerable  an<*ient  and  modern  town  and  county  histories, 
Bell's  History  of  Chester,  N.  H.,  in  Coll.  New  Hamp.  Hist.  Society,  VII,  345- 
413;  Paige's  History  of  Cambridge;  Bailey's  Historical  Sketches  of  Andover  ; 
Nourse's  Early  Records  of  Lancaster,  Mass. ;  and  Freeman's  History  of  Cape 
Cod,  will  be  found  especially  useful.  Joel  Parker's  Origin,  Organization, 
and  Influence  of  the  Towns  of  New  England,  in  Mass.  Hist.  Soc.  Proceedings,  IX, 
and  the  chapter  on  the  township  in  Tocqueville's  Democracy  in  America,  I, 
should  also  be  read.  On  the  sources  of  New  England  history  see  the  criti- 
cal essays  in  Vols.  Ill  and  V  of  Winsor's  Nar.  and  Grit.  Hist,  of  America; 
and  for  an  extended  bibliography  of  American  Local  History,  see  Bulletins  of 
Boston  Public  Library,  Nos.  65  ff. 


52  Rise  of  the  New  England  Town. 

In  the  first  place  it  'is  interesting  to  observe  that,  in  the 
choice  of  a  name  for  their  communities,  they  returned  uncon- 
sciously to  the  usage  of  Ine  and  Wihtraed.  From  the  begin- 
ning town,  the  tun l  of  the  early  laws,  was  the  ordinary  popu- 
lar as  well  as  legal  designation.  Not  only  was  the  village 
proper  so  called,  but  the  name  was  also  usually  applied  to  the 
whole  territorial  domain  of  the  community.  Only  when  it 
was  necessary  to  distinguish  the  group  of  homesteads — the 
Dorf — from  the  entire  Mark  was  "  township  "  ordinarily  em- 
ployed.2 The  term  parish*  on  the  other  hand,  was  used  for 
the  community  as  a  religious  body,  although  society  was  some- 
times employed  instead. 

But  the  most  striking  illustration  of  this  social  retrogres- 
sion is  the  revival  of  the  primitive  village  community  in 
some  of  its  most  characteristic  features.  Everywhere  in  New 


1  In  the  early  English  codes  tun  occurs  more  frequently  than  tunscipe  as  a 
name  for  the  village  settlement. 

2  A  careful  examination  of  the  early  town  and  colonial  records  most  cer- 
tainly confirms  this  view.     For  example,  in  the  Mass.  Col.  Records  township 
rarely  occurs,  while  town  and  plantation  appear  on  almost  every  page.     But 
in  the  18th  century  township  was  frequently  employed  in  the  statutes.     See 
Acts  and  Resolves,  I,  642,  676,  684,  etc.,  for  various  acts  incorporating  town- 
ships, where  the  word  is  used  interchangeably  with  town. 

3  In  the  public  laws  the  name  parish  was  given  to  a  portion  of  the  town- 
ship ''  set  off"  for  the  maintenance  of  its  own  minister ;  and  for  this  purpose 
it  was  a  complete  parish  with  its  own  officers ;  but  the  word  was  used  inter- 
changeably with  precinct  and  district.    See  Acts  and  Resolves  I,  182,  183,  506, 
etc.,  II,  99,  617,  687,  etc.     Sometimes  the  subdivision  of  the  township  into 
parishes  was  the  first  step  in  the  differentiation  of  new  towns.     See  the 
interesting  note  by  Dr.  Levermore  in  Rep.  of  New  Haven,  327-9,  where 
three  distinct  stages  in  the  growth  of  a  community  are  traced  from  the 
records:  1.  A  temporary  or  "winter"  parish.     2.  A  society  or  complete 
parish.     3.  The  incorporation  of  the  parish  as  a  town — Naugatuck — by 
legislative  enactment.     The  old  parish  records,  some  of  which  are  now  in 
print,  constitute  most  interesting  supplements  to  those  of  the  town  itself. 
See,  for  example,  the  Roxbury  Church  Records,  in  the  6th  report  of  the  Bos- 
ton Eecord  Commission;  the  records  of  the  First  Church  at  Salisbury, 
Mass.,  in  Vol.  XXI,  Collections  of  Essex  Institute;  and  the  records  of  the 
Fifth  Parish  of  Gloucester,  /&.,  Vols.  XXI  and  XXII. 


Restoration  of  the  Mark.  53 

England  appeared  the  house-lots  or  village  mark,  the  com- 
mon fields  for  cultivation,  the  common  meadows  and  pas- 
tures, and  the  undivided  mark  or  waste.1  And,  as  in  ancient 
times,  when  a  new  tract  was  taken  possession  of  by  a  com- 
munity, a  portion  of  it,  to  be  held  in  severally,  was  appor- 
tioned by  lot  among  its  members,  usually  according  to  the 
"  proportion  of  estate  "  and  the  "  number  of  heads  "  in  each 
family.2 

Several  other  .interesting  features  of  primitive  Teutonic  life 
were  reproduced  in  the  New  World.  Such,  for  instance,  was 
the  jealous  watchfulness  with  which  the  community  sought  to 
control  its  own  membership  and  the  disposal  of  communal 
rights.  Restraint  was  put  upon  the  alienation  of  the  "  house 
lots,"  particularly  to  strangers,  though,  these  lots  were  theo- 
retically granted  in  severally.  This  was  entirely  consistent, 
since  all  common  rights  in  the  outlands  were  usually  conveyed 
with  the  individual  holdings  within  the  town.3  This  right  of 
control,  generally  exercised  by  the  New  England  towns,  was 
practically  equivalent  to  the  Vorkaufsrecht  or  right  of  pre- 
emption prevailing  in  the  European  Mark-societies.4  The 
town  records  contain  many  orders  relating  to  the  sale  of  pri- 
vate holdings ;  and  fines  for  selling  to  strangers  without  per- 
mission were  frequently  imposed.  For  example  : 

"It  is  agreed  that  if  any  man  shall  desire  to  sell  his  part 
of  impaled  ground,  he  shall  first  tender  the  sale  thereof  to  the 
town  inhabitants  interested,  who  shall  either  give  him  the 


1The  system  of  common  cultivation  and  common  ownership  of  lands, 
however,  was  not  entirely  extinct  in  England  and  would  there  survive  for 
a  century  to  come:  Stubbs,  Const.  Hist.  I,  84. 

2  The  plan  in  New  Haven :  see  Lever  more,  81.    This  was  perhaps  most 
common,  but  various  other  methods  were  adopted.    See  Eggleston,  The 
Land  System  of  the  New  England  Colonies,  42  ff.,  52. 

3  This  was  the  rule  in  the  German  Marken :  Maurer,  Einleitung,  p.  147. 

*See  Maurer,  Dorfverfcusunc/,  I,  320,  cited  by  Eggleston,  49,  who  has  dis- 
cussed this  topic.  See  also  Maurer,  Einleitung,  157 :  sale  must  be  public 
and  each  Genosse  had  Naherrecht  or  right  of  pre-emption.  Cf.  /6.,  205  f. 


54  Rise  of  the  New  England  Town. 

charge  he  hath  been  at,  or  else  to  have  liberty  to  sell  it  to 
whom  he  can." l 

In  1669  the  town-meeting  of  Wenham  decided  that — "All 
or  Comon  shall  be  eaqually  Deuided  betwixt  the  Settld  Inhabi- 
tants in  the  towne  viz.  to  the  Dweling  houses  now  inhabitants 
by  Equall  p'tons  to  be  &  Remaine  to  the  Yse  of  such  Habita- 
tons  alwayes  p'uided  that  no  p'son  nor  any  after  him  in  his 
right  fenc  in  his  or  theire  p'priety  for  pasture,  but  shall  ly 
open  to  the  Vse  of  the  publique  for  feeding,  only  that  which 
is  Capeable  of  Breakeing  Vp  or  makeing  medowe,  which  may 
be  fencd  in  at  Eury  mans  descreton  nor  shall  any  p'son  or 
p'sons  in  or  towne  have  liberty  or  any  after  them  in  his  or 
their  right  to  sell  or  Conuey  any  such  theire  portons  to 
any  p'son  without  the  Consent  of  the  towne  from  time  to 
time."2 

As  a  rule  the  right  to  control  the  alienation  of  lands 
belonged  to  the  towns;  but  in  Connecticut  the  principle  of 
local  pre-emption  was  enforced  by  an  order  of  the  general 
court.3 

In  many  of  the  New  England  village  communities  arose,  in 
the  course  of  time,  a  sharp  distinction  between  the  "proprie- 
tors" or  "commoners"  and  the  "new  comers"  or  "non-com- 
moners." The  latter  were  usually  admitted  as  "inhabitants" 
of  the  town  and  possessed  full  political  rights,  but  were  denied 
a  share  in  the  common  lands  which  were  monopolized  by  the 
former,  and  this  led  sometimes  to  a  protracted  struggle  on 
the  part  of  the  plebeian  non-commoners  to  wrest  from  the 


1  Records  of  Cambridge,  from  Paige's  Hist,  of  Cambridge,  10.     See  other 
similar  orders,  Ib.,  20,  40. 

2  Town  Records  of  Wenham  in  Coll.  Essex  Inst.,  XX,  142.     See  also  Dor- 
chester Records,  8;  Boston  Town  Records,  1634-60,  pp.  10,  11,  12,  97,  etc.; 
and  other  examples  in  Eggleston,  49-59 ;  and  Levermore,  79,  105. 

3  Conn.  Col.  Rec.,  I,  351,  cited  by  Eggleston,  p.  49.     In  Massachusetts  the 
question  was  raised  in  1637,  but  no  action  seems  to  have  been  taken:  Mass. 
Col.  Rec.,  I,  201.     In  Rhode  Island  alienation  of  land  to  persons  of  another 
jurisdiction  was  forbidden :  R.  I.  Col.  Rec.,  I,  126,  401. 


Restoration  of  the  Mark.  55 

patrician  land  owners  a  share  in  the  public  domain.1  In 
these  two  classes  we  at  once  recognize  the  Marker  or  Genossen 
as  opposed  to  the  Ausmarker,  Uthmanne,  or  Beisassen  of  the 
German  mark  societies.2 

Equally  interesting  was  the  recurrence  in  the  New  World 
of  the  Mutter  and  Filialdorfer  of  which  so  many  interesting 
illustrations  have  been  given  by  von  Maurer.3  Everywhere 
companies  of  pioneers  were  constantly  separating  themselves 
from  the  parent  town,  either  to  seek  homes  in  other  jurisdic- 
tions, or  to  plant  new  settlements  in  their  own  outland ;  the 
latter  communities,  for  a  time,  usually  occupying  a  subordinate 
position.4 

Finally  the  archaic  type  of  New  England  Society  is  revealed 
by  its  astonishing  publicity.  The  majority  in  town-meeting 
assembled,  or  through  their  representatives  in  the  general 
court,  exercised  a  supervision  over  personal  conduct  and  many 
of  the  transactions  of  private  business,  almost  painfully  minute ; 
witness  the  marvelous  subdivision  of  public  duties  and  the 
incredible  number  of  local  functionaries.5  Though  this  social 


1  Notably  in  Salem :    see  Dr.  Adams'  Village  Communities,  63-79.     Cf. 
Eggleston,  40.     See  also  an  order  of  the  Boston  town-meeting,  1646,  grant- 
ing all  inhabitants  at  that  time  equal  rights  of  commonage,  but  denying 
such  rights  to  those  admitted  as  inhabitants  thereafter:   Boston  Records, 
1634-60,  p.  88. 

2  Also  styled  Ausleute,  Uthmarkesche,  Butenleute,  Ausholzer,  Unholte,  etc. 
See  Maurer,  Markenverfassung,   115-24;    Einleitung,   1;    Dorfverfassung,  I, 
135-88 ;  II,  43-44  ;  Laveleye,  Prim.  Prop.,  120. 

3  Markenverfassung,  16-19;  Einleitung,  174-81.     Thoroughly  illustrated  in 
the  case  of  New  Haven  by  Dr.  Levermore. 

*Thus  Boston  long  elected  constables  for  Muddy  River  (Brookline)  and 
Ruraney  Marsh:  see  Boston  Town  Records  at  minutes  of  annual  elections, 
and  an  interesting  sketch  of  Muddy  River  and  its  incorporation  as  an  inde- 
pendent town — a  "peculiar  or  village" — by  name  of  Brookline,  in  2  Mass. 
Hist.  Coll.,  II,  145.  The  general  court  of  Massachusetts  often  appointed  the 
constables  for  new  townships:  Mass.  Col.  Rec.,  I,  76,  79,  96,  101.  Plymouth 
chose  constables  for  her  daughter  plantations:  Plym,  Col.  Rec.,  I,  21,  36,  48, 
54,  etc.;  cf.  Dr.  Adams'  Norman  Constables,  21  ff.  The  same  right  was  exer- 
cised by  New  Haven :  Levermore,  87-90. 

8  See  below  on  the  "  Town  officers  and  their  functions." 


56  Rise  of  the  New  England  Town. 

feature  may  have  been  intensified  by  the  patriarchal  or  theo- 
cratic sentiments  of  the  Puritans,  still  it  was  a  remarkable 
reproduction  of  one  of  the  most  curious  phases  of  old  English 
life.  For,  "in  the  simple  state  of  society  which  existed  in  the 
time  of  our  Saxon  forefathers,  transactions  between  man  and 
man  were  conducted  with  a  publicity  and  openness  of  which 
we  have  no  conception." 1 

II. — RELATION  OF  THE  TOWN  TO  THE  GENERAL  COURT. 

(a). — The  Court  was  the  Source  of  Authority. 

The  tendency  of  legislation  at  present  both  in  England  and 
the  United  States  seems  to  be  toward  a  more  careful  and  de- 
tailed definition  of  the  functions  of  all  local  bodies.  In  our 
Western  States,  at  least,  it  may  be  laid  down  as  a  general  rule, 
that  the  powers  of  municipal  corporations  are  exhaustively 
enumerated  in  the  statutes.  It  becomes  therefore  a  question 
of  interest  and  importance  to  determine,  if  possible,  to  what 
extent  the  New  England  towns  during  the  colonial  era  were 
the  creatures  of  and  dependent  upon  the  general  court. 

In  the  first  place  the  grant  of  the  territorial  domain  of  the 
township  was  the  act  of  the  colonial  authority.2  In  Massa- 
chusetts, during  the  early  period,  committees  were  usually 
appointed  by  the  court  to  "set  out  the  bounds"  of  a  new 
town;3  and  similar  committees  were  chosen  to  determine  all 
questions  of  boundaries  between  different  towns,4  or  to  locate 
grants  of  land  made  to  individuals.5  Under  the  Province 


^orsyth,  Trial  by  Jury,  71-72. 

2  In  Plymouth  such  grants  were  made  by  the  governor  and  assistants.  See 
Plym.  -Bee.,  XI,  34-5. 

8  For  examples,  see  Mass.  Col.  Rec.,  1, 133,  102  (Dorchester),  157  (Concord), 
168  (Charlestown),  173  (Newton) ;  II,  4-5,  128.  Cf.  Paige,  Hist,  of  Cam- 
bridge, 1  ff. 

*  3/oss.  Col.  Rec.,  I,  138,  149,  101,  etc. 

5  See  Mass.  Col.  Rec.,  I,  206,  217,  235,  278.  In  Plymouth  all  this  business 
was  usually  transacted  in  the  court  of  assistants.  Countless  examples  in 
Plym.  Rec.,  I. 


Relation  of  the  Town  to  the  General  Court.  57 

laws,  however,  townships  were  regularly  incorporated  by 
special  acts  assigning  their  names  and  defining  their  boun- 
daries.1 

At  an  early  day  the  general  court  sought  also  to  enforce  the 
proper  registration  of  deeds.  Thus,  in  1639,  the  towns  of 
Massachusetts  were  granted  a  "respit"  until  the  next  court 
to  bring  in  a  transcript  of  their  lands.2  In  1641  they  were 
ordered  to  "  set  out  their  bounds  wthin  a  twelue  month  after 
their  bounds  are  granted."3  And  in  1647  it  was  ordered  that 
town  boundaries  should  be  determined  by  perambulation  once 
in  three  years.4  Similar  laws  for  the  preservation  of  titles 
and  boundaries  were  also  enacted  in  Plymouth.5 

The  record  of  the  creation  of  the  township  of  Dedham  fur- 
nishes an  interesting  case  of  special  favors  granted  to  a  com- 
munity. It  was  "ordered  that  the  plantation  to  be  settled 
above  the  falls  of  Charles  Ryver,  shall  have  three  yeares 
immunity  from  publike  charges,  as  Concord  had,  to  bee 
accounted  from  the  first  of  May  next,  &  the  name  of  the 
said  plantation  is  to  bee  Deddam."6 

The  supervision  of  public  ways  was  also  exercised  by  the 
general  court;  and  it  seems  to  have  caused  a  great  deal  of 
trouble  in  the  early  period.  Peremptory  orders  requiring 
particular  towns  "  to  mend  their  wayes  "  were  frequent,  and 
fines  were  often  imposed  for  neglect.7 

In  like  spirit  general  police  laws  were  enacted ;  such,  for 
example,  as  those  forbidding  towns  to  entertain  strangers  or 
to  sell  them  "any  lot  or  habitation,"  without  license;8  or 


lActs  and  Resolves,  I,  174,  181,  184,  642,  etc. ;  II,  Index  at  "Towns."  So 
also  in  Rhode  Island :  Arnold,  I,  337,  364,  368,  etc. 

1  Muss.  Col.  Rec.,  I,  266. 

'Mass.  Col.  Rec.,  I,  319. 

'Mass.  Col.  Rec.,  II,  210. 

*Plym.  Col.  Rec.,  XI,  52,  63,  182,  187,  188,  216,  259. 

*Mass.  Col.  Rec.,  I,  179.     For  the  case  of  Concord  see  76.,  157,  167. 

T  See  examples  in  Mass.  Col.  Rec.,  I,  316,  317,  233,  247,  266-7,  etc. ;  Plym. 
Rec.,  XI,  7,  18,  59,  106. 

8 Mats.  Col.  Rec.,  I,  196;  also  279-80;  Plym.  Rec.,  XI,  40-41,  110,  118. 


58  Rise  of  the  New  England  Town. 

those  regulating  the  watch  and  the  hue  and  cry,1  or  requiring 
the  towns  to  provide  proper  means  of  defence.2  Many  minor 
orders  relating  to  towns  were  passed.  Thus  fairs  were  to  be 
held  in  certain  towns ; 3  and  each  was  required  to  have  a  pound 
for  swine,4  a  trucking-house,5  and  a  house  for  lost  goods.6  Of 
course  in  "burning"  questions,  such  as  the  agrarian  contro- 
versy between  commoners  and  non-commoners,  the  heal-all  of 
general  legislation  was  sought.  Indeed  the  regulation  of  the 
admission  to  rights  of  commonage7  in  the  towns,  and  the 
management  of  the  common  lands8  were  the  sources  of  no  little 
trouble  to  the  legislature. 

Aside  from  these  and  many  other  special  orders  for  the 
regulation  of  local  affairs,  in  1635—6  the  Massachusetts  gen- 
eral court  passed  something  like  an  organic  township  act,9 
which,  after  reciting  that  "particular  townes  have  many 
things  woh  concerne  onely  themselves,  and  the  ordering  their 
owne  affaires,"  empowered  the  major  part  of  the  freemen  in 
each  to  dispose  of  their  lands  and  appurtenances,  grant  lots, 
and  make  orders  concerning  any  local  matter,  so  long  as  not 
repugnant  to  the  enactments  of  the  court,  and  not  involving 
a  penalty  of  more  than  20  shillings  for  their  violation.  They 
were  also  authorized  to  choose  their  own  officers,  "  as  consta- 
bles, surveyors  for  the  highwayes,  and  the  like."  But,  with 
the  exception  of  this,  during  the  period  of  the  first  charter, 
the  towns  were  governed  by  isolated  orders  touching  a  great 


^Mass.  Col.  Rec.,  I,  120,  310-11;  II,  151;  IV,  Part  I,  419. 

2  Mass.  Col.  Rec.,  II,  282 ;  I,  84 ;  Plym.  Col.  Rec.,  XI,  51, 105,  181,  180,  etc. 

3  Mass.  Col.  Rec.,  I,  241. 
*Mass.  Col.  Rec.,  I,  150. 

5  New  Haven  Col.  Rec.,  I,  43 ;  Mass.  Col.  Rec.,  I,  96. 

6  .Mass.  Col.  Rec.,  1,281. 

7  See  Mass.  Col.  Rec.,  I,  65 ;  IV,  Part  I,  417,  for  two  very  interesting  orders 
regulating  rights  of  commonage.    Cf.  Dr.  Adams,  Village  Communities,  63-79, 
where  the  whole  subject  is  treated  from  the  sources. 

8  See  examples  in  Mass.  Col.  Rec.,  I,  211 ;  II,  39,  49,  105,  180-1,  195,  213; 
IV,  Part  II,  563.     Cf.-Dr.  Adams,  Village  Communities,  42  ff. 

9  Mass.  Col.  Rec.,  I,  172. 


Relation  of  the  Town  to  the  General.  Court.  59 

variety  of  matters.  Under  the  Province  laws,  however,  legis- 
lation became  much  more  systematic,  entering  into  the  details 
of  functions,  powers,  and  procedure,  much  in  the  modern 
spirit.1 

The  records  of  Connecticut  and  Rhode  Island  show  fewer 
attempts  to  regulate  local  affairs.  In  the  latter  colony,  in 
particular,  the  towns  have  always  maintained  a  high  degree 
of  independence;  but  there  is  sufficient  evidence  to  show 
that  in  both  colonies  the  general  court  exercised  adequate 
authority.2 

In  the  jurisdiction  of  Plymouth,  on  the  other  hand,  the 
connection  between  the  local  and  central  powers  appears  to 
have  been  more  intimate  than  anywhere  else  in  New  Eng- 
land.3 And  this  may,  perhaps,  be  explained  by  the  fact  that 
the  whole  body  of  freemen  in  this  colony  possessed  the  right 
to  participate,  when  they  saw  fit,  in  the  deliberations  of  the 
general  court. 

(6). — The  Town  was  the  Constitutional  Unit. 

But  it  was  in  its  political  or  constitutional  aspect  that  the 
township  occupied  a  unique  position.  The  ancient  tunscipe 
was,  no  doubt,  as  we  are  informed  by  the  highest  authority,4 


1  See  Acts  and  Resolves,  I,  64-9,  for  a  general  township  act ;  and  consult 
the  index  to  titles  of  the  various  town  officers  and  functions.     Towns  were 
also  incorporated  by  charter :  see  Hist,  of  Chester  in  Coll.  New  Hampshire 
Hist.  Soc.,  VIII,  345,  349.     The  early  records  of  the  Mass,  towns  when 
compared  with  the  Court  records  show  about  an  equal  division  of  manage- 
ment of  local  affairs.     Ellis,  Puritan  Age  in  Mass.,  p.  250. 

2  In  the  records  of  each  the  acts  relating  to  towns  became  much  more 
elaborate  during  the  18th  century.    In  Connecticut  the  towns  were  formally 
"incorporated"  in  1639.     See  Hollister,  I,  110;  Trumbull,  Hist.  Conn.,  I, 
114.    Arnold,  I,  226,  for  first  "charters"  to  towns  (1649)  in  Rhode  Island. 

8  See  Plym.  Col.  Rec.,  XI,  index  at  "  Towns,"  "  Selectmen,"  etc.  A  very 
close  supervision  over  the  towns  was  exercised  by  the  central  government 
in  New  Hampshire:  New  Hampshire  Town  Papers,  XI,  XII. 

*Stubbs,  Const.  Hist.,  I,  82. 


60  Rise  of  the  New  England  Town. 

the  constitutional  unit  of  the  Saxon  state.  But  neither  the 
tunscipe  nor  its  successor,  the  parish,  was  ordinarily  brought 
into  direct  contact  with  the  central  power.  It  was  over- 
shadowed by  the  higher  organisms  of  the  county  and  the 
hundred.  Knights  of  the  shire  and  not  town  deputies  took 
their  seats  in  the  house  of  commons ;  and  it  was  the  sheriff 
and  not  the  constable  who  accounted  for  the  taxes  in  the 
exchequer. 

In  New  England,  on  the  other  hand,  the  town  was  the 
political  atom  in  a  most  vital  sense.  Here  the  hundred  never 
made  its  appearance ;  and  when  the  county  was  instituted — in 
some  instances  many  years  after  the  first  settlements  were 
planted — the  towns  were  not  subordinated  to  it  politically. 
The  shire,  as  we  shall  see,  discharged  administrative  functions 
of  no  little  importance ;  but  it  did  not'  become  the  area  of 
taxation  or  representation.  The  town  remained  as  before  the 
constitutional  unit  in  at  least  three  important  particulars  : 

1.  It  was  the  fiscal  area  for  the  levy  of  the  county  as  well 
as  the  country  rate,  both  of  which  were  assessed,  collected, 
and  accounted  for  by  its  own  officers. 

2.  It  was  the  unit  of  the  militia  organization,  each  town  as 
a  rule  being  required  to  maintain  a  "  train-band." l 

3.  Finally  and  most  important  it  was  the  area  of  represen- 
tation.    According  to  the  first  charter  of  Massachusetts  the 
general  court  was  to  consist  of  the  governor,  assistants,  and 
all  the  freemen  of  the  jurisdiction  sitting  as  one  body.2     But 
the  attendance  of  the  latter  upon  the  four  annual  sessions  wa& 
soon  found  impracticable.     It  was  therefore  ordered  in  1634 
that  each   town  be  empowered    "  to  choose  two  or  three " 
deputies  to  represent  the  body  of  freemen  in  all  matters  save 
the  election  of  officers. 3      During  the  early  period  various 


1  For  a  discussion  of  the  militia  system  and  the  rates  see  Chap.  VII, 
below. 

2  Mass.  Col.Rec.,  I,  11-12. 
3 Mass.  Col.Rec.,  I,  118. 


Relation  of  the  Town  to  the  General  Court.  61 

orders  relating  to  the  number  of  delegates  were  passed;1  but  it 
was  finally  settled  that  each  town  should  send  either  one  or 
two  representatives  at  pleasure.2  By  the  second  charter  each 
town  was  allowed  to  send  one  or  two  representatives  as  should 
be  determined  by  law.3 

The  representative  systems  of  the  New  Haven,  Connecticut, 
and  Rhode  Island  jurisdictions  did  not  differ  essentially  from 
that  of  Massachusetts.4  In  Plymouth,  on  the  other  hand, 
during  the  first  tyyenty  years  we  behold  the  remarkable  spec- 
tacle of  a  folktnoot  for  an  entire  jurisdiction.  Until  1639 
every  freeman  might  appear  as  a  legislator  in  the  general 
court.  In  that  year  each  town  was  authorized  to  choose  two 
deputies,  except  Plymouth,  which  should  be  entitled  to  four.8 
But  throughout  the  entire  history  of  the  colony  the  freemen, 
when  assembled  at  the  court  of  election,  might,  if  they  saw  fit, 
take  the  matter  of  legislation  into  their  own  hands.6 

In  one  other  important  branch  the  town  may  perhaps  be 
regarded  as  an  administrative  unit.  The  commissioners  of 
small  causes,  chosen  in  town-meeting  and  approved  by  the 


1  For  example  in  1636  towns  with  from  10  to  20  freemen  were  allowed 
one;  those  having  from  20  to  40,  not  above  two;  and  those  with  40  and 
upwards,  not  more  than  three  deputies.  Mass.  Col.  Rec.,  I,  178.  In  1638/9 
no  town  was  to  have  more  than  two :  Ib.r  254. 

1  Mass.  Col.  Rec.,  II,  231.  But  those  having  thirty  freemen  or  less  might 
send  deputies  or  not  as  they  chose:  Ib.,  IV,  Part  I,  154. 

*  Acts  and  Resolves,  I,  11,  88.  But  Boston  had  four:  76.,  88.  In  the  revo- 
lutionary period  there  was  a  new  apportionment :  Ib.,  V,  502. 

4  In  New  Haven  the  number  of  deputies  from  each  town  was  two :  N.  H. 
Rec.,  II,  4,  36,  etc.  In  Connecticut  the  number  was  at  first  four:  Hollister, 
Hist.  Conn.,  I,  28,  96;  by  the  charter  of  1662  the  number  was  not  to  exceed 
two:  Poore,  Charters,  I,  253.  In  Rhode  Island  in  the  early  period  each 
town  was  represented  by  a  "  committee  "  of  six  "  commissioners : "  see  lists 
in  Vol.  I  of  R.  I.  Col.  Rec.;  also  Arnold,  I,  203,  210,  229.  By  the  royal 
charter  the  number  was  2,  4,  and  6  respectively  from  different  towns:  R.  I. 
ai.  Rec.,  II,  8 ;  Arnold,  I,  295. 

&Plym.  Col.  Rec.,  XI,  31. 

«Plym.  Col.  Rec.,  XI,  79-80,  92,  169.  See  also  "The  Colony  of  New 
Plymouth,"  etc.,  by  William  Brigham,  in  Lowell  Institute  Lectures,  173. 


62  Rise  of  the  New  England  Town. 

general  court  or  the^court  of  the  shire,  constituted  the  lowest 
judicial  tribunal,  with  appeal  to  the  higher  courts.1  Moreover 
the  assistants,  in  the  towns  where  they  resided,  possessed  ex 
officio  the  ordinary  powers  of  justices  of  the  peace. 

Finally  in  adjusting  all  these  general  relations — in  framing 
election  laws,  determining  the  qualifications  of  voters,  control- 
ling the  currency,  and  especially  in  freely  exercising  the  right 
of  general  taxation — we  have  abundant  proofs  of  the  sovereign 
power  of  the  colonial  state.  There  was  an  equitable  distribu- 
tion of  functions  between  the  lower  and  higher  organisms. 
Indeed  the  colonial  governments  were  remarkably  successful 
experiments  in  the  development  of  republican  institutions. 
Never  before  had  there  been  seen  so  high  a  degree  of  local 
autonomy  co-existing  with  such  adequate  sovereign  control. 
It  only  needed  sufficient  motive  to  cause  the  isolated  states 
themselves  to  combine  in  the  grander  experiment  of  federal 
union. 

III. — THE  TOWN  MEETING. 
(a). — Membership  and  Organization. 

The  supreme  control  of  the  affairs  of  the  community  was 
vested  in  the  town-meeting.  In  character  as  well  as  in  name 
this  institution  was  a  reproduction  of  the  ancient  tungemot, 
but  with  functions  far  more  developed  than  those  of  the  latter 
or  its  representatives,  the  manorial  court  leet  and  the  parish 
vestry.  Qualified  to  share  in  its  deliberations,  originally,  were 
all  the  male  inhabitants  of  legal  age.  Politically  all  those  who 
had  been  regularly  admitted  as  inhabitants  of  the  town  were 
equal  ;2  the  only  restriction  upon  the  right  of  suffrage  being  a 
property  qualification  for  certain  offices  established  at  a  later 
day  by  the  general  court.3  But  as  a  rule  there  was  no  class 


1  Mass.  Col.  Rec.,  I,  239.     See  Chap.  VII,  below. 

2  Cf.  Eggleston,  36-7. 

3 In  1658  it  was  provided  by  the  Massachusetts  general  court  that  "all 
Englishmen  that  are  settled  inhabitants  &  house  holders  in  any  toune  of  the 


The  Town  Meeting.  63 

privilege  based  on  rights  of  commonage.1  Non-proprietors  as 
well  as  proprietors,  newcomers  as  well  as  old,  could  vote  and 
hold  office;  and  these  rights  were  enjoyed  by  inhabitants  of 
the  town,  though  not  regularly  admitted  as  freemen  of  the 
jurisdiction.2  It  is  interesting  to  note  in  this  connection  that, 
from  the  sixteenth  century  onward,  the  principle  of  political 
equality,  however  sharp  might  remain  class  distinctions  with 
respect  to  the  use  of  the  common  lands,  obtained  in  the  village 
communities  of  Germany.3 

Town-meetings  were  summoned  by  the  constable  through 
"  lawful  warning  from  house  to  house,"  under  authority  of 
the  selectmen's  warrant ; 4  and  in  the  early  period  they  were 


age  of  twenty  fower  yeares,  &  of  honest  &  good  conuersation,  being  rated 
twenty  pounds  estate  in  a  single  countrje  rate,  that  hath  taken  the  oath  of 
fidellitje  to  this  goverment,  &  no  other,  except  ffreemen,  may  be  jurymen 
or  constables,  and  have  theire  vote  in  the  chojce  of  the  selectmen."  Mass. 
Col.  Rec.,  II,  336.  A  similar  act  was  passed  in  1692-3 :  Acts  and  Resolves,  I, 
65.  Qualified  to  vote  for  jurymen  were  those  possessed  of  real  estate  worth 
40  shillings  a  year,  or  personal  estate  worth  50  pounds:  J6.,  p.  74.  This 
last  was  the  qualification  of  electors  of  members  of  the  Assembly  according 
to  the  charter :  76.,  p.  363.  A  property  qualification  for  freemen  was  estab- 
lished in  Rhode  Island  in  1723-4:  Arnold,  Hist,  of  Rhode  Island,  II,  77. 

1  The  proprietors  held  meetings  of  their  own  for  the  management  of  their 
common  fields  and  kept  their  own  records.  See  for  example,  The  Records  of 
the  Proprietors  of  Worcester,  edited  by  Franklin  P.  Rice. 

'See  Mass.  Col.  Rec.,  II,  197  (1647),  repealing  an  act  of  1635,  /&.,  I,  161. 
In  Rhode  Island  freemen  of  the  town  though  not  freemen  of  the  jurisdiction 
could  vote  even  for  deputies :  Arnold,  II,  78.  But  in  Plymouth  the  right 
was  restricted  to  freemen  with  20  pounds  estate :  Plym.  Col.  Rec.,  XI,  223. 

'Originally  only  Commoners — Genossen — could  appear  in  the  German 
Mark  and  Village  moots;  and  this  is  still  the  rule  in  some  places.  But 
elsewhere  two  distinct  bodies  became  differentiated  :  the  enyere  or  herschende 
Gemeinde,  the  proprietors  with  full  right ;  and  the  weitere  or  beherschte  Ge- 
meinde,  comprising  the  various  degrees  of  Beisassen  or  Nichtmarker.  After 
the  16th  century  the  wider  community  absorbed  all  political  powers,  leaving 
sometimes  only  the  administration  of  the  common  property  to  the  older  and 
smaller  society.  But  custom  varied.  See  Maurer,  Dorfverf.,  II,  43-4,  77-80, 
247-265;  I,  162  ff.;  Markenverf.,  323;  Einleitung,  144  ff.;  Thudichum,  Gau- 
und-Markverf.,  229-230;  Laveleye,  Prim.  Prop.,  71  f.,  89. 

4  The  warrant  might  be  issued  by  the  town  clerk  on  order  of  the  select- 
men, or  by  the  "next"  justice  of  the  peace  within  the  county  in  case  of 


64  Rise  of  the  New  England  Town. 

held  with  a  frequency  which  must  have  been  a  serious  en- 
croachment upon  the  ordinary  business  of  the  community,1 
especially  since  fines  for  absence  were  usually  imposed.2 

When  the  people  were  duly  assembled  they  proceeded  at 
once  to  "  organize."  This  procedure  consisted  simply  in  the 
choice  of  a  moderator,  the  town-clerk  acting  ex  officio  as 
secretary  of  the  meeting.  No  one  could  speak  without  the 
moderator's  permission  and  he  could  impose  fines  for  dis- 
orderly conduct  or  command  refractory  persons  to  withdraw.3 

(6). — Powers  and  Functions:   Extracts  from  the  Records. 

When  organized  the  meeting  could  pass  orders  and  enact 
by-laws  touching  every  detail  of  the  "  prudential "  affairs. 
First  in  importance  was  the  right  to  levy  taxes.  The  order 


neglect  or  refusal  of  the  selectmen  to  act ;  and  by  the  justices  in  the  first 
instance  when  the  meeting  was  called  for  choice  of  jurors:  Acts  and  Resolves, 
I,  68,  74.  The  warrants  were  sometimes  read  in  the  meeting  before  delibera- 
tion began.  See  examples  in  Braintree  Records ;  also  in  Worcester  Records, 
1740-53,  p.  88.  A  law  of  Massachusetts,  Dec.  22,  1715/16,  allowed  ten  or 
more  freeholders  to  signify  to  the  selectmen  any  matter  which  they  wished 
considered  and  it  must  be  inserted  in  the  warrant ;  and  no  subject  could  be 
discussed  not  contained  in  the  warrant:  Acts  and  Resolves,  II,  30.  A  simi- 
lar order  was  adopted  in  1701  by  the  Boston  town-meeting:  Town  Records, 
17.  For  example  of  selectmen's  warrant  see  New  Hampshire  Town  Papers, 
XI,  515. 

1For  example  ten  general  town-meetings  were  held  in  Boston  in  1635: 
Records,  1634-60,  pp.  4-8.    See  also  Paige,  Hist,  of  Cambridge,  17  ff. 

2  On  fines  for  absence  see  New  Haven  Col.  Rec.,  II,  172 ;  Newark  Town  Rec., 
81;  Dorchester  Town  Rec.,  8,  10,  292;  Freeman,  Hist.  Cape  Cod,  II,  358 
(Eastham). 

3  Acts  and  Resolves,  II,  30.     As  a  rule  the  moderator  was  chosen  for  the 
particular  meeting.     In  Boston,  however,  in  the  early  period,  he  seems  to 
have  been  often  elected  as  an  annual  officer :  Boston  TownRecords,  1660—1700, 
at  various  general  meetings.     But  in  1701  a  by-law  was  enacted  requiring 
the  moderator  to  be  chosen  for  every  meeting  and  defining  his  powers : 
Town  Records,  p.  17.      Sometimes  the  same  person  was  regularly  chosen 
moderator  at  every  meeting  for  a  long  term  of  years :  so  John  Chandler, 
Esq.,  at  Worcester :  Worcester  Records,  1740-1753. 


The  Town  Meeting.  65 

directing  the  levy  took  the  form  of  a  command  to  the  select- 
men or  other  raters  to  " make  a  rate"  for  a  specified  purpose, 
such  as  for  the  minister's  salary,  or  the  support  of  the  schools. 
Sometimes  the  exact  amount  required  was  named  in  the  order,1 
or  that  might  be  left  for  the  raters  to  determine.2  The  various 
objects  for  which  local  taxes  were  needed  may  be  best  under- 
stood from  a  typical  example,  which,  however,  will  be  rele- 
gated to  the  margin.3 


1  See  examples  in  Dorchester  Town  Records,  35,  57,  etc.,  and  Worcester  Town 
Records,  1753-83,  p.  14,  etc. 

"Examples  of  this  method  in  Boston  Town  Records,  1634-60,  p.  65,  etc. 

8"9:  9m.  1657.  An  account  of  the  Rate  of  40U :  9":  lld:  made  in  yeare 
1655 :  for  discharge  of  severall  Expences  and  Charges  for  the  Townes  vse 
and  Scoole  cometted  vnto  the  hands  of  Henry  Garnsey  Bailife : 

li.  s.      d. 

Item  to  William  Pound  for  mending  the  Stockes     ....    00.  09.     06 
I'  for  Selectmens  Diett  in  the  yeare  56 :  to  Goode  George  3U 

2s  10.  whereof  shee  receved  22s  of  Edmon  Blake  which  he 

owed  the  towne  for  the  Scoole  house  and  som  of  Thomas 

Burd  so  we  Laid  out 01.  12.    11 

Item  Left  Clap  as  Debute  for  the  yeare  56 01.  16.    06 

Item  to  Deacon  Weswall  as  Debute  and  other  p'ticulers  as 

by  bill 02.  16.     06 

Item  to  Nathaniel  Fatten  in  severall  p'ticulers  as  by  bill  of 

which 00.  10.     06 

my  rate  is  9s  4d  so  remaynes  to  me  14d. 

I*  to  Goodman  Andrus  for  worke  about  meting  howse  ...    00.  08.    00 

Item  to  Edmon  Browne  for  worke  about  meting  howse     .     .     00.  05.    06 

I'  to  Richard  Evens  for  worke  about  the  Scoole  howse      .     .    00.  10.    06 
I1  to  Mr  Glouer  for  running  the  Lyne  and  Charge  about  Bas- 

tian  Keans  wife  in  her  sickness 00.  06.      6 

I'  to  William  Somner  for  Runing  the  Lyne 00.  05. 

I1  to  Mahalaell  Munnings  for  Runing  the  Lyne 00.  05.      0 

I'  to  Robert  Voce  and  his  two  sonns  for  runing  the  Lyne      .     00.  07.      6 

I*  to  Robert  Badcoke  for  Runing  the  Lyne 00.  02.      6 

I*  to  Thomas  Hollman  for  Running  the  Lyne 09.  01.      0 

I*  to  Robert  Redman  for  killing  a  woolfe 01.  00.      0 

I*  to  William  Trescot  for  killing  a  woolfe 01.  00.       0 

I1  to  James  Minott  for  his  man  Pike  to  keepe  hoggs     ...     00.  02.      6 

I'  to  Robert  Pearce  for  mending  a  gate  in  the  greet  Lots  .     .    00.  01.      0 
5 


66  Rise  of  the  New  England  Town. 

In  the  meeting  also  were  chosen  the  town  officers  and  the 
deputies  to  the  general  court;1  and,  during  the  early  period 
in  particular,  a  vast  number  of  orders  and  by-laws  were  passed 
relating  to  the  use  of  the  common  fields  and  pastures;  directing 
the  management  of  the  village  herds ;  authorizing  the  laying 
out  of  ways  and  the  running  of  boundary  lines ;  making  assign- 
ment of  lands  to  individuals ;  and  regulating  the  construction 
of  fences.  Especially  interesting  are  those  portions  of  the  early 
records  containing  provisions  for  the  support  of  education  and 
the  church ;  for  the  township  was  not  merely  a  political  organ- 
ism ;  it  was  also  a  school  district  and  a  body  of  co-worship- 
pers. Many  entries  such  as  the  following  may  be  found  in  the 
records : — 

"  The  4th  of  the  (10th)  66.  At  a  towne  meting  after  some 
agetations  about  a  Schoolmaster  It  was  put  to  the  Vote  whether 
ther  should  be  a  Schole  Master  enquiered  after,  and  p'curered 
for  to  teach  Schole  in  this  towne,  It  was  voted  in  the  Aferma- 
tiue,  and  by  a  Second  vote  it  was  agreed  vnto  that  Master 
Mather  and  Liftnt  Hopestill  Foster  and  John  Minot  should 
be  desier[ed]  and  empowered  to  endeauor  to  p'cuer  a  Schol- 
Master. 

"The  same  day  it  was  voted  and  granttd  that  M*.  pole 
should  be  spoken  vnto  to  goe  on  in  keepeing  Schole  vntill 
another  Master  be  p'cuered,  at  the  same  rate  as  formerly, 

Item  allowed  Henry  Gearnsey  for  Lose  of  Corne  for  want  of 

Convenient  roome  and  having  no  order  to  dispose  of  it  .     .     00.     09.       0 
I'  wee  allow  him  the  said  Henry  for  his  paines  att  Necke     .     00.     12.       0 
I*  paid  the  Scoolemaster  Icabud  Wiswall  by  the  Bay  life  .     .     20.     19.     11 
I1  the  Baylife  craue  allowance  for  John  Smith  John  Plume 
Thomas  Garnett  Samuel!  Hollway  Eetorne  Munning  and 
Bastian  Keane,  som  of  them  gonn,  other  poore,  and  Mr 

Edward  Tinnge  tresuer  the  whole  is 00.     04.     10" 

I' for  Selectmens  Diett  for:  1657:  .  .     03.     00.       0 


Sum  is "37     6."     8f 

Dorchester  Town  Records,  81-82. 

1  The  annual  meeting  for  the  election  of  town  officers  was  held  in  March. 
Acts  and  Resolves,  I,  65. 


The  Town  Meeting.  67 

p'portionably  according  to  the  time  he  shall  soe  doe,  and 
William  Sumner  is  appointed  to  speake  to  Mr  pole  about  it, 
if  he  will  accept  of  it  soe  to  doe."1 

These  homely  minutes  acquire  a  deep  significance  when  we 
consider  that  it  was  by  such  orders  of  the  town-meeting  that 
the  foundations  of  our  present  free  school  system  were  laid. 
For  a  great  epoch  in  the  history  of  social  progress  is  reached 
when  our  New  England  ancestors  recognized  the  support  of 
popular  education  as  a  proper  function  of  local  government. 
The  introduction  of  the  school  rate  as  a  legitimate  item  of 
public  taxation  deserves  a  memorable  place  in  American 
annals ;  and  the  event  is  all  the  more  remarkable,  because  it 
anticipated  the  development  of  thought  in  the  mother  country 
by  nearly  two  centuries  and  a  half.2 

In  1647  the  general  court  of  Massachusetts  required  every 
town  of  fifty  families  to  establish  elementary  schools,  to  be 
supported  either  by  the  masters  or  parents  of  the  children 
attending,  or  by  the  inhabitants  in  general,  as  the  selectmen 
should  determine.  In  like  manner  grammar  schools  were  to 
be  maintained  in  towns  of  one  hundred  families.3  But,  before 


1  Dorchester  Town  Records,  13G-7. 

*In  1807  Mr.  "VVhitbread  brought  a  bill  before  Parliament  for  the  estab- 
lishment of  parochial  schools,  to  be  supported  by  local  taxation,  but  it  was 
defeated,  mainly  on  religious  grounds :  Graik,  The  Stale  and  Education,  10. 
Elective  school  boards  with  the  power  to  levy  local  rates  were  first  created 
by  act  of  Parliament  in  1870:  /&.,  88  ff. 

'However  the  primary  motive  of  the  act  is  to  promote  religious  knowl- 
edge: "It  being  one  cheife  p'iect  of  yl  ould  deluder,  Satan,  to  keepe  men 
from  the  knowledge  of  y9  Scriptures,  as  in  formr  times  by  keeping  ym  in  an 
unknowne  tongue,  so  in  these  lattr  timeb  by  p'swading  from  ye  use  of  tongues, 
y*  so  at  least  ye  true  sence  &  meaning  of  ye  originall  might  be  clouded  by 
false  glosses  of  saint  seeming  deceivers,  y4  learning  may  not  be  buried  in 
ya  grave  of  or  fath™  in  ye  church  &  coinonwealth,  the  Lord  assisting  or  en- 
deavor," etc. :  Mass.  Col.  Rec.,  II,  203.  Cf.  Plym.  Col.  Rec.,  XI,  142  (1658). 
It  is  important  to  note  that  the  practical  unity  of  the  people  of  Massachu- 
setts in  matters  of  faith,  rendered  the  establishment  of  public  schools  a 
comparatively  easy  matter.  It  was  only  gradually  that  those  schools  became 
secular,  as  thought  became  more  liberal.  On  the  other  hand,  in  England, 


68  Rise  of  the  New  England  Town. 

the  intervention  of  the  colonial  authority,  the  individual  com- 
munities had  already  made  provision  for  elementary  education. 
The  following  somewhat  elaborate  ordinance,  adopted  by  the 
Dorchester  town-meeting  in  1644,  is  not  without  historical 
value  on  account  of  the  glimpse  which  it  affords  of  the  pecu- 
liar moral  and  religious  conceptions  of  the  age;  and  it  also 
illustrates  the  "  exhaustiveViess "  of  many  of  the  early  town 
enactments,  although,  in  this  instance,  the  authors  are  pain- 
fully conscious  that  it  is  "difficult  if  not  impossible  to  give 
p'ticular  rules  that  shall  reach  all  cases  which  may  fall  out." 
But  as  an  example  of  the  earliest  local  legislation  on  the  sub- 
ject of  school  government,  it  is  of  supreme  interest.  Here  we 
have  all  the  essential  features  of  the  district  organization  as 
we  know  it  at  the  present  hour.  In  the  board  of  wardens, 
the  township  has  shown  its  capacity  to  differentiate  a  new 
local  authority  for  the  administration  of  a  new  and  important 
function : 

"  Upon  a  generall  and  lawfull  warning  of  all  the  Inhabi- 
tants the ,14th  of  the  1st  moneth  1645  these  rules  and  orders 
following  prsented  to  the  Towne  concerning  the  schoole  of 
Dorchester  are  confirmed  by  the  maior  p'te  of  the  Inhabitants 
then  prsent. 

"  First  It  is  ordered  that  three  able,  and  sufficient  men  of 
the  Plantation  shalbe  chosen  to  bee  wardens  or  ouseers  of  the 
Schoole  aboue  mentioned  who  shall  haue  the  Charge  ousight 
and  ordering  thereof  and  of  all  things  Concerneing  the  same 
in  such  manner  as  is  hereafter  expressed  and  shall  Continue 
in  their  office  and  place  for  Terme  of  their  Hues  respectiuely, 
vnlesse  by  reason  of  any  of  them  Remouing  his  habitation  out 
of  the  Towne,  or  for  any  other  weightie  reason  the  Inhabitants 
shall  see  cause  to  Elect  or  Chuse  others  in  their  roome  in 
which  cases  and  vpon  the  death  of  any  of  sayd  wardens  the 
Inhabitants  shall  make  a  new  Election  and  choice  of  others. 

sectarian  strife  and  the  dread  of  secularizing  education,  prevented  the 
adoption  of  a  similar  system  until  1870.  See  the  interesting  book  of  Mr. 
Craik  already  cited. 


The  Town  Meeting.  69 

"  And  M'  Haward,  Deacon  Wiswall,  M'  Atherton  are 
elected  to  be  the  first  wardens  or  ouseers. 

"  Secondly,  the  said  Wardens  shall  haue  full  power  to 
dispose  of  the  Schoole  stock  whither  the  same  bee  in  land 
or  otherwyse,  both  such  as  is  already  in  beeing  and  such  as 
may  by  any  good  meanes  heereafter  be  added  :  and  shall 
Collect  and  Receiue  the  Rents,  Issues  and  p'fitts  arising  and 
growing  of  and  from  the  sayd  stock.  And  the  sayd  rents 
Issues  and  p'fits  shall  irnploy  and  lay  out  only  for  the  best 
behoof,  and  advantadge  of  the  sayd  Schoole;  and  the  further- 
ance of  learning  thereby,  and  shall  giue  a  faythfull  and  true 
accoumpt  of  there  receipts  and  disbursements  so  often  as  they 
shalbee  thervnto  required  by  the  Inhabitants  or  the  maior  p'te 
of  them. 

"  Thirdly  the  sayd  "Wardens  shall  take  care,  and  doe  there 
vtmost  and  best  endeavor  that  the  sayd  Schoole  may  fro  tyme 
to  tyme  bee  supplied  with  an  able  and  sufficient  Schoolemaster 
who  neuthelesse  is  not  to  be  admitted  into  the  place  of  Schoolem* 
without  the  Generall  cosent  of  the  Inhabitants  or  the  maior 
p'te  of  them. 

"  Fowerthly  so  often  as  the  sayd  Schoole  shalbee  supplied 
with  a  Schoolem* — so  p'vided  and  admitted,  as  aforesayd  the 
wardens  shall  frd  tyme  to  tyme  pay  or  cause  to  be  payd  vnto 
the  sayd  Schoolem*  such  wages,  out  of  the  Rents,  Issues  and 
p'fitts  of  the  Schoole  stocke  as  shall  of  right  Come  due  to  be 
payd. .  .  . 

"  Sixthly  the  sayd  Wardens  shall  take  care  that  euy  yeere 
at  or  before  the  end  of  the  9th  moneth  their  bee  brought  to  the 
Schoolehowse  1 2  sufficient  cart,  or  wayne  loads  of  wood  for 
fewell,  to  be  for  the  vse  of  the  Schoole  master  and  the  Schollers 
in  winter  the  Cost  and  Chargs  of  which  sayd  wood  to  bee  borne 
by  the  Schollers  for  the  tyme  beeing  who  shalbe  taxed  for  the 
purpose  at  the  discretion  of  the  sayd  Wardens. 

"  Lastly  the  sayd  Wardens  shall  take  care  that  the  Schoolem* 
for  the  tyme  beeing  doe  faythfully  p'forme  his  dutye  in  his 
place,  as  schoolm™  ought  to  doe  as  well  in  other  things  as  in 
these  which  are  hereafter  expressed,  viz. 


70  Rise  of  the  New  England  Town. 

"  First  that  the  Schoolem1  shall  diligently  attend  his 
Schoole  and  doe  his  vtmost  indeavor  for  Benefitting  his 
schollers  according  to  his  best  discretion  without  vnneces- 
saryly  absenting  himself  to  the  priudice  of  his  schollers, 
and  hindering  there  learning. 

"  2ly  that  from  the  begiiiing  of  the  first  moneth  vntill  the 
end  of  the  7th  he  shall  euy  day  begin  to  teach  at  seaven  of  the 
Clock  in  the  morning  and  dismisse  his  schollers  at  fyue  in  the 
afternoone.  And  for  the  other  fiue  moneths  that  is  from  the 
beginning  of  *the  8th  moneth  vntill  the  end  of  the  12th  moth 
he  shall  euy  day  beginn  at  8th  of  the  Clock  in  the  morning 
and  [end]  at  4  in  the  afternoone. 

"  31y  euy  day  in  the  yeere  the  vsuall  tyme  of  dismissing  at 
noone  shalbe  at  11  and  to  beginn  agayne  at  one  except  that 

"  4ly  euery  second  day  in  the  weeke  he  shall  call  his  schollers 
togeither  betweene  12  and  one  of  the  Clock  to  examin  them 
what  they  haue  learned  on  the  saboath  day  prceding  at  which 
tyme  also  he  shall  take  notice  of  any  misdemeanor  or  disorder 
that  any  of  his  skollers  shall  haue  Committed  on  the  saboath 
to  the  end  that  at  somme  convenient  tyme  due  Admonition, 
and  Correction  may  bee  admistred  by  him  according  as  the 
nature,  and  qualitie  of  the  offence  shall  require  at  which  sayd 
examination  any  of  the  elders  or  other  Inhabitants  that  please 
may  bee  prsent  to  behold  his  religious  care  herein  and  to  giue 
there  Countenance,  and  ap'pbation  of  the  same. 

"  5ly  hee  shall  equally  and  impartially  receiue  and  instruct 
such  as  shalbe  sent  and  Comitted  to  him  for  that  end  whither 
their  parents  bee  poore  or  rich  not  refusing  any  who  haue 
Right  and  Interest  in  the  Schoole. 

"  6ly  such  as  shalbe  Comitted  to  him  he  shall  diligently 
instruct  as  they  shalbe  able  to  learne  both  in  humane  learn- 
ing, and  good  litterature,  and  likewyse  in  poynt  of  good 
manners,  and  dutifull  behauior  towards  all  specially  their 
sup'iors  as  they  shall  haue  occasion  to  bee  in  their  prsence 
whether  by  meeting  them  in  the  streete  or  otherwyse. 

"  7ly  euy  6  day  of  the  weeke  at  2  of  the  Clock  in  the  after- 


The  Town  Meeting.  71 

noone  hee  shall  Chatechise  his  schollers  in  the  principles  of 
<  'liri-tiuu  religion,  either  in  some  Chatechism  which  the  War- 
dens shall  p'vide,  and  p'esent  or  in  defect  thereof  in  some 
other. 

"  8ly  And  because  all  mans  indeavors  without  the  blessing 
of  God  must  needs  bee  fruitlesse  and  vnsuccessfull  theirfore 
It  is  to  be  a  cheif  p'te  of  the  schoolem™  religious  care  to 
Comend  his  schollers  and  his  labours  amongst  them  vnto 
God  by  prayer,  morning  and  euening,  taking  care  that  his 
schollers  doe  reuendly  attend  during  the  same. 

"9lj  And  because  the  Rodd  of  Correction  is  an  ordinance  of 
God  necessary  sometymes  to  bee  dispenced  vnto  Children  but 
such  as  may  easily  be  abused  by  oumuch  seuitie  and  rigour 
on  the  one  hand,  or  by  oumuch  indulgence  and  lenitye  on  the 
other  It  is  therefore  ordered  and  agreed  that  the  schoole- 
master  for  the  tyme  beeing  shall  haue  full  power  to  minister 
Correction  to  all  or  any  of  his  schollers  without  respect  of 
p'sons  according  as  the  nature  and  qualitie  of  the  offence  shall 
require  whereto,  all  his  schollers  must  bee  duely  subiect  and 
no  parent  or  other  of  the  Inhabitants  shall  hinder  or  goe  about 
to  hinder  the  master  therein.  Neuthelesse  if  any  parent  or 
others  shall  think  their  is  iust  cause  of  Complaynt  agaynst 
the  master  for  to  much  seuitye,  such  shall  haue  liberty  freindly 
and  louingly  to  expostulate  with  the  master  about  the  same, 
and  if  they  shall  not  attayne  to  satisfaction  the  matter  is  then 
to  bee  referred  to  the  wardens  who  shall  imp'tially  Judge 
betwixt  the  master  and  such  Complaynants.  And  if  it  shall 
appeare  to  them  that  any  parent  shall  make  causlesse  Com- 
playnts  agaynst  the  m*  in  this  behalf  and  shall  p'sist  and 
Continue  so  doeing,  in  such  case  the  Wardens  shall  haue 
power  to  discharge  the  mr  of  the  care,  and  Charge  of  the 
Children  of  such  parents.  But  if  the  thing  Complayned  of 
bee  true  and  that  the  mr.  haue  indeed  bene  guiltie  of  ministring 
excessiue  Correction,  and  shall  appeare  to  them  to  Continue 
therein,  notwithstanding  that  they  haue  advised  him  otherwise, 
in  such  case  as  also  in  the  case  of  to  much  lenitye ;  or  any 


72  Rise  of  the  New  England  Town. 

other  great  neglect  of  dutye  in  his  place,  p'sisted  in  It  shalbe 
in  the  power  of  the  Wardens  to  call  the  Inhabitants  together 
to  Consider  whither  it  were  not  meet  to  discharge  the  mr  of 
his  place  that  so  somme  other  more  desirable  may  be  p'vided 

"And  because  it  is  difficult  if  not  Impossible  to  give  prticu- 
lar  rules  that  shall  reach  all  cases  which  may  fall  out,"  there- 
fore the  wardens  may  "  dispose  of  all  things  that  concerne 
the  schoole,  in  such  sort  as  ...  they  shall  Judge  most  Con- 
ducible  for  the  glory  of  God,  and  the  trayning  vp  of  the 
Children  of  the  Towne  in  religion,  learning  and  Civilitie."  * 

Expedients  like  the  following  for  contributing  to  the  sup- 
port of  the  minister  were  often  adopted  : 

"  Its  ordered  that  eury  Inhabitant  of  or  towne  shall  Attend 
to  Cutt  &  Gary  or  past"  wood  for  this  yeere  wth  w*  hands  & 
Cattle  they  haue,  &  in  default  to  pay  three  shillings  p'  hand  & 
ten  shillings  for  six  oxen  &  eight  shillings  for  fowre  &  fowre 
shillings  for  two  oxen,  &  the  time  of  meeting  for  ax  men  is  to 
be  by  the  sun  halfe  an  houre  high,  &  for  Carters  by  Sun  one 
houre  high ;  and  in  Cass  any  p'son  shall  be  Defectiue,"  he 
shall  forfeit  a  certain  sum  for  each  hour's  absence  for  man 
and  team,  which  shall  be  added  to  the  minister's  rate :  and 
"  John  Batchelder  &  John  Abbey  Juny1:  is  Chosen  Siruey™  to 
see  to  the  fulfilling  of  this  order  &  they  haue  full  power  to 
Judg  of  the  Defects  of  the  time  acording  to  their  Discreton  & 
to  make  a  Returne  to  the  Raters,  &  its  agreed  that  the  first 
two  faire  dayes  of  the  next  weeke  shall  be  the  time  for  the 
worke  doeing  &  whosoeuer  doe  not  attend  the  first  daye  shall 
haue  liberty  till  the  2d  daye,  &  the  place  of  meeting  to  be  at 
or  pastrs  house." 2 

Nothing  connected  with  the  civil  or  religious  life  of  the 
community  seems  to  have  been  too  minute  to  escape  the  atten- 
tion of  the  town-meeting.  Here  is  another  example  : — 


1  Dorchester  Town  Records,  54-6.     See  Ib.,  151. 

2Wenham  Town  Record*  (1671),  in  Collections  of  Essex  Institute,  Vol.  XXr 
145.     The  punctuation  has  been  slightly  altered. 


The  Town  Meeting.  73 

"On  the  Sixth  artikle  voted  that  the  Two  Hind  Body 
of  mens  Seats  on  the  Lower  floore  in  the  meeting  house  be 
assigned  for  Seats  to  those  Persons  who  shall  Sett  together 
and  lead  in  singing  in  the  Congregation  on  Lords  Days." l 

"  Voted  that  the  mens  seats  in  ye  Body  of  ye  meeting  house 
be  Inlarged  to  y'  womens  Seats,  and  that  y*  Space  between 
Judge  Jenisons  heirs  &  Lieut  Stearns  pew  be  devided  and 
added  to  their  pews  they  Consenting,  &  that  ye  doors  to  these 
pews  be  made  to  Come  out  into  the  hind  alley  and  that  a 
man  &  a  woman  be  placed  in  each  of  these  pews,  by  y" 
Comitte  for  seating  y'  meeting  house."2 

The  abrupt  passage  from  the  trivial  to  the  sublime,  illus- 
trated by  the  following  consecutive  orders,  is  interesting  and 
characteristic :  — 

"on  ye  Eleventh  article  ye  Question  was  Put  whither  y" 
Town  would  Give  order  that  any  part  of  ye  Womens  Gallery 
should  be  appropriated  for  y"  men  to  sit  in  and  it  Passed  In 
y'  Negative 

"on  ye  twelfth  article  ye  Petition  of  Othniel  Taylor  and 
forty  others  was  Read  &  y8  Question  Put  whither  y'  Pam- 
phlett  Drawn  up  by  ye  Town  of  Boston  Containing  y* 
Greivances  this  Province  Labour  under  Should  be  Read,  and 
after  Some  Debate  thereon  it  Passed  In  ye  affirmative."3 

The  foregoing  extracts  from  the  archives  of  New  England 
towns  must  suffice  as  illustrations,  though  the  temptation  to 
multiply  them  is  very  great.  No  adequate  conception  of  the 
wealth  of  historical  material  contained  in  these  records  can  be 
formed  from  mere  quotation.  Fortunately  many  of  them  are 
now  in  print  and  within  easy  reach  of  all.  They  constitute 
an  inexhaustible  mine  in  which  the  student  of  American 
institutions  will  find  his  labor  abundantly  rewarded  and  con- 
stantly enlivened  by  the  most  delightful  surprises. 


1  Worcester  Town  Records,  1753-1783,  p.  206. 

J  Worcester  Town  Records,  1740-1753,  p.  98.     Cf.  Ib.,  100. 

'Worcester  Town  Records,  1773,  p.  201. 


74  Rise  of  the  New  England  Town. 

In  our  national  history  the  town-meeting  fills  a  glorious 
page.  In  fostering  the  growth  of  a  sentiment  of  union  among 
the  colonists,  it  played  a  part  so  important  politically  as  almost 
to  justify  the  claim  of  those  who  regard  it  as  an  American 
product.  It  was  a  genuine  folcgemot,  but  a  folcgemot  far 
more  developed  and  independent  politically  than  that  of  the 
old  English  tun.  It  was  here  that  the  idea  of  nationality,  of 
colonial  unity,  germinated  and  was  fostered  into  a  sublime 
reality.  Under  the  leadership  of  Sam  Adams  the  town-meet- 
ing of  Boston,  followed  and  sustained  by  the  village  moots 
of  New  England  and  the  vestries  of  Virginia,  was  the  head 
and  front  of  the  opposition  to  England  and  the  source  of  all 
political  organization.  The  celebrated  "instructions"  of  this 
assembly  in  1764  led  to  the  Congress  of  1765.  Here  also 
originated  in  1772  the  first  of  those  "Committees  of  Corre- 

o 

spondence"  which  gave  birth  to  the  first  national  party,  and, 
practically,  at  a  single  stroke,  achieved  national  independence. 
If  it  is  difficult  to  see,  without  the  township,  how  the 
Englishman  could  have  triumphed  over  the  Frenchman  in 
the  struggle  for  the  control  of  the  continent ; 1  it  is  no  less 
difficult  to  understand  how,  without  it,  the  English  race  in 
America  could  have  grown  into  an  independent  nation.2 

IV. — THE  SELECTMEN. 
(a). — Evolution  of  the  Office. 

Next  in  importance  and  authority  to  the  town-meeting,  and 
constituting  the  characteristic  feature  of  New  England  town 
government,  was  the  board  of  townsmen  or  selectmen.3  These 

O  * 


1  See  Scott,  Development  of  Constitutional  Liberty,  48-53. 

2 On  the  Boston  town  meeting'and  Sam  Adams  see  Frothingham,  Rise  of 
the  Republic  of  the  United  States,  Chaps.  V,  VII ;  Hosmer,  Sam  Adams,  37. 
Cf.  Scott,  Development  of  Constitutional  Liberty,  174-184. 

3 In  the  records  also  variously  styled  "selected  townsmen,7'  the  "five," 
"seven,"  "nine,"  or  "thirteen"  men,  or  "ye  chosen  men  for  managing  the 
prudential  affairs." 


Ttie  Selectmen.  75 

were  a  committee,  from  three  to  thirteen1  in  number,  annually 
cho-on  by  the  inhabitants  to  order  their  prudential  affairs.  In 
this  body  the  town  found  its  chief  expedient  for  representative 
government ;  the  selectmen  being  in  fact  the  "  town  represen- 
tative " — a  name  which,  in  one  instance  at  least,  they  actually 
bore.2 

This  institution  may  have  been  suggested  by  the  select 
vestry  of  the  Stuart  reigns  or  by  the  committee3  from  which 
the  latter  was  evolved  ;  but  the  select  vestry  was  a  close  cor- 
poration which  had  gradually  usurped  the  functions  of  the 
open  parish  meeting.  On  the  other  hand  the  selectmen  were 
a  responsible  board,  acting  under  the  "instructions"  of  the 
town-meeting  and  accountable  to  that  body  for  their  acts. 
Any  business  might  be  assigned  them  to  transact;  or  a  function 
at  one  time  delegated  to  them  could  at  another,  in  the  discretion 
of  the  town-meeting,  be  entrusted  to  the  assessor,  collector, 
constable,  or  some  other  officer.4 

Selectmen  are  mentioned  in  the  very  earliest  extant  proceed- 
ings of  the  Massachusetts  towns.  For  example,  two  of  the 
first  entries  in  the  Boston  records,  as  now  published  by  the 
Record  Commission,  consist  of  minutes  of  "  the  10  to  manage 


1  For  example,  in  Boston  I  find  the  number  to  be,  at  different  times,  10, 
7,  or  9,  with  several  oscillations  among  these  figures:  Boston  Records,  1634- 
60,  pp.  2,  65,  99:  1660-1701,  pp.  165,  etc.  In  the  Plymouth  jurisdiction 
the  number  was  3  or  5 :  Plym.  Col.  Rec.,  XI,  143 ;  in  Worcester,  5 :  Worces- 
ter Records,  1740-1783,  at  various  annual  meetings;  in  Braintree,  5,  7,  and 
3:  Braintree  Records,  29,  476,  519,  496,  613,  etc.;  in  Salem,  13,  12,  and  7: 
Salon  Records,  15,  50,  58,  170,  196;  in  Wenharn,  3:  Wenham  Records,  80, 
140;  in  Groton,  5  and  7:  Groton  Records,  1662-78,  pp.  16,  40,  42,  45;  in 
Newark,  7:  Newark  Records,  54;  in  Dorchester,  12,  7,  10,  and  5:  Dorchester 
.Records,  16,  38,  35,  228;  by  the  Province  Laws  of  New  Hampshire  the  num- 
ber of  selectmen  was  not  to  exceed  seven :  see  Coll.  of  New  Hampshire  Hist. 
Soc.,  VIII,  30. 

*See  the  early  entries  in  the  Town  Records  of  Salem,  pp.  4,  15,  16,  17,  18, 
27,  33,  etc. 

8  On  this  obscure  question  see  Chnnning,  Town  and  County  Government, 
Studies,  II,  450-52 ;  also  above. 

4  Any  of  the  town  records  will  furnish  illustrations. 


76  Rise  of  the  New  England  Town. 

the  affaires  of  the  towne."  1  But  the  name  does  not  appear  in 
the  Colonial  records  until  some  years  after  the  first  settlement. 
In  1642  the  general  court  empowers  "ye  chosen  men  appointed 
for  managing  the  prudentiall  affajres"  of  every  town  to  super- 
intend the  education  of  children,  in  cases  of  neglect  by  parents;2 
and  in  the  same  year,  the  "  selected  townes  men  "  are  author- 
ized to  lay  out  "  prticuler  &  private  wayes."  3 

In  New  Haven  "townsmen"  were  first  chosen  in  1651,  in 
order  that  the  town-meetings  "  which  spend  the  towne  much 
time,  may  not  bee  so  often."  Here  the  principle  of  district 
representation  was  adopted,  one  townsman  being  chosen  out 
of  each  "quarter"  of  the  town.4 

In  the  Connecticut  jurisdiction  three,  five,  or  seven  of  the 
"cheefe  inhabitants"  of  each  town  were  authorized  in  1639 
to  try  small  causes,  register  wills,  and  administer  estates. 
Each  town  was  ordered  in  J  643  to  "  choose  annually  seven 
men  who  should  give  the  common  lands  their  '  serious  and 
sadde  consideration.'  Seven  years  later  this  work  was  given 
to  the  townsmen  and  formed  the  basis  of  the  power  of  Con- 
necticut selectmen.  So  the  genesis  of  the  office  in  Connecticut 
was  almost  totally  different  from  that  of  the  similarly  named 
office  in  New  Haven."5 

In  Newark,  New  Jersey,  settled  in  1666  by  men  of  the 
original  New  Haven  jurisdiction,  "Towns  Men"  were  first 
created  in  1673—4  "to  carry  on  such  work  for  the  Good  of 
the  Town  as  the  Town  shall  think  fit  to  betrust  them  with."6 

From  an  early  period  in  Rhode  Island  the  functions  of  the 
selectmen  seem  to  have  been  performed  by  the  "town  council." 
In  1647  it  was  ordered  by  the  general  court  for  the  Provi- 


1  Boston  Town  Records,  1634-60,  p.  2.     See  also  Salem  Records,  p.  15  and 
Dorchester  Records,  p.  16,  for  early  examples. 

2  Mass.  Col.Rec.,  II,  6,  9. 
BMass.  Col.Rec.,II,  4. 

4  See  Lever  more,  Republic  of  New  Haven,  71—2. 

6  Quoted  from  Levermore's  Republic  of  New  Haven,  72  note. 

6  Newark  Town  Records,  54. 


The  Selectmen.  77 

denee  Plantation  that  councils  consisting  of  six  men  should 
be  chosen  by  the  towns  at  their  next  meetings.1  In  1664  the 
first  general  assembly  under  the  new  charter  passed  the  curious 
order  that  each  town  should  elect  "  Towne  Counsell  men,  soe 
many  as  to  make  up  sixe  with  the  Assistants  of  each  towne."* 
This  provision  was  not  satisfactory,  especially  for  the  town  of 
Providence  where  three  of  the  six  council  men  were  assistants. 
It  was  therefore  ordered  in  1681  that  Providence  should  elect 
six  members  of  the  council  to  serve  with  the  assistants.3  The 
town  council  seems  to  have  absorbed  the  powers  of  the  old 
"head  officer"  of  the  town,  which  office  soon  became  extinct.4 

Selectmen  were  first  instituted  in  the  Plymouth  jurisdiction 
by  an  order  of  the  general  court  in  1 663.8  It  was  enacted 
that  in  every  town  three  or  five  "  Celect  men "  should  be 
chosen  subject  to  the  approval  of  the  court  "  for  the  better 
managing  of  the  affaires  of  the  respective  Townships."  These 
were  empowered  to  try  actions  for  debts  not  to  exceed  forty 
shillings,  and  to  issue  summons  in  his  majesty's  name. 

It  is  important  to  observe  the  close  connection  established 
in  Plymouth  between  the  selectmen  and  the  central  authority 
of  the  jurisdiction.  They  were  in  fact  the  chief  intermediary 
between  the  court  and  the  local  organizations.  They  were 
bound  by  a  stringent  oath  ;6  liable  to  a  fine  of  twenty  shillings 
for  refusing  to  serve,  the  governor  being  authorized  in  such 
case  to  fill  the  vacancy  by  appointment ; 7  and  it  was  "  ordered 


1  Rhode  Island  Col.  Rec.,  I,  151. 
1  Rhode  Island  Col.  Rec.,  II,  27. 
s Rhode  Hand  Col.  Rec.,  Ill,  104-5.  Cf.  Arnold,  I,  466,  204. 

4  Rhode  Island  Col.  Rec.,  II,  1674,  p.  526.     Cf.  Arnold,  I,  369. 

5  Plymouth  Col.  Rec.,  XI,  143.     For  the  date  see  Freeman,  Hist,  of  Cape  , 
Cod,  I,  250,  II,  362. 

'"The  oath  of  a  Celect  man.  You  shall  according  to  the  measure  of 
wisdome  and  discretion  God  hath  giuen  you  faithfully  and  Impartially  try 
all  such  cases  between  p'ty  and  p'ty  brought  before  you ;  as  alsoe  gine  sumons 
respecting  youer  trust  according  to  order  of  the  Court  as  a  Celect  man  of  the 

Towne  of for  tliis  prsent  yeare  soe  healp  "  etc.    See  Plymouth  Col. 

XI,  217. 

1  Plym.  Col.  Rec.,  XI,  227. 


78  Rise  of  the  New  England  Town. 

by  the  Court  .  .  .  that  the  choise  of  Celect  men  be  specifyed  in 
the  warrants  that  are  sent  downe  to  the  seuerall  Townes  for 
the  choise  of  his  maties  officers ;  and  theire  names  to  be  returned 
vnto  the  Court  vnder  the  Constables  hand  and  to  be  called 
in  Court  to  take  theire  oath  as  in  such  case  prouided." ]  The 
character  of  the  selectmen  as  local  agents  of  the  crown  and  of 
the  colonial  government  was  also  clearly  recognized  in  Massa- 
chusetts, where,  particularly  in  the  eighteenth  century,  a  multi- 
tude of  administrative  duties  were  imposed  upon  them  by 
statute.  In  Connecticut  likewise,  as  already  shown,  the  office 
had  its  beginning  in  magisterial  functions  imposed  by  the 
general  court;  but  nowhere  else  were  their  obligations  as 
king's  officers  so  sharply  emphasized  as  in  the  jurisdiction  of 
Plymouth. 

(6). — Functions  of  the  Selectmen. 

As  the  town  representative  a  vast  number  of  functions 
devolved  upon  the  selectmen.  Nearly  every  kind  of  business 
that  could  be  transacted  by  the  town-meeting  itself,  save  only 
the  election  of  the  more  important  officers,  was  constantly 
performed  by  them.  Their  proceedings  were  recorded  by  the 
town  clerk,  usually  in  the  same  book  and  interspersed  with 
those  of  the  town-meeting.2  Indeed  the  minutes  of  the  former 
are  scarcely  to  be  distinguished  in  character  or  form  from 
those  of  the  latter  body.3 


1Plym.  Col.  Eec.,  XI,  252. 

2  So,  for  example,  in  the  records  of  Wenham,  Groton,  Salem,  and  Dor- 
chester ;  also  in  those  of  Boston  until  1701,  after  which  date  they  were  kept 
separately.  See  the  five  volumes  of  selectmen's  records  already  published 
by  the  Record  Commission. 

8  In  the  Salem  Town  Records,  for  example,  it  is  not  always  easy  to  say 
whether  the  minutes  of  so-called  town-meetings  are  not  really  those  of  the 
selectmen — the  introductory  list  of  names  of  those  present  often  being  those 
of  selectmen  only. 

Very  frequently,  of  course,  the  meetings  are  introduced  by  the  phrase : 
"at  a  meeting  of  the  selectmen;"  but  sometimes  the  minutes  are  headed: 
"A  towne  meeting  of  the  12  men  appoynted  for  the  business  thereof  whose 


The  Selectmen.  79 

The  following  is  a  list,  by  no  means  exhaustive,  of  select- 
men's duties  gathered  from  the  original  records  : 

Tin-  town-meeting  was  summoned  on  their  warrant,  and 
they  were  required  by  law  to  regulate  meetings  called  for 
choice  of  representatives,  notify  the  latter  of  their  election, 
and  make  return  to  the  sheriff.1  They  could  enact  by-laws 
when  so  directed  by  the  town-meeting.2 

The  entire  financial  administration  was  vested  in  them. 
Thus  they  could  make  or  assess  the  rates  of  the  town,  county, 
or  country,  general  or  special;3  authorize  the  constable  to 
collect  them ; 4  audit  his  account  of  disbursements,  as  also 
those  of  the  town  treasurer;  and  act  as  a  board  for  equaliza- 
tion of  taxes.6 

The  selectmen  were  the  legal  representatives  of  the  town  as 
a  corporate  body.  Hence  it  was  their  duty  to  order  suits  to 
be  instituted  for  the  recovery  of  debts  or  fines;6  to  let  contracts 
for  public  works;  and  lease  or  convey  the  town's  property 
when  occasion  demanded.7 

To  them  were  also  entrusted  the  important  functions  of 


names  are  here  vnder  written:"  Records  of  Salem,  50,  128;  of  Dorchester, 
16;  or  they  are  introduced  merely  by  a  list  of  names,  thus:  "At  a  meeting 
this  day  of  Thomas  Oliver,  Thomas  Leveritt,  Robert  Keayne  etc.  it  was 
granted,"  etc.:  Boston  Records,  1634-60,  p.  35,  etc.;  or:  "July  5th  1636. 
Mr.  Ludlow,  Mr.  Stoughton,  Mr.  Hull  etc.  It  is  ordered,"  etc. :  Records  of 
Dorchester,  17. 

lActs  and  Resolves,  I,  65,  89,  147,  etc.,  II,  30;  see  Rec.  of  Boston  Select., 
1701-15,  pp.  8,  303,  etc. 

*Acts  and  Resolves,  I,  66.    See  almost?  any  page  of  the  town  records. 

sSee  Acts  and  Resolves,  I,  Index  at  "Taxes."  For  illustrations  see  Boston 
Town  Records,  1634-60,  pp.  88,  etc.;  1660-1701,  pp.  3,  6,  12,  178,  etc;  Dor- 
chester Records,  72,  81,  178,  etc. 

4  See  examples  in  Boston  Rec.,  1634-60,  pp.  133,  140;  1660-1701,  pp.  158, 
189,  etc.     Dorchester  Rec.,  115,  116,  etc. 

5  Boston  Rec.,  1634-60,  pp.  10,  12,  127,  132;   1660-1701,  p.  153;   Rec.  of 
Bost.  Select.,  1701-15,  pp.  3,  10,  15,  17,  33,  34,  etc. 

•Examples  in  Bost.  Rec.,  1634-60,  pp.  71,  84,  122,  124,  etc.;  Rec.  Bost, 
Select.,  1701-15,  pp.  207,  217. 

''Bost.  Rec.,  1634-60,  pp.  91,  92,  93,  96,  101,  102,  etc.;  1660-1701,  pp.  177, 
179-80,  etc.;  Rec.  Bost.  Select.,  1701-15,  pp.  11,  23,  etc. 


80  Rise  of  the  New  England  Town. 

admitting  newcomers  as  inhabitants  of  the  town  -1  regulating 
the  temporary  entertainment  of  strangers  and  establishing  fines 
for  violation  of  orders;2  authorizing  the  sale  of  real  estate  by 
individuals  and  fixing  penalties  for  alienation  to  strangers 
without  leave.3 

They  had  charge  likewise  of  the  common  lands :  making 
allotments  to  individuals;4  granting  permission  to  mow  the 
"  marshes  "  ; 5  regulating  the  number  and  kind  of  animals  to 
be  driven  upon  the  common  pastures  and  fixing  the  fees  of  the 
drivers ; 6  and  apportioning  the  use  of  wood  and  timber.  The 
orders  relating  to  the  running  at  large  of  swine  alone  fill  a 
great  space  in  the  records.7 

By  the  selectmen,  in  like  manner,  private  ways  were  laid 
out;8  boundary  lines  were  established  and  controversies  rela- 
ting thereto  determined.  The  description  of  the  boundaries 
of  estates  was  made  a  part  of  their  records ; 9  and  they  also 
passed  orders  defining  the  kind  and  height  of  fences  and  fixing 
penalties  for  violation  of  the  same.10 

In  Boston  a  great  variety  of  executive  duties  devolved  upon 
the  selectmen,  some  of  which,  of  course,  were  not  required  in 
the  smaller  communities.  We  find  them,  for  example,  licens- 
ing ordinaries  or  "victualling  houses";11  ordering  the  erection 


1  See  Bost.  Rec.,  1634-60,  pp.  36,  43,  65,  etc. ;  Dorchester  Bee.,  124-5,  131-2, 
137,  etc. 

I  Bost.  Rec.,  1634-60,  pp.  10,  90,  113,  120-1,  152,  etc. 

3  Bost.  Rec.,  1634-60,  pp.  12,  19,  35. 

4  Mass.  Col.  Rec.,  II,  49.    Countless  examples  in  all  the  early  town  records. 
5 See  examples  in  Bost.  Rec.,  1634-60,  pp.  78,  100,  etc.;  Salem  Rec.,  44, 

45,  70,  71,  etc.; 

6  For  examples  see  Bost.  Rec.,  1634-60,  pp.  9,  10,  40,  68,  etc. 

'Examples  in  Salem  Rec.,  68,  87,  92,  211,  225,  etc. 

sActs  and  Resolves,  I,  137  ;  Bost.  Rec.,  1634-60,  pp.  10,  13,  73,  etc. 

'Bout.  Rec.,  1634-60,  pp.  46,  57,  etc. :  1660-1701,  pp.  169,  8,  25,  178,  234, 
150-52,  209-10. 

10  Examples  in  Bost.  Rec.,  1634-60,  pp.  9,  13,  33,  39,  etc.  See  also  Mass. 
Col.  Rec.,  IV,  Part  I,  153. 

II  Bost.  Rec.,  1634-60,  pp.  10,  107,  112,  etc.;  1660-1701,  pp.  206,  etc. 


The  Selectmen.  81 

of  buildings  and  "yard  payles";1  authorizing  the  construc- 
tion of  "salt  peter"  houses  and  limekilns;2  directing  the 
building  and  repair  of  bridges  and  wharves ; 3  superintending 
the  paving  of  streets  *  and  the  making  of  sewers ; 5  abating 
nuisances;6  removing  obstructions  from  ways  and  landings, 
and  appointing  overseers  of  landing  places ; 7  establishing 
ferries;8  enacting  fire  ordinances  requiring  ladders  and  engines 
to  be  provided  and  regulating  the  construction  and  inspection 
of  chimneys;9  licensing  brewers  and  fixing  the  price  of  beer;10 
approving  persons  applying  to  the  county  court  for  license  to 
still  strong  waters  and  retail  the  same ; n  admitting  appren- 
tices "to  follow  their  calling";12  directing  the  constable's 
watch ; I3  employing  teachers  and  prescribing  regulations  for 
the  public  schools;14  controlling  almshouses; I5  letting  the 
public  printing;16  quarantining  vessels ; 17  providing  dinners 

1  Boat.  Bee.,  1634-60,  pp.  12,  14,  16,  70,  etc. ;  1660-1701,  p.  171. 

2  Boat.  Rec.,  1634-60,  pp.  56,  70. 

s  Boat.  Rec.,  1634-60,  pp.  1,  2,  56,  121,  etc. 

*Boat.  Rec.,  1634-60,  p.  113;  Rec.  Boat.  Select.,  1701-15,  p.  33;  1742-53, 
pp.  54-5. 

6  Boat.  Rec.,  1660-1701,  pp.  179-81.     Cf.  Acts  and  Resolves,  I,  643. 

6  Boat.  Rec.,  1634-60,  p.  91. 

''Boat.  Rec.,  1634-60,  pp.  1,  2,  121,  etc. 

9  Boat.  Rec.,  1634-60,  p.  89. 

9 Boat.  Rec.,  1634-60,  pp.  106,  114,  116717,  150,  etc.;  1660-1701,  p.  162; 
Rec.  Boat.  Select.,  1701-15,  p.  20.  Some  of  these  passages  show  that  fire 
ordinances  were  also  enacted  in  town-meeting. 

wBoat.  Rec.,  1634-60,  pp.  90,  91 ;  1660-1701,  p.  21. 

11  Boat.  Rec.,  1660-1701,  pp.  15,  156,  etc.;  Rec.  Boat.  Select.,  1701-15,  pp. 
24,  27,  211.  This  was  enjoined  by  law.  See  Ada  and  Reaolvea,  I,  37,  56,, 
664,  680,  etc. 

"Boat.  Rec.,  1634-60,  p.  137. 

l3Bost.  Rec.,  1660-1701,  pp.  2,  8,  9,  10,  16,  21 ;  Rec.  Boat.  Select.,  1701-15, 
p.  5.  The  maintenance  of  the  watch  was  regulated  by  statute.  See  Moss. 
Col.  Rec.,  IV,  Part  I,  293 ;  Ada  and  Reaolvea,  I,  381,  699. 

uBoat.  Rec.,  1660-1701,  pp.  161,  234;  Rec.  Boat.  Select.,  1642-53,  p.  28. 
Authorized  also  by  law:  Ada  and  Reaolvea,  I,  63,  681. 

uBoat.  Rec.,  1660-1701,  p.  186. 

19  Rec.  Boat.  Select.,  1742-53,  pp.  54,  82,  97,  104,  etc. 

17  Rec.  Boat.  Select.,  1742-53,  pp.  105,  38-40,  etc. 
6 


82  Rise  of  the  New  England  Town. 

for  school  visitors  and  town  officers ; 1  defining  the  duties  of 
sexton ;  and  registering  the  "  middle  price "  of  wheat  under 
the  "  assize  of  bread." 2 

Still  other  duties  were  imposed  upon  the  selectmen  by 
statute.  In  the  Plymouth  jurisdiction,  as  we  have  seen,  they 
could  try  actions  for  debt  and  issue  summons.3  They  were 
authorized  to  decide  disputes  between  English  and  Indians;4 
and  they  were  granted  a  censorship  of  private  morals.  It 
was  ordered,  for  example,  that,  "wheras  great  Inconvenience 
hath  arisen  by  single  p'sons  in  this  Collonie  being  for  thern- 
selues  and  not  betakeing  themselues  to  Hue  in  well  Gourned 
famillies  .  .  .  henceforth  noe  single  p'son  be  sufferred  to  liue 
of  himselfe  or  in  any  family  but  such  as  the  Celectmen  of  the 
Towne  shall  approue  of; "  and  similar  and  more  extended 
powers  of  this  character  were  conferred  upon  them  in  the 
Bay  Colony.5 

By  the  Massachusetts  statutes  they  were  constituted  overseers 
of  the  poor  in  places  where  no  one  was  "  particularly  chosen 
to  that  office ;  " 6  were  required  to  set  idle  and  disorderly  per- 
sons to  work ;  to  bind  out  poor  children  as  apprentices ; 7 
provide  a  town  stock  of  arms  and  ammunition  and  levy  a  tax 
for  the  same;8  relieve  idiots  and  insane  persons;9  take  the 
census ; 10  administer  oaths  to  town  officers,  and  various  other 
duties. 


1  Rec.  Bost.  Select.,  1742-53,  pp.  20-21,  9,  54,  71,  196. 

2  Acts  and  Resolves,  I,  253.    See  countless  references  in  the  Selectmen's 
Records. 

3  In  Massachusetts  they  could  also  try  small  causes  when  the  magistrate 
was  interested  in  the  suit.     Mass.  Col.  Rec.,  II,  162. 

tPlym.  Col.  Rec.,  XI,  227-8. 

5  Plym.  Col.  Rec.,  XI,  223 ;  Mass.  Col.  Rec.,  II,  6,  9 ;  IV,  Part  I,  256. 

6  Acts  and  Resolves,  I,  65. 

7  Acts  and  Resolves,  I,  67,  538,  654. 

8  Acts  and  Resolves,  I,  131-2. 

9  Acts  and  Resolves,  I,  157. 

10  Acts  and  Resolves,  I,  443-4. 


The  Selectmen.  83 


(c). — Officers  appointed  by  the  Selectmen. 

Besides  the  imposing  catalogue  of  powers  and  duties  already 
indicated,  in  the  early  period  the  selectmen  exercised  the  right 
of  appointing  a  large  number  of  minor  town  officers,  most  of 
which,  at  a  later  time,  were  elected  in  town-meeting :  unless, 
as  sometimes  occurred,1  they  were  authorized  by  special  vote  of 
the  latter  to  nominate  them. 

Among  the  officers  so  appointed  were  hog  reeves,2  water 
bailiffs,3  cow  keepers,4  fence  viewers,8  town  drummers  and 
teachers  of  town  drummers,6  constables,7  tithingmen,8  peram- 
bulators,9 town  treasurers  and  recorders,10  ringers  and  yokers 
of  swine,11  pound- keepers,12  sealers  of  weights  and  measures,13 
keepers  of  ordinaries,14  town  bellmen,?5  cullers  of  staves  and 
measurers  of  corn  and  of  boards,16  corders  of  wood  and  over- 
seers of  wood  corders,  overseers  of  chimneys  and  chimney- 
sweepers,17 overseers  of  almhouses,18  gaugers,  viewers,  and 


^or  examples  see  Bost.  Rec.,  1660-1701,  pp.  211,  220,  226,  etc. 
*Bost.  Rec.,  1634-60,  pp.  13,  etc. 
sBost.  Rec.,  1634-60,  p.  11 ;  1660-1701,  p.  16. 

*Bost.  Rec.,  1634-60,  pp.  69,  104,  116,  119,  etc.;  Rec.  Sost.  Select.,  1701-15, 
pp.  32,  etc. 

&Bost.  Rec.,  1634-60,  p.  118;  Dorchester  Rec.,  211. 
6 Boat.  Rec.,  1634-60,  p.  76. 
''Bost.  Rec.,  1634-60,  p.  95. 

8  Bost.  Rec.,  1660-1701,  pp.  176-7,  185,  etc.;  Acts  and  Resolves,  1, 155,  329. 

9  Bost.  Rec.,  1634-60,  p.  95;  1660-1701,  pp.  1,  214,  234,  etc.* 
wBost.  Rec.,  1634-60,  pp.  100,  108;  1660-1701,  pp.  161,  etc. 
11  Bost.  Rec.,  1634-60,  p.  103. 

12 Bost.  Rec.,  1634-60,  pp.  116, 135;  Rec.  Bost.  Select.,  1701-15,  pp.  203,  etc. 

13 Bost.  Rec.,  1634-60,  p.  108;  1660-1701,  pp.  206,  etc.;  Acts  and  Resolves, 
I,  70;  MOM.  Col.  Rec.,  II,  211 ;  IV,  Part  I,  134. 

l*Bost.  Rec.,  1660-1701,  pp.  178,  215;  Acts  and  Resolves,  I,  37,  56,  664-5, 
680,  717. 

15 Bost. Rec.,  1634-60,  p.  28;  1660-1701,  pp.  11,  18,  22,  etc. 

wBost.  Rec.,  1660-1701,  p.  206. 

"Bost.  Rec.,  1660-1701,  p.  207;  Acts  and  Resolves,  I,  577;  V,  1119. 

"Bost.  Rec.,  1660-1701,  p.  213. 


84  Rise  of  the  New  England  Town. 

surveyors    of  casks    of   tar,1   firewards,2    and    informers    of 
offenders  against  the  license  laws.3 

(c?).  —  Extracts  from  the  Selectmen's  Records. 

A  few  typical  passages  from  the  original  minutes  of  the 
selectmen  may  prove  interesting  as  well  as  instructive.  For 
instance,  the  maintenance  of  the  constable's  watch  —  that 
primitive  institution  from  which  the  entire  English  police 
system  has  been  evolved  —  was  the  subject  of  countless  orders. 
It  was  the  constable's  duty,  under  direction  of  the  selectmen,. 
to  "set"  the  watch,  which  was  composed  of  the  inhabi- 
tants themselves  serving  by  turns.4  The  following  general 
"  instructions  "  for  regulating  the  watch  were  adopted  by  the 
Boston  selectmen  in  1662.5 

"  1.  That  the  \vatch  shall  be  set  &  attend  theire  charge  att 
nine  of  the  clocke  in  the  Eueninge,  and  not  dismissed  vntell 
5  in  the  morning  &  shall  be  dismissed  by  the  Counstable  or 
one  apointed  by  the  Counstable. 

"  2.  Because  the  Towne  hath  beene  many  times  betrusted 
with  a  watch  consistinge  of  youths,  That  therefore  from  hence- 
forth the  Counstable  shall  see  to  it,  that  one  halfe  of  the  watch 
att  least  be  householders,  &  such  as  the  charge  of  ye  Towne 
(soe  farr  as  respects  watchmen)  may  be  committed  to. 

"3.    That  the  Counstable  shall  discharge  from  watchinge 


1  Acts  and  Resolves,  I,  573. 

2  Ads  and  Resolves,  1,  677. 

3  Acts  and  Resolves,  I,  681. 

*In  1646  the  general  court  of  Massachusetts  declared  it  to  be  "ye  intent 
of  ye  lawe,  y*  evry  p'son  of  able  body,  (not  exempted  by  lawe,)  or  of  estate 
sufficient  to  huire  anothr,  shalbe  liable  to  watch,  or  to  supply  it  by  some 
othr,  when  they  shalbe  thereunto  required  ;  &  if  there  be  in  ye  same  house 
diverse  such  p'sons,  (whethr  sonnes,  servants,  or  soiourn™,)  they  shall  all 
be  compelable  to  watch  as  aforesaid."  Mass.  Col.  Rec.,  II.,  151.  Cf.  the 
elaborate  statute  regulating  the  watch  in  New  Haven  Col.  Rec.,  I,  33-4. 

5  In  Boston  the  watch  was  composed  of  8,  10,  or  12  men;  it  was  usually 
first  set  on  May  1,  and  was  kept  up  for  six  months. 


The  Selectmen.  85 

in  their  owne  persons,  any  that  are  of  notorious  euill  life 
<fe  manners  &  likewise  such  as  would  watch  two  nights 
togeather,  not  haueing  sufficient  sleepe  betweene. 

"  4.  The  number  of  persons  ordinarily  shall  be  eight,  beside 
the  Counstable  or  his  depntie,  one  of  wch  shall  be  vpon  the 
watch  euery  night,  to  looke  after  the  exact  performance  of  the 
charge,  &  the  deputy  shall  be  some  man  of  trust. 

"  5.  The  place  where  the  watch  shall  make  appearance 
shall  bee  in  the  liberty  of  the  Counstable  to  apoint,  and  like 
wise  the  weapon  they  seme  with." 

It  was  also  ordered  that  the  following  "  charge  "  should  be 
read  to  the  watch  every  night : — 

"1.  That  they  Sllentlie  but  vigilantlie  walke  theire  seuerall 
turnes  in  the  seuerall  quarters  and  partes  of  the  Towne,  two  by 
two,  a  youth  allwayes  joyned  with  an  elder  and  more  sober 
person,  &  two  be  allwayes  about  the  markitt  place. 

"2.  If  after  10  of  ye  clocke  they  see  any  lights,  then  to 
make  discreett  inquiry,  whether  there  be  a  warrantable  cause, 
likewise  if  they  heare  any  noyse  or  disorderlye  carriage  in  any 
house  wisely  to  demand  a  reason  of  it,  &  if  it  apeare  a  reall 
disorder,  that  men  are  danceing,  drinckeing,  singinge  vainlie 
&c,  they  shall  admonish  them  to  cease,  but  if  they  discerne 
the  Continuance  of  it  after  moderate  admonition,  then  to 
acquaint  the  Counstable  of  it,  or  him  that  hath  the  care  of  y* 
watch  for  that  night,  who  shall  see  to  the  redresse  of  it  &  take 
the  names  of  the  persons  to  acquaint  authorise  there  with. 

"  3.  That  they  vigilantlye  view  the  water  side  &  motion  of 
vessels  about  the  shoore,  &  prudentlie  take  accompt  of  such 
as  goe  out  or  come  in  not  hinderinge  any  in  theire  lawfull 
affaires,  nor  (if  it  be  possible)  suffering  any  to  practice  vnlaw- 
fullye,  nor  keep  any  disorder  in  or  about  theire  vessells. 

"4.  To  look  to  the  great  Guns  &  fortifications. 

"  5.  If  they  finde  any  younge  men,  Maydes,  women  or 
other  persons,  not  of  knowen  fidellitie,  &  vpon  lawfull  occa- 
tion  walkeing  after  fO  of  the  clocke  at  night,  that  they 
modestly  demand  the  cause  of  theire  being  abroad,  &  if  it 


86  Rise  of  the  New  England  Town. 

apeare  that  they  are  vpon  ille  minded  irnploym*  then  to  watch 
them  narrowlye  &  to  command  them  to  repaire  to  theire  lodg- 
inges,  &  in  case  they  obstinately  refuse  to  giue  a  rationall 
accompt  of  theire  busines,  ore  to  repaire  home,  then  to  secure 
them  vntill  the  morninge. 

"6.  For  as  much  as  the  watch  is  to  see  to  the  regulateinge  of 
other  men  actions  &  manners,  that  theirefore  they  be  exemplary 
themselues  neither  vseing  any  vncleane  or  corrupt  language, 
nor  vnmanerlye  or  vnbeseming  tearmes  vnto  any,  but  that  they 
behaue  themselues  soe  that  any  person  of  quallitye,  ore  stran- 
gers y*  ar  vppon  occation  abroad  late,  may  acknowledge  that 
or  watch  neglects  not  due  examination,  nor  offers  any  iust  cause 
of  proucation. 

"7.  That  the  Towne  house  be  in  a  spetiall  manner  regarded 
by  ye  watch  to  see  y*  none  take  tobacco  or  vse  any  fire  vnder 
or  about  the  same. 

"  8.  That  any  househoulder  being  lawfully  warned  to  watch 
should  either  himselfe  be  absent,  or  not  send  a  sufficient  man 
in  his  roome  ye  Counstable  may  then  hire  them  that  are  suffi- 
cient, &  require  ye  penaltye  of  the  law."  * 

The  following  typical  order  shows  the  notions  of  our  ances- 
tors as  to  the  proper  training  of  apprentices  : 

"  Whereas  itt  is  found  by  sad  experience  that  many  youths 
in  this  Towne,  being  put  forth  Apprentices  to  several  1  manu- 
factures and  sciences,  but  for  3  or  4  yeares  time,  contrary  to 
the  Customes  of  all  well  governed  places,  whence  they  are 
uncapable  of  being  Artists  in  their  trades,  besides  their  un- 
meetenes  att  the  expiration  of  their  Apprentice-ship  to  take 
charge  of  others  for  government  and  manuall  instructions  in 
their  occupations  which  if  nott  timely  amended,  threatens  the 
welfare  of  this  Towne. 

"  It  is  therefore  ordered  that  no  person  shall  henceforth 


1  Host.  Rec.,  1660-1701,  8-10.  This  remained  in  force,  with  little  amend- 
ment until  1701,  when  a  revision  was  made.  See  Records,  1660-1701,  pp.  43, 
244 ;  1700-1728,  p.  7.  On  the  watch  in  New  Haven  see  Levermore,  51-8. 


The  Selectmen.  87 

open  a  shop  in  this  Towne,  nor  occupy  any  manufacture  or 
science,  till  hee  hath  compleated  21  years  of  age,  nor  except  hee 
hath  served  seven  years  Apprentice-ship,  by  testimony  under 
the  hands  of  sufficient  witnesses.  And  that  all  Indentures 
made  betweene  any  master  and  servant  shall  bee  brought  in 
and  enrolled  in  the  Towne's  Records  within  one  month  after 
the  contract  made,  on  penalty  of  ten  shillings  to  be  paid 
by  the  master  att  the  time  of  the  Apprentices  being  made 
free."1 

The  people  of  New  England  were  exceedingly  jealous  of 
the  intrusion  of  strangers  into  the  community.  The  enter- 
tainment of  a  stranger — that  is  to  say  of  anyone  not  an  inhabi- 
tant of  the  town — without  permission,  even  when  the  guest 
was  a  near  relative  of  the  host,  was  forbidden  under  penalty ; 
and  the  enforcement  of  this  requirement  seems  to  have  caused 
the  selectmen  constant  anxiety.  Any  number  of  entries  such 
as  the  following  may  be  found  in  the  records : 

"  It  is  ordered  that  no  Inhabitant  shall  entertaine  man  or 
woman  from  any  other  towne  or  countrye  as  a  sojourner  or 
inmate  with  an  intent  to  reside  here,  butt  shall  give  notice 
thereof  to  the  Selectmen  of  the  towne  for  their  approbation 
within  8  dayes  after  their  Cominge  to  the  towne  upon  penalty 
of  twenty  shillings." 2 

"This  same  day  Clement  Maxfild  appeared  before  the 
Select  men,  and  desired  that  his  Brother  John  Maxfild,  being 
arriued  lately  from  England,  might  Continue  in  the  Towne 
with  him ;  and  that  he  would  secure  the  Towne,  from  any 
dammage,  during  his  residence  here,  which  was  granted  that 
he,  the  sayd  Clement  Maxfild,  might,  entertaine  his  brother 

1Bost.  Rec.,  1634-60,  pp.  156-7.  This  was  an  order  of  the  town-meeting. 
The  indentures  were  filed  with  the  selectmen  and  entered  in  their  records. 
See  examples  of  them  in  Boat.  Rec.,  1660-1701,  pp.  7,  28,  37,  etc.  A  very 
unique  apprentice's  indenture  will  be  found  in  the  New  Hampshire  Town 
Papers,  XI,  688.  For  another  see  New  Hampshire  Provincial  Records  in 
CM.  N.  H.  Hist.  Soc.,  VIII,  287. 

2  Boat.  Rec.,  1634-60,  p.  90.    Cf.  Dorchester  Town  Records,  130. 


88  Rise  of  the  New  England  Town. 

as  is  above  expressed,  vntill  such  time,  as  his  Brother,  shall 
otherwise  settle  himself  heere  or  elsewhere."  * 

The  selectmen  were  a  remarkable  institution ;  and  it  cannot 
be  reasonably  doubted  that  much  of  the  wonderful  success  of 
the  famous  New  England  town  government  was  due  to  the 
efficiency  of  the  representative  board.  Only  through  the  wis- 
dom and  executive  skill  of  such  a  body,  not  too  cumbrous  for 
a  sufficiently  rapid  transaction  of  business,  could  the  country 
village  have  grown  into  a  populous  borough,  without  clothing 
itself  in  the  centralized  organism  of  a  municipality.  And, 
vast  and  numerous  as  were  their  powers,  there  is  little  evidence 
in  the  records  of  any  serious  encroachment  on  the  prerogative 
of  the  town-meeting.2 

Y. — THE  TOWN  OFFICEES  AND  THEIR  DUTIES. 

(a). — Principal  Officers. 

In  Rhode  Island  the  principal  functionary  of  the  town, 
originally,  was  styled  the  "head-officer."  By  the  Code  of 

1  Dorchester  Town  Bee.,  124.    See  also  cases  of  fines :  76.,  137.    Cf.  Province 
Laws  of  New  Hampshire  in  Coll.  N.  H.  Hist.  Soc.,  VIII,  34,  for  an  act  regu- 
lating entertainment  of  strangers.     Security  for  good  behavior  might  be 
exacted  at  any  time: 

"  Richard  Way  is  admitted  into  the  Town,  provided  that  Aron  Way  doe 
become  bound  in  the  sum  of  twenty  pound  sterll.  to  free  the  Town  from  any 
charge  that  may  accrew  to  the  town  by  the  said  Rich*  or  his  family. 

"  I,  Aron  Way,  do  heerby  engadge  my  selfe,  my  heires,  executors,  &c.,  unto 
the  selectmen  of  the  Town  of  Boston  and  their  successours  in  the  sum  of 
twenty  pound  sterll.  in  behalfe  of  my  Brother,  Richard  Way,  and  his  family, 
that  they  shall  not  be  chargeable  to  the  Town  and  hereunto  set  my  hand. 

"ARON  X  WAY 

"his  marke." 

Bost.  Bee.,  1634-60,  pp.  136-7.  Cf.  Ib.,  p.  143 ;  Bee.  Bost.  Select.,  1701-15, 
p.  25.  Security  seems  especially  to  have  been  exacted  in  case  of  craftsmen 
brought  into  the  town  to  ply  their  trades.  See  for  example,  Dorchester 
Town  Bee.,  131. 

2  For  much  information  relative  to  selectmen,  as  well  as  to  the  town  gov- 
ernment as  a  whole,  particularly  in  its  relation  to  the  Assembly,  see  the 
New  Hampshire  Town  Papers,  Vols.  XI,  XII. 


The  Town  Officers  and  their  Duties.  80 

1647  he  was  given  the  probate  of  wills;1  but  this  duty  was 
subsequently  transferred  to  the  town  council,  for  the  reason, 
as  recited  in  an  act  of  1074,  that  the  name  of  head-officer  "  by 
the  present  constitutions  is  extinct."2  The  records  furnish 
little  information  as  to  his  other  duties. 

But,  as  a  rule,  throughout  New  England  the  constable, 
though  perhaps  not  equal  in  rank  or  social  prestige  to  the  clerk, 
must  be  regarded  as  the  constitutive  officer  of  the  township.8 
In  the  formation  of  a  new  community  almost  any  other  func- 
tionary could  be  dispensed  with ;  but  without  a  constable  there 
could  be  no  town.4  Besides  a  vast  number  of  police  and  other 
executive  functions,  many  of  which  have  always  been  per- 
formed by  the  constable,  it  was  his  duty  to  give  "  warning  " 
of  town-meetings,  command  the  watch,  collect  taxes  and  render 
account  of  the  same  to  the  colonial 5-  or  local  treasurer,  settle 
claims  against  the  town  or  colony,6  and  return  to  the  general 
court  the  names  of  deputies  elected  by  the  towns.7 

The  town-clerk  or  recorder8  was  a  most  important  and  influ- 
ential officer.  As  clerk  of  the  town-meeting  he  was  the  direct 
representative  of  the  old  vestry  clerk;  and  he  was  required,  in 
addition,  to  record  the  proceedings  of  the  selectmen.9  In  the 
Plymouth  jurisdiction  the  clerk's  leading  duties  were  summar- 
ized in  the  oath  of  office  : — 

"  You  shall  faithfully  serue  in -the  office  of  a  towne  Clarke 
...  for  this  prsent  yeare  and  soe  longe  as  by  mutuall  consent 


1  Rhode  Island  Col.  Rec.,  I,  188. 

2  Rhode  Island  Col.  Rec.,  II,  526;  Durfee,  Gleanings,  32  3;  Arnold,  I,  369. 

3  See  Mass.  Col.  Rec.,  I,  223,  238,  for  striking  illustrations  of  the  constable's 
constitutional  position. 

4  Dr.  H.  B.  Adams,  Norman  Constables,  21. 
''Mass.  Col.  Rec.,  I,  179. 

6  Mass.  Col.  Rec.,  I,  261. 

7  Mass.  Col.  Rec.,  I,  220;  IV,  Part  I,  203. 

8 In  Boston  the  "recorder"  was  usually  appointed  by  the  selectmen  until 
March,  1692-3,  when  a  town  clerk  was  first  chosen.  See  Bost.  Town  Rec., 
1660-1701,  p.  143. 

9  Acts  and  Resolves,  I,  65,  218. 


90  Rise  of  the  New  England  Town. 

the  towne  and  you  shall  agree ;  during  which  time  you  shall 
carefully  and  faithfully  keep  all  such  Records  as  you  shalbee 
Intrusted  withall  and  shall  record  all  towne  actes  and  orders 
and  shall  enter  all  towne  graunts  and  Conveyances  you  shall 
record  all  beirthes  marriages  and  burialls  that  shalbee  brought 
vnto  you  within  youer  towne  and  shall  publish  all  Contracts 
of  marriages  you  shalbee  required  to  doe.  .  .  ." ] 

In  Massachusetts,  likewise,  all  these  ordinary  duties  of 
public  recorder  were  performed  by  the  clerk;2  and  besides, 
under  the  later  laws,  he  was  required  to  register  all  horses 
feeding  upon  the  common  pastures;3  enter  strays  and  lost 
goods ; 4  record  certificates  of  searchers  of  tar ; 5  keep  a  "  toll 
booke  of  all  horses  and  horse-kind "  shipped  for  transporta- 
tion.6 In  Connecticut 7  and  Rhode  Island 8  the  functions  of 
the  office  were  substantially  the  same  as  in  the  two  older  juris- 
dictions. 

It  appears  that,  in  Massachusetts,  the  registration  of  births, 
deaths,  and  marriages  was  sadly  neglected  by  town  clerks,  at 
least  in  the  early  period.  Therefore  the  general  court  imposed 
the  duties  of  registrar  upon  the  clerk  of  the  writs  in  each  town, 
under  penalty  for  every  neglect,  requiring  him  to  make  annual 
return  of  all  names  registered  to  the  recorder  of  the  county 
court.9  The  office  of  "  Clarke  of  the  writts  "  seems  to  have 
been  created  in  1641,  primarily  to  issue  summons  and  attach- 


1  Plymouth  Col.  Eec.,  XI,  107-8.     See  the  act  instituting  the  office,  1647. 
lb.,  189-90. 

2  Acts  and  Resolves,  I,  104,  105,  110. 

3  Acts  and  Resolves,  I,  138-9. 
*Acts  and  Resolves,  I,  326. 

5 'Acts  and  Resolves,  I,  633. 
6Acts  and  Resolves,  I,  444. 

''Conn.  Col.  Rec.,  1678-89,  p.  53  (form  of  oath) ;  1689-1706,  pp.  398,  409; 
1706-16,  pp.  82,  441;  1771-25,  pp.  280,  501,  161,  348. 

8  Rhode  Island  Col.  Rec.,  I,  187. 

9  In  1642:  Mass.  Col.  Rec.,  II,  15 ;  and  in  1657  :  Ib.,  IV,  Part  I,  290.    Cf. 
Ib.,  I,  275-6.    But  town  clerks  still  performed  the  function.    See  Salem 
Rec.,  148. 


The  Town  Officers  and  their  Duties.  91 

ment.1  Originally  incumbents  were  appointed  by  the  general 
court,  but  subsequently  it  was  ordered  that  they  should  be 
licensed  by  the  shire  court  or  court  of  assistants ; 2  and  the 
town  records  show  that  those  presented  for  license  were  first 
nominated  in  town-meeting.8  Under  the  Province  laws  the 
duties  of  this  office  were  included  among  those  of  the  clerk.4 

Other  important  officers  of  the  town  were  the  treasurer, 
assessors,  collectors,6  surveyors  of  highways,  clerks  of  the 
market,  and  fence  viewers.6  Of  these  the  last  two  only  will 
receive  special  mention. 

It  was  the  duty  of  the  clerks  of  the  market  to  see  to  the 
enforcement  of  the  numerous  ordinances  relating  to  the 
market,  particularly  those  forbidding  "forestalling"  and 
"engrossing"  provisions7  and  the  offering  of  produce  for 
sale  save  only  in  the  market  place  and  during  the  prescribed 
hours,  and  those  relating  to  hawkers  and  hucksters  and  the 
like.8 

The  office  of  fence  viewer  was  very  important,  especially  in 
the  early  period,  and  innumerable  ordinances  were  enacted  for 
regulating  his  duties.  For  example:  — 

"  It  is  ordered  that  All  fences  as  well  generall  as  p'ticular 


1  Mass.  Col.  Rec.,  I,  344-5.    See  also  Province  Laws  of  New  Hampshire,  in 
Coll.  of  New  Hampshire  Hist.  Soc.,  VIII,- 31. 

2  Mass.  Col.  Bee.,  II,  188  (1647). 

'See  JBosl.  Rec.,  1660-1701,  pp.  100,  103,  130,  197;  Dorchester  Rec.,  116; 
Salem  Rec.,  148,  195. 

'Acts  and  Resolves,  I,  75,  283,  etc. 

6Often,  of  course,  the  constable  was  ex  officio  collector;  and  the  duties  of 
assessor  were  frequently  performed  by  the  selectmen.  But  special  officers 
for  these  duties  were  often  mentioned  in  the  records. 

•Called  also  "surveyors  of  fences."  See  Salem  Town  Rec.,  40,  110,  etc.; 
"overseers"  of  fences:  Bost.  Town  Rec.,  1634-60,  p.  4;  also  "hay ward:" 
Boat.  Town  Rec.,  1660-1701,  p.  222. 

7  The  dread  of  forestallers  and  engrossers  was  characteristic  of  the  economy 
of  the  age  and  caused  much  local  legislation  in  Old  as  well  as  New  England. 
See  Mr.  Hamilton's  Quarter  Sessions,  91  ff. 

8 See  an  elaborate  ordinance  in  Bost.  Town  Rec.,  1729-42,  pp.  46-8.  Cf. 
Ib.,  70-72,  77 ;  Acts  and  Resolves,  I,  65,  79,  253,  etc. 


92  Rise  of  the  New  England  Town. 

about  the  towne  shalbe  sufficientlie  made  &  maintained  all 
the  yeare  as  well  in  winter  as  sumer.  And  if  any  p'son  be 
defectiue  in  their  fences,  They  are  to  pay  twoe  shillings  for 
euery  day  it  is  proued  they  are  defectiue,  twelue  pence  thereof 
to  be  giueii  to  the  surveyer  that  finds  it  out  &  giues  notice  of 
it  to  the  p'tie  so  defectiue  &  twelue  pence  to  the  towne.  And 
further  the  said  p'tie  shalbe  lyable  to  pay  all  damages  besides, 
that  shall  be  don  by  any  cattle  or  swine  by  reason  of  that 
defect."1 

But  perhaps  the  three  most  characteristic  town  functionaries, 
certainly  among  the  busiest,  were  the  hog  reeve,  the  pound 
keeper,2  and  the  common  driver.  Their  duties  were,  of  course, 
complementary  to  those  of  the  fence  viewers.  The  feeding  of 
swine  seems  to  have  been  fully  as  important  a  vocation  among 
the  early  New  Englanders  as  it  was  among  their  ancestors  in 
the  days  of  Eadgar ; 3  and  the  care  of  them  was  the  cause  of 
constant  anxiety  and  much  legislation.  Many  special  acts 
were  passed  by  the  general  court  relating  to  the  trespasses  of 
swine  running  at  large;4  and  in  1636  it  was  ordered  that  each 
town  should  choose  annually  "  some  one  discreet  p'son,  who 
shalbee  called  the  hogreeve,"  to  see  to  the  execution  of  the 
laws.6  By  a  subsequent  act,  however,  all  prior  orders  of  the 
court  were  repealed,  and  the  towns  were  empowered  to  make 
such  by-laws  on  the  subject  as  they  should  see  fit 6  The  fol- 
lowing is  a  specimen  of  town  ordinances  for  direction  of  the 
reeves : — 


1  Salem  Town  Bee.,  110.  Of.  Boston  Town  Rec.,  1634-60.  pp.  39,  etc.;  Dor- 
chester Town  Records,  36 ;  New  Haven  Col.  Rec.,  I,  207-8 ;  Plym.  Col.  Rec.,  XI, 
116,  200,  255. 

2 Called  also  "pounder:"  Newark  Town  Rec.,  13;  "pound  master:"  Ib., 
182;  and  "  fould-keeper : "  Bost.  Town  Rec.,  1634-60,  p.  17. 

3  See  the  interesting  discussion  by  Dr.  H.  B.  Adams  in  Norman  Constables, 
34-5. 

^Mass.  Col.  Rec.,  I,  87,  101,  106,  110,  119,  etc.;  Rhode  Island  Col.  Rec.,  I, 
67,  68,  117,  151,  etc.;  Plym.  Col.  Rec.,  XI,  15,  27,  30,  257. 

&Mass.  Col.  Rec.,  I,  181-2. 

6 Mass.  Col.  Rec.,  I,  215  (1637),  II,  190. 


The  Toion  Officers  and  their  Duties.  93 

"  At  the  same  meeting l  to  that  end  our  medowes  and  corn- 
feilds  should  be  preserued  from  damage,  it  is  ordered  that  all 
swine  that  goe  vpon  the  common  from  three  months  old  and 
vpward  shalbe  ringed  with  two  sufficient  rings  in  each  swines 
nose  well  put  in,  and  to  be  ringed  by  the  tenth  of  march  and 
so  continue  from  time  to  time  till  the  last  of  September  and  to 
that  end  they  may  be  soe  we  doe  furder  order  that  those  men 
that  are  chusen  to  look  after  swine  shall  haue  sixepence  a  swine 
for  euery  swine  that  they  find  vnringed  in  the  towne  from  three 
months  old  and  vpward."2 

The  field  driver,3  cow  keeper,4  herder,  or  neatherd,5  like  the 
hog  reeve  and  pounder,  was  usually  elected  in  town-meeting. 
Often  one  or  more  were  chosen  for  each  herd,6  or  to  drive  a 
particular  field  or  lot,  or  the  cattle  of  a  certain  prescribed 
district.7  The  driver's  fees  were  usually  paid  by  the  owners 
of  the  cattle  according  to  a  tariff  fixed  by  vote  of  the  people ; 
and,  by  the  same  authority,  the  time  in  the  spring  when  the 
cattle  should  be  put  upon  the  pastures  and  the  number  of 
hours  during  which  they  should  be  fed  each  day,  were 
established : — 

"Agreed  at  the  generall  towne  meeting  that  Laurance 
Southweeke  &  William  Woodbury  shall  keepe  the  milch 
cattell  &  heifers  that  are  like  to  calue  this  sumer,  &  such 
bulls  as  are  necessarie  for  the  heard  :  excluding  all  other  dry 
cattell :  They  are  to  haue  for  their  labo"  Thirtie  &  six 
pownds,  to  be  paid  in  equal  1  portions  the  first  paym*  to  be 
paid  the  10th  day  of  the  ffourth  moneth  next  &  the  latter 
paymt  to  be  made  the  10th  day  of  the  seauenth  moneth  follow- 


1  Of  the  selectmen. 

2  Records  of  Groton,  36.     See  76.,  29 ;   also  Boston  Rec.,  1634-60,  p.  40 ; 
Dorchester  Rec.,  25,  45-6. 

3  So  in  Braintree  Rec.,  29,  as  equivalent  of  "hay  ward." 

4  The  more  common  designation.     So  for  example  in  Boston  Records. 
6  Thus  in  Salem  Records,  41. 

8  See,,  for  example,  Records  of  Groton,  36,  42,  etc. 
''Rhode  Island  Col.  Rec.,  I,  96  (Records  of  Newport). 


94  Rise  of  the  New  England  Town. 

inge.  They  are  to  begin  to  keepe  them,  the  6th  day  of  the  2d 
moneth.  And  their  tyrne  of  keeping  of  them  to  end,  the  15th 
day  of  the  9th  moneth.  They  are  to  driue  out  the  Cattell 
when  the  Sun  is  halfe  an  hower  high,  and  to  bring  them  in 
when  the  sun  is  halfe  an  hower  high.  The  Cattle  are  to 
be  brought  out  in  the  morning  into  the  pen  neere  to  Mr. 
Downings  pale.  And  the  keep's  are  to  drive  them  &  bring 
such  cattle  into  the  Pen  as  they  doe  receaue  from  thence. 
And  such  as  doe  not  bringe  their  cattle  in  due  tyme  into  the 
Pen  are  to  keepe  them  that  day  themselues  &  pay  such 
damages  as  their  cattle  shall  make."1 

But  every  town  did  not  have  a  pen  for  the  accommodation 
of  the  driver.  Here  is  another  plan :  — 

"  It  is  ordered  that  Jo  :  Maudsly  and  Nicholas  Wood  shall 
keepe  the  Cowes  for  this  yeere  in  the  ordinary  Cow  pasture, 
and  to  keepe  them  from  the  15th  Day  of  Aprill  next  to  the 
first  of  November  next,  the  sayd  keepers  to  blow  their  home 
at  fyue  of  the  clocke  in  the  morneing  at  Joseph  Pharneworth 
and  so  along  the  Towne  till  he  come  to  M*  Meinots,  and 
every  man  one  the  North  side  of  the  Towne  to  bring  their 
Cowes  befor  the  meeteing  house,  the  Rest  to  bring  their 
Cowes  beyound  M*  Stoughtons  dore,  or  elce  the  keep's  to 
driue  away  the  heard,  and  not  to  stay  for  the  rest."2 

Not  only  did  the  town  have  common  pastures  and  common 
fields,  but  it  possessed  also  its  own  cattle  and  other  animals.8 
The  town  bull,  in  particular,  was  a  regular  institution  through- 
out New  England.4 

The  following  are  typical  orders :  — 

"  It  is  ordered,  that  there  shall  be  provision  made  of  Bulls 


1  Salem  Records,  99  (1640).     Cf.  Ib.,  41-2,  66,  85,  86,  100,  etc. 

2  Dorchester  Records,  38.     Cf.  Ib.,  22,  45,  47,  60,  61,  etc.     See  Rhode  Island 
Col.  Rec.,  I,  96.     Goats  were  herded  in  the  same  way.     Salem  Rec.,  87,  92, 
97,  etc.     Oxen  and  steers  were  kept  by  separate  drivers.     Dorchester  Rec., 
62. 

3  See  Dr.  H.  B.  Adams,  Village  Com.  of  Cape  Ann  and  Salem,  56-8. 
*  There  were  also  town  rams:  Salem  Town  Rec.,  39. 


The  Town  Officers  and  their  Duties.  95 

into  the  Towne.  A  Bull  to  every  twenty  Cows  and  heyfers 
by  the  first  of  May,  1640." l 

"  Voted.  That  whoever  shal  keep  any  Cow  going  at  large 
within  the  Neck  of  Boston  Shal  pay  into  the  hand  of  Such 
Person  as  the  Select  men  Shal  appoint  to  Receive  the  Same, 
the  Sum  of  fine  Shillings  &  Six  pence  per  Annum  to  be 
Imployed  towards  providing  four  Bulls  to  goe  on  the  Coinon 
from  the  first  of  aprill  to  the  first  of  Novembr  and  two  Bulls 
from  thence  to  the  first  of  Aprill  following,  for  paying  the 
Cowkeeper,  with  Six  pence  per  Head  for  a  Certificate  from 
the  Said  Receiver  that  the  owner  has  paid  .  .  .  ,  And  any  Cow 
that  Shal  be  found  on  the  Common  whose  owner  has  not  a 
Cirtificate  .  .  .  Shal  be  by  the  Cowkeeper  Impounded  and  the 
Owner  pay  before  the  Said  Cow  be  discharged  three  Shil- 
lings."2 

Still  other  town  officers,  whose  duties  are  particularly 
interesting,  were  the  overseer  of  the  poor ; 3  the  tithingman — 


1  Records  of  Newport  in  Rhode  Island  Col.  Rec.,  I,  96.  See  for  New  Haven, 
Levermore,  70. 

'Boston  Town  Etc.,  1700-1728,  p.  176.    Cf.  Ib.,  171 ;  Saltm  Town  Sec.,  99. 

The  "  herder"  of  a  western  village  who  gathers  up  the  cows  of  the  inhabi- 
tants— to  the  sad  discomfiture  of  lawns  and  street-borders — and  drives  them 
forth  to  pasture  upon  the  neighboring  "speculator's"  lands,  inherits  his 
name  and  functions  from  his  ancestor  of  .Salem  or  Dorchester;  but  he  has 
fallen  to  a  low  estate:  no  longer  is  he  called  to  official  honors  by  the  "most 
voices  "  of  his  peers  in  folkmoot  assembled,  and  his  stipend  is  a  matter  of 
private  contract. 

It  is  not  without  interest  to  learn  that  the  town-bull  has  found  a  place  in 
the  institutional  history  of  a  western  state..  Dr.  L.  W.  Weeks,  commenting 
on  the  early  history  of  Milwaukee,  says  in  connection  with  one  Marshal 
Schuney,  an  "  old  settler : "  "  Among  other  acts  of  the  Council  at  that  time 
was  the  appropriation  of  seventy-five  dollars  for  a  town  butt!  and  Schuney 
had  charge  of  him.  He  was  a  fine  large  white  fellow,  and  did  good  service. 
Frequent  appropriations  were  made  during  the  winter  for  pay  and  feed  for 
the  animal.  One  Sunday  morning,  during  the  following  spring,  when 
Lindsay  Ward  was  President  of  the  Corporation,  and  the  family  were  at 
breakfast,  Schuney  came  rushing  into  the  house,  and  exclaimed,  "Mr. 
President,  the  town  bull  is  dead!"  Wisconsin  Historical  Collections,  IV,  286-7. 

s  First  chosen  in  Boston,  1690-1 :  Boat.  Town  Rec.,  1660-1701,  p.  206.  See 
16.,  p.  204  for  an  example  of  "  instructions"  to  overseers. 


96  Rise  of  the  New  England,  Town. 

a  sort  of  Sunday  constable  who  preserved  order  in  meeting 
and  discharged  various  police  functions  of  a  secular  nature;1 
the  town  drummer,  whose  duty  it  was  to  sound  the  alarm  in 
case  of  danger,  give  the  signal  for  setting  or  discharging  the 
watch,  announce  the  hour  for  going  to  church,  call  town- 
meetings,  and  beat  the  morning  and  evening  drum  at  the 
appointed  times ; 2  the  town  crier  for  crying  lost  articles  and 
estrays;3  the  bellman — a  sort  of  special  watchman  whose  duty 
it  was  in  Boston,  "to  walke  through  and  about  the  Towne 
from  12  clocke  at  nighte  to  5  in  the  morning/''  in  case  of 
"  any  extreordnary  light  or  fier  in  any  house  or  vesselles,"  to 
repair  to  the  same  and,  if  there  be  danger,  to  ring  the  alarm;4 
the  water-bailiff  whose  business  it  was  to  secure  anchors  cast 
upon  the  "  flatts," 5  collect  colonial  charges  on  mackerel  taken,6 
and  "see  that  noe  annoying  things  eyther  by  fish,  wood  or 
stone  or  other  such  like  things,  be  left  or  layd  about  the  sea 
shore." 7 

(6). — New  England  Functionalism. 

In  addition  to  the  imposing  list  of  officials  already  enu- 
merated the  town  records  mention  a  vast  number  of  minor 
public  functionaries  not  all  of  whom,  of  course,  are  found 
existing  at  the  same  time  in  the  same  community.  Indeed 
there  seems  to  have  been  a  restless  anxiety  in  these  little 
democracies  to  bring  every  possible  subject  within  the  purview 


1  See  Plym.  Chi,  Eec.,  XI,  253 ;    Mass.  Col.  Eec.,  V,  241,  133 ;   Acts  and 
Resolves,  I,  155,  228-9. 

2  See  for  New  Haven,  Levermore,  60-2 ;  also  New  Haven  Col.  Sec.,  I,  70 ; 
Eost.  Town  Rec.,  1634-60,  pp.  67,  75,  76,  80,  82,  etc.     A  teacher  of  the  town 
drummer  was  also  appointed :  Ib.,  76. 

3  Eost.  Town  Eec.,  1660-1701,  pp.  30,  108. 

*Eost.  Town  Eec.,  1660-1701,  p.  11 ;  see  also  Ib.,  pp.  18,  44,  etc. 

5  See  Eost.  Town  Eec.,  1660-1701,  p.  16,  where  a  rather  lengthy  ordinance 
defining  his  duties  may  be  found. 

6  Plym.  Col.  Eec.,  XI,  228. 

7  Bost.  Town  Eec.,  1634-60,  p.  11. 


The  Town  Officers  and  their  Duties.  97 

of  the  town-meeting  or  of  the  magistrates  chosen  by  it.  Then- 
was  a  minute  interference  with  private  business,  a  decree  of 
official  intrusion  which  we  should  now  feel  intolerable.  Thus 
a  large  corps  of  officials  were  employed  in  regulating  local 
trade  and  commerce  :  such  as  sealers  of  weights  and  measures, 
sealers  of  leather,  sealers  and  inspectors  of  brick-makers,1 
cullers  of  fish,  cullers  of  staves,  inspectors  of  hides  for  trans- 
portation,2 measurers  of  grain,  measurers  of  boards,  measurers 
of  salt,  packers  of  flesh  and  fish,  inspectors  of  the  killing  of 
deer,3  preservers  of  deer4  and  deer  reeves,5  surveyors  of  lum- 
ber,6 measurers,  sealers,  or  surveyors  of  wood,7  besides  corders 
of  wood  and  overseers  of  wood-corders.8  There  were  also 
overseers  of  almshouses,  school -wardens,  school  teachers,  truck- 
masters,9  keepers  of  ordinaries,  brewers,10  rebukers  of  boys," 


1  Bost.  Town  Ree.,  1660-1701,  pp.  183,  196;  Acts  and  Resolves,  I,  683. 

2  Bost.  Town  Rec.,  1660-1701,  pp.  196,  206,  147. 

3  Braintree  Town  Rec.,  229. 

4  Worcester  Town  Rec.,  1740-53,  p.  18. 

5  Deer-reeves  were  regularly  chosen  in  Worcester :  Wor.  Town  Rec.,  1753-S3, 
pp.  162,  172,  etc. 

6  Braintree  Town  Rec.,  229,  547. 

7  For  example  in  1740,  in  Boston,  it  was  complained  that  the  cordwood  was 
"cut  too  short"  and  "not  close  stowed."     Therefore  it  was  ordered  "that 
there  be  a  Sufficient  Number  of  Sealers  or  Measurers  of  Cord-Wood,  approved 
off  by  Ihe  Select  Men,  and  under  Oath,  to  Prosecute  all  such  Person  and 
Persons  whatsoever,  as  shall  presume  or  attempt  to  cart  or  carry  away  any 
Cord- Wood  from  any  Wharf,  before  he  has  duly  Corded,  and  Sealed  the 
same."     Town  Rec.,  1729-42,  p.  255;  see  Braintree  Rec.,  547. 

8  No  one  but  the  official  corder,  who  was  bound  by  oath,  could  cord  wood 
for  sale.    See  Boston  Rec.,  1660-1701,  p.  59;  1700-28,  pp.  14,  224,  etc. 

It  was  also  ordered  that  "  if  the  ouerseers  of  wood  cord™  finde  any  corders 
unfaithfull  or  defective  in  theire  office  by  cording  it  againe  by  any  man 
y*  is  not  a  cord?  apoynted  or  any  other  way  make  it  apeare  y*  ye  s"?  corder 
was  not  faithfull  accor.  to  his  oath,  the  said  corder  shall  lose  his  wages  ...  & 
be  disabled  to  cord  any  more  wood  for  the  yeare  ensueinge ; "  Boston  Rec., 
1C60-1701,  p.  144. 

9  New  Haven  Col.  Rec.,  I,  43 ;  Mass.  Col.  Rec.,  I,  96. 

10  See  Levermore,  69-70. 

11  Newark  Town  Rec.,  77,  80 ;  Dorchester  Town  Rec.,  230. 

7 


98  Rise  of  the  New  England  Town. 

sizers  of  meadows,1  warners  of  town-meetings,2  persons  to  keep 
dogs  out  of  church,3  scavengers,4  chimney  sweepers,  overseers 
of  chimneys,  viewers  of  lands,5  lot  layers,6  judges  of  delinquents 
at  town-meeting7  and  judges  of  boundary  disputes,8  branders 
of  cattle,9  swine  yokers  and  ringers,10  pinders,11  jurymen,12 
town-cannoneers,13  bailiffs,14  commissioners  of  small  causes, 
commissioners  to  carry  votes  to  the  shire  town,  commissioners 
for  equalization  of  the  assessment,15  and  even  town  fishers,16 
town  grubbers,17  and  town  doctors.18  To  these  must  be  added 


1  Newark  Town  Rec.,  21,  27. 

2  Newark  Town  Rec.,  14;  usually,  of  course,  the  constable  performed  the 
duty  of  warner;  there  were  also  "callers"  of  town-meetings;  thus  Rowley, 
Mass.,  had  both  callers  and  warners :  Early  Rec.  of  Rowley  in  Hist.  Coll.  Essex 
Inst.,  XIII,  255,  256,  etc. 

3  Town  Rec.  of  Wenham  in  Coll.  Esstx  Inst.,  XIX,  106. 

4  See  Bost.  Town  Rec.,  1660-1701,  pp.  205,  226,  etc. 

5  Salem  Town  Rec.,  165. 

6  History  of  Chester,  in  Cott.  N.  Hamp.  Hist.  Soc.,  349. 

7  "  Chosen  to  judge  defects  of  them  that  are  fined  for  not  comming  to  towne 
meetings:"  Early  Rec.  of  Rowley,  in  Hist.  Coll.  Essex  Inst.,  XIII,  255,  25G, 
257,  etc. 

8  Early  Rec.  of  Rowley,  in  Hist.  Coll.  Essex  Inst.,  XIII,  254. 

9  See  Baily,  Hist,  of  Andover,  138,  143,  etc. 

w£ost.  Town  Rec.,  1634-60,  pp.  103,  etc. ;  1660-1701,  p.  30. 

11  The  pinder  was  an  old  officer  of  the  manor — a  sort  of  pounder  or  hay  ward. 
Rowley,  Mass.,  had  both  pounders  and  pinders:  Early  Rec.  of  Rowley,  in  Hist. 
Coll.  Essex  Inst.,  XIII,  254,  256,  258,  etc. 

J-£ost.  Town  Rec.,  1660-1701,  p.  127;  Mass.  Col.  Rec.,  I,  118;  II,  285; 
Acts  and  Resolves,  I,  37. 

13 Bost.  Town  Rec.,  1700-1728,  p.  17 ;  chosen  "to  keep  the  accompt  of  the 
Great  Artillery"  and  look  after  the  town's  stock  of  ammunition. 

14  Dorchester  Town  Rec.,  72,  88,  103,  etc.     The  Dorchester  bailiff  was  a  sort 
of  extra  petty  constable  side  by  side  with  the  regular  petty  constable. 

15  For  these  three  classes  of  commissioners  see  Chap.  VII. 

16  See  Paige,  Hist,  of  Camb.,  38,  where  John  Clarke  is  engaged  to  catch 
"  alewives  "  for  the  town  at  iii8,  6d  a  thousand. 

17  Oct.  3,  1636.    "Agreed  with  Mr.  Cooke  to  take  up  all  the  stubs  that  are 
within  the  bounds  of  the  town,  that  is,  within  the  town  gates;  he  is  to  have 
ixd  apiece  for  taking  up  the  same  and  filling  holes  all  above  iii  inches  [deep], 
which  he  is  to  do  before  the  first  of  December,  or  else  to  forfeit  51. :"  Paige, 
Hist,  of  Cambridge,  39-40. 

18  See  Levermore,  67. 


The  Town  Officers  and  their  Duties.  9 It 

the  town  deputies  and  the  local  officers  commissioned  by  the 
general  court,  such  as  notaries l  and  the  commissioners  to  join 
in  marriage.* 

The  foregoing  catalogue  is  certainly  formidable ;  yet  we 
shall  still  fail  to  comprehend  how  large  was  the  army  of  local 
public  servants  in  New  England  unless  we  bear  in  mind  that 
the  honors  of  a  single  office  were  often  shared  by  a  considerable 
number  of  individuals.  For  example,  in  1679,  Dorchester 
had  four  yokers  and  ringers  of  swine,  four  men  to  look  after 
boys  in  church,  and  eighteen  fence  viewers  for  nine  different 
fields;3  and  in  1681  there  were  thirteen  tithingmen.4  In 
1713-14,  the  town- meeting  of  Braintree  elected  two  consta- 
bles, four  tithingmen,  four  surveyors  of  highways,  four  fence 
viewers,  and  four  hog  reeves.5  In  1769  Worcester  had  two 
constables,  two  field  drivers,  two  fence  viewers,  two  deer 
.reeves,  eight  hog  reeves,  and  eleven  surveyors  of  highways.8 
In  1690-91  Boston  had  ten  constables,7  seven  surveyors  of 
highways,  four  clerks  of  the  market,  four  sealers  of  leather, 
six  hog  reeves,  three  criers,  sixteen  corders  of  wood,  eight 
overseers  of  wood-corders,  four  overseers  of  chimneys,  and 
thirty-six  tithingmen.8 


1  Mass.  Col.  Rec.,  I,  307  ;  II,  209. 

2  Mans.  Col.  Rec.,  II,  166;  I,  307. 

3  Dorchester  Town  Rec.,  230. 
4 Dorchester  Town  Rec.,  256. 
''Braintree  Town  Rec.,  81-2. 

6  Worcester  Town  Rec.,  1753-83,  pp.  161-2. 

7  Including  two  for  Muddy  River  and  Rumny  Marsh. 

8  Boston  Town  Rec.,  1660-1701,  pp.  204-7.    In  1808  Newark,  N.  J.,  had  7 
constables,  2  surveyors  of  highways,  and  31  overseers  of  highways.    See 
Newark  Town  Rec.,  194-5. 


CHAPTEE  III. 

THE    TOWNSHIP    AND    ITS    DIFFERENTIATED 

FORMS  IN  THE  MIDDLE  AND  SOUTHERN 

COLONIES. 

I. — THE  TITHING. 

The  township  in  its  New  England  form  is  of  paramount 
interest  to  the  student,  both  on  account  of  the  invaluable 
services  which  it  rendered  during  the  long  period  of  prepara- 
tion for  national  union,  and  on  account  of  the  influence  which 
it  has  exerted  on  local  institutions  elsewhere  in  the  United 
States.  Nevertheless  during  the  colonial  era  several  of  the 
allied  organisms  have  a  history  by  no  means  unimportant. 
This  is  so  particularly  of  the  manor  and  the  parish.  On  the 
other  hand  the  tithing  as  a  local  division  seems  never  to  have 
been  permanently  transplanted  to  American  soil.1  Tithingmen 


1  Tithings  seem  to  have  existed,  however,  in  Maine.  Sir  Ferdinando 
Gorges,  in  describing  the  form  of  government  established  there,  declares 
that  he  "divided  the  whole  into  eight  bailiwicks  or  counties,  and  those  again 
into  sixteen  several  hundreds,  consequently  into  parishes  and  tithings,  as 
people  did  increase  and  the  provinces  were  inhabited."  Further  on  he 
adds:  "Every  hundred  shall  have  two  head  constables  assigned  them,  and 
every  parish  one  constable  and  four  tithingmen,  who  shall  give  account  to 
the  constable  of  the  parish  of  the  demeanor  of  the  householders  within  his 
tithing,  and  of  their  several  families.  The  constable  of  the  parish  shall  render 
the  same  account ...  to  the  constables  of  the  hundred  . . .  who  shall  present  the 
same  to  the  lieutenant  and  justices  at  their  next  sitting,  or  before  if  cause 
require,"  etc.  See  Gorges,  Description  of  New  England  in  3  Mass.  Hist.  Coll., 
VI,  pp.  83,  85.  Here  the  tithingman  seems  to  be  subordinate  to  the  parish 
constable  just  as  the  latter  is  subordinate  to  the  constables  of  the  hundred ; 
but  is  the  tithing  a  personal  or  a  territorial  division  of  the  parish  ? 

100 


TJie  Titidng.  101 

were  regular  officers  of  the  New  England  town ;  and  they  also 
appeared  elsewhere  in  the  colonies.1  Moreover  in  one  instance, 
at  least,  we  find  something  very  like  the  personal  teolhung  of 
Saxon  days — a  union  of  heads  of  families  for  police  purposes. 
In  1682  the  general  court  of  Plymouth,  for  the  better  regula- 
tion of  the  Indians  and  that  they  "  may  be  brought  to  line 
orderly  soberly  and  dilligently,"  enacted  that  in  each  town 
where  Indians  live  "some  one  able  discreet  man"  should  be 
appointed  by  the  court  of  assistants  to  have  oversight  of  such 
Indians.  The  overseer  and  the  Indian  tithingmen  of  the  town 
were  to  constitute  a  court  for  trying  causes  betwixt  Indian  and 
Indian  "  eapitalls  and  titles  vnto  lands  onely  excepted  ; "  and 
they  were  to  appoint  constables  of  the  Indians  yearly  to  attend 
the  court  and  serve  its  processes.  Also  it  was  ordered  "  that 
in  each  towne  where  Indians  doe  reside  euery  tenth  Indian 
shalbe  chosen  by  the  Court  of  Assistants  or  said  ouerseer  yeerly 
whoe  shall  take  the  Inspection  care  and  ouersight  of  his  nine 
men  and  present  theire  faults  and  misdemenors  to  the  ouerseer 
which  said  ouerseer  shall  keep  a  list  of  the  Names  of  the  said 
Tithing  Men  and  those  they  shall  haue  the  charge  of  and  the 
said  tithingmen  shalbe  Joyned  to  the  ouerseer  in  the  Ad- 
minnestration  of  Justice  and  in  hearing  and  determining  of 
causes  and  incase  the  Tithingmen  doe  not  agree  with  the 
ouerseer  in  any  case  that  may  come  before  them  in  Judg- 
ment then  the  said  ouerseer  shall  haue  Negatiue  voyce  and 
such  case  shalbe  remoued  to  be  determined  by  the  court  of 
Assistants." 2 

This  is  certainly  a  very  curious  revival  of  the  most 
ancient  form  of  the  tithing,  but  the  name  seems  never,  as 
in  the  old  country,  to  have  been  used  here  as  the  desig- 
nation for  a  district  or  territorial  area  identical  with  the 
township  itself. 


1  For  example  in  Maryland :  see  Dr.  Adams,  Saxon  Tithingmen,  p.  8,  citing 
Bacon's  Laws  of  Md.,  ch.  II,  12. 
3  Plym.  Col.  Rec.,  XI,  252-3.    Cf.  Dr.  Adams,  Saxon  TUhingmen,  9-10. 


102   The  Township  in  the  Middle  and  Southern  Colonies. 


II. — DUTCH  COLONIES  AND  VILLAGE  COMMUNITIES. 

The  history  of  local  institutions  in  the  Middle  Colonies, 
and  more  especially  in  New  York,  presents  some  very  curious 
features.  It  is  exceedingly  interesting,  for  example,  to  see  the 
feudal  tenures  of  Europe,  transplanted  directly  to  the  banks  of 
the  Hudson.1  In  1629  the  Dutch  West  India  Company,  with 
the  sanction  of  the  States  General  of  Holland,  instituted  in 
New  Netherland  the  celebrated  "  colonies  "  or  manors  under 
the  proprietorship  of  "  patroons."  In  the  "  Freedoms  and 
exemptions  "  granted  by  the  Assembly  of  XIX  in  that  year, 
it  was  provided  that  any  person  who  should  within  four  years 
after  giving  notice  to  any  of  the  Chambers  of  the  Company, 
plant  a  colony  of  fifty  souls,  upwards  of  fifteen  years  old, 
should  be  acknowledged  as  a  patroon,  and  be  "  permitted,  at 
such  places  as  they  shall  settle  their  colonies,  to  extend  their 
limits  four 2  miles  along  the  shore,  that  is,  on  one  side  of  a 
navigable  river,  or  two  miles  on  each  side  of  a  river,  and  so  far 
into  the  country  as  the  situation  of  the  occupiers  will  permit." 
The  spaces  between  the  colonies  were  reserved  by  the  Company 
for  such  disposition  as  they  should  see  fit;  but  no  person  was 
to  be  allowed  to  settle  within  "  seven  or  eight  miles  "  of  the 
colonies  without  their  consent,  except  that  the  Commander  and 
Council  for  good  reasons  should  order  otherwise.3 


1 A  mere  resume  of  the  subject  of  local  institutions  in  New  Netherland  is 
here  attempted.  The  whole  subject  is  treated  at  length  from  the  sources  in 
the  Dutch  Village  Communities  on  The  Hudson  River  by  Mr.  Irving  Elting,  to 
which  I  am  chiefly  indebted.  The  leading  authorities  are  O'Callaghan, 
History  of  New  Netherland,  and  Brodhead,  History  of  New  York,  vol.  I;  while 
original  materials  will  be  found  in  Documents  Relating  to  the  Colonial  History 
of  New  York;  volumes  XIII  and  XIV  of  the  collection,  edited  by  Mr.  Fernow, 
are  devoted  entirely  to  the  towns  and  settlements  on  Long  Island  and  the 
Hudson  and  Mohawk  rivers.  The  Holland  documents,  comprised  in  volumes 
I  and  II,  contain  much  matter  relative  to  the  patroons. 

2  Sixteen  English  miles. 

3See  O'Callaghan,  History  of  New  Netherland,  112-20,  where  the  "  Freedoms 


Dutch  Colonies  and  Village  Communities.  103 

No  rights  of  self-government  were  granted  the  ooloni-t-, 
though  they  were  exempted  from  taxation  for  a  period  of  ten 
years.  They  were  required  to  serve  the  patroon  during  the 
term  for  which  they  had  bound  themselves;  and  should  they 
leave  him  the  company  engaged  to  do  everything  in  their 
power  to  apprehend  and  deliver  them  to  their  master.  The 
patroon  was  granted  his  land  as  a  perpetual  inheritance, 
together  with  the  "fruits,  rights,  mines,  and  fountains  therof," 
besides  a  monopoly  of  the  "fishing,  fowling,  and  grinding." 
To  him  belonged  also  the  lower  jurisdiction,  with  appeal  to 
the  Commander  and  .Council  from  the  judgments  of  his  court 
for  upwards  of  fifty  guilders — about  twelve  dollars. 

Thus,  unfortunately,  were  established  in  the  New  World 
institutions  which,  says  the  historian  of  New  Netherland,  bore 
"all  the  marks  of  the  social  system  which  prevailed  at  the 
time,  not  only  among  the  Dutch,  but  among  the  other  nations 
which  had  adopted  the  civil  law.  The  l  colonies '  were  but 
transcripts  of  the  'lordships'  and  ' seigneuries '  so  common  at 
this  period,  and  which  the  French  were  establishing,  contem- 
poraneously, in  their  possessions  north  of  New  Netherland, 
where  most  of  the  feudal  appendages  of  high  and  low  jurisdic- 
tion, mutation  fines,  pre-emption'  rights,  exclusive  monopolies 
of  mines,  minerals,  water-courses,  hunting,  fishing,  fowling, 
and  grinding,  which  we  find  enumerated  in  the  charter  to 
patroons,  form  part  of  the  civil  law  of  the  country  at  the 
present  day."  ! 

Naturally  a  policy  which  denied  to  the  settlers  who  should 
quit  their  native  land  to  face  the  toils  and  dangers  of  the 
savage  wilderness,  the  liberties  which  they  had  enjoyed  at 
home,  was  not  favorable  to  the  prosperity  of  the  Company. 
It  was  found  expedient,  therefore,  in  1640,  to  grant  a  new 
charter,  which,  besides  modifying  the  privileges  of  the  patroons, 


and  Exemptions"  are  printed;  also  Brodhead,  History  of  New  York,  1, 196-8; 
Hazard's  Annals,  21-2. 
1 0'Cullaghan,  Hist,  of  New  Netherland,  120;  cf.  Ib.,  390-91. 


104    The  Township  in  the  Middle  and  Southern  Colonies. 

created  a  new  class  of  proprietors.  "Whoever  should  hereafter 
convey  himself,  and  five  souls  over  fifteen  years  of  age,  to  New 
Netherland,  was  to  be  acknowledged  a  '  master  or  colonist/  and 
entitled  to  claim  one  ^hundred  morgen,  or  two  hundred  acres 
of  land,  with  the  privilege  of  hunting  in  the  public  forests  and 
fishing  in  the  public  streams.  If  by  these  means,  the  settle- 
ments of  masters  or  free  colonists  should  so  increase  as  to 
become  towns,  villages,  or  cities,  the  Company  was  bound  to 
confer  subaltern  or  municipal  government  on  them,  to  consist 
of  magistrates  and  ministers  of  justice ;  which  were,  however, 
'to  be  selected  and  chosen  by  the  Director-general  and  council, 
from  a  triple  nomination  of  the  best  qualified  in  the  said  towns 
and  villages,  to  whom  all  complaints  and  suits  arising  within 
the  district  shall  be  submitted;'  but  from  these  courts,  as  well 
as  from  those  of  the  Patroons,  an  appeal  was  to  lie  to  the 
Director-general  and  council,  when  the  sum  in  dispute  exceeded 
one  hundred  guilders,  or  forty  dollars,  or  when  infamy  might 
attach  to  the  sentence;  as  well  as  for  all  judgments  in  criminal 
proceedings,  when  the  same  was  allowed  by  the  custom  of 
Fatherland."  l 

By  this  charter  of  liberties  local  self-government,  such  as 
had  existed  in  Holland,  was  introduced  into  the  New  World. 
Gradually  a  large  number  of  hamlets  and  villages  sprang  up 
in  New  Netherlaud,  particularly  on  Long  Island,  possessing 
their  own  magistrates  and  managing  their  own  local  business.2 
In  their  economic  aspect  these  were  veritable  mark-societies, 
closely  allied  in  character  to  the  New  England  town-commu- 
nities, but  transplanted  directly  to  American  soil  from  the 
Teutonic  fatherland  of  the  English  race.3  Each  village  had 
its  "  boueries  "  or  house-lots,  its  common  fields  and  pastures, 
and  its  folkmoot  for  the  ordering  of  its  domestic  aifairs. 


1 0'Callaghan,  Hist,  of  New  Netherland,  220 ;  cf.  Brodhead,  Hist,  of  New 
York,  I,  31 1-12 ;  Doc.  Bel.  to  Col.  Hist,  of  N.  Y.,  I,  1 19-23.  Cf.  Ib.,  401-5  for 
the  Liberties  of  1650. 

2O'Callaghan,  Hist,  of  New  Netherland,  390-3. 

3  This  point  is  emphasized  by  Elting,  Dutch  Village  Communities,  67-8. 


The  Town  of  the  Duke's  Laws.  105 

I"n<lcr  the  English  rule  town  and  county  government  was 
instituted ;  but  there  was  little  arbitrary  interference  in  the 
iu:m:i«niment  of  local  matters.  Instead  of  the  colonies  of 
patroons,  in  some  instances,  manors  on  the  English  model 
with  courts  leet  and  baron  were  substituted  or  established  j1 
and  the  system  of  common  land-holding  survived  in  some  of 
the  New  York  towns  to  the  present  century.2 

III. — THE  TOWN  OF  THE  DUKE'S  LAWS. 

After  the  English  conquest  of  New  Netherland  in  1664  a 
body  of  laws  was  promulgated,3  primarily  for  the  government 
of  Long  Island,  but  subsequently  enforced  with  some  modifica- 
tions in  other  parts4  of  the  territory  claimed  by  the  Duke  of 
York.8  By  this  code  was  established  a  system  of  local  govern- 


1  Lodge,  Short  History,  327-8;  Elting,  16-17.  Manors  continued  to  be 
pnmted  after  the  general  abrogation  of  feudal  tenures.  See  Sir  William 
Johnson  to  Gov.  Golden,  April  4,  17G9,  in  O'Callaghan,  Doc.  Hist,  of  N.  Y., 
II,  543.  Governor  Fletcher  was  notoriously  lavish  in  grants  of  land.  See, 
in  connection  with  the  Cortlandt  and  Livingston  manors,  Doc.  Rd.  to  Col. 
Hist,  of  N.  Y.,  IV,  822-3.  For  grant  of  Grimstead  manor,  with  courts  baron 
and  leet,  see  76.,  Ill,  72.  The  manors  of  Rensselaerswyck,  Livingston,  and 
Cortlandt  sent  each  a  representative  to  the  Assembly:  Ib.  VIII,  444;  Doc. 
Hist,  of  N.  Y.,  II,  937.  On  the  manors  of  Van  Rensselaer,  Gardiner's  Island, 
and  Van  Cortlandt,  see  the  interesting  series  of  papers  by  Martha  J.  Lamb 
in  Magazine  of  American  History,  Vols.  XI,  XIII,  XVI. 

Manors  were  classed  with  townships  and  precincts  in  respect  of  officers 
and  powers  under  the  Province  Laws.  See  Section  IV  of  this  chapter. 

'This  subject  is  discussed  in  detail  by  Elting,  Village  Communities,  23  ff. 

8  By  Colonel  Nicholls,  deputy  governor  for  the  Duke :  Brodhead,  Hist,  of 
New  York,  II,  18,  66-7. 

4  Aug.  6,  1674,  Governor  Andros  orders  them  put  in  force:  O'Callaghan, 
Doc.  Rel.  to  Col.  Hist,  of  N.  Y.,  Ill,  226-7.     Cf.  Dongan's  report,  76.,  p.  390 
(1686);  also  Hildreth,  II,  44;  Lodge,  Short  History,  296;  Brodhead,  11,273. 

In  1676  the  Duke's  laws  were  enforced  in  the  Delaware  region  "except 
the  constables'  courts,  county  rates,  and  some  other  things  peculiar  to  Long 
Island  : "  Hazard's  Annals  of  Pa.,  427. 

5  The  region  west  of  the  Delaware,  though  not  included  in  the  Duke's 
prant  was  claimed  as  part  of  New  Netherland:  Hazard's  Annals,  356-7; 
Brodhead,  I,  735 ;  II,  15-16,  50. 


106     The  Township  in  the  Middle  and  Southern  Colonies. 

ment  similar  in  spirit  to  that  existing  in  New  England  and 
the  mother  country,  but  possessing  some  remarkably  novel 
features. 

The  governing  body  of  the  town  or  parish  consisted  of  the 
constable  and  eight  overseers.1  Four  of  the  latter  were 
elected  every  year  by  a  "  plurality  of  the  voyces  of  the  free- 
holders/' and  the  constable  was  chosen  in  the  same  way  from 
among  the  retiring  overseers.  In  case  of  emergency  or  when 
the  constable  was  not  at  hand  any  overseer  could  "  take  upon 
him  the  authority  of  a  constable,  provided  that  he  carry  with 
him  the  staffe  of  the  office." 2 

The  constable  and  overseers  possessed  both  judicial  and 
legislative  powers.  As  constituting  the  "  Town-Court "  they 
could  try  actions  for  debt  or  trespass  not  involving  more  than 
five  pounds ;  or,  if  above  this  amount,  they  could  submit  them 
to  arbitration.3 

It  was  also  enacted  that  "whereas  in  perticuler  Townes  many 
things  do  arise,  which  concerne  onely  themselves,  and  the  well 
Ordering  their  Affairs,  as  the  disposing,  Planting,  Building 
and  the  like,  of  their  owne  Lands  and  woods,  granting  of 
Lotts,  Election  of  Officers,  Assessing  of  Kates  with  many 
other  matters  of  a  prudentiall  Nature,  tending  to  the  Peace 
and  good  Government  of  the  Respective  Townes  the  Constable 
by  and  with  the  Consent  of  five  at  least  of  the  Overseers  for 
the  time  being,  have  power  to  Ordaiue  such  or  so  many 
peculier  Constitutions  as  are  Necessary  to  the  welfare  and 
Improvement  of  their  Towne ;  Provided  they  bee  not  of  a 
Crimminall  Nature,  And  that  the  Penaltyes  Exceed  not  twenty 
Shillings  for  one  Offence,  and  that  they  be  not  Repugnant  to 
the  publique  Lawes,"  such  "constitutions"  being  subject  to 
the  approval  of  the  court  of  sessions  or  the  assizes.4 


1  Subsequently  decreased  to  four :  Duke's  Laws,  69. 

2  Duke's  Laws,  44. 

3  Duke's  Laws,  3-4,  51 ;  amended,  Ib.,  p.  60. 

4  Duke's  Laws,  50-51,  59. 


The  Town  of  the  Duke's  Laws.  107 

There  was  a  town-meeting  whose  functions  seem  to  have 
consisted  simply  in  the  election  of  officers,  though  they  are  not 
clearly  defined,1  and  thus  the  right  to  enact  by-laws,  which  in 
the  New  England  towns  was  exercised  by  the  selectmen  co- 
ordinately  with,  but  under  the  authority  of,  the  town-meeting, 
was  by  the  Duke's  code  vested  in  the  first  instance  exclusively 
in  the  representative  board.  The  constable's  position  was 
unique.  It  is  especially  noteworthy  that  while  performing  the 
fiscal  and  police  .functions  incident  to  the  office  elsewhere  he 
was  here  recognized  more  clearly  than  anywhere  else  in  the 
colonies  as  the  head  officer  and  most  distinguished  personage 
of  the  community.2 

The  existing  communal  and  other  local  customs  were  not 
disturbed  by  the  new  laws ;  on  the  contrary  they  were  distinctly 
recognized  in  elaborate  measures  relative  to  the  use  of  the 
common  fields,  the  construction  of  fences,  and  the  management 
of  the  village  herds.3  But  by  this  very  recognition  and  by 
many  enactments  relative  to  the  powers  of  towns  the  supreme 
authority  of  the  proprietary  government  was  sufficiently 
asserted.  For  example  it  was  found  necessary  thus  to  limit 
the  amount  of  bounties  offered  for  the  killing  of  wolves : 4 

"  Whereas  it  hath  been  taken  into  Consideration  how  great 
Abatement  there  is  in  the  Rates  of  severall  Townes  upon  the 
Account  of  Wolves  discounted  with  the  Constables,  within 
whose  Lymitts  they  are  killed,  §o  that  the  Summe  to  be  col- 
lected doth  not  Answer  the  Expectation  of  the  publick  Charge, 
It  is  Ordered,  that  the  Summe  of  Twenty  five  Shillings  lately 
given  for  a  Wolves  Head  shall  be  reduced  to  twenty  shillings 
as  formerly,  and  for  Whelps  proportionately,  and  that  for  the 
time  to  come  for  all  Wolves  which  shall  be  killd  within  the 


1  Duke's  Laws,  51. 

2  On  the  constable's  duties  and  powers  see  the  Duke's  Law,  21-2,  3,  4,  5, 
9,  10,  15,  45,  69. 

3  Duke' s  Laws,  15-17,28. 

4  The  bounty  for  wolves  is  a  constantly  recurring  item  of  expenditure  in 
all  the  New  England  town  records. 


108     The  Township  in  the  Middle  and  Southern  Colonies. 

Bounds  of  any  Towne  upon  Long  Island  and  parts  adjacent, 
the  one  half  of  the  Charge  shall  bee  borne  by  the  Towne  and 
tother  by  the  Publick  ;  It  is  also  Ordered,  That  each  Towne 
bee  obliged  for  the  preservacon  of  their  Stock  and  Cattle  to 
make  and  maintain  Wolve  pitts  which  are  to  bee  directed  by 
the  respective  Officers  of  the  Townes  to  which  they  do 
belong."1 

The  following  provision  reveals  another  of  the  exigencies 
of  pioneer  life  : — 

"  It  is  likewise  Ordered,  In  regard  of  the  great  Inconveni- 
ence and  Decay  of  Feed  for  Horses  and  Cattle  in  the  Woods 
by  the  increase  of  the  Brush  or  Under  wood,  which  is  suffred 
to  grow  up  without  any  care  taken  to  subdue  the  same,  That 
four  Dayes  be  appointed  once  every  yeare  for  all  the  Inhabi- 
tants of  the  Townes  upon  Long  Island  and  Precincts,  from 
the  Age  of  16  to  60  (except  those  exempted  by  the  Law)  to  go 
into  the  Woods  to  cutt  the  said  Brush  or  Under  wood,  the 
time  to  bee  at  the  discretion  of  the  Officers  of  each  Towne, 
and  whosoever  shall  faile  therein,  each  particular  person  shall 
pay  for  every  dayes  default  the  value  of  five  shillings." 2 

The  parish,  as  the  town  in  its  ecclesiastical  aspect  was 
styled,  had  a  distinct  organization.  At  its  head  stood  the 
constable  and  overseers,  who  were  to  choose  yearly  out  of  the 
latter  body  two  churchwardens.  The  overseers  were  to  have 
charge  of  "  making  and  proportioning  the  Levies  and  Assess- 
ments for  building  and  repairing  the  Churches,  Provision  for 
the  poor,  maintenance  of  the  Minister;  as  well  as  for  the  more 
orderly  managing  of  all  Parochiall  affairs  in  other  Cases 
exprest." 3  The  chief  duty  of  the  churchwardens,  as  defined 
in  the  statutes,  consisted  in  making  presentments  to  the  court 
of  sessions.  On  the  second  day  of  each  term,  they  were 
required  to  "  deliver  a  true  presentment  in  writing  of  all  such 


1  Duke's  Laws,  72  (1672).    Cf.  Ib.,  52-3. 

2  Duke's  Laws,  73  (1672). 

3  Duke's  Laws,  18. 


The  Toum  of  the  Duke' 8  Laws.  109 

misdemeanors  as  by  their  knowledge  have  been  Committed 
:ind  not  punished  whilst  they  have  been  Churchwardens. 
Namely,  Swearing,  prophaness,  Sabbath  breaking,  Drunken- 
ess,  fornication,  Adultery,  and  all  such  abominable  Sinnes." 
They  were  consequently  empowered  to  compel  the  attendance 
of  the  witness  upon  whose  complaint  the  charges  were 
granted.1 

It  was  the  minister's  temporal  office  to  join  in  marriage,2 
and  keep  a  register  of  births,  deaths,  and  marriages 8  occur- 
ring within  the  parish.  Moreover,  it  was  not  intended  that  he 
should  neglect  the  cure  of  souls,  his  spiritual  duties  being 
prescribed  in  the  statutes  with  curious  particularity.  It  was 
enacted  that  the  minister  of  "  every  Parish  shall  Preach  con- 
stantly every  Sunday,  and  shall  also  pray  for  the  Kinge, 
Queene,  Duke  of  Yorke,  and  Royall  family ;  .  .  .  Publiquely 
Administer  the  Sacrament  of  the  Lords  Supper  once  every 
Year  at  the  least  in  his  Parish  Church  not  denying  the  private 
benefit  thereof  to  Persons  that  for  want  of  health  shall  require 
the  same  in  their  houses,  under  the  penalty  of  Loss  of  prefer- 
ment unless  the  Minister  be  restrained  in  point  of  Conscience;" 
neither  shall  he  "refuse  the  Sacrament  of  Baptism  to  the 
Children  of  Christian  parents  when  they  shall  be  tendered," 
nor  admit  persons  of  "scandalous  or  vicious  life"  to  the 
Sacrament.4 


1  Duke' a  Laws,  19. 

2  Duke 's  Lam,  19,  36-7. 

3  Duke's  Laws,  13-14. 

4  Duke's  IMWS,  18-19.    On  the  Duke  of  York's  Code  see  also  Brodhead, 
Hist.  o/X.  Y.,  II,  62  ff.;  Hildreth,  II,  44  ff. 

By  the  Province  Laws  New  York  city  and  certain  other  cities,  counties, 
manors,  and  precincts,  were  authorized  each  to  choose  two  churchwardens 
and  ten  vestrymen.  The  churchwardens  were  ex  officio  overseers  of  the  poor ; 
and  the  vestrymen  together  with  any  two  justices  could  lay  a  reasonable 
tax  for  church  purposes:  Van  Schaack,  Laws  of  N.  Y.,  I,  19  (1693);  some 
modifications  in  number  of  vestrymen  and  in  other  details  were  made  by 
subsequent  acts:  Ib.,  I,  64  (1704),  267,  etc. 


110     The  Township  in  the  Middle  and  Southern  Colonies. 

IV. — THE  TOWN  OF  THE  NEW  YORK  PROVINCE  LAWS. 

The  Duke's  code  remained  in  force  until  some  time  after 
the  establishment  of  the  royal  government.1  There  was  no 
interruption  in  the  continuity  of  local  institutions.  On  the 
contrary,  immediately  after  the  revolutionary  period,  the  exist- 
ing charters,  patents,  and  privileges  of  all  cities,  manors,  and 
towns  were  expressly  confirmed ; 2  and  from  these  beginnings 
was  ultimately  developed  the  admirable  system  of  local  govern- 
ment which  New  York  still  possesses. 

By  a  statute  of  1691  it  was  enacted  that,  since  the  respective 
towns  within  the  province  "  have  distinct  ways  in  their 
improvements  of  tillage  and  pasturage,"  the  freeholders  of 
each  should  be  authorized  to  hold  meetings  for  the  framing 
of  "prudential  orders  and  rules"  relating  to  these  matters. 
At  the  same  time  it  was  provided  that  three  surveyors  of  fences 
and  highways  should  be  elected  in  each  town.3 

In  the  law  just  cited  only  towns  are  specifically  mentioned  ; 
but  as  a  rule  manors,  precincts,  districts,  and  towns,  for  the 
purposes  of  local  government,  are  treated  as  co-ordinate  bodies, 
with  substantially  the  same  offices  and  powers,4  though  occa- 
sionally the  town  appears  as  a  superior  organization.5 

1  Probably  until  1 691 :  O'Callaghan.  Introduction  to  Journals  of  the  Legielatfoe 
Council  of  N.  Y.,  I,  p.  V. 

2  Act  of  May  6,  1691 :  Van  Schaack,  Laws  of  New  York,  I,  2-3.     The  com- 
pilation of  Van  Schaack,  2  vols.  fol.,  New  York,  1774,  is  my  principal  source 
for  the  institutions  of  the  Province  during  the  eighteentli  century.    For  the 
loan  of  a  copy  of  this  scarce  book  I  am  indebted  to  the  courtesy  of  Mr.  S.  T. 
Viele  of  Buffalo,  N.  Y. 

3  Van  Schaack,  Laws  of  N.  Y.,  I,  3-4.    Fence  viewers,  however,  Avere  subse- 
quently made  distinct  officers  of  every  town,  manor,  and  precinct:  Jb.,  I,  290. 

4  Thus  Dutehess  county  was  divided  into  precincts  with  the  same  powers 
as  towns:  Van  Schaack,  Laws  of  N,  Y.,  I,  190-1.     Ulster  county  had  both 
precincts  and  towns  with  equal  powers :  lb.,  II,  468,  570,  692.     There  were 
also  precincts  in  Orange  county :  Ib.,  II,  448.    Albany  and  Tryon  counties 
were  divided  into  districts  with  the  usual  powers  of  towns:  Ib.,  II.,  686. 

6  Cumberland  county,  for  instance,  had  both  towns  and  districts,  but  the 
latter  were  to  be  retained  only  until  "erected  into  townships  by  letters 


The  Town  of  the  New  York  Province  Laws.         Ill 

On  the  nineteenth  day  of  June,  1703,  a  law  was  passed 
which  marks  an  important  epoch  in  the  history  of  English 
institutions;  for  by  it  was  created  the  essential  feature  of  that 
system  of  representative  township-county  government  which 
now  constitutes  the  highest  type  of  loc:il  organization  in  the 
United  States:  a  vigorous  town  government  possessing  all 
necessary  means  of  self-help,  co-operating  with,  and  in  some 
measure  dependent  upon,  a  strong  county  administration. 

The  act  provides  that  each  town  shall  annually  elect  from 
the  freeholders  therein  two  assessors,  one  collector,  and  a 
supervisor;  and  the  latter  is  significantly  described  as  one  "to 
compute,  ascertain,  examine,  oversee,  and  allow  the  contingent, 
publick,  and  necessary  charges  of  each  county  " — the  function 
which  everywhere  still  constitutes  the  chief  business  of  the 
county  board.1 

The  supervisors  are  required  to  hold  annual  and  special 
meetings  at  the  county  town  for  the  discharge  of  their  fiscal 
duties ;  but  in  their  respective  townships  they  have  few  inde- 
pendent functions  to  perform,  except  that  each,  with  the  col- 
lector and  assessors,  is  responsible  for  the  collection  of  the  quit 
rents  for  which  the  inhabitants  are  liable.2 

The  town-meeting,  as  we  have  seen,  is  a  folkmoot  with 
limited  legislative  powers;  and  it  is  authorized  to  levy  taxes 
for  the  construction  of  pounds  and  public  buildings.3 


patent  under  the  great  seal"  of  the  colony:  Van  Sehaack,  Laws  of  N.  Y.,  II, 
701.  So,  likewise,  the  various  manors  are  usually  recognized  as  equal  to 
towns  as  civil  bodies;  but  when  supervisors  were  first  created,  manors  were 
not  given  equal  representation  on  the  county  board:  Ib.,  I,  54. 

1  Only  towns  were  by  this  act  allowed  to  have  each  a  supervisor;  while  the 
freeholders  of  every  manor,  liberty,  jurisdiction,  precinct,  and  out-planta- 
tion could  join  their  votes  witli  those  of  the  next  adjacent  town  of  the  county 
for  choice  of  supervisor;  but  the  munor  of  Rensselaerswyck  was  to  have  one 
of  its  own :  Van  Sehaack,  Laws  of  N.  Y.,  I,  54.    Subsequently,  however, 
nearly  all  inequalities  were  removed  by  special  acts  relating  to  particular 
places. 

2  Van  Sehaack,  Laws  of  N.  Y.,  I,  56.     Later,  special  officers  for  collection 
of  the  quit  rents  might  be  elected :  76.,  404. 

3  Van  Sehaack,  IMWS  of  N.  Y,,  I,  36,  291. 


112     The  Township  in  the  Middle  and  Southern  Colonies. 

The  township  officers  are  all  elected  by  the  freeholders 
and  are  nearly  the  same  as  are  still  chosen  in  town-meetings 
throughout  the  West.  Besides  the  supervisor,  assessors,  col- 
lectors, surveyors  of  highways,  and  fence  viewers,  already 
mentioned ;  there  are  also  a  clerk,  overseers  of  the  poor,  con- 
stables, pound  masters,  and  officers  to  look  after  the  estates  of 
persons  dying  intestate.1  But  several  of  these  functionaries 
are  not  instituted  for  all  towns  or  other  districts  by  general 
law.2  The  provincial  legislation  of  New  York  is  peculiar  in 
this  regard  that,  in  every  branch  of  local  administration,  special 
statutes  for  particular  places  are  enacted,  so  that  it  is  sometimes 
nearly  impossible  to  say  whether  a  given  office  or  function 
exists  in  all  cases. 

Such  was  still  the  general  character  of  township  organization 
in  1777  ;  and  the  state  constitution  of  that  year  provides  that 
all  town  officers  hitherto  chosen  by  the  people,  "  shall  always 
continue  to  be  so  eligible,  in  the  manner  directed  by  the  present 
or  future  acts  of  the  legislature." 3 

V.— THE  MANOR. 

The  manorial  system,  as  we  have  seen,  flourished  in  New 
York  under  the  Dutch  as  well  as  under  the  English  rule. 
On  the  other  hand  it  met  with  little  favor  among  the  New 
England  colonists,  who  preferred  compact  village  life  and 


1  Clerks,  overseers  of  the  poor,  and  persons  to  look  after  estates  are  author- 
ized for  all  towns:  Van  Schaack,  Laws  of  N.  Y.,  I,  14-15,  224-5;  II,  756, 
576. 

2  Every  town,  manor,  district,  or  precinct  probably  had  one  or  more  con- 
stables, but  I  do  not  find  it  so  stated,  except  by  implication :  Van  Schaack, 
Laws  o/N,  Y.,  I,  246,  359,  321 ;  II,  689,  762.     Constables  were  appointed  by 
the  sessions  in  Dutchess  and  Orange  counties:  Ib.,  I,  246.     In  Albany  and 
Tryon  counties  the  sessions  could  increase  the  number :  Ib.,  II,  690.     Over- 
seers of  chimneys  are  authorized  for  the  manor  of  Kensselaerswyck :  Ib.,  II, 
569.     So  also  in  Schenectady,  Albany  county  :  Ib.,  I,  144. 

3Foore,  Charters,  II,  1337. 


The  Manor.  113 

small  otates  to  the  vast  plantations  and  isolated  homes! •  ;:•!- 
so  prevalent  in  the  middle  and  southern  provinces.  The 
Council  for  New  England,  however,  under  the  powers  granted 
them  in  the  charter  of  1620,  resolved  to  divide  the  country  into 
"counties,  baronies,  hundreds,  and  the  like."  The  baronies 
were  to  be  governed  by  their  stewards  and  other  inferior 
ministers,  who  were  to  have  assigned  them  the  power  of  high 
and  low  justice.  Furthermore  the  lords  of  counties  were  to 
have  power  to  subdivide  their  districts  into  manors  and  lord- 
ships in  such  way  "as  to  them  should  seem  best  giving  to  the 
lords  thereof  power  of  keeping  of  Courts,  and  leets,  as  is  here 
used  in  England,  for  the  determining  of  petty  matters,  arising 
between  the  lords,  and  the  tenants,  or  any  other." l  This 
scheme  of  government,  so  far  as  the  proposed  manors  were 
concerned,  came  to  nothing. 

The  power  to  erect  manors  with  courts  baron  and  view  of 
fran  kpledge  was  likewise  bestowed  upon  the  proprietary  of 
Pennsylvania  by  the  charter  of  1681  ;2  and  under  this  grant, 
it  is  probable  that  manors  exercising  jurisdiction  according  to 
the  English  model  were  actually  set  up.3 

By  the  first  charter  of  Carolina,  1663,  power  is  likewise 
conferred  upon  the  proprietors  to  erect  manors  with  courts 
leet,  courts  baron,  and  view  of  frankpledge.4  And  again  in  the 
Fundamental  Constitutions  of  1669 — that  marvelous  instru- 
ment drafted  by  Locke  for  Shaflesbury — provision  is  made  for 


1  See  the  Discovery  and  Plantation  of  New  England  in  2  Mass.  Hist.  Coll.  IX, 
pp.  22-3.  Cf.  History  of  Grants  under  the  Great  Council  for  New  England,  by 
Samuel  F.  Haven  in  Lowell  Inst.  Lectures,  144. 

*  Poore,  Charters,  II,  1514. 

'See  Gould,  Local  Govt. in  Pa.,  in  Pennsylvania  Magazine,  VI,  162,  note  4. 
Various  large  estates  in  Pennsylvania  were  styled  "manors; "  but  whether 
they  possessed  jurisdiction  I  am  unable  to  say.  For  example  Gilbert's  or 
Douglas'  manor  formerly  in  Philadelphia,  and  now  in  Montgomery,  County : 
Pa.  Magazine,  III,  453;  Pa.  Col.  Rec.,  V,  235;  also  the  manor  of  Springets- 
bury,  north  of  Philadelphia:  Pa.  Col.  Rec.,  XV,  541. 

4  Poore,  Charters,  II,  1388.   A  similar  provision  is  contained  in  the  supple- 
mentary charter  of  1665 :  Ib.,  1396. 
8 


114    The  Township  in  the  Middle  and  Southern  Colonies. 

the  creation  of  manors.  The  whole  province  is  erected  into 
a  palatinate  "as  large  and  ample  as  the  county  palatine  of 
Durham,"  with  the  senior  proprietor  as  count.  The  entire 
jurisdiction  is  to  be  divided  into  counties ;  and  every  county 
into  eight  seignories,  eight  baronies,  and  twenty-four  colonies, 
the  latter  arranged  in  four  precincts.  Each  seignory,  barony, 
and  colony  respectively  is  to  comprise  twelve  thousand  acres. 
The  seignories  are  to  belong  to  the  proprietors,  the  baronies 
to  the  inferior  nobility,  and  the  colonies  to  the  common  free- 
men. For  each  county  the  proprietors  are  to  appoint  one 
landgrave  and  two  caziques,  who  are  to  constitute  an  hereditary 
nobility.  To  each  langrave  four  baronies,  and  to  each  cazique 
two  baronies,  are  to  be  assigned.  Manors  also  may  be  erected, 
each  of  which  shall  contain  not  less  than  three  thousand  acres. 
The  lord  of  every  seignory,  barony,  or  manor  may  have  a  court 
leet  with  criminal  and  civil  jurisdiction;  and  very  considerate 
provision  is  likewise  made  for  a  class  of  praedial  serfs  or  "  leet- 
rnen,"  whose  status  shall  be  hereditary,  though  just  how  this 
feature  of  the  constitution  is  to  be  realized  does  not  clearly 
appear.  But  we  have  here  to  do,  not  with  a  living  organism, 
but  with  the  impracticable  ideal  of  a  philosopher.  "  For  all 
practical  purposes  Locke's  constitution,  with  its  elaborate 
details  and  minute  provisions,  might  as  well  have  never  existed. 
In  dealing  with  it,  we  are  discussing,  not  an  integral  portion 
of  the  history  of  Carolina,  but  rather  a  peculiar  episode  in  the 
history  of  political  thought."1 

But  it  is  in  Maryland  that  manorial  institutions  attained 
their  fullest  development  in  this  country.  The  charter  of  1632 
granted  to  Lord  Baltimore  and  his  heirs  license  "  to  erect  any 
parcels  of  land  within  the  province  aforesaid,  into  manors,  and 
in  every  of  those  manors,  to  have  and  to  hold  a  court  baron, 
and  all  things  which  to  a  court  baron  do  belong ;  and  to  have 


1  Doyle,  English  Colonies,  I,  335;  Bancroft,  Hist,  of  U.  S.,  I,  412  if.;  Hil- 
dreth,  Hist,  of  U.  /S'.,  II,  30  ff. ;  Poore,  Charters,  II,  1397 ;  North  Carolina  Col. 
Records,  I,  187  ff.;  Hawks,  Hist,  of  N.  C.,  II,  182  ff. 


The  Manor.  115 

and  to  keep  view  of  frankpledge,  for  the  conservation  of  the 
JM-MCI-  and  bettor  government  of  those  parts,  by  themselves  and 
their  stewards,"  or  others  properly  deputed.1  In  consequence 
of  this  license,  in  1636  the  proprietary  included  in  his  "con- 
ditions of  plantations"  addressed  to  Governor  Leonard  Cal- 
vert,  the  following  order  : — 

"And  We  Doe  further  will  and  authorize  you  that  every  2000 
acres,  and  every  3000  acres,  and  every  1000  acres  of  Land  So 
to  be  passed  or  Granted  as  aforesd  unto  any  Adventurer  or  Ad- 
venturors,  be  erected  and  created  into  a  Manor  to  be  called  by 
such  name  as  the  Adventurer  or  Adventurers  shall  desire, 
And  We  Doe  hereby  further  authorize  you,  that  you  cause  to 
be  Granted  unto  every  of  the  Said  Adventurers  within  every 
of  their  Said  Manors  ...  a  Court  Baron  and  Court  Leet.  .  .  . 
And  to  the  end  you  may  better  be  Informed  in  what  manner 
to  pass  every  Such  Grant,  Court  and  Courts  as  aforesaid, 
according  to  our  Intention,  We  have  Sent  unto  you  under 
our  hand  and  Seal,  a  draught  of  a  Grant  of  a  Mailer  Court 
Leet,  and  Court  Baron,  and  a  Grant  of  a  ffreehold,  wch  presi- 
dents you  are  to  follow  changing  only  the  Adventurers  names, 
the  Rents  and  Conditions  of  Plantacon  as  the  Case  Shall 
require." 2 

These  instructions  were  repeated,  with  various  modifications, 
from  time  to  time.3  For  example,  in  1648,  the  proprietary 
required  that : 

"  The  sixth  part  of  the  Land  of  every  Manner  which  shall 
be  ( J ranted  by  Virtue  of  the  said  Conditions  [transporting 
into  the  province  twenty  persons  in  any  one  year]  shall  be  for 
ever  after  Accompted  and  known  for  the  demesnes  of  Every 
of  the  said  Manners  respectively  which  demesnes  shall  be  set 


^ee  translation  of  charter  in  Bozman,  IT,  19;  or  original  I.atin  version 
in  Poore's  Charters,  1,  816;  and  Archives  of  Aid.,  Council  Proceedings,  p.  11. 

1 Archives  of  Md.,  Council  Proceedings,  p.  48. 

'See  for  example  Archives  of  Md.,  Council  Proceedings,  pp.  100,  224,  231, 
233,  458. 


116     The  Township  in  the  Middle  and  Southern  Colonies. 

forth  in  some  one  Convenient  place  altogether  within  every 
such  manner  by  distinct  meetes  and  Bounds  for  that  Purpose, 
and  shall  never  be  Alienated  separated  or  leased  from  the 
Royalties  and  Lord  of  Lords  of  the  said  Respective  Manners 
.  .  .  for  the  time  being  for  any  number  of  years  or  other  term 
exceeding  seven  years." l 

Again,  in  1651,  certain  Indians  belonging  to  six  different 
tribes  desiring  that  a  tract  of  land  called  Chaptico,  comprising 
eight  or  ten  thousand  acres,  should  be  set  apart  as  a  joint 
reservation  for  them,  the  proprietary  resolved  upon  the  curi- 
ous experiment  of  erecting  a  manor  for  their  benefit.  It  was 
to  be  styled  Colverton  (Calverton)  manor,  and  have  courts 
leet  and  baron  to  be  held  by  the  lord's  steward.  One  thou- 
sand acres  were  to  be  set  apart  as  lord's  demesnes ;  the  remain- 
der was  to  be  parcelled  out  by  the  steward  to  such  Indians  as 
should  desire  the  same,  to  be  held  by  copy  of  court  roll  for 
one,  two,  or  three  lives.  No  copyholder  was  to  receive  more 
than  fifty  acres,  except  the  "  werrowance  or  chief  head  of  every 
of  the  said  six  nations,"  who  was  to  have  not  to  exceed  two 
hundred  acres.2  This  expedient,  by  which  his  lordship  hoped 
to  bring  the  Indians  not  only  to  "civility  but  also  to  Chris- 
tianity," will  remind  the  reader  of  the  Indian  tithings  of  Ply- 
mouth. 

Many  manors  were  erected  in  Maryland  ;  and  their  organi- 
zation seems  to  have  corresponded,  even  in  minor  details,  to 
the  contemporary  manorial  constitution  in  the  mother  country. 
They  were  self-governing  local  bodies,  the  free  tenants  being 
still  judges,  jurors,  and  affeerers  for  determining  their  own 
causes.3  Indeed  the  manorial  organization  of  Maryland,  sup- 
plemented by  that  of  the  hundred — which  also  during  the 


1  Archives  of  Md.,  Council  Proceedings,  224. 

2 'Archives  of  Md.,  Assembly  Proceedings,  329-31. 

3  For  details  see  the  valuable  monograph  of  Mr.  J.  Johnson  entitled  :  Old 
Maryland  Manors,  in  J.  H.  U.  Studies,  I,  No.  VII,  to  which  is  appended 
the  "  Records  of  the  court  leet  and  court  baron  of  St.  Clement's  manor, 
1659-1672."  Cf.  Browne,  Maryland,  37,  64,  176-8. 


The  Virginia  Parish.  117 

early  period  attained  a  singular  development  in  this  province,1 
supplied  a  partial  equivalent  for  the  local  self-government 
enjoyed  by  the  New  England  colonies. 

VI. — THE  VIRGINIA  PARISH. 
(a). — Genesis  of  the  Organization. 

When  the  colonization  of  America  began  in  the  seventeenth 
century,  the  primary  local  body  in  the  mother  country  was 
styled  the  parish.  This  was  a  two-fold  organization :  eccle- 
siastical on  its  one  side;  temporal  on  the  other.  But  the 
ecclesiastical  name,  Trapoucia,  neighborhood,  had  superseded 
in  common  use  the  town  or  tun  of  more  ancient  times. 
Furthermore,  during  the  Stuart  reigns,  the  parish,  like  the 
Iwrough,  was  fast  losing  its  original  democratic  character : 
falling,  in  many  places,  into  the  hands  of  a  self-perpetuating 
board — the  select  vestry ;  while  in  others  the  people,  in  open 
meeting  assembled,  still  exercised  supreme  control  of  their 
own  affairs.  If  we  now  turn  to  the  new  world  we  observe 
a  most  interesting  process  of  institutional  "selection"  or  adap- 
tation under  influence  of  diverse  social  or  physical  environ- 
ment. In  New  England  the  temporal  character  of  the  local 
organization  overshadows  the  spiritual ;  town  or  township 
supersedes  parish  as  its  popular  and  legal  designation,  the 
use  of  the  latter  name  being  almost  entirely  restricted  to  the 
community  as  a  body  of  fellow  worshippers.  In  New  York 
there  is  a  nearer  approximation  to  the  contemporary  English 
model.  The  dual  character  of  the  primary  body  is  clearly 
recognized  in  the  Duke's  Laws :  civilly  it  is  a  town ;  ecclesi- 
astically, a  parish.  The  duties  of  constable  or  overseers  as 
officers  of  the  town  are  clearly  distinguished  from  those  of 
constable,  overseers,  or  churchwardens,  as  officers  of  the  parish. 
But  in  both  aspects  they  are  responsible  functionaries  periodi- 
cally chosen  by  the  people  or  their  agents. 

1  See  below  Chap.  V,  IV,  (6). 


118     The  Township  in  the  Middle  and  Southern  Colonies. 

But  it  is  in  Virginia,  which  in  many  respects  may  be 
regarded  as  the  type  of  the  southern  colonies,  that  we  find 
the  most  complete  reproduction  of  the  contemporary  English 
parish.  Following  is  a  brief  outline  of  its  history  and 
organization.1 

The  word  parish  as  the  name  of  a  representative  division 
first  appears  in  Hening's  Statutes  under  date  of  1631-2,  when 
the  upper  and  lower  parishes  of  "  Elizabeth  Citty  "  are  men- 
tioned as  returning  burgesses  to  the  assembly.2  But  the  earlier 
"  plantations  "  and  "  hundreds  " — as  the  first  local  districts  in 
Virginia  were  called — were  doubtless  de  facto  parishes.  Thus 
the  very  first  clause  of  the  enactments  of  the  assembly  of  1 623—4 
provides:  "That  there  shall  be  in  every  plantation,  where  the 
people  use  to  meete  for  the  worship  of  God,  a  house  or  roome 
sequestered  for  that  purpose,  and  not  to  be  for  any  temporal 
use  whatsoever,  and  a  place  empaled  in,  sequestered  only  to 
the  buryal  of  the  dead."3  And. later  in  the  same  enactments 
the  word  "  parish  "  seems  to  be  used  instead  of  "  plantation." 
It  is  required  that  every  "  parish "  shall  have  a  public 
granary  to  which  every  planter  of  eighteen  years  and  upwards 
shall  bring  a  bushel  of  corn  to  be  disposed  of  "  for  the  pub- 
lique  use  of  the  parish  by  the  major  part  of  the  freemen ; " 
and  "  three  sufficient  men  of  every  parish  shall  be  sworne  to 
see  that  every  man  shall  plant  and  tende  sufficient  of  come 
for  his  family,"  those  failing  therein  to  be  reported  to  the 
governor  and  council.4  Churchwardens  of  plantations5  and 
hundreds6  are  mentioned;  and  by  the  celebrated  assembly  of 


1 J  have  only  attempted  a  summary.  For  more  detailed  accounts  see  the 
monographs  of  Dr.  Channing  and  Mr.  Ingle  in  the  second  and  third  series 
of  the  J.  H.  U.  Studies. 

"Hening,  I,  154. 

3Hening,  I,  122. 

*Hening,  1,125-6. 

5Hening,  I,  126  (1623-4). 

6Hening,  I,  145  note  (1627).  Cf.  Dr.  Channing,  Tovm,  and  County  Gov- 
ernment, 43. 


The  Virginia  Parish.  119 

K!l!l  the  minister  and  churchwardens  are  required  to  make 
presentment  of  "all  ungodly  disorders."1  Thus  it  would 
seem  that  the  earliest  local  divisions  of  Virginia  were  dual 
organizations  and  denominated  indifferently  plantation,  hun- 
dred, or  parish.  Subsequently  many  of  the  counties  were 
regularly  subdivided  into  parishes.2 


(b).—The  Vestry. 

Chief  authority  in  the  parish  was  exercised  by  the  vestry, 
a  body  composed  usually  of  twelve*  of  the  "  most  sufficient 
and  selected  men "  in  the  community.4  In  the  early  period 
the  vestrymen,  like  the  analogous  selectmen  of  the  New 
England  towns,  were  chosen  "  by  the  major  part "  of  the 
parishioners;'  but  later  they  obtained  the  power  of  filling 

lCol.  Rec.  of  Va.,  27.  Chalmers,  Political  Annals,  I,  50,  says:  "The  eleven 
hundreds,  into  which  the  colony  had  been  divided,  were  now — May,  1620 — 
erected  into  so  many  parishes." 

2  So  in  1655  and  again  in  1657-8  the  assembly  ordered  that  all  counties, 
not  yet  laid  out  in  parishes  should  be  so  subdivided :  Hening,  I,  400,  478. 
But  when  the  population  was  small,  an  entire  county  sometimes  constituted 
but  a  single  parish.  Thus,  in  1642-3  Northhampton  county,  on  account  of 
its  great  extent,  and  the  "inconvenience  for  the  inhabitants  to  be  all  of  one 
parish,"  was  divided  into  two  parishes:  Hening,  I,  249.  In  the  same  year 
Upper  Norfolk  county  was  divided  into  three  parishes :  76.,  I,  250 ;  also 
Isle  of  Wight  county,  into  two :  76.,  I,  278.  For  other  examples  see  Ib., 

IV,  366,  367,  368.     In  1680  there  were  20  counties;  of  these  11  were  each 
divided  into  two  parishes;  and  2  constituted  each  but  one:  see  the  certified 
list  in  Colonial  Records  of  Va.,  103-4.     Even  in   1781   Thomas  Jefferson 
writes :  "  The  state,  by  another  division,  is  formed  into  parishes,  many  of 
which  are  commensurate  with  the  counties;  but  sometimes  a  county  com- 
prehends more  than  one  parish,  and  sometimes  a  parish  more  than  one 
county."     Note*  on  Va.,  148.    At  this  time  there  were  74  counties  in  the 
state.     See  also  An  Account  of  Va.  (en.  1696-8)  in  1  Mass.  Hist.  Coll., 

V,  162. 

5  Hening,  II,  25  (1660-1).  44  (1661-2) ;  Beverley,  211 ;  An  Account  of  Fa. 
in  1  Mass.  Hist.  Coll.,  V,  162. 
*  Hening,  I,  240. 
5  Hening,  I,  290(1644-5). 


1 20    The  Township  in  the  Middle  and  Southern  Colonies. 

vacancies  in  their  own  number,  and  thus  became  a  close 
corporation  on  the  English  model.1 

Among  the  principal  duties  of  the  vestry  were  the  apportion- 
ment of  the  parish  rate;2  the  appointment  of  churchwardens;3 
the  presentment  of  ministers  for  induction  by  the  governor ; 4 
and  the  providing  of  a  "glebe"  and  a  "mansion  house"  for 
the  parson  at  the  expense  of  the  parish.5  The  vestry  and 
churchwardens  discharged  also  the  functions  of  overseers  of  the 
poor ; 6  and  it  was  their  duty  to  provide  for  the  "  procession- 
ing" of  private  lands.  For  the  latter  purpose  they  were  re- 
quired, every  four  years,  under  direction  of  the  county  court, 
to  divide  the  parish  "  into  soe  many  precincts  as  they  shall 
think  necessary  for  the  neighbors  to  joyne  and  see  each  others 
markes  renewed ; " 7  and  to  lead  the  "  procession,"  in  each 
precinct  they  appointed  two  "  intelligent  honest  freeholders." f 
In  this  primitive  expedient  for  recording  boundaries  of  private 
estates,  we  recognize  at  once,  in  a  new  form,  the  familiar 
"  perambulations  "  of  both  Old  and  New  England. 

As  elsewhere  the  minister  was  in  dignity  the  first  officer 


1  In  1661-2  vacancies  were  to  be  filled  by  the  minister  and  vestry :  Hen- 
ing,  II,  45.  According  to  Bacon's  Laws  vestrymen  were  to  be  chosen  by 
the  majority  of  the  "freeholders  and  freemen"  every  three  years:  Hening, 
II,  356.  In  1708  the  vestry  of  Charles  parish  in  York  county  were  elected 
by  the  freeholders  and  householders  "payin  Seatt  and  Lett  in  the  parish." 
See  Palmer,  Gal.  of  Va.  State  Papers,  I,  122.  But  in  1781  vacancies  were 
filled  by  co-optation:  Jefferson,  Notes  on  Va.,  183;  An  Account  of  Va.  in  1 
Mass.  Hist.  Coll.,  V,  162. 
.  2  Hening,  IV,  205. 

3Beverley,  211 ;  Hening,  1, 155,  180,  240.  "The  vestry  met  at  least  twice 
a  year  at  the  church,  vestry-house,  or  convenient  private  dwelling.  At  the 
Easter  meeting  church-wardens  were  appointed  and  the  accounts  of  the 
preceding  year  examined.  The  meeting  in  the  fall  was  for  the  purpose  of 
apportioning  the  annual  levy."  Ingle,  63. 

4  Hening,  VI,  90;  Beverley,  211. 

5  Hening,  IV,  206 ;  III,  152 ;  II,  30,  45,  etc.    The  glebe  comprised  usually, 
at  least  200  acres.     See  Ingle,  32-5,  for  an  interesting  account. 

6 Hening,  II,  267;  IV,  210-12;  VI,  519,  etc.;  Ingle,  64,  65. 

7  Hening,  II,  102. 

8  Hening,  V,  427. 


The  Virginia  Parish.  121 

of  the  parish.  It  was  his  privilege  to  preside  in  all  vestry 
meetings; '  and,  besides  his  ordinary  spiritual  duties,  he  could 
join  j>ersons  in  marriage,  and  was  required  by  law,  sometimes 
co-ordinately  with  the  churchwardens,  reader,  or  clerk  of  the 
parish  or  vestry,  to  keep  a  register  of  "  burialls,  christenings, 
and  marriages." 2  The  minister's  salary,  like  all  public  charges, 
was  paid  in  tobacco.  In  1696  it  was  fixed  by  the  legislature 
at  sixteen  thousand  pounds  a  year  "besides  their  lawful  per- 
quisites," and  this  law  remained  in  force  until  the  Revolu- 
tion.3 But  in  practice  the  vestry  "hired"4  their  minister 
from  year  to  year,  reducing  his  salary  to  a  lower  sum ;  and 
this  was  a  source  of  some  dissatisfaction.  Beverley,  writing  in 
the  beginning  of  the  eighteenth  century,  says :  "  The  only 
thing  I  have  heard  the  clergy  complain  of  there,  is  what  they 
call  precariousness  in  their  livings  ;  that  is,  that  they  have  not 
inductions  generally,  and  therefore  are  not  entitled  to  a  free- 
hold; but  are  liable,  without  trial  or  crime  alledged,  to  be  put 
out  by  the  vestry.  And  though  some  have  prevailed  with 
their  vestries,  to  present  them  for  induction,  yet  the  greater 
number  of  the  ministers  have  no  induction,  but  are  enter- 
tained by  agreement  with  their  vestries,  yet  are  they  very 
rarely  turned  out  without  some  great  provocation,  and  then, 


1  Beverley,  211. 

1  Hening,  1, 155, 158, 180, 433.  In  1659-60  it  was  enacted  that  a  register 
should  be  appointed  by  the  parish,  who  should  report  to  the  clerk  of  the 
county  court:  Hening,  I,  542;  and  in  1661-2  the  duty  was  imposed  upon 
the  "  minister  or  reader  of  every  parish  :  "  Hening,  II,  54.  Cf.  Ib.  Ill,  153 ; 
IV,  42-5 ;  and  particularly  the  dispute  in  Manican  Town  Parish  in  Palmer, 
Gal.  of  Va.  State  Papers,  I,  114-16,  where  the  minister  required  the  "Reg- 
ister of  Christenings  to  be  delivered  up  to  him  out  of  ye  Clerk  of  the  Ves- 
try's hands,  &  in  case  he  refused  to  do  it,  he  would  excommunicate  him." 

3 Hening,  III,  152  and  note. 

4"The  power  of  presenting  ministers  is  in  them,  by  the  law  of  that  country ; 
but  the  law  in  this  point  is  little  taken  notice  of,  by  reason  of  a  contrary 
custom  of  making  annual  agreements  with  the  ministers,  which  they  call 
by  a  coarse  enough  name,  hiring  of  the  minister,  so  that  they  seldom  present 
any  ministers,  that  they  may  by  that  means  keep  them  in  more  subjection 
and  dependence  " :  An  Account  of  Va.  in  1  Mass.  Hist.  Coll.,  V,  162. 


1 22     The  Township  in  the  Middle  and  Southern  Colonies. 

if  they  have  not  been  abominably  scandalous,  they  immedi- 
ately get  other  parishes,  for  there  is  no  benefice  whatsoever  in 
that  country  that  remains  without  a  minister  if  they  can  get 
one,  and  no  qualified  minister  ever  yet  returned  from  that 
country  for  want  of  preferment."  *  On  the  other  hand  con- 
siderable exasperation  was  caused  by  the  unwise  policy  of  the 
government  in  trying  to  force  its  own  nominees  into  livings 
against  the  will  of  the  vestry;  and,  in  the  two-fold  struggle 
on  the  part  of  the  vestries  for  the  right  to  choose  and  pay  their 
own  ministers,  a  spirit  of  resistance  to  aggression  and  a  feeling 
of  self-reliance  were  fostered  which  were  of  infinite  value  when 
the  hour  of  revolution  came. 

On  the  whole,  the  Virginia  vestries,  though  aristocratic  in 
form,  seem  to  have  administered  the  local  affairs  with  wisdom 
and  moderation ;  and,  though  not  chosen  by  the  parishioners, 
they  appear  to  have  been  sustained  by  popular  sentiment 
which  finds  expression  in  the  words  of  Thomas  Jefferson : 
"These  —  the  vestrymen  —  are  usually  the  most  discreet 
farmers,  so  distributed  through  the  parish,  that  every  part 
of  it  may  be  under  the  immediate  eye  of  some  one  of  them. 
They  are  well  acquainted  with  the  details  and  economy  of 
private  life,  and  they  find  sufficient  inducements  to  execute 
their  charge  well,  in  their  philanthropy,  in  the  approbation  of 
their  neighbors,  and  the  distinction  which  that  gives  them."2 

(c) — Officers  of  the  Parish. 

The  two  churchwardens  were  the  executive  agents  of  the 
vestry,  chosen  annually  from  their  own  number  by  that  body; 
but  in  case  of  failure  to  appoint  on  the  part  of  the  vestry,  they 


1Beverley,  213.  An  interesting  illustration  of  bargaining  for  the  minis- 
ter's salary  may  be  found  in  the  complaint  of  the  vestry  of  St.  John's  parish 
in  "Kinge  and  Queene  Countye"  against  Rev.  Mr.  Monro:  Palmer,  Cal.  of 
Va.  Slate  Papers,  I,  49.  See  also  the  dispute  as  to  whether  a  minister  not 
"  inducted  "  could  claim  a  "  peculiar  right "  or  title  to  a  glebe :  Ib.,  pp.  49-50. 

2  Notes  on  Va.,  183;  see  also  Lodge,  Short  History,  59. 


The  Virginia  Parish.  123 

were  nominated  l>y  the  county  court,  sometimes  together  with 
"  sidesmen"  or  assistants.1  .The  churchwardens  were  the  fi  <-;il 
officers  of  the  parish,  collecting2  and  disbursing  the  levies  for 
the  support  of  the  minister  and  the  church.3  Besides  this  and 
various  other  duties,  they  were  here  as  elsewhere,  expected  to 
watch  over  the  morals  of  the  community;  being  required 
to  make  presentments  to  the  county  court  for  drunkenness, 
swearing,  fornication,  and  other  offences;  and  this  function 
they  exercised,  in  some  cases,  co-ordinately  with  the  grand 

jury.4 

Other  officers  of  the  parish  were  the  sexton  and  the  clerk 
who  were  appointed  by  the  incumbent  or  by  the  vestry.8 
"  The  duties  of  the  clerk  who  assisted  the  minister,"  says  Mr. 
Ingle,  "were  multifarious.  In  the  absence  of  the  rector  he 
could  perform  all  the  offices  of  the  church,  except  matrimony 
and  the  two  sacraments,  he  sometimes  published  banns,  cate- 
chised the  children  and  ignorant  persons,  kept  a  record  of  all 
births,  marriages,  and  deaths,  sometimes  acted  as  clerk  of  the 
vestry  and  collector  of  the  parish  levies,  and  saw  that  all  leaves 
and  other  rubbish  were  cleared  away  from  the  church  yard."6 

(<T). — The  Parish  as  a  Unit  of  Self -Government  and 
Representation. 

Thus  it  appears,  from  the  foregoing,  that  numerous  impor- 
tant functions  of  a  civil  township  were  discharged  by  the 
Virginia  parish.  Nevertheless  it  was  overshadowed  by  the 
county  organization  which  was  employed  not  only  for  the 
higher  offices  of  local  self-government,  but  as  the  unit  of 

1  Ingle,  94. 

s  But  special  collectors  were  sometimes  appointed,  or  the  parish  clerk 
might  be  entrusted  with  the  duty. 

8Beverley,  212;  Hening,  I,  160,  185,  241,  etc. 

*Heninp,  IV,  245;  I,  240,  309,  310,  etc.    Cf.  Channing,  49;  Inple,  66-7. 

5  Hening,  I,  241,  226.  Palmer,  Col  of  Fa.  State  Papers,  1, 114-16,  mentions 
a  "  vestry  "  clerk. 

'Local  IntL  of  Fa.:  Studies,  III,  163-4. 


124     The  Township  in  the  Middle  and  Southern  Colonies. 

representation  and  administration  as  well.  However  .it  is 
interesting  to  note  that  even  for  the  latter  purposes  the  parish 
was  actually  used.  Originally,  as  already  shown,  burgesses 
sat  for  parishes  as  well  as  for  plantations  and  hundreds ;  and, 
even  after  the  county  became  the  area  of  representation, 
parishes  were  allowed  to  choose  burgesses  for  special  purposes;1 
but  whether  this  privilege  was  taken  advantage  of  is  uncertain.2 
More  interesting,  however,  from  an  institutional  point  of  view, 
was  the  act  of  1662,  allowing  both  parishes  and  counties  to 
enact  by-laws  for  their  own  government  "  to  be  binding  upon 
them  as  fully  as  any  other  act."3  But  this  arrangement  seems 
to  have  been  unsatisfactory;  so,  in  1679,  it  was  enacted  instead, 
that  "  two  men  should  be  elected  by  the  parishioners  of  each 
parish,  who  should  sit  in  the  county  court  and  have  equal 
votes  with  the  several  justices  in  the  making  by-laws."4 
Whether  this  measure  was  ever  carried  into  effect  may  be 
doubted ;  but  it  is  nevertheless  remarkable  as  an  attempt  to 
establish  in  Virginia  the  ancient  representation  of  the  town- 
ship by  the  "reeve  and  four"  in  the  county  court.5 

VII. — THE  PAEISH  IN  MAEYLAND  AND  THE  CAEOLINAS. 
(a). — The  Maryland  Parish. 

Elsewhere  in  the  Southern  Colonies  the  parish  was  intro- 
duced ;  and,  while  the  Virginia  institution  may  have  served 

1  Thus  in  1642-3  Lynhaven  and  Upper  Norfolk  parishes  were  allowed  to 
choose  burgesses,  probably  for  "  their  particular  occasion,"  as  expressed  in 
an  act  of  Dec.,  1656.    See  Hening,  I,  250,  277,  421,  for  these  three  acts. 

2  Cf.  Channing,  53,  who  cites  these  passages,  apparently  to  prove  that  an 
attempt  was  made  to  substitute  the  parish  for  the  county  as  the  basis  of 
representation ;  but  this  is  scarcely  probable,  though  the  statutes  are  not 
clear. 

3  Hening,  II,  171. 

4  Hening,  11,441. 

5  On  the  ecclesiastical  history  of  Virginia  see  Bishop  Meade's  Old  Churches, 
Ministers,  and  Families  of  Virginia;  and  for  illustrations  of  general  parish 
history,  consult  Slaughter's  Bristol  Parish  and  his  St.  Mark's  Parish. 


The  Parish  in  Maryland  and  the  Carolinas.        126 

as  a  general  model,  there  were  several  interesting  and  impor- 
tant variations  in  constitutional  organism  which  require 
notice. 

In  1 692  the  Protestant  Episcopal  Church  was  first  estab- 
lished by  law  in  Maryland.1  The  act  provides  that  the  jus- 
tices of  each  county  shall  meet  at  the  court  house,  "giving 
notice  to  the  principal  free-holders  to  attend  them";  and  \vhen 
assembled,  they  are  required,  "  with  the  advice  of  said  princi- 
pal free-holders,"  to  divide  the  county  into  parishes  and  cause 
the  same  to  be  laid  out  by  metes  and  bounds.  The  powers 
and  duties  of  the  vestry  and  officers  are  also  defined.2 

The  law  of  1692  was  repealed  in  1696,  but  all  its  essential 
features  were  restored  by  an  act  of  1702,  which  remained  in 
force,  with  slight  modification,  throughout  the  colonial  era.3 
By  this  act  an  annual  tax  of  forty  pounds  of  tobacco  for  the 
support  of  the  minister  is  laid  upon  each  taxable  person  in 
every  parish  ;  but  the  minister  is  required  to  appoint  a  "  clerk 
of  the  parish  church  "  and  pay  him  from  the  proceeds  of  the 
tax  a  salary  of  one  thousand  pounds  of  tobacco  a  year. 

Chief  authority  in  the  parish  is  exercised  by  a  "  select  ves- 
try "  composed  of  six  members  besides  the  incumbent  who  is 
constituted  "principal"  of  the  body.  But  it  is  worthy  of  note 
that  the  vestry  of  Maryland  bears  a  closer  resemblance  to  the 
New  England  selectmen  than  to  the  select  vestry  of  Virginia. 


1  For  a  detailed  treatment  of  the  Maryland  parish  see  Mr.  Ingle's  mono- 
graph, Parish  Institutions  of  Maryland,  J.  II.  U.  Studies,  I,  to  which  are 
appended  extracts  from  the  original  records  of  several  parishes. 

2  Bacon,  Laws  of  Md.,  1692,  c.  II.     Cf.  Browne,  Maryland,  185,  189-91. 
"At  first  the  parishes  were  contained  within  the  limits  of  the  county; 

but  later,  as  the  number  of  counties  and  parishes  increased,  some  parishes 
lay  in  parts  of  two  and  even  three  counties.  The  hundreds  were  not  of 
necessity  integral  parts  of  the  parish,  although  they  were  made  the  basis  of 
the  new  division.  ...  As  population  became  denser,  the  number  of  hun- 
dreds in  the  county,  without  regard  to  parish  bounds,  became  greater,  so 
that  frequently  one  hundred  was  in  two  parishes":  Ingle,  Parish  List,  of 
Md.,  6. 

1  For  this  elaborate  statute  see  Bacon,  Laws  of  Md.,  1702,  c.  I. 


126     The  Township  in  the  Middle  and  Southern  Colonies. 

The  latter  is  a  close  corporation ;  the  former,  a  responsible 
board  periodically  chosen  by  the  assembled  freeholders.1 

The  remaining  officers  are  the  two  churchwardens  and  the 
clerk  or  register  of  the  vestry.  The  churchwardens  are  elected 
annually  by  the  freeholders  and  perform  the  usual  civil  and 
constabular  functions.2  The  vestry  clerk  is  chosen  by  the 
vestry;  and,  in  addition  to  his  ordinary  secretarial  duties,  he 
is  required  to  record  all  births,  marriages,  and  burials  occur- 
ring within  the  parish. 

The  churchwardens  and  vestry  are  expected  to  maintain  the 
fabric  and  see  that  all  parochial  charges  are  paid  ;  and  in  case 
the  revenue  accruing  from  fines,  mulcts,  or  other  sources  are 
not  sufficient  for  the  purpose,  they  may  apply  to  the  county 
court,  which  is  empowered  to  levy  a  tax  therefor  of  not  to 
exceed  ten  pounds  of  tobacco  on  the  poll. 

The  parish  of  Maryland  was  employed  chiefly  as  an  ecclesi- 
astical organization  ;  but  it  was  not  wholly  devoid  of  temporal 
powers.  By  the  vestry  and  churchwardens,  for  example,  to- 
bacco inspectors  were  appointed ;  and  to  them  likewise  were 
entrusted  certain  other  duties  connected  with  the  execution  of 
the  tobacco  laws.3  But  in  this  province  the  Established  Church 


1  On  Easter  Monday  annually  two  vestrymen  retired  and  two  new  mem- 
bers were  elected  in  their  place :  Bacon,  Laws  of  Md.,  1 702,  c.  I,  \  8. 

2  Any  churchwarden,  vestryman,  or  minister  could  impose  the  prescribed 
fines  on  any  person  for  cursing  or  being  drunk  in  his  presence ;  or  in  default 
of  payment  of  the  fine,  commit  the  offender — "  not  being  a  freeholder  or  other 
reputable  person  " — to  the  stocks  for  not  to  exceed  three  hours,  or  cause  him 
to  be  publicly  whipped  by  any  person,  not  lawfully  exempt,  appointed  for 
the  purpose.     But  no  person  for  any  one  offence  was  to  receive  more  than 
thirty-nine  lashes:  Bacon,  Laics  of  Md.,  1723,  c.  XVI.     These  officers  were 
also  given  a  general  censorship  of  morals.     Persons  were  summoned  before 
the  vestry  for  sabbath  breaking,  or  for  adultery ;  or  they  might  receive  pub- 
lic admonition  by  the  minister.     Public  confession  of  moral  delinquencies 
was  sometimes  made  at  the  communion  table :  Ingle,  Parish  Inst.  of  Md., 
20-1. 

3  Bacon,  Laws  of  Md.,  1763,  c.  XVIII.     They  were  authorized  to  arrest 
persons  for  transporting  or  "  running  trash  tobacco  "  out  of  the  province :  Ib., 
1722,  c.  XVI ;  1763,  c.  XVIII. 


The  Parish  in  Maryland  and  (he  Carolina*.        127 

\\:is  weak,  and  the  parish  was  of  comparatively  little  signifi- 
cance as  a  means  of  local  government. 


(6). — The  South  Carolina  Parish. 

The  act  of  1704  for  establishing  the  Church  of  England  in 
South  Carolina  is  very  different  in  many  of  its  provisions 
from  the  law  of  Maryland  passed  two  years  before.1  Berkeley 
county  is  divided  into  six  parishes,  and  the  "parish  of  St. 
Philip's  in  Charlestown  "  is  separately  constituted.  The  ves- 
try consists  of  the  rector  and  nine  vestrymen.  The  latter  and 
the  two  churchwardens,  as  in  Maryland,  are  elected  annually  by 
the  freeholders  on  Easter  Monday.  The  vestry  clerk  is  chosen 
each  year  by  the  vestry  ;  but  the  parish  clerk  and  the  sexton 
are  appointed  by  the  same  body  for  life  or  during,  good  be- 
havior. Moreover  it  is  noteworthy  that  the  rector,  in  the  first 
instance,  is  elected  "  by  the  major  part  of  the  inhabitants  "  of 
the  parish  "  that  are  of  the  religion  of  the  Church  of  England 
.  .  .  ,  and  that  are  settled  freeholders  within  the  same,  or  that 
contribute  to  the  publick  taxes."  Vacancies  are  filled  in  the 
same  manner ;  and  the  incumbent  may  be  removed,  by  the 
ecclesiastical  commissioners  of  the  province,  whenever  they  are 
petitioned  so  to  do  by  a  majority  of  the  vestrymen  and  nine 
other  freeholders.  The  vestry  and  churchwardens  are  author- 
ized to  levy  a  tax  for  the  payment,  of  parish  charges,  and  they 
may  appoint  three  persons  to  make  the  assessment.  Appeal 
from  the  assessment  lies  to  the  provincial  commissioners ;  and 
the  tax  is  collected  by  the  constable  on  a  justice's  warrant. 

By  subsequent  enactments  the  constitution  of  the  parish  was 
modified  or  developed  in  various  ways.  Thus  in  1706 2  the 
number  of  vestrymen  was  reduced  to  seven ;  the  number  of 
parishes  increased  to  ten ;  the  amount  of  the  annual  levy 


1  South  Carolina  Statutes  at  Large,  II,  236  ff.    The  act  is  also  printed  in  N. 
C.  Col.  Etc.,  II,  867-82. 
1  South  Carolina  Statutes  at  Large,  II,  283  ff. 


128     The  Township  in  the  Middle  and  Southern  Colonies. 

restricted  to  one  hundred  pounds ;  the  salary  of  the  minister 
in  ordinary  parishes  fixed  at  fifty  pounds ;  and  the  province 
commissioners  were  authorized  to  receive  charitable  gifts  for 
the  benefit  of  any  parish. 

But  it  should  be  particularly  noted  that  the  South  Carolina 
parish  gradually  became  the  political  and  constitutional  unit. 
Nominally  it  was  a  subdivision  of  the  county.  But  the  county 
seems  to  have  been  little  more  than  a  territorial  designation  ; 
while  the  parish  was  the  centre  of  an  active  and  remarkably 
independent  self-government.  It  was  constituted  the  bas,is  of 
representation  in  the  assembly,  and  the  churchwardens  were 
made  ex  officio  "  managers  "  of  the  elections.1  It  was  also  the 
district  of  the  constable  who  was  nominated  by  the  court  of 
general  sessions ; 2  and  it  was  entrusted  with  the  care  of  the 
poor,  the  overseers  being  appointed  by  the  vestry  and  church- 
wardens/ The  parish  was  also  a  highway  district,  and  had  its 
own  road  commissioners,  either  elected  by  the  freeholders  or 
appointed  by  the  assembly.4  Other  powers  were  bestowed 
upon  particular  parishes  by  special  enactment.  Thus  in  1736 
the  parish  of  St.  Thomas  was  authorized  to  elect  a  treasurer, 
an  usher,  a  schoolmaster,  and  a  clerk.5 

In  the  "up"  or  "  back  "  country  the  parish  system  was  not 
introduced.  There  "districts"  for  the  holding  of  courts  and 
the  appointment  of  judicial  and  peace  officers  were  the  only 
form  of  organization  ;  but  in  the  low  country  along  the  coast, 
the  parish  remained  the  political  unit  until  the  civil  war.6 


1  South  Carolina  Statutes  at  Large,  II,  684-5  (1716). 

2  South  Carolina  Statutes  at  Large,  III,  555. 

3  South  Carolina  Statutes  at  Large,  II,  594-7  ;  IV,  9,  407. 

4  Eamage,  Local  Government  in  South  Carolina,  12 ;  South  Carolina  Statutes  at 
Large.  IV,  9-10,  301,  408;  IX,  49,  144-5,  etc. 

5 South  Carolina  Statutes  at  Large,  HI,  434—5. 

6  See  Ramage,  Local  Government  and  Free  Schools  in  South  Carolina,  in  J. 
H.  U.  Studies,  I;  also  Chap.  IV,  I,  (b),  below.  On  the  ecclesiastical  history 
of  the  colony,  see  Kamsay,  Hist,  of  South  Carolina,  II,  3  ff. ;  Siinms,  Hist,  of 
South  Carolina,  112  ff. 


The  Parish  in  Maryland  and  tlie  Carolina*.        129 

(c). — North  Carolina  Precincts  and  Parishes. 

The  history  of  local  government  in  North  Carolina  begins 
with  the  Fundamental  Constitutions  of  Locke  drafted  in  1669. 
In  accordance  with  a  provision  of  this  instrument,  the  county 
of  Albemarle — that  is  to  say,  all  of  Nortli  Carolina  originally 
organized  or  settled — was  divided  into  four  '•  precincts."  Bath 
county  on  the  Pamlico  was  subsequently  created  ; l  and  here 
and  elsewhere  precincts  were  gradually  formed.2  So  the  pre- 
cinct was  the  first  civil  organization  instituted  in  the  province. 
It  was  practically  a  shire  invested  with  judicial  and  other 
administrative  functions :  for  the  counties  so-called,  of  which 
the  precincts  were  subdivisions,  were  merely  territorial  circum- 
scriptions seemingly  without  organic  significance,  unless  as  the 
basis  of  certain  empty  titles.3  And  in  1738,  nine  years  after 
the  extinction  of  the  proprietary  government,  the  fourteen  pre- 
cincts then  existing  were  styled  counties;  and  the  earlier  desig- 
nation, after  having  been  employed  for  nearly  seventy  years, 
passes  out  of  use. 4 

Furthermore,  it  is  not  without  interest  to  note  incidentally, 
that  this  institution  represents  the  only  provision  of  the  "  grand 
model "  which  ever  gained  any  practical  significance. 5  Each 
precinct  had  its  court  held  by  at  least  three  of  the  eight  jus- 
tices of  the  peace. 6  The  court  possessed  a  limited  criminal 


1  Probably  in  1697 ;  North  Carolina  Col.  Rec.,  Ill,  574. 

1 A  fifth  precinct  in  Albemarle  county  was  formed  in  1722  by  subdivision 
of  Chowan.  Tins  was  called  Bertie.  For  an  account  of  the  formation  of 
the  various  precincts,  with  the  dates,  see  North  Carolina  Col.  Rec.,  Ill,  574- 
5 ;  and  consult  the  map  in  Hawks,  Hist,  of  North  Carolina,  II,  570. 

8  It  was  the  intention  of  the  framers  of  the  Fundamental  Constitutions  that 
each  county  should  be  a  separate  "  government." 

4  The  change  seems  to  have  been  made  in  1739  or  1738:  N.  C.  Col.  Rec^ 
IV,  345-7,  330.    See  the  boundaries  of  counties  defined,  et<\,  /&.,  484-5, 
493,  733,  887-8. 

5  See  N.  C.  Col.  Rec.,  Ill,  442  ff.,  where  the  origin  of  precincts  is  discussed. 
'See  the  form  of  justices'  commission  in  N.  C.  Col.  Rec.,  I,  574-5  (1703). 

Cf.  Ib.  IV,  47. 
9 


130    The  Township  in  the  Middle  and  Southern  Colonies. 

and  civil  jurisdiction ;  could  take  probate  of  wills ;  and  ap- 
point guardians  for  orphans  or  bind  them  as  apprentices.  It 
might  also  "grant  administration  on  estates;  but  all  letters 
testamentary  or  letters  of  administration  were  signed  by  the 
governor  and  secretary  of  the  province,  with  the  colony  seal 
annexed."  *  In  the  early  period  the  processes  of  the  court  were 
served  by  a  "  provost  marshal,"  but  subsequently  the  title  of 
the  office  was  changed  to  sheriff. 2  Every  court  had  its  cleric 
and  could  appoint  constables3  and  highway  overseers.4  And, 
finally,  the  precinct  was  recognized  as  the  political  unit,  each 
being  entitled  to  representation  in  the  assembly. 5 

The  Church  of  England  was  first  established  in  North  Caro- 
lina by  an  act  of  the  assembly  in  1701.  By  this  statute  each 
precinct  was  constituted  a  parish  and  the  powers  of  the  vestry 
were  defined.  But  the  act  remained  valid  only  until  1703 
when  it  was  returned  by  the  proprietors  without  their  ap- 
proval. Between  this  date,  therefore,  and  1715,  when  a  new 
law  relating  to  the  Establishment  appeared,  the  Church  of  the 
province  was  strictly  without  legal  foundation.6  Nevertheless 
during  the  entire  period  the  act  of  1701  seems  to  have  been 
observed,  at  least  by  the  Episcopalians,  though  its  passage  had 


1  Hawks,  Hist,  of  North  Carolina,  II,  198-9. 

*'N.  C.  Col.  Eec.,  IV,  347,  393;  Hawks,  Hist,  of  N.  O,  II,  196. 

8  N.  C.  Col.  Eec.,  I,  548.    There  was  also  a  precinct  treasurer :  Ib.,  Ill,  582. 

*N.  C.  Col.  Eec.,  I,  535,  550,  607,  618. 

5  N.  C.  Col.  Eec.,  Ill,  207.    Gov.  Burrington  claimed  the  right,  on  the 
advice  of  the  council,  of  creating  new  precincts  by  subdivision.     And  this 
claim,  since  it  involved  a  control  of  representation,  led  to  remonstrance  on 
the  part  of  certain  councillors:  N.  C.  Col.  Eec.,  Ill,  439  ff.,  380.     The  inci- 
dent recalls  the  "New  Counties  Controversy"  between  Gov.  St.  Clair  and 
the  assembly  of  the  Northwest  Territory. 

Portions  of  the  original  records  of  the  court  of  Perquimans  precinct,  be- 
ginning in  1693,  are  published  in  the  North  Carolina  Colonial  Records,  and 
they  constitute  not  the  least  interesting  part  of  that  exceedingly  valuable 
collection. 

6  See  Hawks,  Hist,  of  N.  C.,  II,  169,  341,  357-8.    But  a  law  relating  to 
vestries  was  enacted  in  1710:  N.  C.  Col.  Eec.,  II,  10. 


The  Pariah  in  Maryland  and  the  Carolina*.        131 

been  strenuously  opposed  by  the  Quakers  and  other  sectaries.1 
Indeed  so  far  as  the  parish  constitution  is  concerned,  the  ori- 
ginal records  of  the  vestry  of  St.  Paul's  parish,  Chowan  pre- 
cinct, extending  from  June,  1702,  to  1715— comprised  in  the 
recently  printed  Colonial  Records  of  North  Carolina — enable 
us  to  see  it  in  actual  operation. 

The  meetings  are  usually  attended  by  eight  or  nine  vestry- 
men, one  of  whom  is  styled  "president;"  for  it  seems  that  the 
vestry  refused  to  allow  the  minister  to  preside.2 

The  entire  authority  of  the  parish  appears  to  be  centralized 
in  the  hands  of  the  vestry.  Vacancies  in  their  own  number 
are  filled  by  co-optation.3  The  two  churchwardens,4  and  the 
clerk,5  are  nominated  by  them.  They  exercise  the  right  of 
taxation  and  appoint  collectors  of  the  levy ; 6  erect  church 
buildings  and  keep  them  in  repair;7  procure  a  standard  of 


'Hawks,  Hist.  o/N.  C.,  II,  303,  341. 

But  it  appears  that  dissenters  were  taxed  for  support  of  the  church : 
"Also  the  Meeting's  judgment  is  that  all  Friends  that  do  suffer  on  Truth 
Ac1  Either  for  not  bearing  arms  or  Refusing  to  pay  Parish  levies  towards 
the  support  of  the  Churches  so  called  do  keep  a  true  ac*  of  the  sum  they 
suffer  &  the  day  distress  is  made  and  Render  the  same  to  either  John  Symons 
or  Jo&eph  Gloster  "  :  From  the  Records  of  the  Friends'  Monthly  Meeting  in 
Pasquotnnk  Precinct,  June,  1713:  N.  C.  Col.  Rec.,  II,  37. 

"See  the  complaint  of  Mr.  Urmstone,  N.  C.  Col.  Rec.,  1, 771  (1711) :  "Our 
blessed  Vestrymen  who  are  to  establish  the  Church,  in  Order  thereto  at  the 
first  strike  at  one  of  the  fundamentals  of  our  constitution  in  understanding 
the  Act  of  Vestry  otherwise  than  it  was  intended  in  a  former  Act  which  the 
Society  did  not  allow  ...  it  was  said  expressly  that  the  Minister  should 
always  be  deemed. a  Vestryman  which  is  highly  necessary  here  where  they 
are  so  great  strangers  to  the  business  of  a  Vestry  being  to  amend  that  act  by 
abolishing  that  power  of  meeting  annually  to  hire  their  Minister  for  the  year 
ensuing  they  have  omitted  that  for  the  Minister  being  a  Vestryman  where- 
upon many  will  have  it  that  the  Minister  hath  nothing  to  do  in  Vestry  which 
is  contrary  to  our  Establishment  in  England." 

3N.  C.  Col.  Rec.,  I,  678,  etc. 

4  N.  C.  Col.  Rec.,  I,  561,  596,  680,  etc. 

6  Al.  C.  Col.  Rec.,  1, 702 ;  1 1, 1 1.  The  offices  of  clerk  and  reader  were  some- 
t'mifs  combined:  Ib.,  I,  597,  684. 

•N.  C.  Col.  Rec.,  I,  558-61,  829;  II,  11. 

T  N.  C.  Col.  Rec.,  I,  560,  597,  etc. 


132     The  Township  in  the  Southern  and  Middle  Colonies. 

weights  and  measures ;  *  purchase  glebes ; 2  audit  the  church- 
wardens' accounts ; 3  and  relieve  the  sick  and  the  poor.4 

As  in  Virginia  the  vestry  insisted  on  the  right  of  "hiring" 
their  minister  from  year  to  year,  though  occasionally  the  ap- 
probation of  the  governor  was  obtained.5  This,  of  course, 
sometimes  led  to  abuse  and  was  the  cause  of  bitter  complaint 
on  the  part  of  the  missionaries  sent  out  by  the  recently  organ- 
ized Society  for  the  Propagation  of  the  Gospel  in  Foreign 
Parts.6  Salaries  were  very  small,  hard  to  collect,  and  some- 
times rendered  in  depreciated  currency  or  in  produce  at  exor- 
bitant prices.7  Indeed  the  act  of  1701  was  rejected  solely 


1N.  C.  Col  Eec.,  I,  558,  568-9. 

2  N.  C.  Col.  Bee.,  I,  680-1,  etc. 

3  N.  C.  Col.  Eec.,  I,  678,  702,  etc. 
*N.  C.  Col.  Rec.,  I,  569,  600,  678,  etc. 

5  N.  C.  Col.  Bee.,  I,  597,  684. 

6  Thus  Mr.  Urmstone — who,  of  course,  is  a  chronic  grumbler — writes  in 
1716/17: 

"The  governor  would  concur  with  me  in  appoint1^  a  new  Vestry,  but  our 
Vestrymen  (that  should  be)  say  I  am  not  incumbent,  because  forsooth  not 
hired  by  them  and  his  Honor's  appointment  will  not  signify  anything,  he 
has  offered  to  induct  me  in  order  to  entitle  me  to  Salary  allowed  by  this  late 
act  but  all  in  vain  for  it  will  never  be  paid '' :  N.  C.  Col.  Bee.,  II,  271.  Simi- 
lar complaints  are  made  before  as  well  as  after  the  act  of  1715.  See  /&.,  II, 
127-8,  130-2,  294-5;  IV,  12,  606-7;  also  the  letter  of  GOT.  Glover  to  the 
Bishop  of  London,  Sept,  25,  1708  :  Hawks,  Hist,  of  N.  C.,  II,  357-8. 

7  "For  two  years  and  upwards  I  have  been  endeavouring  to  recover  by  course 
of  law  my  first  years  Salary  which  was  £161.  Currency  that  is  £16.2.  sterl- 
ing, But  have  not  been  able  to  obtain  Judgment  &  when  I  do  they  can  Pay 
me  with  less  than  the  third  part  of  the  real  value  by  over  rating  Commodi- 
ties which  the  Law  obliges  us  to  take  in  Payment.     This  years  Salary  they 
have  paid  in  Rice  ...  at  six  shillings  three  pence  sterling  Pr  Hundred  and 
it  sells  in  Charles  Town  for  very  little  above  two  Sh8  Sts.     Besides  the  mis- 
fortune here  is  Tho'  I  were  willing  to  sell  it  at  One  Sh  Sters  pr  Hundred  there 
is  no  Merchant  to  buy  it  No  Vessel  to  carry  it  off  and  should  it  be  all  sum- 
mer in  this  hot  Climate  as  possibly  it  must,  I  do  not  know  if  it  will  be  worth 
anything  in  the  Fall,"  etc.     Letter  of  Rev.  James  Moir  to  the  Secretary  of 
the  Society,  March  26,  1745 :  N.  C.  Col.  Bee.,  IV,  754.    See  the  letter  of 
Eev.  Clement  Hall:  Ib.,  752-3;  and  that  of  Urmstone:  /&.,  II,  218-20; 
III,  180. 


The  Parish  in  Maryland  and  the  Carolina*.        133 

because  it  fixed  the  annual  stipend  at  thirty  pounds  a  year, 
which  was  deemed  inadequate.1 

The  law  of  17152  introduced  few  important  changes  in  the 
existing  constitution  of  the  parish.  Several  of  the  precincts 
were  divided  each  into  two  parishes;  and  select  vestries  were 
instituted  to  consist  of  the  incumbent  and  twelve  vestrymen. 
But  substantially  the  same  powers  were  given  them  as  the 
vestries  had  always  possessed. 

The  colonial  church  of  North  Carolina  appears  to  have  been 
a  feeble  body.  The  members  were  few,  generally  poor,  and 
often  lukewarm;  while  the  Quakers,  Presbyterians,  and  other 
dissenters  were  numerous  and  antagonistic.  The  life  of  the 
missionary  was  one  of  toil  and  privation.  Parishes  were  of 
vast  extent,3  and  on  account  of  the  numerous  broad  streams, 
travel  was  attended  by  unusual  difficulties.  Few  persons 
could  be  induced  to  undertake  the  hardships  of  missionary 
life;  and  sometimes  not  a  single  settled  parson  was  to  be 
found  in  the  entire  province.4  Among  the  ministers  sent  out 
by  the  Society  some  were,  of  course,  estimable  men ; 5  but  a 


1  Hawks,  Hist,  of  N.  C.,  II,  357. 

'The  act  is  printed  in  N.  C.  Col.  Kec.,  II,  207-13. 

8  The  following  statement,  though  contained  in  a  letter  of  the  notorious 
Boyd,  is  probably  in  the  main  truthful :  " 

"The  parish  I  live  in  is  of  a  vast  extent  being  upwards  of  100  miles  in 
length  &  50  in  breadth  I  preached  in  7  different  places  which  obliges  me  to 
ride  every  month  260  miles  .  .  .  We  are  very  happy  in  having  no  different 
sects  or  opinions  in  this  part  of  the  Country  (in  North  West  Parish)  but  I 
have  great  reason  to  complain  of  a  Laodecean  hike  warmness  immorality  but 
lower  down  in  the  County  there  are  a  great  many  Quakers  and  Anabaptists," 
etc.:  J\r.aCW..Rec.,IV,7(1735).  See  further  Ib.,  IV,  753-4;  11,118-19,531. 

4ThusGov.  Burrington  states  that  in  1731  there  is  not  a  settled  parson  in 
the  country :  N.  C.  Col.  Rec.,  Ill,  180.  Later  in  1731/32  he  says  there  are 
but  two  ministers  of  the  Church  of  England  in  the  province:  76.,  339;  and 
again  in  1732  he  says  there  is  not  one;  Ib.,  429.  So  in  1721,  after  Urm- 
stone's  departure,  there  was  no  minister  left:  Ib.,  II,  430;  and  the  same  is 
true  for  1710,  after  the  departure  of  Mr.  Adams:  Hawks,  Hist.  ofN.  C.,  II,  350. 

5  For  an  account  of  the  principal  ministers  of  the  colonial  period  see  Hawks, 
Hist,  of  N.  C.,  II,  342  ff. 


134     The  Township  in  the  Middle  and  Southern  Colonies, 

few  were  of  unsavory  reputation,  rivalling  the  cock-fighting 
parsons  of  Virginia  for  vice  and  dissipation.  To  this  latter 
class  belonged  the  Rev.  Daniel  Brett,  the  first  Episcopal  cler- 
gyman who  came  to  the  colony ;  *  and  the  Rev.  John  Boyd, 
notorious  for  open  drunkenness.2  On  the  other  hand,  if  we 
may  trust  Mr.  Urmstone,  whose  querulous  statements  must 
usually  be  taken  with  a  grain  of  allowance,  some  of  the  ves- 
tries in  moral  conduct  were  anything  but  models  of  propriety.3 


1  Hawks,  Hist,  of  N.  C.,  II,  341. 
*N.  C.  Col.Rec.,IV,264. 


But  Brett  was  not  sent  by  the  Society. 


3  In  1711  he  says  of  one  of  the  vestries :  "  They  were  very  much  disordered 
•with  drink  they  quarrelled  and  could  scarce  be  kept  from  fighting.  .  .  .  The 
Vestry  met  at  an  ordinary  where  rum  was  the  chief  of  their  business,  they 
were  most  of  'em  hot  headed  very  averse  to  go  upon  business  "  :  N.  C.  Col. 
Bee.,  I,  769.  Cf.  16.,  II,  131. 


CHAPTER  IV. 

RISE  OF  THE  TOWNSHIP  IN  THE  WESTERN 
STATES.1 

I. — EVOLUTION  OF  THE  TOWNSHIP-COUNTY  SYSTEM. 
(a).— The,  Fundamental  Ordinances  of  1785  and  1787. 

It  is  customary  to  describe  the  remarkable  system  of  local 
government  prevailing  in  the  Western  States  as  the  "  compro- 
mise plan."  The  name  is  not  entirely  inapposite,  if  two  im- 
portant historic  facts  are  kept  in  mind.  First  the  "  compro- 
mise " — that  is  to  say,  the  co-operation  of  town  and  county  in 
the  work  of  local  administration — was  really  begun  in  the 
colonies  long  before  the  Revolution.  Secondly,  that  compro- 
mise consisted  essentially  in  restoring  the  primitive  local  con- 
stitution. For  ages  before  and  for  ages  after  the  Norman 
Conquest  the  work  of  local  government  was  shared  not  only 
by  the  county  and  township  but  by  the  hundred  as  well ;  and 
the  meeting  of  the  supervisors  to  form  the  county  board — the 
characteristic  feature  of  the  highest  type  of  western  organiza- 
tion— is  but  a  revival  of  ancient  representation  through  the 
reeve  and  four  from  each  tunscipe  of  the  shire. 

Nevertheless  the  western  township-county  plan  is  the  most 


'Township  organization  has  been  adopted  in  the  following  western  states 
and  territories:  Ohio,  Indiana,  Michigan,  Illinois,  Wisconsin,  Minnesota, 
Iowa,  Kansas,  Missouri,  Nebraska,  Dakota,  and,  nominally,  in  California. 
The  local  constitutions  of  New  York  and  Pennsylvania,  as  the  direct  pro- 
totypes of  those  of  the  states  enumerated,  will  also  be  compared  in  this 
chapter. 

135 


136          Rise  of  the  Township  in  the  Western  States. 

advanced  phase  of  local  institutions;  and  it  is  practically 
new  as  compared  with  any  form  which  has  existed  since  the 
days  of  Edward  I.  The  fact  is,  the  causes  which  produced 
a  decay  of  the  county  court  and  substituted  for  it  a  board  of 
royal  commissioners,1  wrought  a  great  and  unfortunate  dis- 
turbance in  the  equilibrium  and  interdependence  of  local 
organisms.  Neither  the  complex  expedients  of  modern  Eng- 
land— recently  described  as  a  three-fold  chaos  of  areas,  rates, 
and  authorities2 — the  New  England  town  organization  over- 
developed at  the  expense  of  the  shire,  nor  the  county  of  the 
Southern  colonies  over-developed  at  the  expense  of  the  parish, 
— constitutes  a  normal,  far  less  an  ideal,  method  of  local  gov- 
ernment suitable  for  great  areas  and  dense  populations  under 
/present  economic  and  social  conditions. 

But  there  was  no  time  during  the  Colonial  period,3  even  in 
Massachusetts  or  Virginia,  when  some  trace  of  co-operation 
between  county  and  town  did  not  exist;  while  in  Pennsylvania 
and  New  York,  important  elements  of  the  present  system  were 
already  developed.  But  the  development  was  by  no  means 
complete.  The  restoration  of  the  proper  balance  of  political 
power  was  destined  to  be  the  result  of  frequent  compromise 
and  sometimes  of  protracted  struggle.  Yet  even  as  it  now 
exists,  the  western  method  of  local  government,  for  simplicity, 
symmetry,  flexibility,  and  administrative  efficiency,  is  superior 
to  any  other  system  which  the  Teutonic  mind  has  yet  produced. 

The  history  of  town  organization  in  the  West  begins  with 
the  ordinance  of  1785,  which  provided  for  the  survey  and  sale 
of  the  lands  ceded  to  the  national  government  by  various  states 
and  by  certain  Indian  tribes.4 


1  See  below  Chap.  VI,  V,  and  the  chapter  on  the  Justice  of  the  Peace  in 
Vol.  II. 

2  By  Mr.  Goschen,  cited  by  Prof.  Goodnow  in  Pol.  Sc.  Quart.  June,  1888, 
p.  313. 

3  Except,  of  course,  in  the  very  beginning  before  counties  were  formed. 

4  For  an  account  of  the  treaties  of  1768,  1784,  and  1785  with  the  Six 
Nations  and  other  tribes,  see  Hinsdale,  The  Old  Northwest,  256. 


Evolution  of  the  Township- County  System.  137 

On  May  7,  1784,  Jefferson  reported  to  Congress  an  ordi- 
nance for  locating  and  disposing  of  the  public  domain,  provid- 
ing for  the  division  of  the  lands  into  townships  each  of  ten 
gMgraphfoal  miles  square,  and  of  the  townships  into  hundreds 
each  of  one  mile  square.  But  no  final  vote  was  taken  on  the 
report.1  Here  the  matter  rested  until  April  12,  1785,  when  a 
committee,  appointed  to  frame  an  ordinance  for  disposal  of  the 
western  lands,  submitted  a  report  drafted  by  Grayson  of  Vir- 
ginia. The  report  was  amended  and  finally  adopted  on  the 
twentieth  of  May.2 

The  ordinance  provided  for  a  corps  of  surveyors  placed 
under  the  direction  of  the  Geographer  of  the  United  States, 
an  officer  who  performed  the  duties  subsequently  entrusted 
to  the  Surveyor  General.  The  following  are  the  provisions 
of  the  act  with  which  we  arc  here  concerned :  "  The  surveyors 
.  .  .  shall  proceed  to  divide  the  said  territory  into  townships 
of  six  miles  square,3  by  lines  running  due  north  and  south, 
and  others  crossing  these  at  right  angles,  as  near  as  may 
be.  ... 

"  The  first  line,  running  north  and  south  as  aforesaid,  shall 
begin  on  the  River  Ohio,  at  a  point  that  shall  be  found  to  be 
due  north  from  the  western  termination  of  a  line  which  has 
been  run  as  the  Southern  boundary  of  the  State  of  Pennsyl- 
vania; and  the  first  line  running  east  and  west  shall  begin  at 
the  same  point  and  shall  extend  throughout  the  whole  terri- 


1  Bancroft,  History  of  the  Formation  of  the  Constitution,  I,  158-9. 

'Bancroft,  Hist,  of  the  Formation  of  the  Constitution,  I,  180-1.  There  is 
some  doubt  as  to  who  was  the  author  of  the  plan  of  survey ;  but  it  was 
probably  Thomas  Hutchins,  first  Geographer  of  the  United  States,  who  is 
said  to  have  conceived  the  idea  as  early  as  1764  when  acting  as  engineer  for 
an  expedition  to  Ohio  under  Col.  Henry  Bouquet :  see  Hinsdale,  The  Old 
Northvcst,  262.  But  the  authorship  is  claimed  by  Prof.  Austin  Scott  for 
De  Witt,  the  Dutch  surveyor:  see  Shosuke  Sato,  The  Land  Question  in  the 
U.  S.,  134. 

sThe  report  of  the  Committee  provided  for  townships  7  miles  square ;  but 
the  motion  of  Grayson  that  they  should  be  six  miles  square  was  adopted. 
Bancroft,  Hist,  of  the  Fo>-mation  of  the  Constitution,  I,  181. 


138         Rise  of  the  Township  in  the  Western  States. 

tory,  provided  that  nothing  herein  shall  be  construed  as  fixing 
the  western  boundary  of  the  State  of  Pennsylvania.  The 
Geographer  shall  designate  the  townships,  or  fractional  parts 
of  townships,  by  numbers  progressively  from  south  to  north  ; 
always  beginning  each  range  with  No.  1 ;  and  the  ranges  shall 
be  distinguished  by  their  progressive  numbers  to  the  westward. 
The  first  range,  extending  from  the  Ohio  to  the  Lake  Erie 
being  marked  No.  1.  The  Geographer  shall  personally  attend 
to  the  running  of  the  first  east  and  west  line ;  and  shall  take 
the  latitude  of  the  extremes  of  the  first  north  and  south  line, 
and  of  the  mouths  of  the  principal  rivers. 

"The  lines  shall  be  measured  with  a  chain;  shall  be  plainly 
marked  by  chaps  on  the  trees,  and  exactly  described  on  a 
plat,  whereon  shall  be  noted  by  the  surveyor,  at  their  proper 
distances,  all  mines,  salt-springs,  salt-licks,  and  mill-seats,  that 
shall  come  to  his  knowledge;  and  all  water-courses,  mountains, 
and  other  remarkable  and  permanent  things,  over  and  near 
which  such  lines  shall  pass,  and  also  the  quality  of  the 
lands. 

"  The  plats  of  the  townships  respectively,  shall  be  marked 
by  subdivisions  into  lots  of  one  mile  square  or  640  acres,  in 
the  same  direction  as  the  external  lines,  and  numbered  from 
1  to  36 ;  always  beginning  the  succeeding  range  of  the  lots 
with  the  number  next  to  that  with  which  the  preceding  one 
concluded.  And  where,  from  the  causes  before  mentioned, 
only  a  fractional  part  of  a  township  shall  be  surveyed,  the  lots 
protracted  thereon,  shall  bear  the  same  numbers  as  if  the 
townships  had  been  entire.  And  the  surveyors  in  running 
the  external  lines  of  the  townships,  shall,  at  the  interval  of 
every  mile,  mark  corners  for  the  lots  which  are  adjacent, 
always  designating  the  same  in  a  different  manner  from  those 
of  the  townships. 

"  The  geographer  and  surveyors  shall  pay  the  utmost  atten- 
tion to  the  variation  of  the  magnetic  needle ;  and  shall  run 
and  note  all  lines  by  the  true  meridian,  certifying,  with  every 


Evolution  of  the  Township- County  System. 

plat,  what  was  the  variation  at  the  times  of  ruuniug  the  lines 
thereon  noted."1 

The  ordinance  of  1785,  in  spite  of  various  defects,2  subse- 
quently removed,  may  justly  be  regarded  as  one  of  the  most 
important  administrative  measures  which  has  ever  been  pro- 
duced. It  comprised  all  the  essential  features  of  our  present 
incomparable  system  of  land  surveys,  since  brought  to  perfec- 
tion by  a  series  of  statutes,  and  applied  to  the  entire  public 
domain  of  the  United  States.  Its  economic  effects  have  indeed 
been  vast  and  beneficent.  The  simplicity  and  cheapness  of 
the  system  have  greatly  facilitated  the  rapid  settlement  of  our 
western  territory.  This  fact  will  be  appreciated  by  those  who 
know  from  experience  the  ease  and  certainty  with  which  the 
pioneer  on  the  great  plains  of  Kansas,  Nebraska,  or  Dakota 
is  enabled  to  select  his  "  homestead "  or  "  locate  his  claim  " 
unaided  by  the  expensive  skill  of  the  surveyor.  "  With  all 
its  defects,"  says  a  recent  writer,  "  this  ordinance  was  perfec- 
tion itself  compared  with  the  old  colonial  methods ;  say,  that 
of  Virginia.  Here  the  State  made  no  surveys  whatever  before 
disposing  of  the  lands  to  the  settler  or  speculator.  The  pros- 
pective owner  sought  out  a  tract  of  land  that  pleased  him,  and 
caused  a  survey  to  be  made  and  marked  the  latter  generally 
by  '  blazing '  the  trees  with  a  hatchet.  The  survey  was  then 
recorded  in  the  State  land-office,  and  became  the  basis  for 
warrants  covering  the  land.  Such  was  the  way  in  which  the 
lauds  of  West  Virginia  and  Kentucky  were  '  taken  up.'  .  .  . 
The  pre-emptor  was  never  obliged  to  wait  for  the  surveyor. 


1  Journals  of  Congress,  IV,  520;  copied  from  Hinsdale,  The  Old  Northicext, 
257-258.  The  ordinance  is  printed  entire  in  the  Life  and  Journals  of  Ma- 
nasseh  Cutler,  II,  431-8. 

*Such  were  the  provisions  for  allotting  the  lands  among  the  various  states 
in  proportion  to  "  the  quotas  in  the  last  preceding  requisition  on  all  the 
states,"  the  sale  at  auction  by  commissioners  of  the  loan  offices  in  the  respec- 
tive states,  and  the  lack  of  a  smaller  division  than  one  mile  square.  Cf. 
Hinsdale,  The  Old  Northwest,  259,  302 ;  Cutler,  The  Ord.  of  1787,  in  Ohio 
Arch,  and  Hist.  Quart.  I,  32. 


140          Rise  of  the  Township  in  the  Western  States. 

Such  a  system  led  to  the  'running  out'  of  all  sorts  of  tracts  of 
land.  Half  a  dozen  patents  would  sometimes  be  given  for  the 
same  tract.  Pieces  of  land,  of  all  shapes  and  sizes,  lay  between 
the  patents;  and  in  time,  as  lands  became  more  valuable,  huge 
'  blanket '  patents  were  thrown  out  to  catch  these  pieces." l 

But  the  institutional  results  of  the  Ordinance  of  1785  are 
scarcely  less  important  than  the  economic.  Everywhere  in 
the  Northwest  Territory  and  in  the  vast  regions  beyond  the 
Mississippi  and  the  Missouri,  the  government  surveyor,  even 
in  advance  of  the  pioneer,  has  laid  the  first  foundation  of 
local  institutions.  He  has  assigned  the  name  and  defined 
the  territorial  limits  of  the  future  social  and  political  unit. 
Manifestly  the  "congressional"  township,  though  as  such 
absolutely  devoid  of  organization,  is  nevertheless  a  municipal 
body  in  embryo  requiring  but  slight  encouragement  to  develop 
into  a  living  body.2  Indeed  there  is  usually  a  well  defined 
transitional  stage.  In  those  states  where  the  county-precinct 
organization  prevails — and  as  a  rule  that  system  precedes  the 
township-county  plan — the  precinct  is  well  on  the  way  to 
complete  municipal  development.  As  the  electoral  unit  or  as 
the  district  of  justice  and  constable,  it  possesses  some  of  the 
essential  attributes  of  the  self-governing  township. 

Moreover  it  is  extremely  interesting  to  know  that  the 
framers  of  the  ordinance  were  fully  aware  of  its  institutional 
significance.  It  was  provided  that  every  alternate  township 
should  be  sold  in  a  body  without  subdivision  and  the  remain- 
ing half  by  sections.  "  The  South,  accustomed  to  the  mode 
of  indiscriminate  locations  and  settlements,  insisted  on  the 
rule  which  would  give  the  most  free  scope  to  the  roving  emi- 
grant; and,  as  the  bill  required  the  vote  of  nine  states  for 


1  Hinsdale,  The  Old  Northwest,  260.    For  Kentucky,  see  Shaler,  Kentucky,  in 
Commonwealth  series,  49  ff.,  and  Hinsdale,  261.     But  read  especially  the 
interesting  discussion  of  the  Ordinance  in  the  Life  and  Journals  of  Manasseh 
Cutler,  I,  123  ff.,  where  the  opinions  of  Washington  and  others  are  compared. 

2  Cf.  Shaw,  Local  Government  in  Illinois,  10. 


Evolution  of  the  Township-County  System.  141 

adoption,  and  during  the  debates  on  the  subject  more  than  ten 
\\in-  never  present,  the  eastern  people,  though  'amazingly 
attached  to  their  own  custom  of  planting  by  townships 'yielded 
to  the  compromise  that  every  other  township  should  be  sold 
by  sections." !  So  the  ordinance  of  1 785  is  the  first  act  in  the 
sectional  conflict  for  control  of  local  institutions  in  the  North- 
west.2 

Among  the  forces  predetermining  the  character  of  social 
organisms  in  the  Northwest,  second  in  the  order  of  time  but 
first  in  deep  and  far-reaching  influence,  stands  the  Ordinance 
of  1787.  By  this  instrument  the  formation  of  townships  and 
counties  is  expressly  contemplated.8  But  it  is  those  remark- 
able provisions  concerning  freedom,  property,  representation, 


1  Bancroft,  Hist,  of  the  Formation  of  the  Constitution,  I,  181,  citing  a  letter 
of  Grayson  to  Madison,  dated  May  1, 1785.    Cf.  Life  and  Journals  ofManasseh 
Cutler,  I,  126  ff.     It  would  seem  to  be  exceedingly  fortunate  that  the  town- 
ship of  six  miles  square  was  adopted,  rather  than  either  that  of  Jefferson  or 
that  of  the  Committee.     A  larger  area  would,  doubtless,  have  been  an 
impracticable  subdivision  of  the  county. 

2  The  restrictions  upon  the  subdivision  and  sale  of  the  public  lands  were 
removed  by  Congress  at  an  early  day.    The  act  of  1796  provided  for  the 
appointment  of  a  Surveyor  General  and  created  the  present  system  of  num- 
bering the  sections,  "beginning  with  the  number  one  in  the  northeast 
section,  and  proceeding  west  and  east  alternately,  through  the  township 
with  progressive  numbers  till  the  thirty-sixth  be  completed:"  U.  S.  Statutes 
at  Large,  J,  406.     By  an  act  of  Feb.  11,  1805,  the  Surveyor  General  was 
required  to  subdivide  the  lands  into  quarter  sections:  76.,  II,  313.    In  1820 
sale  was  authorized  in  half-quarter  sections;  and  in  1832,  in  quarter-quarter 
sections:  /&.,  Ill,  566;    IV,  503.     See  Carhart,  Plane  Surveying,  295  ff.; 
\Vebbter.  Works,  III,  263;  Shosuke  Sato,  The  Land  Question  in  the  U.  S., 
Studies,  IV,  391  ff.     The  principal  provisions  of  the  Ordinance  are  given 
by  Albacli,  Westei-n  Annals,  434-8 ;  and  Blanchard,  Discovery,  188-9.     The 
most  extended  discussion  of  the  method  and  procedure  in  making  a  govern- 
ment survey  will  be  found  in  Donaldson,  The  PMic  Domain,  178  ff.,  576  ff. 
For  the  literature  relating  to  the  public  lands,  see  Winsor,  Narrative  and 
Grit.  Hist.,  VII,  533. 

8  "  Sec.  7.  Previous  to  the  organization  of  the  general  assembly  the  gov- 
ernor shall  appoint  such  magistrates,  and  other  civil  officers,  in  each  county 
or  township,  as  he  shall  find  necessary  for  the  preservation  of  the  peace  and 
good  order  of  the  same : "  Poore,  Charters,  I,  430. 


142          Rise  of  the  Township  in  the  Western  States. 

"religion,  morality  and  knowledge,"  that  have  caused  the 
'  magna  charta '  of  the  West  to  be  regarded  as  the  greatest 
monument  of  statesmanship,  modern  or  ancient;1  and  they  are 
of  supreme  interest  from  our  present  point  of  view.  The 
guaranties  of  the  compact — which  were  to  remain  unalterable, 
unless  by  common  consent — particularly  the  prohibition  of 
slavery, — "  fixed  forever  the  character  of  the  population  in 
the  vast  regions  northwest  of  the  Ohio,"2  and,  let  us  add,. the 
still  broader  domain  west  of  the  Mississippi. 

As  in  the  case  of  the  Ordinance  of  1785,  the  wisdom  of 
New  England  united  with  that  of  the  South  to  produce  this 
measure :  by  the  votes  of  the  South  it  was  adopted,  in  the 
brain  of  Manasseh  Cutler  of  Massachusetts  it  was  conceived. 
But  from  an  early  day  it  was  clear  that  the  West  would  become 
the  heritage  of  the  men  of  the  Eastern  and  Middle  States,  and 
that  the  civil  institutions  which  they  should  establish  must  be 
largely  the  results  of  the  blending  of  those  with  which  they 
were  respectively  familiar.3 


1 "  We  are  accustomed  to  praise  the  lawgivers  of  antiquity ;  we  help  to 
perpetuate  the  fame  of  Solon  and  Lycurgus,  but  I  doubt  whether  one  single 
law  of  any  lawgiver,  ancient  or  modern,  has  produced  effects  of  more  distinct, 
marked,  and  lasting  character  than  the  Ordinance  of  1787  ;  "  Webster,  first 
speech  on  Foot's  Resolution,  Works,  III,  263. 

2  Webster,  Works,  III,  264,  277  ff. 

3  The  principal  authority  on  the  origin  of  the  Ordinance  of  1787  is  the  Life 
and  Journals  of  Manasseh  Culler,  Vol.  I,  Chap.  VIII,  and  Vol.  II,  Appen- 
dix "D."     See  also  Poole,  Dr.  Cutler  and  the  Ordinance  of  1787,  in  N.  A. 
Review,  April,  1876 ;  Hinsdale,  The  'Old  Northwest,  Chaps.  XV,  XVI,  and  his 
Article  in  Mag.  of  West.  Hizt.  July,  1887  ;  Adams,  Maryland's  Influence  upon 
Land  Cessions  to  the  U.  S.,  in  Studies,  Vol.  Ill;  Shosuke  Sato,  Hist,  of  the  Land 
Question  in  U.  S.,  Studies,  IV,  338  ff. ;  Bancroft,  History  of  the  Formation  of  the 
Const.,  II,  Ch.  VI;  Cutler  (W.  P.),  The  Ordinance  of  1787  in  Ohio  Arch,  and 
Hist.  Quart.,  1, 10-37 ;  Smith,  St.  Clair  Papers,  1, 118  ff. ;  II,  603  ff. ;  Andrews, 
The  Beginning  of  Our  Col.  System,  in  Ohio  Arch,  and  Hist.  Quart.,  1-9 ;  Mathews, 
The  Earliest  Settlement  in  Ohio,  in  Harper's  Mag.,  Sept.  1885,  and  his  Organiza- 
tion of  the  Ohio  Land  Co.,  in  Mag.  West.  Hist.,  1, 32  ff. ;  Graham,  The  Beginning 
of  Education  in  the  Northivest  Territory,  in  Mag.  West.  Hist.  Feb.  1888;  Strong, 
Hist,  of  Wisconsin  Territory,  155-6;  Alderman,  Marietta,  Ohio,  Hist.  Considered, 
in  Mag.  West.  Hist.,  March,  1888;  Williams,  Arthur  St.  Clair  and  the  Ordinance 


Evolution  of  the  Town  ship- County  System.  J43 

(6). — The  Sectional  Rivalry  of  Local  Organisms. 

It  appears  to  be  generally  true  that  emigration  in  the 
United  States  follows  the  lines  of  latitude.  In  accordance 
with  this  so-called  "  law "  of  migration,  the  regions  of  the 
Southwest  have  been  peopled  largely  by  settlers  from  the 
southern  states  carrying  with  them  the  county  system  with 
which  they  were  familiar.  On  the  other  hand,  the  local  insti- 
tutions of  the  Northwest  are  the  result  of  a  fusion  of  the  social 
elements  of  New  England  and  the  Middle  States. 

In  some  instances  the  establishment  of  township-county 
government  has  been  a  silent  and  seemingly  easy  process.  In 
others  it  has  been  merely  a  question  of  expediency  as  to  the 
time  when  it  should  be  introduced.  But  in  one  or  two  cases 
a  sharp  sectional  diversity  of  population  has  given  rise  to  a 
protracted  conflict  of  local  organisms,  exceedingly  instructive 
to  the  student  of  comparative  sociology. 

Provision  for  the  first  civil  townships  in  the  West  was  made 
in  1790  by  an  act  of  Governor  St.  Clair  and  the  Judges  of  the 
Northwest  Territory.  But  these  towns  were  invested  only 
with  rudimentary  powers.  It  was  enacted  that  each  county 
should  be  divided  by  the  justices  of  the  court  of  quarter 
sessions  into  townships  with  such  "  bounds,  natural  or  imagi- 
nary, as  shall  appear  to  be  most  proper ; "  and  for  each  the 
court  should  appoint  a  constable  to  act,  "specially"  for  the 


of  1787  in  Mag.  West.  Hist.,  I,  49  ff.;  Campbell,  Pol.  Hist,  of  Mich.,  206  ff. ; 
ilildreth,  Hist,  of  U.  S.,  Ill,  527.  The  first  number  of  Vol.  II,  of  Ohio  Arch, 
and  Itist.  Quarterly,  251  pages,  is  devoted  to  the  Marietta  Centennial  Celebra- 
tion ;  see  particularly  the  addresses  of  Hon.  Geo.  F.  Hoar,  Hon.  J.  R.  Tucker, 
and  Judge  Joseph  Cox.  The  now  famous  letter  of  Dane  to  Webster  is  printed 
in  Procds.  Mass.  Hist.  Soc.,  X.  475-480.  See  also  Farmer,  Hist,  of  Detroit  and 
Mich.,  85-6;  Curtis,  Hist,  of  the  Const.,  I,  301,  452;  II,  344;  Cooper,  Ameri- 
can Politics,  Bk.  IV,  10-13;  Lalor,  Pol.  Cyc.,  HI,  31 ;  Cooler,  Michigan,  l'J7; 
Albach,  Western  Annals,  466  ff. ;  Donaldson,  The  Public  Domain,  153-6 ; 
Monette,  Hist,  of  Disc.,  etc.,  II,  237-40;  Wilson,  Slave  Power,  I,  31-8; 
Burnet,  Notes,  37-8.  A  bibliography  of  the  Ordinance  is  given  by  Winsor, 
Nar.  and  Orit.  Hist.,  VII,  538. 


144          Rise  of  the  Township  in  the  Western  States. 

township,  and  "  generally "  for  the  county ;  also  a  clerk  and 
one  or  more  overseers  of  the  poor.1  However  in  1802  the 
general  assembly  of  the  Northwest  Territory  provided  for  a 
more  popular  organization.  A  town-meeting  was  instituted, 
but  only  for  purposes  of  election.  The  number  of  officers  was 
greatly  increased  and  all  were  to  be  chosen  by  ballot.  Each 
town  was  to  elect  a  clerk,  two  or  more  overseers  of  the  poor, 
three  fence  viewers,  two  appraisers  of  houses,  one  lister  of 
taxable  property,  one  or  more  constables,  a  sufficient  number 
of  supervisors  of  roads,  and  three  or  more  trustees  or  "  man- 
agers/' the  latter  to  exercise  the  general  supervisory  powers 
of  a  town  board.2  The  principal  features  of  this  act  were 
embodied  in  the  early  laws  of  the  state  of  Ohio ;  but  there 
the  duties  of  the  quarter  sessions  passed  to  the  county  commis- 
sioners and  the  township  trustees  were  allowed  a  restricted 
right  of  taxation.3 

The  township-county  organization  whose  genesis  in  the 
West  we  have  thus  noted  was  the  result  of  a  sectional  com- 
promise; but,  nevertheless,  in  substance  it  was  merely  the 
system  already  existing  in  Pennsylvania  somewhat  modified 
by  eastern  and,  particularly,  southern  influences.4  And  it 
seems  to  have  been  established  quietly  without  sharp  or  pro- 
tracted struggle. 

The  most  remarkable  illustration  of  such  a  sectional  rivalry 
is  found  in  the  history  of  Illinois — the  third  commonwealth 
formed  in  the  Northwest  Territory  in  pursuance  of  the 


1  Chase's  Statutes  of  Ohio  and  the  N.  W.  Territory,  I,  107-8. 

2  Chase's  Statutes  of  Ohio  and  N.  W,  Territory,  I,  344-5.    See  the  record  of  a 
meeting  of  Cleveland  Township,  April  4,  1803 :  Mag.  West.  Hist.,  IV,  69-70. 

3  Chase's  Statutes  of  Ohio  and  N.  W.  Territory,  I,  370,  397  ff.,  636,  700. 

4  A  plurality  of  the  settlers  and  legislators  of  the  Northwest  Territory 
were  from  the  Middle  States,  a  large  contingent  from  Virginia  and  Mary- 
land, and  still  fewer  from  New  England.     The  influence  of  Pennsylvania, 
was  especially  great.     Governor  St.  Clair  himself  was  a  Pennsylvanian  of 
Scotch  descent,  and  he  did  much  to  determine  the  character  of  civil  insti- 
tutions in  the  Territory.     See  Hinsdale,  The  Old  Northwest,  284,  325,  300. 


Evolution  of  the  Township- County  System.  145 

Ordinance  of  1787.  Previous  to  1818,  when  she  was  ad- 
mitted to  the  Union,  the  inhabitants  were  almost  exclusively 
from  Virginia,  Kentucky,  and  the  Carolinas,  the  majority 
being  settled  in  the  southern  end  of  the  state.  Consequently 
the  constitution  of  1818,  and  laws  made  under  it,  "placed 
the  entire  business  management  of  each  county"  in  the  hands 
of  three  County  Commissioners,  the  state  being  divided  into 
fifteen  large  counties.1 

"  But  even  at.  this  time  there  had  been  planted  in  Illinois, 
and  throughout  the  whole  West,  a  germ  capable,  under  right 
conditions,  of  developing  a  highly  organized  township  sys- 
tem. In  dividing  and  designating  the  public  domain,  the 
Congress  of  the  United  States  had  early  adopted  the  system 
of  surveying  into  bodies  six  miles  square,  and  had  given 
these  divisions  the  New  England  name  of  townships.  For 
purposes  of  record  and  sale,  each  township  was  divided  into 
thirty -six  sections  a  mile  square,  and  these  were  further  sub- 
divided. Every  man  held  his  land  by  a  deed  which  reminded 
him  that  his  freehold  was  part  of  a  township,  and  there  is 
much  even  in  a  name.  But  further  than  this,  the  United 
States  had  given  to  the  people  of  every  township  a  mile  of 
land,  the  proceeds  of  which  should  be  a  permanent  township 
school-fund.  To  give  effect  to  this  liberal  provision,  the 
state  enacted  a  law  making  the  township  a  body  corporate 
and  politic  for  school  purposes,  and  authorizing  the  inhabi- 
tants to  elect  school  officers  and  maintain  free  schools.  Here 
then  was  a  rudiment  of  local  government.  As  New  England 
township  life  grew  up  around  the  church,  so  western  local- 
ism finds  its  nucleus  in  the  school  system.  What  more 
natural  than  that  the  county  election  district  should  soon 
be  made  to  coincide  with  the  school  township,  with  a  school- 
house  for  the  voting  place?  or,  that  justices  of  the  peace, 
constables,  road  supervisors,  and  overseers  of  the  poor,  should 

1  Shaw,  Local  Govt.  in  IU.,  9. 
10 


146          Rise  of  the  Township  in  the  Western  States. 

have  their  jurisdictions  determined  by  those  same  township 
lines?"1 

With  the  admission  of  Missouri  as  a  slave  state  in  1820, 
northern  Illinois  began  to  be  occupied  by  settlers  from  the 
eastern  and  middle  states,  while  southern  emigration  was 
directed  to  Missouri.  A  long  and  bitter  sectional  struggle 
ensued,  terminating  only  with  the  revised  constitution  of 
1847,  by  which  the  legislature  was  authorized  to  provide  for 
township  organization  by  a  general  law  which  should  allow 
each  county  to  adopt  it  whenever  a  majority  of  the  voters 
therein  should  so  decide.  The  northern  counties  immediately 
proceeded  to  organize  townships  under  the  law  enacted  in 
pursuance  of  this  requirement.  Gradually  the  southern  coun- 
ties have  followed  their  example,  until,  at  the  present  moment, 
but  twenty-three  out  of  the  one  hundred  and  two  counties  of 
the  state  still  maintain  the  early  system.2 

"  This,"  remarks  Dr.  Shaw,  "  was  one  of  those  happy,  but 
unusual,  compromises  whereby  both  parties  gain  their  prin- 
ciple. It  was  rendered  possible  by  the  distinctly  sectional 
line  of  demarcation  which  separated  the  two  elements  of 
population.  In  Ohio  and  Indiana  the  same  diverse  elements 
of  population  had  been  more  thoroughly  commingled ;  and 
their  'compromise'  system  was  the  outcome  of  mutual  con- 
cession— a  hybrid  affair,  in  which  township  organization  was 
very  limited  and  imperfect."3 

The  history  of  local  government  in  Illinois  seems  about  to 
find  a  parallel  in  that  of  Missouri.  After  the  Civil  War  a 
considerable  emigration  from  the  North  and  East  was  gradu- 
ally directed  to  that  state;  and,  as  a  consequence,  an  agitation 
for  a  change  in  the  form  of  local  government — which  bore 
the  essential  features  of  the  Virginia  system — speedily  arose. 


1Shaw,  Local  Govt.  in  III.,  10. 

2  On  the  authority  of  a  letter  to  the  author  from  Hon.  Henry  D.  Dement, 
Secretary  of  State,  dated  June  27,  1888. 

3  Shaw,  Local  Govt.  in  III.,  11. 


Evolution  of  the  Township- County  System.  147 

The  framers  of  the  constitution  of  1875  met  the  question  by 
proposing  the  solution  which  had  proved  so  successful  in  the 
case  of  Illinois.  The  assembly  was  authorized  to  provide, 
by  general  law,  for  township  government  "under  which  any 
county  may  organize,  whenever  a  majority  of  the  legal  voters 
of  such  county  .  .  .  shall  so  determine."1  Not,  however,  until 
1879  was  the  law  contemplated  in  the  constitution  enacted, 
and  it  has  been  very  slowly  put  in  force;  at  present  but  eigh- 
teen out  of  one  hundred  and  fourteen  counties  having  adopted 
township  organization.2 

Even  during  the  colonial  era  the  sectional  rivalry  between 
the  two  forms  of  local  organization  within  the  same  common- 
wealth had  begun,  notably  in  South  Carolina.3  At  the  begin- 
ning of  the  eighteenth  century  a  parish  system  was  established 
as  a  part  of  the  ecclesiastical  constitution.  But  the  South 
Carolina  parish  was  a  civil  as  well  as  a  spiritual  body,  possess- 
ing an  exceedingly  liberal  organization.  The  spirit  of  the 
latter  was  democratic;  and  as  a  means  of  local  self-government 
the  parish  proved  satisfactory  to  the  inhabitants  of  the  low 
country,  though  they  were  of  very  heterogeneous  origin,  until 
1865.4 

A  different  system  was  established  in  the  "  up  "  or  "  back 
country."  This  region,  long  separated  from  the  coast  parishes 
by  an  uninhabited  wilderness,  was  slowly  occupied  after  1736, 
mainly  by  emigrants  from  Virginia,  Pennsylvania,  and  other 
middle  colonies,  advancing  from  the  north  to  the  rear  of  the 
earlier  settlements.5  Here  no  form  of  local  organization 


1  Constitution  of  1875,  Art.  IX,  sec.  8,  Poore,  Charters,  II,  1185. 
*On  the  authority  of  a  letter  to  the  author  from  Hon.  M.  K.  McGrath, 
Secretary  of  State,  dated  June  26,  1888. 

3  On  this  topic  see  Raiuage,  Local  Government  and  Free  Schools  in  South 
Carolina,  J.  H.  U.  Studies,  I ;  and  Ramsay,  History  of  South  Carolina,  II, 
Chap.  III. 

4  Ramage,  Local  Government  and  Free  Schools  in  South  Carolina,  22. 

5  Ramsay,  Hist,  of  South  Carolina,  I,  118 ;  Siuims,  Hist,  of  South  Carolina, 
142  ff. 


148          Rise  of  the  Township  in  the  Western  States. 

existed  until  1769.  Hitherto  the  only  courts  in  the  entire 
colony  were  held  in  Charlestown.  To  enforce  the  laws  in 
the  remote  settlements  of  the  interior  was  impossible,  and  the 
people  resorted  to  self-help  through  means  of  the  "  Regula- 
tors." To  obviate  these  evils,  in  the  year  mentioned,  judicial 
districts  for  the  holding  of  "circuit  courts"  were  established 
in  the  up  country.  And  in  1785,1  under  Virginia  influence, 
it  was  ordered  that  these  districts  should  be  divided  into 
counties;  but  in  1798  the  latter  system  was  abrogated,2  and 
the  name  "  district "  substituted  for  that  of  "  county  ;  "  and 
the  district  plan,  side  by  side  with  the  parish  system  of  the 
coast,  survived  until  the  Civil  War.  Finally  under  the  con- 
stitution of  1868,  the  long  rivalry  terminated  in  a  victory  for 
county  organization.  The  entire  state  was  subdivided  into 
counties,  subordinate  to  which  were  townships  with  rudi- 
mentary powers.3 

(c). — The  Economic  Rivalry  of  Local  Organisms. 

Another  form  of  conflict  in  local  organisms  exists  in  several 
of  the  northwestern  states  dependent  upon  conditions  other 
than  sectional  diversity  of  population.  To  understand  its 
nature  an  important  fact  very  evident  to  the  careful  observer, 
but  nevertheless  disregarded  by  writers  on  American  institu- 
tions must  be  considered. 

County  organization  is  usually  established  in  new  states  and 
territories,  even  when  the  constituency  of  the  population  and 
other  conditions  are  in  themselves  favorable  to  town  govern- 
ment, a  number  of  years  before  the  latter  is  adopted.  The 
reason  is  not  far  to  seek  :  county  government  is  cheaper  and 


1  South  Carolina  Statutes  at  Large,  IV,  661.     Cf.  Ramsay,  Hist,  of  South 
Carolina,  II,  71.     But  an  ordinance  for  dividing  the  districts  into  counties 
was  passed  in  1783:  Statutes  at  Large,  IV,  561. 

2  South  Carolina  Statutes  at  Large,  VII,  283  ff. 

3  Ramage,  Local  Government  and  Free  Schools  in  South  Carolina,  20-26. 


Evolution  of  the  Township- County  System.  149 

simpler :  indeed,  many  regard  it  as  the  only  practical  form  of 
local  administration  while  the  population  is  small  and  dis- 
persed over  large  areas.  There  are  two  considerations  which 
must  not  be  overlooked  in  this  connection.  In  the  first  place 
the  county  of  the  Northwest  is  a  very  different  institution 
from  that  which  preceded  it.  Since  the  Conquest  the  English 
shire  has  always  been  highly  centralized  ;  that  of  colonial 
Virginia  was  scarcely  less  so ;  while  only  in  New  York, 
Pennsylvania,  and  in  early  Massachusetts  was  the  elective 
principle  at  all  pronounced.1  But  the  western  county  is  a 
republic.  Its  officers  are  chosen  by  and  responsible  to  the 
people.  It  is,  in  short,  a  township  in  every  essential  respect 
save  the  possession  of  a  folkmoot.  Accordingly,  experience 
has  shown  that  the  county  may  safely  be  adopted,  even  by 
those  with  strong  predilection  for  the  town  system,  as  the 
cheapest  and  simplest  form  of  local  administration  during  the 
infancy  of  a  commonwealth.  Therefore  it  may  perhaps  be 
regarded  as  a  "  law  "  of  western  political  evolution,  that  the 
county-precinct  should  precede  the  township-county  system 
in  the  order  of  development. 

There  is  a  second  consideration  which  has 'already  been 
casually  alluded  to.  The  conditions  of  western  colonization 
are  very  different  from  those  which  existed  in  the  days  of 
John  Smith  or  William  Bradford.  The  western  pioneer  may 
become  the  member  of  a  "  town  company  "  or  a  speculator  in 
vast  tracts  of  land.  But  neither  close  town-life  nor  large 
plantations  is  the  normal  mode  of  settlement.  The  isolated 
homestead  of  a  half,  a  quarter,  or  a  half-quarter  section  is  the 
usual  domain  of  the  western  farmer.  Besides,  the  superior 
means  of  transportation  possessed  by  the  modern  pioneer,  the 
certainty  that  the  railway  will  speedily  follow,  if  indeed  it 
has  not  preceded  him ;  and  the  comparative  freedom  from 
danger  from  savage  man  or  beast, — render  him  almost  inde- 
pendent with  respect  to  neighbors  in  the  selection  of  his 

1  Perhaps  Delaware  should  also  be  here  mentioned. 


150          Rise  of  the  Township  in  the  Western  States. 

"  claim."  Thus  all  the  conditions  are  from  the  start  favora- 
ble to  a  somewhat  evenly  distributed  population,  and,  there- 
fore, to  the  larger  area  of  the  county  as  the  territorial  unit.1 

Now,  with  the  increase  of  population  and  the  expansion  in 
the  volume  of  public  business,  there  comes  a  time  when  it  is 
felt  that  county  government  fails  to  reach  the  extremities  of 
the  body  politic,  when  there  seems  to  be  need  of  a  smaller 
governmental  district  in  order  that  opportunity  may  be  afforded 
for  the  more  intimate  participation  of  every  citizen  in  the 
management  of  domestic  affairs.  Then  begins  an  agitation 
for  township  organization  which  sometimes  develops  into  a  long 
and  sharply  contested  struggle.  No  doubt  inherited  prejudices 
on  the  part  of  the  electors,  as  in  the  cases  already  discussed,2 
usually  constitute  an  important  element  of  the  conflict ;  but  it 
is  fought  out  mainly  on  economic  grounds.  Will  not  the  new 
government  on  account  of  the  multiplicity  and  reduplication 
of  offices  be  much  more  expensive  than  the  old?  Will  the 
new  board  of  supervisors — a  local  legislature,  sometimes  com- 
posed of  many  members — be  able  to  administer  public  affairs 
as  promptly,  intelligently,  and  honestly  as  the  commissioners? 
Does  not  the  present  system  favor  the  city  at  the  expense 
of  the  country,  and  will  not  the  change  destroy  the  official 
monopoly  of  the  "  courthouse  ring  ?  "  These  are  some  of  the 
considerations  which  have  weight  at  the  polls. 

The  history  of  Nebraska  affords  an  excellent  example  of 

1  It  should  be  noted  that  the  conditions  affecting  the  first  occupation  of 
new  territories  is  here  the  subject  of  discussion.     Undoubtedly  in  the  West 
as  elsewhere  there  is  a  strong  tendency  towards  a  too  rapid  development  of 
village  and  city  life.     "America  forms  no  exception  to  the  rule  that  popu- 
lation in  civilized  lands  gravitates  towards  great  centres.     Though  her 
immense*  agricultural  development  might  have  been  expected  to  arrest  this 
movement  and  divert  population  to  the  rural  districts,  such  has  not  been 
the  case : "  Carnegie,  Triumphant  Democracy,  46  ff. 

2  It  is  very  probable  that,  even  in  Illinois  and  South  Carolina,  the  economic 
considerations,  about  to  be  mentioned,  particularly  the  inertia  of  vested  ir'er- 
ests — of  established  institutions — had  more  to  do  with  the  conflict,  than  has 
been  supposed  or  can  now  be  ascertained. 


Evolution  of  the  Township- County  System.  151 

the  economic  rivalry  of  local  organisms.  When  the  territorial 
government  was  established  in  1854,  the  county  was  chosen 
as  the  political  unit;1  and  under  the  constitution  of  1867,  the 
same  system  was  continued.  Not  until  1875  was  the  first 
definite  step  taken  toward  the  substitution  of  the  township- 
county  plan.  In  the  constitution  of  that  year  the  legislature, 
following  the  Illinois  precedent,  was  authorized  to  frame  a 
general  township  act  whose  adoption  should  be  left  to  the 
voters  of  the  respective  counties.2  Thereafter  at  each  session 
of  the  legislature  attempts  were  made  to  enact  a  township  law; 
but  only  in  1883  was  it  accomplished.  And  in  the  five  years 
which  have  since  elapsed  but  twenty-four  out  of  the  eighty- 
three  organized  counties  of  the  state  have  put  the  law  in 
operation.3 

The  result  shows  conclusively  that  the  sources  of  population 
have  had  little  to  do  with  the  matter.  The  vast  majority  of 
the  people  of  Nebraska,  directly  or  indirectly,  are  emigrants 
from  New  England  and  the  Middle.  States.  Yet  among  the 
counties  that  still  refuse  to  adopt  township  organization  are 
some,  such  as  Lancaster,  Douglas,  and  Johnson,  which  are  the 
most  populous  and  very  decidedly  northern  in  sentiment; 
while  among  those  counties  first  to  put  the  act  in  force  are 
some  of  the  newer  and  less  densely  settled,  though  their  inhabi- 
tants are  probably  not  more  homogeneously  northern  in  origin 
than  the  others. 

By  the  constitution  of  California,  adopted  in  1879,  the 
legislature  is  required  to  provide  by  general  law  for  township 
organization,  to  be  carried  into  effect  on  the  county-option 
plan.4  Accordingly  an  act  of  1883  provides  for  a  uniform 
system  of  county  and  township  government.  But  the  Cali- 
fornia township  as  thus  created  is  an  inchoate  organism  being 

1  Complete  Session  Laws  of  Neb.,  I,  9,  94,  300,  236,  etc. 

*  Const,  of  Keb.,  1875,  Art.  X,  sec.  5,  Compiled  Statutes,  1887,  p.  32. 

'See  the  Catalogue  published  by  the  Slate  Journal  Company  for  1888,  pp.  8-9. 

*  Constitution  of  California,  Art.  XI,  sec.  4,  Laws  of  1887,  p.  xi/v. 


152          Rise  of  the  Township  in  the  Western  States. 

little  more  than  a  precinct  or  district  for  the  constable  and 
justice  of  the  peace.1 

Even  more  interesting  than  the  county-option  method  and 
still  better  calculated  to  satisfy  the  requirements  of  local  senti- 
ment and  local  economic  conditions,  is  the  plan  of  township- 
option  instituted  in  Minnesota 2  and  recently  borrowed  in  its 
entirety  by  Dakota.  In  the  last  named  territory  the  county- 
option  plan  was  first  tried;3  but  in  1883  it  was  enacted  that 
"  whenever  a  majority  of  the  legal  voters  of  any  congressional 
township  in  this  Territory  containing  twenty-five  legal  voters, 
petition  the  board  of  county  commissioners  to  be  organized  as 
a  town  .  .  .  ,  said  board  shall  forthwith  proceed  to  fix  and 
determine  the  boundaries  of  such  new  town  and  to  name  the 
same ;  and  said  board  shall  make  a  full  report  of  all  their 
proceedings  .  .  .  ,  and  file  the  same  with  the  county  auditor 
or  county  clerk."4  By  this  system,  it  is  readily  seen,  that  any 
congressional  township  within  any  county  of  the  territory, 
having  a  voting  population  of  no  more  than  twenty-five,  can 
put  the  township  law  in  operation  without  affecting  other 
districts  in  the  same  county  which  may  remain  as  before  solely 
under  the  direct  supervision  of  the  county  authorities.5  The 
motive  of  this  plan  is  thoroughly  English.  By  it  the  spirit 
of  localism  is  allowed  the  freest  scope :  what  is  lost  in  sym- 
metry is  more  than  gained  in  flexibility.  By  the  county-option 
method  two  forms  of  local  government  may  coexist  in  the 
same  state ;  by  the  township-option  plan  they  may  flourish  in 
the  same  district  side  by  side.  And  it  is  evident  that  the 
primary  object  of  either  method  is,  not  so  much  to  allow  free 


1  Each  township  is  to  have  two  constables,  two  justices,  and  such  inferior 
officers  as  the  law  or  the  county  board  of  supervisors  may  determine :  Laws 
0/1883,  p.  315. 

2  Statutes  of  Minnesota,  1878,  p.  168. 

3  Revised  Codes  of  Dakota,  1877,  p.  62. 

*  Laws  of  Dakota,  1 883,  pp.  231-2  ;  Compiled  Laws,  1887,  p.  1 73.  The  pro- 
visions of  the  act  are  identical  with  those  of  the  Minnesota  law. 

5  Letter  to  the  author  from  Hon.  P.  F.  McClure,  Commissioner  of  Immigra- 
tion and  Statistics,  dated  July  19,  1888. 


Evolviion  of  the  1 ownship-  County  System.  153 

play  to  opinions  dependent  upon  sectional  bias — though  indeed 
tliis  is  permitted — as  it  is  to  allow  each  community  the  right 
to  determine  for  itself  the  time  when,  economically  or  politically, 
a  higher  degree  of  localization  is  expedient. 

But  when  civil  institutions  were  first  established  in  the 
Northwest  Territory,  it  was  impossible  to  conceive  the 
methods  which  would  best  be  adapted  to  the  conditions  of 
western  settlement  fifty  years  in  advance.  Besides  the  rela- 
tive advantages  of  town  and  county  government  were  not 
well  understood.  The  real  capabilities  of  the  fully  developed 
county-republic  with  its  elective  officers  were  not  yet  entirely 
revealed.  The  problem  of  local  government,  therefore,  was 
solved  in  a  different  way.  Let  us  see  how  this  was  done  in  a 
particular  instance. 

The  institutional  history  of  Michigan  is  of  peculiar  interest 
not  only  because  that  state  was  the  first  west  of  'the  Allegha- 
nies  to  adopt  and  ultimately  put  in  successful  operation  the 
New  York  system  of  representative  local  government,  but 
because,  on  account  of  the  preponderance  of  New  England 
ideas,  the  township  was  introduced  at  an  earlier  stage  than  we 
should  now  think  best  from  an  economic  point  of  view. 

During  the  territorial  period  several  phases  of  institutional 
development  may  be  traced.  In  1805  judicial  districts  were 
created  by  Governor  Hull,  and  it  was  expected  that  they 
should  ultimately  be  subdivided  into  counties.1  The  gradual 
differentiation  of  local  offices  and  functions  constitutes  a  sec- 
ond stage.  Thus  the  congressional  townships  were  adopted  as 
highway  districts,  and  the  governor  was  authorized  to  appoint 
a  "supervisor"  for  each.2  In  like  manner,  as  early  as  1809, 


1  Territorial  Laws  of  Mich.,  I,  17.  Various  counties  were  formed  during 
the  administration  of  Gen.  Cass:  /&.,  Index  at  Counties.  But  as  early  as 
1798,  under  the  law  of  1790  enacted  by  the  governor  and  judges  of  the 
Northwest  Territory,  four  townships  were  created  in  Wayne  county: 
Farmer,  Hist,  of  Detroit  and  Mich.,  1'27. 

*  In  1805  the  governor  was  authorized  to  create  highway  districts  and 
appoint  supervisors:  Territorial  Laws,  I,  77-8,  178-9;  11,  93.  But  in  1819 


154          Rise  of  the  Township  in  the  Western  States. 

commissioners  for  the  care  of  the  poor  in  each  county  were 
appointed.1  Municipalities  were  also  granted  powers  of  self- 
government  by  special  enactment.  Thus  in  1815  Detroit  was 
incorporated  as  a  city  with  elective  trustees  and  the  right  to 
levy  taxes  for  local  purposes;  and  in  1821  Prairie  du  Chien 
was  made  a  borough  with  similar  powers.2 

A  third  and  more  important  epoch  was  reached  in  1825 
when  the  governor  and  council  were  authorized  by  Congress 
to  incorporate  civil  townships  and  provide  for  the  election  of 
township  and  county  officers.3  This  was  the  real  beginning 
of  the  elective  township-county  system  in  Michigan ;  and  in 
1827,  by  three  separate  enactments,  the  New  York  system, 
with  a  numerous  body  of  town  officers,  a  restricted  right  of 
local  taxation,  and  representation  on  the  county  board,  was 
introduced.4  Still  the  authority  of  the  county  greatly  exceeded 
that  of  the  town ;  but  the  powers  of  the  latter  have  steadily 
increased  until  the  present  time.5 

Now  what  were  the  forces  which  determined  the  course  of 
institutional  development  in  Michigan  ?  Dr.  Bemis  has 
pointed  out  that  in  1805  the  laws  established  in  the  Territory 
were  derived  from  those  of  Virginia,  Ohio,  New  York,  and 
Massachusetts  "in  about  equal  proportions;"  and  "as  the  Ohio 
legislation  was  in  part  a  copy  of  Virginia  and  Pennsylvania 

it  was  enacted  that  the  appointment  should  be  made  on  nomination  of  the 
county  commissioners:  /&.,  I,  449;  and  in  1825  the  commissioners  were 
given  the  power  of  dividing  the  county  into  districts :  76.,  II,  289. 

1  Territorial  Laws  of  Mich.,  II,  41.  Dr.  Bemis,  Local  Government  in  Michigan 
and  the  Northwest,  10,  states  that  highway  commissioners  were  also  given 
the  relief  of  the  poor  in  1820. 

2  Bemis,  Local  Govt.  in  Michigan  and  the  Northwest,  10 ;  Territorial  Laws  of 
Mich.,  I,  534-41,  236-43. 

3  Act  of  Feb.  5,  1825:   U.  S.  Statutes  at  Large,  IV,  80.     But  the  right  of 
election  did  not  extend  to  sheriffs,  justices  of  the  peace,  judges  of  probate, 
or  clerks  and  judges  of  courts  of  record.     However  Gen.  Cass  insisted  that 
even  these  should  be  nominated  by  vote  of  the  people  before  formal  appoint- 
ment by  him  :  Campbell,  Political  History  of  Mich.,  413. 

*  Territorial  Laws  of  Mich.,  II,  317-25,  325-29,  584. 

5  Bemis,  Local  Govt.  in  Mich,  and  the  Northwest,  10-11.    Cf.  Chap.  X,  II,  (c). 


Evolution  of  MM  Township- County  System.  155 

laws,  the  influence  of  the  two  different  systems  of  local  govern- 
ment, cfiitnili/ed  and  decentralized,  was  about  equal."  But 
the  great  majority  of  the  later  settlers  in  the  Territory  were 
men  from  New  York  and  New  England,  bringing  with  them 
u  >trong  love  for  township  organization;  and  between  1813 
and  1831  the  desire  for  local  self-government  was  fostered 
by  the  great  personal  influence  of  General  Cass.  "He  was 
thoroughly  imbued  with  New  England  ideas  of  local  govern- 
ment, under  which  he  was  born  and  brought  up.  He  gradually 
abandoned  the  appointment  of  county  and  township  officers, 
and  urged,  nay,  required  the  people  to  elect  them."1  Thus  the 
establishment  of  the  township-county  system,  twelve  years 
before  the  attainment  of  statehood,  would  seem  to  have  been 
the  result  of  strong  sectional  bias.  But  was  not  its  introduc- 
tion really  premature?  Economically  would  it  not  have  been 
cheaper  and  more  convenient  to  have  retained  the  county  as 
the  political  and  administrative  unit  for  a  longer  period? 
To-day,  under  precisely  the  same  conditions  as  to  origin  and 
density  of  population,  the  centralized  county-precinct  system 
would  probably  be  regarded  as  entirely  adequate;  or,  at  most, 
one  or  the  other  method  of  local  option  would  be  put  in 
requisition.  Still  it  must  not  be  supposed  that,  in  the  sparsely 
settled  frontier  regions,  there  was,  in  practice,  an  entirely 
useless  reduplication  of  local  offices  such  as  would  have 
resulted  from  a  thorough  enforcement  of  the  mixed  township- 
county  system.  The  fact  is  that  in  Michigan,  just  as  in  New 
England,  the  planting  of  townships  preceded  the  organization 
of  counties.  u  For  the  sake  of  uniformity  in  lines  and  limits 
our  counties  were  many  of  them  formed  by  legislative  enact- 
ment before  there  was  any  settlement  in  them.  As  they 
gradually  became  inhabited  township  organizations  were 
formed,  frequently  including  entire  counties,  and  all  such 
were  attached  to  organized  counties  for  judicial  purposes  until 


1  Bemis,  focal  Govt.  in  Mich,  and  the  Northwest,  10-12.    Cf.  Campbell,  Pol. 
Hist,  of  Mich.,  392,  413;  Cooley,  Michigan,  201,  205. 


156  Rise  of  the  Township  in  the  Western  States. 

after  the  county  itself  was  organized.  The  actual  township 
organization  always  preceded  the  county  organization  and  the 
latter  seldom,  if  ever,  took  place  until  after  there  were  three 
organized  townships  within  its  limits."1 

This,  however,  was  pursuing  democratic  self-government 
under  some  difficulty.  Owing  to  the  vast  area  of  the  town- 
ships2 and  the  scattered  settlements  therein  "the  law  author- 
ized two  days'  election  and  allowed  the  inspectors  to  open  the 
polls  at  a  different  point  in  the  township  on  each  day;"3 
moreover  the  town-meeting,  when  the  entire  voting  population 
was  assembled,  sometimes  comprised  but  eight  or  ten  electors.4 


II. — CONSTITUTIONAL  LIMITATIONS  OF  THE  TOWNSHIP. 
(a). — Differentiated  Forms. 

English  local  bodies  were  originally  characterized  by  an 
individuality  and  spontaneity  of  growth  which  even  the  hand 
of  the  modern  statute-maker  has  not  been  able  entirely  to 
destroy.  In  the  seventeenth  century  scarcely  any  two  towns 
or  parishes  possessed  precisely  the  same  organism  or  customs, 
though  essentially  the  same  type  everywhere  prevailed.  In 
the  new  commonwealths  of  the  West  the  case  is  very  different. 
The  local  organizations  within  each  particular  state  are  con- 
structed on  exactly  the  same  general  model.  Every  town  or 
county  is  the  duplicate  of  every  other.  On  the  contrary, 
between  the  different  states,  there  is  theoretically  complete 
independence  in  this  regard.  Within  the  broad  limits  per- 


1  Extract  from  a  letter  to  the  author  from  the  Hon.  Michael  Shoemaker, 
Chairman  of  the  Committee  of  Historians  of  the  Michigan  Pioneer  and  His- 
torical Society. 

2  A  single  township  sometimes  comprised  a  whole  county :  see  examples  in 
Mich.  Pioneer  Collections,  1,171;  II,  280,  289 ;  III,  387,  493  ;  ,VII,  519,  228, 
261.     Or  even  two  or  three  counties:  76.,  I,  208;  VII,  471. 

'Judge  Miller  in  Mich.  Pioneer  Coll.,  VII,  228. 
*  Mich.  Pioneer  Coll.,  VII,  418,  519. 


Constitutional  Limitations  of  the  Toionship.           157 

mitted  by  the  fundamental  law  of  the  Republic,  the  legislature 
of  each  commonwealth  is  an  autocrat,  and  may  create  such 
civil  bodies  as  it  sees  fit.  But  this  is  true  only  in  theory  ;  in 
practice,  the  experience  of  the  older  states  has  constituted  a 
common  stock  for  the  younger  whose  laws  and  institutions  are 
the  result  of  "  natural  selection."  Thus  it  happens  that,  while 
the  statutes  differ  widely  in  subordinate  features,  but  three  well 
defined  general  types  of  township  organization  exist  in  the 
western  states  and  territories. 

1.  The  lowest  or  least  developed  type  is  that  which  first 
arose  in  Pennsylvania,  and  which,  with  various  modifications, 
has  since  been  adopted  by  Ohio,  Indiana,  Iowa,  Kansas,  and 
Missouri.  Under  this,  the  so-called  "  Pennsylvania  plan," 
the  people  possess  the  essentials  of  local  self-government. 
The  township  is  usually  a  self-taxing  body ; l  has  a  corps  of 
officers,  more  or  less  numerous,  chosen  by  popular  ballot ;  and 
it  is  sometimes  entrusted  with  a  most  important  branch  of 
local  administration — the  management  of  the  public  schools. 
Beyond  these  limits  its  constitution  does  not  extend.  Two 
important  attributes  of  the  highest  type  of  town  organization 
are  lacking :  the  right  of  representation  on  the  county  board, 
and  the  deliberative  folkmoot — the  principal  marks  of  class 
differentiation.  Accordingly  the  township  is  brought  into 
close  subordination  to  the  county  authority,  and  the  will  of 
the  people  finds  direct  expression  only  in  the  choice  of  officers 
at  the  polls.2 


1  Township  Organization  Law  of  Mo.,  18;  Gould,  Local  Self- Government  in 
Pa.,  34 ;  Macy,  A  Government  Text  Book  for  Iowa,  Schools,  22. 

1  Among  the  group  of  states  under  consideration  the  simplest  and  most 
rudimentary  form  of  the  township  is  found  in  Indiana.  The  duties  of  clerk, 
treasurer,  fence  viewer,  inspector  of  elections,  and  overseer  of  the  poor  are 
combined  in  the  hands  of  one  officer — the  township  trustee ;  but  assessors, 
justices,  constables,  and  road  superintendents  are  also  chosen  by  the  people: 
Stai.  of  Ind.,  1852,  637-9;  Revised  Statutes,  1881,  pp.  1019,  1091,  1286.  In 
Ohio,  likewise,  the  functions  of  the  township  are  comparatively  restricted, 
and  the  board  of  three  trustees  is  entrusted  with  much  power.  Each  town, 
however,  has  also  a  clerk,  a  treasurer,  as  many  constables  and  supervisors 


158          Rise  of  the  Township  in  the  Western  States. 

2.  The  second  type  of  town  government  in  the  ascending 
scale  is  the  system  developed  in  Minnesota  and  transplanted 
thence  to  the  territory  of  Dakota.     This  type  differs  from  the 
first  in  the  possession  of  somewhat  more  extended  powers  and, 
possibly,  a  more  evenly  balanced   and  carefully  elaborated 
organism.     But  its  distinguishing  mark  is  the  annual  town- 
meeting,  assembled  not  only  for  the  choice  of  officers  but  for 
the  enactment  of  by-laws  and  the  exercise  of  other  functions 
of  a  restricted  legislative  body.1 

But  here,  also,  is  subordination  to  the  county  board  with- 
out representation. 

3.  The  third  and  highest  form  of  local  organization  is  that 
usually  styled  the  "  New  York  plan,"  from  the  place  of  its 
origin,  and  which  has  already  been  established  in  the  states  of 
Michigan,  Illinois,  Wisconsin  and  Nebraska.     Here  the  spirit 
of  localism  finds  opportunity  for  freest  expression.     The  con- 
stitutional organism  is  symmetrical  and  complete ;  the  town- 
meeting  possesses  powers  commensurate  with  the  requirements 
of  modern  life ;  and  the  primitive  and  proper  nexus  between 
scir  and  tunscipe  is  restored.     The  township  is,  of  course,  sub- 
ordinate to  the  county,  but  it  is  subordination  with  representa- 
tion; for,  in  the  county  board  composed  of  the  supervisors  or 
other  head-men  of  the  townships,  we  behold  a  rehabilitation 
of  the  ancient  scirgemot.     In  short,  the  representative  town- 
ship-county system  of  the  Northwest  seems  to  be  one  of  the 
most  perfect  products  of  the  English  mind  and  worthy  to 
become,  as  it  not  improbably  may  become,  the  prevailing  type 
in  the  United  States. 


of  roads  as  the  trustees  may  determine,  and  one  or  more  assessors :  Revised 
Statutes  of  Ohio,  I,  294-305.  Perhaps  California  should  be  classed  with  the 
states  having  the  Pennsylvania  plan ;  but,  as  already  intimated,  the  Cali- 
fornia township  is  such  in  little  more  than  name. 

1  Laws  of  Dakota,  1 883,  p.  235 ;  Statutes  of  Minnesota,  1878,  pp.  170  f. 


Constitutional  Limitations  of  the  Township.           159 

(6). — Subordination  to  the  State. 

The  western  township  as  a  political  body  is  wholly  a  crea- 
ture of  the  state.  It  is  the  aim  of  the  legislator,  by  a  general 
organic  law — often  an  elaborate  instrument — to  define  exactly 
all  of  its  corporate  powers,1  and  to  enumerate  exhaustively 
every  general  function  which  its  officers  may  properly  dis- 
charge. Its  character  as  a  municipal  corporation  is  usually 
defined  somewhat  as  follows  : — 

"  Each  township,  as  a  body  corporate,  shall  have  power 
and  capacity  :  First,  to  sue  and  be  sued,  in  the  manner  pro- 
vided by  the  laws  of  the  state;  second,  to  purchase  and 
hold  real  estate  within  its  own  limits  for  use  of  its  inhabi- 
tants .  .  . ;  third,  to  make  such  contracts,  purchase  and  hold 
personal  property,  and  so  much  thereof  as  may  be  necessary  to 
the  exercise  of  its  corporate  or  administrative  power ;  fourth, 
to  make  such  orders  for  the  disposition,  regulation,  or  use  of 
its  corporate  property  as  may  be  conducive  to  the  interest  of 
the  inhabitants  thereof;  fifth,  to  purchase  at  any  public  sale, 
for  the  use  of  said  township,  any  real  estate  which  may  be 
necessary  to  secure  any  debt  to  said  township.  .  . 

"  No  township  shall  possess  any  corporate  powers,  except 
such  as  are  enumerated  or  granted  by  this  chapter,  or  shall  be 
specially  given  by  law,  or  shall  be  necessary  to  the  exercise  of 
the  powers  so  enumerated  or  granted."2 


1  In  Michigan,  in  early  days,  just  as  in  colonial  New  England,  each  indi- 
vidual township  was  bounded  and  incorporated  by  special  act  of  the  legisla- 
ture. This  was  originally  done  under  authority  of  Congress  :  U.  S.  Statutes 
at  Large,  IV,  80.  See  many  examples  of  special  incorporation  in  the 
Michigan  Pioneer  Collections. 

*  Township  Organization  Law  of  Mo.,  5-6 ;  similar  provisions  are  contained  in 
the  township  acts  of  all  the  states.  See,  for  examples,  Compiled  Statutes  of 
ATe6.,  316;  Revised  Codes  of  Dakota,  63;  Laws  of  Dakota,  1883,  pp.  223-4;  Ohio 
Revised  Statutes,  1886,  I,  279;  Shaw,  Local  Govt.  in  III.,  12;  New  York  Revised 
Statutes,  I,  805  (copied  by  Missouri)  ;  Howell's  Annotated  Statutes  of  Mich.,  I, 
239 ;  Revised  Statutes  of  Wisconsin,  1878,  p.  269. 


1GO          Rise  of  the  Township  in  the  Western  States. 

In  a  similar  manner  the  powers  which  may  be  exercised  by 
the  electors  in  town-meeting  are  formally  enumerated  in  the 
statutes. 

(c). — Subordination  to  the  County. 

Administratively  the  township  is  a  body  subordinate  to  the 
county  authority,  the  degree  of  dependence  varying  greatly 
among  the  different  states. 

In  the  first  place,  where  county-option  exists,  it  is  the 
body  of  electors  in  the  county  which  determine  whether  town 
organization  shall  be  adopted,  or  whether  after  adoption  it 
shall  be  abrogated.1  Moreover  the  original  division  of  the 
county  into  townships  and  the  creation  of  new  townships  by 
subdivision  are  placed  in  the  hands  of  the  county  board.2 

The  procedure  on  the  adoption  of  township  government  by 
a  county  may  be  illustrated  from  the  Nebraska  statutes.  The 
election  precincts  are  regarded  as  townships  for  the  purposes 
of  the  first  temporary  organization.  After  the  choice  of  officers 
in  such  precinct-townships,  a  "special"  meeting  of  the  county 
board,  composed  of  the  newly  elected  town  supervisors,  is  held, 
and  they  are  required  "  to  divide  such  county  into  towns  or 
townships,  making  them  conform  as  nearly  as  practicable  to 
townships  according  to  the  government  survey.  When  frac- 
tions of  townships  are  caused  by  the  county  lines  not  being 


1  Abrogation  of  town  organization  by  a  majority  of  the  electors  of  the  county 
is  thus  provided  for  in  Nebraska :  "  Whenever  a  petition  or  petitions  for  a 
submission  of  the  question  of  the  discontinuance  of  township  organization  to 
the  voters  of  his  county,  signed  by  not  less  than  one-third  of  the  number  of 
electors  of  the  county,  voting  at  the  last  general  election,  shall  be  filed  in 
the  office  of  the  county  clerk  not  less  than  thirty  days  before  the  date  of  any 
general  election,  it  shall  be  the  duty  of  said  county  clerk  to  cause  said  question 
to  be  submitted  to  the  voters  of  said  county  at  such  election  and  give  notice 
thereof  in  the  general  notice  of  such  election  :  "  Compiled  Statutes,  1887,  p. 
323.  Cf.  Township  Organization  Law  of  Mo.,  29. 

a  Revised  Statutes  of  New  York,  II,  929,  931 ;  Howell's  Annotated  Statutes  of 
Mich.,  I,  59  (Const.,  Art.  X,  sec.  11) ;  Revised  Statutes  of  Wisconsin,  1878, 
p.  239. 


Constitutional  Limitations  of  the  Township.          161 

in  accordance  with  the  surveyed  townships,  then  the  county 
board  may  attach  such  fractions  to  adjoining  towns  when  the 
i) in uber  of  inhabitants  or  amount  of  territory  .  .  .  shall  not 
be  sufficient  for  a  separate  town."  In  like  manner,  when  an 
entire  surveyed  township  "shall  have  too  few  inhabitants  for 
a  separate  organization  "  it  may  be  attached  to  some  adjoining 
township  or  divided  between  two  or  more  as  the  board  shall 
determine.  And  "  when  creeks  or  rivers  so  divide  a  township 
as  to  make  it  inconvenient  for  transacting  town  business,  then 
such  creek  or  river  may  be  made  the  town  boundary"  and  the 
"  fractions  so  formed  may  be  disposed  of  as  other  fractional 
townships."  The  county  board  may  also  designate  the  original 
name  of  the  township,  and  change  the  same  on  petition  of  the 
inhabitants.1 

The  county  is  also  invested  with  a  general  supervisory 
authority  over  the  township  administration.  In  Indiana,  for 
example,  no  taxes  may  be  levied  without  the  approval  of  the 
county  board.2  In  Nebraska,  on  failure  of  any  township  to 
organize  by  choosing  officers  according  to  law,  such  officers 
may  be  appointed  by  the  board  of  supervisors  and  exercise  the 
same  powers  as  if  regularly  elected.  Moreover,  should  the 
officers  thus  nominated  fail  to  qualify,  the  board  may  annex 
the  township  concerned  to  any  adjoining  township  of  which  it 
shall  thereafter  constitute  a  part.8  The  county  board  is  also 
entrusted  with  important  duties  connected  with  the  issue  of 
precinct  or  township  bonds;4  in  most  states  it  is  constituted 


1  Compiled  Statutes  of  Neb.,  1887,  pp.  315-16,  297;  Revised  Statutes  of  New 
York,  II,  930;  Revised  Statutes  of  Wisconsin,  1878,  p.  239.  In  Missouri  the 
(xmnty  court  may  make  alterations  in  townships  when  :«  majority  of  the  elec- 
tors in  the  district  affected  shall  BO  decide:  Township  Organization  Law,  6. 

1  Revixed  Statutes  of  Indiana,  1881,  p.  1286.  Taxes  are  levied  by  the  town 
trustee  and  the  county  commissioners;  but  in  case  of  disagreement,  the 
commissioners  alone  may  make  the  levy. 

3Compiled  Statutes  of  Neb.,  317.  Cf.  Township  Organization  Law  of  Mo., 
14. 

4  Compiled  Statutes  of  Neb.,  487  ;  Revised  Statutes  of  New  York,  II,  930. 
11 


162          Rise  of  the  Township  in  the  Western  States. 

the  authority  for  the  equalization  of  assessments;1  and,  in 
some  instances,  it  is  a  court  of  appeal  from  the  decisions  of 
the  town  officers  in  various  matters.2 


III. — THE  TOWN-MEETING. 

(«). — Membership  and  Organization. 

In  those  states  where  either  of  the  two  higher  types  of  local 
government  prevails,  the  town-meeting  is  the  centre  of  politi- 
cal life.3  But  it  does  not  possess  all  the  attributes  of  the 
primitive  folkmoot.  Popular  enthusiasm  is  less  pronounced ; 
the  sphere  of  its  activity  is  more  circumscribed ;  and  the 
members  are  less  conscious  of  its  capabilities.  In  short  the 
assembly  is  a  commonplace  business  meeting,  the  ancient 
democratic  elements  having  in  part  yielded  to  the  more 
efficient  and  less  demonstrative  methods  of  representative 
government.  But  the  powers  of  the  western  town-meeting 
are  commensurate  with  the  needs  of  a  more  fully  developed 
society ;  and  there  is  no  reason  to  regret  that  the  excessive 
publicity  and  obtrusive  functionalism  of  primitive  New  Eng- 
land have  not  been  perpetuated. 

In  Nebraska  the  annual  meeting  is  held  on  the  first  Tues- 
day in  April  at  some  place  designated  by  the  electors  in  a 
preceding  meeting.4  Special  meetings  may  also  be  held  when 


1  Compiled  Statutes  of  Neb.,  595,  596  ;  Revised  Statutes  of  New  York,  II,  996, 
999,  938  ;  Township  Organization  Law  of  Mo.,  31. 

2  So,  in  Missouri,  appeals  from  the  township  board  in  case  of  laying  out 
highways  may  be  made  to  the  county  court :  Township  Organization  Law, 
42,  43.     In  New  York  appeal  lies  to  the  board  of  supervisors  from  town 
auditors  of  accounts :  Revised  Statutes,  I,  836. 

3  Michigan  was  the  first  state  west  of  New  York  to  introduce  the  town- 
meeting:  Bemis,  Local  Oovt.,  etc.,  14.     But  in  1798,  as  already  noted,  the 
legislation  of  the  Northwest  Territory  had  provided  for  town-meetings  for 
purposes  of  election. 

4  Compiled  Statutes,  1887,  p.  317.     So  also  in  Illinois  and  Wisconsin :  Starr 
and  Curtis'  Annotated  Statutes  of  Itt.,  II,  2415;  Revised  Statutes  of  Wis.,  1878, 


The.  lown-Mcding.  163 

the  supervisor,  clerk,  and  justice  of  the  peace,  or  any  two  of 
them,  together  with  at  least  twelve  freeholders,  shall  file  in 
the  office  of  the  town  clerk  a  statement  that  such  meeting  is 
necessary  to  the  interests  of  the  town,  and  setting  forth  its 
objects.  The  town  clerk,  or  in  his  absence,  the  supervisor,  is 
then  required,  ten  days  in  advance,  to  post  up  notices  in  five 
of  the  most  public  places  of  the  township,  describing  the 
objects  of  the  meeting  as  specified  in  the  foregoing  statement. 
Special  meetings  are  organized  in  the  same  way  and  the  mem- 
bers may  exercise  the  same  powers  as  in  annual  meetings, 
except  that  all  of  the  objects  of  a  special  meeting  must  be 
published  in  the  notice  and  not  less  than  one-third  of  the 
electors  of  the  township  shall  constitute  a  quorum.1 

On  the  proper  day,  at  any  time  between  the  hours  of  nine 
and  ten  iu  the  morning  the  meeting  may  be  called  to  order  by 
the  town  clerk,  or  in  his  absence  by  a  temporary  chairman 
chosen  by  acclamation.  A  moderator  is  then  elected  as 
permanent  presiding  officer,  who  is  required  to  take  an  oath 
faithfully  to  discharge  his  duties.2  The  town  clerk,  as  in 
most  states,  is  ex  ojficio  clerk  of  the  meeting ;  and  he  is  required 
to  keep  a  faithful  record  of  all  proceedings,  which  must  be 
signed  by  himself  and  the  moderator  and  preserved  among  the 


p.  273.  In  Minnesota  the  annual  meeting  occurs  on  the  second  Tuesday  of 
March:  Statutes,  1878,  p.  169;  in  Dakota,  on  the  first  Tuesday  of  March: 
Compiled  Statute*,  1887,  p.  175 ;  in  New  York,  on  any  legal  day  between 
Feb.  1  and  May  1 :  Revised  Statutes,  I,  812. 

1  Compiled  Statutes  of  Neb.,  1887,  p.  318.     Cf.  Statutes  of  Minnesota,  1878, 
p.  170;   Revised  Statutes  of  Wisconsin,  1878,  p.  274;    Compiled  Statutes  of 
Dakota,  1887,  p.  176;  Starr  and  Curtis'  Annotated.  Statutes  of  IU.,  II,  2415. 

2  In  Michigan  the  supervisor  is  moderator,  when   present ;    otherwise 
another  of  the  inspectors  of  elections,  or  a  chairman  chosen  viva  voce  : 
IIiAu-ll's  Annotated  Statutes,  1882, 1,  p.  258.     In  Wisconsin  the  "chairman  of 
the  town"  is  chairman  of  the  meeting:  Revised  Statutes,  1878,  p.  274.     In 
New  York  such  justices  of  the  peace  as  are  present  preside:  Revised  Statutes, 
I,  812.    In  Minnesota,  Illinois,  and  Dakota,  a  moderator  is  chosen  for  each 
meeting  by  the  electors:  Statutes  of  Minnesota,  1878.  p.  171 ;  Compiled  Statutes 
of  Dakota,  1887,  p.  177  ;  Starr  and  Curtis'  Annotated  Statutes  of  IU.,  II,  2417. 


164          Rise  of  the  Township  in  the  Western  States. 

documents  of  his  office.  In  the  absence  of  the  town  clerk,  a 
temporary  clerk  of  the  meeting  may  be  chosen. 

Every  citizen  of  the  township  who  is  entitled  to  vote  at  a 
general  election  and  who  has  been  a  resident  therein  for  ten 
days  is  an  elector. 

Vote  is  usually  taken  by  acclamation  or  by  division,  when 
the  result  is  questioned ;  but  in  certain  cases,  prescribed  by 
law,  as  for  restraining  the  running  at  large  of  stock,  vote  must 
be  by  ballot.1 

(6). — Functions  of  the  Town-Meeting. 

The  electors  in  town-meeting  assembled  are  invested  with 
important  powers  of  self-government.  In  the  first  place,  they 
are  formally  authorized  by  law  to  make  all  necessary  provision 
for  the  maintenance  of  their  character  as  a  body  politic :  to 
pass  all  needful  orders  for  the  sale,  conveyance,  regulation,  or 
use  of  the  corporate  property,  personal  or  real ;  to  provide  for 
the  institution,  defence,  or  disposition  of  suits  at  law ;  and  to 
give  all  other  necessary  direction  for  the  exercise  of  their  cor- 
porate powers.2 

In  Nebraska  and  Illinois  they  may  also  provide  for  the 
planting  of  trees  along  the  highways ;  for  the  construction  of 
public  wells  and  the  regulation  of  their  use ;  and  take  such 
action  as  shall  prevent  the  exposure  or  deposit  of  injurious 
substances  within  the  limits  of  the  town.3  In  Wisconsin, 
besides  powers  similar  to  the  foregoing,  the  electors  may  levy 
money  for  the  support  of  destitute  soldiers,  to  build  a  town 


1  Compiled  Statutes  of  Neb.,  1887,  p.  317. 

2  Compiled  Statutes  of  Neb.,  1887,  p.  316.     Cf.  Revised  Statutes  of  Wisconsin, 
1878,  pp.  270-71 ;  Revised  Statutes  of  New  York,  I,  808-9 ;  Statutes  of  Minne- 
sota., 1878,  p.  170;  Compiled  Statutes  of  Dakota,  1887,  p.  176;  Starr  and  Curtis' 
Annotated  Statutes  of  III,  II,  2411. 

s  Compiled  Statutes  of  Neb.,  1887,  p.  316;  Starr  and  Curtis'  Annotated  Statutes 
ofltt.,  II,  2412. 


The  Toitm-Meeting.  165 

hall,  or  establish  a  town  library.1  In  New  York  they  may 
offer  rewards  for  the  destruction  of  noxious  weeds ;  establish 
and  maintain  pounds,  and  determine  by  vote  the  number  of 
assessors,  constables,  and  pound-masters,  which  shall  be  elected 
for  the  ensuing  year.2 

The  right  of  self-taxation — the  first  instance  of  whose  exer- 
cise by  a  local  body  is  found  in  the  case  of  the  parish  vestry — s 
i<  -till  possessed  by  the  township  electors,  though  the  amount 
which  may  be  levied  for  any  purpose  is  carefully  limited  by 
statute.  Thus,  in  Nebraska,  they  may  raise  money  by  taxa- 
tion for  the  construction  and  repair  of  bridges  and  highways 
within  the  town,  and  for  the  purpose  of  building  or  repairing 
bridges  over  streams  which  form  the  boundary  between  the 
township  and  another;  for  the  prosecution  or  defence  of  suits 
at  law ;  for  the  support  of  the  poor ;  and  for  the  compensation 
of  town  officers.4 

The  town-meeting  is  also  a  legislative  body  authorized  to 
make  orders  or  enact  by-laws  on  a  variety  of  subjects.  In 
Wisconsin,  for  example,  the  electors  "  may  make  such  orders 
and  by-laws  for  the  management  of  all  the  affairs  of  the  town 
as  they  may  judge  conducive  to  the  peace,  welfare,  and  good 
order  thereof,  and  as  shall  be  necessary  to  restrain  drunkenness 
or  disorderly  conduct;  and  such  orders  and  by-laws  restraining 
cattle,  horses,  sheep,  swine,  and  other  animals  from  going  at 


1  Revised  Statutes  of  Wis.,  1878,  pp.  270-1.  In  Michigan  and  Dakota,  like- 
wise, money  may  be  appropriated  at  the  town-meeting  for  the  support  of  a 
town  library :  Green,  Townships  and  Township  Officers,  90-91 ;  Bemis,  Local 
Oovt.  in  Mich,  etc.,  15 ;  Compiled  Statutes  of  Dakota,  1887,  p.  255. 

*  These,  of  course,  in  addition  to  powers  similar  to  those  already  enumerated : 
Revised  Statutes,  I,  808-9.  Illinois  has  similar  provisions  relating  to  noxious 
weeds,  pounds,  and  pound-masters :  Starr  and  Curtis'  Annotated  Statutes,  II, 
2412. 

•See  above,  Chap.  I,  iv,  («). 

4  Compiled  Statutes,  1 887,  pp.  316-17.  Cf.  Revised  Statutes  of  Wis.,  1 878,  pp. 
269-71 ;  Revised  Statutes  of  New  York,  I,  808-9 ;  Howell's  Annotated  Statutes 
of  Mich.,  1882,  I,  p.  240;  Compiled  Laws  of  Dakota,  1887,  p.  176;  Statutes  of 
Minn.,  1878,  p.  170;  Starr  and  Curtis'  Annotated  Statutes  of  III.,  II,  2411. 


166          Rise  of  the  Township  in  the  Western  States. 

large  on  the  highways,  as  they  may  deem  proper,"  and  fix 
penalties  for  violation  of  such  regulations,  "not  exceeding  ten 
dollars"  for  any  one  instance.1 

In  Nebraska,  as  elsewhere,  the  electors  possess  similar  legis- 
lative authority.  They  may  also  take  measures  to  guard 
against  the  destruction  of  property  by  prairie  fires.2 

The  legislative  powers  of  the  western  township  are,  on  the 
whole,  less  comprehensive  than  those  of  the  New  England 
town.  This,  of  course,  is  due  partly  to  the  exhaustive  character 
of  state  legislation,  but  mainly  to  the  more  equal  division  of 
functions  between  the  township  and  the  county.  Moreover 
within  the  prescribed  limits  the  by-laws  enacted  are,  as  a  rule, 
relatively  less  numerous  and  less  varied  than  in  New  England 
for  the  same  class  of  subjects.  In  explanation  of  this  difference 
Dr.  Bemis  has  pointed  out  the  fact  "that  in  the  west,  that 
part  of  the  township  where  the  inhabitants  are  most  numerous, 
the  village,  and  for  whose  regulation  many  laws  are  necessary, 
is  set  off  as  an  incorporated  village.  .  .  .  These  villages  have 
the  privilege,  either  directly  in  village  meeting,  or  more  often 
through  a  council  of  ...  trustees,  of  managing  their  own  local 
affairs,  their  police,  fire  department,  streets,  and  water  works. 
In  some  states,  however,  they  are  considered  parts  of  the 
township,  and  as  such  vote  in  town-meeting  on  all  questions 
touching  township  roads,  bridges,  the  poor,  and  schools."3 

In  the  annual  meeting,  finally,  the  township  officers  are 
chosen,  and  the  official  body  is  very  similar  in  all  the  states, 
though  there  is  some  variation  in  the  number  and  nomenclature. 


1  Revised  Statutes,  1878,  p.  270.    The  penalty  for  violation  in  Michigan  and 
Dakota  is  ten  dollars :  Green,  Townships  and  Township  Officers,  7 ;  Compiled 
Laws  of  Dakota,  1887,  p.  176.     In  Nebraska  it  is  twenty  dollars :  Compiled 
Statutes,  1887,  p  316. 

2  Compiled  Statutes,  1887,  p.  31 7.    On  the  right  to  enact  by-laws  see  Compiled 
Laws  of  Dakota,  1887,  p.  176 ;  Statutes  of  Minn.,  1878,  p.  169 ;  HowelPs  Anno- 
tated Statutes  of  Mich.,  1882,  I,  p.  241 ;  Revised  Statutes  of  New  York,  I,  809 ; 
Starr  and  Curtis'  Annotated  Statutes  of  III.,  II,  2413. 

3  Bemis,  Local  Govt.  in  Mich,  and  the  Northwest,  15. 


Western  Selectmen.  167 

In  Nebraska,  to  take  a  typical  example,  every  township  elects 
annually  a  supervisor,  a  clerk,  a  treasurer,  an  assessor,  three 
judges  and  two  clerks  of  election,  and  one  overseer  of  highways 
for  each  road  district.  Besides  these  every  two  years  two 
constables  and  two  justices  of  the  peace  are  chosen.1  The 
functions  of  the  more  important  officers  will  now  be  examined 
in  detail. 

IV. — WESTERN  SELECTMEN. 
(a). — Differentiated  Forms. 

A  very  interesting  example  of  institutional  differentiation 
is  the  dual  form  assumed  by  the  western  representative  of  the 


1  Compiled  Statutes,  1887,  pp.  28,315, 387.  Town  officers  are  chosen  as  follows 
in  various  states : 

New  York. — One  supervisor,  one  collector,  one  clerk,  four  justices,  one  or 
two  overseers  of  the  poor,  one,  two,  or  three  commissioners  of  highways,  such 
number  of  constables,  assessors,  and  pound-keepers  as  the  electors  may  deter- 
mine, and  any  other  officers  allowed  by  existing  laws :  Revised  Statutes,  I,  808, 
810-11. 

Pennsylvania. — One  clerk,  one  treasurer,  one  or  more  constables,  one 
assessor  and  two  assistant  assessors,  two,  three,  or  more  supervisors,  three 
auditors,  two  overseers  of  the  poor;  also  two  or  more  justices  chosen  for 
five  years:  Brightly's  Purdon's  Digest,  II,  1637-1640;  I,  36,  315-16,973, 
975. 

Ohio. — One  clerk,  one  treasurer,  one  assessor  for  each  election  precinct, 
three  trustees,  as  many  constables  and  road  supervisors  as  the  trustees  deem 
sufficient,  and  as  many  justices  as  the  county  court  of  common  pleas  may 
determine,  the  number  being  subject  to  increase  by  the  probate  judge :  Revited 
Statutes,  1880,  I,  295,  120. 

Illinois. — One  clerk,  one  assessor,  one  collector,  one  supervisor,  who  is  ex 
officio  overseer  of  the  poor :  all  chosen  annually  ;  two  justices  and  two  con- 
stables, the  number  subject  to  increase  with  increase  of  population:  chosen 
quadrennially  ;  also  pound- masters  and  highway  commissioners :  Starr  and 
Curtis'  Annotated  Statutes,  II,  2416,  1431. 

Michigati. — One  supervisor,  one  treasurer,  one  school  inspector,  one  high- 
way commissioner,  one  clerk,  who  is  also  ex  officio  school  inspector,  not  to 
exceed  four  constables,  one  overseer  of  highways  for  each  road  district : 
chosen  for  one  year ;  also  a  drain  commissioner  elected  biennially  :  Howell's 
Annotated  Statutes,  1882,  I,  241;  Green,  Townships  and  Township  Officers,  28, 
212. 


168         Rise  of  the  Township  in  the  Western  States. 

New  England  selectmen.  In  several  states  the  headship  of 
the  town  is  vested  in  an  official  who  reminds  us  of  the  Rhode 
Island  "  head  officer  "  before  his  functions  were  absorbed  by 
the  town-council.1  Such  is  the  trustee  of  Indiana,2  Missouri,3 
and  Kansas/  the  town  chairman  of  Wisconsin,5  and  the  super- 
visor of  New  York,6  Michigan,7  Illinois,8  and  Nebraska.9  But 
it  is  very  important  to  observe  that  in  every  one  of  these 
instances,  save  Indiana,  a  double  headship  exists.  Side  by 
side  with  the  trustee  or  supervisor,  who  has  important  adminis- 
trative duties  of  his  own,  is  found  a  township  board  of  audit, 
appeal,  or  general  superintendence  of  which  the  former  is  a 


Wisconsin. — One  clerk,  one  treasurer,  one  assessor  (or  either  two  or  three 
if  the  town  board  so  order)  ;  constables,  not  to  exceed  three  in  number,  as 
the  town-meeting  may  determine  ;  one  overseer  of  highways  for  each  road 
district;  one  librarian,  if  a  library  has  been  established;  three  supervisors, 
one  designated  on  the  ballots  as  chairman ;  and  four  justices  of  the  peace, 
two  chosen  annually  for  a  term  of  two  years:  Revised  Statutes,  1878,  277. 

Minnesota  and  Dakota. — One  clerk,  one  treasurer,  one  assessor,  one  over- 
seer of  highways  for  each  road  district;  three  supervisors,  one  designated  on 
the  ballots  as  chairman  :  chosen  for  one  year;  also  two  constables  and  two 
justices  elected  biennially ;  besides  pound-masters,  when  the  electors  think 
fit:  Statutes  of  Minn.,  1878,  pp.  169-70;  Compiled  Laws  of  Dakota,  1887,  p.  175. 

Iowa. — One  clerk,  one  assessor,  one  collector,  three  trustees,  two  constables, 
and  two  justices:  McLain's  Annotated  Statutes,  I,  89,  91. 

Kansas. — One  trustee,  one  clerk,  one  treasurer,  one  road  overseer  in  each 
district,  two  justices,  and  two  constables;  the  number  of  justices  and  consta- 
bles subject  to  increase  by  the  county  board  on  petition:  Compiled  Laws,  1885, 
pp.  984,  989. 

1  See  Chap.  II,  v,  (a). 

2  Revised  Statutes  of  Indiana,  1881,  p.  1284. 

3  Toicnship  Organization  Law,  9,  18. 

*  Compiled  Laws,  1885,  pp.  984,  986-7;    Canfield,  Local  Government  in 
Kansas,  13,  14. 
6  Revised  Statutes,  1878,  pp.  237,  277,  310. 

6  Revised  Statutes,  I,  808,  826,  834. 

7  Howell's  Annotated  Statutes,  I,  249 ;  Bemis,  Local  Government  in  Mich., 
etc.,  17. 

8  Starr  and  Curtis'  Annotated  Statutes,  II,  2423-7;   Shaw,  Local  Govt.  in 
III.,  12,  14. 

9  Compiled  Statutes,  1887,  pp.  315,  320. 


Western  Selectmen.  169 

member  by  virtue  of  his  office.  On  the  other  hand,  in  several 
states,  the  supervising  authority  is  vested  wholly  in  the  board. 
This  is  the  plan  adopted  by  Ohio,1  Pennsylvania,2  Iowa,* 
Minnesota,4  and  Dakota.5 

(6). — The  Trustee  or  Supervisor. 

In  states  where  both  a  town  board  and  a  supervisor  exist, 
the  powers  of  the  latter  are  somewhat  limited.  In  Nebraska, 
for  example,  it  is  his  duty  to  prosecute,  in  the  name  of  the 
township  or  otherwise,  for  all  penalties  given  the  town  for 
its  use,  when  no  other  officer  is  specially  designated  for  that 
purpose;  in  all  legal  proceedings  against  the  town,  the  first 
process  and  all  other  writs  are  served  on  him ;  and  he  is 
required  to  attend  to  the  defence  of  the  suit,  when  instituted, 
and  report  the  result  of  the  proceedings  to  the  electors  at  the 
next  town-meeting. 

It  is  also  the  duty  of  the  supervisor  to  attend  all  meetings 
of  the  county  board — of  which  he  is  a  member — and  lay  before 
it  a  statement,  delivered  to  him  by  the  town  clerk,  of  all  moneys 
to  be  raised  by  taxation  in  his  town ;  to  receive  all  accounts 
against  the  township  and  lay  them  before  the  town  board  at 
its  regular  meetings;  to  keep  a  just  and  true  record  of  the 
receipt  and  disbursement  of  all  public  moneys  coming  into  his 
hands,  and  to  render  account  thereof  to  the  town  board  on  the 
Tuesday  preceding  the  annual  town-meeting.  The  supervisor 
is  ex  ojficio  overseer  of  the  poor,  which  office  is  discharged  by 


1  Revited  Statutes,  1880,  I,  295  ff. 

1  However  in  Pennsylvania  there  is  a  sort  of  double  headship:  the 
accounts  of  the  board  of  supervisors  are  passed  upon  by  a  second  body  — 
the  board  of  three  auditors,  elected  in  the  same  manner  as  the  former: 
Brightly's  Purdon's  Digest,  II,  1637-8,  1641 ;  Gould,  Local  Govt.  in  Pa.,  33. 

3  Macy,  A  QovL  Text  Book  for  Iowa  Schools,  21 ;  McLain's  Annotated 
Statutes,  I,  89. 

*  Statutes,  1878,  p.  169. 

5  Compiled  Laws,  1887,  pp.  175,  183. 


170          Rise  of  the  Township  in  the  Western  States. 

the  justices  of  the  peace  in  each  precinct,  when  the  county  has 
not  adopted  town  organization.  As  compensation  the  super- 
visor receives  two  dollars  for  each  day  actually  employed,1  and 
is  liable  to  a  forfeiture  of  fifty  dollars  for  refusal  or  neglect  to 
perform  any  duty  of  his  office.  Supervisors  elected  in  wards 
of  cities  of  the  first  and  second  class  and  "assistant  supervisors" 
discharge  none  of  the  functions  of  town  supervisors,  save  as 
members  of  the  county  board.2 

Similar  powers  are  possessed  by  the  supervisor  in  all  states 
where  the  double  headship  and  the  town-meeting  coexist,  but, 
of  course,  with  numerous  differences  in  detail.  In  Michigan, 
for  instance,  the  supervisor  as  ex  officio  assessor  takes  the 
valuation  of  property  and  submits  it  to  the  county  board 
for  approval ;  apportions  the  amount  required  for  the  town 
expenses  among  the  inhabitants  on  the  basis  of  the  corrected 
valuation ;  and  delivers  the  tax-lists  to  the  county  treasurer 
for  collection.3  He  is  also  required  by  law  to  take  the  census 
of  persons  and  statistics  every  tenth  year  ;4  report  annually 
to  the  county  clerk  the  number  of  births,  deaths,  and  marriages 
in  the  township;5  provide  temporary  relief  for  the  poor;  report 
violations  of  the  liquor  law;  inspect  dams,  and  see  to  the 
maintenance  of  shutes  for  fish.6 

In  New  York  the  supervisor,  besides  discharging  his  ordinary 
duties,7  is  ex  officio  water  commissioner,8  guardian  of  orphans  for 
the  purpose  of  binding  them  out,9  and  member  of  the  board 
for  registration  of  voters.10  He  is  also  required  by  law  to 


1In  Missouri  the  fee  is  $1.50  per  day:  Township  Organization  Law,  20; 
the  same  in  Michigan :  Howell's  Annotated  Statutes,  I,  257. 

2  Compiled  Statutes,  1887,  pp.  319-20,  322. 

3  Bemis,  Local  Oovt.  in  Mich.,  etc.,  17 ;  Howell's  Annotated  Statutes,  I,  249. 

4  Howell's  Annotated  Statutes,  I,  267  ff. 

5  Howell's  Annotated  Statutes,  1,  276  ff. 

6  Bemis,  Local  Government  in  Mich.,  etc.,  17. 

7  Revised  Statutes,  I,  826. 

8  Revised  Statutes,  III,  2455. 

9  Revised  Statutes,  III,  1892. 

10  Revised  Statutes,  I,  421. 


Western  Selectmen.  171 

survey  the  boundaries  of  his  township  when  so  directed  by 
the  surveyor  general,1  approve  the  official  bonds  of  justices 
and  commissioners  of  highways,2  send  deaf  and  dumb  persons 
between  the  ages  of  six  and  twelve  to  the  institution  for  deaf 
mutes,3  order  out  so  many  of  the  inhabitants  liable  to  road 
service  as  he  shall  deem  sufficient  to  assist  in  extinguishing 
forest  fires,4  administer  oaths,8  and  aid  the  town  clerk  in  pre- 
paring the  record  of  soldiers.6 

Where  the  town-rmeeting  does  not  exist  the  head  officer,  like 
the  town  board,  possesses  relatively  greater  power.  Thus,  in 
Missouri,  the  trustee,  as  ex  offieio  treasurer  and  collector,  has 
charge  of  the  entire  financial  administration  of  the  town  subject 
to  the  audit  of  the  township  board.7  In  Kansas,  the  trustee 
may  divide  his  township  into  road  districts,  make  such  altera- 
tions in  the  same  as  he  thinks  fit,  cause  a  record  to  be  made 
of  their  boundaries  and  of  the  number  of  road  overseers,  and 
fill  vacancies  in  the  last  named  office;  see  that  road  moneys 
be  properly  applied,  have  the  care  and  management  of  all 
property  real  and  personal,  and  exercise  general  control  of  the 
financial  affairs  of  the  township.  Besides  he  is  ex  officio  judge 
of  elections  and  overseer  of  the  poor;  and  may,  with  the 
approval  of  the  county  commissioners,  levy  taxes  for  township 
purposes.8  Similar  powers  are  possessed  by  the  trustee  in 
Indiana,  but  since  in  that  state  the  headship  of  the  town  is 
not  shared  with  a  township  board,  his  functions  are  still  more 
numerous,  comprehending  practically  all  of  the  administrative 
business  of  the  community.9 


1  Revised  Statutes,  I,  827. 
*  Revised  Statutes,  I,  844,  821. 
3 Revised  Statutes,  III,  1945. 
4  Revised  Statutes,  III,  2086. 
6  Revised  Statutes,  I,  829. 

6  Revised  Statutes,  I,  800. 

7  Township  Org.  Law,  14-16. 

8  Compiled  Laws,  1885,  pp.  986-87. 

9  Revised  Statutes,  1881 :  see  Index  at  Township  Trustee. 


172          Rise  of  the  Township  in  the  Western  States. 


(c). — The  Town  Board. 

The  town  board  is  variously  constituted  in  different  states. 
In  New  York,  Illinois,  Michigan,  and  Nebraska,  it  is  com- 
posed of  the  supervisor,  clerk,  and  justices  of  the  peace;1  in 
Pennsylvania,  of  two  or  more  supervisors;2  in  Iowa  and  Ohio, 
of  three  trustees;3  in  Minnesota,  Wisconsin,  and  Dakota,  of 
three  supervisors;4  and  in  Kansas  of  the  trustee,  clerk,  and 
treasurer.5 

The  powers  of  the  board,  among  the  different  states,  are  still 
more  varied  than  its  forms.  In  almost  every  instance6  its 
primary  duty  is  to  audit  the  accounts  of  the  town  officers  and 
pass  upon  all  claims  or  charges  against  the  town.  For  this 
purpose,  in  Nebraska,  the  board  is  required  to  meet  at  least 
thrice  a  year  in  the  office  of  the  clerk ;  and  the  accounts  so 
audited,  together  with  the  certificates  of  the  board,  must  be 
filed  for  public  inspection  with  the  clerk,  who  must  produce 
and  read  them  at  the  next  annual  town-meeting.7 

Similar  powers,  though  in  some  cases,  more  numerous  and 
important,  are  possessed  by  the  town  board  in  Dakota,  Minne- 
sota, Michigan,8  New  York,  and  Illinois ;  while  in  Wisconsin 
and,  more  especially,  in  Ohio  its  administrative  functions  are 
unusually  comprehensive,  particularly  those  prescribed  by 


1  Revised  Statutes  of  New  York,  I,  834 ;  Starr  and  Curtis'  A  nnotated  Statutes 
of  III.,  II,  2427 ;  Howell's  Annotated  Statutes  of  Mich.,  1882, 1,  p.  251 ;  Bemis, 
Local  Govt.  in  Mich.,  etc.,  17 ;  Compiled  Statutes  of  Nebraska,  1887,  p.  320. 

2  Brightly's  Purdon's  Digest,  II,  1637-8 ;  Gould,  Local  Govt.  in  Pa.,  33. 

3  McLain's  Annotated  Statutes  of  Iowa,  I,  89 ;  Revised  Statutes  of  Ohio,  1886, 
I,  294-5. 

4  Statutes  of  Minnesota,  1878,  p.  169  ;  Revised  Statutes  of  Wisconsin,  1878,  p. 
277  ;   Compiled  Laws  of  Dakota,  1887,  p.  175. 

5  Compiled  Laws,  1885,  p.  987. 

6  Save  in  Pennsylvania  where  there  is  a  separate  auditing  board :  Brightly's 
Purdon's  Digest,  II,  1637. 

7  Compiled  Statutes  of  Nebraska,  1887,  p.  320. 

8  Bemis,  Local  Govt.  in  Mich.,  etc.,  17. 


Various  township  Officers  and  Their  Duties.         173 

special  legislative  enactment.1  Moreover  it  is  worthy  of 
remark  that  in  several  states  a  limited  power  of  local  taxation 
is  vested  in  it  by  law.2 

V. — VARIOUS  TOWNSHIP  OFFICERS  AND  THEIR  DUTIES. 
(a).— The  Clerk. 

The  functions  of  the  western  town  clerk  are  similar  to  those 
performed  by  that  officer  in  New  England,  though  they  are 
perhaps  less  numerous  and  important.  Besides  acting  as  ex 
ojficio  secretary  of  the  town-meeting,  he  is  the  custodian  of  all 
town  records  and  legal  documents.  In  Nebraska  the  clerk 
may  also  administer  the  oath  to  all  town  officers,  and  when- 
ever necessary  in  the  transaction  of  township  business.  He  is 
further  required,  before  any  regular  meeting  of  the  county 
board,  to  deliver  to  the  supervisor  certified  copies  of  all  entries 
of  votes  for  raising  money ;  to  give  notice  of  town-meetings, 
and  post  or  otherwise  publish  town  by-laws  arid  regulations ; 
and  he  is  ex  officio  member  of  the  town  board.  Before  enter- 
ing upon  the  duties  of  his  office,  he  is  required  to  give  a  bond 
of  five  hundred  dollars,  and  he  receives  as  compensation  two 
dollars  a  day  for  the  time  actually  employed  in  the  public 
service.3 

Similar  provisions  relative  to  the  town  clerk  exist  in  most 
of  the  states ; 4  but  in  some  instances  more  numerous  duties 


1  Revised  Statutes  of  Wis.,  1878 :  Index  at  Town  Supei-visors  ;  Revised  Statutes 
of  Ohio,  1886,  I,  296  ff.,  and  Index. 

2  So,  in  Michigan,  the  board  may  levy  a  tax  for  the  ordinary  town  expensen, 
when  the  electors  have  refused  or  neglected  to  do  so :  Howell's  Annotated 
Statutes,  1882, 1,  p.  252  ;  in  Ohio  it  may  levy  a  tax  to  defray  cost  of  grounds 
for  cemeteries:  Revised  Statutes,  1881,  I,  299;  in  Kansas,  to  liquidate  bonds 
or  pay  interest  thereon :  Compiled  Laws,  1885,  p.  992. 

J  Compiled  Statutes,  1887,  pp.  320-1,  94. 

4  Township  Org.  Law  of  Mo.,  16-17 ;  Statutes  of  Minn.,  1878,  pp.  176-7 ; 
How  ell's  Annotated  Statutes  of  Mich.,  I,  250 ;  Compiled  Ltms  of  Kansas,  1885, 
p.  988 ;  Revised  Statutes  of  Ohio,  1886,  I,  306-6 ;  Compiled  Laws  of  Dakota, 
1887,  p.  184. 


174         Else  of  the  Township  in  the  Western  States. 

are  imposed  upon  him  by  special  enactment.  Thus  in  "Wis- 
consin,'he  may  issue  licenses  to  peddlers  and  auctioneers;  take 
the  census ;  give  notice  of  elections ;  record  orders  for  laying 
town  drains;  register  the  establishment  of  division  fences;  file 
chattel  mortgages,  and  appraisals  of  strays  and  lost  goods ; 
record  marks  and  brands  and  the  deeds  of  pews ;  attest  liquor 
licenses,  and  perform  multifarious  other  duties  of  a  secretarial 
nature.1 

(6). — The  Treasurer . 

The  treasurer  is,  of  course,  the  custodian  of  the  town  funds, 
and  he  is  required  to  execute  a  bond  as  security  for  the  proper 
disposal  of  the  money  coming  into  his  hands.2  The  routine  of 
the  office  may  be  illustrated  by  the  following  extracts  from  the 
Nebraska  statutes : 

"  Orders  for  the  payment  of  money  shall  be  drawn  on  the 
town  treasurer,  and  signed  by  the  town  clerk,  and  counter- 
signed by  the  supervisor.  All  claims  and  charges  against  the 
town  duly  audited  and  allowed  by  the  town  board,  shall  be 
paid  by  orders  so  drawn.  No  order  shall  be  drawn  on  the 
town  treasurer  in  excess  of  seventy-five  per  cent,  of  the  amount 
of  taxes  levied  for  the  current  year  on  the  property  of  said 
town,  subject  to  be  expended  by  said  town,  unless  the  money 
is  in  the  treasury  ...  to  pay  the  order  ...  on  presentation. 
When  any  order  ...  is  presented  to  the  town  treasurer  for 
payment,  and  is  not  paid  for  want  of  funds,"  the  treasurer 
shall  note  in  his  book  of  registration  "  the  fact  of  presentation 
and  non-payment  .  .  .  ,  and  said  order  shall  draw  interest  at 
seven  per  cent,  per  annum  from  the  date  of  presentation,  until 
there  are  funds  sufficient  in  the  hands  of  said  treasurer  to  pay 


1  Revised  Statutes,  1878,  pp.  474,  476,  329,  61,  78,  420, 430,  655,  644,  482-3. 
See  Index  at  Town  Clerk. 

2  In  Nebraska  the  amount  of  the  bond  is  5000  dollars  or  "  double  the 
amount  of  money  that  may  come  into  his  hands,  to  be  fixed  by  the  town 
board:"  Compiled  Statutes,  1887,  pp.  94,  319. 


Various  Tqwnship  Officers  and  Their  Duties.         175 

the  same,  after  paying  all  orders  drawn  against  such  tax  levy 
presented  prior  thereto,  and  said  orders  shall  be  paid  in  the 
order  of  their  presentation  and  registration." 

The  treasurer  is  also  ex  officio  collector  of  all  taxes,  whether 
for  state,  county,  or  town  purposes.  And  it  is  the  duty  of  the 
county  clerk  to  transmit  to  him  a  duplicate  of  the  tax-list  of 
his  township,  with  a  warrant  for  the  collection  attached,  and  a 
"  tax  receipt  book,  with  a  blank  margin  or  stub,  upon  which 
the  said  township  collector  shall  enter  the  number  and  date  of 
the  tax  receipt  given  to  each  tax  payer,  the  amount  of  tax 
and  by  whom  paid,"  and  return  the  receipt  book  to  the  county 
clerk.  It  is  also  the  duty  of  the  collector,  every  thirty  days, 
to  render  to  the  county  treasurer  a  statement  of  the  amount 
and  kind  of  taxes  collected,  together  with  all  moneys  so  col- 
lected for  other  than  town  purposes,  and  to  make  final  settle- 
ment on  or  before  the  first  day  of  January  in  each  year.  He 
is  likewise  required  to  execute  a  bond  "  with  two  or  more 
securities  to  be  approved  by  the  county  clerk,  in  double  the 
amount  of  taxes  to  be  collected." l 

(c). — The  Constable  and  the  Justice  of  the  Peace. 

As  a  rule  in  the  western  states  two  justices  and  two  con- 
stables are  elected  in  each  precinct  or  township ;  the  former 
usually,  and  sometimes  the  latter,  being  chosen  for  two  or 
more  years. 

The  justice  is  at  once  a  conservator  of  the  peace  and  a 
magistrate  invested  with  both  criminal  and  civil  jurisdiction, 
each  carefully  limited  by  the  statutes.  In  another  important 


1  Compiled  Statutes,  1887,  pp.  319,  321,  601-4. 

In  Missouri  the  town  trustee  is  ex  officio  collector  and  treasurer,  with  the 
usual  duties:  Township  Org.  Law,  9,  15,  16.  Cf.  Skttuies  of  Minn.,  1878,  pp. 
177-8;  Howell's  Annotated  Statutes  of  Mich.,  1882,  I,  pp.  252-4;  Compiled 
Laws  of  Kansas,  988 ;  Revised  Statutes  of  Ohio,  1 886, 1,  305-6 ;  Revised  Statutes 
of  Wisconsin,  1878,  pp.  277-83  and  Index ;  Compiled  Laws  of  Dakota,  1887, 
pp.  185-6. 


176          Rise  of  the  Township  in  {lie  Western  States. 

particular  the  ancient  character  of  the  office  is  maintained  : 
every  justice  being  both  county  and  township  officer.  In 
England  the  magistrate,  though  appointed  by  the  royal  com- 
mission for  the  entire  county,  has  always,  out  of  quarter  sessions, 
confined  his  activity  largely  to  the  neighborhood  where  he 
chanced  to  reside.  In  the  West,  and  indeed  generally  through- 
out the  United  States,  this  custom  has  been  transformed  into 
a  legal  requirement,  justices  being  chosen  in  the  township  or 
precinct,  but  exercising  jurisdiction  throughout  the  shire. 

The  constable  is  a  local  police  officer  and  the  ministerial 
agent  of  the  justice's  court.  While  he  does  not  enjoy  the 
prestige,  nor  perhaps  the  rank,  anciently  accorded  him  as  head 
of  the  parish,  nevertheless  his  functions  as  peace  magistrate 
are  still  indispensable  to  the  community.  His  office,  as  well 
as  that  of  the  justice  of  the  peace,  will  be  treated  elsewhere 
more  in  detail.1 

VI. — THE  ASSESSOR. 
(a). — Evolution  of  the  Office. 

The  assessor  of  property  for  purposes  of  taxation  is  not  a 
primitive  English  institution,  for  the  simple  reason  that  origi- 
nally no  taxes  were  levied.  All  branches  of  government,  state 
or  local,  were  supported  by  services  or  voluntary  contributions. 
And  such  services — for  instance  those  constituting  the  trinoda 
necessitas2 — were  probably  rendered  under  the  superintendence 
of  the  local  reeves  and  tithingmen,  just  as  the  feorm-fultum,3 


1  In  the  second  volume. 

1  On  the  trinoda  necessitas  see  the  Sec.  VIII  below. 

8  The  feorm-fultum  originated  doubtless  in  voluntary  gifts ;  but  it  appears 
later  as  identical  with  the  cyninges-gafol  or  cyninges-feorm,  a  rent  from  the 
folc-land  for  support  of  the  king,  made  compulsory  and  dealt  with  by  the 
witan.  For  a  good  discussion  of  the  growth  of  the  principle  of  taxation  in 
the  Saxon  period,  see  Lodge,  The  Anglo-Saxon  Land  Law,  Essays,  60  ff.  Cf. 
Stubbs,  Const.  Hist.,  II,  536.  Kemble,  Saxons,  II,  30,  31,  223-4,  erroneously 
regards  the  Cyninges-gafol  as  a  regular  tax  levied  by  the  witan. 


The  Assessor.  177 

or  payment  in  kind  for  the  support  of  the  royal  household, 
was  gotten  in  by  the  reeves  of  the  king.1 

But,  except  in  the  case  of  the  Danegeld2  and  the  furaage3  or 
hearth  tax,  no  public  taxes  properly  so  called  were  levied  in 
England  before  the  Conquest. 

The  word  assessor  is  of  Roman  origin  meaning  an  assistant 
judge;4  and  in  this  sense  it  is  also  used  in  the  judicial  history 
of  France.8  Moreover  it  is  remarkable  that  the  prototype  of 
the  English  fiscal  officer  of  that  name  must  be  sought  in  the 
jury  of  the  vicinage, 

In  the  period  immediately  following  the  Norman  Conquest, 
assessments  for  the  support  of  the  national  government  were 


111  This  then  is  the  alleviation  which  it  is  my  will  to  secure  to  all  the 
people  of  that  which  they  before  this  were  too  much  oppressed  with.  That 
then  is  first :  that  I  command  all  my  reeves  that  they  justly  provide  on  my 
own,  and  maintain  me  therewith ;  and  that  no  man  need  give  them  anything 
as  'feorm-fultum,'  unless  he  himself  be  willing:"  Canute,  Secular  Laws,  70: 
Thorpe,  Anc.  Laws,  I,  413;  Schmid,  Geselze,  306,  308.  The  reeves  were  also 
required  to  render  to  the  church  the  king's  tithes,  payable  in  kind:  Aethel- 
stan  I.,  Proem :  Thorpe,  Anc.  Laws,  I,  195. 

There  appears  to  be  little  positive  proof  in  the  laws  of  the  conjecture  of 
the  text  that  services,  such  as  building  bridges,  roads,  etc.,  were  superin- 
tended by  the  local  reeves ;  but  it  is  highly  probable.  The  collection  of 
tolls  seems  to  have  been  entrusted  in  part  to  the  tungerefa:  Aethelred,  IV, 
3:  Schmid,  Gesetze,  219.  So  also  fasts  were  enforced  and  the  penalties  col- 
lected by  the  local  reeves:  Aethelred,  VII,  2,  \  5:  Schmid,  Gesetze,  240. 
It  is  also  noticeable  that  the  presbyter;  the  reeve  of  the  hundred,  and  the 
manorial  bailiff  appear  as  assessors  in  the  Domesday  Survey  :  Ellis,  Int.  to 
Domesday,  I,  21. 

'Stubbs,  Const.  Hist.,  I,  105,  133.  Cf.  Lodge,  Anglo-Saxon  Land  Law, 
Essays,  68. 

8Dowell,  Hist,  of  Taxation  and  Taxes,  I,  10. 

4  From  assidere,  "  to  sit  beside,"  from  which  word  assize  is  also  derived. 
'  Assess '  and  '  assessment '  are  classed  by  Skeat  as  "  coined  words."  The 
first  English  assessors  of  property  were  assizers— sworn  inquisitors.  See 
Skeat,  Etymolog.  Diet.,  at  assess  and  assize;  Stubbs,  Select  Charters,  glossary 
at  assisus;  Pauly,  Real-Encydopddie,  I,  1883;  Smith,  Did.  of  Greek  and 
Roman  Ant.,  143;  Arnold,  Roman  Provincial  Administration,  114. 

s  Warnkoenig  and  Stein,  Framos.  Slaatsgesch.,  I,  433,  576-7 ;   III,  454. 
It  is  similarly  used  in  Scotland :  fiohn,  Pol.  Cyclopaedia,  I,  at  Assessor. 
12 


178          Rise  of  the  Toimship  in  the  Western  States. 

made  by  commissioners  of  the  exchequer  assisted  by  sworn 
inquisitors  or  recognitors  of  the  neighborhood  where  the 
property  lay.1  In  this  way  was  compiled  the  celebrated 
Domesday  Book,  which  has  been  characterized  as  the  "  first 
step  in  a  continuous  process  by  which  the  nation  arrived  ulti- 
mately at  the  power  of  taxing  itself,  and  thus  controlling  the 
whole  framework  of  the  constitution  and  the  whole  policy  of 
the  government."2  In  this  instance,  general  inquisitors,  called 
"justiciaries  "  or  "  legati "  of  the  king,  were  appointed  for  the 
whole  realm.3 

"  The  Inquisitors,  it  appears,  upon  the  oaths  of  the  sheriffs, 
the  lords  of  each  manor,  the  presbyters  of  every  church,  the 
reves  of  every  hundred,  the  bailiffs  and  six  villans  of  every 
village,  were  to  enquire  into  the  name  of  the  place,  who  held 
it  in  the  time  of  Kjng  Edward,  who  was  the  present  possessor, 
how  many  hides  in  the  manor,  how  many  carucates  in  demesne, 
how  many  homagers,  how  many  villans,  how  many  cotarii,  how 
many  servi,  what  free-men,  how  many  tenants  in  socage,  what 
quantity  of  wood,  how  much  meadow  and  pasture,  what  mills 
and  fish-ponds,  how  much  added  or  taken  away,  what  the 
gross  value  in  King  Edward's  time,  what  the  present  value, 
and  how  much  each  free-man  or  soch-man  had  or  has.  All 
this  was  to  be  triply  estimated :  first  as  the  estate  was  held  in 
the  time  of  the  Confessor ;  then  as  it  was  bestowed  by  King 
William ;  and  thirdly,  as  its  value  stood  at  the  formation  of 
the  survey.  The  jurors  were  moreover  to  state  whether  any 
advance  could  be  made  in  the  value." 4 

Such  is  the  character  of  the  earliest  English  assessment  list 
which  has  been  preserved.  And  this  appraisement  remained 
the  basis  of  the  land  tax — the  only  form  of  taxation  in  that 


iForsyth,  Trial  by  Jury,  83  ff;  Stubbs,  Const.  Hist.,  I,  584-7,  385-6,  611-15. 
2  Stubbs,  Canst.  Hist.,  I,  385. 

3 Many  of  their  names  are  preserved:  Ellis,  Introduction  to  Domesday,  1, 18. 
4  "  Such  are  the  exact  terms  of  an  inquisition  in  the  counties  of  Cambridge 
and  Hertford:"  Ellis,  Introduction  to  Domesday,  I,  21-2. 


The  Assessor.  179 

age — until  the  reign  of  Henry  II.1  But  that  monarch  made 
tin-  knight's  fee,2  instead  of  the  hide,  the  area  for  the  assess- 
ment of  seutage  on  the  tenants  in  chief,  and  therefore  the  old 
valuation  was  no  longer  serviceable.  "Hence,  when  he  was 
preparing  to  levy  the  aid  pour  fille  marier,  the  king  issued  a 
writ  to  all  the  tenants  in  chief  of  the  crown,  lay  and  clerical, 
directing  each  of  them  to  send  in  a  cartel  or  report  of  the 
number  of  knight's  fees  for  the  service  of  which  he  was  legally 
liable."3  The  seutage,  or  tax  paid  in  commutation  of  military 
services,  long  continued  to  be  exacted  on  the  basis  of  this 
assessment;  and  so  each  tenant  in  capite  became  practically 
his  own  assessor.4 

In  other  cases,  such  as  the  laying  of  the  tallage  on  the 
demesne  boroughs,  either  the  individual  taxpayer  made  his  own 
return  under  oath,  or  the  itinerant  justice*  acted  as  assessors. 
According  to  the  one  method,  the  levy  became  a  "  voluntary 
contribution  "  and  the  government  was  helpless ;  according  to 
the  other,  the  taxpayer  was  placed  at  the  mercy  of  strangers.* 
On  the  other  hand,  when  taxation  of  movables  began,  a  return 
was  made  to  the  early  mode  of  assessment  by  means  of  a  jury 
of  the  neighborhood.  Thus  in  1181  was  assessed  the  value 
of  rents  and  chattels  for  the  Assize  of  Arms ;  as  also  the 
Saladin  tithe  in  1188.6  Ten  years  .later  the  same  method  was 
applied  to  the  carucage.7  In  this  instance  the  assessment  was 


1  Except  in  tioroughs :  Stubbs,  Const.  Hist.  I,  584 ;  Dialogw  de  Scaccario, 
I,  c.  16 :  Select  Charters,  208. 

2 The  knight's  fee  was  a  quantity  of  land  worth  twenty  pounds  a  year: 
Stubbs,  Cent.  Hist.  I,  265 ;  Dowell,  HUt.  of  Taxation  and  Taxes,  1,  20. 

3  Stubbs,  Const.  Hist.  I,  584,  581.    This  assessment  was  made  about  1166: 
Select  Charters,  146;   but  Henry  seems  to  have  levied  a  scutage  in  1159: 
Dowell,  Hist,  of  Taxation,  I,  40. 

4  Dowell,  Hist,  of  Taxation,  I,  44;  Stubbs,  Const.  Hist.,  I,  585. 
'Stubbs,  Const.  Hist.,  I,  585. 

•Stubbs,  Const.  Hist.,  I,  586;  Dowell,  Hist,  of  Taxation,  I,  60. 

7  The  carucage  was  a  tax  laid  on  the  carucate,  which  was  adopted  as  the 
area  of  assessment  in  1194,  and  fixed  at  100  acres  in  1198:  Dowell,  Hist, 
of  Taxation,  I,  36,  37.  According  to  the  hitherto  accepted  view,  carucata 


180         Rise  of  the  Township  in  the  Western  States. 

made  in  every  shire  by  two  royal  commissioners,  together  with 
the  sheriff  and  knights  chosen  for  the  purpose,  and  sworn  for 
faithful  performance  of  their  duties;  who  "summoned  before 
them  the  stewards  of  the  barons,  and  in  every  township,  the 
lord  or  bailiff  and  the  reeve  and  four  men,  free  or  villein,  and 
two  knights  for  every  hundred  in  the  county,"  and  these  took 
oath  to  state  correctly  the  number  of  carucates  in  every  town- 
ship and  assess  the  tax  accordingly.1 

An  important  epoch  in  the  history  of  taxation  is  reached 
when  elective  assessors  first  make  their  appearance.  Thus  in 
1220  the  sheriffs  were  required  to  cause  two  lawful  knights  to 
be  chosen  in  full  county  court,  to  take  part  in  the  assessment 
and  collection  of  the  carucage.2  In  1225,  again,  the  assess- 
ment and  collection  of  the  fifteenth  "  were  entrusted  to  four 
elected  knights  of  «ach  hundred,  who  enquired  by  jury  into 
all  disputed  cases."  In  1232  the  reeve  and  four  best  men  of 
each  township  acted  as  assessors  in  the  presence  of  knights 
assigned;  and  similarly  in  1237  the  thirtieth  of  movables  was 
assessed,  in  the  presence  of  four  knights  and  a  clerk  assigned 
for  each  shire,  by  four  elected  freemen  of  every  township.8 
Again  in  1297,  it  was  enacted  that  four  men  should  be  chosen 
in  every  parish,  who  should  "return  the  assessment  of  the 
parish  to  the  shire  authorities ; "  and  to  prevent  any  unjust 


originally  meant  the  quantity  of  land  that  could  be  ploughed  in  a  season 
by  a  caruca,  or  full  team  of  eight  oxen  :  Dowell,  Hist,  of  Taxation,  I,  35 ; 
Stubbs,  Select  Charters,  536.  But  the  Carucata  terra  ad  geldum,  like  the  hide, 
was  variable  in  extent,  and  should  be  distinguished  from  the  true  areal  plough- 
land,  the  terra  ad  unam  carucam,  whose  normal  capacity  was  120  acres,  and 
which  is  also  called  in  Domesday  terra  unius  carucae,  or  terra  quam  potest  arare 
una  caruca.  Cf.,  however,  the  various  theories  of  Eyton,  Domesday  Studies, 
I,  11,  28-9;  Pell,  A  New  View  of  the  Geldable  Unit  of  Assessment  of  Domesday, 
Domesday  Studies,  I,  319  ff. ;  Round,  Notes  on  Domesday  Measures  of  Land, 
Domesday  Studies,  I,  189  ff. ;  Taylor,  The  Ploughland  and  the  Plough,  Domes- 
day Studies,  I,  144  ff. ;  Seebohm,  Village  Communities,  40  ff.,  85,  62,  74,  123. 

1  Dowell,  Hist,  of  Taxation,  I,  36. 

2  Stubbs,  Const.  Hist.,  II,  213 ;  Dowell,  Hist,  of  Taxation,  J,  37. 

3  Dowell,  Hist,  of  Taxation,  I,  66-7;  Stubbs,  Const.  Hist.,  II,  213. 


The  Assessor.  181 

discrimination,  it  was  further  required  that  the  authorities  of 
the  shire  should  " afterwards  go  from  hundred  to  hundred  and 
from  parish  to  parish  to  hear  every  complaint  and  correct  any 
errors  in  the  assessment."1  Finally  in  1306  it  was  ordered 
that  "  a  jury  of  twelve  men  for  each  hundred  shall  deliver  to 
the  assessors  of  each  shire  their  assessment,"  and  the  twelve 
are  to  do  this  through  the  oath  of  four  men  elected  in  every 
parish.2 

At  the  beginning  of  the  fourteenth  century,  therefore,  the 
apportionment  of  the  state  taxes  was  placed,  where  it  should 
be  placed, — in  the  hands  of  the  people  of  each  neighbor- 
hood.8 


1  Toulmin  Smith,  The  Pariah,  16-17. 

'Toulmin  Smith,  The  Parish,  17. 

3  It  may  be  well  to  epitomize  here  Mr.  Dowell's  statement  of  the  procedure 
in  the  levy  and  assessment  of  taxes  on  movables,  that  is  to  say,  of  the  tenths, 
twelfths,  thirtieths,  and  similar  rates  : 

The  "  ordinance  "  authorizing  the  assessment  was  in  the  form  of  a  royal 
ordinance.  "It  recited  that  the  commissioners  for  the  county  were  not  to 
be  persons  belonging  to  the  county  or  having  land  there." 

''A  writ  was  issued  for  every  county.  This  writ,  addressed  to  the  knights, 
freemen,  and  whole  community  of  the  county,  recited  the  grant  and  the 
appointment  of  two  knights  as  commissioners  to  assess  and  collect  the  tax 
according  to  the  form  contained  in  a  roll  delivered  to  them,  and  ended  with 
a  direction  to  assist  the  commissioners." 

The  commissioners  were  required  to  .see  to  the  election  of  the  township 
assessors,  who  were  sworn  to  assess  all  goods  in  the  house,  field,  or  elsewhere, 
fairly  at  their  full  value. 

The  schedule  of  assessment,  containing  the  name  of  every  taxpayer  and 
the  amount  with  which  he  was  charged,  was  made  out  in  duplicate,  one 
copy  for  the  barons  of  the  exchequer  and  one  for  the  commissioners. 

If  necessary  a  "good  and  lawful  person"  was  sent  by  the  king  into  each 
shire  to  see  if  the  assessment  had  been  properly  made  and  that  no  one  had 
suffered  unjust  treatment  at  the  hands  of  the  king's  officers. 

Two  schedules  of  assessment  for  the  borough  of  Colchester,  dated  respec- 
tively 1295  and  1301,  show  that  the  taxation  of  movables  was  very  compre- 
hensive when  strictly  enforced.  "  Every  beast  of  the  plough,  ox,  cow,  calf, 
sheep,  lamb,  pig,  and  horse  and  cart;  every  quarter  of  wheat,  barley,  and 
oats,  haystack,  and  woodstack ;  and  all  the  little  stock-in-trade  of  the  local 
eeu-coal  dealer,  pepperer,  mustarder,  spicer,  butcher,  fisherman,  brewer,  and 


182          Rise  of  the  Township  in  the  Western  States. 

• 

The  year  1334  marks  a  memorable  era  in  the  history  of 
English  taxation.  For  more  than  a  century  the  custom  had 
been  growing  of  laying  the  direct  tax  on  movables  in  the  form 
of  a  fractional  part  of  their  appraised  value;  and  in  the  early 
period  the  rate  varied  from  one  fortieth  to  a  fourth.1  But  in 
the  year  mentioned  a  '  fifteenth  and  a  tenth '  was  established 
as  a  rate-unit,  and  thereafter  taxes  were  levied  in  multiples  or 
fractions  of  that  rate.  Moreover,  to  obviate  the  opportunity 
for  extortion  in  the  assessment,  the  royal  tax  commissioners 
were  instructed  to  treat  with  the  various  cities,  boroughs,  and 
townships,  and  "settle  with  them  a  fine  to  be  paid  as  a  com- 
pensation for  the  fifteenth  and  the  tenth.  The  sum  thus  fixed 
was  to  be  entered  on  the  rolls  as  the  assessment  of  the  particu- 
lar township."  Henceforth  the  sum  fixed  by  composition  for 
the  fifteenth  and  tenth  granted  in  1334,  was  accepted  as  the 
basis  of  taxation.  That  is  to  say,  the  nominal  rate  of  a  fifteenth 
and  a  tenth  was  converted  into  a  fixed  sum  of  about  39,000 1. ; 
and  thereafter  a  '  fifteenth  and  a  tenth'  was  practically  a  fiscal 
expression  for  a  sum  of  that  amount.2  In  1334  royal  commis- 
sioners to  supervise  the  levy  and  collection  of  the  tax  were 
appointed  for  each  county  as  hitherto ;  and  in  each  town  free- 
men elected  for  the  purpose  acted  as  assessors.  But  afterwards 
the  provisions  of  the  ordinance  of  assessment  were  not  strictly 


wine  seller,  tanner,  skinner,  shoemaker,  fuller,  weaver,  dyer,  linendraper, 
girdler,  glover  and  taselerer,  tiler,  glazier  (verrer),  carpenter,  cooper,  iron- 
monger, smith,  potter,  and  bowyer,  are  included." 

"The  following  articles  were  to  be  exempted: — 1.  In  counties — the 
armour,  riding  horses,  jewels  and  clothes  of  knights  and  gentlemen  and 
their  wives,  and  their  vessels  of  gold,  silver,  and  brass.  2.  In  cities?, 
boroughs,  and  market  towns:  A  suit  of  clothes  for  every  man  and  another 
for  his  wife,  a  bed  for  both  of  them,  a  ring  and  a  buckle  of  gold  or  silver,  a 
girdle  of  silk  in  ordinary  use  by  them,  and  a  cup  of  silver  or  mazer  from 
which  they  drink.  3.  Everywhere,  the  goods  of  any  person  not  amounting 
in  the  whole  to  5s.  in  value : "  Hist,  of  Taxation,  I,  70-74. 

1  Dowell,  Hist,  of  Taxation,  I,  59  ff. 

2 1  have  here  merely  summarized  the  words  of  Dowell,  Hist,  of  Taxation, 
I,  86-7. 


The  Assessor.  183 

observed,  each  community  being  allowed  to  apportion  its  quota 
of  the  fixed  sum  as  it  saw  fit.1 

It  is  remarkable  that  this  form  of  taxation,  in  spite  of  various 
attempts  at  innovation,  was  maintained  until  the  Revolution  ; 
except  that  during  the  Tudor  reigns  it  became  customary 
to  supplement  the  regular  fifteenths  and  tenths  by  so-called 
'subsidies;'  and  these  were  assessed  by  persons  nominated  by 
royal  commissioners.2 

During  the  Commonwealth  a  system  of  monthly  assessments 
was  adopted.  "  A  sum  was  fixed,  according  to  the  exigencies 
of  the  occasion,  as  the  whole  monthly  assessment  for  England 
and  Wales,  or  Scotland,  or  Ireland,  as  the  case  might  be."  It 
was  then  apportioned  among  the  various  counties  and  towns 
and  assessed  on  the  taxpayers  by  the  local  authority  under 
supervision  of  commissioners  named  in  the  ordinance.3  And 
this  form  of  assessment  was  occasionally  used  after  the  Revo- 
lution.4 

We  reach  another  important  date  in  the  history  of  central 
taxation  in  1 792.  In  that  year  a  rate  on  lands  and  movables 
was  tried  instead  of  the  usual  levy  by  stated  sums.  But  in 
1797  an  act  of  Parliament  fixed  the  amount  which  a  certain 
rate  should  produce.  A  rate  of  one  shilling  in  the  pound,  for 
example,  was  to  yield  a  half  million  pounds  in  round  numbers. 
Henceforth,  after  1797,  a  rate  of  so  many  shillings  in  the 
pound,  just  as  after  1334  a  rate  of  so  many  fifteenth  and  tenths, 
meant  simply  a  fixed  sum ;  and  it  was  uniformly  apportioned 
among  the  counties  on  the  basis  of  the  assessment  of  1792. 
Moreover,  although  the  tax  was  intended  to  fall  on  income 
from  goods,  merchandise,  and  personal  property,  as  well  as 
on  land,  it  soon  became  practically  a  land  tax ;  and  this  is 


1  Dowell,  Hist,  of  Taxation,  I,  87,  238. 

1  Dowell,  Hist,  of  Taxation,  I,  151  ff.    The  taxation  of  the  'subsidy  men1 
was  most  arbitrary  and  capricious :  76.,  II,  5. 
»  Dowell,  Hist,  of  Taxation,  II,  4-5. 
4  Dowell,  Hist,  of  Taxation,  II,  30. 


184         Rise  of  the  Township  in  the  Western  States. 

precisely  what  occurred  in  the  case  of  the  old  fifteenths  and 
tenths  and  the  Tudor  subsidies.1 

On  the  occasion  of  the  new  levy  of  1792,  an  important 
innovation  in  the  mode  of  assessment  appears,  in  the  creation 
of  county  boards  of  tax  commissioners.  These  boards,  which 
have  survived  to  our  own  times,  are  nominated  in  Parliament 
and  comprise  the  principal  landed  gentry  of  the  respective 
shires,  including  the  majority  if  not  all  of  the  justices  of  the 
peace.  By  each  county  board — which  is  thus  practically 
identical  with  the  court  of  quarter  sessions2 — local  assessors 
and  collectors  are  appointed.3 

The  assessment  of  the  "income  and  property  tax,"  since 
1842,  is  managed  in  a  similar  way.  A  committee  is  appointed 
by  the  land  tax  commissioner  of  each  county,  consisting  usually 
of  three  to  seven  of  its  members,  supplemented  by  other  mem- 
bers chosen  from  the  resident  taxpayers  by  co-optation.  By 
the  body  thus  constituted,  on  the  nomination  of  the  vestry,  one 
or  more  assessors  for  each  parish  are  appointed.4 

With  respect  to  local  taxation,  the  parish  has  ever  been  re- 
markably independent.  The  vestry  is  the  "  original  assessor ; "  5 
but  the  work  of  assessment  has  always  been  performed  by  the 
parish  officers.  The  church  rate  has  thus  been  assessed  by 
the  churchwardens;  the  poor  rate,  by  the  overseers  of  the  poor;6 
and  the  highway  rate,  by  the  surveyors  of  highways.7  But  a 


1  Gneist,  Sdfgovernment  (1871),  554  ff. ;  Dowell,  Hist,  of  Taxation,  II,  48-50, 
97,  118. 

2  Or  the  common  council,  aldermen,  mayor,  etc.,  in  cities  and  boroughs : 
Gneist,  Selfgov.  (1871),  555. 

3Gneist,  Selfgov.  (1871),  556;  Toulmin  Smith,  TheParish,  610-12,  489-91. 

4 Gneist,  (1871),  560  ff.  The  so-called  "assessed  taxes"  are  similarly 
managed  by  a  county  commission  identical  in  membership  with  the  land 
tax  commission :  Ib.,  558. 

5  Toulmin  Smith,  The  Parish,  562. 

6  Phillips,  Local  Taxation  in  England  and  Wales,  473,  490. 

7  On  these  officers  as  assessors  see  Gneist,  Selfgovernment,  II,  65  ff.,  100  ff., 
647,  663,  685,  796,  789,  622;  edition  of  1871,  565  ff.;  Toulmin  Smith,  The 
Parish,  560,  566  ff.,  576  ff.,  595. 


The  Assessor.  185 

special  officer  bearing  the  name  of  assessor  is  not  elected  in  the 
parish.  And  it  should  also  be  noted  that  in  England  only 
real  property  is  assessed  for  local  purposes.1 

At  present  the  poor  rate  constitutes  the  great  burden  of  local 
taxation.  The  valuation  is  still  taken  by  the  parish  overseer, 
but  subject  to  the  revision  of  the  "assessment  committee," 
appointed  by  the  guardians  of  the  union  in  which  the  parish 
is  situated.2  The  county  rate  is  "tacked"  to  the  poor  rate  and 
collected  usually  as  a  part  of  it.3  "  The  county,  however,  is 
not  bound  by  the  parochial  valuation ;  it  makes  its  rate  on 
parishes  and  not  on  individuals ;  and,  subject  to  the  right  of 
appeal  on  the  part  of  the  parish,  may  raise  or  diminish  the 
rateable  value  of  the  parish." 4 

The  English  system  of  local  taxation  is  exceedingly  complex 
and  confusing,  presenting  in  this  respect  a  great  contrast  to  the 
simple  methods  prevailing  generally  in  the  United  States. 
There  are  several  different  assessments  managed  by  distinct 
authorities  for  diverse  areas ;  and,  besides,  the  incidence  of 
taxation  is  not  the  same  in  all  cases.  To  remedy  the  glaring 
defects  of  the  fiscal  system  is  one  of  the  benefits  anxiously 
sought  in  every  project  for  local  government  reform  in  Great 
Britain.9 


1  Phillips,  Local  Taxation  in  England  and  Wales,  502. 

2  The  union  assessment  committees  were  established  in  1863:  Phillips, 
Local  Taxation  in  England  and  Wales,  489;  Gneist,  (1871),  574. 

3  The  expenses  for  highways  are  also  usually  defrayed  from  the  poor  rate 
Gneist,  (1871),  576. 

4  Thring,  Local  Government,  in  Nineteenth  Century,  March,  1888,  p.  436. 

5  Phillips,  Local  Taxation  in  England  and  Wales,  465  ff.,  487  ff.     For  a 
discussion  of  the  present  (1888)  Local  Government  Bill  see  Westminster 
Review,  May  and  July,  1888 ;  Freeman,  The  House  of  Lords  and  the  County 
Councils,  in  Fort.  Rev.,  May,  1888;  Goodnow,  in  Pol.  Sc.  Quart.,  June,  1888; 
Quart.  Rev.,  July,  1888. 


186          Rise  of  the  Township  in  the  Western  Slates. 


(6). — Rise  of  the  Assessor  in  the  American  Colonies. 

In  New  England  all  taxes  of  whatever  description — whether 
county,  country,  or  town  rates — were  assessed  by  the  township 
officers.1  With  respect  to  the  town  and  county  rates,  the 
selectmen,  like  the  parish  vestry,  may  be  regarded  as  the 
"  original  assessor ;  "  but  distinct  officers  were  sometimes 
chosen.2  Thus  in  Boston,  previous  to  1694,  this  business  was 
entrusted  entirely  to  the  selectmen ; 3  but  in  that  year  it  was 
decided  by  the  town-meeting  that  seven  assessors  should  be 
elected.4 

Special  provision  was  made  by  the  Massachusetts  general 
court  for  the  assessment  of  the  public  rates.  It  was  enacted 
that  the  selectmen  of  each  town,  together  with  a  "  commis- 
sioner "  chosen  for  the  purpose,  should  apportion  the  colonial 
tax;  and  the  commissioners  of  the  various  towns  of  the  county, 
assembled  in  the  shire  town,  were  constituted  a  board  of  equali- 
zation.5 

A  change  was  made  in  1700,  when  an  elaborate  act  for  the 
regulation  of  assessments  appeared,  providing  that,  in  every 
town,  "three,  five,  seven,  or  nine  meet  persons  to  be  assessors" 
of  public  taxes,  should  be  annually  chosen  by  the  "freeholders 
and  other  inhabitants."  However,  in  case  of  failure  on  the 
part  of  the  town  to  choose  such  assessors,  the  selectmen  were 


1  For  a  more  extended  notice  of  New  England  fiscal  administration,  see 
Chap.  VII,  in. 

2  "  Raters  "  were  elected  in  Dorchester :  Town  Records,  35,  268,  etc. ;  also 
in  Salem:  Town  Records,  77;  and  in  Plymouth  jurisdiction:  Col.  Records, 
XI,  42,  89. 

"Listers  for  the  estates  of  men"  were  chosen  in  New  Haven:  Levermore, 
Republic  of  New  Haven,  159. 

3  See  for  example  Boston  Town  Records,  1634-60,  p.  65. 
*  Boston  Town  Records,  1660-1701,  p.  219. 

5 So  during  the  seventeenth  century:  Mass.  Col.  Rec.,  II,  174,  212-13;  IV, 
Pt.  II,  363;  Boston  Town  Records,  1634-60,  p.  156;  1660-1701,  p.  140;  Salem 
Town  Records,  217. 


The  Assessor.  187 

to  officiate;1  and  the  town  records  show  that,  in  some  instances 
at  least,  the  same  men  were  regularly  elected  to  both  offices.2  s 

In  1707,  it  was  further  enacted  that  the  "assessors  distinct 
from  the  selectmen"  elected  annually  to  assess  the  public  rate, 
should  also  apportion  the  town  and  county  charges3 — a  practice 
long  before  adopted  in  the  Plymouth  jurisdiction.4 

Taxpayers  were  required  by  law  to  bring  in  to  the  assessors, 
after  public  notice,  "  true  and  perfects  lists  of  their  polls  and 
rateable  estates ; "  but  in  case  of  refusal,  or  if  false  lists  were 
submitted,  the  assessors  were  empowered  to  make  the  valuation 
according  to  their  "sound  judgment  and  discretion."6 

For  many  years  after  the  first  settlement  of  Massachusetts 
taxes  were  payable  in  kind.  This  led  to  the  unique  expedient 
of  requiring  committees  of  appraisement  to  be  elected  in  each 
town,  whose  duty  it  was  to  fix  the  valuation  of  animals  or 
produce,  oifered  in  payment  of  rates;  but  sometimes  a  general 
schedule  of  values  was  prescribed  in  the  statutes,  or  the  deter- 
mination of  prices,  in  case  of  disagreement,  was  left  to  arbiters.6 

By  the  code  of  the  Duke  of  York  all  assessments  were  to  be 
made  by  the  constable  and  overseers  of  each  parish,  subject  to 
revision  by  the  high  sheriff  and  appeal  to  the  justices.7  Subse- 
quently, under  the  Province  laws  of  New  York  each  township, 
precinct,  and  manor  was  empowered  to  elect  annually  two 
assessors,  who  should  assess  all  taxes,  public  and  local.8  Like- 
wise in  New  Jersey,  taxes  were  assessed  by  officers  elected  in 
each  township.9  In  Pennsylvania,  on  the  other  hand — except 


1  Acts  and  Resolves,  I,  407-12. 

5  See,  for  example,  Worcester  Town  Records,  1740-1753,  p.  92;  1753-1783, 
pp.  9,  34,  87. 

8  Acts  and  Resolves,  I,  606. 

4  Plymouth  Col.  Rec.,  XI,  42,  89. 

8  Acts  and  Resolves,  II,  22,  1034,  etc. 

6  Mass.  Col.  Rec.,  I,  295,  303,  340,  etc.    See  also  Chap.  VII. 

7  Duke  of  York's  Laws,  9,  48. 

8  Van  Selmack,  Laws  of  New  York,  1691-1773, 1,  54;  II,  574,  etc. 

9  Newark  Town  Records,  99,  140,  141,  etc.    See  Chap.  VIII,  II,  (6),  for  the 
early  period. 


188          Rise  of  the  Township  in  the  Western  States. 

for  the  brief  period  when  the  Duke's  laws  were  in  force — the 
entire  local  fiscal  administration  was  vested  in  the  county 
authorities.1 

The  county  court  in  Virginia,  had  control  of  the  whole  finan- 
cial business  of  the  shire.  After  a  period  of  experimentation, 
.  a  mode  of  assessment  was  finally  adopted  which  was  retained 
throughout  the  colonial  era.  Every  county  was  divided  into 
"precincts"  to  each  of  which  a  justice  was  assigned  by  the 
county  court.  To  these  justices  the  heads  of  families  residing 
in  each  precinct  were  required  to  bring  in  correct  lists  of  the 
tithables  for  which  each  was  responsible — a  rate  on  polls  being 
the  only  form  of  taxation  in  Virginia.2 

In  Maryland  the  ancient  function  of  the  hundred  as  an  area 
for  rating  was  restored.  The  list  of  taxables  for  the  county 
levy  was  taken  by  the  constable  of  each  hundred  and  returned 
to  the  county  court  for  record,  while  another  list  was  delivered 
to  the  sheriff  for  collection.3  Public  taxes  were  assessed  by  a 
"  commission  "  for  the  entire  colony  composed  of  one  or  more 
assessors  elected  in  each  hundred,  or  in  each  county  not  yet 
subdivided.4  In  Delaware,  likewise,  the  lists  of  taxables  were 
taken  by  the  constable  of  the  hundred ;  but  an  l  assessor '  was 
also  chosen,  who  acted  as  member  of  the  levy  court  of  the 
county.5 

(c). — The  Western  Assessor. 

Throughout  the  western  states  the  assessor  is  an  elective 
precinct  or  town  officer;6  and,  usually^  all  taxes,  state  or 

1  For  a  detailed  discussion  of  this  subject  see  Chap.  VIII,  in,  (eZ). 

2  See  Chap.  IX,  iv. 

3  See  Bacon,  Laws  of  Maryland,  1715,  Chap.  XV. 

*  Wilhelm,  Local  Institutions  of  Maryland,  47-48.     See  Chap.  V,  iv,  (6). 

5  See  Chap.  V,  iv,  (c). 

6 So  in  Ohio:  Revised  Statutes,  1880,  I,  295;  Pennsylvania:  Brightly's 
Purdon's  Digest,  II,  1637;  New  York:  Revised  Statutes,  I,  808;  Illinois: 
Starr  and  Curtis'  Annotated  Statutes,  II,  2416;  Iowa:  McLain's  Annotated 
Statutes,  I,  89 ;  Minnesota,  Statutes,  169 ;  Wisconsin :  Revised  Statutes,  1878, 


The  Assessor.  189 

local,  are  assessed  by  him.  The  procedure  observed  in  the 
performance  of  his  duties  as  defined  by  the  Nebraska  statutes, 
may  be  taken  as  typical  of  that  which  prevails  throughout  the 
west . 

It  is  the  duty  of  the  county  clerk  "to  make  up  for  the 
several  townships  or  precincts  of  his  county,  in  books  to  be 
provided  for  that  purpose  by  the  auditor  of  public  accounts, 
the  lists  of  lots  and  lands  to  be  assessed ; "  and  such  books 
shall  also  contain  sufficient  space,  with  proper  columns  for  the 
personal  property  to  be  listed. 

"There  shall  be  held  annually  on  the  third  Tuesday  of 
March,  at  the  office  of  the  county  clerk  .  .  .  ,  a  meeting  of 
the  assessors  of  the  .  .  .  county  for  the  purpose  of  consultation 
in  regard  to  the  value  of  various  kinds  and  classes  of  property 
to  be  by  them  assessed."  At  this  meeting  the  {Assessment  books 
and  all  necessary  blanks  are  delivered  to  each  assessor  by  the 
county  clerk.  Failure  to  attend  the  meeting  and  to  receive 
such  books  and  blanks  is  to  be  regarded  as  sufficient  reason 
for  declaring  the  office  of  any  assessor  vacant  and  for  appoint- 
ing a  successor. 

The  assessor  may  appoint  one  or  more  deputies  and  assign 
to  them  such  districts  as  he  shall  deem  proper. 

Realty  must  be  assessed,  by  actual  view,  at  some  time 
between  the  first  day  of  April  and  the  first  day  of  June  of 
each  year;  and  it  is  listed  to  the  persons  owning  the  same,  or 
their  agents,  on  the  first  day  of  April,  including  all  property 
purchased  on  that  day. 

Personal  property  must  be  assessed  annually  during  the 
same  period.  The  assessor  "shall  call  at  the  office,  place  of 
doing  business,  or  residence  of  each  person"  liable  to  taxation, 


pp.  277,  338;  Dakota,  Compiled  Laws,  1887,  p.  175;  Nebraska,  Compiled 
Statutes,  1887,  p.  315.  In  Kansas,  the  trustee,  and  in  Missouri,  the  town 
clerk  is  ex  officio  assessor:  Canficld,  Local  GovLin  Kansas,  14;  Township 
Organization  Law  of  Missouri,  9.  In  Missouri,  where  town  organization  has 
not  been  adopted,  the  assessor  is  an  elective  county  officer :  Shannon,  Civil 
Govt.  in  Mo.,  308-9. 


190          Rise  of  the  Township  in  the  Western  States. 

and  require  him  "  to  make  a  correct  statement  of  his  taxable 
property/'  which  statement  should  be  signed  and  sworn  to. 
The  assessor  shall  thereupon  assess  the  value  of  the  property 
and  enter  the  same  in  his  books.  If  any  person  required  by 
law  to  list  property  shall  be  sick  or  absent  when  the  assessor 
calls,  the  latter  may  notify  such  person  to  deliver  the  schedule 
to  him  on  some  convenient  day. 

In  case  of  failure  to  obtain  a  statement  of  personal  property, 
the  assessor  shall  ascertain  the  amount  and  value  thereof,  and 
make  the  assessment ;  and  he  may  also  examine,  on  oath, 
"any  person  whom  he  may  suppose  to  have  knowledge  of  the 
amount  or  value  of  the  personal  property"  which  any  one 
refusing  is  required  to  list. 

On  the  first  Monday  of  June  annually  the  assessor  and  the 
town  board  are  required  to  meet  to  revise  the  assessments,  to 
hear  complaints,  and  make  needful  corrections.  The  assessor 
is  further  required,  on  or  before  the  second  Monday  of  June, 
to  make  return  to  the  county  clerk,  who  shall  make  any  neces- 
sary corrections  in  the  assessment  of  real  property. 

The  final  equalization  of  local  assessment  is  made  by  the 
county  board,  which  may  also  hear  appeals  from  the  board  of 
the  township. 

The  assessor,  before  entering  upon  his  office,  must  give  a 
bond  in  the  sum  of  five  hundred  dollars. 

In  addition  to  his  ordinary  duties  the  assessor  is  required 
each  year,  under  authority  of  the  county  board,  to  take  the 
census  of  inhabitants;  record  all  births  and  deaths,  and  register 
all  males  liable  to  militia  service,  in  his  district.  It  is  his 
duty  also  to  inspect  trees  planted  along  the  section  and  half- 
section  lines,  in  accordance  with  the  act  offering  a  bounty 
therefor,  and  make  annual  report  of  their  condition  to  the 
county  board.1 

It  goes  without  saying  that  right  methods  of  taxation  con- 
stitute one  of  the  most  vital  questions  with  which  the  people 

1  Compiled  Statutes  of  Nebraska,,  1887,  pp.  592  ff.,  52-3. 


The  Overseer  of  tJie  Poor.  191 

are  concerned ;  and,  lying  as  it  does  at  the  very  basis  of  the 
state  or  local  revenue,  no  single  administrative  function  can 
be  more  important  than  that  of  the  assessor.  But  it  is  equally 
apparent  that  no  function  is  less  satisfactorily  performed. 
Whether  from  the  carelessness,  favoritism,  or  incompetence  of 
the  assessor,  or  on  account  of  inadequate  laws  relating  to  the 
incidence  of  taxation,  everywhere  throughout  the  West,  and 
indeed  throughout  the  whole  country,  there  is  a  growing  feeling 
that  existing  methods  of  assessment  are  fast  becoming  intoler- 
able. And  it  is  a  striking  fact,  that  a  similar  state  of  affairs 
exist  in  Great  Britain.  No  more  beneficent  service  can  be 
rendered  to  the  people  by  the  economist  than  by  leading  the 
way  to  a  reform  of  present  fiscal  methods  in  accordance  with 
scientific  principles.1 

VII. — THE  OVERSEER  or  THE  POOR. 

(a). — Evolution  of  the  Office. 

From  a  very  early  day  the  care  of  the  poor  has  been  an 
incident  of  town  or  parish  government,  though  the  office  of 
overseer,  by  that  name  and  as  an  institution  recognized  by 
the  law,  was  evolved  during  the  sixteenth  century.2 

But  several  hundred  years  before  the  Norman  Conquest 
the  foundation  of  the  first  English  poor  law  was  established 
under  authority  of  Gregory  the  Great.  In  one  of  his  "  re- 
sponses "  or  letters  to  Augustine  relating  to  the  government 


*On  this  subject  should  be  read  the  very  instructive  work  of  Dr.  Ely, 
Taxation  in  American  States  and  Cities,  particularly  Parts  II  and  III.  For 
England  see  Phillips'  Local  Taxation  in  England  and  Wales,  in  Probyn's 
Local  Government  and  Taxation  in  the  United  Kingdom. 

*"  Neither  the  office  nor  the  functions  of  'overseers  of  the  poor'  are 
known  to  the  Common  Law.  This  is  not  a  parish  office  in  the  sense  in 
which  the  offices  of  churchwardens,  surveyors  of  highways,  and  constables 
are  such,"  and  whose  functions  "  have  existed  in  every  parish  from  time 
immemorial."  Toulmin  Smith,  The  Parish,  143. 


192          Rise  of  the  Township  in  the  Western  States. 

of  the  newly  planted  English  church,  he  declared  that  Augus- 
tine, being  a  monk,  could  not  properly  take  the  one-fourth 
part  of  the  oblations  and  offerings  of  the  faithful  which, 
according  to  custom,  constituted  the  bishop's  share.1  Accord- 
ingly a  third  instead  of  a  fourth  of  all  such  revenues  was  set 
apart  for  the  relief  of  the  poor ; 2  and  this  practice  was  subse- 
quently enforced  through  the  ordinances  of  the  king  and  witan. 

It  is  provided  in  the  laws  of  Aethelred  "  that  one-third  part 
of  the  tithe  which  belongs  to  the  church  go  to  the  reparation 
of  the  church,  and  a  second  part  to  the  servants  of  God ;  the 
third  to  God's  poor,  and  to  needy  ones  in  thraldom." 3 

Thus,  in  the  early  and  middle  ages,  the  institution  of  the 
tithe  was  intended  to  fill  the  place  occupied  by  the  modern 
rates  for  relief  of  the  poor.  But,  as  is  well  known,  this 
object  was  not  fully  attained  on  account  of  the  appropriation 
by  the  clergy  of  nearly  the  entire  revenues  of  the  church  to 
strictly  ecclesiastical  uses.4 

However,  at  an  early  day,  it  became  the  established  custom 
that  whatever  was  set  apart  for  the  use  of  the  poor  should  be 
distributed  under  supervision  of  the  parish  officers ;  and  this 
practice  was  enforced  by  the  canons  of  the  Reformation  period. 
All  "  beneficed  men,  not  being  resident  upon  their  benefices, 


JThe  letter  of  Gregory,  written  in  the  year  601,  is  printed  in  Haddan 
and  Stubbs'  Councils,  III,  18-19 ;  also  in  Baeda's  Hist.  Ecc.,  I,  27  :  Mon.  Hist. 
Brit.,  pp.  132-3 ;  and  in  the  Bohn  translation  of  Baeda,  pp.  40-41. 

By  the  law  of  the  Roman  Church  the  revenues  from  such  sources  were 
divided  into  four  parts :  one  for  the  bishop,  one  for  the  clergy,  one  for  the 
poor,  and  one  for  repairs  of  the  fabric.  See  Selden,  Hist,  of  Tithes,  81 ; 
Kemble,  Saxons,  II,  479  note,  431. 

2  This  rule  is   laid  down  in  the  Excerptiones  of  Archbishop  Ecgbert : 
Thorpe,  Ancient  Laws,  II,  98.     Cf.  Lingard,  Hist,  and  Antiq.  of  the  Anglo- 
Saxon  Church,  I,  188-9. 

3  Aethelred,  IX,  6 :  Thorpe,  Ancient  Laws,  I,  342-3 ;  Kemble,  Saxons,  II, 
502-3.     See  Kemble's  entire  chapter  on  "  The  Poor"  during  the  Saxon 
period :  /&.,  497-517  ;  Nicholls,  Hist,  of  Eng.  Poor  Law,  I,  13  ff. ;  Lingard, 
Hist,  and  Antiq.  of  the  A.  S.  Church,  I,  178-98;   Selden,  Hist,  of  Tithes, 
Caps.  7-8. 

*Toulmin  Smith,  The  Parish,  27-29. 


The  Overseer  of  the  Poor.  193 

which  may  dispend  yearly  twenty  pounds  or  above"  were 
required  to  distribute  in  alms  one-fortieth  part  of  the  reve- 
nues of  their  benefices,  "  in  the  presence  of  the  churchwardens 
or  some  other  honest  men  of  the  parish." l  The  alms-chest 
was  also  in  "  charge  of  the  churchwardens,  or  any  other  two 
honest  men,  to  be  appointed  by  the  parish  from  year  to 
year ; "  and  the  contents  of  the  chest  were  to  be  distributed 
at  convenient  times  "  in  the  presence  of  the  whole  parish  or 
six  of  them."2  Accordingly  "  the  ancient  parish  records  often 
contain  mention  of  'distributors/  chosen  by  the  parish."3 

But  already  some  years  before  the  date  of  the  canons  just 
cited,  a  still  more  interesting  office  connected  with  the  poor 
law  administration  had  been  created  by  parliamentary  enact- 
ment.4 This  was  the  "  collector "  of  voluntary  alms  elected 
by  the  inhabitants  of  the  parish  in  the  same  way  as  the  dis- 
tributor. In  these  two  local  officers,  and  more  particularly 
the  collector,5  we  find  the  direct  prototype  of  the  overseers  of 
the  poor  who  soon  after  make  their  appearance. 

By  an  act  of  the  thirty-ninth  year  of  Elizabeth,  1597,  em- 
bodied and  elaborated  in  the  great  poor  law  of  the  forty-third 
year  of  that  reign,  the  churchwardens  and  four  "  substantial 
householders"  of  each  parish,  "who  shall  be  nominated  yearly 
in  Easter  Week,  under  the  hand  and  seal  of  two  or  more  jus- 
tices of  the  peace  .  .  .  dwelling  in  or  near  the  same  parish, 
shall  be  called  overseers  of  the  poor."0  But  the  office  was 


1  Contained  in  the  "Injunctions"  of  1547  and  1559:  Sparrow's  Canons,  5, 
6,  71,  247,  cited  by  Toulmin  Smith,  The  Parish,  95. 

1Tonlmin  Smith,  The  Parish,  143;  Sparrow's  Canons,  9. 

'See  Toulmin  Smith,  The  Parish,  143,  and  his  extracts  from  the  records 
of  the  parish  of  Steeple  Ashton,  Ib.,  491  ff.,  particularly  p.  510. 

4  By  27  Hen.  VIII,  cap.  25,  1535-6;  5  and  6  Ed.  VI,  cap.  2,  1551-2;  2 
and  3  Philip  and  Mary,  cap.  5,  1555;  and  18  Elizabeth,  cap.  3,  1575-6: 
Nicholls,  Hist,  of  English  Poor  Law,  I,  122,  136,  144,  155,  170. 

5  Pointed  out  by  Nicholls,  Hist,  of  Eng.  Poor  Law,  I,  136. 

•Toulmin  Smith,  The  Parish,  145-6;  Nicholls,  Hist,  of  Eng.  Poor  Law, 
I,  193  f. 

13 


194          Rise  of  the  Township  in  the  Western  States. 

probably  elective,  as  was  that  of  the  earlier  collectors  and  dis- 
tributors, the  function  of  the  justices  being  merely  to  confirm 
the  previous  choice  of  the  parishioners.1 

Thus,  a  few  years  before  American  colonization  began,  was 
inaugurated  the  essential  features  of  the  parish  system  of  pauper 
administration  which  remained  substantially  unchanged,  though 
the  subject  of  many  statutes,  until  the  institution  of  the  poor 
law  unions  in  1834.2 


(6). — Rise  of  the  Overseer  in  the  American  Colonies. 

During  the  early  years  of  New  England  history  the  poor  of 
each  town  were  cared  for  by  incidental  contributions  of  food  or 
money  as  cases  demanding  relief  arose.  And  in  some  instances, 
just  as  in  the  days  of  Augustine  or  Aethelred,  it  was  the  eccle- 
siastical and  not  the  civil  township  which  first  assumed  the  duty. 
Thus  in  Cambridge,  for  a  considerable  period,  the  oblations 
of  the  faithful,  collected  usually  in  the  congregation  on  the 
Sabbath  day,  were  the  only  substitute  for  a  poor  rate;  and 
not  until  1663  is  there  any  evidence  in  the  records  of  this 
burden  having  been  undertaken  by  the  town;3  while  as  late 
as  1679,  the  society  continued  to  make  large  contributions  for 
this  purpose.4 

Iii  Massachusetts,  when  the  care  of  the  poor  became  a  town 
charge,  the  functions  of  overseer  usually  devolved  upon  the 


1  Such  is  the  view  of  Toulmin  Smith,  The  Parish,  146.     The  act  of  43 
Elizabeth  is  analyzed  by  Gneist,  II,  638-9. 

2  The  subject  cannot  here  be  treated  in  detail.     On  English  poor  laws  in 
general,  see  Gneist,  II,  638-723 ;  Chalmers,  Local  Govt.,  51-60.     Standard 
works  are  Eden's  State  of  the  Poor,  Nicholls'  History  of  the  English  Poor  Law, 
Pashley's  Pauperism  and  Poor  Laws,  and  Burn's  History  of  the  Poor  Laws; 
much  information  is  also  contained  in  Probyn's  Local  Government  and  Taxa- 
tion in  the  United  Kingdom. 

3  Paige,  History  of  Cambridge,  218-19. 

4  Paige,  History  of  Cambridge,  254,  273-4. 


The  Overseer  of  the  Poor.  195 

selectmen;1  but  separate  officers  might  be  chosen  whenever 
the  electors  saw  fit.3 

In  the  Plymouth  jurisdiction,  however,  as  early  as  1658, 
each  town  was  required  by  order  of  the  general  court  to  choose 
"two  or  three  men"  to  provide  for  the  children  of  indigent 
parents.3  A  similar  clause  is  contained  in  the  Rhode  Island 
code  of  1647,  every  town  being  ordered  to  "provide  carefully 
for  the  reliefe  of  the  poore,  to  maintayne  the  impotent,  .  .  . 
to  employ  the  able," and  to  "appoint  an  overseer  for  the  same 
purpose."  * 

The  law  of  settlement  in  Massachusetts  is  of  considerable 
interest  as  affording  early  precedents  for  the  existing  procedure 
in  the  western  states.  In  1659  a  comprehensive  order  was 
passed  by  the  general  court,  providing — "  for  the  avoyding  of 
all  future  inconvenjencjes  referring  to  the  setling  of  poore 
people  that  may  neede  releife  from  the  place  where  they 
dwell  " — that,  if,  any  person  with  or  without  a  family  "  shall 
be  resident  in  any  toune  or  peculjar  of  this  jurisdiction  for 
more  than  three  moneths  w^out  notice  given  to  such  person 
or  persons  by  the  connstable,  or  one  of  the  selectmen  of  the 
sajd  place,  .  .  .  that  the  town  is  not  willing  that  they  should 
rcuiajne  as  an  inhabitant  amongst  them,  and  in  case,  after 
such  notice  given,  such  person  or  persons  shall  notwthstanding 
remajne  in  the  sajd  place,  if  the  selectmen  .  .  .  shall  not,  by 
way  of  complaint,  petition  the  next  county  court  of  that  sheire 


1So,  for  example,  in  Worcester:  Town  Records,  1753-1783,  p.  169;  in 
Salem:  Town  Records,  215;  in  Cambridge:  Paige,  History  of  Cambridge, 
218-19;  in  Braintree:  Records,  573,  etc. 

J  So,  in  Boston,  overseers  were  first  elected  in  1690/1 :  Town  Records, 
1660-1701,  p.  206.  The  right  of  the  electors  to  decide  whether  the  select- 
men or  special  overseers  shall  have  charge  of  the  poor  law  administration 
is  implied  in  the  statutes:  Ads  and  Resolves,  I,  67. 

3Plym.  Col.  Rec.,  XI,  111,  120,  194.    But  the  name  "overseer"  is  not  used. 

4  Rhode  Island  Col.  Rec.,  1, 184-5,  citing  the  43  Elizabeth.  In  Connecticut 
it  was  required  that  every  town  should  provide  for  its  own  poor:  Col.  Rec., 
Ill,  300.  And  an  ordinance  of  Andrew  directed  that  overseers  be  appointed : 
Col.  Rec.,  Ill,  428. 


196          Rise  of  the  Township  in  the  Western  States. 

for  releife  .  .  .  ,  every  such  person  .  .  .  shall  be  provided 
for  .  .  .  ,  in  case  of  necessity,  by  the  inhabitants  of  the  sajd 
place  where  he  or  she  is  so  found."  And  the  county  court 
was  authorized  "  to  heare  and  determine  all  complaints  of  this 
nature,  and  setle  all  poore  persons"  in  any  town  of  the  colony, 
to  be  provided  for  by  the  constable  or  selectmen  as  a  town 
charge.  From  the  decisions  of  the  county  court  appeal  lay  to 
the  court  of  assistants.1  The  essential  features  of  this  law 
were  maintained  throughout  the  colonial  era.2 

In  the  Middle  Colonies  the  administration  of  the  poor  law 
conformed  closely  to  the  English  model.  Thus  in  New  York 
the  churchwardens  of  each  parish  or  as  many  overseers  as  each 
township,  precinct,  or  manor  saw  fit  to  elect,  were  entrusted 
with  the  care  of  the  poor.  Questions  of  settlement  were 
decided  by  any  two  justices  of  the  peace,  with  appeal  to  the 
quarter  sessions.3 

In  Pennsylvania,  during  the  early  period,  paupers  were 
cared  for  by  the  next  justice  of  the  peace.4  Later  it  was 
enacted  that  two  overseers  should  be  elected  in  each  township 
or  borough ;  and  their  accounts  were  audited  by  a  board 
specially  chosen  for  the  purpose.5 

The  functions  of  overseer  in  Virginia  devolved  upon  the 
churchwardens  of  every  parish,  under  the  direction  of  the 
vestry  which  was  responsible  for  the  necessary  funds.6  By 


1  Mass.  Col.  Bee.,  IV,  I,  365.     Cf.  the  previous  orders  of  1639  and  1655  in 
Mass.  Col.  Bee.,  I,  264;  IV,  i,  230. 

2  Acts  and  Resolves,  I,  67,  378-81,  etc.    See  G.  S.  Hale's  interesting  chapter 
on  the  Charities  of  Boston  in  Memorial  Hist.  Boston,  IV,  641  if. 

3  Van  Schaack,  Laws  of  New  York,  1691-1773,  I,  43,  343;   II,  750-56. 
"Poor-master"   instead  of  "overseer"  also  appears;    Ib.,  II,  576.    Acts 
providing  for  overseer  in  particular  counties  or  districts  were  passed :  Ib., 
II,  799,  570,  438,  etc. 

4  Charter  and  Laws,  1682-1700,  pp.  115,  142. 

5  See  the  act  of  1771,  Acts  of  the  Assembly,  I,  404-14 ;  Gordon,  Hist,  of  Pa., 
552;  Gould,  Local  Govt.  in  Pa.,  30;  and  below,  Chap.  VIII,  in,  (e). 

6  Act  of  1727  :  Hening,  Statutes,  IV,  210-11. 


The  Overseer  of  the  Poor.  197 

an  act  of  1646,  the  county  court  was  authorized  to  bind  out 
poor  children  "  to  tradesmen  or  husbandmen  to  be  brought 
up  in  some  good  and  lawful  calling;"  and  because  "God 
Almighty,  among  many  His  other  blessings,  hath  vouch- 
safed increase  of  children  to  the  colony,"  which  if  properly 
"  instructed  in  good  and  lawfull  trades  may  much  improve 
the  honor  and  reputation  of  the  country;"  and  since  "through 
1'iMid  indulgence  or  perverse  obstinacy  "  parents  are  averse  to 
parting  with  their  children  :  therefore  the  commissioners  of 
the  county  court  are  permitted  in  their  discretion,  to  make 
choice  of  two  children  in  each  county  who  shall  be  sent  to 
James  City  to  be  employed  in  the  public  flax  houses,  and 
supported  at  public  expense.1  In  1668  it  was  enacted  that  a 
work-house  in  each  county  should  be  provided  by  the  com- 
missioners, "  with  the  assistance  of  the  respective  vestries," 
where  poor  children  should  be  instructed  in  spinning,  weav- 
ing, and  other  useful  occupations.2 

A  definite  law  of  settlement  was  enacted  in  1727.  One 
year's  residence  was  required  to  constitute  any  person  an 
inhabitant  of  the  parish.  On  complaint  of  the  church- 
wardens, every  justice  of  the  peace  was  empowered  to  remove 
persons  to  the  parishes  where  they  should  respectively  belong ; 
and  the  churchwardens  of  such  parishes  were  required  to 
receive  them  under  penalty  of  twenty  pounds  for  refusal.3 

In  South  Carolina,  likewise,  the  care  of  the  poor  devolved 
upon  the  parish,  each  vestry  being  authorized  to  choose  two 
or  more  "  sober,  discreet,  and  substantial  persons  to  be  over- 
seers."4 


1  Hening,  Statutes,  I,  336-7. 

2  Hening,  Statutes,  II,  267.    But  in  1755  provision  was  made  for  parish 
work-houses  for  ordinary  beggars  and  paupers:  Ib.,  VI,  476. 

5  Hening,  Statutes,  IV,  210-11.    For  subsequent  acts,  see  76.,  VI,  31-2, 
475-8.    On  Virginia  poor  laws,  see  Ingle,  Local  Govt.  in  Va.,  64-5. 
4  South  Carolina  Statutes  at  Large,  II,  594  ( 1712). 


198          Rise  of  the  Township  in  the  Western  States. 

(c). — The  Western  Overseer. 

Thanks  to  the  many  natural  advantages  of  a  new  country, 
the  care  of  the  poor  in  the  United  States  is  not  as  yet  felt  to 
be  the  crushing  burden  which  renders  pauper  administration 
in  England  the  one  subject  of  ceaseless  anxiety.  Neverthe- 
less in  some  of  the  more  densely  populated  states  the  annual 
expenditure  for  this  purpose  is  already  enormous ;  and  even 
in  those  more  sparsely  settled,  the  subject  is  fast  becoming 
one  of  the  gravest  concerns  of  local  government.1 

As  a  general  rule,  throughout  the  West,  the  administration 
of  the  poor  law  belongs  partly  to  the  township  and  partly  to 
the  county,  with  a  tendency  to  vest  it  entirely  in  the  latter 
whenever  the  county  board  shall  see  fit  to  establish  a  poor 
house  ;  but  the  statutes  show  great  diversity  of  detail. 

Thus,  in  Nebraska,  the  justices  of  the  peace  in  each  precinct 
or  the  town  supervisors,  as  the  case  may  be,  have  "  entire  and 
exclusive  superintendence  of  the  poor"  in  their  respective  dis- 
tricts, except  that  a  physician  may  be  employed  for  the  entire 
county.  But  the  cost  of  poor  relief  is  a  county  charge,  and 
the  township  overseers  are  required  to  report  to  the  county 
board.  Furthermore,  whenever  the  county  board  shall  enter 
upon  their  records  that  they  have  established  a  poor  house, 
and  that  such  poor  house  is  ready  for  the  reception  of  the  poor 
of  the  county,  then  the  authority  conferred  upon  the  precinct 
or  township  overseers  shall  cease.2 


1  Thus  in  Michigan  the  whole  amount  expended  for  the  poor  in  1885  was 
$808,916.94  against  $630,239.54  in  1876:  Rep.  St.  Bd.  Cor.  and  Char.,  1885-6, 
p.  152.     In  Wisconsin  the  cost  of  maintaining  the  county  and  city  poor- 
houses  alone  in  1886,  was  $112,047.70;  while  more  than  twice  that  amount 
was  spent  for  outdoor  relief:  Rep.  St.  Bd.  Char,  and  Reform,  1885-6,  pp. 
228-31.     In  Minnesota  the  entire  cost  of  poor  relief  for  1885,  excluding 
purchase  of  farms  and  permanent  improvements,  was  $267,620.94:  Rep.  St. 
Bd.  Cor.  and  Char.,  1886,  pp.  174-6.     In  New  York  the  total  expendi- 
tures for  outdoor  relief  and  in  connection  with  poorhouses,  in  1887,  was 
$1,176,903.86:  Rep.  St.  Bd.  Char.,  1887,  p.  83. 

2  Compiled  Statutes  of  Neb.,  1887,  pp.  319,  546-7. 


The  Overseer  of  the  Poor.  199 

In  New  York,  Michigan,  and  Wisconsin  a  county  option 
law  exists. 

In  the  latter  state  each  township  is  required  to  relieve  and 
support  all  poor  and  indigent  persons  who  have  gained  a  legal 
settlement  therein ;  but  paupers  not  so  settled  are  cared  for  by 
the  county  authorities.  The  county  board  may,  however,  at 
any  annual  or  special  meeting  abolish  the  distinction  between 
town  and  county  poor,  and  appoint  three  county  superintendents 
who  shall  have  entire  charge  of  pauper  administration.  In  like 
manner,  at  any  time,  the  board  may  return  to  the  township 
plan.1 

The  dual  system  has  also  been  adopted  by  Illinois.  The 
people  of  each  county  may,  at  any  time,  determine  by  majority 
vote  whether  the  care  of  the  poor  shall  be  a  county  or  a  town- 
ship charge.  But  in  the  latter  event  all  paupers  may  be 
provided  for  in  the  county  poor  house  at  the  expense  of  the 
respective  townships  whence  they  were  sent;  and  in  any  case, 
whether  the  township  or  county  plan  exists,  the  local  overseers2 
are  each  required  to  file,  annually,  a  detailed  report  of  their 
transactions  with  the  county  clerk,  for  the  inspection  of  the 
county  board.3 

In  Ohio  it  is  the  duty  of  the  trustees  to  provide  for  paupers 
at  the  expense  of  the  township ;  unless,  after  due  inquiry, 
such  persons  are  found  worthy  of  "  public  "  relief,  when  they 
became  a  county  charge.4 

The  powers  of  the  township  in  this  regard  are  reduced  to  a 
minimum  of  importance  in  Indiana,  Iowa,  and  Kansas.  The 
trustees,  as  ex  qfficio  overseers,  may  provide  temporary  relief; 

1  Revised  Statutes  of  Wis.,  1878,  pp.  457,  460;  Revised  Statutes  of  New  York, 
III,  1854-1869;  Hovf  ell's  Annotated  Statutes  of  Mich.,  1882, 1, 496-501 ;  Green, 
Townships  and  Township  Officers,  125-30. 

J  In  counties  where  township  organization  has  not  been  adopted  the  poor 
of  each  precinct  are  placed  under  the  supervision  of  overseers  nominated  by 
and  responsible  to  the  county  board. 

•Cothran's  Revised  Statutes  of  III.,  1885,  pp.  1053-1062. 

4  Williams,  Revised  Statutes,  1886,  I,  203,  303-5. 


200          Rise  of  the  Township  in  the  Western  States. 

but  all  real  authority  is  possessed  by  the  county,  at  whose 
expense  paupers  are  supported  whether  or  not  a  poor  house 
has  been  established.  * 

The  duties  of  overseer  of  the  poor  are  of  great  and  increas- 
ing importance,  and  scarcely  any  office  requires  the  exercise  of 
greater  discretion  for  its  proper  administration.  The  principal 
functions  of  the  overseer  will  be  incidentally  revealed  in  the 
following  brief  summary  of  the  Wisconsin  statute. 

In  counties  where  the  township  plan  has  been  adopted,  the 
board  of  supervisors  are  ex  officio  overseers ; 2  and  each  town- 
ship is  required  to  support  all  indigent  persons,  entitled  to 
public  relief,  who  are  "  lawfully  settled  therein." 

The  definition  of  what  constitutes  a  legal  settlement  has 
always  been  the  vital  clause  of  the  English  poor  law.  In 
Wisconsin  lawful  settlement  may  be  variously  acquired  : 

"A  married  woman  shall  always  follow  and  have  the  settle- 
ment of  her  husband,  if  he  have  any  within  the  state,  otherwise 
her  own  at  the  time  of  marriage,  and  if  she  then  had  any  set- 
tlement it  shall  not  be  lost  or  suspended  by  the  marriage ;  and 
in  case  the  wife  shall  be  removed  to  the  place  of  her  settlement, 
and  if  the  husband  shall  want  relief,"  he  shall  also  receive  it 
there.  Legitimate  children  have  the  settlement  of  their  father; 


1  Revised  Statutes  of  Indiana,  1881,  pp.  1302-11 ;  McLain's  Annotated  Stat- 
utes of  Iowa,  I,  380-85  ;  Compiled  Laws  of  Kansas,  1885,  pp.  597-603. 

2  In  Ohio,  Indiana,  Kansas,  and  Iowa  the  township  trustees  are  ex  officio 
overseers ;  in  Michigan,  Illinois,  and  Nebraska  these  duties  are  performed 
by  the  supervisor ;  but  in  Nebraska,  for  counties  not  under  township  organi- 
zation, this  function  is  discharged  by  the  justices  in  each  precinct ;  and  the 
same  is  true  for  Illinois,  except  that  any  other  person  may  be  appointed  by 
the  county  board.     Only  in  two  states  of  the  group  under  consideration — 
New  York  and  Pennsylvania — are  separate  overseers  elected  in  each  town- 
ship.    Previous  to  1875,  however,  Michigan  had  in  every  township  two 
elective  "directors"  of  the  poor:  Green,  Townships  and  Toimship  Officers, 
125.     In  Minnesota  and  Dakota,  there  does  not  seem  to  be  any  township 
officer  for  supervision  of  the  poor :  Statutes  of  Minn.,  1878,  pp.  279  ff. ;  Com- 
piled Laws  of  Dakota,  188V,  pp.  476-9.     But  each  township  in  Minnesota  is 
authorized  to  levy  a  tax  for  poor  relief:  Statutes,  170. 


The  Overseer  of  the  Poor.  201 

or,  if  he  have  none,  then  of  the  mother.  Illegitimate  children 
always  follow  the  settlement  of  the  mother;  but  a  child  does 
not  gain  a  settlement  by  birth  in  a  place,  unless  the  parent  or 
parents  are  legally  settled  there  at  the  time.  Every  person  of 
full  age  who  resides  in  a  town  one  whole  year,  thereby  gains 
a  settlement ;  but  no  one  can  gain  a  settlement  by  residence, 
however  extended,  while  he  is  being  supported  as  a  pauper. 
A  minor  whose  parent,  or  a  woman  whose  husband,  has  not 
a  settlement  in  the  state,  may  acquire  such  by  one  year's  resi- 
dence in  a  town ;  and  a  minor  by  being  bound  as  an  appren- 
tice, thereby  immediately  gains  a  settlement  where  his  master 
dwells. 

Another  fundamental  principle  of  all  English  poor  laws, 
ancient  or  modern,  is  the  requirement  that  the  poor  shall  be 
relieved  by  their  near  kindred,  according  to  their  ability,  before 
the  town  can  be  called  upon  for  their  support.  In  Wisconsin 
this  obligation  falls  first  upon  the  father,  if  of  sufficient  means; 
otherwise,  upon  the  mother  or  children  in  the  order  named.  It 
is  the  duty  of  the  overseer  to  report  all  cases  of  neglect  on  the 
part  of  relatives  to  the  county  judge,  who  shall  order  them  to 
furnish  such  relief  as  the  township  overseers  shall  deem  suffi- 
cient. In  case  of  refusal,  assistance  is  furnished  by  the  over- 
seer, and  the  cost  thereof  may  be  collected  from  the  delinquent 
by  suit  in  the  name  of  the  town. 

When  a  minor  becomes,  or  is  likely  to  become,  a  township 
charge,  it  is  the  duty  of  the  overseer  to  bind  him  by  indenture 
as  apprentice  to  some  respectable  householder  of  the  county. 
The  overseers  are  also  required  to  assist  or  support  any  stranger 
who  may  be  taken  sick  or  become  lame  or  otherwise  disabled, 
in  the  town ;  but  the  cost  of  such  relief  is  made  a  county  charge, 
and  may  be  recovered  from  the  township  in  which  the  person 
relieved  has  a  legal  settlement. 

Any  one  removing  or  causing  to  be  removed  any  person 
from  a  place  without  the  state  into  any  town  therein,  with  the 
intention  of  making  such  town  chargeable  for  his  support,  is 
liable  to  a  fine  of  fifty  dollars,  and  in  default  of  payment  or 


202          Rise  of  the  Township  in  the  Western  States. 

sufficient  surety,  may  be  committed  to  the  county  jail  for  a 
time  not  exceeding  three  months.1 


VIII. — THE  OVERSEER  OF  HIGHWAYS. 
(a). — Evolution  of  the  Office. 

The  genesis  of  the  English  highway  rate  must  be  sought  in 
the  brycgbot,2  or  obligation  for  the  repair  of  bridges  and  roads, 
incumbent  upon  every  land  owner  during  the  Saxon  period. 
This  obligation,  like  other  branches  of  the  trinoda  necessitas, 
was  discharged  in  personal  services ;  indeed,  bryc-geweorc,  or 
bridge  work,  is  employed  as  the  exact  equivalent  of  brycgbot 
in  the  ancient  laws.3  And  it  is  highly  probable,  judging 
from  later  practice,  that  such  services  were  rendered  under 
the  supervision  of  the  local  reeves  and  tithingmen  :  the  fruit- 
ful progenitors  of  a  numerous  group  of  parish  and  manorial 
functionaries,  among  whom  is  the  highway  overseer.  The  spec- 
tacle so  familiar  in  our  own  times,  of  the  road  officer  with  his 
company  of  neighbors  engaged  in  repairing  the  public  ways, 
was  also  familiar  to  the  ceorls  of  Britain  twelve  hundred  years 
ago.4  Mention  of  the  trinoda  necessitas  occurs  in  English 
documents  early  in  the  eighth  century,  and  there  can  be  little 
doubt  that  this  triple  service  was  rendered  by  our  German 


1  Revised  Statutes  of  Wisconsin,  1878,  pp.  456  ff. ;  Supplement,  327-9. 

2  Brycgbot  is  mentioned  in  Aethelred,  V,  26,  VI,  32,  \  3 ;  Canute,  II,  10, 
65:  Schmid,  Gesetze,  224,  232,  276,  304. 

3 'Bryc-geweorc  is  used  in  the  Rectitudines  Singularum  Personarum,  cap.  1 : 
Schmid,  Gesetze,  370.  On  the  Anglo-Saxon  manor,  the  geneai  was  bound  to 
make  new  ways :  nigefaran  to  tunefeccan :  Reel.  Sing.  Pers.,  cap.  2 :  Schmid, 
Gesetze,  372. 

*Blackstone,  however,  assures  us  that  it  was  not  formerly  "incumbent  on 
any  particular  officer  to  call  the  parish  together  and  set  them  upon  this 
work :  "  Commentaries,  I,  358.  But  Blackstone,  as  usual,  is  not  a  safe  guide 
in  historic  questions.  See  Toulmin  Smith,  The  Parish,  105,  note,  who 
regards  the  constable — the  representative  of  the  tithingman — as  the  origi- 
nal overseer. 


The  Overseer  of  Highways.  203 

ancestors  on  the  continent  long  before  its  Latin  name  was 
invented.1 

From  time  immemorial  the  maintenance  of  highways  has 
been  an  obligation  of  the  parish.  "  Indeed,"  says  Toulmin 
Smith,  "the  making  of  by-laws  for  a  highway  rate  is  of  so 
much  more  ancient  and  common  practice  than  that  of  a  rate 
for  keeping  up  the  fabric  of  the  church  .  .  .  ,  that  the  cases 
as  to  church  rates  are  found  to  be  sustained,  both  in  argu- 
ment and  judgment,  in  the  old  reports,  by  comparing  a  rate 
for  repairing  the  church  to  a  rate  for  repairing  bridges  and 
highways.  Practically  speaking,  it  was  the  constable's  duty 
to  see  that  the  conditions  of  their  tenure  were  fulfilled  by  the 
holders  of  land ;  and  it  was  always  a  bouuden  duty  of  the 
courts  leet2  regularly  and  periodically  to  inquire  *  if  there  be 
any  ways,  waters,  ditches,  or  paths  obstructed,  narrowed, 


1  The  trinoda  necessitas  or  threo  neode  comprised  the  brycgbot,  the  fyrd,  or 
military  service,  and   the  burhbot,  or  repair  of  fortifications.     The  latter 
included  the  repair  of  borough  walls,  and,  of  course,  fell  heavily  upon  the 
owners  of  lands  residing  in  towns.     "The  trinoda  necessitas  first  appears  in 
genuine  Anglo-Saxon  charters  about  the  beginning  of  the  eighth  century. 
It  occurs,  however,  earlier  in  disputed  ones,  e.  g.  A.  D.  616,  Cod.  Dipl. 
dcccclxxxiii.    It  is  mentioned  in  the  act  of  the  council  of  Clovesho  of  A.  D. 
742,  Councils,  etc.  Ill,  341 ;  and  in  a  charter  of  Ethelbald,  issued  at  Godmun- 
desleah  in  A.  D.  749,  Ibid,  p.  386.     It  occurs  two  or  three  times  iu  charters 
of  Offa,  more  frequently  in  those  of  Kenulf,  and  becomes  very  general  after 
the  time  of  Egbert.    The  corresponding  obligations  in  the  Frank  empire 
are  attendance  on  the  host,  repairing  of  roads,  fortifications,  and  bridges, 
and  watch  : "  Stubbs,  Constitutional  Hixtory,  I,  76,  note  4.     Compare  76.,  pp. 
95, 105, 184, 190, 194;  Waitz,  Deutsche  Verfassungsgeschichte,  IV,  30-31 ;  Smith, 
The  Parish,  104,  469. 

In  later  Anglo-Saxon  laws  and  documents  the  burden  of  the  trinoda  neces- 
gitas  appears  as  an  incident  of  land  tenure ;  but  among  the  Teutonic  peoples 
generally  these  services  were  undoubtedly  required  of  all  free  men.  See 
Lodge,  Anglo-Saxon  Land  Law,  60-61 ;  Roth,  Beneficialwesen,  42 ;  Feudalital 
und  Unterthanrerband,  322  ff. ;  Sohrn,  Reichs-  und  Gerichtxverf.,  I,  333  ff. 

The  Roman  origin  of  the  trinoda  necessitas  is  maintained  by  Coote,  The 
Romans  of  Britain,  259  ff. ;  Pearson,  Early  and  Middle  Ages,  I,  266. 

2  See  the  list  of  items  concerning  highways  to  be  enquired  of  at  the  leet, 
in  Scroggs,  Courts-Leet  and  Courts-Baron,  19. 


204          Rise  of  the  Township  in  the  Western  States. 

stopped,  or  turned  out  of  the  right  course  to  a  wrong  course, 
unto  the  damage  of  the  king's  people.'  The  like  inquiries 
were  always  made  at  the  sheriff's  tourns.  If  any  mischiefs 
were  found,  penalties  were  imposed."1 

The  function  of  the  constable  as  highway  overseer  appears 
plainly  in  the  statute  of  Winchester,  enacted  in  1285.  It  is 
"  commanded  that  highways  leading  from  one  market  town 
to  another  shall  be  enlarged,  whereas  bushes,  woods,  or  dykes 
be,  so  that  there  be  neither  dyke,  tree,  nor  bush  whereby  a 
man  may  lurk  to  do  hurt  within  two  hundred  foot  of  the  one 
side  and  two  hundred  foot  on  the  other  side  of  the  way ;  so 
that  this  statute  shall  not  extend  unto  oaks,  nor  unto  great 
trees,  so  as  it  shall  be  clear  underneath.  And  if  by  default 
of  the  lord  that  will  not  abate  the  dyke,  underwood,  or  bushes, 
in  the  manner  aforesaid,  any  robberies  be  done  therein,  the 
lord  shall  be  answerable  for  the  felony ;  and  if  murder  be 
done  the  lord  shall  make  a  fine  at  the  king's  pleasure.  And 
if  the  lord  be  not  able  to  fell  the  underwoods,  the  country 
shall  aid  "him  therein.  .  .  And  in  every  hundred  and  fran- 
chise two  constables  shall  be  chosen,"  who  "  shall  present 
before  justices  assigned  such  defaults  as  they  do  see  in  the 
country  about  armor,  and  of  the  suits,  and  of  watches,  and 
of  highways."2 

In  the  "Articles "  of  the  thirty-fourth  year  of  Edward  I, 
relating  to  the  enforcement  of  the  Statute  of  Winchester,  con- 
stables are  directed  to  u  enquire  if  the  highways  from  one 
market  town  to  another  be  enlarged,  as  well  in  our  lord  the 
king's  own  woods  as  elsewhere,"  and  if  not  "  to  enquire  what 


1  Toulmin  Smith,  The  Parish,  105.  But  on  the  tourn  see  especially  Dalton, 
Ojficimn  Vicecomitum,  392-4. 

2Stubbs,  Select  Charters,  474.  An  early  provision  contained  in  the  so- 
called  Laws  of  Henry  I  directed  that  "a  highway  shall  be  broad  enough 
for  two  wains  to  pass  each  other,  with  room  for  the  drivers  to  ply  their 
whips  freely,  and  for  sixteen  soldiers  to  ride  in  harness  side  by  side :  " 
Legts  H.  I.,  Ixxx,  3:  Schmid,  Gesetze,  477,  as  rendered  by  Toulmin  Smith, 
The  Parish,  105. 


The  Overseer  of  Highways.  205 

ways  and  where  they  be,  and  who  ought  to  have  enlarged 
them." l 

Of  course,  in  early  days,  comparatively  little  labor  was  be- 
stowed upon  the  highways.  A  broad  strip  was  left  on  either 
side,  in  order  that  the  track  might  be  shifted  as  any  portion  of 
the  road  became  impassable ;  and  it  is  a  curious  illustration 
of  the  tenacity  of  communal  rights,  that,  subsequently,  when- 
ever a  person  enclosed  any  portion  of  such  strips,  he  became 
instantly  liable  for  the  maintenance  of  the  adjacent  way.2 

No  material  change  in  the  management  of  highways  was 
made  until  the  age  of  the  Tudors,  when  a  special  office  was 
differentiated.  In  1555  it  was  enacted  that  two  "surveyors 
and  orderers"  should  be  appointed  by  the  constables  and 
churchwardens  of  every  parish.3  The  name  "orderer"  is 
significant;  for  the  functionary  who  bore  it  was  a  mere  director 
of  the  actual  work  on  the  roads.  It  is  also  worthy  of  note 
that  the  ancient  right  of  the  constable  seems  to  be  acknowl- 
edged in  allowing  him  to  join  in  the  nomination. 

Under  Elizabeth  the  powers  of  the  surveyor  were  enlarged ; 
and  in  the  reign  of  Charles  II,  the  office  became  elective  in 
each  town  or  parish,  the  overseers  being  empowered,  "  with 
the  advice  of  two  or  more  substantial  householders,"  to  lay 
an  assessment  on  the  parish  for  highway  purposes.4 

In  the  time  of  Blackstone  the  surveyors  were  nominated  by 
two  justices  of  the  peace;5  but  in  1836  the  right  of  election 
was  restored.6 

Finally  by  the  acts  of  1862  and  1864  the  ancient  office  of 
surveyor  was  practically  abolished,  and  a  new  system  of  high- 
way administration,  with  salaried  officials,  created.  The  old 


•Toulinin  Smith,  The  Parish,  105-6. 

*  Toulmin  Smith,  The  Parish,  467-8,  333. 

"By  2  and  3  Philip  and  Mary:  Gnewt,  II,  786;  Smith,  The  Parish, 
106. 
4Toultnin  Smith,  The  Parish,  108. 

*  Commentaries,  I,  358. 
"Gneist,  II,  788  ff. 


206          Rise  of  the  Township  in  the  Western  States. 

surveyor  not  only  served  without  remuneration,  but  he  was 
prohibited,  under  severe  penalty,  from  having  any  interest, 
direct  or  indirect,  in  contracts  for  materials,  and  no  surveyor 
could  "use  or  let  to  hire  his  own  team,  or  sell  his  own 
materials"  for  any  purpose  connected  with  the  fulfilment  of 
his  official  duties.1  But  the  act  of  1836  provided  for  paid 
surveyors;  and  by  the  acts  of  1862  and  1864,  it  was  required 
that  the  county  should  be  divided  by  the  general  sessions  into 
districts  called  "  highway  parishes,"  not  identical  with  the  old 
parishes,  in  each  of  which  two  or  more  waywardens  should  be 
chosen.  The  waywardens  together  with  the  justices  of  the 
parish  were  constituted  a  "district  board."  To  the  old  parish 
and  the  old  surveyor  was  only  left  the  assessment  of  the  high- 
way rate.2 

The  title  warden  was  not  a  new  one.  In  the  records  of  a 
single  parish,  that  of  Steeple  Ashton,  during  the  latter  half 
of  the  sixteenth  century,  the  road  officer  is  styled  wayman, 
way  warden,  supervisor,  and  overseer  of  highways.3 

It  is  interesting  to  note  that  the  principle  of  maintaining 
the  highways  by  personal  services  was  not  materially  weakened 
by  legal  enactment  until  1773,  when  a  road  tax  was  authorized; 
while  in  1836  money  payment  instead  of  labor  was  made  the 
rule  in  all  cases.  However,  in  practice,  it  had  long  been  the 
custom  to  allow  anyone  to  compound  for  his  "  statute  duty," 
as  the  personal  services  were  styled,  on  the  so-called  "  compo- 
sition days."  * 


Smith,  The  Parish,  111-12. 

2  On  these  statutes,  see  Gneist  (1871),  837.     But  the  highway  rate  is  often 
assessed  as  a  part  of  the  poor  rate. 

3  See  extracts  from  these  records  in  Toulmin  Smith,  The  Parish,  509.    Here 
we  have,  in  a  single  township,  most  of  the  names  employed  in  the  American 
colonies — an  excellent  example  of  the  spontaneous  and  natural  growth  of 
local  nomenclature. 

*Smith,  The  Parish,  566,  note;  Gneist,  II,  788,  789.  Bates  for  new  ways 
or  special  purposes  had,  however,  always  been  levied :  Smith,  The  Parish, 
566. 


The  Overseer  of  Highways.  207 


(6). — Highway  Surveyors  in  the  American  Colonies. 

In  New  England  the  physical  features  of  the  country  were 
such  as  to  render  the  construction  and  maintenance  of  high- 
ways an  expensive  and  otherwise  burdensome  duty.  Every- 
where we  find  the  towns  each  caring  for  their  own  roads  and 
bridges ;  and  for  this  purpose,  enacting  by-laws,  levying  rates, 
and  choosing  surveyors.1 

But  in  the  case  of  bridges  over  large  streams,  or  of  great 
thoroughfares,  and  whenever  it  might  seem  expedient,  the 
burden  was  shared  by  the  county  or  the  colony.2  Sometimes 
the  care  of  contiguous  highways  was  made  a  condition  in  the 
grant  of  lands  to  individuals.3 

The  general  court  exercised  supreme  jurisdiction  over  high- 
way administration;  and  its  legislation  in  this  regard  presents 
some  interesting  features.  In  Rhode  Island,  as  early  as  1647, 
each  town  was  ordered  to  "  choose  and  order  ye  authoritie  of 
two  Surveyors  for  the  Highways,  and  appoint  time  to  mend 
them ; "  and  every  person  exporting  cattle  was  required  to 
notify  the  surveyor  and  return  to  him  the  "marks"  of  such 
cattle,  under  penalty  of  forfeiture  for  neglect.4 

In  the  year  1643  the  Connecticut  towns  were  each  required 
to  elect  two  surveyors;8  and  the  code  of  1650  contains  a  typi- 
cal enactment  for  the  regulation  of  the  surveyor's  functions. 
It  is  recited  that  since  "  the  mainteineing  of  high  wayes  in  a 


1  Two  overseers  in  each  town  is  perhaps  the  general  role ;  but  often  the 
number  is  much  greater.     See  Boston,  Town  Records,  1660-1701,  pp.  183, 
225,  etc.     In  Salem  both  "surveyor"  and  "overseer"  are  used:    Town 
Records,  67,  90,  130,  etc.    Worcester  Town  Records,  1753-1783,  pp.  80, 87,  etc. 
In  Dorchester  the  road  officer  was  styled  "  supervisor : "  Town  Records,  298. 

2  3/a«».  Col.  Rec.,  II,  262-3;  IV,  Part  I,  306-7;  Plym.  Col.  Rec.,  I,  114; 
II,  127.    But  these  references  show  a  tendency  to  leave  the  whole  matter  of 
constructing  and  repairing  bridges  and  ways  to  the  towns. 

8  See  an  example  in  Salem  Town  Records,  12. 
4  Rhode  Island  Col.  Rec.,  I,  150. 
6  Own.  Col.  Rec.,  I,  91. 


208          Rise  of  the  Township  in  the  Western  States. 

fitt  posture  for  passage  according  to  the  several!  occassions  tlmt 
occurre,  is  not  onely  necessary  for  the  comfort  and  safety  of 
man  and  beast,  but  tends  to  the  proffitt  and  advantage  of  any 
people;"  therefore  "it  is  thought  fitt  .  .  .  ,  that  each  Towne 
within  the  Jurissdiction  shall  euery  yeare  chuse  one  or  two 
of  theire  inhabitants  as  Surveyors,  to  take  care  of,  and  ouersee 
the  mending  and  repairing  of  High  wayes  .  .  .  ,  whoe  haue 
hereby  power  allowed  them  to  call  out  the  severall  cartes  or 
persons  fitt  for  labour  in  each  Towne,  two  dayes  at  least  in 
each  yeare,  and  so  many  [more]  as  in  his  or  theire  judgements 
shall  bee  found  necessary  .  .  .  ,  to  bee  directed  in  theire  worke 
by  the  said  surveyor  or  surveyors,  and  it  is  left  to  his  or  theire 
libberties  either  to  require  the  labour  of  the  severall  persons  in 
any  familye,  or  of  a  teame  and  one  person,  where  such  are  .  .  .  , 
giving  at  least  three  dayes  notice  .  .  .  before  hand."  Each 
day's  neglect  of  service  for  man  or  team  works  a  forfeiture 
respectively  of  two  shillings  sixpence  or  six  shillings,  to  be 
collected  by  distress  on  a  true  presentment  by  the  surveyor 
before  a  magistrate,  and  expended  in  the  "  hire  of  others  to 
worke  in  the  said  wayes." ] 

In  Massachusettes  we  catch  a  glimpse  of  the  constable  in 
the  performance  of  an  ancient  duty.  By  order  of  the  general 
court,  1658,  it  was  provided  that  on  complaint  of  any  person 
or  town  liable  for  the  maintenance  of  highways,  setting  forth 
the  inability  to  procure  workmen,  the  constable  should  be  em- 
powered by  any  magistrate's  warrant  to  impress  the  requisite 
number  of  laborers,  who  shall  be  paid  by  the  parties  "to  whom 
such  bridges  or  passages  doe  belong." 2 

The  selectmen  were  authorized  to  lay  out  private  ways  in 


1Conn.  Col.  Bee.,  I,  527-8.  Cf.  the  Mass,  highway  act  of  1693,  in  Acts  and 
Resolves,  I,  136  ff. ;  and  the  Plymouth  acts  of  1644  and  1649 :  Col.  Rec.,  XI, 
112. 

2  Mass.  Col.  Rec.,  IV,  I,  322 ;  see  also  the  Plymouth  Col.  Rec.,  XI,  11.  Later 
the  Massachusetts  surveyors  were  granted  power  to  impress:  Acts  and  Re- 
solves, I,  136. 


The  Overseer  of  Highways.  209 

their  respective  towns ; l  but  public  roads  were  ultimately 
placed  under  the  control  of  the  county  court  of  sessions.2 

An  interesting  use  of  the  jury  appears  in  connection  with 
the  highway  administration.  Thus,  in  1640,  the  general  court 
of  Plymouth  provided,  that  when  it  should  "  fall  out  that  a 
way  be  wanting  "  the  governor  should  "  panell  a  Jewry  and 
upon  Oath  charge  them  to  lay  out  such  way  as  in  conscience 
they  finde  most  beneficiall  for  the  Coinon  weale  and  as  little 
prejudice  as  may  be  to  the  p'ticular."3  Likewise,  in  the  later 
period,  the  jury  was  employed  by  the  county  court  in  the  lay- 
ing out  of  new  ways. 4 

In  New  York  the  freeholders  of  each  town  were  allowed  in 
1691  to  choose  annually  three  surveyors  to  lay  out,  regulate, 
and  amend  highways.  But  before  becoming  valid  it  was 
required  that  their  orders  should  be  registered  in  the  town 
book  and  approved  by  the  court  of  sessions.6  However — as 
was  the  custom  in  that  colony — special  statutes  were  enacted 
for  particular  places.  Thus  in  Dutchess  and  several  other 
counties,  a  double  authority  for  the  highway  administration 
was  created.  For  the  entire  township  three  commissioners 
were  annually  chosen  by  the  freeholders  to  lay  out  and  regu- 
late public  ways.  Below  these  officers  and  subject  to  their 
control,  were  the  overseers  elected  one  for  each  of  the  road 
districts  into  which  the  township  was  divided.6  And  this 
plan,  it  should  be  noted,  constitutes  the  direct  prototype  of  the 
dual  organism  now  existing  in  New  York  and  several  of  the 
more  populous  western  states. 


1  Mass.  Col.  Rec.,  II,  4.    This  was  also  the  later  practice :  Acts  and  Resolves, 
I,  137,  721. 

1  Ads  and  Resolves,  I,  136. 

'Plyrn.  Col.  Rec.,  XI,  11.    Compare  16.,  112,  122. 

4  Acts  and  Resolves,  I,  136-7.    The  jury,  as  we  shall  see,  is  still  quite  gen- 
erally employed  in  this  country  in  the  laying  out  of  roads. 

*  Van  Schaack,  Laws  of  New  York,  1691-1773,  I,  3. 

6  Van  Schaack,  Laws  of  New  York,  II,  660,  487,  774,  804,  530,  etc. ;  I,  262. 
In  Charlotte  county,  county,  instead  of  township  commissioners,  seem  to 
have  been  appointed :  16.,  II,  702. 
14 


210          Rise  of  the  Tovmship  in  the  Western  States. 

During  nearly  the  entire  colonial  period,  in  Pennsylvania, 
the  care  of  highways  belonged  to  the  county  court  by  which 
three  "  overseers  "  were  appointed  for  the  purpose.1  But  in 
1772  each  township  was  allowed  to  choose  two  "supervisors," 
who,  besides  their  ordinary  duties,  were  authorized,  with  the 
approval  of  the  justices,  to  levy  a  limited  tax  for  opening  and 
repairing  highways.2 

In  Virginia,  likewise,  the  county  court  had  control  of  the 
highway  administration.  Surveyors  were  appointed  for  the 
various  walks  or  precincts  into  which  the  county  was  divided. 
But  in  that  colony  the  watercourses  were  the  principal  thor- 
oughfares, and  consequently  the  management  of  highways  was 
a  matter  of  less  importance  than  in  New  England.  The  sur- 
veyor, like  the  orderer  of  1555,  was  little  more  than  a  fore- 
man, under  direction  of  the  justices.3 

(c). — The  Western  Overseer. 

Throughout  the  great  majority  of  western  states  overseers 
are  either  elected  or  appointed  for  subdivisions  of  the  town- 
ship known  as  "road  districts;"4  elsewhere  their  duties 
devolve  upon  the  township  board.5  The  functions  of  the 


1  Charters  and  Laws,  1682-1700,  pp.  136,  233. 
*  Acts  of  the  Assembly  of  the  Province,  I,  444-49. 

3  Ingle,  Local  Institutions  of  Fa.,  92-3.     See  Chap.  IX,  in,  (6). 

In  Maryland  also  the  road  overseers  were  appointed  by  the  county  court : 
Bacon,  Laws  of  Md.,  Act  of  1704,  Ch.  XXI,  3,  4.  In  South  Carolina  com- 
missioners for  parishes  or  subdivisions  of  parishes  were  nominated  by  the 
general  assembly :  Statutes  at  Large,  IX,  49,  144-5,  etc.,  etc.  The  commis- 
sioners were  empowered  in  1721  to  appoint  overseers:  Ib.,  p.  55. 

4  In  New  York  and  Illinois  district  overseers  are  appointed  by  the  town- 
ship commissioners  of  highways ;  in  Indiana  "  road  masters  "  are  nominated 
by  the  town  "  superintendent  of  roads ; "  and  in  Ohio  the  town  trustee 
appoints  as  many  supervisors  of  roads  as  he  thinks  proper. 

Dakota,  Minnesota,  Wisconsin,  Kansas,  Nebraska,  and  Missouri  have 
elective  district  overseers.  "Highway  supervisors"  are  elected  for  districts 
in  Iowa. 

5  In  Pennsylvania  the  office  of  overseer  devolves  upon  the  township 
supervisors :  Brightly's  Purdon's  Digest,  II,  1503-5,  1498  ff. 


The  Overseer  of  Highways.  211 

office  remain  essentially  the  same  as  they  have  been  for  cen- 
turies, and  may  be  very  briefly  described. 

In  Nebraska,  for  example,  it  is  the  duty  of  each  county 
board  to  divide  the  county,  except  that  portion  occupied  by 
cities  and  incorporated  villages,  into  as  many  road  districts 
as  may  be  necessary,  but  no  district  may  comprise  portions  of 
two  different  townships  or  precincts. 

The  revenue  for  the  support  of  highways  is  derived  from 
two  sources:  the  "labor  tax"  of  three  dollars  each  on  all 
males  between  the  ages  of  twenty-one  and  fifty,  which  may  be 
paid  in  labor;  and  the  "road  tax"  of  not  to  exceed  five  mills 
on  the  dollar  for  the  county,  or  two  mills  for  the  township. 
In  addition  to  this  is  the  county  bridge  fund  of  not  to  exceed 
four  mills,  and  the  township  bridge  fund  of  not  more  than 
two  mills  on  the  dollar  of  assessed  valuation.1 

In  counties  not  under  township  organization  one-half  of  all 
moneys  paid  into  the  county  treasury  in  discharge  of  the  road 
tax  constitutes  a  county  fund  at  the  disposal  of  the  county 
commissioners ;  the  other  half,  together  with  all  moneys  derived 
from  the  labor  tax,  is  reserved  as  a  road  district  fund  and  is 
placed  at  the  disposal  of  the  overseer  of  the  district  in  which 
it  was  levied.2 

Where  town  organization  has  been  adopted,  the  township, 
as  just  stated,  may  vote  not  more  than  two  mills  on  the  dollar 
for  roads  and  two  mills  for  bridges,  and  these  levies,  together 
with  all  moneys  collected  in  discharge  of  township  labor  tax, 
constitute  the  "township  road  fund,"  one-half  of  which  is  held 
by  the  treasurer  subject  to  the  order  of  the  town  board;  while 
the  remaining  half  may  be  expended  by  the  overseers  of  the 
respective  districts  in  which  the  tax  was  levied.3 

In  the  administration  of  the  road  law,  the  overseer  has 
much  discretionary  power.  At  any  time  between  the  first  of 


^Compiled  Statutes  of  Nebraska,  1887,  598,  321. 
tOompiled  Statutes  of  Nebraska,  1887,  636. 
*0ompiled  Statutes  of  Nebraska,  1887,  pp.  321,  638. 


212         Rise  of  the  Township  in  the  Western  States. 

April  and  the  first  of  October,  he  may,  personally  or  in  writing 
left  at  their  places  of  abode,  summon  all  residents  of  his  district 
liable  to  labor  and  road  tax,  to  appear  at  a  time  and  place 
designated  by  him,  for  the  purpose  of  working  upon  the  roads ; 
and  they  may  render  all  of  the  labor  tax  and  three-fourths  of 
the  road  tax  in  labor.  To  facilitate  this  the  county  clerk  is 
required  annually  to  furnish  each  overseer  with  a  list  of  the 
property  of  each  person  in  his  district  subject  to  taxation  for 
road  purposes. 

The  overseer  may  cause  all  nuisances  or  obstructions  to  be 
removed  from  the  highways,  and,  if  necessary,  recover  the  cost 
of  removal  before  a  justice  of  the  peace.  In  case  of  sudden 
damage  to  roads  or  bridges,  he  may,  on  a  single  day's  notice, 
call  out  as  many  of  the  residents  of  his  district  as  he  shall 
deem  necessary  to  repair  the  damage;  and  every  person  notified 
must  obey  the  call  under  penalty  of  five  dollars  for  neglect. 
It  is  also  his  duty  to  provide  against  the  spread  of  prairie 
fires  in  his  district,  by  causing  the  grass  to  be  burned  between 
furrows  ploughed  on  either  side  of  the  principal  thoroughfares. 
He  may  likewise,  on  the  establishment  of  new  roads,  remove 
enclosures  from  private  fields  when  the  owners,  after  proper 
notice,  neglect  to  do  so. 

Before  entering  upon  the  duties  of  his  office  the  overseer 
must  give  bond  in  the  sum  of  five  hundred  dollars;1  and, 
when  required,  he  must  render  to  the  township  or  the  county 
board,  as  the  case  may  be,  an  account  of  all  the  receipts  and 
expenditures  of  his  office.2 

The  foregoing  summary  fairly  illustrates  the  character  of 
the  township  highway  law  throughout  the  west,  when  its 
administration  is  vested  wholly  in  district  overseers  account- 
able only  to  the  town  or  county  board.3 


1Compiled  Statutes  of  Neb.,  1887,  p.  94. 
''Compiled  Statutes  of  Neb.,  1887,  pp.  635-39. 

3  Compare  Revised  Statutes  of  Wis.,  1878,  pp.  275,  393  ff. ;  Statutes  of  Minn., 
1878,  pp.  255  ff. ;  Williams'  Revised  Statutes  of  Ohio,  I,  977  ff. ;  Brightly's 


The  Overseer  of  Highways.  213 

But  in  several  states,  where  the  maintenance  of  highways 
has  become  a  matter  of  very  great  ^importance,  the  ancient 
office  of  surveyor  is  differentiated  into  two  forms :  a  superior 
office  for  the  entire  township  called  "commissioner  of  high- 
ways ; "  and  an  inferior  office  for  the  respective  road  district*? 
bearing  the  name  of  overseer. 

Thus,  in  Michigan,  a  commissioner  of  highways  is  annually 
chosen  in  each  township  for  the  general  supervision  of  all  roads 
and  bridges  therein.1  To  him  the  elective  district  overseers 
are  subordinate.  The  direction  of  the  entire  procedure  in  the 
laying  out  of  new  ways — a  matter  often  requiring  the  exercise 
of  the  utmost  discretion  in  order  to  avoid  expensive  litigation 
— is  entrusted  to  the  commissioner.  And  when  a  private  road 
is  demanded,  a  jury  of  the  vicinage  is  summoned  to  determine 
whether  the  way  be  necessary  and  to  assess  the  damage  in 
case  it  be  granted.  Furthermore  the  commissioner  is  author- 
ized by  law  to  divide  the  township  into  road  districts,  to  fill 
vacancies  in  the  office  of  overseer,  and  to  assess  the  taxes  for 
highway  purposes.2 

This  is  the  New  York  system,  and  it  exists  also  in  Indiana3 
and  Illinois.  In  these  states  the  commissioners  have  even 
greater  powers  than  in  Michigan.  Not  only  are  all  the  more 
important  functions  of  highway  administration  performed  by 
them,  but  the  overseers  are  their  nominees.  In  Illinois  three 
commissioners  are  elected  in  each  township  for  a  term  of  three 
years,  one  retiring  annually ;  and  they  are  constituted  a  board 
with  the  right  to  choose  their  own  president  and  appoint  a 


Purdon's  Digest  (Pa.),  II,  1495  ff. ;  McLain's  Annotated  Statutes  of  Iowa,  I, 
246-54 ;  Compiled  Laws  of  Dakota,  1887,  p.  289. 

1  Green,  Townships  and  Township  Officers,  28,  41. 

2  The  Michigan  road  law  is  very  elaborate  and  exceedingly  interesting.    It 
is  discussed  in  a  thorough  manner  by  Green,  Townships  and  Township  Officers, 
160-211.    See  Howell's  Annotated  Statutes,  1882,  I,  pp.  384  ff. 

*In  Indiana  the  officer  corresponding  to  the  commissioner  is  the  "super- 
intendent of  roads"  chosen  biennially,  who  appoints  the  "road  masters:" 
Revised  Statutes,  1881,  pp.  1091,  1093-1096. 


214          Rise  of  the  Township  in  the  Western  States. 

superintendent  or  such  overseers  for  the  execution  of  their 
commands  as  they  may  find  necessary.1 

The  dual  system  of  highway  administration  prevails  in  a 
somewhat  less  developed  form  in  Kansas  and  Wisconsin.  In 
the  former  state,  the  town  trustee,  clerk,  and  treasurer  are 
styled  the  "board  of  commissioners  of  highways,"  with  powers 
similar  to,  but  less  extended  than,  those  of  the  Illinois  commis- 
sioners.2 In  Wisconsin  the  town  supervisors  are  required  to 
perform  the  duties  of  highway  commissioners — a  name  which 
they  formerly  bore.3 


IX. — PERAMBULATORS  AND  FENCE  VIEWERS. 
(a). — The  Mark  Procession. 

In  the  days  of  the  ancient  mark  system,  especially  after 
the  custom  of  periodical  allotments  to  individuals  arose,  the 
question  of  fences  and  boundaries  became  an  important  one 
for  the  community.  Not  only  was  each  house  with  its  court 
surrounded  by  a  wall,  but  the  village  itself  was  walled  or 
hedged ;  and  the  parcels  of  plough  land  and  meadow  might 
be  separated  by  balks,  or  even  enclosed.4  Sometimes  after  the 
harvest,  as  in  England,  the  enclosures  of  the  meadows  and 
cultivated  fields  were  removed,  in  recognition  of  the  communal 


1  Revised  Statutes  of  III.,  1885,  pp.  1308,  1330-1,  1310,  etc. 

In  New  York  one,  two,  or  three  commissioners  are  elected  for  each  town- 
ship ;  if  three  be  chosen  the  term  is  for  three  years,  one  retiring  annually  : 
Revised  Statutes,  I,  808,  843.  They  may  be  constituted  a  board  when  the 
people  so  determine:  Ib.,  II,  1212  ff.,  1227-8. 

2  Compiled  Laws,  1885,  pp.  993-4. 

3  Supplement  to  Revised  Statutes,  268.     In  Missouri  the  township  board  of 
directors  performs  substantially  the  same  duties:  Township  Organization  Law, 
12,  34-46. 

*Maurer,  Einleitung,  23,  24,  37,  77,  80;  Seebohm,  Eny.  Vil.  Com ,  3,  4,  12, 
19,  20. 


Perambulators  and  Fence  Viewers.  216 

right  of  pasturage.1  Doubtless  from  the  very  beginning  the 
mark-moot  or  the  mark  officers  were  invested  with  juris- 
diction in  all  contentions  and  questions  relating  to  division 
lines. 

At  regular  intervals,  once  or  twice  each  year,  all  the  inhabi- 
tants were  wont  to  make  a  solemn  pireisa 2  or  procession  of 
the  boundaries  of  the  mark,  in  order  to  restore  them  where 
necessary  and  fix  them  in  memory.3  In  later  days  the  cere- 
mony gained  a  religious  character.  The  priest  led  the  proces- 
sion and  performed  sacrifices  on  altars  placed  near  the  borders. 
When  the  Germans  were  converted,  the  Christian  priest  took 
the  place  of  pagan,  and  the  heathen  sacrifice  was  supplanted 
by  the  mass.4 


(6). — Parish  Perambulations  and  Haywards. 

The  ceremony  just  described  is  identical  with  that  of  the 
famous  "perambulation  of  the  parish  "  which  prevailed  through- 
out the  early  ages,  and  indeed  still  prevails,  in  England.  It 
should  be  remembered  that  the  parish,  like  the  mark  and  the 
early  township  out  of  which  it  grew,  had  no  surveyed  boun- 
daries. It  originated  in  the  settlement  of  a  community  on  a 
portion  of  the  unoccupied  land.  Tradition  aided  by  marks 
or  .tokens,  such  as  trees  or  rocks,  was  the  only  record  of  the 
territory  actually  belonging  to  each  parish.  The  following 


1  On  the  "  Lammas  meadows"  see  Maine,  Village  Communities,  85-7 ;  See- 
bohm,  Eng.  Village  Communities,  11,  109-10;  Nasse,  The  Agricultural  Com- 
munity  of  the  Middle  Age*,  49 ;  Williams,  Rights  of  Common,  80 ;  Elton,  The 
Law  of  Commons  and  Waste  Lands,  28,  36,  156;  Scroggs,  Courts- Leet  and 
Courts-Baron,  165. 

1  Pireisa,  Bereisung,  means  a  travelling  of  the  boundaries.  The  procession 
was  also  called  underganc  and  umbeganc:  Grimm,  Rerhtsaltcrthiimer,  546. 

•Grimm,  Rechtealterthiimer,  545.  The  boundaries  of  the  mark  were  indi- 
cated by  stones,  trees  with  crosses  cut  in  them,  and  the  like. 

4  Laveleye,  Primitive  Property,  1 19. 


216         Rise  of  the  Township  in  the  Western  States. 

extract  from  Toulmin  Smith  will  throw  light,  both  on  the 
origin  of  the  parish,  and  the  need  of  constantly  "  beating  the 
boundaries." 

"  There  is  little  doubt  that  every  original  settlement  in  Eng- 
land, such  as  now  constitutes  a  parish,  was  once  surrounded  by 
waste  or  common  land ;  which  separated  it  on  all  sides  from 
adjoining  settlements.  Its  own  girdle  of  waste  belonged  to 
each,  though  not  settled  on  with  rights  of  private  proprietor- 
ship. A  common  highway  often  ran  between.  Up  to  the 
middle  of  this  highway,  which  forms  the  actual  boundary, 
each  parish  is  the  rightful  owner. 

"  The  very  extensive  enclosure  of  commons  of  late  years  has 
obliterated  a  vast  portion  of  this  waste  land.  Still,  very  many 
parishes  even  yet  show  large  traces  of  it.  And  it  has  probably 
been  by  detached  settlements  having  been  made  in  this  waste, 
at  one  time  and  another,  while  the  parent  parish  has  not  been 
sufficiently  careful  of  its  boundaries,  that  those  parts  of  parishes 
which  are  often  found  as  outlyers,  have  got  separated  from  the 
main  part.  The  intermediate  parts  remained,  properly  part  of 
the  parish,  though  waste.  But  through  want  of  careful  per- 
ambulation, neighboring  and  more  sharp-sighted  parties  have 
been  let  engross  piece  after  piece  of  the  waste — both  what  thus 
became  intermediate  and  what  remained  engirdling — till  several 
parts  of  the  parish  have  become  perhaps  isolated,  and  much  may 
have  become  lost  round  the  margin.  Those  practically  familiar 
with  parish  affairs,  can  often  point  to  specific  pieces  and  plots 
which  they  remember,  or  know  by  tradition,  to  have  been 
formerly  reckoned,  without  question,  as  within  their  parish, 
but  which  a  neighbor  parish  is  now  in  possession  of." 1 

The  perambulation  was  formerly  made  every  year,  but 
now  less  frequently.2  On  the  occasion  of  the  ceremony  the 
male  population,  young  and  old,  turns  out  en  masse.  It  is 
their  duty  to  trace  very  carefully  every  foot  of  the  boundary, 


1  Smith,  The  Parish,  543-4. 

2  Smith,  The  Parish,  545. 


Perambulators  and  Fence  Viewers.  217 

though  ladders  need  to  be  used  in  climbing  over  buildings  and 
other  obstructions.  The  parish  officers  and  old  men  take  the 
lead,  followed  by  the  young  men  and  boys.  It  is  desirable  to 
have  as  many  boys  as  possible.  At  each  "boundary-mark"  a 
halt  is  made,  and  the  boys  beat  the  mark  with  wands  to  impress 
its  location  on  their  memories.  This  seems  to  be  a  far  less 
efficient  mode  of  creating  an  "  impression,"  though  doubtless 
more  agreeable  to  the  boys,  than  the  custom  still  prevailing 
on  like  occasions  in  some  German  communities  of  soundly 
beating  the  jackets  of  the  boys  themselves  with  the  aforesaid 
wands.1 

Smith  observes  that  "  in  many  places  throughout  England, 
there  are  ancient  trees,  or  the  places  where  they  once  stood, 
known,  each,  by  the  name  of  '  gospel  oak.'  .  .  .  They  were 
called  thus,  because  when  the  parish  bounds  were  gone  round, 
the  people  halted  at  each  mark  and  a  religious  sanctity  was 
given  to  it  by  the  denunciation  there  of  curses  upon  him  who 
should  remove  the  landmark.  It  is  not  unworthy  of  note 
that  while  superstitious  ceremonies  were  so  strongly  censured 
at  the  time  of  the  Reformation,  the  important  and  vital  cere- 
mony of  perambulation  was  expressly  excepted."2 

It  may  be  added  that  it  is  no  less  remarkable,  that  the 
practice  of  invoking  curses  on  the  disturbers  of  landmarks 


1  The  custom  is  still  maintained  in  Bavaria  and  the  Palatinate:  Laveleye, 
Primitive  Property,  119 ;  also  in  Russia :  Wallace,  Russia,  366.  The  practice, 
though  remarkably  prevalent  in  Bavaria,  existed  elsewhere  on  the  continent; 
"  Even  in  the  past  century,  in  many  parts  of  Germany  the  custom  prevailed, 
on  important  occasions  such  as  the  laying  of  a  foundation,  the  fixing  of  a 
boundary  stone,  the  finding  of  a  treasure  or  the  like, — of  taking  boys  and 
unexpectedly  boxing  their  ears  or  snipping  their  earlaps,  die  ohrlappen  pfetzen, 
in  order  that  they  might  remember  the  occasion  all  their  lives.  At  the  same 
time  they  received  small  presents : "  Grimm,  Rechlsaltei-thiimer,  143-6,  545. 
Sometimes,  however,  the  boys  were  thus  treated  in  the  presence  of  the  real 
witnesses:  so,  according  to  the  law  of  the  Ripuarian  Franks,  Legi*  Ripuari- 
orum,  Tit.  LX,  I,  Walter,  Corp.  Juris  Germ.,  I,  184,  Cf.  Grimm,  Rechlsalt., 
145. 

*  The  Parish,  549  note. 


218         Rise  of  the  Township  in  the  Western  States. 

prevailed  not  only  among  the  Germans1  but  also  among  the 
ancient  Romans2  and  Hebrews.3 

In  England  the  watch  over  the  fences  of  the  community 
was  the  duty  of  the  hayward,  an  officer  of  great  antiquity. 
The  name  itself  hege-weard,  hedge  ward,  suggests  an  Anglo- 
Saxon  origin.  Two  haywards,  at  least  in  later  times,  were 
sometimes  chosen  by  the  vestry  meeting;4  but  in  the  middle 
ages  they  were  elected  in  the  court  leet,  and  the  office  was 
essentially  constabulary.5  The  hayward  seems  sometimes  to 
have  performed  the  duties  of  pound-keeper,  in  clearing  the 
streets  and  common  of  stray  animals  and  driving  them  to 
the  pound ;  though  the  common  driver,  or  pound-keeper,  is 
usually  found  side  by  side  with  him.  The  latter  officer  was 
also  originally  a  kind  of  constable  appointed  in  the  leet;  and 
the  functions  of  both  common  driver  and  hayward  were  ulti- 
mately inherited  by  the  parish  beadle.6 


1  The  boundary  stones  and  trees  were  inviolable :  no  one  dare  cut  a  leaf 
or  a  twig  from  the  latter.    The  folk-songs  represent  the  spirits  of  those 
who  had  disturbed  boundary  stones  as  accursed,  and  doomed  to  wander 
about  the  fields.     Fearful  punishments  were  denounced  upon  those  who 
should  intentionally  plough  out  the  boundary  stones.     Such  an  one,  for 
example,  was  to  be  buried  up  to  the  neck,  in  a  hole  where  the  stone  had 
stood,  and  then  a  new  plough  drawn  by  four  horses  should  be  dragged 
over  him  until  his  neck  were  ploughed  asunder :  Grimm,  Rechtsalterthumer, 
546-7. 

2  Such  may  be  the  significance  of  the  legendary  death  of  Remus,  and  of 
the  inviolability  of  the  pomoerium.    A  festival  in  honor  of  Terminus,  the 
god  of  boundaries,  was  held  at  Rome  in  February  of  each  year :  Marquardt, 
Rom.  Staatsverwalt.,  Ill,  202. 

'"Cursed  be  he  that  removeth  his  neighbor's  landmark:  and  all  the 
people  shall  say,  Amen : "  Deal.,  Chap.  XXVII,  17.  Compare  Deut.,  Chap. 
XIX,  14;  Proverbs,  Chap.  XXII,  28;  Job,  Chap.  XXIV,  2.  "The  princes 
of  Judah  were  like  them  that  remove  the  bound :  therefore  I  will  pour  out 
my  wrath  upon  them  like  water : "  Hosea,  Chap.  V,  10. 

4  See  Records  of  Ardly  Parish  (1707)  quoted  by  Toulmin  Smith,  The  Parish, 
526. 

6  Smith,  The  Parish,  192,  note. 

•Smith,  The  Parish,  192,  528-9. 


Perambulators  and  Fence  Viewers.  219 


(c). — Perambulators  and  Fence  Viewers  in  the  New  England 
and  Middle  Colonies. 

The  township  of  New  England,  territorially,  came  not  into 
existence  in  quite  so  undefined  or  natural  a  way  as  did  the 
parish  in  the  mother  country.  On  the  other  hand  there  was 
no  normal  area  which  each  should  contain,  nor  any  fixed  and 
readily  ascertainable  boundaries,  such  as  were  secured  in  ad- 
vance for  the  townships  west  of  the  Alleghanies  by  the  ordi- 
nance of  1785.  The  grant  of  land  for  the  planting  of  a  new 
town  was  made,  as  we  have  already  seen,  by  the  general  court; 
and  its  bounds  were  "set  out"  by  committees  appointed  by 
that  body.  The  same  procedure  was  observed  in  grants  to 
individuals.  The  boundaries  were  indicated  by  stones,  trees, 
or  similar  marks,  precisely  as  in  the  primitive  ages ;  and  the 
neglect  to  renew  such  tokens  soon  led  to  serious  difficulties. 

Thus,  in  1675,  Plymouth  found  herself  in  the  embarrassing 
position  of  not  knowing  what  part  of  her  public  domain  she 
had  actually  granted  to  towns  or  individuals.  A  committee 
of  the  general  court  was  therefore  appointed  to  cooperate  with 
local  committees  in  determining  the  bounds  of  all  such  towns 
as  bordered  upon  the  "commons  or  undisposed  lands."1 

Massachusetts  was  already  beginning  to  encounter  the  same 
difficulty  in  1647,  when  she  met  it  by  the  institution  of  tri- 
ennial perambulations.  In  that  year  the  general  court,  recit- 
ing that  by  reason  of  "deficiency  and  decay  of  markes  .  .  . 
greate  Jealousies  of  p'sons,  troubles  in  townes  &  incumbrances 
in  Co'ts  doth  oft  arise,"  ordered  that  every  town  should  set 
out  its  bounds  within  a  twelve  month  after  such  bounds  are 
granted;  and  "y*  wn  their  bounds  are  once  set  out,  once  in 
three  yeares  3  or  more  p'sons  of  a  towne,  appointed  by  y*  select 
men,"  with  like  committees  of  adjacent  towns,  shall  "go  y* 
bounds  betwixt  their  said  townes  and  renew  their  markes,  wch 

1  Plymouth  Col  Reen  XI,  240. 


220          Rise  of  the  Township  in  the  Western  States. 

marks  shalbe  a  greate  heape  of  stones  or  a  trench  of  six  foote 
long  &  two  foote  broade,  ye  most  ancient  towne  to  give  notice 
of  ye  time  &  place  of  meeting  for  p'ambulation,  wch  time  shalbe 
in  ye  first  or  second  month,  upon  paine  of  51  for  evry  towne  y* 
shall  neglect  ye  same." J 

It  is  noteworthy  that  in  New  England  the  perambulation 
ceased  to  be  a  democratic  proceeding,  and  became  an  ordinary 
representative  act  of  administrative  authorities;  and  so  in 
Boston,  and  doubtless  elsewhere,  the  persons  nominated  by  the 
selectmen  for  this  duty  received  the  official  title  of  "  perambu- 
lators."2 


1  Mass.  Col.  Rec.,  II,  210.    Individual  proprietors  of  land  lying  in  com- 
mon were  required  to  perambulate  yearly.     Cf.  Acts  and  Resolves,  I,  64-5. 

2  Boston  Town  Records,  1634-60,  p.  95 ;  1660-1701,  pp.  214,  234,  etc.    The 
following  is  a  report  of  the  Worcester  perambulators  filed  for  record,  April 
30,  1771 : 

"  Began  at  a  Black  oak  tree  at  the  West  Corner  of  the  upper  End  of  the 
Long  Pond  so  Calld  thence  to  a  heap  of  Stones  in  the  fence  betwixt  Capt 
Jenisons  Feild  &  Capt  Curtis's  feild  Leading  Northward  to  the  County 
Eoad  from  thence  to  a  Dead  Walnut  Stump  ye  Nor-East  Corner  of  Capt 
Jenisons  rye  feild  from  thence  to  a  maple  tree  in  mr  Phin  Heywoods  Enter- 
vail  from  thence  to  a  heap  of  Stones  a  Little  Nor- west  of  Jona  Lovels  Dwell- 
ing House  from  thence  to  a  heap  of  Stones  nor-westerly  of  a  Little  Bridge 
Crossing  a  Little  Brook  in  the  Road  Leading  to  Jonas  Wards  thence  to  a 
Walnut  tree  in  the  fence  Betwixt  Land  of  Leuit  Josiah  Peirce  &  Phinehas 
Heywood  from  thence  to  a  heap  of  Stones  ye  nor-Easterly  Corner  of  Lciut 
Josiah  Peirces  Land  thence  to  a  Pine  tree  Betwixt  Land  of  the  Wid°  Han- 
cock &  David  Child  from  thence  to  a  Yong  Swamp  oak  being  the  nor-  of 
Worcester  East  Corner  &  South  East  Corner  of  Holden  which  marks  we 
have  Renewed  this  Day 

Josiah  Peirce,  Samuel  mower,  Sam  Brooks,  Worcester  Comittee 

Zeb  Johnson  Edward  Flint  Shrewsbury  Comittee." 

It  is  evident  that  frequent  renewal  would  be  necessary  to  preserve  boun- 
daries, thus  established  on  principles  but  little  more  certain  than  the  spell- 
ing or  capitalization  of  the  worthy  perambulators. 

The  same  method  of  describing  boundaries  is  employed  in  Anglo-Saxon 
charters :  compare  the  description  of  Hordwell,  granted  in  the  tenth  cen- 
tury to  Abingdon  Abbey  by  Edward  the  Elder,  in  Seebohm's  Eng.  Vil.  Com., 
107.  Good  illustrations  will  also  be  found  in  Birch,  Cartularium  Saxonicum, 
I,  pp.  539-40,  etc.  See  Kemble's  Codex  and  Thorpe's  Diplomatarium,  pp. 


Perambulators  and  Fence  Wewers.  221 

Fence  viewers,  under  a  variety  of  names,  appear  as  elective 
officers  in  all  the  New  England  town  and  colonial  records.1 
Some  illustration  of  their  duties  has  already  been  presented  ;2 
it  will  therefore  only  be  necessary  here  to  call  attention  to  the 
differentiation  of  the  office. 

Thus  in  Boston  during  the  early  period  "  fence  viewers " 
and  "haywards"  are  used  as  identical  terms;3  but  in  the 
eighteenth  century  both  fence  viewers  and  haywards  were 
elected,  and  the  latter  officers  performed  the  functions  of  the 
earlier  "  cow-keepers." 4  Braintree  had  both  fence  viewers  and 
haywards  and  the  latter  are  mentioned  in  the  records  as  identi- 
cal with  the  "field  drivers."6  Both  officers  existed  side  by 
side  in  Lancaster,  and  the  "  hawyard,"  as  he  was  there  called, 
was  probably  a  cow-keeper.'  In  Dorchester  fence  viewers 
were  nominated  for  particular  fields,  and  sometimes  upwards 
of  a  score  shared  the  honors  among  them.7 

Turning  now  to  the  middle  colonies,  we  find  that  in  New 
York  by  the  Duke's  Laws,  the  constable  and  overseers  of 
each  township  were  authorized  to  appoint  "one  or  two  or 
more  of  the  planters  for  all  or  each  common  field  belonging 
to  the  town  where  they  dwell."8  Triennial  perambulations, 
conducted  by  three  overseers  of  the  town  nominated  by  the 
next  justice  of  the  peace,  were  also  instituted.9  By  the  Prov- 


109,  132,  145,  160,  etc.  The  mode  of  describing  manorial  boundaries  wher- 
ever the  open  field  system  prevailed  is  discussed  by  Seebohm  in  his  Eng. 
Vil.  Com.,  9,  111,  328  ff.,  376,  etc. 

1See  New  Haven  Col.  Rec.,  I,  150,  165;  II,  579;  Conn.  Col  Rec.,  I,  381. 

'Chap.  II,  v,  (o). 

*  Boston  Town  Records,  1660-1701,  p.  222. 

*  Thus  in  March  1763/4  six  fence  viewers  and  one  hayward  were  chosen : 
Boston  Town  Records,  1758-1769,  pp.  82-3. 

•See,  for  example,  Braintree  Tmm  Records,  29,  61,  etc. 

•Nourse,  Early  Records  of  Lancaster,  Mast.,  188,  202. 

78o  in  1672  there  were  13,  and  in  1679,  18  fence  viewers:  Dorchester 
Town  Records,  191-2,  230.  In  New  Haven  the  fence  viewers  might  be 
appointed  for  particular  fields :  Col.  Rec.,  II,  579. 

8  Duke's  Laws,  15. 

*  Duke's  Laws,  13. 


222          Rise  of  the  Township  in  the  Western  States. 

ince  laws  every  town  was  empowered  to  elect  three  fence 
viewers  annually ;  and  the  freeholders  of  every  town,  manor, 
and  precinct,  at  any  annual  meeting,  or  at  such  time  and 
place  as  might  be  designated  "  under  the  hands  and  seals  of 
any  two  of  his  majesty's  justices  of  the  peace,"  were  authorized 
to  make  such  prudential  orders  relating  to  fences  or  the  im- 
pounding of  cattle  as  they  should  deem  proper,  which  orders 
must  be  entered  on  the  record.1 

In  Pennsylvania  fence  viewers  for  the  county  at  large  were 
appointed  by  the  county  court.2 


(d). —  Virginia  Processioners? 

The  old  English  perambulation  appears  in  Virginia  under 
the  new  name  of  "  processioning "  and  primarily  for  a  new 
purpose,  namely,  to  determine  the  boundaries,  not  of  the 
parish,  but  of  private  estates.4 

A  law  was  passed  in  1642-3  confirming  the  boundaries  of 
holdings  and  providing  that  no  one  should  be  compelled  to 
resurvey  his  estate.5  The  evident  object  of  the  act  was  to 
prevent  hardships  from  arising  through  the  carelessness  or 
incompetence  of  different  surveyors. 

But  in  1761-2  it  was  found  necessary  to  resort  to  some 
plan  for  determining  and  periodically  renewing  boundary 
lines.  The  preamble  of  an  act  of  that  year,  after  mentioning 


1  Van  Schaack,  Laws  of  New  York,  1691-1773,  I,  3,  289. 

2  Charters  and  Laws,  1676-1700,  pp.  178-9,  207. 

3  The  noun  processioner,  as  well  as  the  verb  procession,  was  in  use :  See 
Acts  of  the  General  Assembly  of  Fa.  (1792),  p.  158. 

*  However,  in  1665,  it  was  ordered  that,  "whereas  there  is  a  law  that 
binds  us  to  the  bounding  of  our  lands,"  the  same  law  shall  be  in  force  "to 
the  bounding  of  parishes  and  counties:  "  Hening,  Statutes,  II,  218.  I  have 
not  noticed  any  further  mention  of  the  matter,  and  cannot  say  whether  the 
law  was  ever  carried  into  effect. 

5  Hening,  Statutes,  I,  262-3;  renewed  in  1657-8:  16.,  459. 


Perambulators  and  Fence  Viewers.  223 

the  inadequency  of  the  statute  just  cited,  declares  that  though 
the  "  surveighs  be  just  yet  the  surveighors  being  for  the  most 
part  careless  of  seeing  the  trees  marked,  or  the  owners  never 
renewing  them,  in  a  small  time  the  chopps  being  growne  up, 
or  the  trees  fallen,  the  bounds  become  as  uncertain  as  at  first, 
and  upon  a  new  suryeigh  the  least  variation  of  a  compasse 
alters  the  scituation  of  a  whole  neighborhood  and  deprives 
many  persons  of  houses,  orchards,  and  all  to  their  infinite 
losse  and  trouble."  Therefore,  for  a  remedy,  it  was  enacted 
that  within  twelve  months  thereafter  "  all  the  inhabitants  of 
every  neck  and  tract  of  land  adjoining  shall  goe  in  procession 
and  see  the  marked  trees  of  every  mans  land  .  .  .  renewed, 
and  the  same  course  to  be  taken  once  every  fower  years."  In 
case  of  any  difference  which  the  people  themselves  cannot 
adjust,  "  two  honest  and  able  surveyors  shall  in  the  presence 
of  the  neighbour-hood  lay  out  the  land  in  controversie." 1 
For  preserving  the  bounds  when  thus  established  a  different 
plan  of  processioning  was  instituted,  which,  with  slight  varia- 
tions from  time  to  time,  was  maintained  to  the  present  cen- 
tury. The  procedure  was  as  follows  : 

Every  fourth  year,  sometime  between  the  first  day  of  June 
and  the  first  day  of  September,  it  was  the  duty  of  the  county 
court  to  direct  each  vestry  to  divide  their  parish  into  so  many 
"  precincts  "  as  they  should  find  convenient  "  for  procession- 
ing every  particular  person's  laud,"  and  to  designate  the  time 
when  the  processioning  should  occur  in  each.  For  every 
precinct  the  vestry  was  required  to  appoint  "  two  or  more 
intelligent  honest  freeholders  "  to  see  such  processioning  per- 
formed, and  to  render  a  report  to  the  vestry  of  every  man's 
estate  processioned,  together  with  the  names  of  such  persons 
as  should  be  present  at  the  time.  The  reports  of  the  various 
precinct  processioners  were  registered  by  the  vestry  clerk. 
Notice  of  the  persons  and  times  designated  for  processioning 

1  Hening,  Statute,  II,  101-2. 


224         Rise  of  the  Township  in  the  Western  States. 

the  respective  precincts  was  given  by  the  churchwardens  at 
least  three  Sundays  in  advance.1 

After  the  Revolution  the  duty  of  dividing  the  parish  into 
precincts  and  of  appointing  processioners  devolved  upon  the 
county  court.2 

In  Virginia  no  officer  for  the  viewing  of  fences  existed ; 
but  in  case  of  settlement  of  damage  for  trespass  of  animals, 
special  viewers  might  be  nominated  by  any  justice  of  the 
peace;3  and  the  same  practice  prevailed  in  South  Carolina.4 

(e~). — The  Western  Fence  Viewer. 

The  statutes  of  the  group  of  states  under  discussion  are 
very  similar  in  their  provisions  relating  to  fences  and  fence 
viewers.  In  no  instance  is  a  separate  officer  for  this  branch 
of  local  administration  chosen,  the  functions  of  overseer  de- 
volving ex  ojficio  upon  the  town  board  or  some  other  authority.5 

The  principal  duty  of  the  modern  viewer  is  the  settlement 
of  controversies  concerning  division  or  line  fences.  In  such 
cases,  as  provided  by  the  Nebraska  statute,  each  party  may 


Statutes,  V,  426-7  (1748).  See  other  acts  in  76.,  Ill,  325-9 
(1705),  529-534  (1710).  Compare  Slaughter,  Bristol  Parish,  pp.  xvm,  18; 
Channing,  Town  and  County  Govt.,  51. 

*  Acts  of  the  General  Assembly  (1792),  p.  158. 
"Hening,  Statutes,  I,  458;  VI,  38-9. 

*  South  Carolina  Statutes  at  Large,  II,  81-2  (1694). 

5  The  duties  of  fe.nce  viewers  are  performed  by  the  township  auditors  in 
Pennsylvania :  Brightly's  Purdon's  Digest,  I,  803-4 ;  by  the  trustees  in  Ohio, 
Indiana,  and  Iowa :  Williams,  Revised  Statutes  of  Ohio,  1886, 1, 884-7  ;  Revised 
Statutes  of  Indiana,  1881,  p.  1287  ;  McLains,  Annotated  Statutes  of  Iowa,  I,  90, 
414-18 ;  in  Michigan  and  Wisconsin,  by  the  overseer  of  highways :  Howell's 
Annotated  Statutes,  I,  265 ;  Revised  Statutes  of  Wis.,  1878,  pp.  429-33 ;  in  New- 
York  and  Illinois,  by  the  assessor  and  commissioners  of  highways :  Revised 
Statutes,  I,  808,  829-33 ;  Revised  Statutes  of  III.,  1885,  pp.  719-22 ;  in  Kansas, 
by  the  trustee,  clerk,  and  treasurer :  Compiled  Laws,  1885,  p.  446 ;  in  Minne- 
sota, by  the  town  supervisors:  Statutes,  1878,  pp.  169,  291-4;  in  Nebraska, 
by  the  justices  of  the  peace  in  each  precinct  or  township :  Compiled  Statutes, 
1887,  p.  48. 


The  Township  in  the  East  and  South.  225 

select  a  fence  viewer,  or  if  either  refuses,  then  both  may  be 
chosen  by  the  other.  In  case  of  disagreement  the  two  are  to 
select  a  third.  They  are  empowered  to  subpoena  and  examine 
witnesses;  and,  when  required,  it  is  their  duty  to  determine 
the  share  of  the  division  fence  which  each  interested  party 
should  build,  and  to  assess  damages  due  either  party  for  neglect 
of  the  other  to  repair  or  construct  his  sljare  of  the  fence,  or  for 
throwing  open  his  field  by  removal  of  the  division  fences,  except 
during  the  proper  season  and  after  legal  notice.1 

In  the  West  the  perambulation  and  the  processioning  are 
unknown.  In  place  thereof  may  be  seen  only  the  land  sur- 
veyor with  his  tripod  and  his  unromantic  retinue  of  chain-men 
and  stake-drivers. 


X. — THE  TOWNSHIP  IN  THE  EAST  AND  SOUTH. 
(a). — The  Present  Constitution  of  the  New  England  Town. 

Township  organization  as  it  exists  in  the  West  has  been 
treated  in  this  chapter  as  the  latest  phase  of  institutional  evolu- 
tion, following  immediately  upon  the  forms  developed  during 
the  colonial  period.  And  this  limitation  of  the  subject  appears 
to  be  justified  by  the  facts.  In  the  South  some  progress  has 
been  made,  but  it  consists  largely  as  we  shall  presently  see,  in 
the  introduction  of  the  rudiments  of  the  western  township- 
county  system.  Likewise  in  New  England,  local  government 
.has  not  remained  absolutely  stationary  for  a  century.  Changes 
have  occurred ;  but  they  are  rather  changes  in  spirit  than  in 
form :  alterations  in  the  sphere  of  its  operation — as  through  the 
rise  of  cities  and  new  administrative  methods — rather  than  in 
constitutional  structure. 

Outwardly  the  New  England  township  is  much  what  it  was 
in  the  eighteenth  century.  It  is  still  the  constitutional  and 
political  unit.  The  town-meeting  is  called  under  authority 

1  Compiled  Statutes  of  Neb.,  1887,  pp.  47-49. 

15 


226         Rise  of  the  Township  in  the  Western  States. 

of  the  selectmen's  warrant  as  in  early  days,1  but  a  newspaper 
advertisement  may  take  the  place  of  the  personal  "  warning 
from  house  to  house."2  When  assembled,  the  freemen  elect 
their  moderator  and  proceed  to  deliberate  and  enact  by-laws 
for  the  regulation  of  their  prudential  affairs,  in  the  ancient 
manner,3  though  the  democratic  spirit  may  be  less  pronounced* 


1  Public  Statutes  of  Mass.,  1882,  p.  232. 

2  The  following  notice,  clipped  from  a  Connecticut  newspaper,  will  reveal 
the  character  and  procedure  of  a  modern  New  England  town-meeting,  but 
for  a  township  including  a  "  city  "  within  its  limits : — 

"  The  legal  voters  in  town-meeting  in  the  Town  of  Norwich  are  hereby 
warned  to  meet  in  their  several  voting  districts  as  by  law  provided,  to  wit: 
First  District,  at  the  Town  Hall  in  the  City  of  Norwich.  Second,  at  Neptune 
Engine  House,  No.  5,  West  Side;''  and,  similarly,  the  three  remaining  dis- 
tricts are  to  meet  at  various  places,  "  on  Monday,  Oct,  4th,  1886,  at  7  o'clock 
in  the  forenoon,  to  elect  the  town  officers  for  the  ensuing  year,  which  are  by 
vote  of  the  town  elected  by  ballot.  Also  to  choose  by  ballot  two  electors  to 
be  Registrars  of  Voters  for  the  ensuing  year.  Also  to  elect  three  members 
of  the  Board  of  School  Visitors  for  three  years.  Also,  to  ballot  to  determine 
whether  any  person  shall  be  licensed  to  sell  spirituous  and  intoxicating 
liquors  in  this  town. 

And  at  the  Town  Hall,  at  3  o'clock  in  the  afternoon,  to  elect  all  other 
officers  not  chosen  by  ballot ;  to  hear  and  act  .upon  the  report  of  the  Select- 
men, and  the  recommendations  therein  concerning  the  purchase  of  Gravel 
Banks  for  repairs  to  highways,  Burial  Place  at  the  Alms  House,  and  the 
appropriation  for  re-writing  the  General  Indexes  of  the  Land  Records  of  the 
Town.  Also  to  hear  and  act  upon  the  reports  of  the  Treasurer  of  the  Town, 
the  Treasurer  of  the  Town  Deposit  Fund,  and  the  School  Visitors ;  to  grant 
salaries ;  to  lay  a  tax  to  meet  the  expenses  of  the  Town,  and  for  the  payment 
of  State  Taxes,  and  for  the  support  of  Common  Schools."  Also  to  act  upon 
the  question  of  discontinuing,  changing,  and  laying  out  of  certain  highways, 
to  establish  the  present  alms  house  as  a  work  house,  and  "to  designate  places 
for  the  erection  and  maintenance  of  Public  Sign  Posts,  within  the  limits  of 
the  Town. 

JOHN  T.  BROWN. 
JABEZ  S.  LATHKOP. 
THURSTON  B.  LILLIBRIDGE. 

Selectmen." 

8  Public  Statutes  of  Mass.,  1882,  p.  228.  But  by-laws,  before  taking  effect, 
must  be  approved  by  the  superior  court,  or,  in  vacation,  by  a  justice  of  that 
fcourt,  and  the  approval  must  be  recorded :  Ib.  229. 

*  Com  pare  Hosmer,  Samuel  Adams,  The  Man  of  the  Town-Meeting,  16,  55; 
.and  his  Samuel  Adams,  418  ff.,  in  the  American  Statesmen  Series. 


The  Township  in  the  East  and  South.  227 

and  the  statutes  may  attempt  a  more  precise  enumeration  of 
tlit-ir  powers,  than  in  early  times.1 

The  selectmen,  as  the  town  representative,  continue  to  dis- 
charge a  great  variety  of  important  functions.  In  Massachu- 
setts, for  example,  in  addition  to  a  vast  number  of  executive 
duties,  they  still  exercise  the  right  of  appointment  to  various 
posts.  By  them  are  filled  vacancies  in  the  office  of  town 
treasurer,  constable,  field  driver,  fence  viewer,  and  surveyor 
of  highways;  they  .may  nominate  policemen  with  constables' 
powers;2  appoint  firewards,  inspectors  of  hay,  milk,  petroleum, 
or  vinegar ;  and  act  as  assessors  and  overseers  of  the  poor  in 
towns  where  no  such  officers  are  chosen.3 

The  list  of  town  officers  is  still  formidable;  and  even  among 
those  whose  appointment  is  specifically  authorized  by  law  will 
be  recognized  some  of  the  most  primitive  functionaries. 

In  Rhode  Island,  for  instance,  each  town  at  its  annual 
meeting,  is  permitted  to  elect  a  moderator,  a  clerk,  a  treasurer, 
a  sergeant,  and  a  sealer  of  weights  and  measures ;  also  a  town 
council  consisting  of  from  three  to  seven  members ;  one  or 
more  auctioneers,  one  or  more  collectors  of  taxes,  corders  of 
wood,  packers  of  fish,  and  pound-keepers,  respectively ;  not 
less  than  three  nor  more  than  seven  assessors ;  "  and  as  many 
constables,  overseers  of  the  poor,  viewers  of  fences,  gangers  of 
casks,  and  all  such  other  officers  as  by  law  are  required  .  .  .  , 
and  as  each  or  any  town  shall  have  occasion  for,  including 
persons  to  superintend  the  building  of  chimneys  and  placing 
of  stoves  and  stove  pipes."4 


1  See  Public  Statutes  of  Mass.,  1882,  p.  227,  for  an  enumeration  of  the  pur- 
poses for  which  each  town  may  levy  taxes. 

2  Except  as  to  certain  civil  matters. 

9  Public  Statutes  of  Mass.,  1882,  pp.  236-7,  264,  372-6,  381,  385.  In 
Massachusetts  3,  5,  7,  or  9  selectmen  are  chosen  in  each  town :  Ib.,  235. 

*  General  Statutes  of  Rhode  Island,  1872,  pp.  93-95 ;  Public  Statutes,  1882, 
p.  109. 

The  following  town  officers  are  authorized  by  statute  in  Connecticut :  a 
clerk,  treasurer,  collector,  surveyor  of  highways,  and  register  of  births, 


228         Rise  of  the  Township  in  the  Western  States. 

Nevertheless,  in  practice,  the  excessive  functionalism,  which 
constituted  so  peculiar  an  element  of  early  New  England  life, 
is  largely  a  thing  of  the  past.  The  pounders,  field  drivers, 
and  hay  wards  of  the  ancient  manor  are  still  perpetuated  in 
name;  but  in  reality  they  seldom  have  any  duties  to  perform.1 

But,  on  the  whole,  the  people  of  New  England  have  clung 
with  remarkable  tenacity  to  the  customs  and  organization  of 
the  primitive  town.  Traces  of  the  village  community  still 
exist : 2  the  selectmen  or  their  agents  continue  to  make  peri- 
odical perambulations  of  the  township  boundaries;3  and  the 
proprietors  of  common  fields  are  still  authorized  to  hold 


marriages,  and  deaths ;  also  2  to  7  selectmen,  1  to  5  assessors,  1  to  5  mem- 
bers of  the  board  of  relief,  2  to  6  grand  jurors,  not  more  than  7  constables, 
besides  haywards,  gangers,  packers,  sealers,  a  pound-keeper  for  each  pound, 
and  other  customary  town  officers :  General  Statutes,  1875,  p.  24 ;  General 
Statutes,  1888,  p.  12.  Since  1850  each  town  may  also  elect  as  many  justices 
of  the  peace  as  it  has  grand  jurors:  see  Constitution,  Art.  5,  and  Amend- 
ments, Art.  10:  Gen.  Stat.,  pp.  Lii-i/vm,  35. 

Similar  officers  are  authorized  by  law  in  Massachusetts  and  New  Hamp- 
shire :  Public  Statutes  of  Mass.,  1882,  p.  235 ;  General  Laws  of  New  Hamp., 
1878,  p.  118. 

1  The  hog-reeve  has  survived  to  the  present  century  ;  and  to  confer  that 
title  upon  a  prominent  personage  is  sometimes  regarded  as  a  good  political 
joke.     The  following  communication  from  Mr.  S.  L.  Geisthardt,  formerly 
of  Norwich,  Connecticut,  may  prove  instructive : 

"The  functions  of  packers  seem  to  be  somewhat  vague  and  undetermined, 
as  the  laws  relating  to  them  are  scattered  and  often  badly  worded.  Their 
duty  appears  to  consist  in  seeing  that  fish  and  meats  are  packed  according 
to  law, — with  a  suitable  quantity  of  salt,  the  vessels  of  full  weight,  etc.  In 
practice  I  have  never  heard  of  a  packer  exercising  the  powers  of.his  office 
or  having  anything  to  do. 

"  The  duty  of  hayward  is  to  arrest  estrays  on  the  public  highways  and 
deliver  them  to  the  pound-keeper.  As  most  towns  no  longer  have  a  town 
pound,  but  every  farmer  is  a  pound-keeper,  and  as  every  person  has  the 
right  to  arrest  and  impound  estrays;  and  since,  moreover,  the  laws  on  the 
subject  are  never  enforced  in  rural  districts, — the  office  of  hayward  is  not  of 
great  importance  or  distinction." 

2  See  Dr.  Adams'  Germanic  Origin  of  New  England  Towns,  33  ff.,  and  his 
Village  Communities  of  Cape  Ann  and  Salem,  60,  etc. 

3Public  Statutes  of  Mass.,  1882,  p.  226.  The  perambulation  is  to  be  made 
every  five  years. 


The  Township  in  the  East  and  South.  229 

meetings  for  the  enactment  of  by-laws  and  the  election  of 
officers l  who  are  expressly  recognized  by  the  courts  as  quasi 
public  functionaries.2 

Finally,  in  two  important  particulars  the  persistence  of  the 
popular  belief  that  the  township  is  adequate  to  satisfy  all 
the  requirements  of  local  self-government,  has  prevented  the 
development  of  a  simple  and  well-balanced  administrative 
system  such  as  is  the  pride  of  the  western  states. 

The  advantages  of  the  county  as  a  political  body  are  not 
yet  appreciated.  Throughout  New  England,  and  more  par- 
ticularly in  Massachusetts,  that  institution  has  at  present  even 
less  political  and  administrative  significance  than  it  possessed 
in  the  seventeenth  and  eighteenth  centuries. 

Again,  resistance  to  representative  centralization  has  retarded 
the  healthy  growth  of  municipal  bodies,  and  brought  about 
that  singular  mixture  of  town  and  city  government  which 
furnishes  so  curious  a  chapter  in  the  institutional  history  of 
Connecticut.3 . 

1  "  The  proprietors  of  land  in  any  common  field  may  meet  at  such  time 
and  place  as  they  shall  appoint,  adopt  regulations  with  respect  to  the  fencing 
and  occupying  such  common  field,  and  do  everything  necessary  for  its  man- 
agement; and  may  choose  a  clerk,  a  committee  to  manage  their  affairs, 
fence  viewers,  and  haywards  who  shall  be  sworn.  ...  In  any  meeting  such 
proprietors,  each  of  them  or  his  lawful  agent,  shall  be  entitled  to  give  one 
vote  for  each  acre  of  land  which  he  may  own ; "  and  taxes  may  be  voted  in 
the  same  way.  "Said  proprietors  may  prescribe  penalties  for  any  violation 
of  their  standing  rules;  but  no  penalty  shall  exceed  three  dollars :"  General 
Statute*  of  Conn.,  1875,  pp.  210-12 ;  Edition  of  1888,  p.  500.  Massachusetts 
has  a  similar  law:  Public  Statutes,  1882,  pp.  595-97.  The  common  pro- 
prietors are  a  corporation  in  Massachusetts,  but  not  in  Connecticut. 

'According  to  35  Conn.,  p.  247. 

s  New  Haven  affords  a  remarkable  example.  See  Dr.  Levermore's  JRepu6/ic 
of  New  Haven,  228  ff.  Boston  clung  to  her  government  through  the  town- 
meeting  until  1822,  when  the  city  had  40,000  inhabitants  and  7,000  legal 
voters.  The  history  of  the  struggle  in  Boston  for  the  establishment  of  a 
municipal  constitution  is  very  instructive.  See  Quincy,  Municipal  History 
of  Boston,  Chap.  II ;  and  Bugbee,  Boston  Under  the  Mayors  in  Mem.  Hist.  Bout., 
Ill,  219  ff.  The  rise  of  the  city  in  New  England  will  be  discussed  in  the 
second  volume  of  this  work. 

In  Massachusetts  the  necessity  of  discriminating  between  the  village  and 


230          Rise  of  the  Township  in  the  Western  States. 

(6). — The  Reconstruction  Township. 

The  manorial  and  parochial  systems,  which  in  some  measure 
had  met  the  requirements  of  self-government  in  the  southern 
colonies,  did  not  survive  the  Revolution.1  The  county  ac- 
quired still  greater  powers  as  the  unit  of  administration,  and 
retained  them  until  the  Civil  War. 

But  during  the  period  of  "reconstruction"  an  experiment 
was  tried  in  Virginia  which  is  exceedingly  interesting  from 
an  institutional  point  of  view,  if  for  no  other  reason,  because 
it  supplies  a  remarkable  illustration  of  the  principle  that 
social  organisms  cannot  be  created,  or  transplanted  to  an 
unfavorable  environment  by  the  hand  of  the  legislator.2  Not 
in  this  way  were  the  ideals  of  Thomas  Jefferson  or  Richard 
Henry  Lee  to  be  realized. 

The  Virginia  constitution  of  1869s  was  drafted  by  a  con- 


the  rural  portion  of  the  township  finds  expression  in  a  law  authorizing  a 
village  or  district  having  not  less  than  one  thousand  inhabitants,  to  organize 
under  a  name  approved  by  the  town  for  the  maintenance  of  lamps,  libraries, 
sidewalks,  and  police ;  to  have  a  "  prudential  committee,"  a  clerk,  treasurer, 
etc.;  and  to  adopt  by-laws:  Public  Statutes,  1882,  pp.  230-231. 

1  The  parish  system  in  the  "  low  country "  of  South  Carolina,  however, 
was  in  part  maintained  until  the  Civil  War:  Ramage,  Local  Govt.  and  Free 
Schools  in  South  Carolina,  20-22. 

2  For  the  materials  of  this  account  of  the  reconstruction  township  of  Vir- 
ginia, I  am  principally  indebted  to  Mr.  Jesse  H.  Holmes,  of  Washington, 
who,  at  my  request,  made  inquiry,  personally  or  by  letter,  of  prominent 
Virginians,  particularly  of  Hon.  J.  Randolph  Tucker,  Senator  Mahone, 
Mr.  E.  E.  Mason  of  Fairfax  County,  Hon.  R.  A.  Brock,  secretary  of  the 
Southern  Historical  Society,  and  Mr.  Hugh  R.  Holmes  of  Loudon  County. 

3  "  This  constitution  was  framed  by  a  convention,  called  under  the  recon- 
struction acts  of  Congress,  which  assembled  at  Richmond  July  — ,  1867,  and 
completed  its  labors  April  7,  1868.     It  was  not  submitted  to  the  people 
until  July  6,  1869.  (under  the  authority  of  an  act  of  Congress  approved 
April  10,  1869)  when  clauses  relating  to  the  test-oath  and  to  disfranchise- 
ment,  which  were  separately  submitted,  were  rejected,  and  the  remainder 
of  the  constitution  was   ratified   by  210,585  votes  against  9,136  votes": 
Poore,  Charters,  II,  1952  note.     Cf.  Munford's  Introduction  to  the  Virginia 
Code,  1873,  pp.  25-30,  who  states  that  97,205  negroes  and  125,114  whites 
voted.     See  also  McPherson,  Hist,  of  Reconstruction,  333,  374. 


The,  Toumahip  in  the  East  and  South.  231 

vent  ion  composed  largely  of  northern  men,  elected,  it  would 
seem,  partly  by  the  aid  of  the  recently  enfranchised  negroes,  and 
presided  over  by  Judge  John  C.  Underwood,  formerly  of  New 
York.1  By  that  instrument  provision  was  made  for  repre- 
sentative township-county  government  on  the  New  York  plan. 
The  township  boundaries  were  made  to  coincide  with  those  of 
the  "magisterial  districts,"  which  had  been  created  for  the 
election  of  justices  of  the  peace  under  a  clause  of  the  constitu- 
tion of  1851.2  A  full  corps  of  elective  officers  was  provided 
for — a  clerk,  supervisor,  assessor,  collector,  constable,  com- 
missioner of  highways,  overseer  of  the  poor,  and  justices  of 
the  peace.  There  was  also  to  be  chosen  an  "  overseer  of 
roads"  for  each  road  district  of  the  township;3  and  the  town- 
ship supervisors  were  to  constitute  the  county  board. 

Manifestly  the  abrupt  substitution  of  this  the  most  elabo- 
rate of  the  three  types  of  modern  local  organization  for  the 
simple  system  with  which  the  Virginian  had  been  familiar 
for  more  than  two  centuries  was  essentially  absurd;  and  the 
hostility  to  it  was  aggravated  by  sectional  bitterness  and  the 
fear  that  the  negroes  would  obtain  undue  power  in  local 
affairs.4 


1  Underwood  went  to  Virginia  before  the  war,  and  during  the  war  was 
appointed  federal  judge  by  President  Lincoln. 

It  is  estimated  that  abont  one  third  of  the  members  of  the  convention  of 
1867-8  were  New  York  men  while  more  than  one  half  were  from  the  North. 
The  list  of  members  is  contained  in  the  Virginia  Almanac  for  1870.  The 
test-oath  was  not  applied  in  voting  on  the  constitution,  and  consequently 
few  were  disfranchised.  McPherson,  Hist,  of  Reconstruction,  p.  374,  gives 
the  number  of  whites  "  failing  to  register  for  any  cause"  as  16,343. 

*See  the  township  act  in  Code  of  Va.,  1873,  pp.  438-61.  It  is  important 
to  observe  that  these  districts  were  very  large — sometimes  comprising  600 
to  1000  square  miles. 

8 It  seems  that  there  was  also  a  "superintendent  of  roads"  :  Code  of  Va., 
1873,  p.  91  note. 

4 On  this  point  Mr.  Holmes  writes:  "  Under  the  old  form  of  magisterial 
districts  the  elections  were  managed  by  cliques  centering  at  the  county 
court  house.  Although  the  townships  were  the  same  territorially  as  the 
districts,  they  controlled  their  own  local  matters  and  the  county  seat  poll- 


232          Rise  of  the  Township  in  the  Western  States. 

The  system  was  therefore  abrogated  by  the  constitutional 
amendment  of  1874  ;*  but  as  a  substitute  it  was  provided  that 
each  county  should  be  divided  into  not  less  than  three  magis- 
terial districts,  in  each  of  which  should  be  chosen  biennially 
a  supervisor,  a  constable,  an  overseer  of  the  poor,  and  three 
justices  of  the  peace.  The  supervisors  were  still  to  constitute 
the  county  board,  and  every  magisterial  district  was  to  be 
divided  into  school  districts  in  each  of  which  one  trustee  should 
be  elected  or  appointed  annually  for  a  term  of  three  years.2 
Thus,  though  the  word  township  was  erased  from  the  statute 
book,  an  important  innovation  in  the  ancient  local  constitution 
was  effected ;  and  the  change  was  entirely  favorable  to  the 
further  development  of  the  spirit  of  representative  self-govern- 
ment in  Virginia.3 

In  West  Virginia  a  similar  system  of  local  organization  was 
instituted  under  the  constitution  which  went  into  effect  on 
the  admission  of  the  state  in  1863.4  But  it  is  entirely  abro- 
gated by  that  of  1872,  except  that  justices  and  constables  are 
still  elected  in  the  magisterial  districts  which  correspond  ter- 
ritorially to  the  former  townships.5 


ticians  lost  their  hold  on  the  voters  and  could  not  manage  the  negroes  so 
well.  Then  in  some  parts  of  the  state  the  people  never  understood  the  new 
system  at  all." 

1  The  constitution  of  1870  is  regarded  by  the  Virginian  as  an  importation 
accepted  by  a  conquered  people.     However  the  township  system  met  with 
favor  in  some  places :  the  amendment  of  1874  was  rejected  in  Fairfax  County 
by  seven  hundred  majority,  but  here  a  large  element  of  the  nopulation  was 
of  northern  origin.    The  repeal  was  made  a  Democratic  party  measure. 

2  Poore,  Charters,  II,  1974-5.    Cf.  Acts  of  the  Assembly,  1874^5,  pp.  354-64. 
The  magisterial  districts  were  identical  with  the  former  townships;  but 
their  boundaries  might  be  altered  by  the  county  court  on  petition  of  fifty 
qualified  voters :  Ib.,  56-8. 

3  The  new  system  seems  to  have  been  successfully  operated  to  the  present 
time :  see  Code  of  Virginia,  1887,  pp.  89,  396,  etc. 

*  Poore,  Charters,  II,  1986;  Acts  of  the  Legislature  of.  West  Virginia,  1873, 
pp.  27-30,  48-52,  96-103. 

6  Poore,  Charters,  II,  2008,  2010.  See  also  Revised  Statutes  of  West  Va., 
1879,  pp.  170,  517. 


The  Township  in  the  East  and  South.  233 

Very  similar  was  the  reconstruction  legislation  of  North 
Carolina.  By  the  constitution  of  1868,  framed  during  the 
administration  of  General  Canby,  provision  was  made  for  a 
system  of  township-county  organization  modelled  generally 
upon  that  inferior  type  which  had  its  origin  in  Pennsylvania.1 
The  county  commissioners  are  authorized  to  divide  the  county 
into  townships,  in  each  of  which  shall  be  elected  by  the  quali- 
fied voters  a  clerk,  two  justices  of  the  peace,  and  a  school 
committee  consisting  of  three  members.  The  clerk  and  jus- 
tices are  constituted  the  board  of  trustees,  and  as  such,  under 
supervision  of  the  county  commissioners,  have  control  of  the 
roads,  bridges,  and  finances  of  the  township.  The  clerk  is 
ex  ojficio  treasurer,  and  the  duties  of  assessor  are  performed  by 
the  township  board.2 

This  system  was  incorporated  in  the  revised  constitution  of 
1876.3  But  by  the  latter  instrument  the  general  assembly  is 
authorized  to  change  or  abrogate  those  sections  of  the  seventh 
article  by  which  the  powers  of  the  township  are  created. 
Accordingly  by  an  act  of  1876-7,  justices  of  the  peace  are  to 
be  appointed  for  each  township  by  the  assembly ;  the  nomi- 
. nation  of  the  county  commissioners  is  vested  in  the  justices ; 
the  functions  of  the  township  trustees  are  devolved  upon  the 
commissioners ;  and  the  township  ceases  to  be  a  body  politic, 
except  as  its  powers  are  exercised  under  the  supervision  of  the 
county  board.4  The  provision  for  the  election  of  a  township 
school  committee  is  also  abolished.  Instead  thereof  every 
county,  or  in  fact  every  township,  is  divided  into  school  dis- 


aThe  convention  met  at  Raleigh,  Jan.  14,  1868;  completed  its  labors 
March  16,  1868 ;  and  the  constitution  was  ratified  the  same  year  by  a  vote 
of  93,118  to  74,008:  Poore,  Charters,  II,  1419.  But  McPherson,  Hist,  of 
Reconstruction,  p.  374,  gives  the  vote  93,084  for  adoption,  against  74,015. 

'For  the  township  law  framed  under  the  constitutional  provision,  see 
Battle's  Revisal,  1873,  pp.  829-33 ;  Const.,  Art.  VII.,  Ib.,  p.  52. 

s  Poore,  Charier*,  II,  1446. 

4  Laws  of  1876-7,  c.  141,  pp.  227  ff.  Cf.  Code  of  N.  C.,  1883,  I,  280-1,  287, 
322-3,  etc. 


234         Rise  of  the  Township  in  the  Western  States. 

tricts,  for  each  of  which  a  committee  of  three  members  is 
appointed  by  the  county  board  of  education.1  A  constable  is 
elected  biennially  in  each  township.2  Thus  it  appears  that 
the  reconstruction  legislation  is  almost  entirely  undone,  and 
the  township  is  reduced  to  the  rudimentary  form  of  a  precinct 
for  the  constable  and  justices  of  the  peace. 

But  the  germs  of  town  government  have  been  planted  in 
the  South ;  and  under  the  gradually  changing  social  and 
economic  conditions,  it  is  not  unreasonable  to  believe  that 
they  will  eventually  be  fostered  into  vigorous  life. 

XI. — THE  SCHOOL  DISTRICT  AS  A  DIFFERENTIATED 
FORM  OF  THE  TOWNSHIP. 

Originally  in  New  England,  as  we  have  seen,  the  township 
and  the  school  district  were  identical.  Teachers  were  employed, 
school  laws  enacted,  and  school  rates  levied  by  the  town-meet- 
ing or  its  agents,  just  as  other  civil  business  was  transacted. 
And  the  character  of  the  school  district  as  essentially  a  town- 
ship has  never  been  lost.  Whatever  its  form,  even  when  a 
small  independent  division  of  the  county,  as  in  many  western 
states,  its  organism  is  always  a  reproduction  of  the  township 
constitution.  The  subdistrict  meeting  is  a  tungemot  in  minia- 
ture ;  the  clerk,  treasurer,  and  moderator  have  the  town  officers 
as  their  prototypes ;  and  the  board  of  directors  are  but  the 
selectmen  of  the  district  chosen  to  order  its  educational  affairs. 

In  the  adjustment  of  the  constitutional  mechanism  of  school 
administration,  a  great  variety  of  expedients  have  been  adopted. 
Perhaps  nowhere  else  can  so  great  flexibility  of  organism  and 
so  much  freedom  of  local  action  be  found. 


1  Public  School  Law  of  N.  C.,  p.  15;  Code  of  N.  C.,  c.  15,  sec.  2549. 

2  Act  of  1879,  c.  152,  sec.  1 :  Code  of  N.  C,  II,  177. 

The  township  exists  by  name  in  South  Carolina  and  Alabama ;  but  in 
the  former  state  it  is  merely  a  highway  district,  in  the  latter,  a  district  for 
the  maintenance  of  public  schools :  Kamage,  Local  Govt.  and  Free  Schools  in 
South  Carolina,  26;  Code  of  Alabama,  1886,  I,  271-2. 


The  School  District  as  a  Form  of  the  Township.     235 

Throughout  the  New  England  States  a  township  system 
exists.  A  committee1  for  the  general  supervision  of  all  the 
schools  in  the  town  is  usually  appointed  ;  and  as  a  rule, 
stibdistricts  are  created  and  placed  in  charge  of  officers  or 
committees  of  their  own.  In  Rhode  Island,  Connecticut,  and 
Vermont  these  local  committees  are  elected  by  the  voters  of 
the  respective  subdistricte ;  but  the  town  may  at  any  time 
abolish  the  district  system  and  assume  entire  control.  And 
this  has  already  been  done  in  New  Hampshire.  Each  town- 
ship, in  Vermont,  has  a  superintendent,  instead  of  a  commit- 
tee ;  and  all  the  town  superintendents  of  the  county  are 
required  to  meet  annually  to  draft  questions  for  use  in  the 
examinations  of  teachers  and  to  choose  a  county  board  of 
examiners.  If  a  town  vote  to  abolish  the  district  system,  the 
superintendent  is  superseded  by  an  elective  board  of  directors.2 

The  township-subdistrict  plan  prevails  also  in  New  Jersey, 
Ohio,  Pennsylvania,  Michigan,  Illinois,  Wisconsin,  and  Iowa; 
but  with  important  differences  in  constitutional  details.  Thus, 
in  several  states,  each  township  has  a  representative  board. 
I  n  New  Jersey  it  is  composed  of  the  district  trustees;  in  Ohio, 
of  the  district  clerks  and  the  clerk  of  the  township ;  in  Wis- 
consin, of  the  district  clerks  alone;  and  in  Iowa,  of  the  district 
directors.  In  New  Jersey  the  board  is  merely  a  consultative 
body  called  together  from  time  to  time  for  the  purpose  of  con- 
ferring with  the  county  superintendent  relative  to  the  manage- 
ment of  the  schools;  but  in  each  of  the  other  states,  it  is 
entrusted  with  the  general  control  of  the  district  authorities.3 
On  the  other  hand,  in  Michigan  and  Illinois  both  the  town 
board  and  that  of  the  district  are  elective  and  independently 
composed.4 

'Called  "school  committee"  or  "committee  of  visitors." 

'See  Report  of  Com.  of  Education,  1885-6,  pp.  152  (Rhode  Island),  64 
(Connecticut),  165-6  (Vermont),  126-8  (New  Hampshire),  108  (Massa- 
chusetts), 104  (Maine). 

8 Rep.  of  Com.  of  Ed.,  1885-6,  pp.  132  (N.  J.),  141-2  (Ohio),  86  (Iowa), 
185  ( Wis.).  See  also  Macy,  A  Government  Text  Book  for  Iowa  Schools,  16-18. 

'Rep.  of  Com.  of  Ed^  1885-6,  pp.  111-12,  80. 


236          Rise  of  the  Township  in  the  Western  States. 

The  school  system  of  Dakota  is  unique.  The  law  provides 
that  "school  townships"  may  be  organized  in  each  county 
whether  civil  townships  are  organized  or  not;  and  the  school 
township  may  or  may  not  correspond  in  name  and  area  with 
the  civil  township.  The  officers  of  the  school  township  are 
a  director,  clerk,  and  treasurer,  and  they  have  entire  control 
of  the  schools  therein,  as  the  formation  of  subdistricts  is 
expressly  prohibited  by  law.1 

In  New  York,  likewise,  a  peculiar  plan  exists.  Each 
county  comprises  one  or  more  "  school-commissioner  dis- 
tricts," for  each  of  which  a  commissioner  is  triennially  chosen. 
It  is  the  duty  of  the  commissioner  to  divide  his  territory  into 
a  suitable  number  of  districts;  and  the  electors  of  each  district 
are  authorized  to  choose  their  own  officers  and  manage  their 
own  educational  affairs.2 

Similar  powers  are  generally  possessed  by  school  electors  in 
that  large  group  of  states  and  territories  where  the  system 
of  single  or  independent  districts  prevails.  Such  is  the  case 
in  Kansas,  Nebraska,  Minnesota,  Missouri,  Oregon,  Nevada, 
Colorado,  Arizona,  Idaho,  Montana,  Utah,  New  Mexico,  and 
Washington  Territory.3  In  all  of  this  vast  region,  for  at  least 
one  important  department,  a  spirit  of  vigorous  self-govern- 
ment is  being  fostered.  Every  school  district  is  a  miniature 
democracy  where  the  people,  within  certain  limits,  enact  their 
own  laws,  levy  their  own  taxes,  and  choose  their  own  officers. 

Moreover,  the  democratic  school  system  of  the  North  is 
rapidly  finding  its  way  into  the  South;  and  it  is  in  this  region 
that  it  is  destined  to  have  the  most  beneficent  influence  in 
developing  habits  of  self-help.  The  school  organization  is 
there  likely  to  prove  the  model  which  will  eventually  lead 


1  Rep.  of  Com.  of  Ed.,  1885-6,  p.  194.  Thus  two  systems  exist  in  the  ter- 
ritory :  the  independent  district  system  and  the  township  system  ;  but  the 
latter  appears  to  be  unsatisfactory :  Ib.,  39. 

*Rep.  of  Com.  of  Ed.,  1885-6,  pp.  137-8. 

3  See  the  Rep.  of  Com.  of  Ed.,  1885-6,  for  each  of  these  states  and  territories. 


The  School  District  as  a  Form  of  the  Township.     237 

to  a  transformation  of  the  entire  civil  body.1  Already  in 
Virginia,  Kentucky,  Texas,  and  Tennessee  the  people  are 
choosing  their  own  officers  and,  in  some  instances,  voting 
their  own  taxes  for  the  maintenance  of  common  schools.2  In 
Alabama  the  township  has  been  instituted  chiefly  for  this 
purpose.3  Elsewhere,  as  in  West  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia,  free  schools  exist ;  but  the  sys- 
tem is  less  democratic.4 

The  school  district,  then,  aside  from  its  ostensible  objects, 
is  of  great  significance  as  a  preparation  for  local  self-govern- 
ment on  a  larger  scale.  Indeed,  with  respect  to  one  question 
of  national  importance,  it  is  likely  to  be  the  means  of  greatly 
widening-  the  sphere  of  civil  liberty  and  personal  equality 
before  the  law.  Already  in  a  large  number  of  states  and 
territories,  so  far  as  school  administration  is  concerned,  the 
distinction  of  sex  as  a  condition  of  the  franchise  no  longer 
disgraces  the  statute  book ;  and  the  results  of  the  admission 
of  women  to  a  share  in  this  branch  of  local  government  seem 
to  be  wholly  salutary.8 


1On  the  "school  meeting  as  a  preparation  for  the  town-meeting"  and  its 
rise  in  the  South,  see  Dr.  Bemis'  Local  Qovt,  in  Michigan  and  the  Northwest, 
19-24. 

^Report  of  Com.  of  Ed.,  1885-6,  pp.  170  (Va.),  97  (Ky.),  160-61  (Texas), 
158  (Tenn.). 

*Code  of  Alabama,  1886,  I,  271-2;  Rep.  of  Com.  of  Ed.,  1885-6,  p.  47. 

*  In  West  Virginia  the  magisterial  district  is  constituted  a  school  district, 
and  the  trustees  of  the  subdistricts  are  appointed  by  the  district  board  : 
Code  of  W.  V.,  1887,  399 ;  Rep.  of  Com.  of  Ed.,  1885-6,  p.  178.  In  South 
Carolina  the  subdistricts  are  laid  out  by  the  county  board  of  examiners  who 
appoint  three  trustees  for  each:  Ib.,  155.  In  North  Carolina  and  Georgia 
these  powers  are  exercised  by  the  county  board  of  education :  Ib.,  140,  76. 
In  none  of  these  states  do  the  subdistricts  possess  the  right  of  self-taxation. 

'Women  are  eligible  to  school  office  in  Nebraska,  Colorado,  Illinois, 
Iowa,  Kansas,  Louisiana,  Maine,  Massachusetts,  Vermont,  Rhode  Island, 
Michigan,  Minnesota,  New  Hampshire,  New  Jersey,  New  York,  Pennsyl- 
vania, Wisconsin,  Dakota,  Arizona,  Wyoming,  Utah,  California,  and  Wash- 
ington Territory.  In  Oregon,  Kentucky,  Idaho,  and  Indiana,  women  may 
vote  on  certain  conditions :  See  Report  of  Commissioner  of  Education,  1880,  p. 


238         Rise  of  the  Township  in  the  Western  States. 

xxv ;  1885-6,  Index  at  Women;  also  Bemis,  Local  Govt.  in  Michigan  and 
the  Northwest,  24-5. 

In  1870  a  public  school  system  was  established  in  England.  The  parish, 
which  had  gradually  been  robbed  of  nearly  all  of  its  original  civil  powers, 
gained  a  partial  compensation  in  being  made  the  school  district  with  the 
right  to  elect  its  own  officers.  But  while  the  mother  country  was  thus  two 
centuries  and  a  half  behind  her  American  colonies  in  making  the  support 
of  education  an  essential  feature  of  local  government,  in  one  respect  she 
has  far  outstripped  us.  Not  only  are  female  rate  payers  possessed  of  the 
full  school  franchise;  but  they  have  the  same  suffrage  as  men  in  borough, 
vestry,  and  poor  law  union  elections :  See  a  good  article  in  Westminster 
Review,  July,  1888,  on  Local  Government:  The  Franchise  Question. 


PART    II 


THE    HUNDRED 


CHAPTER  V. 

EVOLUTION  AND  DECAY  OF  THE  HUNDRED 
ORGANISM. 

I. — THE  BROTHERHOOD  OR  WARD. 
(a).— The  Phratria. 

For  many  ages  the  hundred  or  its  analogue  occupied  a 
place  of  some  importance  in  the  social  organism;  but  in  every 
phase  it  seems  to  have  been  more  limited  in  functions  and 
less  natural  in  structure  than  either  the  higher  or  lower 
orders.  Besides  its  early  history  is  obscure  and  perplexing 
in  the  extreme.  On  this  account  any  attempt  to  identify  the 
prototype  of  the  hundred,  during  the  genealogical  organiza- 
tion of  Aryan  society,  must  prove  somewhat  unsatisfactory. 
Still  such  fragmentary  evidence  as  we  do  possess  seems  to 
establish  a  very  strong  probability  that  the  Spartan  oba,1  the 
Ionic  phratriaf  and  the  Italic  curia,  occupying  as  they  do 
the  second  place  in  the  evolution  of  social  groups,  must  be 


1  On  the  oba  see  Miiller,  Hist,  of  the  Doric  Races,  IT,  79  ff ;  Schomann, 
Antiquities,  211,  223;  Grote,  History  of  Greece,  II,  361-2;  Gilbert,  Handb. 
der  gricch.  Staalsaltcrthumer,  I,  9,  44;   Smith,  Diet,  of  Greek  and  Roman 
Ant.,  1153. 

2  Phratries  existed  in  Elis,  Chios,  Andros,  Tenos,  Ilion,  Aigai  in  Mysia, 
Punormos,  Messnna,  and  elsewhere.    Sugg6neia  has  the  same  signification 
as  phratriu,  and  appears  as  a  division  of  the  people  in  Kalymna,  Mylasa, 
Olymos,  and  Labranda:  Gilbert,  Handb.  der  griecfi.  Staatsalt ,  II,  303.     Cf. 
Muller,  Handb.  der  kUus.  Alt.,  IV,  20 ;  Pauly,  Real-Encyclopddie,  V,  1566. 

16  241 


242     Evolution  and  Decay  of  the  Hundred  Organism. 

organically  the  same  institution  as  that  to  which,  for  some 
special  reason,  the  Germans  gave  a  numerical  designation.1 

The  Ionic  phratria  may  be  regarded  as  an  expanded  form 
of  the  genos,  held  together,  like  the  latter,  by  the  double  bond 
of  kinship  and  common  worship ;  but  the  phratric  union  was 
probably  less  intimate  and  more  frequently  artificial  than  that 
of  the  families  constituting  a  gens.2  Such  seems  to  be  the 
general  import  of  the  celebrated  fragment  of  Dikaearchos 
which  represents  the  phratry  as  a  union  of  different  gentes 
formed  through  the  practice  of  exogamy  in  marriage.3  But 
if,  originally,  the  phratries  were  pure  genealogical  groups,  we 
may  well  believe,  with  Schomann,  that  at  the  first  dawn  of 
history  they  had  already  become  localized;4  for  settlement  in 


1  Cf.  Freeman,  Camp.  Politics,  117 ;  Fiske,  American  Political  Ideas,  61. 

2Grote,  Hist,  of  Greece,  III,  55.  Cf.  Gilbert,  Handb.  der  griech.  Staatsalt., 
I,  110,  who  appears  to  hold  that  the  entire  Ionic  system,  except  the  genos, 
was  more  fictitious  than  is  usually  supposed. 

3  The  fragment  of  Dikaearchos,  a  pupil  of  Aristotle,  is  preserved  by 
Stephen  of  Byzantium,  writing  about  400  A.  D.  The  original  will  be 
found  in  Wachsmuth,  Historical  Antiquities,  I,  Appendix,  VII.  Cf.  also 
Gilbert,  Handbuch,  II,  302-3.  The  following  is  the  substance  of  it  as 
translated  by  Morgan,  Ancient  Society,  236 : 

"  The  Patry  (Patra  is  used  for  genos)  comes  into  being  when  relation- 
ship, originally  solitary,  passes  over  into  the  second  stage  [the  relationship 
of  parents  with  children  and  children  with  parents]  and  derives  its  eponym 
from  the  oldest  and  chief  member  of  the  patry,  as  Aicidas,  Pelopidas." 

"  But  it  came  to  be  called  phatria  and  phratria  when  certain  ones  gave 
their  daughters  to  be  married  into  another  patry.  For  the  woman  who 
was  given  in  marriage  participated  no  longer  in  her  paternal  sacred  rites, 
but  was  enrolled  in  the  patry  of  her  husband ;  so  that  for  the  union, 
formerly  subsisting  by  affection  between  sisters  and  brothers,  there  was 
established  another  union  based  on  community  of  religious  rites,  which 
they  denominated  a  phratry ;  and  so  that  again,  while  the  patry  took  its 
rise  in  the  way  we  have  previously  mentioned,  from  the  blood  relation 
between  parents  and  children  and  children  and  parents,  the  phratry  took 
its  rise  from  the  relationship  between  brothers."  This,  of  course,  must  be 
regarded,  so  far  as  the  origin  through  exogamy  is  concerned,  as  merely  the 
opinion  of  Dikaearchos.  See  Morgan,  p.  237 ;  Schrader,  Sprachvergleichung 
und  Urgeschichte,  383. 

*  Schomann,  Athenian  Constitutional  History,  10-12. 


The  Brotherhood  or  Ward.  243 

compact  bodies  of  kindred  is  precisely  what  we  should  expect 
in  a  people  just  emerging  from  the  pastoral  condition. 

Very  few  constitutional  details  relating  to  the  phratric 
organization  have  been  preserved.  According  to  Aristotle 
each  of  the  ancient  Attic  phratries  consisted  of  thirty  genC 
while,  in  turn,  three  phratries  united  to  form  a  tribe.1  The 
latter  number  is  undoubtedly  correct,  but  no  credence  can  be 
given  the  former,  at  least  for  the  early  period.2  Each  phratry 
had  an  elected  president,  the  phratriarchos*  and  an  assembly 
with  legislative  powers.4  Little  can  be  said  with  regard  to  its 
early  functions ;  but  they  seem  to  have  consisted  largely  in  the 
celebration  of  religious  rites.6  There  is  evidence,  however,  in 
the  Iliad  that  each  phratry  sent  its  armed  band  to  the  gathering 
of  the  host.  Nestor  directs  Agamemnon  to  separate  the  war- 
riors according  to  phratries  and  tribes,  that  "  phratry  may 
support  phratry  and  tribe  support  tribe."6  If  the  poet  in  this 
passage  merely  credits  to  the  wisdom  of  Nestor  what  was  really 
a  general  custom,  as  is  not  improbable,  then  we  have  at  least 
one  striking  analogy  in  functions  between  the  phratry  and  the 
Teutonic  hundred. 

If  under  the  primitive  constitution  the  phratry  was  of  less 
significance  than  gens  or  tribe,  the  reverse  is  true  in  the  later 
period.  By  the  Kleisthenian  constitution  the  old  religious 
gen6  and  phulai  were  superseded  for  political  purposes  by  new 
local  divisions,  and  thereafter  they  pass  almost  wholly  out 
of  sight;  but  the  phratry  continued  to  discharge  important 
functions.  The  phratriarchos  performed  duties  analogous  to 
those  of  a  modern  registrar  of  births  and  marriages.  The 
names  of  all  legitimate  children,  including  those  by  adoption, 

'Gilbert,  Handbuch,  I,  111  ff.;  Miiller,  Handbuch,  IV,  20. 
2Scliomann,  Antiquities  of  Greece,  317. 

'Such  an  officer  existed  under  the  Kleisthenian  constitution  and  probably 
before:  Gilbert,  Handbuch,  I,  200;  Schomann,  Antiquities  of  Greece,  321. 
4  So  stated  by  Gilbert,  Handbuch,  I,  200,  on  epigraphic  evidence. 
s  Fustel  de  Coulangea,  TheAn&eiti.  flify,  154  ff. 
•Iliad,  Book  II,  362TT!f.  Morgan,  Ancient  Society,  237. 


244     Evolution  and  Decay  of  the  Hundred  Organism. 

were  inscribed  in  a  record  kept  for  the  purpose,  the  ceremony 
of  registration  occurring  in  a  meeting  of  the  phratry  held 
regularly  on  the  third  day  of  the  Apaturian  festival.  "  On 
the  appointed  day  the  father  placed  the  child  before  the 
assembly,  made  the  declaration  upon  oath  that  it  was  begotten 
by  him  in  lawful  wedlock,  then  offered  a  sacrifice  to  the  deity  of 
the  phratria,  and  entertained  the  phratores  at  a  sacrificial 
banquet." ]  In  the  same  way  the  newly  married  wife  was 
admitted  to  the  phratria  of  her  husband.2  "  It  is  possible  also 
that  youths  were  not  pronounced  of  age  until  they  had  been 
presented  to  the  phratria  and,  when  necessary,  subjected  to  a 
certain  examination,  which  in  the  case  of  sons  of  heiresses  to 
whom  their  mothers'  property  was  to  be  delivered,  or  in  the 
case  of  orphans  who  were  now  to  be  released  from  wardship, 
probably  had  special  reference  to  the  capacity  requisite  for  the 
independent  management  of  their  property."3 

(6). — The  Curia  in  its  Relations  to  the  Centuria. 

At  the  first  dawn  of  legendary  history  we  find  the  Roman 
people  organized  in  gentes,  curies,  and  tribes.  Each  of  the 
three  tribes  was  composed  often  curies  and  each  curia,  in  turn, 


1  Schomann,  Antiquities  of  Greece,  364 ;    Boeckh,  Public  Economy  of  the 
Athenians,  689 ;  Smith,  Diet,  of  Greek  and  Roman  Antiquities,  101 ;  Grote, 
Hist,  of  Greece,  VIII,  193;  Forbiger,  Hellas  und  Rom,  V,  81,  114;  Gilbert, 
Handbuch,  I,  201. 

2  Schomann,  Antiquities  of  Greece,  364. 

3 "  The  matter  is  however  extremely  uncertain :"  Schomann,  Antiquities 
of  Greece,  364,  note  4.  Schomann  holds  that  the  old  religious  phratries  were 
retained  by  Kleisthenes,  and  this  seems  to  be  the  generally  accepted  view : 
Freeman,  Comparative  Politics,  105,  107 ;  Morgan,  Ancient  Society,  238-9 ; 
Smith,  Diet,  of  Greek  and  Roman  Antiquities,  at  Civitas  and  Tribus.  Gilbert, 
Handbuch,  I,  142,  note  3,  however,  maintains  that  Kleisthenes  created  new 
phratries  as  well  as  new  demes  and  tribes. 

See  further  on  the  phratry,  Pauly,  Real-Encydopadie,  V,  1566-7;  Fustel 
de  Coulanges,  The  Ancient  City,  154-8 ;  Wachsmuth,  Historical  Antiquities, 
I,  342  ff. 


The  Brotherhood  or  Ward.  245 

of  a  variable  number  of  gentes.1  Moreover  it  is  worthy  of 
note  that  the  aggregate  number  of  thirty  curiae  was  maintained 
until  the  latest  times.2  Such  numerical  symmetry  is  usually 
regarded  as  indubitable  proof  of  the  artificiality  of  the  Roman 
curiatic  system;  and  I^ange,  interpreting  the  tradition  of  its 
creation  by  Romulus  after  the  union  of  the  Ramnes  and  Tides, 
regards  it  as  a  deliberate  administrative  expedient  for  securing 
an  equal  voice  in  the  popular  assembly  to  each  of  the  members 
of  the  newly  formed  federal  state.3  Nevertheless,  though  the 
arrangement  may  have  been  somewhat  arbitrary,  it  is  highly 
probable  that  each  curia  was  composed  of  a  group  of  closely 
related  gentes ;  and  this  supposition  gains  strength  from  the 
fact  that  a  division  into  curies  is  found  everywhere  among  the 
Italic  races.4  As  we  shall  presently  see,  a  certain  degree  of 
artificiality  is  not  wholly  incompatible  with  natural  evolution. 
When  they  first  come  before  our  view  both  curia  and  tribe 
have  ceased  individually  to  be  of  political  significance,  and 
their  constitutions  are  in  rapid  process  of  decay.  The  tribe 
has  no  corporate  organization  at  all — it  is  merely  a  name  for 
a  combination  of  curies ;  while  the  single  curia  is  an  organized 
body  only  for  the  celebration  of  the  sacra.  For  this  purpose 
each  curia  has  a  curio  or  president,  a  sacerdos  or  priest,  and  a 
flaraen  to  aid  in  the  sacrifice;5  but  the  rites  are  usually  cele- 
brated simultaneously  by  the  whole  thirty  curiae  in  a  common 


1  The  older  view  that  each  curia  comprised  just  ten  gentes  probably  arose 
from  a  misunderstanding  of  the  dtcuriae  mentioned  by  Dionysius  (II,  7), 
which  were  divisions  of  the  centuria  and  not  of  the  curia:  Mommsen,  Staaia- 
recht,  III,  92,  104. 

'Moramsen,  Stantsrecht,  III,  99,  note  3. 

'"  .  .  .  eine  offenbar  zurn  Zweck  gemeinsamer  Beschlussfassung  kiinstlich 
gemachte  Gliedernng  des  Staats,  unter  welcher  die  patriarchulisc'he  natiir- 
liche  Gliederung  der  Stiimme  in  gentes  und  fainiliae  bestehen  blieb  .  .  .  "  : 
Lange,  Romische  Alter  thirmer,  I,  90,  275.  Cf.  Mommsen,  Staaterecht,  III,  100. 

4  Mommsen,  Slaaisrecht,  III,  90,  note  1.  Municipalities  were  divided  into 
i  uri  -s  and  sometimes  the  number  was  ten  :  Ib.,  100. 

4  In  the  regal  period  these  were  all  appointed  by  the  king  or  pontifex; 
later  by  co-optation :  Mommsen,  Sttiatsncht,  III,  101. 


246      Evolution  and  Decay  of  the  Hundred  Organism. 

building  in  which  each  has  a  separate  space.1  Accordingly 
the  general  supervision  of  the  entire  body  is  entrusted  to  a 
curio  maxinius  probably  chosen  by  the  curiales  at  large.2 

It  is  indeed  remarkable  with  what  persistence,  almost  jealous 
anxiety,  every  opportunity  for  independent  political  action  on 
the  part  of  the  separate  members  of  the  social  organism,  was 
suppressed  in  favor  of  the  people  as  a  whole.  Perhaps  in  no 
other  way,  can  we  realize  so  well  how  firmly  the  Roman,  even 
in  that  early  age,  had  seized  upon  the  idea  of  federation.  To 
assimilate  the  diverse  elements  of  the  new  nation  seems  never 
to  have  been  forgotten  in  the  military  and  other  administrative 
arrangements.3  So  the  old  tribes — once  sovereign  states — were 
almost  entirely  ignored,  and  the  gentes  only  appear  in  the 
domain  of  private  law. 

But  if,  in  like  spirit,  the  curies,  individually,  were  denied 
all  political  significance ;  collectively,  they  were  the  state  itself. 
The  curiatic  assemblies  were  the  national  folkmoots  in  which 
the  will  of  the  populus  found  expression.4  To  these  gatherings 
came  client  and  plebeian  as  well  as  patrician,  though  the  right 
of  suffrage  was  long  monopolized  by  the  latter;5  and,  long  after 
all  important  legislative  and  judicial  powers  had  been  trans- 
ferred to  the  centuries  and  the  tribes,  comitia  curiata  continued 
to  be  held  for  the  purpose  of  granting  the  imperium,  the  witness 
of  testaments,  and  the  administration  of  certain  gentile  rights.6 


JSee  Lange,  Romische  Alterthiimer,  I,  276;  Mommsen,  Slaatsrecht,  III,  101. 

2  Lange,  Rom.  Alt.,  I,  277;  Marquardt,  Rom.  Staatsverwaltung,  III,  194-5; 
Smith,  Diet.  Ant.,  377  ;  Mommsen,  Staatsrecht,  II,  26. 

3  This  idea  is  suggested  by  Mommsen,  Staatsrecht,  III,  100,  105,  108, 
111-12. 

4Curia  is  probably  derived  from  quiris,  meaning  the  "citizen-body" — 
Biirgerverband :  Mommsen,  Staatsrecht,  III,  90,  note  2.  Cf.,  however,  Lange, 
Rom.  Alt.,  I,  91;  Corssen,  Aussprache,  I,  354-5. 

5  Mommsen,  Slaatsrecht,  III,  92-4,  78  ;  Ihne,  History  of  Rome,  I,  67.     Cf. 
Lange,  Rom.  All.,  I,  279-80,  401  f. 

6  Mommsen,  Staatsrecht,  III,  316-20;  Lange,  Rom.  Alt.,  I,  404  f. ;  Smith, 
Diet,  of  Greek  and  Roman  Antiquities,  331-33 ;  Ramsay,  Manual  of  Roman 
Antiquities,  115-18. 


The  BrotJierliood  or  Ward.  247 

But  side  by  side  witli  the  curia  there  was  another  Roman 
institution  whose  name  is  the  exact  equivalent  of  that  of  the 
Germanic  hundred.  This  was  the  centuria,  known  chiefly  as 
a  member  of  the  so-called  Servian  constitution,  though  it 
originated  long  before.  And  here  a  very  important  and, 
until  recently,  most  perplexing  two-fold  question  arises:  Is 
there  any  organic  connection  between  the  curia  and  the  cen- 
turia ;  and  does  the  centuria  represent  the  same  phase  of 
constitutional  evolution  as  the  hundred?  "It  seems  almost 
impossible,"  says  Freeman,  "  but  that  the  Teutonic  Hundred 
and  the  Latin  Century,  in  the  earliest  usage  of  each,  must 
have  answered  to  one  another."1  On  the  other  hand,  it 
would  be  a  strange  coincidence  indeed,  if  the  hundred,  occu- 
pying as  it  does  the  same  relative  place  in  the  ascending 
scale  of  social  organizations,  should  not  correspond  to  the 
curia.  And  that  both  these  conjectures  are  true,  seems  to  be 
established  with  almost  absolute  certainty  by  Mommsen  in 
the  third  volume  of  his  masterly  treatise  on  the  Roman 
Staatsrecht. 

In  the  first  place,  it  cannot  be  doubted  that  the  curia  even 
as  it  existed  in  the  earliest  historic  times,  was  a  local  as  well 
as  a  personal  body  :  rt  was  at  once  a  district  and  a  group  of 
kindred  gentes.2  Secondly,  the  divisions  of  the  primitive 
Roman  army  evidently  corresponded  to  those  of  the  land  and 
people.  Thus  the  infantry  consisted  of  three  thousand  men 
or  thirty  centuries,  ten  from  each  of  the  three  original  tribes. 
The  military  unit,  therefore,  was  the  centuria;8  and,  while 
it  is  not  positively  so  stated  in  the  sources,  the  inference  is 


lComparative  Polities,  117-18. 

1  Mommsen,  Staatsrecht,  III,  94.  Such  is  also  the  opinion  of  Lange,  Rom, 
Alt.,  I,  275-78. 

*Centuria  is  derived  from  centu-wiria,  literally  the  Hundertmdnnerschaft;  vir 
in  the  primitive  language  meaning  "toam'or."  In  like  manner  decuria  is 
from  <liTu-ciria:  Mommsen,  titaatsi-echt,  III,  104,  note  1 ;  Corssen,  Aussprache, 
II,  683. 


248      Evolution  and  Decay  of  the  Hundred  Organism. 

unavoidable  that  it  was  the  quota  of  men  which  each  of  the 
ten  curiae  of  a  tribe  was  required  to  furnish.1 

In  like  manner,  the  curia  was  the  unit  of  the  cavalry  organ- 
ization, each  curia  being  required  to  supply  a  decuria  or  squad 
of  ten  men.2  The  decuria  of  horsemen  was  placed  in  charge 
of  a  decurio,  just  as  each  company  of  infantry  was  commanded 
by  a  centurio  or  centurionus ;  but  the  ten  decuriae  of  each 
tribe  were  also  formed  into  a  century.3 

There  was  a  further  division  of  the  army  which  is  of  pecu- 
liar historic  interest,  since  it  constituted  a  device  for  attaining 
a  more  complete  blending  or  assimilation  of  the  three  tribal 
elements  of  which  the  federation  was  composed.  Thus  the  cen- 
turies of  foot  soldiers  were  each  subdivided  into  ten  decuriae — 
three  hundred  in  all.  These  decuriae  were  then  combined  in 
turmae,  each  of  thirty  men,  in  such  a  way  that  every  tribe 
should  supply  an  equal  contingent.  In  the  same  manner  the 
hundred  decuriae  of  horsemen  were  combined  in  turmae  each 
of  thirty  men.  So  the  entire  army  may  be  regarded  as  con- 
sisting either  of  thirty  centuries  of  infantry  and  three  centuries 
of  cavalry ;  or  of  one  hundred  turmae  of  the  former  and  ten 
turmae  of  the  latter.4 


1  "  Dass  curia  und  centuria  sich  verhalten  wie  der  Aushebungsbezirk  zu 
der  ausgehobenen  Mannschaft,  wird  ausdrucklich  nirgends  gesagt,  so  deut- 
lich  es  aus  dem  Schema  hervorgeht ;  doch  erklart  Dionysius  2.  7  in  diesem 
sinn  die  curia  durch  Qpdrpa  x^  ^xos  '• "  Mommsen,  Staalsrecht,  III,  104, 
note  2. 

2  This  is  so  stated  by  Festns,  De  Verb.  Sig.  Epit.,  p.  55 :  celeres  antiqui 
dixerunt,  quos  nunc  equites  decimus  a  celere,  interfectore  Remi,  qui  initio 
a  Romulo  iis  praepositus  fuit;  qui  primatus  electi  fuerunt  ex  singulis  curiis 
deni,  ideoqne  omnes  trecenti  fuere.     Cf.  Mommsen,  Staatxrecht,  III,  106. 

3  The  Ires  centuriae  equitum  are  often  mentioned  by  Livy  and  other  histo- 
rians. 

4  However  at  a  very  early  day  the  turma  ceased  to  be  used  as  a  division 
of  the  infantry ;  but  it  long  continued  to  be  the  unit  of  the  equites,  and 
thus,  says  Mommsen,  "  fiirht  uns  das  merkwiirdige  Bild  des  Ineianderauf- 
gehens  der  drei  Gemeinden  wie  im  erstarrten  Sturzbach  lebendig  vor  die 
Augen":  Staatsrecht,  III,  109. 


The  Brotherhood  or  Ward.  249 

It  appears,  therefore,  that  the  Latin  curia  like  the  Homeric 
phratria  was  the  unit  of  the  militia  organization ;  and  in  its 
three-fold  character  as  a  group  of  kindred,  a  local  area,  and  a 
division  of  the  host,  we  may  perhaps  find  a  hint  as  to  the 
true  nature  and  real  origin  of  the  Germanic  hundred.  Besides 
it  is  not  necessary  to  assume  that  the  analogy  ends  here.  The 
curia  may  have  been  a  much  more  important  administrative 
body  than  our  meagre  information  seems  to  show.  Indeed  it 
is  possible,  even  probable,  that  it  was  the  lower  unit  of  taxa- 
tion within  the  tribe,  just  as  the  hundreds  of  Saxon  England 
were  employed  by  the  scirgerefa  for  a  similar  purpose.1 

(c). — The  Iroquois  Brotherhood. 

To  discover  the  real  character  of  the  personal  group 
answering  to  the  hundred  among  the  Hellenic  or  Italic 
peoples  is  extremely  difficult,  because,  when  history  begins, 
their  tribal  organization  has  already  been  partially  super- 
seded and  obscured  through  the  rise  of  a  political  constitution 
resting  on  local  divisions.  It  has  been  necessary  to  eke  out 
our  scanty  information  by  inferences  and  conjectures.  But  if 
we  look  nearer  home  among  the  aborigines  still  dwelling  in 
our  own  country,  we  shall  be  able  to  study  the  genealogical 
organisms  in  a  much  earlier  and  purer  form.  Mr.  Morgan's 
researches  into  the  social  condition  of  the  Iroquois  and  other 
Indian  tribes  have  thrown  much  light  on  one  or  two  questions 
connected  with  the  genesis  and  uses  of  the  phratry.2  Thus, 
for  example,  we  are  able  better  to  understand  how  a  certain 
degree  of  artificiality,  even  of  numerical  symmetry,  may  exist 
without  destroying  or  greatly  weakening  the  bond  of  kinship 
or  religion. 


JCf.  Mommsen,  Staatsrecht,  III,  109-10.  On  the  curia  see  also  Fustel  de 
Coulanges,  The  AncieiU  City,  156-7;  Pauly,  Real-Encyclopadie,  II,  780; 
Morgan,  Ancient  Society,  306  ff.;  Mommsen,  Roimsche  Geschichte,  I,  35,  36, 
64-7, 253 ;  Hearn,  Aryan  Household,  333-4 ;  Duruy,  Hist,  of  Rome,  1, 190, 194. 

'Ancient  Society,  pp.  88-121. 


250     Evolution  and  Decay  of  the  Hundred  Organism. 

Four  of  the  "six  nations"  constituting  the  Iroquois  con- 
federations are  organized  in  gentes  and  phratries.  The  Seneca 
and  the  Tuscarora  tribes  have  each  two  phratries,  every  phra- 
try  composed  symmetrically  of  four  geiites.  On  the  other 
hand,  while  the  Cayugas  and  Onondagas  have  also  each  two 
phratries,  the  distribution  of  gentes  is  different ;  the  first 
phratry  containing  five  and  the  second  phratry,  three  gentes. 

"  The  eight  gentes  of  the  Seneca-Iroquois  tribe  were  reinte- 
grated in  two  phratries  as  follows  : 

First  Phratry. 
Gentes— 1.  Bear.     2.  Wolf.     3.  Beaver.     4.  Turtle. 

Second  Phratry. 

Gentes — 5.  Deer.  6.  Snipe.  7.  Heron.  8.  Hawk. 
"  Each  phratry  (De-a-non-da/-a-yoh)  is  a  brotherhood  as 
ihis  term  also  imports.  The  gentes  in  the  same  phratry  are 
brother  gentes  to  each  other,  and  cousin  gentes  to  those  of  the 
other  phratry.  They  are  equal  in  grade,  character,  and  privi- 
leges. It  is  a  common  practice  of  the  Senecas  to  call  the 
gentes  of  their  own  phratry  brother  gentes,  and  those  of  the 
other  phratry  their  cousin  gentes,  when  they  mention  them  in 
their  relation  to  the  phratries.  Originally  marriage  was  not 
allowed  between  the  members  of  the  same  phratry ;  but  the 
members  of  either  could  marry  into  any  gens  of  the  other. 
This  prohibition  tends  to  show  that  the  gentes  of  each  phratry 
were  subdivisions  of  an  original  gens,  and  therefore  the  prohi- 
bition against  marrying  into  a  person's  own  gens  had  followed 
to  its  subdivisions.  This  restriction,  however,  was  long  since 
removed,  except  with  respect  to  the  gens  of  the  individual.  A 
tradition  of  the  Senecas  affirms  that  the  Bear  and  Deer  were 
the  original  gentes,  of  which  the  others  were  subdivisions.  It 
is  thus  seen  that  the  phratry  had  a  natural  foundation  in  the 
kinship  of  the  gentes  of  which  it  was  composed.  After  their 
subdivision  from  increase  of  numbers  there  was  a  natural 
tendency  to  their  reunion  in  a  higher  organization  for  objects 


The  Brotherhood  or  Ward.  251 

common  to  them  all.  The  same  gentes  are  not  constant  in  a 
phratry  indefinitely,  as  will  appear  when  the  composition  of 
the  phratries  in  the  remaining  Iroquois  tribes  is  considered. 
Transfers  of  particular  gentes  from  one  phratry  to  the  other 
must  have  occurred  when"  the  equilibrium  in  their  respective 
numbers  was  disturbed.  It  is  important  to  know  the  simple 
manner  in  which  this  organization  springs  up,  and  the  facility 
with  which  it  is  managed,  as  a  part  of  the  social  system  of 
ancient  society.  With  the  increase  of  numbers  in  a  gens, 
followed  by  local  separation  of  its  members,  segmentation 
occurred,  and  the  seceding  portion  adopted  a  new  gentile 
name.  But  a  tradition  of  their  former  unity  would  remain, 
and  become  the  basis  of  their  reorganization  in  a  phratry." l 

The  evolution  of  the  phratric  organization  in  the  other 
Iroquois  tribes  is  precisely  the  same  in  all  essential  features. 
The  gentes  in  each  bear  animal  names ;  and  since  many  of  the 
same  names  occur  in  every  tribe,  this  fact  goes  to  prove  that 
the  entire  confederation  was  knit  together  by  the  ties  of  com- 
mon blood.  The  history  of  the  Tuscaroras,  in  particular, 
affords  striking  illustrations  not  only  of  the  long  persistence, 
but  also  of  the  segmentation  of  the  gentes.2 

The  Iroquois  phratry  is  made  use  of  for  social,  religious, 
and  political  purposes,  though  it  has  no  proper  governmental 
functions.  Socially  it  is  employed  in  the  games  which  occur 
at  the  tribal  and  confederate  councils.  Such,  for  instance  is 
the  ball  game  in  which  phratry  plays  against  phratry.  As  a 
religious  body  it  concerns  itself  with  the  celebration  of  funeral 
rites ;  and,  in  case  of  the  Senecas,  at  least,  each  phratry  for- 
merly had  its  medicine  lodge,  though  it  would  seem  that  the 
latter  is  usually  a  tribal  institution.3  Moreover  each  phratry 


1  Morgan,  Ancient  Society,  90-91. 

1  Morgan,  Ancient  Society,  93.  The  other  two  tribes  of  the  Iroquois,  the 
Mohawks  and  Oneidas,  have  each  the  same  three  gentes,  but  no  phratries ; 
hit  Mr.  Morgan  thinks  that  in  each  tribe  an  entire  phratry  has  been  lost : 
/&.,  92. 

'Morgan,  Ancient  Society,  97,  115. 


252     Evolution  and  Decay  of  the  Hundred  Organism,. 

has  a  council  invested  with  a  certain  political  authority. 
Upon  the  death  of  a  sachem  or  chief  of  any  gens,  his  successor 
is  elected  by  members  of  the  gens  itself;  but  the  choice  is 
subject  to  the  approval  or  rejection  of  the  council  of  either 
phratry,  even  of  that  to  which  the  gens  concerned  does  not 
belong.  In  like  manner  the  council  possesses  the  rudiments 
of  judicial  power,  having  the  right  in  the  case  of  a  murder 
to  take  measures  for  securing  vengeance  or  for  effecting  a 
compromise  with  the  relatives  of  the  slain.  But  the  phratry 
has  no  chief  or  president  as  had  the  analogous  body  among 
the  Greeks,  Latins,  and  Teutons.1 

II. — THE   HUKDERTSCHAFT. 

(a). — The  Payus  or  Gau. 

Everywhere  among  the  Teutonic  peoples  the  hundred 
appears  as  an  organization  midway  between  the  mark  and 
the  volkerschaft.  But  the  question  of  its  origin  and  primitive 
character  is  one  of  the  most  difficult  in  the  whole  range  of 
institutional  history.  Even  the  significance  of  the  name  is 
wrapped  in  obscurity.  As  we  know  it,  the  hundred  does  not 
answer  to  a  hundred  of  anything ;  but,  as  Mr.  Freeman 
remarks,  "  every  name  must  have  had  a  real  meaning  when  it 
was  first  given,  and  there  must  have  been  a  time  when  the 
hundred  or  century  must  have  been  a  real  hundred  or  century 
of  something,  whether  of  houses,  or  families,  or  fighting 
men."2 

Various  theories  to  account  for  the  numerical  designation 


1  It  is  remarkable  that  the  symmetrical  division  of  the  tribe  into  two 
phratries  is  found  also  among  the  Choctas,  Chickasas,  Thlinkeets,  and  per- 
haps elsewhere.     The  Mohegans,  however,  have  three  phratries,  evolved 
respectively  from  the  three  original  gentes — the  Wolf,  the  Turtle,  and  the 
Turkey,  which  names  the  phratries  also  bear:   Morgan,  Ancient  Society, 
99-101. 

2  Comparative  Politics,  117-18. 


The  Hunderltchafl.  253 

have  been  advanced.1  Thus  among  early  writers  Verelius2 
and  Grimm3  regarded  the  hundred  as  an  area  comprising  a 
hundred  vitlae  or  hamlets.  Similarly  Schmid,  referring  to  the 
rise  of  the  institution  in  England,  favors  the  view  that  it  was 
a  territory  containing  a  hundred  hides.4  Ihre  makes  it  a  dis- 
trict which  sends  a  hundred  warriors  to  the  host;6  and  he  is 
followed  in  this  theoiy  by  Lappenl>erg,  who,  however,  admits 
that  the  "appointment  of  a  hundred  men  may  often  have 
stood  in  connection  with  the  same  number  of  free  families,  or 
with  so  many  hides."6  Eichhorn,7  whose  opinion  is  endorsed 
by  Kemble8and  Konrad  Maurer,9  holds  that  it  was  originally 
a  personal  division  and  that  it  first  became  territorial,  at  the 
close  of  the  nomadic  stage,  through  the  occupation  by  each 
organized  century  of  warriors  of  a  district  for  a  common 
dwelling  place.  Waitz  inclines  also  to  this  view,  but  goes 
further  and  thinks  that  each  of  the  hundred  warriors  was 
assigned  a  hufe  or  hide  of  land,  the  possession  of  which  con- 
stituted the  basis  of  his  right  to  participate  in  the  assembly 
and  the  host.10  Finally  Bishop  Stubbs,  referring  to  its  English 
history,  declares  that  the  only  reasonable  conclusion  is  "  that, 


1  The  opinions  of  many  writers  are  collated  by  Konrad  Maurer,  Kritischc 
Ueberschau,  I,  77-8.  See  also  Waitz,  Verfassungsgesch.,  I,  1(J(). 

1  Index  linguae  reteris  Scytho-Scandicae  sire  Gothicae,  s.  v.  hundari,  cited  by 
Maurer,  Krit.  Ueb.,  I,  77. 

'Grimm,  Rcchlaalterthumer,  533-4.  •  He  regards  the  Anglo-Saxon  hundred 
as  composed  of  ten  tithings  and  each  tithing  of  ten  tunas  or  viUae. 

*Schmid,  Gesetze,  613-14.  But  see  Hermes,  Bd.  32,  pp.  238-9,  erroneously 
cited  by  Maurer,  Krit.  Ueb.,  I,  77. 

8  Glo8sarium  Suiogothicum,  s.  v.  licirad  u.  hundari,  cited  by  Maurer,  Krit. 
Ueb.,  I,  77. 

6  Lappenberg,  Anglo-Saxon  Kings,  IT,  403-4. 

7  Deutsche  Staats-  und  Rechtsgeschichte,  \  23,  cited  by  Maurer,  Krit.  Ueb., 
1,77. 

8  Saxons,  I,  ch.  IX. 

9  Kritische  Ueberschau,  I,  78. 

10  Deutsche  Verfasyungsgeschichle,  I,  160-161.    On  the  signification  of  hufe, 
hube,  or  hobo,  see  Ib.,  p.  119;  Bhintschli,  Wirthschaft.  Rechlsord.  der  deutsch. 
Dorfer:  Krit.  Ueb.,  II,  303. 


254     Evolution  and  Decay  of  the  Hundred  Organism. 

under  geographical  hundreds,  we  have  the  variously  sized 
pagi  or  districts  in  which  the  hundred  warriors  settled ;  the 
boundaries  of  these  being  determined  by  other  causes,  as  the 
courses  of  rivers,  the  ranges  of  hills,  the  distribution  of  estates 
to  the  chieftains,  and  the  remnants  of  British  independence." l 
But  whatever  its  origin,  whether  the  hundred  was  at  some 
time  the  district  in  which  a  hundred  warriors  settled,  or 
whether  it  was  the  division  of  land  and  people  which  fur- 
nished a  hundred  fighting  men  whenever  the  host  was  levied 
— the  name  was  already  losing  its  numerical  significance  when 
history  dawns.  Tacitus  informs  us  that  a  hundred  warriors 
proceeded  from  each  pagus  which  therefore  was  called  a  hun- 
dred ;  but  he  significantly  adds,  "  what  was  once  a  number  is 
now  an  honor  and  a  name."2  In  other  words,  the  hundred, 
like  the  primitive  curia,  and  possibly  the  phratria,  was  already 
a  local  district  standing  in  some  relation  to  a  division  of  the 
host ;  but,  as  in  the  case  of  the  curia  or  the  phratria,  in  be- 
coming local  the  ancient  genealogical  organisms  were  not 
entirely  destroyed.  The  hundred  must  be  regarded  as  a  group 
of  localized  gentes — Markgenossenschaften  —  held  together 
somewhat  loosely  by  the  tie  of  common  blood.3  "So  far  as 
it  rested  on  a  numerical  basis,"  says  Waitz,  "  it  did  not  grow 


1  Constitutional  History,  I,  97-8.  Cf.  also  on  the  origin  of  the  name,  Spel- 
mann,  Gloszarium,  p.  864 ;  Inama-Sternegg,  Ausbildung  der  grossen  Grund- 
herrschaften,  3-4 ;  Thudichum,  Der  altd,  Staat,  28-9,  who  regards  the  pagus 
of  Tacitus  as  the  territory  which  the  hundertschaft,  or  hundred  warriors, 
occupied. 

2Definitur  et  numerus;  centeni  ex  singulis  pagis  sunt,  idque  ipsum  inter 
suos  vocantur,  et  quod  primo  numerus  fuit,  jam  nomen  et  honor  est:  Ger- 
mania,  c.  6.  The  interpretation  of  Waitz,  Deutsche  Verfassungsgeschichte,  I, 
161,  is  followed  in  the  text ;  but  cf.  Thudichum,  Der  altdeutsche  Staat,  28-9 ; 
Baumstark,  Erlduterung,  339  ff. 

3  Sohm,  Reichs-  und  Gerichtsverfassung,  I,  2 ;  Waits,  Verfassungsgeschichte, 
I,  150.  The  army  itself  was  composed  of  organized  groups  of  kindred. 
"  Quodque  praecipuum  fortitudinis  incitamentum  est,  non  casus,  neque  for- 
tuita  conglobatio  turmam  aut  cuneum  facit,  sed  famiiiae  et  propinquitates  " ; 
Tacitus,  Germania,  c.  7.  Cf.  Caesar,  De  Bel.  Gal.,  I,  51. 


The  HunderUckafi.  255 

up  so  naturally  and  free  as  did  the  village  community  on  the 
one  hand,  and  the  tribe  on  the  other." l  But  there  is  no  trace 
of  the  numerical  symmetry  which  characterizes  the  subdivisions 
of  the  Hellenic,  the  Italic,  or  even  the  American  tribes.2  In- 
deed after  the  volkerwanderung,  the  natural  organizations, 
larger  and  smaller,  which  had  been  thrown  into  some  confu- 
sion through  the  exigencies  of  that  military  age,  readjusted 
themselves  and  for  a  time  remained  the  determinative  ele- 
ments of  the  social  constitution,  leaving  to  the  hundred  as 
such  a  narrow  range  of  administrative  functions.3 

It  is  of  supreme  importance  for  a  right  understanding  of  the 
real  character  of  the  primitive  hundred  to  note  closely  its  con- 
stitutional limitations.  Until  recently  it  was  the  prevailing 
opinion  that  the  hundred,  like  the  mark  and  volkerschaft,  was 
employed  for  political,  religious,  and  economic,  as  well  as  for 
judicial  purposes.4  Indeed  it  is  not  impossible  that  even  in 
the  early  period  a  portion  of  the  conquered  lands  may  have 
been  assigned  to  the  hundertschaft  as  a  common  mark.5  Be 


1  Waitz,  Verfassungsgeschichte,  I,  165. 

*  The  number  of  marks  in  the  hundred  and  of  hundreds  in  the  volkerschaft 
was  variable. 

*  Cf.  Inama-Sternegg,  Die  Ausbildung  der  grossen  Grundherrschaften,  4. 

4  This  opinion  is  thus  expressed  by  Waitz,  referring  to  the  respective 
assemblies  of  the  mark,  hundred,  and  volkerschaft:  "Dass  ein  Unterechied 
zwischen  der  Einrichtung  uijd  den  Geschaften  dieser  Versammlungen  war, 
liegt  in  der  Natur  der  Sache.    Doch  eine  scharfe  Scheidung  hat  kaum  statt- 
gefunden:  der  allgemeine  Charakter  war  wenigstens  derselbe:  die  kleineren 
Versammlungen  erscheinen  wie  ein  Abbild  derer  die  sich  auf  die  Gesamm- 
theit  der  staatlichen  Verbindung  bezogen.     Diese  aber  haben  ihren  Char- 
akter erst  im  Lauf  der  Zeit  veriindert:"  Deutsche  Ver/assungsgeschichte,  I, 
316.    Cf.  76.,  129-30;  Das  Alte  Recht,  143;  Grimm,  Recht&alterthiimer,  745. 

5  Inama-Sternegg,  Ausbildung  der  grossen  Grundherrschaften,  4 ;    Waitz, 
Verfassungsgeschichte,  I,   164;    Thudichum,  Gau-  und  Marhverf.,  127-133. 
Maurer,  Einlcitung,  46  ff.,  59-62;    Kemble,  Saxons,  I,  56.     Cf.,  however, 
Grimm,   Rechtealterthumer,   494-503,   and    Bluntschli,   Die    wirthschaftliche 
Rechtsordnung  der  deutschen  Dorfer:  Krit.  Ueb.,  II,  299-300,  who  seem  to 
regard  the  village  communities  as  the  normal  possessors  of  the  common 
lands. 


256      Evolution  and  Decay  of  the  Hundred  Organism. 

this  as  it  may,  the  investigations  of  Sohm  have  established, 
with  a  high  degree  of  probability  for  the  age  of  Tacitus  and 
positively  for  the  Frankish  period,  that  the  hundred  was 
neither  a  political  nor  a  religious  unit.1  It  was  essentially 
an  administrative  district  or  circumscription  employed  by  the 
state  chiefly  for  judicial  purposes.  As  such  it  was  called 
a  gau  by  the  Germans  and  a  pagus2  by  Tacitus;  and  the 
Historian,  it  should  be  observed,  employs  the  word  advisedly, 
for  pagus  is  the  ordinary  Latin  designation  for  a  subordinate 
district,3  and  it  is  never  used  for  the  territory  of  the  state  as  a 
whole.4 


1  Sohm,  Reichs-  und  Gerichtsverf.,  I,  5-8,  57  ff. 

*  Oermania,  c.  6,  12.  Caesar  also  uses  pagus  for  an  under  division  of  the 
civilas:  De  Sell.  Gal.,  I,  12,  37;  IV,  1. 

8  Arnold,  Roman  Provincial  Administration,  208 ;  Lange,  Romische  Alter- 
thurner,  I,  64,  83  ff.,  570. 

4  The  principal  authorities  now  agree  that  for  the  period  under  considera- 
tion gau  can  properly  be  employed  only  for  the  hundred ;  and  there  is  no 
doubt  as  to  the  identity  of  the  hundred  and  the  pagus  of  Tacitus.  See  Kon- 
rad  Maurer,  Krit.  Ueb.,  I,  82-4 ;  Roth,  Beneficialwesen,  2 ;  Stubbs,  Const. 
Hist.,  1,  98,  109-13;  Waitz,  Verfaswngsgeschichte,  I,  142-4,  158;  Thudichum, 
Der  altdeutsche  Staat,  28 ;  Gau-  und  Markverfassung,  1—10. 

But  the  word  gau  seems  to  be  related  etymologically  to  the  Greek  ge,  and 
has  the  general  signification  of  land  or  district.  Hence  it  was  employed  for 
almost  any  territorial  area,  subordinate  to  that  of  the  state.  Cf.  Sohm, 
Reichs- und  Gerichtsverf.,  I,  12,  201  ff. ;  Thudichum,  Gau-  und  Markverf., 
1-10;  Inama-Sternegg,  Deutsche  Wirthschaftegesch.,  35  f. ;  Maurer,  Einleitung, 
55-7;  Waitz,  Verfassungsgesch.,  I,  144;  II,  322  ff.  Accordingly,  during  the 
Merovingian  and  Karolingian  periods  gau  was  used  not  only  for  the  hun- 
dred, as  before,  but  also  for  the  old  civitas  or  volkerschaft;  because  the  latter 
had  now  become  a  mere  administrative  district  of  the  united  kingdom.  It 
is  of  the  utmost  importance  that  the  correct  use  of  the  terminology  should 
be  noted,  for  misapprehension  and  lack  of  precision  in  this  regard  have  led 
to  much  confusion  in  tracing  the  different  phases  of  evolution.  Thus  the 
account  of  Kemble  (Saxons,  I,  chap.  Ill)  is  utterly  bewildering.  He  uses 
gau  or  gd  for  shire,  which  is  right  enough,  if  employed  merely  as  a  descrip- 
tive term :  for  the  shire  is  a  mediatized  state  or  volkerschaft.  But  he  goes 
further  (pp.  72,  86-7)  and  makes  it  the  original  designation  of  the  tribal 
state  itself.  Moreover,  ignoring  the  hundred  altogether,  he  represents  the 
marks  as  uniting  directly  to  form  the  shire  or  gau  (pp.  72,  85)  with  which 


The  Hunderiachafl.  257 

The  court  of  the  hundred  was,  so  to  speak,  the  common 
law  tribunal  among  the  Teutonic  tribes.  According  to  Taci- 
tus it  was  presided  over  by  the  princeps  chosen  in  the  great 
assembly  of  the  civitas ;  but  he  was  aided  by  a  hundred  com- 
panions from  among  the  people,  who  were  present  for  author- 
ity and  advice. l  In  other  words,  according  to  the  best  inter- 
pretation of  the  passage,  the  princeps  presided  but  the  judges 
were  the  freemen  of  the  hundred  in  folkmoot  assembled.2 
The  jurisdiction  of  the  court  probably  extended  to  the  decla- 
ration of  folk-right  in  all  cases,  civil  and  criminal.  There 
was  no  appeal  in  the  proper  sense  of  the  word ;  but  graver 
crimes  were  reserved  for  the  council  of  the  civitas, 3  which, 
as  the  bearer  of  national  sovereignty,  may  also  have  exercised 
supreme  jurisdiction  in  case  of  failure  to  secure  justice  in  the 
lower  tribunals. 

(6). — The  Centena  or  Untergau. 

Passing  over  the  long  interval  between  the  age  of  Tacitus 
and  the  advent  of  the  folk  laws,  during  which  time  there  is 
almost  a  complete  blank  in  the  history  of  Teutonic  institu- 
tions, it  is  now  proposed  to  trace  briefly  the  development  of 
the  hundred  constitution  among  the  Franks.  And  here  we 


he  uses  pagus  (p.  76)  as  an  interchangeable  term.  Mr.  Freeman  also  is  at 
variance  with  the  present  usage.  Referring  to  the  Teutonic  organization  in 
the  age  of  Tacitus,  he  says :  "Above  the  hundred  comes  the  pagus,  the  gau, 
the  Danish  syssel,  the  English  shire,  that  is,  the  tribe  looked  at  as  occupy- 
ing a  certain  territory " :  Comparative  Politics,  118.  Again  he  remarks — 
"  in  the  days  with  which  we  have  now  to  deal,  the  tribe  was  the  state,  the 
gau  was  the  territory  of  the  state"  :  lb.,  119,  413.  See  also  Grimm,  Rechtx- 
alterthiimer,  496;  Palgrave,  Commonwealth,  I,  116;  Schulte,  Reichs-  und 
Recktsgeschichte,  25-26. 

1 "  Eliguntur  in  iisdem  conciliis  et  principes,  qui  jura  per  pagoa  vicosque 
reddunt.  Centeni  singulis  ex  plebe  comites  consilium  simul  et  auctoritas 
adsuut":  Tacitus,  Germania,  c.  12. 

zSee  Waitz,  Verfassungsgesch,,  I,  154-6,  and  the  authorities  there  cited. 

'Tacitus,  Germania,  c.  12. 

17 


258     Evolution  and  Decay  of  the  Hundred  Organism. 

.shall  be  able  to  see  more  clearly  some  things  which  appear 
but  dimly  in  the  brief  notices  of  the  Germania. 

The  history  of  the  Frankish  hundred  divides  itself  into  two 
district  phases  :  that  of  the  Lex  Salica,  a  compilation  of  early 
custom  originating  not  later  than  the  close  of  the  fifth  cen- 
tury ;  *  and  that  of  the  Merovingian  and  Karlovingian  su- 
premacies extending  from  the  sixth  to  about  the  tenth  century. 
During  the  first  epoch  the  hundred  appears  as  an  area  subor- 
dinate to  the  larger  administrative  district  of  the  grafio  or 
count ;  and  this  higher  division  is  nothing  less  than  the  once 
sovereign  volkerschaft  now  degraded  to  the  rank  of  a  mere 
member  of  a  larger  whole — the  stamm  kingdom. 2 

In  the  Lex  Salica  the  hundred  is  not  directly  mentioned, 
unless  indeed  the  term  pagus,  which  there  seems  to  be  em- 
ployed for  the  district  of  the  grafio,  is  also  used  as  a  designa- 
tion of  the  hundred.3  But  the  existence  of  the  institution 
and  its  general  character  are  plainly  revealed.  It  appears 
exclusively  as  a  judicial  organization.  At  its  head  stands  the 
centenarius  or  thunginus,4  who  is  chosen,  not  in  the  national 
assembly  as  was  the  princeps  of  the  Germania,  but  by  the 
freemen  of  the  hundred  itself.5 

The  court  of  the  hundred  is  called  mattuK,*  literally  the 
"  speech  " ;  and  it  meets  periodically  on  the  maloberg,  a  hill, 


1  Waitz,  Das  alte  Recht,  83;    Verfassungsgesch.,  II,  30;   Schroeder,  Die 
Franken  und  ihr  Recht,  37. 
*  See  Chap.  VI,  in. 

3  See  Behrend,  Lex  Salica,  1.  5,  41.  6,  50.  3,  55.  2  (3),  where  pagus  occurs. 
Cf.  Waitz,  Das  alte  Eecht,  134. 

4  Thunginus  out  centenarius  he  is  styled  in  the  law :  Behrend,  Lex  Salica, 
c.  44.  1,  46.  1. 

5Sohm,  Reichs-  und  Oerichtsverf.,  73;  Waitz,  Das'alte  Recht,  137.  Maurer, 
Einleitung,  139 ;  Dorfverf.,  II,  29 ;  and  Grimm,  Rechtsalt.,  534,  regard  the 
thunginus  as  the  head  officer  of  a  village — dorfvorsteher ;  but  this  is  refuted 
by  Sohm,  p.  71,  and  Waitz,  pp.  135,  150. 

6  Grimm,  Rechtsalt.,  746 ;  Waitz,  Das  alte  Recht,  289 ;  Sohm,  Reichs-  und 
G&'ichtsverf.,  I,  57-62. 


The  Hundertschqft.  259 

grove,  or  other  place  dedicated  especially  to  this  purpose.1  In 
the  niallus  the  centenarius  presides,  but  the  whole  body  of 
freemen  are  the  judges ;  and  in  their  judicial  capacity  they 
are  styled  rachineburgii,  a  name  which  expresses  the  nature  of 
their  functions.*  But  the  decisions  are  not  made  by  the  whole 
body  of  freemen  who  may  at  any  time  chance  to  be  present  in 
the  court.  From  their  midst  seven  assessors  are  selected  for 
each  session,  or  perhaps  for  each  particular  case,  by  the  pre- 
siding magistrate  or.  by  the  interested  parties ;  and  these  asses- 
sors, sitting  upon  benches,  render  judgment  in  the  name  of 
their  fellows  who  remain  standing.  The  select  body  of  seven 
constitute  the  rachineburgii  in  the  restricted  sense ;  but  they 
are  merely  the  temporary  representatives  of  the  whole  people 
who  are  responsible  for  the  decisions  and  openly  proclaim 
their  assent.3  And  so  the  hundred  court  appears  as  a  tribunal 
whose  authority  flows  from  the  majesty  of  the  people  and  not 
from  that  of  the  king.4 


1  Waitz,  Das  alte  Recht,  143 ;  Sohni,  Reichs-  und  Gerichtsverf.,  273-8 ;  Grimm 
Rechlsalt,  801 ;  Thudichum,  Gau-  und  Markverf ,  53. 

*  Savigny,  Hist,  of  the  Roman  Law,  I,  205  ff.,  derives  the  word  from  rei-  = 
great,  and  burg  =  surety ;  and  makes  the  office  identical  with  that  of  the 
Lombard  arimanni  and  (following  J.  Miiller)  the  Spanish  ricos  hombrcs:  cf. 
Ib.,  184  ff.,  198.  Grimm,  RechtsaU.,  293  f.,  774,  regards  the  word  as  com- 
posed of  the  Old  High  Germ.  ro&in=consilium,  and  buryius  =  fidejussor  = 
A.  S.freoborg,  freepledge,  thus  conveying  the  idea  of  a  freeman  in  the  capa- 
city of  judge.  Cf.  Miillenhoff's  glossary,  Waitz,  Das  alte  Recht,  291,  who 
makes  the  word=  A.  S.  raedbora,  one  who  gives  counsel ;  see  also  Schade, 
AM.  Worlerb.,  II,  698. 

1  Behrend,  Lex  Salica,  c.  50.  3,  56.,  57.  Seven  rachineburgii  are  mentioned 
in  the  Lex;  but  Waitz  conjectures  that  originally  the  normal  number  may 
have  been  twelve,  seven  sufficing  for  a  legal  session.  On  the  whole  subject 
see  Waitz,  Verfassungsgesch.,  II,  36,  484  ff.;  I,  480  ff.,  and  his  earlier  view 
in  Das  alte  Recht,  153 ;  Rogge,  Da*  Gerichtsuxsen,  66-7  ;  Stubbs,  Const.  Hist., 
I,  54-5 ;  Sehulte,  Reichs-  und  Rechttgesch.,  382-3 ;  Warnkoenig,  Frant.  Stoats- 
und  Rechtsyesch.,  I,  151 ;  Savigny,  Hist,  of  the  Roman  Law,  I,  198  ff. 

4 "  Die  ganze  Gerichtsverfassung  der  Lex  rialica  ergiebt  sich  aus  dem 
einein  Sat/.:  Die  Gerichtshoheit  ist  Volkshoheit,  nicht  Konigshoheit " : 
Sohin,  Reichs-  und  Qerichtsverf.,  I,  101.  See,  however,  Fustel  de  Coulangee, 
Lut.  Pol.,  510,  note  2,  who  denies  that  the  niallus  was  a  popular  assembly. 


260     Evolution  and  Decay  of  the  Hundred  Organism. 

But  the  king  is  represented  in  the  mallus  by  his  own  officer, 
the  sacebaro,  who  is  present  there  to  look  after  his  fiscal  inter- 
ests.1 Moreover  the  grafio  or  ruler  of  the  pagus  of  which  the 
hundred  forms  a  part  may  attend  the  court  as  the  general 
executor  of  its  decrees ;  but  neither  grafio  nor  sacebaro  pos- 
sesses any  deciding  power.  The  grafio  like  the  sacebaro  is  the 
king's  nominee,  and  they  occupy  analogous  positions  in  their 
respective  districts.  But  the  grafio  discharges  the  various 
functions  of  a  general  administrator  of  the  law,  while  the 
sacebaro  is  essentially  a  fiscal  agent.2 

Besides  the  ordinary  litigation,  the  mallus  is  employed  for 
certain  transactions  of  a  quasi  judicial  character  where  great 
publicity  is  required.  Thus  in  a  meeting  specially  called  for 
the  purpose,  occurs  the  symbolical  alienation  of  the  family 
property,  adfathamire,  which  among  the  Germans  takes  the 
place  of  the  testament  or  adoption  in  the  appointment  of  an 
heir;3  and  here  also  takes  place  the  ceremony  of  paying  the 
reipus  to  the  relatives  of  a  widow  as  the  penalty  for  her  entering 
upon  a  second  marriage.4  But  in  the  case  of  the  adfathamire, 


1The  chapter  of  the  Lex  Salica  relating  to  the  sacebaro  throws  little 
light  on  the  character  of  the  office :  Behrend,  Lex  Salica,  c.  54.  Cf.  Sohm, 
Reichs-  und  Gerichtsverf.,  74  if.;  Waitz,  Das  alte  Recht,  140ff.;  Verfassungsgesch., 
II,  39  ff.  According  to  the  passage  of  the  Salic  Law  cited,  only  three  sace- 
baronen  were  to  be  present  in  the  court ;  hence,  it  is  concluded  that  more 
than  one  was  usually  appointed  for  each  hundred.  The  word  seems  to 
mean  'law  man,'  vir  litis,  causae  forensis :  Miillenhoff's  glossary,  in  Waitz, 
Das  alte  Recht,  292.  Cf.  Grimm,  RechtsaU.,  783-4. 

2  Sohm,  Reichs-  und  Gerichtsverf.,  93-99. 

3  Behrend,  Lex  Salica,  c.  46.     The  procedure  is  described  by  Waitz,  Das 
alte  Recht,  147-9.     It  bears  a  resemblance  to  the  Roman  mancipatory  will, 
in  the  later  period  when  a  third  person  as  familiae  emptor  received  the 
property  in  trust  for  the  heir.     Cf.  Schroeder,  Geschichte  des  ehelichen  Giiter- 
rechts,  I,  158;  Warnkoenig,  Franz.  Staats^-  und  Rechtsgesch.,  II,  443  ff.     On 
the  derivation  of  the  word  adfathamire,  see  Mullenhoff's  glossary,  Waitz, 
Das  alte  Recht,  277. 

4  Behrend,  Lex  Salica,  c.  44.    Cf.  Waitz,  Das  alte  Recht,  146-7.    The  reipus, 
that  is  the  'bandgeld'  or  'ringgeld'  was  the  symbolical  penalty  paid  by 
the  bridegroom  to  the  relatives  of  a  widow  before  the  marriage:   Sohm, 


The  Huwlertschaft.  261 

and  possibly  also  in  that  of  the  reipus,  only  the  preliminary 
procedure  occurs  in  the  special  meeting,  and  hence  the  transac- 
tion must  subsequently  be  carried  to  completion  in  a  regular 
mallus;  but  the  centenarius  presides  in  the  special  just  as  he 
does  in  the  regular  assembly.1  It  is  in  the  ordinary  court, 
finally,  that  the  ceremony  of  renouncing  the  ties  of  kinship 
takes  place.  He  who  will  separate  himself  from  his  family 
must  appear  there  before  the  thunginus  and  break  three  alder 
branches  over  his  head,  and  throwing  the  fragments  toward 
the  four  points  of  the  compass,  declare  that  he  thus  separates 
himself  from  the  oath,  the  inheritance,  and  all  legal  relations 
of  his  kindred.2 

We  now  turn  to  the  second  phase  of  development  during 
which  the  ancient  popular  organization  gradually  falls  into 
decay,  chiefly  through  the  encroachment  of  the  central 
authority. 

The  zent,  centena,  or  vicaria3  of  the  Frankish  empire  occu- 
pies the  same  relative  position  as  a  judicial  subdivision  of  the 
state  as  did  the  hundred  of  the  Salic  law.  Although  a  union 
of  races  under  the  dominion  of  one  monarch  has  superseded 
the  starnm  as  the  highest  conception  of  the  state,  yet  the  graf- 


Das  Recht  der  Eheschliessung,  63-4;  Laboulaye,  Condition  des  Femmes,  159  ff. ; 
Warnkoenig,  Franz.  Stoats-  und  Rechtsgesch.,  II,  239  f.;  Miillenhoff's  glossary, 
Waitz,  Das  alte  Recht,  292.  Cf.  Grimm.  RechtsaU.,  426-7. 

1  Waitz,  Das  alte  Recht,  146,  148. 

1 "  In  mallo  ante  thunginum  ambulare  debet  et  ibi  tres  fustis  alninus  super 
caput  Miiim  frangere  debet.  Kt  illos  per  quattuor  partes  in  mallo  jactare 
debet  et  ibi  dicere  debet,  quod  juramento  et  de  hereditatem  et  totarn  ration- 
em  illorum  se  tollat":  Behrend,  Lex  Salica,  c.  60.  1.  Cf.  also  Waitz,  Das 
alte  Recht,  149. 

8Sohm,  Reicfis-  und  Gerichtsverf.,  I,  213  ff.,  has  proved  that  viraria  and 
vicariug  are  identical  with  centena  and  centenarius.  Zent  is  probably  a  pure 
German  word,  and  centena  and  centenarius  are  German  words  Latinized : 
Thudichum,  19  f.;  Sohm,  219.  Various  forms  of  the  word  hundred  also 
occur  in  different  dialects:  huntari,  hundschaft,  hondschaft,  hunschaft,  hun- 
naria ;  but  it  is  not  certain  that  these  arc  all  used  for  the  hundred  division : 
Thudichum,  21  f.  Cf.  Grimm,  RechtaaU.,  532-3,  755-6 ;  Waitz,  Verfassungt- 
getch.,  II,  318  ff. 


262     Evolution  and  Decay  of  the  Hundred  Organism. 

schaft  or  mediatized  volkerschaft  is  still  retained  as  the  larger 
administrative  district.  The  term  pagus,  with  its  German 
equivalent  gau,  is  used  indifferently  for  both  grafschaft  and 
centena ;  and  so  the  latter  is  styled  the  '  undergau '  as  distin- 
guished from  the  '  gau '  or  '  great  gau '  over  which  the  count 
presides.1 

But  in  the  process  of  centralization  very  important  and  very 
interesting  changes  have  taken  place  in  the  hundred  constitu- 
tion. The  mallus,  during  the  Merovingian  era,  is  still  com- 
posed of  the  freemen  or  rachineburgs  who  pronounce  judg- 
ment;2 but  the  graf  has  superseded  the  centenarius  as  its 
presiding  officer.  The  centenarius  or  vicar  is  no  longer  the 
headman  of  the  hundred  chosen  by  the  popular  voice :  he  is 
now  a  mere  royal  bailiff  or  schultheiss  appointed  by  the  graf 
acting  as  the  king's  agent.  He  is  not  a  judge,  but  a  servant 
of  the  judge.3  In  short  the  centenarius  is  degraded  to  the 
position  of  the  Salic  sacebaro  whom  he  has  displaced;  though 
the  sacebaro  unlike  the  centenarius,  was  nominated  directly  by 
the  king.4 

Finally  from  the  last  part  of  the  eighth  century,  the  mallus 
begins  to  lose  its  popular  character.  Only  in  the  two  or  three 
general  yearly  assemblies,  attendance  upon  which  is  enjoined 


1  On  the  use  of  gau  and  untergau,  see  Thudichum,  Gau-  und  Markverf.,  9 
ff. ;  Sohm,  Reichs-  und  Gerichtsverf.,  I,  201  ff.,  74-9 ;  Waitz,  Verfassungsgesch, 
II,  323  ff. 

2  Waitz,  Verfassungsgesch.,  II,  484  ff. 

3  Sohm,  Reichs-  und  Gerichlsverf.,  257.    Waitz,  Verfassungsgesch.,  II,  356  ff., 
however,  claims  that  in  the  Merovingian  period  the  hunno  or  centenarius 
was  still  an  elective  officer,  though  he  had  in  most  places  lost  his  position 
as  president  of  the  mallus. 

4  See  the  whole  subject  worked  out  from  the  sources  in  Sohm,  Reichs-  und 
Gerichtsverf.,  I,  146-272.    He  holds  that  the  later  centenarius  performed  the 
duties  of  a  schultheiss,  that  is  of  a  judicial  executor  in  criminal  cases ;  and 
that  the  office  is  identical,  not  only  with  that  of  the  vicarius,  but  also  with 
that  of  the  tribunus.    See,  however,  Waitz,  Verfassungsgesch.,  II,  347  ff. ;  III, 
332  ff. ;  IV,  317  ff. ;  Maurer,  Einleitung,  140 ;  Stadteverf.,  I,  547,  whose  con- 
clusions differ  radically  in  many  particulars  from  those  of  Sohm. 


The  Hundcrtechafl.  263 

by  i  m  pi-rial  authority,1  do  all  the  freemen  appear.  At  the 
ordinary  judicial  sessions  few  besides  the  interested  parties  are 
usually  present;  and  the  meetings  take  place,  not  as  of  old  in 
the  open  air  on  the  maloberg,  but  within  the  walls  of  a  build- 
ing, a  court  house,  erected  there  for  the  purpose.  Moreover, 
throughout  the  greater  part  of  the  empire,  the  freemen  cease 
to  act  as  judges.  The  rachineburgii,  hitherto  selected  from 
the  body  of  suitors  as  occasion  required,  are  now  superseded 
by  the  scabini,  a  kind  of  professional  jurors  or  assessors, 
appointed  for  the  entire  grafschaft  by  the  count  or  the  impe- 
rial missus  with  the  assent  of  the  people,  and  holding  office 
for  life.  From  the  whole  body  of  scabini,  whose  number  is 
unknown,  certain  members,  usually  seven  as  in  the  case  of 
the  rachineburgii,  are  selected  to  sit  with  the  count  in  each 
hundred  court  of  his  gau ;  and  they  are  sworn  to  render  no 
unjust  decision.  But  in  Saxony  and  some  other  German 
lands,  the  "good  men"  or  "neighbors"  still  continue  to  pass 
judgment  in  the  ancient  manner.2 


1The  capitulary  of  769  requires  everyone  to  attend  the  mallus  twice  each 
year — in  autumn  and  spring:  Oapit.,  c.  12,  Walter,  Corp.  Jur.  Germ.,  II,  55. 
Later,  attendance  on  three  meetings  was  required :  Waitz,  Verfassungsgesch., 
IV,  308,  note  2. 

2  Seabinus  seems  to  mean  "one  who  judges  or  ordains,"  from  sea/an,  schaf- 
fen,  equalling  ordinare,  decernere:  Grimm,  Rechtsalt.,  775,  768;  Waitz,  Ver- 
fassungsgesch., IV,  326,  note  3.  By  the  capitulary  of  803  the  appointment  of 
scabini  was  given  to  the  missi :  Oapit.,  c.  3,  Walter,  Corp.  Jur.  Germ.,  II,  181. 
The  capitulary  of  809  requires  them  to  be  nominated  by  the  count  and  peo- 
ple: Walter,  II,  234.  But  later  it  was  enacted — "  ut  missi  nostri  ubicunque 
malos  scabineos  inveniunt,  eiciant,  et  totius  populi  concensu  in  loco  eorum 
bonos  eligant.  Et  cum  electi  fuerint,  iurare  faciant  ut  scienter  iniustS  iudi- 
care  non  debeant:"  Capti.  829,  c.  2,  Walter,  II,  382.  How  many  were  nomi- 
nated for  each  graftschaft  is  uncertain ;  and  while  seven  seem  usually  to  have 
been  selected  for  a  particular  session,  in  practice  the  number  greatly  varied. 
On  the  whole  subject  see  Waitz,  Verfassungsgtsch.,  IV,  325  ff. ;  Warnkoenij.', 
Franz,  Stoats-  und  Rechtsyesch.,  I,  150  ff. ;  Rogge,  Das  Oerichtawesen,  74-5 ; 
Schulte,  Reichs-  und  Rechtsgesch.,  382-3.  Savigny,  Hint,  of  Roman  Law,  I, 
217  ff.,  holds  that  the  scabini  only  lightened  the  duties  of  the  front  hominr*  or 
ireemen  who  might  still  act  with  the  former  as  judges;  and  this  is  true  for 
borne  places.  Cf.  Waitz,  IV,  339. 


264     Evolution  and  Decay  of  the  Hundred  Organism. 

III. — THE  OLD  ENGLISH  HUNDEED. 
(a). —  The  Primitive  Constitution. 

Almost  no  trustworthy  information  exists  as  to  the  origin 
of  the  hundred  in  Britain.  It  is  remarkable  that  here  as 
elsewhere  its  primitive  history  must  be  pieced  together  from 
a  few  obscure  references  in  the  early  codes  which  take  for 
granted  a  knowledge  of  the  institution  and  make  no  attempt 
at  systematic  explanation.  The  hundred  is  first  mentioned  in 
the  laws  of  Eadgar,1  where  it  appears  as  a  geographical  area2 
employed  as  the  unit  of  the  judicial  and  peace  administration; 
and  shortly  thereafter  we  learn  that  it  is  a  subordinate  division 
of  the  shire.  But  it  is  probable  that  the  institution,  if  not  the 
name,  existed  from  the  earliest  Teutonic  settlement  in  England.3 
On  the  authority  of  William  of  Malmsbury  its  creation  is 
popularly  ascribed  to  Aelfred  ;4  and  while  this  cannot  be 
literally  true  in  the  sense  intended,  there  is  reason  to  believe 
that  about  the  beginning  of  the  ninth  century  there  may  have 
occurred  something  like  a  rearrangement  of  the  administrative 
divisions  of  the  kingdom.  For  in  England,  just  as  among 
the  Franks,  the  empire  arose  through  the  process  of  uniting 
or  mediatizing  tribal  states  and  larger  kingdoms  which  had 


1  Eadgar  (A.  D.  959-975),  Constitutio  de  Hundredis:  Schinid,  Gesetze,  182 
ff. ;  Thorpe,  Anc.  Lam,  I.  258  ff. 

2  That  it  was  territorial  is  proved  by  Eadgar,  I,  5,  where  it  is  stated  that 
the  track  of  cattle  may  be  pursued  from  one  hundred  into  another:  Thorpe, 
Anc.  Laws,  I,  261.     Cf.  Creasy,  Hist,  of  Eng.,  I,  169. 

3  But  among  the  Saxons  of  the  Continent,  as  also  among  the  Frisians,  the 
name  hundred  does  not  appear;  still  it  is  not  improbable  that  the  institution 
and  even  the  name  may  have  existed,  though  no  record  of  the  fact  is  pre- 
served.    The  numerical  designation  may  have  been  entirely  supplanted  by 
gau  :  K.  Maurer,  Krit.  Ueb.,  I,  75-79.     Stubbs,  Const.  Hist.,  I,  56,  regards  the 
absence  of  the  hundred  among  the  Saxons  as  "  presumptive  evidence  of 
superior  simplicity  of  organization."     Cf.  Waitz,  Verfassunysgesch.,  I,  153. 

4  The  passage  from  William  is  quoted  by  Stubbs,  Const.  Hist.,  I,  99,  note  1. 
Cf.  K.  Maurer,  Krit.  Ueb.,  I,  85;  Schmid,  Gesetze,  613. 


The  Old  English  Hundred.  265 

thrmselves  been  similarly  composed.  So  that  it  is  not  improba- 
ble, that  when  the  last  of  the  so-called  heptarchic  kingdoms  had 
been  brought  under  the  West  Saxon  supremacy,  the  primitive 
vulkerschaften  and  their  subdivisions  were  uniformly  chosen, 
so  far  as  practicable,  as  the  administrative  districts  of  the  united 
monarchy.  In  other  words,  while  the  volkerschaft  became 
a  shire  or  gau  and  the  original  gau  or  hundred  became  an 
undergau,  the  heptarchic  stamm  kingdoms  were  ignored.1 

It  is  in  the  laws  of  Eadgar  also  that  mention  is  first  made 
of  the  wapentake,  an  organization  found  only  in  connection 
with  the  Anglian  shires.2  Moreover  the  name  is  of  Scandi- 
navian origin,  and  seems  to  have  reference  to  the  touching  of 
the  arms  of  the  local  magistrate  in  recognition  of  his  authority.3 
It  is  therefore  probable  that  the  institution  was  introduced  into 
England  by  the  Danes ;  and  scholars  have  hitherto  regarded 
it  as  merely  an  equivalent  for  the  hundred  of  the  southern 
shires.  But  the  recent  investigations  of  Canon  Taylor  have 
raised  serious  doubts  as  to  the  correctness  of  this  view.  He 
shows  that  the  evidence  of  Domesday  goes  to  prove,  if  indeed 
it  does  not  completely  demonstrate,  that  the  wapentake  was  an 
administrative  district  comprising  just  three  hundreds.  Thus 
he  is  able  to  name  the  three  hundreds  of  each  of  the  six  wapen- 
takes  of  the  east  riding  of  Yorkshire ;  and  while  this  can  not 


1  Cf.  Henry  Adams,  the  Anglo-Saxon  Courts  of  Law,  Essays,  5  ff. ;  and  Chap. 
VI,  III,  (a),  below. 

The  question  of  the  numerical  significance  of  the  term  hundred  has  already 
been  discussed ;  but,  on  the  theory  that  each  of  the  English  hundreds  com- 
prised a  hundred  hides,  see  further,  Pearson,  Hint.  Maps,  28  f.,  57 ;  Ellis, 
Int.  to  Domesday,  184;  Schmid,  Gesetze,  614;  Dialog.de  Scac.,  c.  17:  Select 
Charters,  209  ;  Stubbs,  Const.  Hist.,  I,  99 ;  Taylor,  Wapentakes  and  Hundreds, 
Domesday  Studies,  I,  70,  76. 

1  Eadgar.  IV,  6 :  Schmid,  Gesetze,  196,  672.  Wapentakes  formerly  existed 
in  the  shires  of  York,  Leicester,  Rutland,  Derby,  Northampton,  Buckingham, 
Lincoln,  and  Nottingham;  and  they  are  still  found  in  York  and  Lincoln: 
Stubbs,  Const.  Hist.,  I,  96;  Taylor,  Wapentakes  and  Hundreds,  Studies,  1, 68, 76. 

3  See  the  celebrated  passage  of  the  Leges  Ed.  Conf.,  30:  Schmid,  Gesetze, 
507-8,  where  the  ceremony  of  touching  the  lance  of  him  who  has  accepted 
the  praefecluram  wapentagii  is  described.  Cf.  Skeat,  Etymolog.  Diet.,  695. 


266     Evolution  and  Decay  of  the  Hundred  Organism. 

be  done  in  all  cases,  the  ratio  of  the  aggregate  number  of 
wapentakes  to  that  of  the  hundreds,  or  the  triple  area  of  those 
modern  hundreds  which  answer  to  Domesday  wapentakes,  in 
some  shires,  renders  it  extremely  probable  that  an  arrange- 
ment of  the  hundreds  by  threes  in  the  wapentake  constituted 
the  rule.1  The  Canon  goes  further  and  ventures  to  point  out 
the  original  object  of  the  new  organization.  "The  wapentake 
seems  to  have  been  the  unit  on  which  the  navipletio  or  ship- 
money  was  levied.  We  learn  from  the  Saxon  Chronicle  that 
in  1008  Ethelred  ordered  that  a  ship  should  be  furnished  by 
every  three  hundred  hides,  and  Edgar's  charter  to  the  Bishop 
of  Worcester  directed  that  every  three  hundreds  should  fur- 
nish one  scypfylled  or  navipletio,  from  which  Bishop  Stubbs 
infers  '  that  every  three  hundreds  were  liable  to  be  called  on 
to  furnish  one  ship.'  Hence  the  wapentake,  containing  three 
old  hundreds,  each  of  a  hundred  hides,  was  the  unit  of  assess- 
ment for  the  naval  defence,  just  as  the  old  hundreds  had  been 
the  units  for  the  military  defence  of  the  kingdom."2 

Therefore,  for  a  time  in  the  Danish  shires,  hundreds  and 
wapentakes  co-existed  for  distinct  functions.  "  The  hundred 
moots  may  have  continued  to  meet  for  civil  purposes,  though 
they  were  superseded  for  purposes  of  military  defence  by  the 
wapentakes.  Thus  the  hundreds  became  subordinate  to  the 
wapentakes,  which  gradually  replaced  them  for  all  pur- 
poses." 3 

The  head  officer  of  the  hundred  is  the  hundred  ealdor4  or 


1Thus  according  to  Domesday,  Lincoln  had  twenty-eight  wapentakes  and 
eighty -four  hundreds — a  ratio  of  one  to  three;  and  the  average  number  of 
square  miles  in  each  of  the  six  modern  hundreds  of  Leicester  is  136 — fully 
three  times  as  large  as  in  the  average  hundred  of  other  shires:  Taylor, 
Wapentakes  and  Hundreds,  Studies,  I,  73-5. 

2  Taylor,  Wapentakes  and  Hundreds,  Studies,  I,  76 ;  Stubbs,  Const.  Hist.,  I, 
105,  99. 

3  Taylor,  Wapentakes  and  Hundreds,  Studies,  I,  71.     However  in  Derby, 
Nottingham,  Rutland,  and  Leicester  the  Domesday  wapentakes  are  now 
called  hundreds,  though  in  area  they  are  really  wapentakes. 

*Eadgar,  IV,  8,  10:  Schmid,  Gesetze,  196. 


The  Old  English  Hundred.  267 

hiiMilivdman,1  but  whether  he  is  elected  by  the  freemen  or 
nominated  by  the  king  is  uncertain.2 

As  on  the  Continent,  the  hundred  is  employed  chiefly  for 
judicial  purposes.  Its  assembly,  the  hundredgemot,  is  a 
representative  body  composed  of  the  parish  priest,  the  reeve 
and  four  best  men  from  each  township,  together  with  all 
lords  of  land  or  their  stewards.8  The  hundredgemot  is  in 
a  peculiar  sense  the  ordinary  court  of  the  freemen.  Here 
all  suits  must  first  be  heard  before  they  may  be  carried  to  the 
shiremoot  or  before  the  king.4  The  court  meets  monthly,  and 
exercises  jurisdiction  in  all  suits  civil  and  criminal,  voluntary 
and  contentious.  Like  the  mallus,  it  also  witnesses  the  trans- 
fer of  lands.8  In  theory  all  the  suitors  are  judges.  But,  as 
in  the  case  of  the  Frankish  rachineburgii,  the  decisions  are  not 
usually  rendered  by  the  whole  body.  For  this  purpose  they 
are  represented  by  the  "  twelve  senior  thegns,"  who  remind 
us  of  the  seven  who  sat  as  representatives  of  the  rachineburgii 
in  the  mallus.  However  the  mode  of  appointment  and  the 
term  of  service  are  entirely  unknown.  Bishop  Stubbs  conjec- 
tures that  in  some  cases  they  may  have  been  "  like  the  scabini 
or  shoffen,  a  fixed  body  holding  their  appointment  for  life ; 
or  like  the  lawmen  of  Lincoln,  the  hereditary  owners  of  sac 
and  soc  in  the  territory  ;  or  chosen  merely  for  the  occasion."  ' 
And  he  thinks  further  that  they  may  be  identical  with  the 
twelve  thegns  of  the  wapentake  who  by  the  laws  of  Aethelred 
are  directed  to  join  themselves  with  the  reeve,  and  u  swear  on 
the  halidome  which  shall  be  put  in  their  hands,  that  they  will 


1Eadgar,  I,  2,  4,  5:  Schmid,  Gesetze,  182,  184. 

2  Stubbs,  Const.  Hist.,  I,  102.  There  was  also  a  gerefa  in  the  wapentake : 
Aethel.,  Ill,  3:  Schmid,  Geaelze,  212. 

'Hen.  I,  vii,  4,  7 ;  li,  2 :  Schmid,  Geseite,  440,  457 ;  Stubbs,  Const.  Hist., 
I,  102-3. 

«Aethelst.,  II,  3;  Eadgar,  III,  2;  Canute,  II,  17,  19:  Schmid,  Gtsetxc,  132, 
189,  281.  Cf.  Stubbs,  Const.  Hist.,  I,  104. 

5  Stubbs,  Const.  Hist.,  I,  104;  Eadgar,  I,  7:  Schmid,  Geaelze,  184;  Waitz, 
Verfogsungsgesch.,  IV,  333. 

'Const.  Hist.,  I,  103. 


268     Evolution  and  Decay  of  the  Hundred  Organism. 

accuse  no  innocent  man,  nor  conceal  any  guilty  one ; " l  also 
with  the  twelve  witnesses  of  the  laws  of  Eadgar  "before  whom 
all  bargains  and  sales  are  to  be  transacted." 2  Moreover  he 
suggests  that  they  are  the  prototype  of  the  twelve  legal  men 
of  the  hundred  "  who  are  directed  in  the  Assize  of  Clarendom 
to  act  as  part  of  the  grand  jury  before  the  judges  in  Eyre,  and 
who  play  so  important  a  part  in  the  legal  reforms  of  Henry  II 
and  his  ministers."  3 

Without  doubt  the  primitive  hundredgemot,  like  the  mal- 
lus,  was  held  in  the  open  air,  on  a  hillock,  at  a  ford,  under  the 
spreading  branches  of  an  oak,  or  on  some  other  convenient 
spot  chosen  especially  for  the  purpose;4  and  it  is  not  improb- 
able that  it  was  presided  over  by  the  hundredman  nominated 
by  the  voice  of  the  freemen.  But  during  historic  times  it  is 
doubtful  whether  the  hundredman  was  president  of  the  court. 
The  ancient  democratic  constitution  was  already  falling  into 
decay.  The  hundreds  were  themselves  passing  into  the  hands 
of  the  great  lords,  thus  becoming  the  foundation  of  the  later 
liberties  or  manors ;  and  it  is  possible  that  the  lord  or  his 
steward  may  have  acted  as  chairman  of  the  gemot.5 

But  the  hundred  was  not  exclusively  a  judicial  organiza- 
tion. When  taxation  began  under  Aethelred,  the  hundreds, 
in  groups  of  three,  were  made  the  area  for  levying  the  ship- 
money  ;  and  this  area,  as  we  have  seen,  was  probably  called 
a  wapentake  in  the  Danish  shires.  Long  before  this  time  the 
sheriff  may  have  accounted  to  the  crown  for  the  profits  of  the 
hundred,  whatever  they  might  be.6  Besides  it  is  worthy  of 


Stubbs,  Const.  Hist.,  I,  103.    Cf.  Aethelred,  III,  3:  Schmid,  Gesetze,  212; 
Thorpe,  Anc.  Laws,  I,  294. 

2  Eadgar,  IV,  3-6:  Schmid,  Gesetze,  196;  Thorpe,  Anc.  Laws,  I,  274. 

3  Stubbs,  Const.  Hist.,  I,  103.    The  text  of  the  Assize  is  contained  in  his 
Select  Charters,  143. 

4  On  the  open-air  meetings  of  the  hundred  and  their  late  survival,  see 
Gomme,  Primitive  Folk-Moots,  104-12,  214-23 ;   Taylor,  Words  and  Places, 
197. 

5Cf.  Stubbs,  Const.  Hist.,  101-2,  106. 
6  Stubbs,  Const.  Hist.,  I,  105. 


The  Old  English  Hundred.  269 

note,  that  after  the'Conquest  it  continued  to  be  employed  as  a 
fiscal  unit.1 

The  hundred  was  also  used  as  the  unit  of  the  police  admin- 
istration. The  hundredman  was  the  direct  predecessor  of  the 
Norman  high  constable ;  and  to  him  in  connection  with  the 
town  constable  or  tithingraan  the  maintenance  of  the  peace 
was  particularly  entrusted.3  The  celebrated  constitutio  de 
hundredis  of  Eadgar  is  largely  concerned  with  the  pursuit 
and  punishment  of  thieves.  In  case  of  need,  the  hundred- 
man is  to  be  informed  of  the  theft,  he  shall  make  it  known  to 
the  tithingmen  and  all  shall  go  forth  where  God  directs  to  do 
justice  upon  the  transgressor.3 

(6). — Dissolution  of  the  Organism. 

After  the  Norman  Conquest  the  hundred,  like  other  local 
bodies,  seems  to  have  fallen  into  decay ;  but  it  was  restored  by 
Henry  I,  "  as  in  the  time  of  Edward  the  Confessor."  ^  The 
presiding  officer  henceforth  is  usually  the  bailiff,  appointed  by 


1This  is  seen  in  several  ways.  1.  Amercements  were  sometimes  made 
by  hundreds  even  when  the  latter  were  parts  of  a  barony :  Palgrave,  Com- 
monwealth, II,  351 ;  Stubbs,  Const.  Hist.,  I,  102,  note  2;  and  see  examples  in 
Madox,  Htil.  of  Ex.,  374,  393,  etc.  2.  The  boroughs  were  let  at  fee-farm, 
and  the  larger  boroughs  were  really  hundreds  or  groups  of  hundreds.  3. 
It  is  probable  that  the  sheriff  got  in  the  ferm  of  the  shire,  at  least  in  part, 
by  hundreds. 

2  Kemble,  Saxons,  I,  255  ff. 

'Thorpe,  Anc.  Laws,  I,  259;  Select  Charters,  68.  On  the  old  English 
hundred,  see  further,  Palgrave,  Commonwealth,  I,  Chap.  Ill ;  Phillips,  Ang. 
Sax.  Recht*ge*ch.,  82,  170;  Hallam,  Middle  Ages,  II,  265  ff.;  Gneist,  Self- 
government,  II,  17  ff. ;  Const.  History,  I,  6,  47-50;  Creasy,  Hist,  of  England, 
I,  168-9,  179,  329;  Barnes,  Origin  of  Hundred  and  Tithing:  Journal  of  Brit. 
Arch.  Association,  1872;  Freeman,  Norman  Conquest,  I,  66;  Taswell-Lang- 
mead,  Const.  Hist.,  16-17,  37. 

For  an  excellent  discussion  of  the  question  of  the  constitutional  position 
of  the  hundred  as  compared  with  that  of  the  town,  see  Prof.  Allen's  Town, 
Township  and  Tithing. 

4  Stubbs,  Select  Charter*,  103-4. 


270     Evolution  and  Decay  of  the  Hundred  Organism. 

the  king  or  the  lord  of  the  franchise :  for  the  hundred  rapidly 
passes  into  the  hands  of  the  territorial  magnates.1  But  the 
primitive  ealdorman  still  survives,  as  late  at  least,  as  the  reign 
of  Edward  I ;  and  it  is  remarkable  that  he  now  appears  as  the 
elected  representative  of  his  district  in  the  shiremoot.2  How- 
ever the  most  important  officer  of  the  mediaeval  hundred  is 
the  constable,  who  is  first  mentioned  by  that  name  in  the 
statute  of  "Winchester,  1285;  and  who,  from  the  early  years 
of  Edward  III,  is  usually  styled  the  "high  constable"  as  dis- 
tinguished from  the  "  petty  constable  "  of  the  township.  He 
is  the  peace  magistrate  of  the  district  chosen  by  the  freemen,3 
and  may  therefore  be  regarded  as  the  successor  of  the  elected 
ealdorman,  surviving  side  by  side  with  the  appointed  bailiff; 
just  as,  in  a  much  earlier  period,  the  sacebaro  of  the  Frankish 
king  sat  with  the  elected  centenarius  in  the  mallus,  though  the 
English  bailiff,  unlike  the  sacebaro,  is  president  of  the  moot.4 
From  the  time  of  Henry  I,  the  hundred  possesses  two  courts : 
the  lesser  or  monthly  court,  in  which  the  bailiff  presides  and 
the  suitors  themselves  are  judges;  and  the  great  court  of  the 
hundred,  known  eventually  as  the  sheriff's  tourn  and  leet.5 
The  business  of  the  lesser  or  popular  body  consists  almost 
wholly  of  the  collection  of  small  debts.6  On  the  other  hand 
the  tourn  is  an  itinerant  branch  of  the  county  court,  held  twice 
a  year  by  the  sheriff  in  each  hundred  of  the  shire.  It  possesses 


Stubbs,  Const.  Hist.,  I,  400.  The  hundred  rolls  show,  that  after  the 
hundreds  passed  into  private  hands,  the  bailiffs  often  exercised  jurisdiction, 
chiefly  as  a  means  of  extortion:  Stephen,  Hist,  of  Criminal  Law,  I,  130-2. 

2  The  elective  ealdorman  existed  in  Essex  and  probably  elsewhere :  Pal- 
grave,  Commonwealth,  I,  635;  II,  351.    Cf.  Leges  Hen.  I,  c.  VIII,  1:  Schmid, 
Geselze,  440;  also  extracts  from  hundred  rolls  in  Stubbs,  Const.  Hist.,  I,  102, 
note  2. 

3  Later  the  high  constable  was  usually  appointed  by  the  quarter  sessions. 
There  were  often  two  for  each  hundred:  Gneist.  Selfgovernment  (1871),  441. 

4  On  the  high  constable  see  Lambard,  Duties  of  Constables,  5  ff. ;  Gneist, 
Selfgavernment,  II,  50;  edition  of  1871,  441  ff. 

&'Leges  Hen.  I,  c.  VII,  4;   VIII,  1 :  Schmid,  Geseize,  440-1. 
6  Stubbs,  Const.  Hist.,  I,  398  ff. 


The  Old  English  Hundred.  271 

an  important  criminal  jurisdiction,  and  is  especially  entrusted 
with  the  view  of  frankpledge  and  the  general  maintenance  of 
the  peace.1 

For  sometime,  therefore,  subsequent  to  the  reign  of  Henry 
I,  the  hundred  courts  retained  their  ancient  character  as  folk- 
moots;  but,  after  the  beginning  of  the  thirteenth  century,  they 
fell  rapidly  into  decay.  The  sheriff  lost  his  criminal  jurisdic- 
tion in  the  tourn,  and  the  oversight  of  the  peace  administration 
passed  into  the  hands  of  the  justices.  Suitors  refused  to  attend 
the  sessions ;  and  various  classes  of  persons  were  excused  from 
attendance  by  statute.2  Several  efforts  were  made  to  reinvig- 
orate  the  decaying  organization,  for  example,  under  Henry  III 
and  Edward  III ;*  and,  even  as  late  as  Edward  VI,  it  was 
enacted  that  the  '  county  courts ' — as  the  hundred  courts  are 
here  called — should  be  held  monthly  and  not  every  six  weeks, 
as  it  seems  had  been  the  practice.4 

But  every  attempt  to  stay  the  dissolution  of  the  hundred 
failed ;  and  the  institution  has  now  but  a  nominal  existence. 
Until  1844  the  high  constable  continued  to  collect  the  county 
rate;  but  in  1869  the  office  was  permissively  abolished;5  and 
so  the  only  surviving  importance  of  the  hundred  is  its  liability, 
under  the  act  of  1827  and  various  subsequent  statutes,  "  to 
make  compensation  for  damage  done  by  rioters  within  its 
limits."  And  even  this  requirement  is  practically  a  dead 
letter.6 


'Gneist,  Sflfgov.,  II,  28  ff. ;  Stephen,  Hist,  of  Grim.  Law,  I,  65. 

'The  statute  of  Merton,  1230,  allowed  freemen  to  appear  by  attorney  in 
local  courts;  and  by  the  Statute  of  Marlborough,  1267,  all  above  the  rank 
of  knights  were  excused  from  attendance  on  the  tourn:  Stubbs,  Const.  Hist., 
II,  205-6. 

'See  extracts  from  the  statutes  in  Toulmin  Smith,  Local  Government, 
219-20.  Stubbs,  Const,  hist.,  II,  382. 

4  Toulmin  Smith,  Local  Govt.,  221. 

5The  quarter  sessions  may  discontinue  the  office  of  high  constable  in  any 
hundred  of  the  county  when  they  think  proper:  P.  V.  Smith,  Hist,  of  Eng. 
InsL,  107 ;  Chalmers,  Local  Govt,  40;  Gneist,  Sclfgov.  (1871),  442  ff. 

•Chalmers,  Local  Govt.,  18;  Gneist,  Selfyov.  (1871),  346,  note.  See  the 
table  of  hundreds  as  arranged  in  shires,  1851 :  Ib.,  82-3. 


272     Evolution  and  Decay  of  the  Hundred  Organism. 

IV.— EISE  AND  DECAY  OF  THE  HUNDRED  IN  THE 
AMERICAN  COLONIES. 

(a). — The  Name  Hundred  in  Maine  and  Virginia. 

When  English  colonization  of  America  began  in  the  seven- 
teenth century,  the  hundred  constitution  was  already  far 
advanced  in  process  of  dissolution.  In  New  England  the 
town  struck  vigorous  root ;  and  this  form  of  local  government, 
in  co-operation  with  the  shire  for  certain  purposes,  seemed 
adequate  to  the  political  requirements  of  the  new  settlements. 
The  history  of  the  hundred  in  the  northern  colonies  is  little 
more  than  the  history  of  a  name.  The  Council  for  New 
England,  as  we  have  seen,1  contemplated  the  division  of  their 
domain  into  baronies,  counties,  hundreds,  and  manors;  but 
the  scheme  was  never  carried  out.  Sir  Ferdiuando  Gorges 
seems  to  tell  us  that  he  actually  divided  his  jurisdiction  in 
Maine  into  eight  counties  or  bailiwicks,  and  these  again  into 
"sixteen  several  hundreds."  These  hundreds  stood  in  a  definite 
relation  to  the  parishes  and  tithings  which  were  instituted 
"as  the  population  did  increase  and  the  provinces  were  in- 
habited." Thus  each  hundred  was  to  have  two  head  constables 
assigned,  and  every  parish  one  constable  and  four  tithingmen. 
The  tithingmen  were  to  account  to  the  parish  constable  for  the 
demeanor  of  the  householders  within  their  respective  tithings, 
and  the  parish  constable,  in  turn,  was  expected  to  make  a  similar 
report  to  the  head  constables  of  the  hundred,  "  who  shall  pre- 
sent the  same  to  the  lieutenant  and  justices  at  their  next  sitting 
or  before  if  cause  require."  Here  we  have  an  ideal  system  of 
frankpledge  or  gesammtburgschaft  which  probably  never  existed 
in  such  symmetry  anywhere.  And  it  is  not  unlikely  that  Sir 
Ferdinando  means  simply  to  say,  that  he  has  drafted  a  "paper 


'Chap.  Ill,  v. 


The  Hundred  in  tlie  American  Colonies.  273 

constitution  "  of  this  character,  possibly  as  an  inducement  to 
immigration.1 

In  Virginia  the  county  and  parish  eventually  absorbed  all 
of  the  functions  of  local  government.  But  in  the  early  records, 
before  the  county  was  instituted,  'hundred'  is  employed  co-or- 
dinately with  ' plantation  '  and  'parish'  for  the  great  estates  or 
scattered  settlements  established  after  the  foundation  of  James- 
town. Accordingly  in  1619,  when  the  first  assembly  of  bur- 
gesses was  calledj  side  by  side  with  the  representatives  of  the 
'  cities,'  '  plantations,'  and  '  gifts,'  appeared  two  burgesses  for 
each  of  three  'hundreds.'2  In  like  manner  burgesses  for 
various  hundreds  were  returned  to  several  later  assemblies 
previous  to  1634,  when  the  shire  was  adopted  as  the  area  of 
representation  .* 

The  Virginia  hundred  had  no  organization,  unless  indeed 
the  "commander  of  plantations  "  may  be  regarded  as  identical 
with  the  ancient  hundredman.  The  commander  was  appointed 
and  commissioned  by  the  governor,  and  performed  various 
military,  police,  and  even  judicial  functions.4  Again,  only  in 
a  restricted  sense  can  the  hundred  be  regarded  as  the  election 


1  The  knight  is  confusing  in  his  use  of  tenses.  See  his  Description  of  New 
England  in  3  Mass.  Hist.  Coll.,  VI,  83-5.  Cf.  Chap.  Ill,  i. 

»  Fa.  Coll.  Records,  9-10. 

1  Hening,  Statutes,  I,  147-9  (1629),  153-4  (1631-2),  178-9  (1632),  202-3 
(1632-3),  224.  Cf.  Ingle,  Local  Ins.t.  of  Fa.,  45.  Representatives  from 
'parishes'  are  first  mentioned  in  Feb.,  1631-2:  the  "Upper"  and  "Lower" 
parishes  of  Elizabeth  City:  Hening,  I,  154.  These  are  called  'paries'  in 
1629-30:  16.,  I,  149. 

4  Hening,  Statutes,  I,  125,  126,  127,  131.  The  commander  was  also  re- 
quired to  take  the  census  (76.,  174-5),  and  see  that  the  people  attend 
church  (Ib.,  144).  Cf.  Cooke,  Virginia,  91.  Mr.  Ingle,  Local  Institutions  of 
Fa.,  46,  seems  to  doubt  whether  there  is  any  analogy  between  the  com- 
mander and  the  hundredman,  because  the  former  was  an  appointed  and  not 
an  elective  officer.  But  it  is  by  no  means  certain  that  the  hundredman  of 
the  laws  of  Eadgar  was  chosen  by  the  people.  Cf.  Stubbs,  Const.  Hist.,  I, 
102-3.  Perhaps  the  prototype  of  the  commander  is  the  bailiff  of  the  Nor- 
man hundred  after  it  became  a  manor;  but  the  office  of  bailiff  is  a  differ- 
entiated form  of  the  office  of  hundredman. 

18 


274     Evolution  and  Decay  of  the  Hundred  Organism. 

district ;  for  the  name  is  but  one  among  several  descriptions 
of  the  settlements  from  which  the  early  burgesses  were  sent. 
It  would  seem  that  if  any  common  technical  designation  were 
recognized  for  the  representative  unit  as  such,  at  least  in  1619, 
it  must  have  been  borough.1 


(b). — The  Hundred  in  Maryland. 

Almost  from  the  very  first  settlement  in  Maryland  the  hun- 
dred became  an  important  and  vigorous  local  organization, 
taking  the  place,  in  some  measure,  of  the  township,  and  dis- 
charging functions  which  it  had  long  ceased  to  perform,  or 
never  had  performed,  in  the  mother  country.2  It  was  proba- 
bly the  first  local  division  established  in  the  province.  In  the 
minutes  of  the  assembly  which  met  at  St.  Mary's,  January, 
1637/8 — the  first  assembly  whose  records  have  been  pre- 
served— the  freemen  not  summoned  by  special  writ  are  men- 
tioned according  to  the  respective  hundreds  in  which  they 
resided;3  and  in  the  same  minutes  the  word  "county"  first 
appears.4 


1 "  Counties  were  not  yet  laid  off,  but  they  elected  their  representatives 
by  townships.  So  that  the  boroughs  of  Jamestown,  Henrico,  Bermuda  Hun- 
dreds, and  the  rest,  each  sent  their  members  to  the  assembly.  And  hence 
it  is,  that  our  Lower  House  of  Assembly  was  first  called  the  House  of  Bur- 
gesses : "  Stith,  Hist.,  160.  Cf.  Hening,  Statutes,  I,  119-20 ;  Va.  Col.  Rec.,  81. 
In  1619,  the  name  hundred  may  already  have  been  customarily  used  for  the 
actual  village  or  collection  of  houses,  rather  than  for  a  whole  estate  or  dis- 
trict. Cf.  Ingle,  Local  Inst.  of  Va.,  44 ;  and  on  the  whole  subject,  Burke, 
Hist.,  I,  202-3;  Beverley,  Hist.,  37;  Doyle,  Eng.  Colonies,  I,  158  f. ;  Chan- 
ning,  Town  and  County  GovL,  42;  Cooke,  Virginia,  115  f.;  Hildreth,  Hist,  of 
U.  S.,  I,  118;  Campbell,  Hist,  of  Va.,  139;  Va.  Col.  Rec.,  69-82. 

2  Dr.  Wilhelm's  Local  Institutions  of  Maryland  has  been  of  constant  service 
in  the  preparation  of  this  sketch.  But  the  Proceedings  and  Acts  of  the  Assem- 
bly, and  the  Proceedings  of  the  Council,  in  Browne's  Archives  of  Maryland,  have 
been  diligently  searched.  I  have  also  used  Bacon's  Laws  of  Maryland;  Boz- 
man's  History  of  Maryland,  and  other  authorities. 

s  Archives,  1637/8,  pp.  2-4. 

4  Archives,  p.  2. 


The  Hundred  in  Hie  American  Colonies.  275 

The  original  settlers  arrived  in  the  province  March,  1634, 
:unl  before  the  first  county — St.  Mary's — was  erected,  several 
hundmls  had  probably  been  organized.1  At  a  later  day  the 
freemen  of  St.  Mary's  hundred  declared  that  it  was  the  "  anti- 
entest  hundred  and  the  first  seated  within  this  province."2 
New  hundreds  were  organized,  as  the  settlements  extended 
and  population  increased,  under  authority  of  the  governor's 
proclamation.3  But  for  a  long  time  St.  Mary's  was  the  only 
county  subdivided.4  To  the  assembly  of  1638/9,  as  directed 
in  the  writs  of  summons,9  representative  burgesses  were  returned 
according  to  hundreds;  and  the  first  act  passed  during  the 
session  was  one  "  for  establishing  the  house  of  assembly  and 
the  laws  to  be  made  therein."  In  this  it  was  declared  that  the 
delegates  of  the  hundreds  and  others  returned  to  the  assembly 
in  pursuance  of  the  writs,  "  shall  be  and  be  called  burgesses," 
in  all  respects  as  the  burgesses  of  any  borough  in  the  English 
Parliament.6  In  form  the  act  related  merely  to  the  assembly 
of  1638/9;  but  it  was  probably  intended  to  establish  a  general 


lOn  the  origin  of  the  Maryland  hundreds  see  Wilhelm,  39  ff.,  65;  Bozman, 
Hist,  of  Aid.,  II,  45  ff.  Doyle,  Eng.  Colonies,  I,  286;  Browne,  Maryland,  48; 
Hanson,  Old  Kent,  7-10. 

*  Archives,  1650,  p.  260. 

'See,  for  example,  the  proclamation  creating  St.  George's  hundred :  Procds. 
of  Council,  1638,  p.  70,  and  St.  Clement's  hundred :  Ib.,  p.  89;  Bozman,  Hist. 
o/Md.,  11,45. 

*  As  late  as  1651,  according  to  Wilhelm,  p.  45.    This  appears  from  Archives, 
1650/1,  p.  313.    In  1665  Charles,  Calvert,  Anne  Arundel,  and  Kent  were 
already  divided  into  hundreds:  Procds.  of  Council,  p.  532. 

8  Archives,  1638/9,  pp.  27-8.  Wilhelm,  Local  Inst.  of  Md.,  42,  says  the 
hundred  was  made  the  election  district  by  an  order  in  council.  I  do  not 
find  the  order  in  the  Proceedings  of  the  Council.  The  writs  of  the  governor 
seem  rather  to  have  been  issued  under  authority  of  the  letter  of  Lord  Balti- 
more, Aug.  21,  1638,  granting  the  assembly  the  right  to  make  laws,  when 
approved  by  the  major  part  of  the  freemen  or  their  deputies.  See  Bozman, 
Hist,  of  Md.,  II,  94-96. 

'  Archives,  1638/9,  pp.  81-82.  This  act  became  a  law  and  is  regarded  as 
the  "constitutive  act."  Bozman,  Hist,  of  Md.,  II,  101  ff.;  Bacon,  Laws  of 
Maryland,  1638,  c.  I. 


276     Evolution  and  Decay  of  the  Hundred  Organism. 

rule.1  Thus  by  implication  the  hundred  was  made  the  repre- 
sentative district.  However,  another  measure  proposed  by  the 
same  assembly  was  more  explicit,  and  was  doubtless  intended 
to  supplement  the  preceding  enactment.  The  freemen  of  each 
hundred,  when  summoned  to  a  certain  place  by  the  commander, 
or  in  "  defect "  of  a  commander,  by  the  high  constable,  or  by 
the  sheriff  in  case  there  be  no  constable, — were  empowered  to 
"  elect  and  choose  some  one,  two  or  more  able  and  sufficient 
men"  to  represent  them  in  the  assembly.2  This  bill,  for  some 
unknown  reason,  did  not  become  a  law ; 3  but  thereafter  the 
writs  of  the  governor  for  the  election  of  burgesses  were  issued 
entirely  in  accordance  with  its  spirit.  No  definite  apportion- 
ment of  delegates  according  to  population  was  made ;  but 
usually  one  or  two  for  each  hundred  were  returned,  and  some- 
times the  number  was  specified  in  the  writs  of  summons.4 

The  hundred  remained  the  election  district  until  1654,  when 
the  commissioners  of  Cromwell  substituted  county  representa- 
tion;5 and  from  the  resumption  of  the  proprietary  government 
by  Lord  Baltimore  in  1658,  burgesses  were  always  returned  by 


1  Bozman,  Hist,  of  Md.,  II,  102  ff.,  has  an  interesting  discussion  of  this 
statute. 

2  Archives,  1638/9,  p.  74. 

3  This  act  and  the  militia  act,  hereafter  discussed,  were  two  of  the  36  bills 
which  according  to  Bozman,  were  "  engrossed  for  a  third  reading,"  but,  for 
some  unexplained  reason,  did  not  receive  the  final  approval  of  the  house  : 
Hist,  of  Md.,  II,  106,  note,  104.    Dr.  Wilhelm— pp.  44,  52 — is  in  error  when 
he  states,  on  the  authority  of  Bozman,  that  these  two  acts  were  vetoed  by 
the  Proprietary ;  but  all  the  acts  of  the  assembly  of  1637/8  were  rejected 
by  him :  Bozman,  Hist,  of  Md.,  II,  67.    It  may  be  noted,  however,  that  both 
acts  are  included  by  Mr.  Browne  in  his  index  to  bills  passed.     See  the  list 
of  the  36  bills  in  Bacon's  Laws  of  Maryland,  1638. 

4  See,  for  example,  the  writs  to  the  assembly  of  1640 :  Archives,  pp.  87  ff. ; 
and  of  1641/2:  Ib.,  pp.  113  ff. 

5.Archives,  1654,  p.  340 :  two  burgesses  were  returned  for  St.  Mary's  county ; 
but  none  for  other  counties  are  mentioned.  During  the  session  an  act  was 
passed  by  which  county  representation  seems  to  be  instituted :  Archives,  p. 
341-2. 


77i«  Hundred  in  the  American  Colonies.   '         277 

count  its,1  though,  possibly,  the  hundreds  were  still  used  as 
polling  districts.2 

The  use  of  the  hundred  as  the  unit  of  higher  representation 
was  an  innovation  upon  the  English  custom ;  though,  as  we 
have  seen,  at  a  comparatively  late  date,  the  ealdor  appeared 
for  his  hundred  in  the  county  court :  and  this  may  remind  us 
of  the  position  of  the  princeps  in  the  council  of  the  ancient 
volkerschaft. 

In  Maryland  the  hundred  was  also  employed  as  the  fiscal 
unit;  and  its  functions  in  this  regard  were  very  important. 
Direct  taxes  for  the  support  of  the  government  were  appor- 
tioned among  the  hundreds;  and  for  this  purpose  the  respective 
high  constables  were  required  to  take  a  census  of  "  taxables  " 
and  "  tithables  : "  for  in  Maryland  as  in  Virginia  a  rate  upon 
polls  constituted  the  usual,  if  not  the  only,  mode  of  taxation.3 
The  levy  for  the  entire  province  was  made  by  a  commission, 
generally  consisting  of  one  or  more  representatives  from  every 
hundred,  or  from  every  county  not  yet  subdivided  into  hun- 
dreds ;  *  and  an  order  of  the  assembly  in  1 649  shows  that  these 
commissioners  were  elected  by  the  people.5 

During  the  eighteenth  century,  previous  to  the  Revolution, 
the  levy  of  the  public  or  county  charge  was  made  by  the 
commissioners  or  justices  of  the  county  court;6  but  the  con- 
stables of  the  hundreds  continued  to  take  the  lists  of  taxables 
as  in  early  days.7 


1  Archive*,  Mch.,  1657,  p.  369. 
1  Wilhelm,  Local  Inst.,  45. 

3  See  the  "Act  concerning  taxable  persons,"  Archives,  1662,  p.  449.    Tax- 
ables are  here  defined  as  all  "  male  children  borne  in  the  province,"  of  16 
years  and  upwards;  all  male  servants  imported  "att  or  before  the  age  of 
tenn  yeares ; "  and  all  slaves,  male  or  female,  of  ten  years  and  upwards. 
Cf.  /&.,  537.    Dr.  Wilhelm,  Local  Inst.,  47,  as  examples  of  levies  on  the  poll, 
cites  Archives,  1647/8,  p.  232:  1649,  p.  237 ;  1650,  p.  269;  1663,  p.  506. 

4  Wilhelm,  Loca/  Inst,  46-7  ;  Archives,  1642,  p.  142. 
• Archives,  1649,  p.  238.    Cf.  Ib.,  1650,  p.  298. 

8  Bacon,  Laws  of  Maryland,  Act  of  1704,  c.  34 ;  Act  of  1748,  c.  20. 

7  Bacon,  Laws  of  Md.,  Act  of  1715,  c.  15,  g  3 ;  Act  of  1719,  c.  12,  |§  1,  6,  7. 


278      Evolution  and  Decay  of  the  Hundred  Oi'ganism. 

The  hundred  was  also  employed  in  Maryland  as  the 
military  unit — a  revival  in  the  new  world  of  one  of  its  most 
ancient  and  characteristic  functions.  The  first  measure  pro- 
posed by  the  assembly  relating  to  the  militia  is  conceived  in 
the  spirit  of  Assize  of  Arms.  It  is  provided  that u  every  house- 
keeper or  housekeepers  within  this  Province  shall  have  ready 
continually  upon  all  occasions  within  his,  her,  or  their  house, 
.  .  .  for  every  person  able  to  bear  armes,  one  serviceable  fixed 
gunne  of  bastard  muskett  boare,  one  pair  of  bandeleers  or  shott 
bagg,  one  pound  of  good  powder,  foure  pound  of  pistol  or 
muskett  shott,  and  sufficient  quantity  of  match  for  match  locks 
and  of  flints  for  firelocks,  and  before  Christmas  next  ...  a 
sword  and  belt."  Once  a  month  the  captain  of  the  band  or 
other  officer  is  required  to  demand  at  every  dwelling  house  a 
view  of  arms;  and  those  found  "deficient"  are  to  be  amerced 
"  in  his  discretion  so  it  exceed  not  thirty  pound  of  tobacco  for 
one  default."  Upon  any  alarm  every  householder  of  every 
hundred  is  to  send  to  the  place  appointed  one  man  completely 
armed  for  every  three  or  more  men  in  his  family  able  to  bear 
arms,  or  two  for  every  five,  and  so  "  proportionably." ]  This 
bill  did  not  become  a  law;2  but  similar  provisions  were  subse- 
quently embodied  in  the  orders  of  the  council  and  acts  of  the 
assembly.3 

At  an  early  day  the  hundred  became  the  militia  district,  each 
being  required  to  maintain  its  "trained  band."  The  band  was 
commanded  and  disciplined  by  officers  appointed  usually  by 
the  governor  in  council.4 


1  Archives,  1638/9,  pp.  77-8;  also  printed  in  Bozman,  Hist,  of  Md.,  II, 
Appendix,  pp.  609-10;  cf.  Ib.,  145,  163;  Wilhelm,  Local  Inst.,  52. 

2  It  was  one  of  the  "  engrossed  "  bills  already  mentioned.     Bozman,  Hist, 
of  Md.,  II,  106;  but  the  "captain  of  the  millitary  band"  is  given  power  to 
provide  for  the  safety  of  the  province  in  a  brief  clause  of  another  act,  which 
did  pass  on  the  last  day  of  the  session.    Archives,  p.  84 ;  Bozman,  II,  1 06. 

3  See,  for  example,  Archives,  1642,  pp.  196-7;  1649,  pp.  253-255;  1654,  p. 
347.     Proceedings  of  Council  (1636-1667),  pp.  86,  102  ff.,  107,  132,  163,  etc. 

4  See  the  commission  of  Jno.  Boteler  as  captain  of  Kent  Island  militia,  dated 
May  27,  1638 :  Procds.  of  Council,  p.  75.     This  is  the  first  act  of  the  council 


The  Hundred  in  the  American  Colonies.  279 

The  most  interesting  of  the  various  acts  relating  to  this 
subject  is  that  of  1G49,  where  the  assembly  of  freemen  in  each 
hundred  is  recognized  as  a  genuine  folkmoot  with  power  to 
enact  and  enforce  local  ordinances  relating  to  the  common 
safety.  Any  damage  to  individual  property  sustained  in  execu- 
tion of  such  by-laws  is  to  be  made  good  by  a  "  leavy  .  .  . 
upon  the  hundred  by  the  sheritfe"  and  "assessed  by  three 
able  persons  chosen  by  the  governor  .  .  .  out  of  some  other 
hundred."  The  «ry  of  danger  is  to  be  carried  from  hundred 
to  hundred  by  means  of  "  rounders."  The  discharge  of  five 
guns  or  more  by  such  rounders  is  to  constitute  "a  gencrall  and 
true  allarm  to  all  the  inhabitants  of  the  province;"  and  three 
guns  or  more  from  any  inhabitant  is  to  be  held  a  "true  allarm" 
in  like  manner.  Any  neglect  to  answer  the  signal  renders  the 
delinquent  liable  to  a  fine  of  one  hundred  pounds  of  "casked" 
tobacco.  Arms  and  ammunition  must  be  kept  ready  by  every 
householder.1 

The  hundred  remained  the  military  unit  throughout  the 
provincial  era ; 2  and  it  needs  but  a  glance  at  the  proceedings 
of  the  council  relating  to  the  Indian  troubles  to  discover  that 
the  function  was  very  important  and  frequently  called  into 
service.  Moreover  as  in  Virginia  the  militia  organization 
furnished  a  valuable  preparation  for  the  great  struggle  of  the 
Revolution.  "When  the  conflict  of  1776  began,"  says  Dr. 
Wilhelm,  "it  was  the  hundreds  of  Maryland  that  responded 
to  the  '  alarm '  sounded  by  the  towns  of  Massachusetts,  and 


relating  to  the  militia  in  Mr.  Browne's  collection.  Even  sergeants  were 
commissioned  by  the  governor:  Procds.  of  Council.,  pp.  104,  118.  See  also 
Ib.,  pp.  102,  103,  132-3,  1G3,  191,  282-90,  320,  344,  349,  350,  364,  523.  A 
comparison  of  these  passages  will  show  that  special  commissions  to  leaders 
of  expeditions  against  the  Indians,  granting  extraordinary  powers  to  "press" 
men  and  supplies,  were  often  issued;  and  that  the  hundred  is  clearly  recog- 
nized as  the  military  unit. 

1  Archives,  1649,  p.  253.     Compare  Bozman,  Hist,  of  Md,  II,  364  f. 

1  Wilhelm,  Local  Imt.,  54.  See  Bacon,  Lairs  of  Md.,  Act  of  1715,  c.  43, 
where,  however,  the  hundred  is  not  expressly  mentioned  as  the  militia 
district. 


280     Evolution  and  Decay  of  the  Hundred  Organism. 

that  echoed  the  news  to  the  counties  of  Virginia  and  the 
parishes  of  Carolina.  The  veterans  of  the  Indian  wars  and 
the  raw  recruits  of  the  militia  by  common  instinct  gathered 
together  in  their  respective  hundreds  to  answer  the  call  of 
their  New  England  comrades."1 

The  most  important  officer,  really  the  constitutive2  officer, 
of  the  hundred  was  the  high  constable.  He  was  originally 
appointed  by  the  governor,3  later  by  the  justices,4  and  per- 
formed a  variety  of  duties.  For  example,  he  received  and 
served  the  writs  of  election ; 6  took  the  census  of  taxables,6 
and  served  processes.  But,  as  in  the  mother  country,  his 
police  duties  were  most  important  and  characteristic.  He  was 
especially  entrusted  with  the  keeping  of  the  peace  and  the 
arrest  of  all  rioters  and  law  breakers.7 

Superior  to  the  constable,  apparently,  in  rank,  but  of  less 
constitutional  importance,  was  the  commander,  who  was  also 
appointed  by  the  governor.  Like  the  commander  of  the 
county,  he  was  a  kind  of  marshal  or  military  chief;  but  the 


1  Local  Institutions,  54. 

2  The  issue  of  the  commission  appointing  the  constable  seems  to  have  been 
the  first  step  in  the  organization  of  the  hundred.     See,  for  example,  the  com- 
mission of  Robert  Vaughan  as  "highe  constable"  of  St.  George's  hundred: 
Procds.  of  Council,  Jan.  5, 1637,  p.  59 ;  and  of  Jno.  Robinson  for  St.  Clement's : 
76.,  p.  89. 

3  But  the  justice  of  the  peace  of  St.  George's  hundred  was  once  commis- 
sioned to  appoint  the  constable :  Procds.  of  Council,  p.  70.     This  is  an  early 
precedent  for  the  later  practice  of  appointment  by  the  county  commissioners 
or  justices. 

4  Bacon,  Laws  of  Md.,  Act  of  1715,  c.  15.    The  assembly  attempted  to  vest 
the  appointment  of  constable  in  the  commander  of  the  hundred  but  the  act 
failed  to  pass:  Archives,  1638/9,  p.  55;  Bozman,  Hist  of  Md.,  II,  106. 

5  Examples,  Archives,  1641/2,  p.  115,  where  the  constable  of  St.  Clement's 
receives  a  writ  similar  to  that  of  the  sheriff  for  the  other  hundreds  of  St. 
Mary's  county  for  the  same  assembly.     Cf.  Bozman,  Hist,  of  Md.,  II,  190. 
In  1642  the  writs  were  apparently  issued  to  private  persons ;  but  some  of 
those  mentioned  may  have  been  constables:  Archives,  1642,  p.  128.     Later 
the  sheriff  was  the  returning  officer. 

6 Archives,  1676,  p.  538  ;  Procds.  of  Council.,  1652,  p.  288. 
7  See  the  oath  of  the  constable:  Archives,  1661,  p.  410. 


The  Hundred  in  the  American  Colonies.  281 

commander  of  Kent  had  also  the  general  administration  of 
justice — being,  in  fact,  a  deputy  governor.1  Commanders 
were  not  always  appointed,  and  in  that  case  the  duties  of  the 
office  devolved  upon  the  constable  or  the  sheriff.  Other 
officers  of  the  hundred  were  the  tobacco  viewer,2  the  tax 
assessor — the  only  elective  officer — and  the  road  overseer.3 

The  hundred  of  Maryland  was  a  living  organism,  in  char- 
acter reminding  one  far  more  of  the  institution  in  the  days  of 
Eadgar  than  in  those  of  the  Stuarts.  The  "  court "  for  the 
election  of  burgesses  or  assessors,  the  assembly  for  the  enact- 
ment of  by-laws,  and  even  the  meeting  to  frame  petitions  to 
the  assembly*  or  indite  an  address  to  the  king,5  each  dis- 
charged the  functions  of  a  real  folkmoot,  thus  in  part  sup- 
plying the  place  of  a  town-meeting  for  the  purposes  of  self- 
government.  But  after  the  Revolution  the  hundred  fell 
rapidly  into  decay,  surviving  for  a  time  only  as  a  constable's 
precinct;  and  the  constable  "had  degenerated  into  a  mere 
messenger  and  factotum  of  the  county  justices."  In  1824, 
finally  the  organization  became  entirely  extinct.6 

• 
(c). — The  Hundred  in  Delaware. 

The  three  counties  of  Kent,  Sussex,  and  New  Castle,  which 
constitute  the  present  state  of  Delaware,  were  included  in  the 
territory  claimed  by  William  Penn  ;  and  until  the  beginning 
of  the  eighteenth  century  they  remained  under  the  same  legis- 


1  See  the  commissions  to  Evelyn  and  Brent :  Proofs,  of  Council,  pp.  59,  88. 
Cf.  Bozman,  Hist,  of  Md.,  II,  614,  44,  138 ;  Wilhelm,  Local  InsL,  55-6.  The 
Vx>mmander  of  Kent  must  be  distinguished  from  the  captain  of  the  "  band :  " 
see  Holder's  commission  as  captain :  Procds.  of  Council,  p.  75. 

1  Archives,  1640,  p.  97. 

*  Wilhelm,  Local  Inst.,  60,  note  5.     A  justice  of  the  peace  was  appointed 
for  St.  George's  hundred :  Procds.  of  Council,  p.  70. 

*  Wilhelm,  Local  InsL,  55,  58.    He  cites  examples  in  Archives,  1676,  p.  498. 
6  Wilhelm,  Local  Inst.,  58. 

6  Wilhelm,  Local  Inst.,  62-3.    Cf.  Laws  of  Maryland,  1824. 


282     Evolution  and  Decay  of  the  Hundred  Organism. 

lative  control  as  Pennsylvania.  After  their  erection  into  a 
separate  government  with  a  legislature  of  their  own,  their 
institutional  history  runs  parallel,  in  some  measure,  to  that  of 
the  larger  colony.  This  is  true  especially  of  county  organiza- 
tion. In  Pennsylvania  local  government  is  at  first  lodged 
almost  exclusively  in  the  hands  of  the  county  authorities ;  but 
little  by  little  the  township  is  allowed  to  participate  in  the 
work  of  administration,  until  at  the  Revolution  there  is  a  fair 
balance  of  power  between  the  two  bodies. 

A  similar  process  takes  place  in  Delaware.  Local  authority 
at  first  centers  in  the  county  court  of  quarter  sessions ;  but  in 
this  instance  hundred  and  not  township  is  the  name  of  the  sub- 
ordinate division  which  is  gradually  employed  for  a  variety  of 
administrative  purposes.  The  hundred  of  Delaware,  however, 
is  really  a  township  with  limited  powers.  Unlike  the  early 
hundred  of  Maryland  it  has  no  folkmoot ;  but  its  relation  to 
the  county  is  entirely  analogous  to  that  of  the  township  in 
Pennsylvania  and  those  western  states  which  have  taken  her 
institutions  as  a  model.1 

The  division  of  the  counties  into  hundreds  may  have  existed 
from  the  beginning  of  the  eighteenth  century.  At  any  rate,  it 
had  occurred  before  1740,  when  the  courts  of  quarter  sessions 
were  authorized  to  appoint  a  suitable  number  of  fence  viewers 
for  each  hundred  of  their  respective  counties.2 

The  hundred  was  also  employed  as  a  highway  district.  By 
an  act  of  25  George  II,  the  quarter  sessions,  at  their  May 
meeting,  are  required  to  appoint  in  each  hundred  "  one  or 
more  discreet  and  substantial  .  .  .  inhabitants  to  be  ... 
overseers  of  highways,  causeways,  and  bridges,"  with  the 
usual  powers.3  Subsequently  the  right  of  appointment  was 
transferred  to  the  levy  court.4  Moreover  in  1796  a  dual  sys- 


1  Cf.  Chap.  IV,  n,  (a). 

2  By  13  Geo.  II:  Laws  of  Delaware,  1700-1796, 1,  181.    This  is  the  first 
mention  of  the  hundred  which  I  find  in  the  laws. 

3  Laws  of  Delaware,  I,  316-24. 
*Laws  of  Delaware,  II,  1280  (1796). 


The* Hundred  in  the  American  Colonies.  283 

tern  of  road  administration  seems  to  have  been  instituted. 
Three  "commissioners  of  roads"  are  periodically  appointed 
for  every  hundred  by  the  levy  court  of  the  county ;  and  the 
overseers  are  placed  under  their  general  control.1 

In  like  manner  overseers  of  the  poor  were  nominated  for 
the  hundreds.  An  act  of  1775  provides  that  each  overseer 
for  the  time  being  shall  report  the  names  of  three  electors  of 
his  hundred  to  the  justices  who  shall  appoint  one  of  them  as 
overseer  for  the  ensuing  year.2  But  in  1792  the  duties  of  the 
office  were  transferred  to  the  constables  of  the  various  hun- 
dredss  Each  hundred  has  one  constable  appointed  annually 
by  the  quarter  sessions  from  a  list  of  three  freeholders,  which, 
as  in  the  case  of  the  overseer  of  the  poor,  is  presented  by  the 
retiring  officer.4  The  constable  is  required  to  reside  in  his 
hundred;5  and  vacancies  in  the  office  may  be  filled  by  the 
next  three  justices  of  the  peace.6 

The  only  elective  officers  of  the  Delaware  hundred  are  the 
assessor  of  taxes  and  the  inspector  of  elections.7  The  procedure 
observed  in  the  election  of  members  of  the  assembly  is  similar 
to  that  adopted  in  Pennsylvania  by  the  act  of  1766,  though 
differing  somewhat  in  detail.8  The  names  of  the  persons  chosen 
a.-  inspectors  are  returned  by  the  judges  of  election  in  the 
respective  hundreds  to  the  sheriff  or  other  election  judge  of 
the  county,  by  whom  they  are  proclaimed  on  the  morning 
of  election  day  in  presence  of  the  assembled  voters.9  All  the 

'So  in  Sussex  and  Kent:  Laws  of  Delaware,  II,  1267,  1281-2.  Mention  is 
also  made  of  road  commissioners  appointed  for  each  hundred  by  the  assem- 
bly, vacancies  to  be  filled  by  the  levy  court:  16.,  II,  1263  ff.,  1275  ff. 

7  Laws  of  Delaware,  I,  544-561.  Overseers  of  the  poor  are  also  mentioned 
in  1764:  76.,  414-15. 

*L(tws  of  Delaware,  II,  1040. 

'Laws  of  Delaware,  I,  476-7  (1770). 

5  Laws  of  Delaware,  II,  935. 

6  Laws  of  Delaware,  I,  478. 

7  Laws  of  Delaware,  I,  429  ff.,  (1766). 
8 See  Chap.  VIII,  in,  («). 

9  In  the  hundred,  the  judge  of  elections,  in  choosing  assessors  and  inspectors, 
was  the  collector  of  taxes,  or  in  his  absence,  the  overseer  of  the  poor.  In 


284     Evolution  and  Decay  of  the  Hundred  Organism. 

inspectors  from  the  entire  county  are  required  to  attend  the 
polls,  and  each  is  furnished  with  a  certified  list  of  the  electors 
of  his  hundred.  Two  or  more  clerks  of  election  are  appointed 
by  the  sheriff,  or  in  his  absence,  by  the  majority  of  inspectors. 
A  ballot  box  for  each  hundred  is  provided  by  the  sheriff;  and 
into  this  box,  in  the  presence  of  the  proper  inspector,  the  votes 
of  the  hundred  are  placed.  At  the  close  of  the  polls,  the  boxes 
are  opened  by  the  sheriff  and  the  ballots  in  each  counted. 
Then  all  the  ballots  are  mixed  and  placed  in  a  single  box. 
Finally  they  are  read  one  by  one  and  delivered  to  the  clerks 
for  record.1 

But  the  hundred  of  Delaware  is  important  chiefly  as  an  area 
for  rating.  The  early  fiscal  system  as  established  in  1 743  by 
an  act  for  "  raising  county  rates  and  levies,"  possesses  several 
very  interesting  features.2  The  electors  of  each  hundred  are 
authorized  to  choose  annually  "  one  substantial  freeholder  "  as 
assessor,  whose  name  is  returned  by  the  sheriff  to  the  justices 
of  the  general  sessions.  In  November  a  "levy  court"  is  held 
at  the  court  house  of  the  county  for  the  purpose  of  calculating 
the  amount  necessary  to  be  raised  by  taxation  for  the  ensuing 
year.  The  levy  court  is  composed  of  all  the  assessors  from  the 
various  hundreds  of  the  county,  or  a  majority  of  them,  together 
with  three  or  more  of  the  justices  of  the  peace,  and  eight  grand 
jurors.  On  the  receipt  of  a  precept  from  the  clerk  of  the 
peace,  the  constables  are  required  to  take  the  lists  of  taxables 
in  their  respective  hundreds;  and  these  lists  are  delivered  to 
the  court  at  the  November  meetiug.  After  receipt  of  the  lists 
the  assessors,  as  a  body,  proceed  to  make  the  assessment  for  the 


the  county,  the  judge  was  the  sheriff,  or  in  his  absence,  the  coroner;  or  the 
justices  of  the  peace,  in  the  absence  of  both  sheriff  and  coroner :  Laws  of 
Delaware,  I,  429.  In  1772  it  was  provided  that  the  sheriff  or  coroner  and 
the  inspectors  should  be  the  judges:  Ib.,  500  ff. 

lLaws  of  Delaware,  T,  500  ff.,  (1772),  429  ff. 

2  The  fiscal  system  of  Delaware  should  be  compared  with  that  of  Pennsyl- 
vania, as  developed  by  the  acts  of  1696,  1724,  1732,  and  1779.  See  Chap. 
VIII,  m,  (d). 


The  Hundred  in  the  American  Colonies.  285 

entire  county.  Finally,  after  an  interval  of  four  weeks,  the 
grand  jurors,  assessors,  and  justices  assemble  as  a  "court  of 
appeal,"  to  hear  complaints  and  adjust  any  inequalities  in  the 
assessment ;  and  at  this  meeting  a  collector  is  appointed  for 
each  hundred  of  the  county.1  A  county  treasurer  is  also  nomi- 
nated every  three  years  by  the  court  of  appeal.2 

The  striking  feature  of  the  system  just  described  is  the  rep- 
resentation of  the  hundred  on  the  county  board,  involving  as 
it  does  the  essential  principle  of  the  representative  township- 
county  plan  already  discussed  in  detail. 

No  important  change  in  the  fiscal  administration  was  made 
until  1793,  when  an  entirely  different  system  was  introduced. 
The  assessors  of  the  hundreds  continue  to  perform  their  func- 
tions as  before.  But  for  the  old  mixed  courts  of  levy  and 
appeal,  a  board  of  commissioners  is  substituted,  consisting 
respectively  of  nine  members  in  Kent,  ten  in  Sussex,  and 
eleven  in  New  Castle.  The  commissioners  are  chosen  by 
popular  vote,  one  or  two — as  specified  in  the  statute — for 
each  hundred  of  the  county;  and  they  are  invested  with  all 
the  powers  hitherto  possessed  by  the  courts  of  levy  and 
appeal.3 

Such  was  the  general  character  of  the  hundred  organization 
in  Delaware  at  the  close  of  the  last  century ;  and  such  it  has 
remained  to  our  own  times.  Assessors  and  inspectors  are 
still  chosen  by  the  freemen;4  and  the  hundred  is  now  the 
polling  district  for  all  elections:  The  levy  court  is  still  com- 
posed of  commissioners,  chosen  by  ballot  every  four  years, 


1  Act  of!  6  Geo.  II :  Laws  of  Delaware,  I,  257-67.  Cf.  the  act  of  1766 :  Ib., 
I,  429  ff. 

*  By  25  Geo.  II :  Laws  of  Delaware,  I,  329-30. 

3  Laws  of  Delaware,  II,  1086.  The  six  tax  commissioners  for  the  public 
levy  instituted  in  1796  are  not  to  be  confused  with  the  ordinary  county  com- 
missioners. The  former  were  appointed  by  the  governor:  Ib.,  II,  1247  ff. 

*In  each  hundred  of  New  Castle  county  two  road  commissioners  are 
elected ;  and  they  are  authorized  to  appoint  an  overseer  of  highways  and 
a  collector  of  the  road  tax :  Lares  of  Delaware,  1874,  324-6. 


286     Evolution  and  Decay  of  the  Hundred  Organism. 

and  by  that  body  constables,  collectors,  and  overseers  are 
appointed  for  the  same  districts  as  of  old.  In  short,  the  hun- 
dred of  Delaware  remains  what  it  was  in  the  eighteenth  cen- 
tury— the  constitutional  unit  of  the  state.1 

We  have  now  traced  the  history  of  the  second  order  of 
social  groups  through  the  various  phases  of  its  growth  and 
decay.  Everywhere  in  the  old  world,  it  has  appeared  as  a 
more  or  less  artificial  organism  employed  for  special  functions. 
Moreover  with  the  development  of  new  administrative  meth- 
ods better  adapted  to  the  needs  of  the  modern  state,  it  has 
been  found  superfluous.  The  fittest  has  survived.  Town  and 
county,  in  America  at  least,  are  as  significant  members  of  the 
political  constitution  as  they  were  in  the  days  of  Eadgar. 
And  the  last  chapter  in  the  history  of  the  hundred  is  not  the 
least  interesting.  In  a  little  corner  of  our  greater  England 
it  is  still  a  living  body.  But  that  body  is  no  longer  an 
organization  placed  between  the  township  and  the  shire ;  it 
is  itself  a  rudimentary  township,  employed,  however  feebly, 
for  the  purposes  of  self-government. 


lLaws  of  Delaware,  1852,  pp.  11  ff.,  47  ff.,  95-6 ;  Ib.,  1874,  pp.  3  ff.,  60  ff. 


PART    III 


THE    SHIRE 


CHAPTER  VI. 

EVOLUTION  OF  THE  SHIRE  ORGANISM. 
I. — THE  TRIBE. 
(a).— The  Phutt. 

In  studying  the  township  and  the  hundred  we  have  seen 
that  in  each  case  the  territorial  was  preceded  by  a  personal 
organization.  The  same  is  true  of  the  third  order  in  the 
ascending  scale.  The  prototype  of  the  shire  appears  to  be  the 
nomadic  tribe.1  But  the  principle  of '  the  tribal  union  is  a 
strange  one  looked  at  from  a  modern  standpoint.  The  mem- 
bers of  the  same  tribe,  like  those  of  the  same  gens,  are  held 
together  by  the  double  bond  of  blood  relationship,  real  or 
assumed,  and  the  worship  of  a  common  ancestor. 

Such  doubtless  was  the  constituent  principle  of  the  phylic 
or  tribal  groups  found  everywhere  among  the  Greeks;  though 
in  historic  times  the  word  phutt  may  always  have  designated  a 
local  or  territorial  as  well  as  a  gentile  body.2 


freeman,  Oomp.  Pol.,  118,  120. 

'Such  is  the  well  known  view  of  Schomann  as  opposed  to  that  advanced 
by  Grote  in  the  History  of  Greece,  III,  50  ff.,  IV,  128  ff.  Schomann  con- 
tends, in  the  case  of  the  Ionic  phulai,  that  from  the  time  the  separate  com- 
munities of  Attica  were  united  in  a  single  state,  accomplished  according  to 
legend  under  Theseus,  "there  can  be  no  doubt  that  the  Phylae  and  their 
di  vis-ions  were  associations  connected  by  place  as  well  as  by  relationship.  The 
members  of  the  same  Gens,  Phratry,  and  Tribe  were  also,  in  primitive  times, 
residents  of  the  same  localities,  and  each  of  these  divisions  had  its  own  dis- 
trict ;  so  that  the  country  was  divided  into  as  many  districts,  large  and  small, 
as  there  were  Gentes,  Phrutries,  and  Tribes: "  Athenian  Constitutional  History, 
11.  Cf.  his  Antiquities  of  Greece,  317-19,  128  ff. 

19  289 


290  Evolution  of  the  Shire  Organism. 

Very  little  information  is  preserved  as  to  the  officers  and 
functions  of  the  Hellenic  tribe.  The  chief  of  the  Ionic  pliule1 
was  the  phulo-basileus  or  tribe-king,  elected  probably  by  the 
tribesmen  in  their  general  assembly.  He  was  primarily  the 
high  priest  of  his  tribe  as  were  the  archons  of  the  gens  and 
phratry  of  their  respective  groups.  He  may  also  have  been 
the  military  leader  of  the  assembled  phratries ;  and  possibly 
the  judge  in  criminal  matters.1 

From  time  to  time  the*  members  of  each  phul6  met  in  a 
general  assembly.  The  business  transacted  related  chiefly  to 
the  common  worship ;  but,  without  doubt,  here  also  in  early 
days  were  considered  such  other  measures  as  the  primitive 
political  life  required.  For  there  must  have  been  a  time  when 
each  phule"  was  a  state  in  itself.2  But  when  history  dawns 
the  polis  has  already  taken  its  place  as  the  highest  form  of 
political  organization.3 

(b).—The  Tiibus. 

In  the  earliest  traditions  of  Rome  the  genealogical  tribes — 
the  Ramnes,  Tities,  and  Luceres — have  likewise  outgrown  the 
nomadic  stage  and  are  already  incorporated  in  a  single  city. 
The  whole  account  of  the  foundation  of  Rome  is  but  a  record 
of  the  transition  from  the  sovereignty  of  the  separate  tribes  to 


1  The  military  functions  of  the  basileus  are,  of  course,  conjectural ;  and  it 
is  a  question  whether  he  had  judicial  functions  in  criminal  cases.     On  the 
phu!6  see  Morgan,  Ancient  Society,  240-42 ;  Wachsmuth,  Hist.  Ant.,  I,  332  ff. ; 
Miiller,  Doric  Races,  II,  76 ff.;  Schomann,  Antiquities,  470,  321,  327,  366; 
Fustel  de  Coulanges,  Ancient  City,  158,  167;  Smith,  Diet.  Ant.,  "Tribus,"  p. 
1152,  and  "  Phylobasileus,"  p.  899;  Gilbert,  Handbuch,  II,  305;  Grote,  Hut. 
of  Greece,  I,  583  (short  edition). 

2  "  From  what  remains  to  us  of  the  tribe  we  see  that,  originally,  it  was 
constituted  to  be  an  independent  society  and  as  if  there  had  been  no  other 
social  power  above  it."     Fustel  de  Coulanges,  Anc.  City,  158. 

3  Freeman,  Comp.  Pol.,  86  f. 


The  Tribe.  291 

a  confederation  of  them  all.    The  city  is  thus  the  result  of  the 
coalescence  and  expansion  of  its  "  triple  family." l 

In  the  legendary  narrative  the  religious  tribes  appear  in 
a  shadowy  form.  Since  they  have  become  parts  of  a  larger 
community,  they  are  entirely  without  corporate  organization 
of  their  own.  They  are  mere  groups  of  curiae  and  therefore 
local  as  well  as  genealogical  divisions.  They  may  once  have 
had  each  a  tribunus  or  chief;  and  possibly  they  were  used  as 
administrative  units ;  but  nothing  certain  is  known.2  The 
political  centre  of  the  confederation  is  the  comitia  curiata — the 
assembly  of  the  curies  and  not  of  the  tribes.  The  tribe  has  no 
meeting  of  its  own.  But  it  should  not  be  forgotten  that  the 
city  is  a  later  stage  than  the  independent  tribe :  the  new  state 
overshadows  the  older  volkerschaft.  It  seems  as  if  there  were 
almost  a  conscious  effort  to  suppress  it  politically  in  favor  of 
the  united  kingdom.3  But  the  spirit  of  early  tradition  and  the 
analogy  of  the  other  Latin  communities  go  to  show  that  the 
tribe  was  once  a  sovereign  body.  It  must  have  had  its  own 
comitia  or  folkmoot,  though  the  fact  cannot  be  proved  from 
existing  records.4  But  in  Rome  as  in  Greece  the  old  religious 
groups  gave  place,  at  a  very  early  day,  to  artificial  territorial 
divisions.  Just  as  the  old  genos  and  phul6  were  replaced, 
for  political  purposes,  by  the  new  local  denies  and  tribes  of 
Kleisthenes;  so  the  gentile  tribes  were  superseded  by  the  terri- 
torial pagi  and  tribus  of  the  Servian  constitution.  But  in 
neither  case  did  the  one  system  grow  entirely  into  the  other  : 
the  new  and  artificial  organism  existed  side  by  side  with  the 


1  Tribus  seems  to  be  derived  from  tri  an  old  form  of  trea,  three,  and  bus, 
family;  Phulfe  is  of  cognate  origin.  See  Skeat,  'tribe;'  also  Mornmsen, 
GeacJiichte,  1,  63,  65,  66,  etc. ;  Stoatsrecht,  III,  95. 

•Mouimsen,  Staatsrecht,  III,  97-8,  100,  110;  Lange,  Sim.  AUerthiimer,  I, 
282-4,  505. 

*On  the  tribus  see  further  Mommsen,  Geschichte,  I,  35-40 ;  on  its  place  in 
the  city,  76.,  I,  61-6 ;  Compare  Morgan,  307 ;  Smith,  Diet.  Ant.,  'tribus,'  pp. 
1165  fti 

*  Tli is  view  seems  to  be  sustained  by  Mommsen,  Staaisrecht,  III,  96. 


292  Evolution  of  the  Shire  Organism. 

old  and  natural  organism ;  *  but  the  latter  became  a  mere  sur- 
vival with  little  significance  in  the  life  of  the  people. 

To  study  the  tribe  in  process  of  actual  transition  from  a 
nomadic  to  an  agricultural  life  and  in  its  territorial  aspect,  we 
will  turn  to  the  institutions  of  our  own  ancestors.2 


II. — THE   VOLKERSCHAFT. 

(a). — The  General  Assembly. 

In  the  Germania  of  Tacitus  the  ci vitas  or  volkerschaft 
appears  as  a  nation,  an  independent  state.  It  is  the  tribe  in 
its  constitutional  aspect.3  There  is  as  yet  no  confederation  of 
all  the  volkerschaften  of  an  entire  race  or  stamm  :  the  union 
of  many  tribes  in  one  kingdom  will  constitute  a  later  and 
higher  phase  of  development.  The  constitution  of  the  volker- 
schaft is  usually  described  as  resting  on  a  territorial  basis;  but 
this  conception  requires  an  important  modification.  The  peo- 
ple, it  is  true,  are  already  entering  upon  the  agricultural  life 
in  permanent  villages  with  well  defined  marks.  The  hundreds 
are  local  administrative  districts  settled  by  groups  of  kindred ; 
but  the  civitas  as  a  whole  finds  its  only  expression  in  the 


1  Of  course  many  of  the  old  demoi,  or  districts  settled  by  the  gentes,  may 
have  been  identical  with  the  new  demes.     Schomann,  Ath.  Const.  Hist.,  64  f. ; 
Antiquities,  365  ff. ;  Freeman,  Comp.  Pol.,  108-9;  Morgan,  Anc.  Soc.,  300; 
Wachsmuth,  I,  394  ff. ;  Smith,  Diet.  Ant.,  '  pagi '  p.  848 ;  Grote,  III,  63.     At 
Home  the  new  tribes  seem  to  have  been  closely  connected  with  the  districts 
of  the  early  gentes.     Freeman,  Comp.  Pol.,  109,  105. 

2  Our  knowledge  of  the  primitive  genealogical  tribe  does  not,  of  course, 
depend  entirely  upon  the  fragmentary  references  of  Greek  and  Roman  writers, 
nor  yet  upon  the  biblical  history  of  the  tribes  of  Israel.    The  Arabs,  Tartars, 
and  American  Indians  furnish  living  examples,  though  among  non-Aryan 
peoples.     On  the  Indian  tribal  organization  Mr.  Morgan's  Ancient  Society 
is  indispensable. 

30ermania,  10,  12-15,  19,  25,  30,  37,  41,  contains  the  chief  references  to 
the  subject.  See  Stubbs,  I,  27-8;  Waitz,  I,  140;  Thudichum,  Der  alt- 
deutsche  Staat,  20  ff. 


The  Volkerschaft.  293 

gathering  of  the  folk  in  arms.1  The  conception  of  territorial 
sovereignty,  of  a  definite  local  jurisdiction  on  the  part  of  the 
state,  as  opposed  to  a  tribal  sovereignty,  is  yet  unknown;  even 
among  the  Franks  it  is  not  clearly  developed  until  the  begin- 
ning of  the  eleventh  century.2 

The  primitive  bond  of  common  religion  and  common  blood 
is  still  strong  in  the  volkerschaft.  Tacitus  expressly  states 
that  in  the  army  the  warriors  are  grouped  according  to  fami- 
lies and  kindreds;?  while  the  sacred  groves  and  other  conse- 
crated places  for  the  general  assembly/  the  duties  of  priests  in 
the  army  and  in  the  moots,  attest  the  survival  of  the  religious 
character  of  the  tribe.5 

The  life  of  the  volkersehaft  finds  its  centre  in  the  general 
meeting  or  council  of  the  freemen ;  and  the  latter  as  the  imme- 
diate predecessor  of  the  shiremoot  requires  particular  notice. 

Meetings  of  the  civitas  are  of  two  kinds :  regular  and 
extraordinary.  The  former  are  held  at  fixed  times  and  at 
close  intervals,  usually  at  the  new  and  full  moons.6  The 
assembly  is  held  in  the  open  air,  and  the  people  appear  in 
arms,  those  from  each  pagus  or  hundertschaft  doubtless  form- 
ing a  distinct  band,  as  in  the  case  of  the  Homeric  phratry. 

The  gathering  of  the  host  and  the  assembly  of  the  people 
are  one  and  the  same.7 

Silence  is  proclaimed  by  the  priests,  and  they  also  have 
power  to  enforce  the  special  peace — the  thingfriede — under 
which  all  are  brought  on  this  occasion.8  The  king  or  prin- 
ceps  or  perhaps  some  one  chosen  on  account  of  age,  wisdom, 


1  Waitz,  Verfassungngeschichte,  I,  315. 
1  Maine,  Ancient  Law,  99-104. 

*Germania,  7 :  familiae  et  propinquitates.    Waitz,  Verfassungsgesch.,  I,  79. 
*  Gel-mania,  9,  39;  Waitz,  1, 322;  Grimm,  Rechtsalt.,  793,  and  many  author- 
ities there  cited. 

5  Waitz,  Verfassungsgesch.,  I,  326,  336. 
•Germania,  11;  Waitz,  Verfassungsgesch.,  I,  319. 

7  Qermania,  1 ;  Waitz,  Verfatsungsgesch.,  I,  79,  149,  325. 

8  Germania,  1 1 ;  Waitz,  Verfassungsgesch.,  I,  326. 


294  Evolution  of  the  Shire  Organism. 

nobility,  or  military  fame,  takes  the  lead  in  the  discussions ;  * 
but  the  presiding  magistrate,  or  moderator,  is  probably  but 
slightly  distinguished  from  the  common  freeman,  save  by  a 
more  conspicuous  place  in  the  meeting. 

Questions  of  minor  importance  are  decided  in  separate  coun- 
cils of  the  chiefs  or  principes.  Graver  matters,  such  as  war 
and  peace  or  alliances,  come  before  the  whole  people;  but 
even  these  are  previously  considered  in  the  council  of  the 
principes:  and  the  council  board  is  usually  the  "mead-bench,"2 
which  occupies  so  prominent  a  place  in  the  early  epics. 

The  assembly  of  the  folk  discharges  the  chief  legislative 
and  executive  functions,  and  it  is  also  the  supreme  judicial 
tribunal,  especially  for  capital  cases ;  but  the  usual  court  for 
private  causes  is  the  meeting  of  the  pagus  or  hundertschaft.3 

In  the  deliberation  assent  is  given  by  the  striking  of  spears, 
and  applause  by  the  clashing  of  spears  and  shields ;  opposi- 
tion is  indicated  by  loud  shouts.4 

In  addition  to  the  business  of  a  public  character,  much  of 
a  more  special  nature  is  transacted  :  such  as  emancipation  and 
adoption,  the  witnessing  of  transfers,  and  the  clothing  of  the 
youth  with  arms.5 

(6). — The  Magistrates. 

The  question  as  to  the  officers  of  the  volkerschaft  is  an 
interesting  one  but  full  of  perplexity.  In  the  time  of  Tacitus 


1  Waitz,  Verfassungsgesch.,  I,  327  ;  Stubbs,  Const.  Hist.,  I,  28. 

2  See  Waitz,  Verfassungs.,  I,  330,  who  thinks  this  custom  may  have  given 
rise   to  the  later  practice,  mentioned  by  Grimm,  Rechtsalt.,  314,  of  ren- 
dering judicial  fees  and  penalties  in  beer. 

3Germania,  12.  Compare  Waitz,  I,  322-4,  333;  Thudichum,  Der  alt- 
deutsche  Stoat,  48-50.  This  is  insisted  upon  by  Sohm,  Altdeutsche  Reichs-  und 
Gerichtsverfassung,  7,  passim. 

*Germania,  11;  Hist.,V,  17;  Caesar,  VII,  21;  Grimm,  Rechtsalt.,  770  ff.; 
Waitz,  I,  330. 

5  Waitz,  Verfassungsgesch.,  I,  330-2 ;  Dos  alte  Recht,  144  ff. 


The  Volkerachafl.  295 

some — perhaps  a  majority— of  the  tribes  possess  no  single 
cli iff  magistrate;  but  in  the  general  assembly  are  electee! 
priucipes  who  preside  in  the  courts  of  the  hundertschaft.1  In 
these  tribes  the  only  central  power  is  the  folkmoot.  But  in 
other  volkerschaften  a  king  is  chief.  He  is  elected  for  life 
from  the  nobles  in  the  general  council.  But  it  would  be  a 
mistake  to  regard  the  volkerschaft  over  which  a  king  presides 
as  a  kingdom  in  the  modern  sense.  The  reges  of  Tacitus 
should  rather  be  compared  with  the  phulo-basileis  of  the  Ionic 
tribes,  though  the  political  or  secular  attributes  of  the  former 
are  more  pronounced;3  and  the  Teutonic  tribe-kingdom  is  a 
stage  in  the  development  of  the  united  sovereignty  of  a  later 
age.3 

In  time  of  war  supreme  command  is  given  to  a  dux  or 
herzog*  Neither  noble  nor  princeps  nor  even  the  king  is 
necessarily  chosen  as  leader  of  the  host :  the  dux  is  appointed 
solely  for  his  valor  and  experience  in  war;8  but  doubtless 
for  this  very  reason  the  king  or  a  princeps  is  most  frequently 
selected.6 


1  Germania,  12.   Waitz  seems  to  think  it  possible  that  there  may  have  been 
two  kinds  of  magistrates  to  which  Tacitus  gives  the  name  of  principes:  those 
of  the  hundertschaften  and  the  single  princeps  of  the  civitas.    The  former 
constituted  the  council  which  prepared  business  for  the  assembly.     Verfus- 
sungsgeschichte,  I,  242.    For  the  opposite  view  see  Thudichum,  AUd.  Staat, 
38. 

2  The  use  of  the  same  name  for  different  things  in  Teutonic  as  well  us 
classic  history,  is  a  fruitful  cause  of  error.     Cf.  Morgan,  Ancient  Society, 
242. 

sOn  the  character  of  the  early  German  kingship  see  Sohm,  Reichs-und 
Gerichtsverfcusung,  4,  9;  Waitz,  Verfassungsgeschichte,  1, 273-314;  Stubbs,  Const. 
Hist.,  I,  26-8,  175;  Roth,  Beneficialwesen,  2  ff.;  Schulte,  Reichs-und  Rechts- 
geschichte,  38-9;  Grimm,  RechtxalUrthiimer,  229  ff. ;  Low,  Reichs-und  Teri-i- 
torialverf.,  29  ff. ;  K.  Maurer,  Krit.  Ueb.,  II,  431  ff.;  Kemble,  Saxons,  I,  137 
ff. ;  Freeman,  Camp.  Polities,  162  ff. 

'Germania,  7 ;  Waitz,  Verfassungsgeschichte,  T,  250,  382. 

*Gcrmania,  7.     Cf.  76.,  13;  Stubbs,  Const.  Ifi«t.,  I,  30. 

6  Waitz,  Verfaesungsgeschichle,  I,  310;  Stubbs,  Const.  Hist.,  I,  27. 


296  Evolution  of  the  Shire  Organism. 

(c). — The  Comitatus. 

The  principes,  or  official  magistrates,  enjoy  the  special 
privilege  of  maintaining  a  comitatus  or  gefolge — a  band  of 
military  companions.  No  private  noble  or  other  person, 
save  the  king  and  dux,  possesses  this  right :  it  is  an  incident 
of  the  official  rank  of  the  elected  magistrate 1  The  comites 
form  the  retinue  and  table-companions  of  their  chief  in  time 
of  peace,  and  in  battle  they  fight  for  him  alone,  while  the 
princeps  fights  for  victory.2 

Such  in  rough  outline  was  the  constitution  of  the  volker- 
schaft  at  the  beginning  of  the  second  century  of  our  era ;  and 
the  few  details  recorded  by  Caesar,  a  century  and  a  half  ear- 
lier, are  in  all  important  points  in  harmony  with  it,  though 
the  transitional  character  is  more  apparent.3 

(d). — The  Old  Saxon  Volkerschaft. 

It  is  with  great  satisfaction  also  that  several  centuries 
later  we  find  these  elements  of  the  common  Germanic  consti- 
tution still  preserved  among  the  Saxons  who  remained  in  the 
continental  home  of  our  ancestors.  Bede,  writing  in  the 
eighth  century,  before  they  had  been  christianized  by  the 
Franks,  states  that  they  had  no  king,  but  that  "  a  great  num- 
ber of  satraps  were  set  over  the  nation."  These  satraps,  man- 
ifestly the  principes  of  Tacitus,  presided  in  the  lower  courts, 
and  in  time  of  war  were  superseded  by  a  chief  chosen  from 
their  own  number  by  lot.4 


1  On  the  whole  much  discussed  question  of  the  comitatua,  see  Waitz,  Ver- 
fassungsgechichte,  I,  344-74  (Das  Gefolge),  220-72  (Die  Fiirsten) ;   Roth, 
Beneficialwesen,  1-33;  Thudichum,  Altd.  Slaat,  pp.  12-20;  Stubbs,  I,  24,  26, 
251,  note;  Konrad  Maurer,  Krit.  Ueb.,  II,  396-403. 

2  Germania,  14. 

3  De  Bdlo  Gal.,  VI,  21  ff. 

*Ecc.  Hist,  V,  10:  Mon.  Hist.  Brit.,  p.  258;  Stubbs,  Const.  Hist,,  I,  41. 


Tit*  Volkerschafl.  297 

Hucbald,  writing  in  the  middle  of  the  tenth  century  of  the 
Saxons  of  the  eighth,  says :  "The  race  was,  as  it  still  is,  divided 
into  three  orders ;  there  are  there  those  who  are  called  in  their 
tongue  Edlingi ;  there  are  Frilingi,  and  there  are  what  are 
called  Lassi  j  words  that  are  in  Latin  nobiles,  ingenui,  and 
semiles.  Over  each  of  their  local  divisions  or  pagi,  at  their 
o\vn  pleasure,  and  on  a  plan  which  in  their  eyes  is  a  prudent 
one,  a  single  princeps  or  chieftain  presides.  Once  every  year, 
at  a  fixed  season,  out  of  each  of  these  local  divisions,  and  out 
of  each  of  the  three  orders  severally,  twelve  men  were  elected, 
who  having  assembled  together  in  Mid-Saxony,  near  the 
Weser,  at  a  place  called  Marklo,  held  a  common  council, 
deliberating,  and  acting,  and  publishing  measures  of  common 
interest  according  to  the  tenour  of  a  law  adopted  by  them- 
selves. And,  moreover,  whether  there  were  an  alarm  of  war, 
or  a  prospect  of  speedy  peace,  they  consulted  together  as  to 
what  must  be  done  to  meet  the  case."  * 

Here  the  princeps  seems  to  be  chosen  by  the  paffus,  and  the 
general  assembly,  which  is  still  the  center  of  the  national  life, 
meets  but  once  a  year.  The  most  remarkable  innovation, 
however,  is  the  system  of  representation,  showing  that  local 
institutions  among  the  Saxons  of  the  continent  had  developed 
on  the  same  lines  as  among  the  colonists  of  Britain.  "  The 
assembly,"  says  Stubbs,  "  was  a  representative  council  of  the 
most  perfect  kind ;  and,  stated  simply,  must  have  been  as 
much  in  advance  of  the  constitutional  system  of  other  countries 
in  the  tenth  century  as  it  had  been  in  the  eighth :  for  the  double 
principle  of  representation,  local  and  by  orders,  involves  the 
double  character  of  the  gathering :  in  one  aspect  it  is  an 
assembly  of  estates,  in  another  the  concentration  of  local 
machinery  :  and  in  either  it  is  a  singular  anticipation  of 
polities  which  have  their  known  and  historical  development 
centuries  later.  It  may  indeed  be  reasonably  doubted  whether 
such  a  complete  and  symmetrical  system  can  have  existed ;  it 

1  Stubbs,  Const.  Hist.,  I,  44. 


298  Evolution  of  the  Shire  Organism. 

would  be  as  startling  a  phenomenon  if  it  existed  only  in  the 
brain  of  the  Frank  monk,  as  it  would  be  in  proper  history. 
Nor  have  we  any  distinct  information  about  it  from  any  other 
source."  x 

III. — THE  OLD  ENGLISH  SHIRE. 
(a). — The  Origin. 

Among  the  English  settlers  of  Britain,  in  the  tenth  cen- 
tury, the  volkerschaft  has  entered  upon  a  new  stage  of  devel- 
opment. After  four  centuries  of  strife  and  experiment  the 
isolated  tribal  states  have  become  incorporated  in  a  confedera- 
tion. The  autonomous  volkerschaft  has  become  a  shire,  a 
share  in  the  united  kingdom. 

The  volkerschaft  did  not  enter  directly  into  the  new  state : 
there  had  been  many  previous  aggregations  and  dissolutions 
of  groups  of  tribes.  One  by  one  the  so-called  heptarchic 
kingdoms  took  their  place  in  the  West  Saxon  confederation, 
and  these  kingdoms  in  their  turn  had  been  made  up  of  other 
states  by  a  similar  process.  During  the  long  interval  of  con- 
flict and  growth  the  history  of  the  local  organizations  can  be 
but  faintly  traced  :  even  the  names  are  wrapped  in  obscurity. 
The  origin  of  the  shire,  like  that  of  the  hundred,  has  been 
ascribed  to  Aelfred;  and,  though  the  student  of  political 
organisms  hesitates  to  accept  what,  at  first  glance,  seems 
inconsistent  with  the  law  of  continuity,  there  is  little  doubt 
in  this  instance  that  the  tradition  is  true  in  its  general  im- 
port :  both  shire  and  hundred,  as  parts  of  the  united  kingdom, 
probably  originated  under  Aelfred  or  his  immediate  successors. 

ldonst.  Hist.,  I,  44-5.  On  the  narrative  of  Hucbald,  Waitz,  Verfassungs- 
geschichte,  I,  341,  says:  Die  Erzahlung  erregt  manche  Bedenken,  doch  wer- 
den  wir  sie  nicht  ganz  verwerfen  diirfen.  In  Vol.  Ill,  114,  note,  he  does 
not  positively  reject  the  narrative,  but  hesitates  to  accept  it  as  entirely 
trustworthy.  See  also  Thudichum,  Altd.  Staat,  44,  note.  For  a  full  discus- 
sion of  the  meeting  of  the  volkerschaft  see  Waitz,  Verf.,  I,  315-44 ;  Stubbs, 
I,  Chaps.  II,  III;  Thudichum,  Altd.  Staat,  45-55. 


The  Old  English  Shire.  299 

"  By  a  strange  chance,"  says  Freeman,  "  the  group  answering 
to  the  German  gau,  the  English  shire,  bears  a  name l  which 
expresses  the  exactly  opposite  idea  to  that  of  union." 2  In- 
deed, when  all  England  had  passed  into  the  hands  of  a  single 
king,  there  must  have  occurred  something  very  much  resem- 
bling a  mechanical  division.  But  in  reality  it  was  but  a  rec- 
ognition of  original  natural  groups  as  co-ordinate  members  of 
a  new  organism.  Scholars  are  now  agreed  that  the  first  Eng- 
lish shires  were  merely  the  old  tribal  states,  each  bearing  a  new 
and  common  name.3  Tt  would  seem  as  if  when  East  Anglia, 
Mercia,  or  Northumberland,  was  definitely  brought  under 
West  Saxon  supremacy,  each  was  dissolved  into  its  original 
elements — the  primitive  volkerschaften  of  which  it  was  com- 
posed ;  and  as  if  in  recognition  of  their  nationality,  of  their 
equal  rank  and  power,  each  of  the  latter  was  called  a  shire  or 
share  of  the  new  commonwealth. 

Looked  at  in  this  light  there  is  more  than  a  superficial 
analogy  between  the  tribus  of  Rome  and  the  shires  of  Eng- 
land. Before  the  groups  to  which  the  former  name  was  given 
became  the  "  three  families  "  of  the  new  city-state  in  which 
they  were  incorporated,  each  as  a  distinct  and  sovereign  state 
in  itself  must  have  possessed  its  own  national  name  with 
which  the  numerical  designation  of  tribus,  ires,  would  have 
been  inconsistent.4  So  the  English  volkerschaften  before  they 
became  "  parts  "  of  a  greater  whole,  had  their  own  names  as 
distinct  peoples.  They  were  East  Saxons  or  South  Saxons, 


1  Scir,  from  A.  S.  Sciran,  to  shear,  to  cut. 

1  Omp.  Pol.,  124. 

*Of  course  the  present  geography  of  the  shires  is  largely  the  result  of 
centuries  of  growth.  See  Pearson,  Historical  Maps,  27-28.  But  on  the  origin 
and  extension  of  the  shire  system  see  particularly  Green,  The  Conquest  of 
England,  221-31. 

4  Perhaps  they  were  called  Ramnes,  Tides  and  Luceres,  according  to  tra- 
dition. There  is  a  certain  incongruity,  historically,  in  the  use  of  tribe  or  tribal 
as  descriptive  of  the  English,  Teutonic,  or  Roman  volkerschaft :  the  very 
name  implies  an  aggregation  of  Volker  in  the  fourth  order  of  political  organ- 
ism— the  city  or  the  kingdom. 


300  Evolution  of  the  Shire  Organism. 

North  Folk  or  South  Folk,  Sumersaetas  or  Dorsaetas.  It  is  an 
interesting  corroboration  of  this  theory  of  the  origin  of  the 
shire  that  in  some  cases  the  word  '  shire ''  has  never  been 
subjoined  to  the  national  name.  "  It  is  certain  also/'  says 
Freeman,  "that  there  are  many  English  counties  to  which  the 
name  shire  has  never  been  applied  down  to  our  own  times."1 
If  the  primary  notion  of  scir  as  something  "torn  off"  or 
"sheared  off"  be  allowed  to  obscure  the  fact  that  when  the  shires 
were  formed  in  the  tenth  century  the  process  was  rather  a 
spontaneous  dissolution  of  unions  previously  created  and  a 
recognition  of  the  members  of  such  unions  as  peers  in  a  new 
community,  we  shall  lose  sight  of  the  real  identity  of  the 
modern  administrative  district  and  the  ancient  tribal  state. 
In  some  cases  there  seems  to  have  been  actual  artificial 
division  :  in  such  instances  and  in  the  case  of  shires  named 
after  towns,  a  distinction  must  be  made :  these  Mr.  Freeman 
calls  "  strictly "  shires  as  opposed  to  those  based  on  the  tribal 
divisions,  which  remain  "  strictly  gauen." 2 

From  what  has  already  been  said  we  should  naturally  expect 
to  find  traces  of  the  shire  long  before  the  reign  of  Aelfred ; 
and  in  fact  the  name  scir  does  appear  at  least  as  early  as  the 
eighth  century.3  It  has  been  regarded,  however,  as  an  early 
designation  for  the  district  answering  to  the  hundred,  which 
term,  as  already  seen,4  first  appears  in  the  laws  of  Eadgar.5 
But  it  seems  not  improbable  that,  generally,  where  the  word 


1  Comp.  Pol.,  418.    The  use  of  scir  for  a  division  of  a  larger  whole  is  illus- 
trated in  Aelfred's  Baeda,  where  it  occurs  for  the  diocese  of  a  bishop. 
Stubbs,  I,  109.     The  parish  is  also  styled  a  "  kirk  shire : "  Green,  Conquest 
of  England,  222. 

2  Comp.  Pol.,  417-18,  124;  Norman  Conquest,  I,  380,  66;  Kemble,  Saxons, 
I,  78  ff.     Note,  that  both  Kemble  and  Freeman  use  ga  or  gau  and  the  cor- 
responding pagus  for  volkerschaft. 

3  Ine,  36,  39 ;  Schmid,  Gesetze,  pp.  36,  38. 
*See  Chap.  V,  in,  (a). 

6  In  some  cases,  for  example  in  Yorkshire  and  Cornwall,  existing  hundreds 
are  known  to  have  been  formerly  called  shires,  and  some  districts  still  retain 
the  name.  See  Stubbs,  I,  98,  100,  109;  Henry  Adams,  Essays,  p.  19. 


The  Old  English  Shire.  301 

shire  occurs  before  the  tenth  century,  it  may  be  already  the 
new  name  of  a  volkerschaft  which  has  been  incorporated  as  a 
'share'  in  a  heptarchic  kingdom.  The  fact  that  in  several 
instances  between  the  hundred  and  the  shire  an  intermediate 
division  is  found,  seems  to  corroborate  this  view.  'I'he  lathe  or 
lest  in  Kent,  the  rape  in  Sussex,  and  the  riding1  in  Yorkshire 
are  aggregations  of  hundreds  below  the  shire.2  Possibly,  in 
like  manner,  the  early  scir  was  a  genuine  shire  with  hundreds 
below  it  If  thi&  be  true,  it  is  probable  that  when  in  the 
tenth  century  the  early  states  were  mediatized  and  became 
parts  of  the  new  empire,  the  heptarchic  shires  were  also  media- 
tized and  became  hundreds ;  or,  in  other  cases,  were  retained 
as  intermediate  divisions  or  dropped  altogether.8 

(6). — The  Scirgerefa  and  the  Ealdorman. 

The  English  shire  of  the  tenth  century  was  a  political  and 
territorial  division  of  the  united  kingdom.  The  original 
community  of  blood  survived,  in  some  instances,  in  the  name ; 
and  the  primitive  religious  unity  of  the  tribe  or  volkerscbaft 
was  lost  in  that  of  the  christianized  commonwealth. 

The  officers  of  the  shire  were  two,  the  ealdorman  and  the 


1  Riding,  changed  from  tkriding  or  Iriding  ;  lathe,  A.  S.  laeth,  a  portion  of 
land;  rape,  Icel.  hreppr,  a  district,  the  original  sense  probably  being  "share" 
or  allotment,  from  hreppa,  to  catch,  hence  to  obtain :  Skeat. 

2  On  these  divisions  see  Stubbs,  I,  100,  108  ff.,  who  thinks  the  lathes  and 
rapes  "perhaps  the  original  shires."     Cf.  Lambard,  Perambulation  of  Kent, 
p.  18;  Palgrave,  Commonwealth,  I,  101. 

'For  one  of  the  most  scholarly  discussions  of  the  origin  of  the  shire 
and.hundred,  see  Henry  Adams,  Essays,  pp.  1-22.  He  thus  summarizes  his 
review  of  the  documentary  evidence:  "The  facts  above  cited  authorize  the 
assumption,  as  a  general  law,  of  the  principle  that  the  state  of  the  seventh 
century  became  the  shire  of  the  tenth,  while  the  shire  of  the  seventh  century 
became  the  hundred  of  the  tenth."  Page  19.  See  also  Schmid,  Ghssar,  pp. 
613-14,651;  Stubbs,  1, 109-111;  Freeman, Cbmp.PoJ.,124,417-419;  Norman 
Conquest,  I,  32,  379-81 ;  Kemble,  Saxons,  I,  72-87 ;  Palgrave,  Commonwealth, 
I,  116  ff.  ;  Gneist,  II,  17  f. 


302  Evolution  of  the  Shire  Organism. 

scirgerefa  or  sheriff.  The  ealdorman  represented  the  princeps 
of  Tacitus  and  Hucbald  and  the  satrap  of  Baeda ;  but  he  was 
also  the  dux  or  herotoga;  for  the  early  conquest  of  Britain  was 
made  gradually  by  isolated  bands  or  tribes  under  the  leadership 
of  ealdormen  who  were  undoubtedly  principes  chosen  as 
leaders  of  the  expeditions.  Soon  after  the  settlement  of  each 
tribe,  whether  the  followers  of  Hengest  or  Cerdic,  the  invaders 
of  East  Anglia  or  Deira,  a  monarchy  was  set  up  under  the 
most  powerful  ealdorman.  With  the  process  of  conquest  and 
incorporation  of  the  smaller  states,  their  chiefs  sank  into  the 
position  of  vice-kings,  governing  under  the  original  title  of 
ealdorman  their  former  districts,  which  now  became  practically, 
and  perhaps  in  name  also,  shires.  But  usually  several  shires 
were  administered  by  the  same  ealdorman.1 

In  historic  times  the  ealdorman  was  appointed  in  the  cen- 
tral witenagemot,  with  the  king's  sanction ;  while  the  scirge- 
refa or  sheriff  was  nominated  by  the  king  alone.2 

The  double  headship  of  the  shire  is  pointed  out  by  Stubbs 
as  a  mark  of  its  original  national  character :  the  sheriff  was 
the  king's  agent  to  manage  his  interest,  especially  his  financial 
business,  in  the  shire ;  and  as  a  mark  of  the  precedence  of  the 
central  power,  he  was  the  real  president  or  constitutive  officer 
of  the  shiremoot.  The  ealdorraan,  on  the  other  hand,  repre- 
sented the  ancient  volkerschaft,  and  as  such  sat  with  the  sheriff 
in  the  moot  to  declare  the  customary  law,  and  he  was  also  the 
leader  of  the  shire's  contingent  of  the  host.3 

(c). — The  Scirgemot. 

The  life  of  the  shire  found  its  center  in  the  scirgemot  or 
shiremoot,  which  met  regularly  twice  a  year.  It  was  a  repre- 


^ee  Stubbs,  Const.  Hist.,  I,  111-13,  158  ff. ;  Freeman,  Norman  Conquest,  I, 
51-2 ;  Henry  Adams,  Essays,  p.  21.  Schmid,  Gesetze,  560. 

2  Stubbs,  Const.  Hist.,  I,  113.  The  sheriff  is  called  scir-man  in  Ine,  8: 
Sell  mid,  Gesetze,  24. 

'Stubbs,  Const.  Hist.,  I,  113. 


The  Old  English  Shire.  303 

sentative  bcxly  composed  of  the  "  reeve  and  four  best  men  " 
from  each  township  and  of  all  lords  of  land  within  the  shire. 
In  its  functions  as  well  as  in  its  magistrates  it  possessed  a 
double  character:  on  the  one  hand  it  was  a  folcgcmot,  "a 
monument  of  the  original  independence  of  the  population" 
which  it  represented.1  As  such  it  was  the  popular  court  of 
the  district,  and  even  possessed  a  vestige  of  legislative  power, 
as  seen  at  least  in  one  instance  in  the  reign  of  Aethelstan, 
when  the  freemen  in  full  assembly  formally  ratified  a  measure 
of  the  central  witenagemot.2  As  a  popular  court  the  shire- 
moot,  in  which  the  suitors,  or  a  representative  committee  of 
"  twelve  senior  thegns,"  were  the  judges,  could  declare  folk- 
right  in  all  cases,  whether  civil  or  criminal,  lay  or  ecclesi- 
astical :  the  Germanic  principle  of  combining  all  classes  of 
judicial  functions  in  the  hands  of  the  popular  assembly  still 
prevailed.  For  the  purpose  of  declaring  the  ecclesiastical 
law,  but  not  as  judge,  the  bishop  sat  side  by  side  with  the 
ealdorman  and  the  sheriff  in  the  court. 

On  the  other  hand  the  moot  was  a  division  court  of  the 
kingdom  in  which  through  the  scirgerefa  the  jurisdiction  of 
the  state  was  enforced.  In  this  latter  capacity  one  function 
is  of  special  interest  since  it  still  remains  the  most  important 
branch  of  county  business :  the  shire  was  employed  as  the 
higher  area  for  the  collection  of  the  state  revenue,  just  as  the 
hundred  was  the  rate  district  within  the  shire  itself.  The 
sheriff  as  agent  of  the  crown  got  in  all  the  royal  dues  whether 
arising  from  the  rent  or  commutation  for  the  former  folc- 
land — the  feorm-fultum ;  from  the  composition  for  military 
services;  or  from  ship-money  levied  in  the  hundreds  or 
wapentakes.3 


Omtt.  Hial.,  I,  116. 

'Stubbs,  Const.  Hist.,  I,  115. 

3StubbB,  Const. Hist.,  1, 1 16-17.  Cf.  Hallam,  Middle  Ages,  II,  265 ff.  Green, 
The  Conquest  of  England,  229,  insists  that  the  original  aim  of  the  shire  was 
"strictly  financial." 


304  Evolution  of  the  Shire  Organism. 

(d). — Comparison  of  the  Shire  System  and  the  German 
Gauverfassung. 

The  process  by  which  the  original  sovereign  states,  the 
volkerschafteu,  were  converted  into  subordinate  members  of 
the  monarchy  is  a  fact  of  immense  significance  in  the  history 
of  the  English  race.  The  shire  or  county — at  once  a  power- 
ful administrative  agent  of  the  central  authority  and  a  vigor- 
ous self-governing  body — is  the  distinguishing  feature  of  the 
Anglo-American  state.  To  it  more  than  to  the  township  or 
any  other  single  factor  must  be  ascribed  the  success  which 
has  attended  the  extension  of  representative  government  to 
the  vast  western  empire  of  the  United  States.  Historically, 
then,  it  is  of  considerable  interest  to  determine  whether  the 
later  development  of  the  continental  volkerschaften  reveals 
anything  analogous  to  that  of  the  Anglo-Saxon  tribes.  In 
what  respect,  in  short,  did  the  contemporary  German  gauen 
or  grafschaften  differ  from  the  old  English  shires  ? 

The  question  has  been  definitely  answered  by  Sohm  in  the 
introduction  to  his  masterly  treatise  on  the  old  German  Reichs- 
und  Gerichtsverfassung.1 

In  the  time  of  Tacitus,  as  we  have  seen,  the  highest  concep- 
tion of  the  state,  the  ultimate  political  unit,  was  the  tribe  or 
volkerschaft.  The  stamm  or  congeries  of  tribes  was  at  most 
an  ethnife  and  religious  unit.  It  had  no  political  or  govern- 
mental significance. 

Still  more  shadowy  and  meaningless  was  the  congeries  of 
stamme  or  races,  the  so-called  Germanic  "  nation."  There 


1  Only  the  first  volume  of  this  remarkably  original  work  has  yet  appeared. 
It  bears  the  separate  title :  Die  Frdnkuche  Reichs-  und  Gerichtsverfassung, 
Weimar,  1871.  On  the  Gauverfassung  see  also  Waitz,  Verfassungsgeschichte, 
II,  323  ff.,  458  ff.;  Ill,  319  ff.;  IV,  311  ff.;  Low,  Reichs-  und  Territorial- 
Verfassung,  126  ff.;  Thudichum,  Gau-  und  Markverfassung,  3-13,  80-112; 
Schulte,  Reichs-  und  Rechtsgeschichte,  116-123,  181  ff. ;  Rogge,  Gerichtswesen 
der  Germanen,  45-46 ;  Inama-Sternegg,  Deutsche  Wirthschaftsgeschichte,  52  ff. 


The  Old  English  Shire. 

may  have  been  a  latent  consciousness  of  kinship,  of  community 
of  speech  and  worship,  which  would  become  active  on  occasion 
of  some  great  enterprise,  as  a  general  struggle  with  the  Roman 
legions ;  or  of  some  deadly  and  common  peril,  such  as  the 
invasion  of  Attila.  But  of  the  conception  of  nationality  in 
the  iiHxlern  sense  there  was  no  trace. 

With  the  Volkerwanderung  an  interesting  phenomenon 
appears.  The  conception  of  the  state  is  broadened.  The 
stamm  supersedes  the  tribe  as  the  highest  political  unit. 
Instead  of  tribe-kingdoms  we  find  stamm-kingdoms,  such  as 
those  of  the  Salian  Frartks  and  the  Burgundians.  Instead  of 
tribe-kings,  phylo-basUeis,  we  have  stamm-kings  with  real 
sovereignty.  Through  exercise  of  military  leadership  the 
chieftain  of  the  wandering  race,  an  Amal  or  a  Bait,  becomes 
a  monarch  in  the  modern  sense.1  As  a  consequence  the 
sovereign  council  of  the  volkerschaft  disappears.2  The  mon- 
arch of  the  stamm  is  the  bearer  of  magisterial  authority. 

With  the  rise  of  the  Frankish  empire  another  phase  in  the 
development  of  the  Germanic  state  is  reached.  Under  the 
Merovingian  monarchs,  and  more  clearly  under  Charles  the 
Great,  the  nation  supersedes  the  stamm  as  the  bearer  of  politi- 
cal sovereignty.  Under  Clovis  and  his  successors  the  stamme, 

1  "  Anderseits  bildet  nicht  mehr  die  Volkerschaft,  sondern  der  Stamm  die 
staatliche  Einheit.  In  der  Noth  der  Ereignesse,  welche  die  in  Auflosung 
begriffene  Welt  bewegten,  hat  die  Volkerschaft  ihre  politische  Selbstiindig- 
keit  zu  Gunsten  der  Staramesverband  aufgegeben.  Der  fortgesetze  Kriegs- 
verband  der  Volkerschuften  '  desselben  Bluts '  ist  Staatsverband  geworden. 
Der  Stamm,  dem  noch  jetzt — vielfach  nach  Assimilirung  einer  Reihe  von 
neuen  Elementen — die  natiirliche  Einheit,  Stammessprache,  Stammessitte, 
und  Stammesrecht  entspricht,  ist  zugleich  der  Staat.  Die  Germanischen 
Reiche  auf  romLschem  Boden  sind  Stammesreiche : "  Sohm,  Reichs-  und 
Gerichtsverfassung,  9.  Inama:Sternegg,  Deutsche  WirthschaftsgeschichU,  53. 
Waitz,  Verfa&sungsyeschichte,  II,  97-107,  gives  the  best  account  of  the  character 
and  functions  of  the  Merovingian  kings. 

J  Sohm,  Reichs-  und  Gerichtsverf.,  278  ff.  Waitz,  VerfcutsungsgesehichU,  II,  494 
ff.,  agrees  with  Sohm  for  the  Merovingian  period;  but  for  the  Karlovingian 
era  he  thinks  there  may  have  been  judicial  assemblies  for  the  whole  gau: 
16.,  IV,  313  ff. ;  Roth,  Feudalitdt  und  Unterthanverband,  23-24. 
20 


306  Evolution  of  the  Shire  Organism. 

in  theory,  ceased  to  be  of  constitutional  significance  ;  but,  as  a 
matter  of  fact,  they  were  of  vast  political  importance.  Thus 
the  great  dukes  of  the  Bavarians  or  of  the  Alamanni  were 
stamm-chieftains ;  and  the  various  divisions  of  the  empire, 
such  as  that  into  Neustria  and  Austrasia,  arose  from  distinc- 
tions of  race.1 

But  by  Charles  the  Great  the  stamm  was  entirely  ignored. 
The  partition  of  the  empire  among  his  sons  was  arbitrary. 
Peoples  of  the  same  blood  were  ruthlessly  cut  asunder  by 
artificial  division  lines.2  But  the  old  stamm  affiliations  were 
the  most  deadly  enemies  of  the  empire.  On  the  dissolution 
of  the  latter,  Austrasia  and  Neustria  again  confronted  one 
another  in  their  original  limits.  "  Likewise  in  the  beginning 
of  the  tenth  century  arose  anew  the  struggle  between  the 
kingdom  and  stamm  chieftainship.  The  fall  of  Henry  the 
Lion  marks  the  epoch  when  the  stamm  unity — Stammesver- 
bindung — definitely  succumbs."3 

The  evolution  of  the  German  state,  as  thus  far  described,  is 
of  two-fold  interest.  On  the  one  hand,  it  is  precisely  with 
respect  to  these  later  and  higher  stages  of  organic  develop- 
ment that  Teutonic  institutional  history  differs  from  the 
Graeco-Roman.  The  expansion  of  the  v5lkerschaffc  into  the 
stamm,  and  of  the  stamme  into  the  nation  or  empire  finds  no 


1  Sohm,  Reichs-und  Gerichtsverf.,  10 ;  Waitz,  Verfassungsgeschichte,  II,  341-44. 

2  "  Das  erste  Streben  des  aufgerichteten  karolingischen  Konigthums  ist 
die  Beseitigung  der  politischen  Bedeutung  des  Stammesverbandes.     Der 
Sieg  Karls  d.  Gr.  iiber  Tassilio  von  Baiern  ist  der  Sieg  der  Reichseinheit 
iiber  die  Stammeseinheit.     Das  Stammesherzogthum  hat  keine  Stelle  in 
der  karolingischen  Reichsverfassung.     Die  karolingische  Dynastie  ignorirt 
ebenso  die  Stammeszusammengehorigkeit  bei  den  Reichstheilungen.      In 
dem  Reichstheilungsentwurf  v.  J.  806  (Pertz,-!,  140)  zieht  Karl  d.  Gr.  eine 
gerade  Linie  mitten  durch  Frankreich  und  Deutschland,  um  aus  dem  nord- 
lich  Gelegenen  ein  Reich  fur  seinen  altesten  Sohn,  aus  dem  siidlich  Gelege- 
nen  zwei  Reiche  fur  die  Beiden  jiingern  Sohne  zu  machen.     Das  Reich 
Lothar  I.  schliesst  spater  die  verschiedenartigsten  Bestandtheile,  Italien, 
Burgund,  Lothringen  in  sich  :"  Sohm,  Reichs-  und  Gerichtsverf.,  11. 

sSohm,  Reichs- und  Gerichtsverf.,  11.     Cf.  Schulte,  Reichs- und  Rechtsges- 
chichte,  181-82 ;  Roth,  Feudalitat  und  Unterthanverband,  26. 


The  Old  English  Shire.  307 

parallel  in  the  ancient  world.  True  the  Roman  Republic  and 
the  Roman  Empire  were  the  result  of  a  certain  kind  of  expan- 
sion. They  were  slowly  built  up  by  the  double  process  of 
confederation  and  conquest.  But  until  the  final  disruption 
began,  the  city  was  the  state,  the  civitas.  Italy  was  simply 
incorporated  in  the  municipality,  and  the  provinces  were  its 
subject  domain.1  Among  the  Greeks  the  polis  was  the  highest 
point  attained  in  the  development  of  the  state.  The  city  was 
formed  by  the  union  of  parts  of  phulai.  But  the  congeries 
of  tribes  as  a  whole,  the  stamm — that  of  the  lonians  for 
example — never  gained  political  significance.2  It  was  merely 
an  ethnic  and  religious  unit.  Much  less  did  the  Greeks  ever 
grasp  the  conception  of  a  national  union  which  should  com- 
prise under  one  sovereignty  all  who  bore  the  name  of  Hellen 
and  worshipped  at  the  shrine  of  Zeus. 

On  the  other  hand  the  expansion  of  the  Teutonic  and  the 
English  monarchies  seems  to  have  proceeded  on  lines  exactly 
parallel.  The  heretogas  of  the  invading  Jutes,  Saxons,  and 
Angles  become  stamm-kiugs  with  magisterial  power ;  the 
Merovingian  empire  finds  its  analogue  in  the  heptarchic  king- 
doms, culminating  in  the  West  Saxon  hegemony ;  and  finally 
under  Edward,  Aethelstan,  or  Canute  we  find  a  sovereignty 
which  commands  the  obedience  of  a  united  English  nation. 

And  the  analogy  does  not  end  here.  If  Charles  the  Great 
ignored  the  stiimme  as  political  or  administrative  bodies,  so 
were  the  heptarchic  kingdoms  disregarded  by  Aelfred  and  his 
successors ;  and  in  both  Gaul  and  Britain  the  ancient  volker- 
schaften  were  revived  as  units  of  the  imperial  administration. 
In  England  the  mediatized  state  was  called  a  scir;  in  the 
empire  of  Charles  it  was  styled  a  gau  or  pagus.3  In  the  Ger- 


1  Freeman,  Comparative  Polities,  95-99;  Fiske,  American  Political  Ideas, 
79-85. 

*  Save  perhaps  temporarily  in  the  struggle  with  Croesus,  Cyrus,  or  Darius. 

3  But  gau  was  sometimes  used  for  the  district  occupied  by  a  stamm :  Sohm, 
Reichs-  und  Qcrichtsverf.,  12.  On  the  different  uses  of  gau  and  pagus,  see 
Waitz,  VerfassungsgeschichU,  II,  320  ff. 


308  Evolution  of  the  Shire  Organism. 

man  gau  as  in  the  English  stir  there  were  two  officers :  the 
domesticus  or  actor,  for  the  management  of  the  royal  domains ; 
and  the  graf,1  to  collect  the  royal  revenues  arising  from  public 
dues  and  taxes,  and  to  act  as  the  king's  agent  in  the  general 
functions  of  government.  In  the  domesticus  we  may  find  the 
faint  analogue  of  the  scirgerefa ;  but  the  graf  is  similar  to  the 
English  ealdorman  only  in  being  placed  at  the  head  of  the 
public  administration.  While  the  ealdorman  is  elected  in  the 
witenagemot,  though  subject  to  the  royal  confirmation,  and 
represents  the  dux  or  princeps  of  a  once  sovereign  state,  the 
graf  like  the  domesticus  is  the  nominee  and  servant  of  the 
king.  Moreover  when,  in  the  Karolingian  period,  he  absorbs 
the  functions  of  the  domesticus2  and  supersedes  the  ancient 
thunginus  or  centenarius  as  president  of  the  hundred  court,  his 
office  bears  a  striking  resemblance  to  that  of  the  Anglo-Norman 
vicecomes  after  the  ealdormanship  had  become  extinct.3 

In  the  Gothic  kingdoms  the  gau  appears  as  civitas,  pagus, 
or  provincia.  The  graf  and  domesticus  are  represented 
respectively  by  the  comes  civitatis  and  the  comes  patrimonii, 
who  perform  the  same  duties  and  bear  the  same  relation  to 
the  monarch  as  the  corresponding  Frankish  officials.4 

Among  the  Lombards  the  analogous  administrative  unit 
is  the  civitas  or  municipal  district;5  and  in  this  instance 


1  The  gau  was  therefore  called  also  Grafschaft :  Sohm,  Reichs-  und  Gerichts- 
verf.,  17.     The  word  Graf  means  "  servant "  and  in  sense  is  the  equivalent 
of  the  Anglo-Saxon  gerefa:  Ib.,  19. 

2  The  office  of  graf  was  sometimes  conferred  on  a  slave :  Sohm,  Reichs- 
und  Gerichtsverf.,  21,  23.     After  the  close  of  the  Merovingian  era  the  offices 
of  domesticus  and  graf,  though  theoretically  distinct,  were  regularly  con- 
ferred upon  one  person  with  title  of  graf:  Ib.,  pp.  16,  17.     On  the  whole 
subject  of  graf  and  domesticus  see  Ib.,  13-22. 

3  Under  the  Karolings  the  graf  became  the  president  of  the  hundred 
court,  and  the  centenarius  or  vicar,  the  analogue  of  the  sacebaro  of  the 
Salian  code,  was  usually  appointed  by  him  as  a  mere  executive  functionary : 
Sohm,  Reichs-  und  Gerichlsverf.,  146-181,  74-101. 

*Sohm,  Reichs-  und  Gerichtsverf.,  22-23. 

5  Stadtgebiet :  Sohm,  Reichs-  und  Gerichtsverf.,  24. 


The  Norman  County.  309 

there  is  a  remarkable  approximation  to  the  dual  organization 
of  the  English  shire.  The  scirgerefa  appears  as  the  gastalde 
who  superintends  the  royal  domains;  and  the  ealdorman  is 
replaced  by  the  dux,  who,  though  appointed  by  the  crown,  is 
no  mere  royal  servant,  but  a  national  magistrate  representing 
the  surviving  sovereignty  of  a  once  independent  volkerschaft; 
and  who  can  only  be  deposed  from  his  office  by  judicial 
process.1 

But  in  one  respect  and  that  of  the  first  importance  the 
organization  of  the  English  shire  is  unique.  The  scirgemot 
with  its  half  sovereign  attributes  is  the  peculiar  possession  of 
the  English  race.  Neither  the  Frankish  gau  nor  the  Lom- 
bard civitas  had  a  popular  council,  the  only  local  assembly 
being  that  of  the  hundertschaft.2  In  other  words  the  gau  was 
not  a  self-governing  local  organism  :  it  was  merely  an  admin- 
istrative agent  of  the  central  power. 

IV. — THE  NOKMAN  COUNTY. 
(a). — The  County  at  the  Mercy  of  the  Sheriff. 

The  first  and  general  result  of  the  Conquest  was  the  draw- 
ing of  the  shire  into  a  closer  dependence  upon  the  crown  and 


1 "  Der  dux  und  dec.  Ealdorman  sind  Vicekonige  mit  einer  dem  Konig 
gegeniiber  sdbstandigen  Gewalt.  Nicht  die  Willkiir  des  Konigs,  sondern  ein 
Satz  der  offentlichen  Verfassung  bestimmt  die  Amtsvollmacht  des  lango- 
bardischen  und  angelsiichsischen  Herzogs.  Nicht  die  Willkiir  des  Konigs, 
nur  gerichtliches  Urtheil  vermag  den  dux  und  Ealdorman  seiner  Stellung 
zu  entkleiden :  "  Sohm,  Reichs-  und  Gerichtsverf.,  25. 

'This  point  as  against  earlier  writers  is  established  by  Sohm,  Reichs-  und 
Gerichtsverf.,  278-297.  Compare  Waitz,  Verfassungsgeschichte,  II,  494  ff.,  IV, 
312-313,  who,  while  agreeing  with  Sohm  as  to  the  Merovingian  period, 
maintains  that  the  judicial  assembly  of  the  Karolingian  period  was  a  Gau- 
versammlung  under  presidency  of  the  graf.  See  also  Rogge,  Cerichlswesen  der 
Qermanen,  45-46,  51;  Palgrave,  Commonwealth,  I,  chap.  Ill;  Stubbs,  Const. 
Hist.,  I,  116;  ln&m&-Steraegg,  Deutsche  Wirthschaflsgeschichte,  57;  Thudichum, 
Gau-  und  Afarkverfassung,  80-82.  On  the  graf  as  judge  see  Fustel  de  Cou- 
langee,  Recherches  sur  Quelqu.es  Problemcs  d'Hisloire,  403  ff. 


310  Evolution  of  the  Shire  Organism. 

the  introduction  of  new  names.  Side  by  side  with  the  Anglo- 
Saxon  scir  appeared  the  Norman  term  counte,  county,1  and 
the  scirgemot  became  the  county  court.  The  functions  of  the 
scirgerefa  were  transferred  to  the  vicecomes  or  viscount ;  but 
the  ancient  English  title  was  still  used  by  the  people,  and 
soon  thrust  aside,  save  in  official  documents,  the  foreign  inter- 
loper altogether.2 

The  Norman  sheriff  was  in  a  peculiar  sense  a  royal  agent 
and  he  ruled  the  county  with  an  iron  hand.  His  power,  par- 
ticularly in  fiscal  matters,  was  very  great,  and  his  office  even 
showed  a  tendency  to  become  hereditary,  as  it  had  been  in 
Normandy ; 3  but  this  was  not  permanently  effected,  and 
though  the  people  strove  to  gain  the  right  of  appointment, 
throughout  the  whole  of  English  history  he  has  remained  an 
appointed  lieutenant  of  the  crown.4  The  sheriff  was  still  the 
constitutive  officer  of  the  county  court ;  but  the  ealdorman  no 
longer  sat  with  him  as  the  people's  representative,6  and  the 
bishop,  likewise,  soon  ceased  to  appear  as  an  expounder  of  the 
canon  law ; 6  for  spiritual  causes  were  transferred  to  special 
ecclesiastical  tribunals.  Thus  early  did  the  differentiation  in 
functions  begin. 

The  shire  court  existed  throughout  the  Conqueror's  reign 
and  that  of  Rufus,  but  it  seems  to  have  been  employed  chiefly 
as  a  means  of  extortion,  severe  fines  being  imposed  for  non- 
attendance  of  suitors.  It  had  in  fact  ceased  to  be  a  free 


1  County,  count£,  O.  F.  conte,  count,  from  comes:  Skeat,  at  "count."     The 
official  Latin  term  for  county  was  comitalus. 

2  Gneist,  II,  25. 

8  Stubbs,  Const.  Hist.,  I,  272. 

4  Gneist,  II,  26.     On  the  history  of  the  appointment  of  sheriff  see  Stubbs, 
Const.  Hist.,  II,  206-8. 

5  The  ealdorman  had  been  superseded  by  the  earl  and  ceased  to  sit  in  the 
shiremoot  before  the  Conquest.    See  Smith,  Hist.  Eng.  Inst.,  75 ;  Stubbs,  Const. 
Hist.,  I,  160. 

6  The  act  by  which  William  separated  the  spiritual  and  lay  jurisdictions 
is  found  in  Select  Charters,  p.  85,  and  Thorpe,  Anc.  Laws,  I,  495.     The  date 
is  not  given :  Stubbs,  Const.  Hist.,  I,  277,  283. 


The  Norman  County.  311 

assembly  and  had  become  merely  a  fiscal  machine  of  the 
crown. 

But  a  charter  of  Henry  I  issued  between  the  years  1108 
and  1112  marks  an  epoch  of  revival.  By  this  it  was  pro- 
vided that  both  the  hundred  and  shire  courts  should  be  held 
"  as  in  the  time  of  King  Edward  and  not  otherwise."  l  From 
this  period  the  court  was  held  twice  a  year  and  the  suitors 
were  still,  in  theory,  the  "  reeve  and  four "  with  the  parish 
priest  from  each  township  and  all  lords  of  land  :  vicars,  earls, 
bishops,  hundredmen,  bailiffs,  barons,  vavassors;  only  vtt- 
leins  and  other  inferior  men  being  excluded.2  In  practice, 
however,  the  attendance  was  probably  limited  to  those  suitors 
who  had  a  voice  as  judges  or  jurors :  possibly  such  were  the 
judices  and  juratores  of  the  laws  of  Henry  I.3  Besides  this 
limitation  the  attendance  was  further  decreased  by  the  exemp- 
tion of  lords  with  grants  of  criminal  jurisdiction,  those  who 
had  compounded  for  non-attendance,  and  all  tenants  in 
capite* 

The  shire  court  still  possessed  both  civil  and  criminal  juris- 
diction ;  but  the  former  was  greatly  restricted  by  the  royal 
writs  of  praecipe  by  which  suits  relating  to  land  or  the  debts 
of  laymen  could  be  arbitrarily  taken,  in  the  first  instance, 
before  the  curia  regis ;  and  the  latter,  by  the  practice  of  re- 
quiring the  sheriff  to  record  the  graver  criminal  cases,  com- 
prised under  the  head  of  "  pleas  of  the  crown,"  for  the  view 
of  the  king's  justices  in  their  provincial  visitations.  Both  of 
these  practices  were  known  in  the  later  Saxon  period,  but  had 
not  become  customary.5 


Stubbs,  Select  Charters,  103-4;  Const.  Hist.,  I,  394. 

1  Bigelow,  History  of  Procedure  in  England,  132-3 ;  Stubbs,  Const.  Hist.,  I, 
394 ;  Leges  Hen.  /,  VII,  1,  2,  6 :  Schmid,  Gesetze,  440 ;  Select  Charters,  104-6. 

*  Bigelow,  Hist,  of  Procedure  in  Eng.,  134-5 ;  Stubbs,  Const.  Hist.,  I,  396-7  ; 
Leges  Hen.  T,  29 :  Schmid,  Oesttze,  449 ;  Pipe  RoU,  H.  /.,  pp.  27-28. 

4  Bigelow,  Hist,  of  Procedure  in  Eng.,  133-4 ;  Stubbs,  Const.  Hist.,  I,  397. 

'Stubbe,  Const.  Hist.,  I,  187,  394. 


312  Evolution  of  the  Shire  Organism. 


(6). — The  National  and  the  Local  Organisms  meet  in  the 
County  Court. 

A  new  era  began  when  the  jurisdiction  of  the  crown — for 
the  good  of  the  nation  ever  increasing,  though  by  encroach- 
ment upon  the  local  tribunals — was  systematically  adminis- 
tered in  the  county  courts  by  the  itinerant  justices.  This  stage 
was  reached  in  the  reign  of  Henry  II ;  and  from  this  time 
the  court  met  in  two  forms  or  sessions :  the  plenus  comitatus 
or  "full  session"  called  to  meet  the  national  judges,  and  the 
ordinary  session  held  by  the  sheriff.  From  attendance  upon 
the  former  there  was  no  exemption — even  the  most  powerful 
lords  of  franchises  must  pay  suit  and  service  to  the  royal  jus- 
tices. It  was  here  in  the  formation  of  juries  for  assizes  and 
appraisements  that  the  principle  of  representation  received  a 
mighty  impulse.  The  full  session  was  "  still  the  folkmoot " 
and  contained  "thus  all  the  elements  of  a  local  parliament — all 
the  members  of  the  body  politic  in  as  full  representation  as 
the  three  estates  afterwards  enjoyed  in  the  general  parliament." ] 

The  ordinary  session,  according  to  a  law  of  Henry  III, 
1217,  was  to  be  held  not  oftener  than  once  a  month.2  By  the 
Provisions  of  Westminster,  1259,  and  the  Statute  of  Marl- 
borough,  1267,  all  "magnates" — those  above  simple  freemen 
— were  excused  from  attendance ;  and  by  the  Statute  of  Mer- 
ton,  1236,  even  the  latter  could  appear  by  attorney,  or  if 
suitors  of  the  franchise  courts,  they  could  secure  entire  ex- 
emption by  money  composition.3  Thus  the  influence  of  the 
ordinary  county  court  waned ;  and  its  importance  was  further 
diminished  by  the  clause  of  magna  charta  prohibiting  the  pri- 
vate and  other  local  courts  from  determining  pleas  of  the 


^tubbs,  Const.  Hist.,  II,  205. 

2  The  duty  of  attendance  seems  to  have  been  felt  as  a  severe  burden,  and 
the  sheriff  sought  to  increase  the  number  of  meetings  for  the  sake  of  the 
fines  for  non-attendance. 

3Stubbs,  Const.  Hist.,  II,  205,  52. 


The  Norman  County.  313 

crown :  the  latter  embracing  not  only  graver  crimes  such  as 
murder,  but  also  minor  offences  such  as  housebreaking  and 
assault.1  But  this  was  in  part  balanced  by  abolition  of  the 
abuse  of  writs  of  praecipe.2 

Notwithstanding  all  drawbacks,  in  the  age  of  Edward  I  the 
county  was  still  a  living,  self-governing  body  and  its  court 
was  the  chief  point  of  contact  between  the  central  and  local 
jurisdictions.  Bishop  Stubbs  arranges  the  business  of  the 
court  under  six  heads :  1.  The  judicial  work  of  the  body  in 
both  ordinary  and  full  sessions.  2.  The  conservation  of  the 
peace.  All  writs  directing  the  keeping  of  watch  and  ward, 
taking  the  oath,  and  the  pursuit  of  malefactors  were  proclaimed 
in  full  county  court.  Here  also  were  elected  the  coroner  and 
the  early  custodians  and  conservators  of  the  peace.  3.  Mili- 
tary functions.  The  county  was  the  unit  of  the  national 
militia  organization,  the  minor  tenants  in  chief  and  the  mass 
of  freemen  sworn  under  the  assize  of  arms  being  commanded 
by  the  sheriff:  and  sometimes  even  the  feudal  array  of  barons 
was  placed  under  his  direction  by  the  king.  "  In  every  change 
of  military  organization,  and  there  were  several  such  changes 
in  the  course  of  the  thirteenth  century,  the  sheriff  retains  his 
place."3  4.  The  execution  of  remedial  measures.  Complaints 
of  evil  customs  and  demands  of  redress  were  made  in  Parlia- 
ment by  knights  elected  in  the  county  court;  and,  in  like 
manner,  parliamentary  measures  enacted  in  respect  to  such 
demands  were  executed  by  juries  chosen  by  the  same  body. 
5.  The  fiscal  business,  the  most  important  function  of  the 
shire.  All  taxes  of  whatever  description  were  usually  assessed 


1  Magna  Charta,  c.  24:  Thompson,  Magna  Charta,  203  ff.;  Glanville,  I,  2: 
Phillips,  Eng.  Reichs-  und  Rechtsgeschichte,  II,  337  ;  Creasy,  Eng.  Const.,  127 ; 
Stephen,  Hist,  of  Orim,  Law,  I,  82  ff;  Blackstone,  Commentaries,  III,  40;  IV, 
1,  424;  Stubbs,  Const.  Hist.,  I,  187,  382-3. 

1  Magna  Charta,  c.  34 :  Thompson,  Magna  Charta,  215 ;  Creasy,  Eng.  Const., 
133;  Reeves,  Hist,  of  Eng.  Law,  II,  44;  Smith,  Hist.  Eng.  Inst.,  81 ;  Black- 
stone,  Commentaries,  III,  274,  195. 

1  Const.  Hist.,  11,210. 


31 4  Evolution  of  the  Shire  Organism. 

and  collected  by  juries  elected  in  the  county  court,  or  occa- 
sionally in  the  hundred ;  and  a  remarkable  proof  of  the 
former  national  character  of  the  county  is  found  in  the  fact 
that  in  this  period,  not  only  the  assessment  and  collection  of 
the  state  revenue,  but  sometimes  even  the  right  to  vote  or 
grant  the  same,  was  claimed  and  enforced  as  the  prerogative  of 
each  individual  shire.1  6.  The  right  of  the  county  as  a  body 
politic  to  approach  the  crown  by  petition  or  otherwise  through 
the  sheriff  or  elected  representatives2 — a  right  which  still  sur- 
vives in  the  power  of  the  grand  jury  to  make  presentments 
before  the  royal  judges  on  matters  of  local  concern.3 


V. — THE  MODERN  ENGLISH  COUNTY  :  DISSOLUTION  OF 
THE  COUNTY  COURT. 

The  Norman  county  as  a  form  of  local  government  reached 
its  highest  point  of  development  in  the  age  of  Edward  I ;  but 
the  seeds  of  decay  were  already  planted.  The  sheriff  was  no 
longer  the  all-powerful  royal  governor  with  the  vast  jurisdic- 
tion possessed  during  the  earlier  reigns ;  and  the  elective  office 
of  coroner,  which  appeared  as  early  as  1194,  seems  to  have 
been  designed  at  once  as  check  and  complement  to  the  police 
and  judicial  powers  of  the  king's  nominee. 

Furthermore  a  new  institution,  the  creation  of  royal  author- 
ity, was  about  to  supersede  the  county  court  in  many  of  its 
surviving  functions.  This  was  the  office  of  justice  of  the 
peace,  the  full  development  of  which  in  the  age  of  Edward 
III,  marks  the  most  important  epoch  in  the  history  of  the 
county.  From  this  time  onward  the  shire  found  a  new  center 
in  the  quarter  sessions,  to  which  court,  in  conjunction  with  the 
other  tribunals  of  the  justices,  not  only  the  peace  jurisdiction, 


1  Stubbs,  Const.  Hist.,  II,  214-15. 

*  On  the  whole  subject  see  Stubbs,  Const.  Hist.,  II,  215-16. 

8  Chalmers,  Local  Government,  92. 


The  Modem  English  County.  315 

but  also  a  vast  portion  of  the  ever  increasing  administrative 
business  of  the  county,  was  transferred. 

The  quarter  sessions  likewise  more  than  recovered  the 
criminal  jurisdiction  which  the  ancient  county  court  had  lost. 
And  this  function  became  eventually  the  source  of  frequent 
abuse.1  But  it  is  important  to  note  that,  though  the  old  shire 
court  fell  into  decay,  it  did  not  entirely  perish ;  its  ancient 
organization  as  a  folkmoot  was  still  preserved  for  the  election 
of  coroners,  verderers,  and  knights  of  the  shire.  Thus  the 
county  had  two  centers  :  the  old  scirgemot,  the  meeting  of  the 
volk,  with  decaying  functions ;  and  the  new  justices'  courts, 
branches  of  the  royal  jurisdiction,  whose  powers  and  range  of 
duties  were  constantly  expanding.  Finally,  it  is  of  particular 
importance  to  notice  in  passing  that  it  was  the  new  institution, 
and  not  the  old,  which  became  the  model  for  the  county  courts 
of  the  American  colonies. 

With  the  advent  of  the  quarter  sessions  two  new  county 
officials  make  their  appearance:2  the  custos  rotulorum,  or 
keeper  of  the  records — the  analogue  of  the  royal  keeper  of 
the  rolls ;  and  the  "  clerk  of  the  peace," 3  the  prototype  of  the 
American  county  clerk.  The  custos  is  the  principal  justice  of 
the  peace  and  heads  the  list  of  names  in  the  commission.  The 
office  is  usually  conferred  upon  a  peer ; 4  and  the  actual  duties 
of  the  post  are  performed  by  the  clerk  of  the  peace  who  is 
nominated  by  the  custos  and  for  whose  acts  the  latter  is  re- 
sponsible. 

The  sheriff  had  already  lost  his  ordinary  criminal  jurisdic- 
tion through  magna  charta  and  his  ordinary  civil  jurisdiction 
through  the  development  of  the  national  courts.  He  now 


'See  Stephen,  Hist,  Crim.  Law,  I,  114  f.;  Smith,  Hist.  Eng.  Inst,,  p.  108; 
Blackstone,  Commentaries,  IV,  282  ff. 

1  Gneist,  II,  190;  Chalmers,  Local  Government,  93. 

1  Known  also  in  early  times  as  aUornatus  domini  rcgis,  "  clerk  of  the  crown," 
"clerk  of  the  justices":  Gneist,  II,  192. 

*  Gneist,  II,  190-2;  Chalmers,  Local  Government,  94. 


316  Evolution  of  the  Shire  Organism. 

loses  his  police  jurisdiction  through  the  justices  of  the  peace ; 
and  is  soon  destined  to  surrender  his  military  authority  to  the 
lord  lieutenant.1 

The  latter  office  was  created  by  Henry  VIII  in  1545  and 
it  is  of  peculiar  interest  on  account  of  its  history  in  the  Am- 
erican colonies.  It  was  a  revival  of  the  office  of  the  ancient 
ealdorman  :  for  the  lord  lieutenant,  and  not  the  sheriff,  was 
commander  of  the  host.  Thus  the  continuity  in  functions  of 
the  ancient  tribe  chief  and  the  princeps  was  maintained.2  But 
the  office  had  never  entirely  expired.  From  time  to  time  the 
crown  had  always  exercised  the  right  to  appoint  "  commis- 
sioners of  array,"  other  than  the  sheriff,  to  command  the 
military  contingent  of  the  shire.3 

The  lord  lieutenant  is  appointed  by  special  commission  of 
the  crown;  and  until  1871  ranked  as  "the  first  military 
officer  of  the  county ; "  and  since  the  office  of  custos  rotulorum 
is  usually  conferred  upon  him,  he  is  still  second  only  to  the 
sheriff  as  its  civil  head.4  The  latter  retains  the  ancient  right 
to  call  out  the  force  of  the  county  in  case  of  sudden  emer- 
gency ;  but  the  posse  comilatus  headed  by  the  sheriff  exists 
only  in  name.  In  1871  the  militia  jurisdiction  of  the  lord 
lieutenant  was  taken  away  and  revested  in  the  crown.5 

Besides  those  already  enumerated,  the  officers  of  the  modern 
county  are  the  surveyor,  the  county  police,  and  the  county 
analyst,  the  latter  appointed  by  the  quarter  sessions  under  the 
acts  for  the  "  sale  of  food  and  drugs." 6  There  is  also  a  county 
treasurer  appointed  by  the  justices  in  quarter  sessions,  whose 
chief  duty  is  the  collection  of  the  county  rate  and  the  custody 


1  For  this  see  Gneist,  II,  25 ;  cf.  Stephen,  Hist.  Grim.  Law,  I,  77-85,  for  the 
decay  of  the  sheriff's  jurisdiction.     Reeves,  Hist,  of  Eng.  Law,  II,  45. 
2Hallam,  Const.  Hist.,  II,  133;  Chalmers,  Local  Government,  93. 
3  Gneist,  II,  55. 
*  Gneist,  II,  57. 

6  Chalmers,  Local  Government,  92-3. 
6  Chalmers,  Local  Government,  100. 


The  Modern  English  County.  317 

of  the  county  funds.  This  officer  has  existed  at  least  from  the 
reign  of  Elizabeth.1 

Modern  legislation  has  nearly  completed  the  dissolution  of 
the  ancient  shire.  Its  boundary  lines  have  been  ruthlessly  cut 
and  intersected  by  the  innumerable  artificial  districts  created 
for  administrative  purposes.2  Even  the  territorial  jurisdictions 
of  the  "new  county  courts"  created  in  1846  have  no  respect 
for  the  old  county  lines.3  From  this  date  there  have  been  two 
tribunals  bearing  the  name  of  "county  court."  The  younger 
court  has  deprived  the  elder  of  the  last  vestige  of  its  juris- 
diction in  civil  causes ;  but  it  has  no  practical  connection  with 
the  county.4 

The  jury  for  centuries  has  superseded  the  collective  freemen 
as  judges.  The  justices,  the  guardians  of  the  poor,  and  other 
boards,  have  absorbed  the  greater  portion  of  the  administra- 
tive business.  The  old  county  court  possesses  but  a  remnant 
of  its  original  powers.  Here  the  coroner  is  still  elected,  out- 
lawry may  be  proclaimed,  and  in  theory  it  is  still  the  duty 
of  the  sheriff  to  publish  in  the  county  court  all  acts  passed  by 
the  legislature.5  Until  recently  an  important  feature  of  its 
primitive  character  as  a  folcgemot  was  preserved  in  the  open 
election  of  members  of  Parliament  in  full  court,  held  by  the 
sheriff  as  returning  officer ;  but  since  the  introduction  of  the 


(1871),  pp.  121,  374-5.  But  it  seems  to  have  been  introduced 
gradually.  Thus  in  Devon  the  treasurer  first  appears  as  a  permanent  officer 
in  the  reign  of  Charles  I.  Hamilton,  Quarter  Sessions,  114. 

J  See  Chalmers,  Local  Government,  pp.  17  ff. 

»Gneist,  II,  159-63;  Smith,  Hist.  Eng.  Inst.,  104-5;  Maitland,  Justice 
and  Police,  23  ff.;  Chalmers,  Local  Government,  92. 

*  But  the  new  courts,  in  theory,  are  branches  of  the  old  county  court  held 
by  the  sheriff.  Gneist,  II,  159 ;  Maitland,  Justice  and  Police,  22 ;  Smith, 
Hist.  Eng.  Inst.,  105-6. 

5  Chalmers,  Local  Government,  92.  '  On  the  modern  English  county  see  the 
excellent  essay  of  Brodrick,  Local  Government  in  England  in  the  Cobden 
Club  volume  on  Local  Govt.  and  Taxation,  pp.  5  fl'.;  also  Acland,  County 
Boards,  in  Ib.  89  ff. 


318  Evolution  of  the  Shire  Organism. 

ballot  and  the  division  of  the  county  into  polling  districts, 
even  this  has  become  a  "  shadow."  * 

The  prominent  characteristic  of  the  present  county  is  its 
centralization — its  dependence  upon  the  crown ;  all  its  officers, 
save  the  coroner,  are  royal  nominees;  and  in  this  respect 
English  county  government  presents  a  striking  contrast  to  the 
democratic  elective  system  prevailing  in  the  United  States.2 


1  Cf.  Maitland,  Justice  and  Police,  22. 

2  It  should  be  remembered  that  however  popular  may  be  the  govern- 
ment of  the  parish  or  union,  these  have  nothing  to  do  with  the  county  as 
such ;  and,  granting  that  the  county  justices  and  the  other  officers  are  prac- 
tically the  people's  representatives,  such  as  would  be  selected  if  the  elective 
principle  prevailed,  still  the  county  is  little  more  than  an  imperial  admin- 
istrative district. 

On  the  similarity  of  the  English  to  the  Hungarian  county,  see  Goldsmid, 
Journal  Brit.  Arch.  Association,  1872,  pp.  241  ff. 


CHAPTER  VII. 

RISE  OF  THE  COUNTY  IN  THE  NEW 
ENGLAND  COLONIES. 

I. — ORIGIN  IN  VARIOUS  JURISDICTIONS. 

In  New  England,  as  already  seen,  the  local  center  of  politi- 
cal life  was  the  town-meeting,  and,  naturally,  historians  have 
found  the  latter  a  subject  of  absorbing  interest.  But  from  an 
institutional  point  of  view  it  would  seem  that  in  fixing  the 
attention  too  closely  upon  the  action  of  the  town  communities, 
scant  justice  has  been  done  to  other  members  of  the  local 
organism.  The  county  system  of  New  England,  more  par- 
ticularly of  Massachusetts,  has  received  nothing  like  the 
attention  which  it  deserves,  whether  as  compared  with  the 
township  or  with  the  contemporary  shire  organization  of  the 
mother  country. 

Not  until  a  number  of  years  after  the  settlement  of  each 
colony  was  the  shire  introduced.  So  long  as  the  assistants  or 
the  general  court  were  able  to  discharge  the  functions  of  a 
higher  judiciary  for  all  important  causes,  and  the  colonial 
marshals  could  execute  their  processes,  town  government 
sufficed ;  but  with  the  increase  of  population,  the  extension 
of  settlements,  and  the  vast  expansion  in  the  volume  of  busi- 
ness, arose  an  imperative  demand  for  a  district  between  the 
province  and  the  isolated  communities. 

Thus  in  1665,  after  the  union  of  the  New  Haven  and 
Hartford  jurisdictions,  county  courts  were  first  instituted  in 

319 


320      Rise  of  the  County  in  the  New  England  Colonies. 

/  Connecticut;1  and  in  the  following  year  the  extent  of  the 
four  counties  was  definitely  defined.2  The  county  court,  as 
gradually  developed  by  various  acts,  consisted  of  several  of 
the  town  "commissioners"  or  county  justices  of  the  peace 
and  one  or  more  magistrates  appointed  by  the  general  assem- 
bly.3 Its  jurisdiction  extended  to  all  criminal  actions  "except 
those  of  life,  limb,  or  banishment,"  and  to  all  civil  causes, 
those  for  more  than  twenty  shillings  being  tried  by  a  jury. 
Appeal  lay  to  the  supreme  court  consisting  of  eight  magis- 
trates at  least.4 

Only  in  1703  were  the  first  two  counties  in  Rhode  Island 
incorporated  each  with  a  court  of  common  pleas.5  But  already 
in  1729  increase  of  population  rendered  reorganization  neces- 
sary, and  the  whole  colony  was  divided  into  three  new 
counties.6  The  judiciary  was  also  remodelled,  each  county 
having  two  courts  similar  to  those  existing  elsewhere  in  the 
colonies  during  the  same  period :  the  "  general  sessions  of 
the  peace"  for  criminal  actions  held  by  the  county  justices; 
and  the  "  court  of  common  pleas  "  for  civil  cases  held  by  four 
judges  appointed  by  the  assembly.7 


1  Conn.  Col.  Eec.,  II,  25:  To  be  held  by  not  less  than  two  "Assistants" 
with  two  or  more  "  Commissioners "  (equivalent  to  town  justices  of  the 
peace),  "to  ye  number  of  fiue  judges  at  least."    Cf.  Trumbull,  Hist,  of  Conn., 
I,  276-7 ;  Hildreth,  I,  462.     Later,  justices  of  the  peace  for  each  county 
were  commissioned  by  the  general  court:  Conn.  Col.  Eec.,  1689-1706,  pp. 
235,  324,  376. 

2  Conn.  Col.  Eec.,  II,  35 ;  Trumbull,  Hist,  of  Conn.,  I,  316 ;  Johnston,  Con- 
necticut, 189-190. 

3  Conn.  Col.  Rec.,  1689-1706,  pp.  235-6,  357-8  ;  Trumbull,  Hist,  of  Conn., 
I,  277,  316. 

4  Trumbull,  Hist,  of  Conn.,  I,  277,     For  various  acts  see  Conn.  Col.  Eec., 
1689-1706,  pp.  268,  324,  376,  etc.    On  New  Haven  county  before  the  union 
see  the  two  volumes  of  Colonial  Records  and  Bacon's  Civil  Govt.  in  New 
Haven,  in  New  Haven  Hist.  Soc.  Papers,  I,  11-27  ;  Levermore,  36  ff. 

5  Green,  Short  Hist,  of  E.  L,  341-2 ;  Hildreth,  II,  254 ;  Arnold,  Hist,  of  E. 
I.,  II,  12-13. 

«E.  I.  Col.  Eec.,  IV,  427-8 ;  Public  Laws,  1730,  p.  188 ;  Hildreth,  II,  313; 
Arnold,  II,  97-8 ;  Durfee,  Gleanings,  15. 
7  The  four  judges  were  in  fact  chosen  from  county  justices  of  the  peace — 


Origin  in  Various  Jurisdictions.  321 

In  like  manner  the  Plymouth  jurisdiction  was,  at  a  late 
period,1  divided  into  three  counties,  each  with  a  court  held  by 
assistants  and  associates;  the  latter  being  originally  appointed 
by  the  general  court,  but  subsequently  elected  by  the  people 
in  the  several  shires.2 

In  all  these  colonies,  especially  in  Rhode  Island  and  Ply- 
mouth, the  county  seems  to  have  had  comparatively  little 
significance  save  as  a  judicial  district;  though  in  Connecticut 
it  \\  as  also  the  higher  military  unit :  the  train-bands  of  the 
different  towns  in  each  being  formed  into  a  regiment  under  an 
elected  sergeant  major.3 

But  whatever  may  be  said  as  to  the  importance  of  county 
organization  elsewhere  in  New  England,  there  is  little  ground 
for  the  difficulty  which  some  writers  seem  to  find  in  compre- 
hending the  raison  d'etre  of  the  Massachusetts  shire.4  The 
history  of  the  latter  as  an  institution  is  only  second  in  interest 
to  that  of  the  township.  It  was  a  most  active  and  useful 
organism  being  employed  for  at  least  four  important  purposes: 
as  a  judicial  district,  an  area  for  rating  and  equalization  of 


the  two  courts  being  held  by  the  same  men:  Durfee,  Gleanings,  31.  The 
development  of  the  judicial  system  of  Rhode  Island,  from  the  period  of  the 
four  "isolated  states"  onward,  affords  a  remarkable  example  of  institutional 
evolution.  See  Vol.  I  of  Rhode  Island  Col.  Records,  Vol.  I  of  Arnold,  and 
especially  Judge  Durfee's  admirable  Gleanings  from  the  Judicial  History  of 
Rhode  Island,  just  cited.  It  constitutes  No.  18  of  the  JR.  I.  Hist.  Tracts. 

1  In  1685,  before  which  date  the  town  selectmen  were  the  only  tribunals 
below  the  court  of  assistants :  3  Mass.  Hist.  Coll.,  II,  267  ;  Barber,  Hist.  Coll. 
of  Mass.,  493. 

»P/ym.  Col.  Rec.,  VI,  193-4,  247,  267. 

sOmn.  Col.  Rec.,  1678-89,  pp.  61-3;  1689-1706,  pp.  226,  462,  465.  See 
especially  the  letter  of  John  Allyn  to  Gov.  Andros,  Oct.  15,  1688,  in  Ib., 
1678-89,  pp.  450-1. 

4 The  following  sketch  of  New  England  county  government  is  based 
mainly  on  the  original  Colonial  Records,  the  Province  Laws,  and  certain 
county  court  records  of  Massachusetts.  Hence  it  has  seemed  best  to  offer 
in  advance  the  preceding  synopsis  of  leading  facts  relating  to  the  origin  of 
the  county  in  the  other  New  England  colonies. 

21 


322.      Rise  of  the  County  in  the  New  England  Colonies. 

assessments,  a  higher  military  unit,  and  as  a  factor  in  the 
system  of  official  nominations. 

II. — EVOLUTION  OF  THE  SHIRE  COURTS. 
(a). — The  Quarter  Courts. 

The  judicial  business  of  the  shire  has  always  been  its  chief 
function  and  it  was  the  first  for  which  it  was  employed  in 
Massachusetts.  Previous  to  1636  the  entire  judicial  work  of 
the  colony  had  been  discharged  by  the  general  court  arid  the 
court  of  assistants.1  But  in  that  year  it  was  ordered  that 
"  the  governor  and  the  rest  of  the  magistrates  "  should  hold 
four  great  quarter  courts  yearly  at  Boston.2  These  courts 
had  both  civil  and  criminal  jurisdiction  in  all  causes,  with 
appeal  to  the  general  court  whose  regular  meetings  were  now 
reduced  to  two  each  year.3  At  the  same  time  inferior  tribu- 
nals, called  "  quarter  courts,"  in  distinction  from  the  "  great 
quarter  courts"  just  mentioned,  were  erected. 

It  was  ordered  "that  four  courts  should  be  kept  every 
quarter :  1 ,  at  Ipswich,  to  which  Newberry  shall  belong ;  2, 
at  Salem,  to  which  Saugus  shall  belong ;  3,  at  New  Town,  to 
which  Charlestown,  Concord,  Medford,  and  Watertown  shall 
belong ;  4,  at  Boston,  to  which  Roxbury,  Dorchester,  Wey- 
mouth,  and  Hingham  shall  belong."     Each  of  these  courts     , 
was   held   by  a   magistrate   dwelling   near  the  court  town, «/ 
specially  designated  for  the  purpose  by  the  general  court,4 


1  From   1629  onward  to  1634,  when  deputies  were  first  returned,  the 
general  court  was  composed  of  the  governor,  deputy  governor,  treasurer, 
assistants,  and  freemen,  meeting  according  to  the  charter   four  times  a 
year ;   whereas  the  court  of  assistants  was  to  meet  monthly.     Thereafter 
the  freemen  only  appeared  at  the  "  General  Court  of  Election,"  not  at  the 
legislative  session. 

2  Mass.  Col.  Rec.,  I,  169. 

3  Mass.  Col.  Rec.,  I,  169-70. 

4 "  Soe  as  noe  Court  shalbe  kept  without  one  magistrate  att  the  least,  & 
that  none  of  the  magistrates  be  excluded,  whoe  can  &  will  intend  the  same; 


Evolution  of  the  Shire  Courts.  323 

together  with  four  associates — "persons  of  worth" — appointed 
also  by  the  general  court,  but  from  a  greater  number  nomi- 
nated by  the  several  towns.  Their  jurisdiction  extended  to 
all  civil  cases  involving  not  more  than  ten  pounds,  and  all 
criminal  causes  "not  concerneing  life,  member,  or  banish- 
ment." Appeal  lay  to  the  great  quarter  courts.1 

In  1638  still  lower  tribunals  for  the  "ending  of  small 
causes  involving  not  to  exceed  20  shillings  were  established. 
These  were  held  either  by  a  single  magistrate,  or,  in  towns 
where  no  magistrate  dwelt,  by  three  commissioners  appointed 
by  the  general  court,  any  two  of  whom  were  authorized  to 
act.  Appeal  lay  to  the  "  quarter  courts "  or  "  court  of 
assistants."3 

THE  RECORDS  OP  A  QUARTER  COURT. 

The  four  quarter  courts  established  in  16363  are  especially 
interesting  as  being  the  germs  of  the  later  "  county  courts  ; " 
and  the  original  records  of  their  proceedings,  still  in  part  pre- 
served, demonstrate  that  their  functions  were  essentially  the 
same  in  character  as  those  of  the  quarter  sessions  created 
under  the  second  charter.  Thus,  in  addition  to  the  judicial 
work  proper,  these  early  tribunals  like  the  later  were  en- 
trusted with  the  performance  of  a  certain  amount  of  general 
executive  and  administrative  business.  Their  records  are  in 
consequence  exceedingly  instructive,  throwing  many  a  power- 
ful side-light  on  the  social  condition  and  moral  sentiments  of 
the  age,  and  thus  furnishing  a  unique  and  invaluable  com- 
plement to  the  town  records  themselves.  Not  least  among 


yet  the  Genall  Court  shall  appoynct  wch  of  the  magistrates  shall  specially 
belonge  to  euy  of  saide  Court."  Mass.  Col.  Rec.,  I,  169. 

lMtus.  Col.  Rec.,  I,  169. 

1  Mass.  Col.  Rec.,  I,  239. 

3  Wa.shburn,  Judicial  Hist,  of  Mass.,  30,  states,  erroneously,  that  these 
courts  were  created  in  1639. 

4 The  quarter  courts  are  styled  "county  courts"  in  the  margin  of  the 
Mass.  Col.  Rec.,  1,  169. 


324      Rise  of  the  County  in  the  New  England  Colonies. 

/the  many  important  services  rendered  to  the  historical  student 
by  the  Essex  Institute  has  been  the  printing  of  the  court 
records  of  Essex  county  for  the  years  1636-1 6 41. * 

The  minutes  of  each  session  are  usually  introduced  by  an 
entry  of  the  names  of  the  magistrates  and  commissioners 
present.  The  latter,  if  newly  appointed,  then  take  the  oath 
of  office  which  runs  as  follows  : 

"  You  doe  heere  take  God  to  witness  and  doe  sweare  by  his 
name  that  in  all  causes  or  controversies  that  shall  come  before 
yo*  you  will  in  God's  feare  use  yo*  best  skill  &  abilitye  dilli- 
gentlie  to  search  out  &  rightlie  to  iudge  w%ut  ptiallitie, 
betweene  cause  and  cause  &  ptie  &  ptie  according  to  the  testi- 
monie  &  euidence  that  is  brought  before  yow.  so  help  yo* 
God."2 

Then  follows  ordinarily  a  record  of  such  business  as  could 
be  transacted  by  the  court  without  a  jury;  such  as  the  remis- 
sion of  penalties  ;3  the  imposition  of  fines  for  absence  at  court 
or  from  the  jury,4  for  taking  excessive  wages,5  or  for  petty 
breaches  of  the  peace ;  and  the  passing  of  orders  relating  to 
the  civil  administration  of  the  shire.  Finally,  the  minutes  of 
each  session  usually  conclude  with  the  names  of  the  jurors 
and  a  record  of  the  causes  in  process  of  litigation. 

As  already  intimated  these  courts  seem  to  have  possessed 
the  germs  of  the  later  extensive  civil  and  police  administration 
of  the  county  courts.  Thus  the  Salem  tribunal  passed  orders 
relating  to  the  repair  and  construction  offences;6  the  direction 
of  the  town  watch,  and  the  viewing  of  boats.7  It  also  acted 


1  In  Hist.  Collections  of  the  Essex  Institute,  vols.  VII,  VIII,  communicated 
by  A.  C.  Goodell. 

2  Hist.  Coll.  Essex  Inst.,  VII,  17,  19. 

3  Hist.  Coll.  Essex  Inst.,  VII,  89;  VIII,  191. 

4  Hist.  Coll.  Essex  Inst.,  VII,  19,  87,  186. 
*Hist.  Coll.  Essex  Inst.,  VII,  87. 

6  Hist.  Coll.  Essex  Inst.,  VIII,  126,  128,  190. 

''Hist.  Coll.  Essex  Inst.,  VII,  19.     "It  was  ordered  and  agreed,  for  this 
Towne  of  Salem,  viz:  That  all  the  Canooes  of  the  North  syde  of  the  Towne 


Evolution  of  the  Shire  Courts.  326 

as  a  court  of  probate  and  administration.1  And,  according  to 
Washburn,2  these  tribunals  were  authorized  to  lay*  out  high- 
ways, license  houses  of  entertainment,  provide  for  the  support 
of  an  able  ministry,  and  admit  persons  as  freemen  of  the  colony. 
Various  forms  of  corporal  punishment,  some  of  them  rather 
peculiar,  were  imposed  for  petty  offences.  Exposure  in  the 
stocks,  especially  on  training-days,  was  of  frequent  occur- 
rence ; 3  and  at  nearly  every  session,  persons  were  condemned 
to  be  publicly  whipped  by  the  constable,  run-away  appren- 
tices being  particularly  unlucky  in  this  regard.4  Indeed 
apprentices  furnished  the  court  with  constant  employment. 
For  "  being  overseen  in  drink " — a  frequent  offence — they 
were  punished  by  fines  recoverable  from  their  masters,  the 
latter,  as  indemnity,  being  entitled  to  an  extension  of  the  time 


shal  be  brought  the  next  second  day,  being  the  4th  day  of  the  ffifth  moneth 
1636  about  nine  of  the  Clock  in  the  morning,  vnto  the  Cove  of  the  common 
landing-place  of  the  North  River,  by  George  Harris  his  howse.  And  that 
all  the  Canooes  of  the  South  syde,  are  to  be  brought  before  the  store  house 
in  the  South  River  att  the  same  tyme.  then  and  there  to  be  viewed  by 
John  Holgrave,  Peter  Palfrey,  Rich  Waterman  Roger  Connant,  &  Phillip 
Verrin  or  the  greater  number  of  them.  And  that  there  shalbe  noe  Canooe 
used  (upon  the  penaltie  of  ffortie  shilling  to  the  owner  thereof)  than  such 
as  the  said  surveiors  shall  allowe  of  and  sett  their  marke  upon,  and  if  any 
shall  refuse  or  neglect,  to  bring  their  Canooes  to  the  said  places  att  the 
tyme  appointed  shall  pay  for  the  said  faulte  or  neglect  tenn  shillings." 

"  It  is  ordered  Concerning  the  Watch  at  Salem.  That  all  the  watchmen 
warned,  shall  meete  ye  Constable  att  the  meeting  house  half  an  hower  after 
sunsett,  there  to  receiue  their  chardge  and  not  to  depart  in  the  morning 
untill  they  haue  beene  wth  the  next  Constable  to  be  dischardged,  upon 
penaltie  of  five  shillings." 

These  extracts  are  from  the  record  of  the  first  "  quarter  Court  in  Salem 
the  27th  of  4  moneth  1636,"  and  they  reveal  the  interesting  fact  that  the 
court  transacted  business  for  Salem,  ordinarily  performed  by  the  town- 
meeting.  The  requirement  that  "canooes"  be  viewed  and  marked  may 
however  be  the  germ  of  the  later  jurisdiction  of  the  county  court  over 
ferries. 

1  Hist.  Coll.  Essex  Int.,  VII,  275-6. 

1  Washburn,  Judicial  Hist,  of  Mass.,  32. 

'See  examples  in  Hist.  Coll.  Essex  Inst,,  VII,  185-186,  188. 

'Hist.  Coll.  Essex  Inst.,  VII,  87,  129,  130,  186, 187,  188,  276,  278. 


326      Rise  of  the  County  in  the  New  England  Colonies. 

of  service.1  But  there  were  other  forms  of  punishment  essen- 
tially puritan  in  character.  Many  such  entries  as  the  follow- 
ing occur  in  these  records  : 

"  Geo :  Dill  fined  40s  for  drunkenes,  &  to  stand  att  the  meet- 
ing hous  doar  next  Lecture  Day,  wl.h  a  Clefte  stick  vpon  his 
Tong,  &  a  pap[er]  vpon  his  hatt  subscribed  for  gross  p'medi- 
tated  Lying,  he  offers  mr  Humphreys  for  security  for  his  fine 
of  40V'2 

In  March  1638  Mr.  Burrell  and  John  Legg  for  "uncleanes" 
were  condemned  to  sit  in  the  stocks  on  training  day,  and  the 
latter  was  required  in  addition  to  "acknowledge  (on  the  Lords 
day  after  the  church  meeting,  &  blessing  pnouced)  &  freely  con- 
fesse  his  sinn  for  Publik  satisfaction."3 

One  is  surprised  to  learn  from  these  records  that  "  husband- 
beating  "  was  painfully  frequent  among  the  "  good-wives  "  of 
Salem  ;  but  in  this  respect,  at  least,  the  sexes  "  enjoyed  "  equal 
rights  before  the  law.  For  example  in  1637,  at  the  fifth 
quarter  court,  it  was  decreed  : 

"  Wheras  Dorethy  the  wyfe  of  John  Talbie  hath  not  only 
broak  that  peace  &  Loue,  woh  ought  to  haue  beene  both 
betwixt  them,  but  also  hath  violentlie  broke  the  kings  peace, 
by  frequent  Laying  hands  vpon  hir  husband  to  the  danger  of 
his  Life,  &  Contemned  Authority,  not  coming  before  them 
vpon  command,  It  is  therefore  ordered  that  for  hir  misde- 
meaner  passed  &  for  prvention  of  future  evills  that  are  feared 
wilbe  comitted  by  hir  if  shee  be  Lefte  att  hir  Libertie.  That 
she  shall  be  bound  &  chained  to  some  post  where  shee  shall 
be  restrained  of  hir  libertye  to  goe  abroad  or  comminge  to  hir 
husband  till  shee  manefest  some  change  of  hir  course  and 
Conversation  &  repentance  for  what  is  already  comitted. 


1Hist.  Coll.  Essex  Inst.,  VII,  87,  132.  Fines  for  theft  were  discharged  in 
a  similar  way  :  Ib.,  VIII,  189 ;  and,  likewise,  for  defaming  or  running  away 
from  their  masters,  apprentices  were  condemned  to  longer  service :  Ib.,  VII, 
187  ;  VIII,  123.  » 

2  Hist.  Coll.  Essex  Inst.,  VII,  239.    Cf.  Ib.,  240,  275. 

3  Hist.  Coll.  Essex  Inst.,  VII,  185. 


Evolution  of  the  Shire  Courts.  327 

Only  it  is  pmitted  that  she  shall  come  to  the  place  of  gods 
worshipp,  to  enjoy  his  ordenances." l 

"  Dorethy "  seems,  however,  to  have  continued  in  her 
"course,"  for  in  1638  she  "was  sentensed  to  be  seuerly 
whipped  for  missdemanour  ageanst  hir  husband ; " 2  and  in 
1641  the  same  punishment  was  meted  out  to  Goody  Brown 
"for  breking  her  husbands  head  &  thretn'd  ye  she  wold  kill 
him,  so  y*  her  husband  is  euen  weary  of  his  life."3 

The  following  remarkable  decree  not  only  furnishes  an 
example  of  condemnation  to  service  for  debt,  but  also  proves 
that  the  worthy  commissioners  were  not  greatly  hampered  in 
the  dispensation  of  justice  by  the  niceties  of  legal  classification : 

"Joseph  Garlick  con  vented  fordrunkenes  for  wch  the  Court 
fined  him  fforty  shillings,  also  wheras  he  was  Indebted  vnto 
mr  Moses  Maverick  the  some  of  Three  pounds  &  mr  Holgraue 
the  some  of  fifteene  shillings.  The  sd  Garlik  is  to  serue  the  sd 
Maverick  Twelue  months  for  the  vallue  of  Twelue  pounds. 
And  the  sd  Maverick  is  to  see  the  sd  fine  of  40"  &  15s  p  mr 
Holgraue  pd  wthin  sixe  months."4 

(b.)—The  County  Courts. 

In  May  1643  the  jurisdiction  of  Massachusetts  was  divided 
into  four  "sheires: "  Essex,  Middlesex,  Suffolk,  and  Norfolk;' 
but  this  was  little  more  than  a  formal  recognition  of  what  had 
already  existed  in  fact.  The  territorial  jurisdictions  of  the 
shires  corresponded  roughly  with  those  of  the  four  "  quarter 
courts;"8  and  the  judicial  system  of  the  county  was  already 
practically  complete.  The  county  courts  or  shire  courts,  as  the 

1  Hist.  Coll.  Essex  Inst.,  VII,  129. 

'Hist.  Coll.  Essex  Inst.,  VII,  187. 

*Hist.  Coll.  Essex  lnst.,\lll,  126. 

*Hi*t.  Coll.  Essex  Inst.,  VII,  277. 

5  Mass.  CoLRec.,  II,  38. 

'  Suffolk  included  nearly  the  same  territory  as  the  jurisdiction  of  court 
No.  4  of  1636 ;  and  Middlesex  included  that  of  No.  3.  See  Charming, 
p. 


328      Rise  of  the  County  in  the  New  England  Colonies. 

quarter  courts  were  henceforth  called,  were  constituted  much 
as  were  the  latter  bodies.1  But  the  "associates"  who  sat  with 
the  magistrate  were  elected  by  popular  ballot,  two  for  each 
shire.  This  change  was  first  effected  by  an  order  of  the 
general  court  in  1650,  the  alleged  object  being  to  put  an  end 
to  "  soundiy  inconveniencjes "  caused  by  the  "suddajne  and 
vnexpected  adjournement  of  Shiere  Courts."2  This  act  was 
suspended  as  respects  Suffolk  and  Middlesex  in  the  following 
year.3  It  was  expected  that  the  nomination  of  associates 
should  be  approved  by  the  general  court ;  but  this  was  some- 
times neglected,  as  appears  from  the  preamble  of  an  act  of 
1674.  By  this  act  it  was  provided  that  four4  associates 
should  be  elected  in  a  manner  similar  to  that  prescribed  in 
1650,  who  should  be  certified  yearly  to  the  general  court  of 
election  for  confirmation,  and  thereafter  required  to  take  the 
oath  of  office  in  the  county  court.5  The  associates  at  the  time 

1  But  they  could  now  try  all  civil  causes  save  divorce  cases :  Washburn, 
Judicial  Hist,  of  Mass.,  31. 

2  " .  .  .  Itt  is  ordered  .  .  .  that  annually,  vppon  the  day  of  nomination  of 
men  for  magistrates  in  euery  toune,  there  shall  also  be  a  chojce  of  some 
meete  persons  for  associates  for  each  shiere,  chosen  by  papers  and  pervsed 
in  each  toune  meeting,  and  those  two  that  have  most  votes  shallbe  signifjed 
vnder  the  counstables  hand,  and  deliuered  vnto  each  person  designed  to 
carry  the  votes  for  magistrates  vnto"  their  shiere  meeting,  who,  so  mett 
together,  shall  examine  the  votes  of  the  seuerall  tounes,  and  those  two  that 
have  most  votes  shall  be  signifjed  vnder  their  hands,  and  presented  vnto 
some  magistrate  in  each  shiere,  or  to  their  next  Shiere  Court,  by  the  coun- 
stables in  the  towne  where  they  dwell,  to  take  their  oath  according  to  lawe, 
which  sajd  associates  for  each  shiere  .  .  .  with  one  magistrate,  shall  hence- 
forth duely  attend,  and  keepe  all  and  euery  the  sajd  Shiere  Courts,  .  .  • 
that  so  there  be  no  occasion  of  complajnts  of  that  nature  in  time  to  come." 
Mass.  Col.  Eec.,  IV,  Part  I,  pp.  27-8;  cf.  /&.,  Ill,  211. 

3  Mass.  Col.  Eec.,  Ill,  222;  IV,  Part  I,  p.  38.     Suffolk  containing  Boston, 
and  Middlesex  containing  Charlestown  and  Cambridge  seem  to  have  been 
placed  more  directly  under  the  control  of  the  general  court  than  the  other 
shires. 

4  But  the  number  varied  in  practice.     Miss.  Col.  J2ec.,V,  p.  5  (3  for  Nor- 
folk), p.  31. 

5  Mass.  Col.  JRec.,  V,  pp.  3-4.     For  examples  of  confirmation  see  Mass.  Col. 
Eec.,  IV,  Part  II,  301 ;  IV,  Part  I,  133,  180 ;  V,  5,  31,  145,  226,  485,  279. 


Evolution  of  the  Shire  Courts.  329 

of  confirmation  were  often  granted  "  magistratical  "  authority, 
each  for  a  particular  town  within  the  shire  where  no  magistrate 
resided.  To  such  a  commission  was  granted  similar  to  that  of 
an  English  justice,  in  which  was  "incerted  the  preservation  of 
tin-  |>eace,  taking  recognizances  and  binding  ouer  offend™  to 
the  county  court  to  which  they  belong,  punishing  all  offences 
whose  poenalty  is  stated  by  law  vnder  forty  shillings  or 
corporall  punishment  not  exceeding  tenn  stripes,  .  .  .  taking 
depositions,  joyning  persons  in  marriage,"  and  "  ending  small 
causes"  not  exceeding  forty  shillings.1  The  number  of  magis- 
trates appointed  to  "  keep  the  county  court "  with  the  associ- 
ates varied  from  one  to  three  or  more ; 2  and  they  were  some- 
times designated  for  particular  sessions.3 

New  counties  were  organized  under  authority  of  the  general 
court.4  After  the  creation  of  the  shires  the  licensing  of  the 
commissioners  of  small  causes  in  the  respective  towns  was 
transferred  from  the  general  to  the  county  court;5  but  the 
candidates  for  approval  were  nominated  by  vote  of  the  people 
in  town-meeting.6  The  general  court,  however,  continued  to 
appoint  special  commissioners  with  the  same  powers ; 7  and 
the  selectmen  could  act  in  all  cases  where  the  magistrate  was 
concerned.8 


1  Mass.  Col.  Rec.,  V,  139  (1677).  See  also  Ib.,  145,  101.  But  persons  not 
associates  were  commissioned;  and  all  assistants  continued,  of  course,  to 
exercise  "  magistratical "  authority  Where  they  dwelt. 

2 Often  2  men  were  appointed:  Mass.  Col.  Rec.,  IV,  Part  I,  44,  180,  232, 
268,  etc.  In  1672  one  associate  and  one  magistrate  were  declared  sufficient 
to  hold  the  court:  Ib.,  IV,  Part  II,  533.  Cf.  Ib.,  495,  452.  Five  appointed 
for  Devon:  Ib.,  V,  30.  See  also  Ib.,  V,  23,  19.  "Gentlemen"  other  than 
assistants  it  seetns  could  be  appointed:  Ib.,  V,  35. 

8  3/ass.  Col.  Rec.,  IV,  Part  II,  pp.  73,  63. 

4  See  Organization  of  Devon  :  Mass.  Col.  Rec.,  V,  17  ff. 

8  Mass.  Col.  Rec.,  II,  188;  IV,  Part  I,  202. 

"The  colonial  records  are  rather  obscure  on  this  point ;  but  see  Mass.  Col. 
Rec.,  IV,  Part  I,  321.  The  town  records,  however,  show  that  the  commis- 
sioners of  small  causes  were  nominated  as  were  other  town  officers.  For 
example,  see  Dorchester  Town  Records,  115,  150. 

1  See  examples  in  Mass.  Col.  Rec.,  IV,  Part  I,  287-8. 

•1/iiM.  Col.  Rec.,  II,  162-3. 


330      Rise  of  the  County  in  the  New  England  Colonies. 

In  May,  1685,  the  magistrates  of  each  county  court  "an- 
nually chosen  by  the  freemen"  were  granted  jurisdiction  in 
equity  cases.1 

After  1691,  under  the  second  charter,  the  judicial  system  of 
the  shire  was  reorganized  and  brought  into  closer  harmony 
with  the  contemporary  English  model. 

The  criminal  jurisdiction  and  the  ministerial  or  general 
administrative  business  of  the  old  county  court  were  trans- 
ferred to  the  "quarter  sessions,"  or,  as  it  was  subsequently 
styled,  the  "general  sessions  of  the  peace."2  This  court, 
which  in  addition  to  its  strictly  judicial  work,  performed  the 
duties  of  the  modern  board  of  county  commissioners  or  super- 
visors, was  composed  of  all  the  justices  of  the  peace  commis- 
sioned for  the  shire  by  the  governor  of  the  commonwealth. 
On  the  other  hand  the  civil  and  chancery3  jurisdictions  were 
vested  in  the  "  inferior  court  of  common  pleas  "  composed  of 
four  justices  commissioned  by  the  governor  for  each  county.* 
Probate  and  administration,  hitherto  transacted  in  the  shire 
courts,  were  reserved  to  the  governor  by  the  charter ; 5  but 
these  functions  were  delegated  by  him  to  a  separate  judge 
appointed  for  each  county.6 

Below  the  general  sessions  and  the  common  pleas  and  cor- 
responding to  the  earlier  courts  for  trial  of  small  causes  were 
the  tribunals  of  the  single  justices  of  the  peace  with  jurisdic- 


1  Mass.  Col.  Rec.,V,  477-478;  Washburn,  Judicial  Hist,  of  Mass.,  34. 

2  Called  "  quarter  sessions  of  the  peace,"  1692-3 :  Acts  and  Resolves,  I,  72 ; 
and  "  general  sessions"  in  1699 :  Ads  and  Resolves,  I,  367.     The  latter  name 
had  been  given  in  the  acts  of  June  28,  1693,  and  June  19,  1697,  but  these 
were  not  approved  by  the  privy  council :  Ib.,  I,  37,  284.     Cf.  Hildreth,  II, 
160 ;  Lodge,  416. 

3  Acts  and  Resolves,  I,  356,  75,  etc. ;  Washburn,  Judicial  Hist,  of  Mass., 
166-167. 

*  Acts  and  Resolves,  I,  37,  73,  284,  369.  The  power  to  create  courts  was 
vested  in  the  assembly  by  the  charter:  Poore,  I,  951. 

6Poore,  Charters,  I,  951. 

6  But  the  assembly  regulated  their  exercise :  Acts  and  Resolves,  I,  44,  48, 
252,  431,  536,  etc. 


Evolution  of  the  Shire  Court*.  331 

tion  in  minor  criminal  actions  and  in  civil  causes  not  involv- 
ing more  than  forty  shillings  or  when  the  title  to  land  was  in 
dispute.1  But  to  single  justices  and  to  two  or  more  justices 
acting  together,  were  entrusted  by  special  statute  a  great  variety 
of  police  and  other  executive  duties.2 

(c). — General  Functions  of  the  County  Court. 

Aside  from  its  ordinary  judicial  work,  the  general  func- 
tions of  the  county  court  were  neither  few  nor  insignificant. 
Between  1636  and  1643 — the  first  stage  in  the  evolution  of 
the  Massachusetts  shire — these  functions,  as  we  have  seen, 
were  rudimentary;  but  during  the  second  (1643-1691)  and 
third  (1691-1776)  phases  of  development,  particularly  under 
the  legislation  of  the  second  charter,  the  position  of  the  court 
as  a  county  board  of  civil  administration  rapidly  increased  in 
importance.  The  following  is  a  partial  list  of  its  more  im- 
portant powers  and  duties : 

The  court  could  exercise  probate  and  grant  letters  of  admin- 
istration ;3  construct  bridges,4  lay  out  highways,  and  fine  town 
road  surveyors  for  neglect  of  duty ; 8  admit  freemen  of  the 
jurisdiction,  subject  to  the  approval  of  the  general  court;6 
appoint  commissioners  to  solemnize  marriages;7  license  clerks 
of  the  writs,8  retailers  of  liquors,  and  keepers  of  ordinaries 
and  coffee  houses ; 9  appoints  "  tryers  of  malt " 10  and  sur- 


1  Acts  and  Resolve*,  I,  51,  53,  72,  282,  etc. 
*See  Acts  and  Resolves,  I,  Index  at  Justices. 

'Before  1691:  Mass.  Col.  Rec.,  V,  150,  252,  375,  478,  etc.     Under  the 
second  charter  the  court  lost  this  function. 
*Mass.  Col.  Rec.,  IV,  Part  I,  231. 
*Acls  and  Resolves,  I,  138,  136-7,  721. 
8  Mass.  Col.  Rec.,  IV,  Part  II,  134. 

7  Mass.  Col.  Rec.,  IV,  Part  I,  322. 

8  Mass.  Col.  Rec.,  II,  188;  III,  105;  I,  344;  IV,  Part  I,  68. 

'Acts  and  Resolves,  I,  37,  56,  475,  527,  739,  etc.    See  lists  in  Rec.  of  Court 
of  General  Sessions  of  Worcester  County,  113,  129,  160. 
10  Acts  and  Resolves,  I,  447. 


332      Rise  of  the  County  in  the  New  England  Colonies. 

veyors,  gangers,  and  searchers  of  tar  in  seaport  towns  ; l  abate 
common  nuisances  ;2  order  the  town  treasurer  to  pay  accounts 
for  entertainment  of  strangers  lying  sick  in  the  respective 
towns  of  the  county,  and  press  lodgings  for  such  when  neces- 
sary ; 3  prevent  the  landing  within  the  shire  of  persons  visited 
with  infectious  diseases;4  count  the  votes  for  county  treasurer;5 
audit  the  accounts  of  treasurer  and  sheriff;6  provide  for  the 
erection  of  prisons ; 7  appoint  masters  of  houses  of  correction 
and  prescribe  rules  for  their  government;8  and  order  indigent 
persons  to  be  relieved  by  their  relatives,  should  the  latter  be 
found  able  to  support  them.9 

In  the  early  period  the  court  was  particularly  entrusted 
with  the  civilizing  of  Indians  residing  within  the  shire.10 
Special  tribunals  were  established  for  causes  in  which  Indians 
who  had  been  "  brought  to  some  civility  "  were  parties.  By 
an  act  of  1647  it  was  provided  that  a  court  should  be  held 
quarterly  by  one  or  more  magistrates  in  some  place  where  the 
"  Indians  ordinarily  assemble  to  hear  the  word  of  God,"  with 
jurisdiction  in  all  causes  civil  and  criminal  save  capital  crimes; 
and  each  sachem  was  empowered  to  hold  a  monthly  court  with 
jurisdiction  similar  to  that  of  the  triers  of  small  causes.  The 
sachems  were  also  authorized  to  issue  summons  and  attachment 
and  to  appoint  constables  to  serve  warrants  and  executions. 
All  fines  collected  were  to  be  expended  for  erecting  "  meeting 
houses,"  for  educating  the  poorer  Indian  children,  or  for  some 
other  public  use.11 


1  Acts  and  Resolves,  I,  574. 

2  Acts  and  Resolves,  I,  312,  256,  645,  657. 

3  Acts  and  Resolves,  I,  469-70. 

4  Acts  and  Resolves,  I,  469—70. 

5  Acts  and  Resolves,  I,  63. 

6  Acts  and  Resolves,  I,  64,  128. 

7  Acts  and  Resolves,  I,  426. 

8  Mass.  Col.  Rec.,  IV,  Part  I,  222,  256,  305 ;  Acts  and  Resolves,  I,  378,  379. 

9  Acts  and  Resolves,  I,  68.     See  examples  in  Rec.  of  Court  of  General  Ses- 
sions of  Worcester  County,  54,  60. 

10  Mass.  Col.  Rec.,  II,  84. 

11  Mass.  Col.  Rec.,  II,  188.    A  similar  plan  for  the  Indians  of  "Naticke  and 


Evolution  of  the  Shire  Courts.  333 

(d). — Subordination  of  the  Towns  to  the  County  Court. 

It  is  of  special  interest  to  determine  in  what  measure  the 
towns  were  made  subordinate  to  the  authority  of  the  general 
sessions.  That  the  latter  exercised  a  real  supervision  over  the 
former  is  abundantly  proved  by  a  glance  at  the  early  statutes 
and  court  proceedings.  Thus  the  court  could  impose  fines  on 
assessors  and  selectmen  for  neglect  of  duty;1  and  on  constables 
for  failing  to  summon  town  officers  elect  to  take  the  official 
oath.2  It  could  also  appoint  assessors  on  failure  of  the  towns 
so  to  do  ;s  supply  ministers  and  provide  for  their  proper 
maintenance  where  necessary  ;*  and,  on  petition  or  presentment, 
compel  towns  to  pay  the  minister's  salary.5  Towns  were  often 


Punquapog"  was  adopted  in  1658:  Ib.,  IV,  Part  I,  334.  By  the  later  legis- 
lation commissioners  with  powers  similar  to  the  powers  of  these  courts  were 
appointed  by  the  governor :  Acts  and  Resolves,  I,  150. 

1  Acts  and  Resolves,  I,  93. 

1  Before  the  quarter  sessions :  Acts  and  Resolves,  I,  65. 

3  Acts  and  Resolves,  I,  166,  218,  407. 

*Mas*.  Col.  Rec.,  IV,  Part  I,  314-15. 

&Acts  and  Resolves,  I,  103.  For  neglect  to  provide  ministers  or  to  support 
them  it  was  required  by  law  that  towns  should  be  presented  before  the 
general  sessions  by  the  grand  jury:  Acts  and  Resolves,  I,  597.  The  following 
example  of  the  procedure  by  petition  is  contained  in  the  records  of  the 
general  sessions  of  Worcester  county : — 

"  The  Reverend  Mr  David  Parsons  of  Leicester  Preferred  a  Petition  or 
Complaint  to  this  Court  Shewing  that  in  ye  year  1721  he  accepted  the  Call 
of  the  Church  and  Town  of  Leicester  to  ye  Gospell  ministry  among  them  with 
an  Incouragement  of  an  Hon  Support  of  Seventy  five  pounds  &ct — from 
year  to  year  In  which  Service  y*  said  Petitioner  has  Continued  Ever  Since 
according  to  his  poor  Capacity  Heartyly  endeavoured  to  be  faithful!,  butt 
that  through  the  negligence  of  the  Town  he  has  not  Recd  any  part  of  his 
dues  from  them  since  march :  1730  butt  that  they  have  been  wholly  Deficient 
Since  that  time  praying  for  Reliefe  according  to  the  Directions  of  y  good 
and  wholesome  laws  of  this  province,  which  petition  being  duly  Considered 
The  Court  order  and  Direct  the  Selectmen  of  ye  Town  of  Leicester  be  by 
warrant  under  the  Clerks  hand  Convented  before  y«  Court  of  General  Sessions 
of  ye  peace  to  be  holden  at  Worcester  for  and  within  the  County  of  Worcester 
on  the  first  Tuesday  of  February  next  To  answer  To  Said  Petition : "  Records 
of  the  Court  of  General  Sessions,  29-30.  Subsequently  the  selectmen  were  found 


334      Rise  of  the  County  in  the  New  England  Colonies. 

fined  for  disregard  of  the  laws  requiring  them  to  maintain 
stocks,1  provide  weights  and  measures,2  and  employ  school- 
masters.3 

Moreover  it  may  surprise  those  who  have  learned  that  the 
Massachusetts  town  was  everything  and  the  shire  nothing  in 
the  management  of  local  aifairs,  to  know  that  town  by-laws 
were  legally  subject  to  the  approval  of  the  county  court.4  And 
the  statute  seems  not  to  have  been  absolutely  a  dead  letter. 
The  original  court  records  show  that  such  by-laws,  at  least 
those  relating  to  cattle  brought  into  the  township  for  pastur- 
age, were  very  frequently  presented  to  the  general  sessions  for 
approval.  The  following  is  a  typical  example : 

"  A  Vote  or  By  law  of  ye  Town  of  Rutland  was  presented 
to  this  Court  by  Sam11  Wright  Esqr  In  behalf  of  Said  Town 
viz4,  Att  a  Town  meeting  of  the  Inhabitants  of  Rutland  legally 
warned  December  12th  1733.  &  Vote  in  Said  meeting  that  a 
Tax  of  five  Shillings  ^  head  shall  be  laid  on  all  horses 
&  neat  Cattle  that  be  brought  into  the  Town  of  Rutland  to 
Graze  or  Sumer  there  by  any  person  or  persons  other  then 
proprietors  and  they  for  any  other  then  proprietors  Cattle 
or  horses  or  oxen  hired  to  work  or  Cows  to  give  milk 
and  that  if  any  person  or  persons  living  in  or  belonging  to 


guilty  of  neglect  and  fined  four  pounds  each  and  costs  according  to  law :  Ib., 
47-9.  Brother  Parsons  had  much  difficulty  with  his  flock  and  furnished  the 
court  a  great  deal  of  business :  see  76.,  31,  a  note  by  the  editor. 

1  Acts  and  Resolves,  II,  156.  See  example  of  presentment  by  grand  jury 
in  Records  of  General  Sessions  of  Worcester,  42. 

.  2  Acts  and  Resolves,  I,  576 ;  II,  977.  See  examples  of  presentment  by  grand 
jury  in  Records  of  General  Sessions  of  Worcester,  35,  52-3,  etc. 

3  Acts  and  Resolves,  I,  63,  470.  In  1692-3  the  fine  for  neglect  was  fixed  at 
10£,  and  in  1701-2  at  20£  for  each  town  of  50  householders.  The  original 
court  records  show  that  there  were  a  great  many  instances  of  presentment 
by  the  grand  jury  for  this  offence.  See  Records  of  General  Sessions  of  Worcester, 
35,  51,  81,  108,  etc.,  etc. 

*Acts  and  Resolves,  I,  66  (1692).  This  act  was  repealed  1695,  but  the 
repealing  act  was  not  approved  by  the  privy  council :  Ib.,  218.  No  men- 
tion is  made  by  the  editors  of  its  subsequent  repeal:  See  table  in  Ib.,  p.  768 
(chap.  28). 


Evolution  of  the  Shire  Courts.  335 

Rutland  aforesaid  Shall  bring  in  or  take  any  Strangers  Cattle 
or  horses  brought  into  Said  Town  to  keep  or  take  Care  or 
Charge  of  Such  Creatures  Shall  be  obliged  to  Render  an  acco" 
upon  oath  what  &  how  many  Such  horses  or  Cattle  they  have 
y*  Charge  of  or  Knowing  to  and  Shall  pay  five  Shillings  "$ 
head  for  all  Such  horses  or  Cattle  as  are  in  their  Care  or 
Charge  the  money  to  be  for  the  use  of  ye  Town  and  this  act  to 
be  laid  before  the  Justices  at  y"  next  Quarter  Sessions  to  be 
held  at  Worcester  for  ye  County  of  Worcester  for  their  Con- 
firmation, Voted  that  Samuell  Wright  Esqr  is  Chosen  by  the 
Town  to  lay  ye  above  Written  act  before  ye  Said  Court  for 
Confirmation.  Samuel  Wright  moderr,  which  is  accepted 
alowed  &  approved  of  ye  Justices." l 

(e). — Records  of  a  Court  of  General  Sessions. 

What  has  already  been  said  of  the  historic  value  of  the 
court  records  for  the  early  period  must  be  repeated  with 
emphasis  for  those  of  the  general  sessions  during  the  eigh- 
teenth century.  They  seem  to  have  increased  in  interest  and 
in  richness  of  detail  with  the  growth  in  population.  Judging 
from  the  brief  portion  of  those  of  Worcester  County  now  in 
print,  edited  for  the  Worcester  Society  of  Antiquity  by  Frank- 
lin P.  Rice,2  no  perfect  picture  of  the  social  condition  of  the 
age  can  be  drawn  until  these  judicial  archives  be  thoroughly 
explored.  Certainly  the  materials  are  not  a  whit  less  inter- 
esting than  those  which  have  enabled  Mr.  Hamilton  to  pro- 
duce his  fascinating  book  on  the  contemporary  quarter  sessions 


1  Records  of  the  General  Sessions  of  Worcester  County,  92-3.    See  other  exam- 
ples, 76.,  103,  104,  123,  152,  155,  182.    These  all  relate  to  cattle,  horses,  or 
rams.    By  an  act  of  1727  the  proprietors  of  common  fields  are  authorized  to 
make  by-laws,  subject  to  approval  of  the  general  sessions :  AcU  and  Resolves, 
II,  425.     Of  course,  it  is  not  maintained  that  as  a  rule  ordinary  measures 
of  the  town-meeting  were,  in  practice,  submitted  to  the  court. 

2  Records  of  the  Court  of  General  Sessions  of  the  Peace  for  the  County  of 
Worcester,  Massachusetts,  from  1731  to  1737,  197  pages,  8°,  Worcester,  1883. 


336      Rise  of  the  County  in  the  New  England  Colonies. 

of  Devon.1  A  single  example,  in  addition  to  the  citations 
already  made,  must  here  suffice  to  illustrate  the  value  of  the 
Worcester  records  which,  doubtless,  may  be  regarded  as 
typical. 

If  any  one  fancies  that  the  laws  forbidding  absence  from 
church,  or  labor,  travel,  and  recreation  on  the  sabbath,2  were 
in  any  sense  a  dead  letter  even  in  the  middle  of  the  last 
century,  his  illusion  will  be  speedily  dispelled  by  a  glance  at 
the  vast  number  of  cases  of  presentment  and  fine  for  these 
offences  entered  in  the  minutes  of  a  single  court  for  the  short 
period  of  seven  years.  Almost  every  page  furnishes  examples.3 
The  following  typical  report  of  a  grand  jury  will  illustrate 
the  subject  in  hand  and  may  prove  otherwise  instructive  :4 

"  Worcester  ss  att  a  Generall  Sessions  of  ye  Peace  holden  at 
Worcester  within  and  for  the  County  of  Worcester  on  Tuesday 


1  Quarter  Sessions  from  Queen  Elizabeth  to  Queen  Anne;  Illustrations  of 
Local  Government  and  History,  drawn  from  Original  Records,  by  A.  H.  A. 
Hamilton.     London,  1878. 

2  It  was  enacted  that  if  any  person  without  just  excuse  "  being  able  of 
Body  and  not  otherwise  necessarily  prevented,  shall  for  the  space  of  one 
Month  together  absent  themselves  from  the  publick  Worship  of  God  on  the 
Lord's-Day,  they  shall  forfeit  and  pay  the  Sum  of  ten  Shillings."    Cited  by 
Mr.  Rice,  Records  of  the  General  Sessions,  44. 

It  was  provided  in  1712,  "That  all  persons  who  shall  be  found  in  the 
streets,  wharffs,  fields,  or  other  places  within  any  town,  on  the  evening 
following  the  Lord's  day,  disporting,  playing,  making  a  disturbance,  or 
committing  any  rudeness,  the  persons  so  offending  shall,  each  of  them,  pay 
a  fine  of  five  shillings,  or  suffer  twelve  hours  imprisonment,  or  sit  in  the 
stocks  not  exceeding  two  hours  "  .  .  .  "  And  the  Constables  of  the  respective 
towns  are  hereby  directed  and  specially  impowred  to  prevent  the  propha- 
nation  of  the  Lord's  day,  by  restraining  persons  from  walking,  recreating 
and  disporting  themselves  in  the  streets,  wharffs  or  fields,  in  time  of  publick 
worship."  Acts  and  Resolves,  I,  681.  For  a  more  detailed  and  rigorous 
statute  see  /&.,  58.  Cf.  Mass.  Col.  Rec.,  IV,  Part  I,  150,  200,  347 ;  V,  133, 
155. 

3  For  instance  see  Records  of  the  General  Sessions,  36,  44,  65,  66,  74,  79,  85, 
141,  146,  158,  etc.,  etc.    A  very  large  portion  of  the  records  consists  of  these 
cases. 

*  The  punctuation  of  the  passage  has  been  slightly  altered. 


Evolution  of  the  Shire  Courts.  337 

y*  Sixth  day  of  November  anno  Domini  1733.  The  Grand- 
jurors  for  y*  body  of  y"  Said  County  upon  their  Oaths  do 
preseutt;  That  Dudley  Jordan  and  Benjamin  Smith  both  of 
Lambs  Town1  as  so  Called  in  said  County,  Husbandman,  did 
on  y°  28th  day  of  October  last  past  being  ye  Lords  day  Unneces- 
saryly  Travell  through  ye  Town  of  Shrewsbury  In  Said  County 
— and  also  that — the  wife  of  Thomas  Hutchins  of  Dudley  in 
Said  County  hath  Un necessary ly  absented  herself  from  y* 
Publick  Worship  of  God  on  ye  Lords  days  for  more  than 
Two  months  last  past,  and  also  That  David  Haynes  of  Sud- 
bury  in  ye  County  of  Midlesex,  Gent,  and  Samuel  Waldo  of 
Boston  in  y6  County  of  Suifolk,  merchant,  and  George  Mareiss 
of  Boston  aforesaid,  Waiter,  did  each  and  all  of  them  Uneces- 
saryly  Travell  from  Rutland  to  Worcester  On  ye  Lords  day 
being  ye  23d  day  of  September  last  past,  and  also  that  Samuel 
Bridges  Husbandman  &  Mary  Godman  Housewife  and  Mehitt- 
able  Bridges  Spinster  all  of  Mendon  in  ya  County  of  Worces- 
ter and  Bethhya  Gassett  of  Southborough  in  Said  County 
Spinster  Each  and  all  of  them  for  Unecessaryly  absenting 
themselves  from  ye  Publick  Worship  of  God  for  more  then 
Two  months  last  past ;  and  also  that  Daniel  Taft  of  Mendon 
in  y*  County  of  Worcester  Esqr  about  Six  weeks  Since  at  ye 
House  of  William  Jenison  Esqr  in  Worcester  in  Said  County 
did  Wittingly  and  Willingly  make  and  Spread  a  false  Report 
against  Samuel  Terry  of  Mendon  aforesaid  Clerk  with  Intent 
to  abuse  and  deceive  y'  Said  Terrey  and  Others  by  Saying  that 
m™  Rawson  Told  him  y1  the  Said  Terrey  was  so  bad  of  it — 
meaning  that  he  was  So  disguised  with  drink — that  he  was 
led  or  put  To  bed  on  one  Scacrament  day  night,  and  that 
Grindall  Rawson  and  mr  Dorr  were  ye  persons  that  put  him 
To  bed,  all  which  things  are  against  the  peace  of  our  Sover- 
eign Lord  George  by  y'  Grace  of  God  of  Great  Britain  France 


1  Now  Hardwick,  according  to  Editor  Rice. 
22 


338       Rise  of  the  County  in  the  New  England  Colonies. 

and  Ireland  King  defender  of  ye  faith  &ct  and  ye  Good  and 
wholsome  laws  of  this  province."  l 


(/.) — Officers  of  the  County  Court 

The  officers  of  the  county  court  were  the  marshal,  super- 
seded after  1791  by  the  sheriff,  and  the  clerk,  called  in  the 
later  period  clerk  of  the  sessions  or  of  the  peace.  The  latter, 
in  addition  to  his  duties  as  keeper  of  the  judicial  records,  was 
ex  officio  recorder  of  the  county,  thus  discharging  the  func- 
tions of  the  modern  county  clerk.  The  marshal  performed 
the  usual  executive  functions  of  sheriff:  making  arrests,  col- 
lecting fines,  and  serving  executions.  But  in  the  first  days  of 
the  colony  all  this  business  was  transacted  by  the  "  general 
rnarshall,"  or  as  he  was  originally  styled,  the  "  beadle  "  of  the 
entire  jurisdiction.2 


lRecords  of  the  General  Sessions,  85.  Cf.  Ib.,  79,  65,  36,  etc.,  etc.  For  the 
value  of  the  court  records  of  Essex  County  relative  to  the  trials  of  Quakers, 
1656-77,  see  Hallowell,  The  Quaker  invasion  of  Massachusetts,  126  f. ;  also 
Clever,  The  Prosecution  of  Philip  English  and  his  Wife  for  Witchcraft  in  Hist. 
Coll.  Essex  List.,  II,  21  if.,  73  ff.,  183  ff ,  185  if.,  237  ff. ;  also  other  trials  for 
witchcraft  in  Ib.,  II,  49  if.;  VIII,  17  ff'.  Interesting  details  are  given  in 
Mr.  Kimball's  Gleanings  from  Files  of  the  Court  of  General  Sessions  of  the  Peace : 
Hist.  Coll.  Essex  Inst.,  XI,  Parts  I-III.  Some  contemporary  references  to 
the  judicial  system  of  Massachusetts  may  be  found  in  the  following:  John- 
son, Wonder-  Working  Providence,  in  2  Mass.  Hist.  Coll.,  IV,  22 ;  Hubbard, 
Hist,  of  New  England,  in  2  Mass.  Hist.  Coll.,  V,  156,  234-5 ;  VI,  551 ;  Lech- 
ford,  Plaine  Dealing,  in  3  Mass.  Hist.  Coll.,  Ill,  83-86;  Shepard,  The  Cleare 
Suns-Shine  of  the  Gospel,  in  3  Mass.  Hist.  Coll.,  IV,  48-9  (Indian  Courts); 
Josselyn's  Account,  in  3  Mass.  Hist.  Coll.,  Ill,  325 ;  Mem.  Hist.  Bost.,  I,  234 ; 
Savage,  Gleanings,  in  3  Mass.  Hist.  Coll.,  VIII,  333. 

Among  more  recent  writings,  see  Washburn,  Judicial  Hist,  of  Mass. ;  and 
brief  notices  in  Lodge,  Short  Hist.,  415-17 ;  Channing,  Town  and  County  Govt., 
34-5 ;  Palfrey,  Hist,  of  New  England,  I,  334,  256;  II,  16 ;  IV,  129;  Hildreth, 
I,  233 ;  II,  170. 

2 The  beadle  is  mentioned  in  Mass.  Col.  Rec.,  I,  74,  40,  100.  "Marshall" 
seems  to  have  been  substituted  in  1634:  Ib.,  128.  On  the  county  marshal 
see  Ib.,  IV,  Part  I,  18,  183,  184 ;  IV,  Part  II,  59,  350 ;  III,  340-1,  etc.  By 


The  Shire  as  a  Fiscal  Unit.  339 

Originally  both  marshal  and  clerk  seem  to  have  been 
appointed  by  the  court;  and,  after  1691,  the  latter  continued 
to  be  so  chosen.1  But  by  the  charter  the  nomination  of  sheriff 
was  vested  in  the  governor.2  While  the  town  remained  the 
unit  of  representation  in  the  assembly,  under  the  Province 
laws  the  county  gained  one  function  which  raised  it  more 
nearly  to  a  level  with  the  contemporary  English  model :  the 
sheriff  was  required  to  issue  his  precept  to  the  selectmen  of 
the  various  towns  to  assemble  the  freemen  for  the  choice  of 
deputies ;  and  the  names  of  those  elected  were  then  to  be  cer- 
tified by  the  selectmen  to  the  sheriff,  who  made  return  to  the 
secretary  of  the  province.3 

III. — THE  SHIRE  AS  A  FISCAL  UNIT. 
(a). — The  County  Rate. 

Throughout  New  England  the  towns  have  always  been 
self-taxing  bodies  for  the  support  of  local  government.  But 
besides  the  town  rate  there  were  two  other  levies  in  each 
of  which  the  shire  was  directly  concerned :  these  were  the 
"county"  and  "country"  rates. 

The  chief  items  of  county  expenditure  were  the  fees  and 
salaries  of  officers,  the  construction  and  repair  of  bridges  and 
highways,  the  support  of  houses  of  correction,  and  the  main- 
tenance of  courts,  including  the  fees  of  grand  jurors.4  The 
standing  sources  of  revenue  consisted  of  fines  and  costs  of 
prosecutions.5  When  these  did  not  suffice  the  county  court 
was  empowered  to  supplement  them  by  a  tax  levied  upon  the 

the  second  charter  the  governor  was  authorized  to  appoint  both  sheriffs  and 
provost-marshals:  Acts  and  Resolves,  I,  12,  89,  402,  555. 

lAct*  and  Resolves,  I,  217,  374,  465. 

*Acts  and  Resolves,  I,  12;  Poore,  I,  949. 

'Acts  and  Resolves,  I,  89  (1692). 

'Acts  and  Resolves,  I,  194. 

&Acls  and  Resolvet,  I,  63,  193,  210,  2S7,  314,  etc. 


340       Rise  of  the  County  in  the  New  England  Colonies. 

towns  in  the  same  proportion  as  the  last  public  rate.  This 
was  then  collected  and  turned  over  to  the  county  treasurer  by 
the  constables.1  The  levy  of  the  county  rate  was  thus  wholly 
under  control  of  the  court. 

The  fiscal  officer  of  the  county  was  the  treasurer  chosen  by 
popular  vote.  The  office  was  created  in  1654,  eleven  years 
after  the  creation  of  shires.  It  was  ordered  that  annually  on 
the  last  Tuesday  of  June2  the  freemen  of  the  county  in  their 
various  towns  should  vote  for  treasurer  by  "  sealed  proxies/' 
those  of  each  town  being  carried  to  the  shire  town  by  a  delegate, 
known  as  the  "  shire  commissioner,"  elected  for  that  purpose. 
The  proxies  were  then  to  be  opened  by  the  assembled  commis- 
sioners in  the  presence  of  a  magistrate,  and  the  person  receiving 
the  most  was  to  be  declared  duly  elected.3 

By  the  very  important  act,  just  cited,  the  mutual  relations 
of  clerk  and  treasurer  are  denned  and  regulations  for  the 
administration  of  their  respective  offices  prescribed.  The  clerk 
is  directed  to  keep  a  record  of  all  dues  and  expenditures,  the 
magistrates  being  required  to  forward  to  him  transcripts  of  all 
fines  levied  by  them  and  under  their  warrants  paid  into  the 
county  treasury  by  the  marshal  or  constables.  A  like  transcript 
of  dues  and  fines  is  to  be  delivered  by  the  clerk  to  the  treasurer; 
and  the  latter  is  required  to  render  an  annual  account  to  the 
county  court,4  which,  if  a  deficit  appear,  is  then  to  levy  a  county 
rate.5 

This  whole  procedure,  which  bears  a  striking  resemblance  to 
that  still  observed  in  modern  county  administration,  remained 
substantially  the  same  throughout  the  whole  colonial  era.6  The 
treasurer  was  still  voted  for  in  the  towns ;  but  the  constables, 


1  Mass.  Col.  Rec.,  IV,  Part  I,  185  ;  Acts  and  Resolves,  I,  63-4. 

2  Subsequently  the  day  of  election  was  made  to  correspond  with  that  for 
choice  of  magistrates :  Mass.  Col.  Rec.,  IV,  Part  I,  259. 

3  Mass.  Col.  Rec.,  IV,  Part  1, 185 ;  Proceedings  of  the  Deputies,  Ib.,  Ill,  398-9. 

4  For  the  procedure  under  the  province  laws,  see  Acts  and  Resolves,  I,  64. 

5  Mass.  Col.  Rec.,  IV,  Part  I,  184-6. 

6  Acts  and  Resolves,  I,  63-4,  etc. 


The  Shire  as  a  Fiscal  Unit.  341 

in  place  of  the  shire  commissioners,  made  return  before  the 
general  sessions.1 

(b).—The  Cvuntry  Rate. 

The  history  of  the  "  country  rate  " 2  and  of  the  shire's  func- 
tions with  respect  to  it,  is  extremely  interesting.  Throughout 
New  England  the  town  was  the  unit  for  the  assessment  and 
collection  of  the  .public  revenue.  The  earliest  taxes  in  Massa- 
chusetts were  levied  upon  the  various  communities  in  stated 
sums ; s  the  quota  of  each  being  then  assessed  by  the  proper 
officer  and  collected  by  the  constable.4  A  poll-tax  was  not 
allowed.8  But  in  November,  1646,  appeared  an  important 
statute  by  which  was  outlined  the  broad  features  of  the  sys- 
tem of  taxation  maintained  throughout  the  entire  colonial 
period.  The  principle  adopted  was  peculiar,  combining  the 
three-fold  elements  of  polls,  property,  and  income.  Every 
male  of  sixteen  years  and  upward,  "  whether  servant  or 
other,"  was  required  to  pay  an  annual  poll-tax  of  20d. ;  all 
owners  of  estates,  whether  lands  or  goods,  were  to  contribute 
one  penny  for  every  20s.  valuation ;  every  laborer,  artificer, 
or  handicraftsman  who  usually  receives  18d.  a  day  in  sum- 
mer, or,  if  he  "  worke  by  greate,"  an  average  of  more  than 
that  amount,  must  pay  annually  3s.,  4d.,  in  addition  to  his 
poll-tax ;  and  all  others — butchers,  bakers,  cooks,  victuallers, 
and  the  like — shall  contribute  "according  to  their  returnes 


1  Ads  and  Resolves,  I,  63. 

1  For  a  definition  of  the  public  or  country  rate  see  Mass.  Col.  Rec.,  I,  277 ; 
II,  260,  171. 

8 Mass.  Col.  Rec.,  I,  77,  93  (Feb.  1632).  Once  at  least,  money  was  raised 
by  private  subscription  for  erection  of  a  "moveing  Sort:"  Mass.  Col.  Rec., 
I,  113. 

'Mass.  Col.  Rec.,  I,  160,  179,  240,  260. 

5 An  order  of  May,  1634,  runs:  "In  all  rates  &  publique  charges  the 
towne-s  shall  haue  respect  to  levy  euy  man  according  to  his  estate,  & 
with  consideration  of  all  other  his  abilityes,  whatsoeuer,  &  not  according 
to  the  number  of  his  p'sons:"  Mast.  Col.  Rec.,  I,  120. 


342       Rise  of  the  County  in  the  New  England  Colonies. 

and  incomrnings."  Children  and  servants  receiving  no  wages 
are  to  be  paid  for  by  their  parents  or  masters ;  while  the 
poor,  sick,  or  infirm  are  entirely  exempt,  as  also  magistrates 
for  500£  estate.1 

Thus  was  the  "country  rate"  established;  and  thereafter 
it  was  customary  for  the  general  court  to  order  the  levy  in 
multiples  or  fractions  of  a  "  single  "  rate.2 


(c). — Equalization  of  Assessments. 

The  act  under  consideration  provided  also  for  equal  assess- 
ment of  the  tax  throughout  the  shire.  Each  town  was  required 
to  elect  one  of  its  inhabitants,  known  thereafter  as  the  "  town 
commissioner,"  to  join  with  the  selectmen  in  assessing  incomes 
and  estates  and  in  making  the  list  of  males  subject  to  the  poll- 
tax.  On  the  second  Wednesday  of  the  month  following  the 
assessment,  all  the  commissioners  of  the  county  were  to  meet  in 
the  shire  town  to  act  as  a  board  of  equalization.  This  arrange- 
ment is  of  special  interest  as  constituting  an  early  precedent 
for  the  action  of  the  board  of  supervisors  under  the  modern 
county-township  system  of  the  northwestern  states. 

In  the  following  year  the  act  was  repealed ;  but  essentially 
the  same  plan  was  incorporated  in  a  new  order,3  the  only 


•  lMass.  Col.  Rec.,  II,  173-4. 

2  See  many  examples  in  the  Mass.  Col.  Rec.,  of  \,  £,  or  3,  7,  or  9  single 
rates,  etc.  In  the  Plymouth  jurisdiction  public  taxes  were  levied  accord- 
ing to  "visable  estate  and  faculties,"  not  upon  polls  or  incomes:  Plymouth 
Col.  Rec.,  XI,  142,  211,  241.  See  examples  of  rates  in  /&.,  II,  18,  47,  64, 
etc.  However  in  the  early  period  the  rate  was  levied  by  the  general  court 
in  stated  sums,  the  separate  amount  due  from  each  taxable  person  in  the 
colony  being  named  in  the  order :  see  lists  in  Plym.  Col.  Rec.,  I,  9-11,  27-29. 
In  the  New  Haven  and  Hartford  jurisdictions  practically  the  same  system 
existed  as  in  Massachusetts:  New  Haven  Col.  Rec.,  I,  25,  494;  Trumbull, 
Blue  Laws,  119 ;  Conn.  Col.  Rec.,  I,  548-551 ;  II,  48-9. 

*Mass.  Col.  Rec.,  11,212-15. 


The  Shire  as  a  Fiscal  Unit.  343 

important  change  being  the  increase  of  the  poll-tax  to  2s.,  6d. ; 
reduced,  however,  in  1653,  to  20d.  as  before.1 

By  the  procedure  thus  far  adopted  there  was  no  means  of 
preventing  unequal  assessment  as  between  different  shires.  This 
defect  was  remedied  in  1668  by  the  creation  of  a  new  board  of 
equalization.  It  was  provided  that  the  general  court  should 
appoint  two  "county  commissioners"2  for  each  shire  who 
should  meet  with  the  town  commissioners  in  the  respective 
shire  towns,  on  different  specified  days,  to  revise  the  assess- 
ment "  so  as  that  there  may  be  a  just  and  aequall  proportion 
betweene  county  and  county,  toune  and  toune,  merchants 
and  husbandmen."3  This  plan  does  not  seem  to  have  been 
retained  in  the  eighteenth  century  ;4  but  the  town  commissioners 
still  continued  to  meet  in  the  shire  town  as  before;5  and  the 
general  sessions  had  power  to  grant  relief  in  cases  of  unjust 
discrimination.6 

During  the  early  period  merchants  and  others  whose  estates 
were  "  not  so  obvious  to  view  "  were  rated  "  by  the  rule  of 
comon  estimation,  according  to  the  will  and  doome  of  the 
assessors."7 

(d).— Taxes  Payable  in  Kind. 

It  is  a  fact  worthy  of  special  mention  that  throughout 
New  England,  as  indeed  elsewhere,  during  the  seventeenth 

1  Mass.  Col.  Rec.,  IV,  Part  1, 154-5.  The  same  system  of  poll  and  property 
tax  was  retained  during  the  period  of  the  second  charter:  Acts  and  Resolves, 
I,  16,  29,  30,  214,  228,  515,  615,  etc. 

1  It  is  important  to  keep  separate  the  three  sets  of  commissioners :  the 
"  town  commissioners,"  the  county  commissioners  of  equalization  appointed 
by  the  general  court,  and  the  "shire  commissioners"  chosen  by  the  respec- 
tive towns  to  carry  the  votes  for  county  treasurer  to  the  shire  town. 

1  Mass.  Col.  Rec.,  IV,  Part  II,  363-4,  444.  Of.  the  plan  adopted  in  Con- 
necticut :  Col.  Rec.,  I,  549 ;  II,  48. 

*  The  modification  of  the  procedure  adopted  in  1692-3  was  not  to  be  a 
precedent:  Acts  and  Resolves,  I,  92,  106. 

6  Ads  and  Resolves,  I,  615,  515,  516,  214,  etc. 
9  Ads  and  Resolves,  I,  406  ff. ;  II,  866,  963. 

7  Mass.  Col.  Rec.,  IV,  Part  I,  37-8;  V,  139. 


344       Rise  of  the  County  in  the  New  England  Colonies. 

century — -just  as  in  the  days  of  the  Norman  vicecomes — 
taxes  were  payable  in  kind,1  or  in  "country  pay/'  as  the 
records  have  it.2  Beaver3  and  wampum4  were  also  recognized 
as  legal  tender  for  this  purpose ;  but  in  Massachusetts  the 
acceptance  of  the  latter  was  prohibited  in  16495 — a  precedent 
followed  by  the  Plymouth  jurisdiction  in  the  next  year.6  In 
the  former  colony,  however,  it  remained  a  legal  tender  in 
payment  of  private  debts.7 

Often  in  the  order  directing  the  levy  the  portion  which 
must  be  paid  in  money  or  the  rebate  for  cash  is  specified;8 
and  the  countless  measures  for  regulating  the  "prizes"  at 
which  produce  or  stock  shall  be  taken,  prohibiting  the  accept- 
ance of  "  leane  cattell," 9  and  prescribing  the  mode  of  appraise- 
ment,10 or  the  method  of  transportation,11  fill  a  great  space  in  the 
early  records. 


1  In  Massachusetts,  as  late  as  October  1685,  the  prices  of  corn  and  other 
produce  receivable  in  payment  of  rates  were  fixed  by  order  of  the  general 
court :  Mass.  Col.  Bee.,  V,  505.    Cf.  Plym.  Col.  Bee.,  I,  9,  26 ;  II,  45 ;  Con- 
necticut Code,  1650 :  Trumbull,  Blue  Laws,  122 ;  New  Haven  Col.  Bee.,  I, 
60 ;  II,  15,  181,  221,  etc. ;  Rhode  Island  Col.  Bee.,  II,  358-9 ;  Conn.  Col.  Bee., 
1,12,  13,79,549;  II,  322,  etc. 

2  So-called  in  Mass.  Col.  Bee.,  V,  296,  417.    "  Specie  "  for  produce  is  also 
used:  Ib.,  I,  304;  V,  81. 

*New  Haven  Col.  Bee.,  II,  15,  181,  221;  Mass.  Col.  Bee.,  I,  180;  II,  27, 
112;  Conn.  Col.  Bee.,  I,  12,  13. 

*  Plym.  Col.  Bee.,  XI,  57,  128 ;  Mass.  Col.  Bee.,  II,  27,  48;  IV,  Part  I,  36  ; 
B.  /.  Col.  Bee.,  I,  217,  392,  400,  474;  2  Mass.  Hist.  CM.,  V,  100,  168,  171; 
Conn.  Co*.  Bee.,  I,  12,  13,  61,  79,  179,  546. 

On  wampum  as  a  legal  tender  see  the  interesting  monograph  of  William 
B.  Weeden  in  J.  H.  U.  Studies,  Second  Series,  VIII-IX ;  also  Dr.  Bronson's 
Hist.  Account  of  Conn.  Currency  in  Vol.  I  of  New  Haven  Hist.  Soc.  Papers. 

5  Mass.  Col.  Bee.,  II,  279. 

6  Plym.  Col.  Bee.,  XI,  57. 

''Mass.  Col.  Bee.,  IV,  Part  I,  36  (1650). 

8  Mass.  Col.  Bee.,  IV,  Part  II,  568;  V,  45,  55,  245,  443,  etc. 

•  Mass.  Col.  Bee.,  IV,  Part  II,  464. 

10  Mass.  Col.  Bee.,  I,  295,  303,  340;  IV,  Part  II,  350. 

11  Mass.  Col.Bec.,V,6G. 


The  Shire  as  a  Militia  District.  346 

IV. — THE  SHIEE  AS  A  MILITIA  DISTRICT. 
(a). — The  Train  Band. 

"  See  then  you  store  your  selves  with  all  sorts  of  weapons 
for  war,  furbish  up  your  Swords,  Rapiers,  and  all  other  pierc- 
ing weapons.  As  for  great  Artillery,  seeing  present  meanes 
falls  short,  waite  on  the  Lord  Christ,  and  hee  will  stir  up 
friends  to  provide  for  you :  and  in  the  meane  time  spare  not 
to  lay  out  your  Coyne  for  Powder,  Bullets,  Match,  Armes  of 
all  sorts,  and  all  Kinde  of  Instruments  for  War." 

Such  is  the  quaint  but  sober  admonition  of  the  author  of 
Wonder- Working  Providence  to  the  pioneers  of  New  Eng- 
land.1 And  of  a  truth  the  maintenance  of  military  discipline 
was  long  a  matter  of  primary  necessity.  If  each  hamlet  may 
properly  be  regarded  as  at  once  a  body  politic  and  a  congre- 
gation of  common  worshippers,  it  may  with  equal  truth  be 
styled  a  baud  of  fellew  soldiers.  The  public  trainings  began 
and  closed  with  prayer;2  and  that  each  town  should  set  apart 
a  "  training  field  "  or  "  training  green,"  was  as  much  a  matter 
of  course  as  the  reservation  of  a  common  pasture  or  the  build- 


1  Ed  ward  Johnson,  History  of  New  England;  Wonder- War  king  Providence 
of  Sions  /Saviour,  in  New  England,  London,  1654:  2  Mass.  Hist.  Coll.,  II, 
59. 

1 "  Being  come  into  the  field,  the  captain  called  us  all  into  our  close 
order,  in  order  to  go  to  prayer,  and  then  prayed  himself.  And  when  our 
exercise  was  done,  the  captain  likewise  concluded  with  prayer.  I  have 
read  that  Gustavus  Adolphus,  the  warlike  king  of  Sweden,  would  before 
the  beginning  of  a  battle  kneel  down  devoutly,  at  the  head  of  his  army, 
and  pray  to  God,  the  giver  of  victory,  to  give  them  success  against  their 
enemies,  which  commonly  was  the  event ;  and  that  he  was  as  careful  also 
to  return  thanks  to  God  for  the  victory.  But  solemn  prayer  in  the  field 
upon  a  day  of  training,  I  never  knew  but  in  New  England,  where  it  seems 
it  is  a  common  custom.  About  three  of  the  clock,  both  our  exercise  and 
prayers  being  over,  we  had  a  very  noble  dinner,  to  which  all  the  clergy 
were  invited : "  John  Dunton's  Life  and  Errors,  1686,  in  2  Mass.  Hist.  CWL, 
II,  107. 


346       Rise  of  the  County  in  the  New  England  Colonies. 

ing  of  a  public  meeting-house.1  The  amount  of  time  origi- 
nally allotted  to  training  is  really  astonishing.  By  one  of 
the  first  military  orders  of  the  Massachusetts  court  of  assist- 
ants, each  captain  was  required  to  train  his  company  on  Satur- 
day of  every  week.2  Soon  after  once  a  month  was  thought 
sufficient;3  and  in  1637  the  number  of  training  days  was 
reduced  to  eight  each  year.4  The  town  was  the  unit  of 
organization — each  furnishing  its  company  ; 5  but  a  sort  of 
general  command  was  conferred  upon  Captains  Patrick  and 
Underhill  who  were  chosen  for  the  "  country's  service." 6 

In  those  days  every  man,  "  as  well  servants  as  others,"  only 
magistrates  and  ministers  being  exempt,  was  a  soldier  and 
required  to  provide  himself  with  arms.  If  too  poor  to  buy 
them,  they  were  supplied  by  his  town  until  he  should  be  able 
to  give  "satisfaction."7  And  in  like  spirit,  each  company 
was  expected  to  support  its  own  officers.8 

The  early  history  of  the  militia  in  the  other  New  England 
colonies  differs  only  in  detail  from  that  of  Massachusetts.9 


J2  Mass.  Hist.  Coll.,  II,  179  (Charlestown) ;  III,  183  (Plymouth);  IV, 
203  (Boston). 

'Mass.  Col.  Bee.,  I,  85  (April,  1631). 

3  Prince,  Annals  of  New  England,  in  2  Mass.  Hist.  Coll.,  VII,  26,  32,  72-3 ; 
Mass.  Col.  Rec.,  I,  90  (July  26,  1631). 

'Mass.  Col.  Rec.,  I,  210.     Finally  changed  to  four  times:  Ib.,  V,  211-12 
(1679) ;  Acts  and  Resolves,  1, 129. 
•    5  Miss.  Col.  Rec.,  I,  190-1. 

6 Mass.  Col.  Rec.,  I,  191  (1637).  In  the  beginning  there  seem  to  have 
been  two  companies  only,  made  up  from  the  various  hamlets  and  com- 
manded by  these  captains :  Mass.  Col.  Rec.,  I,  77,  90. 

7  Mass.  Col.  Rec.,  I,  84. 

8  Mass.  Col.  Rec.,  I,  99,  160. 

9  Conn.  Col.  Rec.,  I,  4,  15,  30,  97,  etc. ;  Levermore,  Rep.  of  New  Haven,  48 
ff.;  Rhode  Island  Col.  Rec.,  I,  61,  64,  104,  121,  226,  381,  402,  etc.;  for  Ply- 
mouth, Dr.  Adams,  Norman  Constables,  17  ff.;  Plymouth  Col.  Rec.,  XI,  30, 
36,  180,  251,  etc. 


The  Shire  08  a  Militia  District.  347 


(6). — The  Regiment  Formed. 

The  general  control  of  the  militia  of  the  entire  jurisdiction 
was  at  first  entrusted  to  a  committee  of  assistants ;  *  but  soon 
it  was  placed  in  the  hands  of  the  "standing  council."2  In 
December,  1636,  the  companies  were  first  grouped  in  three 
regiments;3  but  the  regimental  districts  did  not  correspond 
respectively  to  the  jurisdictions  of  the  quarter  courts  organized 
in  the  preceding  March,  which,  as  we  have  seen,  were  the  germs 
of  the  future  shires.4  However  in  September,  1643,  appeared  a 
most  important  statute  by  which  the  regiment  was  based  on 
the  shire  and  the  militia  organization  fully  elaborated.  By 
this  act  the  general  court  delegates  its  supreme  military 
authority  to  a  council  of  which  the  governor  is  one.  To  lead 
and  direct  their  forces  and  to  execute  their  orders,  a  "  sergeant 
major  general "  is  to  be  chosen  by  the  council.8 

It  is  also  provided  that  for  each  shire  a  "  lieutenant "  shall 
be  appointed,  with  power  to  levy  the  forces  of  the  shire  in 
cases  of  sudden  emergency  when  timely  notice  connot  be  given 
to  the  governor  and  council.  This  office  was  probably  sug- 
gested by  that  of  the  English  lord  lieutenant;  but  it  is  doubtful 
whether  it  was  ever  really  instituted,  as  there  seems  to  be  but 
one  further  mention  of  it  in  the  records.6  Moreover,  by  the 


1  Mass.  Col.  Rec.,  I,  125. 

*  Mass.  Col.  Rec.,  I,  183,  192.    This  seems  to  have  been  the  famous 
"standing  council"  of  1636,  composed  of  the  governor  and  of  certain 
assistants  chosen  for  "tearme  of  their  lyves:"  Mass.  Col.  Rec.,  I,  167.    On 
the  significance  of  this  institution  as  an  oligarchic  device,  see  Oliver, 
Puritan  Commonwealth,  63-4. 

J  Mass.  Col.  Rec.,  I,  186-7. 

*  Still  the  first  regiment  included  Boston,  Roxbury,  Dorchester,  Wey- 
inouth,  and  Hingham — nearly  the  same  as  the  jurisdiction  of  court  No.  4 
of  1636,  and  Suffolk  shire,  1643.    See  Dr.  Channing's  monograph,  34-5. 

5  But  in  Oct.  1643,  it  was  provided  that  he  should  be  chosen  by  the  freemen 
at  the  general  court  of  election  in  the  same  manner  as  the  governor :  MOM. 
Col.  Rec.,  II,  49. 

*  In  the  act  of  Oct.  1643,  where  it  is  provided  that  the  sergeant  major 


348       Rise  of  the  County  in  the  New  England  Colonies. 

order  under  discussion,  the  actual  command  of  the  regiment  of 
each  shire  is  entrusted  to  the  "  sergeant  major." 

It  is  further  provided  by  this  act  that  each  regiment  shall 
be  divided  into  companies  according  to  towns,  the  smaller 
places  combining  to  furnish  a  full  quota.  A.  "  beacon  fired," 
four  muskets  discharged,  and  a  drum  beaten,  are  to  constitute 
an  alarm.  Each  year  there  is  to  be  a  court  or  meeting  con- 
sisting of  all  the  majors  and  lieutenants  of  shires,  together 
with  the  governor  and  council,  to  punish  disorders,  provide  for 
appointment  of  officers,  and  take  all  needful  measures  for 
carrying  out  the  military  administration.  A  similar  meeting 
is  to  be  held  once  or  twice  annually  by  the  officers  of  each 
regiment  or  shire.1 

In  the  month  following  a  supplementary  order  was  passed 
directing  that  the  sergeant  major  should  be  elected  by  the 
"  freemen  of  every  shire  "  by  sealed  proxies,  which  were  to  be 
opened  in  a  meeting  of  the  deputies  of  the  townships  held  in 
the  shire  town.2 

Still  another  act  was  passed  in  May,  1645,  by  which  not 
only  freemen  but  all  who  have  taken  the  oath  of  fidelity, 
except  servants  and  "  unsettled  "  persons,  are  allowed  to  vote 
for  majors ;  and  captains  of  companies  or  other  officers  are 
authorized  to  administer  the  oath  and  required  to  certify  the 
names  of  those  taking  the  same  to  the  county  court.  By  this 
statute  the  duties  of  the  very  important  office  of  "clerk  of 
the  band"  are  fully  defined.  The  clerk  like  other  officers  was 
chosen  by  the  company.3  It  was  his  duty  to  be  present  on 
training  days,  to  call  the  roll,  take  note  of  the  defects  and 
offences  of  the  "  soldiers,"  and,  at  least  once  a  year,  to  institute 


shall  perform  the  duties  of  lieutenant,  unless  the  latter  be  appointed:  Mass, 
Col.  Eec.,  II,  50. 

1  For  the  act  see  Mass.  Col.  Rec.,  II,  42-3.      • 

*  Mass.  Col.  Eec.,  II,  49-50 ;  cf.  /&.,  62.  For  a  very  good  account  of  the 
militia  organization  in  this  period  with  details  as  to  particular  companies,  see 
Edward  Johnson,  Wonder-  Working  Providence,  in  2  Mass.  Hist.  Coll.,VII,  52-8. 

3  But  subject  to  the  approval  of  the  county  court :  Mast.  Col.  Rec.,11. ,  222. 


The  Shire  as  a  Militia  District.  349 

a  view  of  arms.  He  was  empowered,  with  approval  of  the 
chief  officers,  to  impose  a  fine  of  five  shillings  for  each  absence 
from  training  or  defect  in  the  watch,  or  one  of  ten  shillings  for 
failure  to  come  provided  with  the  proper  arms  and  ammuni- 
tion ;  every  soldier  being  required  to  have  "  one  pound  of 
powder,  20  bullets,  and  2  fathome  of  match,  with  musket, 
sword,  bandilers,  and  rest." l 

Thus  once  more,  as  in  the  ancient  volkerschaft  and  its 
representative  the  English  scir,  appears,  in  the  gathering  of 
the  train  bands  of  the  new  Essex,  Norfolk,  or  Suffolk,  a 
veritable  assembly  of  the  fyrd  or  folk  in  arms.2 

(c). — Boy  Train  Bands — Ttie  Alarm. 

Various  measures  for  securing  an  efficient  militia  were 
adopted  by  the  general  court.  For  example,  in  1645,  it  was 
ordered  that — 

"  Whereas  it  is  conceived  y*  ye  training  up  of  youth  to  ye  art 
&  practice  of  armes  wilbe  of  great  use  in  y8  country  in  divers 
respects,  &  amonge  ye  rest  y'  ye  use  of  bowes  &  arrowes  may 
be  of  good  concerning  in  defect  of  powder,  ...  it  is  therefore 
ordered,  y1  all  youth  wthin  this  iurisdiction,  from  ten  yeares  ould 
to  ye  age  of  sixeteen  yeares,  shalbe  instructed,  by  some  one  of 
y*  officrs  of  ye  band,  or  some  othr  experienced  souldier  whom 
y*  cheife  officer  shall  appoint,  upon  y*  usuall  training  dayes,  in 
y*  exercise  of  armes,  as  small  guns,  halfe  pikes,  bowes  &  arrowes 
<fec,  .  .  .  p'vided  y'  no  child  shalbe  taken  to  y§  ex'cise  against 
yk  parents  minds."3 

The  provision  for  alarms  reminds  us  of  the  plan  adopted  in 
Maryland.4  A  "gennerall  alarum  "  is  sounded  by  the  discharge 

lMas8.  Col.  Rec.,  II,  117  f.,  191. 

1  Such,  certainly  was  the  regiment  of  each  New  England  shire,  when  met 
under  sergeant  major  or  lieutenant,  as  truly  as  was  the  fyrd  led  by  his 
ancestor,  the  ancient  ealdorman  of  East  Anglia  or  Kent. 

'Mass.  Col.  Rec.,  II,  99.    See  also  lb.,  p.  223  (1647). 

4  See  Chap.  V,  iv,  (6). 


350       Rise  of  the  County  in  the  New  England  Colonies. 

of  three  muskets  or  the  continual  beat  of  a  drum,  by  the  firing 
of  a  beacon,  the  discharge  of  a  piece  of  ordinance,  or  by  a 
messenger;  and  every  "  trayned  souldjer  "  is  required  to  respond 
under  penalty  of  five  pounds.  The  "  speciall  alarum  "  for  each 
town  consists  of  the  discharge  of  one  musket,  which  each 
sentinel  must  answer  by  crying  "  arme,  arme,"  at  every  house 
in  his  quarter.1 

In  1652  "all  Scotchmen,  Negroes,  and  Indians,"  between 
sixteen  and  sixty  years  of  age,  dwelling  with  or  being  servants 
of  the  English,  are  required  to  be  listed  for  the  trainings.  At 
the  same  time  was  created  a  "committee  of  militia"  for  each 
town  consisting  of  the  magistrates  or  deputies  and  the  three 
chief  militia  officers  residing  therein,  which  was  to  exercise 
general  authority  over  the  watch  and  the  local  military  affairs.2 

(d). — Overthrow  of  the  Democratic  Constitution. 

The  year  1668  marks  an  important  epoch  in  the  history  of 
the  militia  organization  of  Massachusetts.  Thus  far  it  had 
rested  on  the  democratic  principle  of  popular  election.  Hence- 
forth all  commissioned  officers  are  to  be  appointed  by  the 
general  court,  or,  in  cases  of  emergency,  by  the  "  council  of  the 
commonwealth ; "  while  appointments  to  inferior  posts  are  to 
be  made  by  the  commissioned  officers  of  the  company,  or  where 
none  are,  by  the  major  of  the  regiment.3  Subsequently,  how- 
ever, the  town  committees  of  militia  were  authorized  to  nomi- 
nate the  higher  company  officers,  to  be  commissioned  by  the 
general  court.4 

By  the  charter  of  1691,  the  appointment  of  commissioned 
officers  was  vested  in  the  governor,  the  inferior  nominations 
being  made  as  before.  But  previous  to  the  Revolution,  few 


lMass.  Col.  JRec.,  II,  223.     On  the  constitution  of  the  watch,  see  Ib.,  224. 
'Mass.  Col.  Rec.,  IV,  Part  I,  86-8.    On  the  town  watch,  see  Chap.  II,  iv,  (d). 
3Mass.  Col.  Rec.,  IV,  Part  II,  368,  422. 
4Mass.  Col  Rec.,  V,  30-  (1675).    Cf.  Ib.,  66,  79. 


Genesis  of  the  Primary  and  the  Nominating  Convention.  351 

important  changes  were  made  in  the  military  constitution  of 
the  province. 

V. — GENESIS  OF  THE  PRIMARY  AND  THE  NOMINATING 
CONVENTION. 

(a). — Election  by  Sealed  Proxies. 

Throughout  the  whole  period  of  the  first  charter,  in  Massa- 
chusetts, the  assistants,1  the  governor,2  deputy  governor,  and 
other  officers  of  the  jurisdiction  were  chosen  in  the  "general 
court  of  election  "  by  the  entire  body  of  freemen  voting,  at 
the  option  of  the  individual,  either  in  person  or  by  sealed 
proxies.3  But  this  method  was  cumbrous  and  expensive,  and 
consciousness  of  the  fact  found  occasional  expression  in  various 
measures,  none  of  which,  however,  effected  any  radical  or  last- 
ing improvement.  For  example,  in  1641,  the  general  court 
submitted  the  following  plan  to  the  towns  for  ratification  : 

"  It  being  found  by  experience  that  the  course  of  elections 
had  neede  to  bee  brought  into  some  better  order,  the  freemen 
growing  to  so  great  a  multitude  as  wilbee  overburthensome  to 
the  country,  &  the  day  appointed  for  that  servise  will  not 
affbard  sufficient  time  for  the  same,  and  the  way  of  p'xies  (as 
it  is  called)  is  found  subiect  to  many  miscarriages,  &  losse  of 
oportunityes  for  advise  in  the  choyse,"  therefore  it  is  suggested 
"  that  in  evry  towne  woh  is  to  send  a  deputy  to  the  Court,  the 


1  By  the  charter  the  assistants  were  to  be  18  in  number;  but,  as  a  matter 
of  fact,  until  1680,  the  full  number  was  never  chosen:  Mass.  Col.  Rec.,V, 
291,  261-2. 

2  Except  in  1630,  when  it  was  enacted  that  the  governor  and  deputy  were 
to  be  chosen  by  the  assistants;  but  the  freemen  resumed  the  right  in  1632: 
Mass.  Col.  Rec.,  I,  79,  95.    On  the  significance  of  the  act  of  1630,  see  Peter 
Oliver,  Puritan  Commonwealth,  51  ff. 

3  The  same  system  prevailed  in  the  other  New  England  colonies :  Ply- 
mouth Col.  Sec.,  XI,  7,  10,  41,  78-81,  etc.;  Rhode  Island  Col.  Rec.,  I,  148-9; 
II,  62;  Conn.  Col.  Rec.,  I,  21-2,  346-7;  II,  131,  etc.    On  the  elective  sys- 
tem of  Massachusetts,  compare  Doyle,  English  Colonies,  II,  253-4.     Proxies 
were  first  used  in  1636:  Washburn,  Judicial  Hist,  of  Mass.,  19-20. 


352       Rise  of  the  County  in  the  New  England  Colonies. 

ffreemen  to  meete  before  the  Court  of  Election,  &  for  evry  ten 
freemen  to  choose  one,  to  bee  sent  to  the  Court,  wth  power  to 
make  election  for  all  the  rest,  &  in  this  way  to  bee  at  liberty 
whether  they  will  ioyne  altogether  or  vote  severally,  or  to 
vote  so  as  evry  one  that  hath  10  votes  shalbee  an  electo*,  & 
matrata  &  eld™  to  put  in  their  votes  as  other  freemen. 'n 

It  does  not  appear  from  the  records  that  this  suggestion 
received  the  approval  of  the  towns. 

Again  in  1663,  it  was  enacted  that  "for  tjme  to  come  all 
votes  of  the  freemen  in  each  toune  wthin  this  juridiction  be 
sent  in  proxies,  sealed  vp,  as  the  lawe  requireth,  &  that  none 
be  admitted  to  giue  votes  personally  at  the  day  of  eleccon, 
except  the  members  of  the  Generall  Court." 2  But  this 
method  did  not  prove  satisfactory,  and  the  act  was  repealed 
in  the  following  year.3 

At  an  early  day4  secret  ballot  had  been  substituted  for 
show  of  hands  in  the  choice  of  public  officers,  and  in  1643  a 
curious  method  of  balloting,  reminding  us  of  early  Athenian 
days,  was  instituted.  It  was  ordered  that  "for  the  yearly 
choosing  of  Assistants  for  the  time  to  come,  insteed  of  pap's 
the  freemen  shall  use  Indian  beanes,  the  white  beanes  to 
manifest  election,  the  black  for  blanks."5  Subsequently  this 
plan  was  renewed  for  taking  the  proxies  in  the  various  towns 
for  assistants ;  but  those  for  governor  and  other  officers  were 
to  be  given  "  by  writing,  open,  or  once  foulded,  not  twisted 
or  rouled  up."6  Still  later,  in  168Q,  Indian  corn  was  substi- 
tuted for  beans  in  taking  proxies  for  magistrates.7 


1  Mass.  Col.  Rec.,  I,  333. 

2  Mass.  Col.  Rec.,  IV,  Part  II,  86. 

*Mass.  Col.  Rec.,  IV,  Part  II,  134.  The  law  of  1647,  below  cited,  required 
all  proxies  for  public  officers  and  assistants  to  be  handed  in  to  the  town 
deputies  in  advance,  but  it  did  not  give  satisfaction :  Winthrop,  Hist,  of  New 
England,  II,  379 ;  Mass.  Col.  Rec.,  II,  220. 

*In  1634  and  1635:  Washburn,  Judicial  Hist,  of  Mass.,  19-20. 

5  Mass.  Col.  Rec.,  II,  42. 

6  Mass.  Col.  Rec.,  II,  220  (1647). 

7  Mass.  Col.  Rec.,  V,  292. 


Genesis  of  the  Primary  and  the  Nominating  Convention.  353 


(6). — Method  of  Nominating  Assistants. 

If  little  was  done  directly  to  remedy  the  defects  of  the 
mixed  method  of  voting  by  personal  ballot  and  sealed  proxies, 
the  procedure  at  elections  was  much  simplified,  in  the  case  of 
magistrates,  through  the  gradual  development  of  a  nominating 
system,  which  is  of  peculiar  interest  in  this  connection,  not 
only  because  it  comprised  the  elements  of  the  modern  primary 
and  convention,  but  because  the  shire  was  employed  as  a  factor 
therein. 

The  first  attempt  to  regulate  nominations  seems  to  have 
been  in  May,  1640.  The  general  court,  "takeing  into  con- 
sideration how  the  liberty  of  the  freemen  in  matter  of  election 
of  magistrates  .  .  .  may  bee  p'served,  &  \vthall  how  dewe 
order  may  bee  setled  in  the  exercise  of  this  liberty,"  ordered 
that  in  the  town-meeting  for  choice  of  deputies,  the  latter, 
"  being  so  chosen,  shall  p'pound  to  the  freemen  whom  they 
would  have  put  to  nomination  for  magistrates  at  the  next 
Court  of  Elections,  &  shall  then  set  downe  the  names  of  such 
as  shalbce  so  nominated,  &  the  certaine  number  of  votes  woh 
every  man  so  named  shall  have  &  shall  make  a  true  returne 
of  the  same  at  the  next  Generall  Court."  The  magistrates 
and  deputies  are  then  to  canvas  the  returns  from  all  the  towns 
and  "  take  note  of  so  many  as  have  the  greater  number  of  votes, 
.  .  .  till. they  have  so  many  (if  so  many  bee  returned)  as  will 
make  up  the  full  number  of  Assistants."  The  latter  are  to  be 
"returned  back  by  the  deputies  to  the  severall  townes"  as  the 
accepted  candidates,  and  no  others  may  be  voted  for  at  the 
court  of  election  "  but  such  as  shall  come  to  nomination  in 
the  order  aforesaid." l 

By  the  system  thus  instituted,  it  will  be  readily  seen,  the 
nominations  were  really  made  at  the  "primaries"  under  the 


1  Mats.  Col.  Ree.,  I,  293. 
23 


354       Rise  of  the  County  in  the  New  England  Colonies. 

town  deputies  as  returning  officers ;  while  the  functions  of  a 
canvassing  board  of  the  complete  returns  were  discharged  by 
the  general  court.  But  in  1642  another  method  was  substi- 
tuted, strikingly  similar  to  the  existing  modern  procedure. 
It  was  enacted  that  every  town  in  the  jurisdiction  shall  choose 
one  or  two  freemen,  to  meet  at  Salem  the  first  Wednesday  in 
April,  there  to  agree  upon  a  certain  number  "  of  the  most 
able  and  fit  men "  to  be  put  in  nomination  for  assistants, 
whose  names  shall  be  certified  to  the  colonial  secretary ;  and 
those  only  thus  nominated  shall  be  eligible.1 

Here  we  have  not  only  the  "  primaries "  for  choice  of 
delegates,  but  also  a  veritable  "  state  convention "  with 
deliberative  powers.  However  in  the  following  year,  the 
act  of  1 640  was  revived.2 

Finally,  in  1644,  was  adopted  a  different  plan  which  was 
retained,  with  but  slight  modification,  until  the  establish- 
ment of  the  royal  government.  The  procedure  instituted  by 
this  act  consists  of  four  stages  :  1.  The  ballot  for  candidates 
in  the  primaries  or  town-meetings,  each  freeman  voting  for 
whom  he  sees  fit.  2.  One  or  two  "selectmen" — not  to  be 
confused  with  the  representative  board  of  the  same  name — 
duly  elected  for  this  purpose,  are  to  carry  the  votes  of  each 
town  under  seal  to  the  shire  town ;  and  all  the  delegates  when 
there  assembled  are  to  choose  one  or  two  from  their  own 
number,  called  "  shire  selectmen,"  to  carry  the  votes,  sealed 
up  in  one  paper,  to  Boston.  3.  The  convention  of  shire 
selectmen,  in  the  presence  of  two  magistrates,  is  required  to 
count  the  votes  and  report  to  the  respective  town  "select- 
men "  the  names  of  the  seven  candidates  for  assistants  receiv- 
ing the  greatest  number.  4.  The  said  selectmen  of  each 
town  are  to  call  a  meeting  in  which  shall  be  announced  the 
names  of  the  candidates;  and  only  those  so  nominated,  as 


1  Mass.  Col.  Kec.,  II,  21. 

2  Mass.  Col.  Rec.,  II,  37. 


Genesis  of  the  Primary  and  the  Nominating  Convention.  355 

by  the  acts  already  cited,  shall  be  put  to  vote  at  the  court 
of  election.1 

The  essential  features  of  the  system  adopted  in  1644  were 
retained  in  subsequent  enactments.2  The  shire  selectmen  or 
"  commissioners,"  as  they  were  henceforth  called,  continued 
to  discharge  the  same  functions ;  but  they  reported  the  names 
of  candidates  nominated  directly  to  the  constables,  instead  of 
to  the  selectmen,  of  the  various  towns.3 

(c). — The  Shire  Proposed  as  the  Unit  of  Representation. 

The  employment  of  town  deputies  instead  of  "  knights  of 
the  shire  "  has  always  been  so  characteristic  a  feature  of  New 
England  constitutional  life,  that  the  following  proposal  of  the 
general  court,  1644,  to  substitute  county  representation,  is  not 
without  a  certain  historical  interest : — 

It  is  recited  that  "  whereas  wee  having  found  by  experience 
y*  y6  charge  of  this  Genrall  Cort  groweth  very  great  &  burthen- 
some,  in  regard  of  the  continuall  increase  of  deputies  sent  unto 
ye  same,  &  furthr  foreseeing  y*  as  towiies  increase  ye  numb' 
wilbe  still  augmented,  to  ye  uusupportable  burthen  of  this 
comon  wealth ;  as  also  it  being  thought  a  matter  worthy  y* 
trial  1,  dureing  y8  standing  of  this  order,  to  have  ye  use  of  y" 
negative  vote  forborne,  both  by  magistrates  &  deputies,"  * 
therefore  it  is  proposed  for  the  ensuing  year  that  twenty  depu- 
ties shall  be  chosen  by  the  freemen  of  the  various  shires,  six 
in  Suffolk,  six  in  Middlesex,  and  eight  in  Essex  and  Norfolk 


lMa»8.  Col.  Rec.,  II,  87-8.  The  act  was  repealed  1647,  but  replaced  by 
another  substantially  the  same  :  //>.,  210. 

•Man.  Col.  Rec.,  II,  286-7;  V,  291  (1680). 

s  Under  the  second  charter  the  governor  and  councillors  were  nominees 
of  the  crown  ;  but  return  of  town  deputies  elect  was  made  to  the  sheriff  of 
each  county,  and  by  the  latter  to  the  provincial  secretary:  Acts  and  Resolves, 
I,  89,  147,  202,  315. 

4  They  were  to  sit  and  vote  together  as  was  then  the  custom  in  the  general 
court :  Winthrop,  Hist,  of  New  England,  II,  63,  note. 


356       Rise  of  the  County  in  the  New  England  Colonies. 

jointly.  And,  to  "ye  end  ye  ablest  gifted  men  may  be  made  use 
of  in  so  weighty  a  worke,"  residence  in  the  shire  on  the  part 
of  the  deputies  is  not  required.  The  votes  are  to  be  taken  in 
the  various  towns  and  counted  in  the  shire  town  by  "  one  or 
two  "  of  each  of  the  former  chosen  for  the  purpose.  Finally 
the  twenty  delegates  thus  selected  are  to  assemble  at  the  next 
court  of  election  and  those  "  receiving  the  greatest  number 
of  votes,  to  equall  ye  number  of  magistrates  then  chosen,"  are 
to  be  confirmed,  and  the  rest  dismissed.1  This  plan,  however, 
was  not  accepted  by  the  towns,  and  no  further  mention  of  the 
matter  appears  in  the  records. 

VI. — IMPORTANCE  OF  THE  MASSACHUSETTS   COUNTY  AS 
COMPARED  WITH  THE  ENGLISH  SHIRE. 

The  facts  presented  in  the  preceding  investigation,  suffi- 
ciently demonstrate,  it  is  believed,  that  the  county  in  Massa- 
chusetts was,  at  least,  a  useful  and  busy  organism.  It  may 
be  well,  however,  to  notice  somewhat  more  closely  its  relative 
value  as  compared  with  the  contemporary  institution  in  the 
mother  country. 

In  one  important  particular  the  English  county  was  of 
greater  significance.  The  old  shiremoot  continued  to  sur- 
vive ;  and  while  a  mere  fragment  of  its  ancient  civil  juris- 
diction remained,  it  was  still  the  center  of  political  life.  Here 
the  knights  of  the  shire,  as  also  the  county  coroner  and  ver- 
derers,  were  still  chosen.  In  Massachusetts,  on  the  other 
hand,  the  township  and  not  the  county  was  the  unit  of  repre- 
sentation ;  the  sheriff  of  the  latter,  at  most,  gaining  the  right 
to  issue  the  precept  for  election  and  to  make  official  return. 
But  the  extent  to  which  the  elective  principle  in  the  choice 
of  county  officers  prevailed,  partially  balances  this  disadvan- 
tage. Throughout  the  entire  colonial  period  the  treasurer 

1  Mass.  Col.  Bee.,  II,  88. 


Importance  of  the  Massachusetts  County.  357 

was  chosen  by  popular  vote;  and  in  its  earlier  portion,  the 
sergeant  major,  the  various  classes  of  commissioners,  and  even 
the  associates  or  justices  of  the  court,  were  elected  in  the  same 
manner. 

Again  the  provincial  county  courts  were  nearly  if  not  quite 
as  important  bodies  as  the  English  quarter  sessions.  Their 
supervisory  power  with  respect  to  the  town  communities  was 
at  least  equal;  their  general  administrative  authority,  particu- 
larly those  functions  which  rendered  the  general  sessions  a 
powerful  organ  of  local  self-government,  superior ;  and  their 
jurisdiction  as  legal  tribunals,  far  more  comprehensive.  That 
of  the  quarter  sessions,  it  is  true,  extended  to  capital  crimes, 
while  the 'county  courts  could  only  try  minor  offences.  But 
this  superiority  was  greatly  outweighed  by  their  competence 
in  all  civil  causes,  not  to  mention  their  probate  and  even 
chancery  jurisdiction. 

Plainly,  then,  the  Massachusetts  shire  loses  little  by  com- 
parison with  its  English  prototype.  But  we  must  not  close 
this  section  without  emphasizing  one  other  truth  plainly  dis- 
closed by  the  foregoing  examination.  It  is,  that  the  com- 
missioner system  as  employed  in  nominations  and  equalization 
of  assessments,  furnishes  precedents,  however  indistinct,  for 
the  mixed  township-county  organization  of  the  present  time. 
And  if  it  should  be  objected,  that,  after  all,  these  commis- 
sioners were  but  town  delegates,  exercising  their  functions  for 
convenience  in  the  shire  town  :  it  may  be  answered  that  such 
is  precisely  the  character  of  the  modern  board  of  supervisors : 
town  officers,  sitting  together  in  the  shire  town,  for  the  man- 
agement of  county  affairs. 


CHAPTER  VIII. 

RISE  OF  THE  COUNTY  JN  THE  MIDDLE 
COLONIES. 

I. — THE  NEW  YORK  COUNTY. 
(a). — The  Riding. 

Under  the  Dutch  regime  in  New  Netherland  there  was  no 
division  similar  to  the  county :  local  government,  such  as 
existed,  belonging  to  manors,  villages,  and  chartered  towns, 
which  sustained  a  direct  relation  to  the  colonial  authority  in 
New  Amsterdam.1  But  with  the  promulgation  of  the  code  of 
•  the  Duke  of  York  in  1664,2the  history  of  the  institution  may 
fairly  be  said  to  begin ;  though  there  is  no  very  clear  recogni- 
tion of  it,  save  in  the  name  "Yorkshire"  bestowed  upon  Long 
Island.3  On  the  other  hand  the  old  English  term  "riding'7 
was  adopted  for  the  area  above  the  town-communities,  York- 


1  See  Chap.  Ill,  n. 

"Armstrong,  Introduction  to  Record  of  Upland  Court,  25-6;  Duke's  Laws,  3 ; 
Nead,  Historical  Notes,  457. 

3Brodhead,  Hist,  of  New  York,  II,  63,  says:  "Yorkshire,  or  Long  Island, 
peopled  chiefly  by  Englishmen,  with  Westchester  and  Staten  Island,  was 
erected  into  a  shire,  and  like  its  English  namesake  was  divided  into  three 
districts  or  ridings."  But  in  a  fragment  of  an  undated  letter,  Col.  Nicolls 
thus  writes  to  the  Duke:  "I  gave  it  the  name  of  Albania,  lying  to  the  west 
of  Hudson's  River,  and  to  Long  Island  the  name  of  Yorkeshr  as  to  this 
place,  the  name  of  N.  Yorke : "  O'Callaghan,  Doc.  Eel.  to  Col.  Hist,  of  N.  Y., 
Ill,  105.  " Precinct"  was  also  used  for  the  district :  April  16, 1678, Andros 
writes : — "  We  have  24  townes,  villages,  or  parishes  in  Six  Precincts,  Divisions, 
Rydeings,  or  Courts  of  Sessions :  "  lb.,  Ill,  261.  Cf.  Brodhead,  I,  745. 
358 


The  New  York  County.  359 

shire  being  divided  into  three  such  judicial  districts.1  But  the 
ridings  were  in  fact  rudimentary  counties:  not  only  did  their 
territorial  areas  correspond  roughly  to  those  of  counties  sub- 
sequently organized,2  but,  as  will  appear  in  the  sequel,  the 
court  of  sessions  was  practically  a  county  court,  sustaining  to 
the  assizes  in  New  York  a  relation  similar  to  that  occupied 
elsewhere  by  the  general  sessions  of  the  peace  with  respect 
to  the  governor  and  council  or  other  supreme  court  of  the 
colony.8 

By  the  Duke's  Laws  nearly  all  the  functions  of  government, 
not  expressly  reserved  to  the  central  authority,  are  left  to 
the  towns  or  parishes.  The  judicial  system  consists  of  three 
classes  of  tribunals :  town  courts,  courts  of  sessions,  and  the 
court  of  assizes.  The  town  court  is  held  by  the  constable  and 
overseers,  and  exercises  jurisdiction  in  all  civil  cases  where  the 
amount  in  controversy  does  not  exceed  five  pounds.  The  court 
of  sessions  is  held  thrice  a  year  by  the  justices  of  the  peace 
in  each  riding,4  with  jurisdiction  in  actions  of  five  to  twenty 
pounds.5  In  cases  of  twenty  pounds  appeal  lies  to  the  court 
of  assizes. 

The  sessions  are  also  the  medium  of  communication  between 
the  towns  and  the  colonial  authority.  Thus  we  find  them, 
at  the  request  of  the  governor  and  council,  recommending 
measures  for  the  regulation  of  township  affairs.6 

But  before  resorting  to  the  town  court  or  the  sessions, 
actions  "of  what  nature  soever"  between  neighbors  are  to 


1  In  the  Duke's  Laws,  54,  called  the  North,  East,  and  West  ridings  of  York- 
shire upon  Long  Island. 

2 King's,  Queen's,  and  Suffolk:  of.  Brodhead,  IT,  63,  386. 

'The  court  of  assizes  was  analogous  to  the  general  court  or  to  the  court  of 
assistants  in  New  England,  and  to  that  of  the  director  and  council  in  New 
Netherland:  Chalmers,  Political  Annals,  I,  575,  596:  Brodhead,  II,  63-4. 

*  Duke' a  Laws,  20  ff.  The  number  of  sessions  was  subsequently  reduced 
to  two  a  year :  Jo.,  68. 

'DuAe'a  Lam,  4.  Cf.  O'Callaghan,  Doc.  Ed.  to  Col.  Hut.  of  N.  Y.,  Ill, 
188. 

•See  an  example  in  Fernow,  Doc.  Rd.  to  Col.  Hi»t.  of  N.  Y.,  XIV,  748-9. 


360          Rise  of  the  County  in  the  Middle  Colonies. 

be  submitted  to  the  arbitration  of  "indifferent  persons"  chosen 
by  the  constable  or  justice  of  the  peace.1 

The  court  of  assizes  is  to  be  held  once  a  year  in  New  York 
by  the  governor  and  council  sitting  with  the  justices  of  the 
peace  and  the  high  sheriff;  and  it  may  hear  appeals  from  the 
sessions  and  exercise  original  jurisdiction  in  capital  offences.2 
It  also  possesses  legislative  power.3 

There  is  a  high  sheriff  for  the  entire  jurisdiction — York- 
shire— and  a  marshal  or  under  sheriff  in  each  riding.  The 
marshals  are  nominated  by  the  sheriff,  and  each  riding  is  to 
take  its  "  turne  in  haveing  a  sheriffe  chosen/'  the  latter  to  be 
appointed  by  the  governor  out  of  a  list  of  three  nominated  by 
the  justices  of  the  riding  concerned.4  The  offices  of  high  con- 
stable and  under  sheriff  were  ordered  discontinued  in  1666.5 

(6). — The  County  Courts  of  the  Royal  Province. 

In  1683,  by  an  act  of  the  first  representative  assembly,  the 
jurisdiction  of  New  York  was  divided  into  twelve  counties,6 
and  their  boundaries  were  carefully  defined  in  1159 1.7  Later 
the  number  was  increased  to  fourteen.8 

The  judicial  arrangements  were  similar  to  those  of  Massa- 
chusetts during  the  same  period.  For  the  Province  there 
was  a  "supreme  court"  consisting  of  a  chief  justice  and  two 
associates,  all  appointed  by  the  governor  and  holding  office 


1  Duke's  Laws,  3,  4,  51 ;  amended,  76.,  60. 

2  Duke's  Laws,  11,  60-1,  14-15  (capital  laws). 

3  Duke's  Laws,  60  ff.     For  examples  of  orders  passed :  Hildreth,  II,  46. 

4  Duke's  Laws,  50. 

5  Duke's  Laws,  68.    On  the  Duke's  Code,  see  Hildreth  II,  45-51  ;  Elting, 
Dutch  Vil.  Com.,  34  f.;  Brodhead,  Hist,  of  N.  Y.,  II,  62  ff. 

6  O'Callaghan,  Doc.  Eel.  to  Col.  Hist.,  Ill,  355 ;  VI,  155 ;  Fernow,  Ib.,  XIII, 
575 ;  Brodhead,  Hist,  of  New  York,  II,  385. 

7  Van  Schaack,  Laws  of  New  York,  I,  7. 

8  In  1772  Albany  county  was  divided  into  the  counties  of  Albany,  Tryon, 
and  Charlotte:  Van  Schaack,  Laws  of  New  York,  II,  658.     Cf.  O'Callaghan, 
Doc.  Ed.  to  Col.  Hist.,Vm,  441,  445;  Hildreth,  Hist,  of  U.  S.,  II,  77. 


The  New  York  County.  361 

during  good  behavior.  Appeal  lay  to  the  governor  and 
council.1 

In  the  county  the  lowest  tribunal  was  that  of  the  single 
justice  of  the  peace,  whose  jurisdiction  extended  to  cases 
under  five  pounds,  not  relating  to  land,  slander,  or  matters 
in  which  the  crown  was  concerned.2  By  legislative  enact- 
ment three  justices  had  also  jurisdiction  in  criminal  causes 
less  than  grand  larceny,  and  they  could  impose  any  penalty 
not  extending  to  life  and  limb.  Any  three  justices,  one  being 
of  the  quorum,  together  with  five  freeholders,  could,  without 
petty  or  grand  jury,  proceed  against  slaves  in  certain  cases 
and  punish  even  with  death.3 

Above  these  courts  was  the  court  of  "  sessions  "  composed 
of  the  justices  of  the  county,  with  jurisdiction  and  powers 
corresponding  to  those  of  the  English  quarter  sessions;4  and 
the  "  inferior  court  of  common  pleas,"  called  also  the  "  county 
court,"  composed  usually  of  three  judges  appointed  by  the 
governor  and  holding  office  during  pleasure.  The  inferior 
court  had  "  cognizance  of  all  actions,  real,  personal,  and 
mixed,  when  the  matter  in  demand  was  above  five  pounds 
in  value."5  The  clerk  of  the  sessions  was  appointed  by  the 
governor  and  the  office  was  "  invariably  connected  with  that 
of  the  clerk  of  the  inferior  court  of  common  pleas  in  the 
respective  counties."6 

1  Lodge,  Short  Hist.,  316;  O'Callaghan,  Doc.  Rd.  to  Col.  Hist.,VIII,  444. 

lSo  in  1774,  according  to  Gov.  Tryon's  report:  O'Callaghan,  Doc.  Rel.  to 
Col.  Hist.,  VIII,  445.  Formerly  the  maximum  was  40  shillings:  Ib.,  VI, 
117  (1738) ;  VII,  342  (1758),  426-7  (1760).  In  1769  it  was  raised  to  10£ 
in  some  cases:  Ib., VIII,  167.  Cf.  Hildreth,  II,  140;  Van  Schaack,  Laws 
of  New  York,  II,  648,  653,  680. 

•O'Callaghan,  Doc.  Rel.  to  Col.  Hist.,  VIII,  445;  Van  Schaack,  I,  241 ; 
II,  499. 

'O'Callaghan,  Doc.  Rel.  to  Col.  flirt., VII 1, 445;  III,  389  (Dongan's  report). 

'O'Callaghan,  Doc.  Rel.  to  Col.  Hist.,  VIII,  445;  if  for  less  than  twenty 
pounds,  the  suit  must  be  commenced  in  the  common  pleas :  Van  Schaack, 
Laws  of  New  York,  I,  254-5;  Lodge,  p.  316. 

•O'Callaghan,  Doc.  Rel.  to  Col.  Hist.,  VIII,  445.  On  the  county  courts,  see 
Doc.  Hist,  of  N.  Y.,  I,  '200-2  (1693) ;  IV,  377,  391  (lists  of  county  judges). 


362          Rise  of  the  County  in  the  Middle  Colonies. 

There  was  also  in  each  county  a  court  of  probate  held  by 
the  governor's  delegate;  and  a  "supervisor,"  appointed  in  like 
manner  by  the  governor,  to  look  after  the  estates  of  orphans 
and  intestates.1 


(c). — Dual  Civil  Administration  of  the  Supervisors  and  Justices. 

By  the  act  of  1703,  already  mentioned,2  a  representative 
board  composed  of  the  township  supervisors  in  each  county 
was  created.  To  this  body  was  entrusted  the  fiscal  adminis- 
tration, particularly  the  supervision  of  the  levy  and  collection 
of  the  "county  charge."  Each  year  they  were  required  to 
compute  the  charge  and  apportion  it  among  the  various  towns, 
manors,  or  precincts  of  the  county ;  and  the  respective  quotas 
were  then  assessed  and  collected  by  the  proper  local  officers 
under  authority  of  the  board. 

To  the  supervisors,  likewise,  belonged  the  appointment  of 
the  county  treasurer;  and  his  accounts  were  submitted  to  them 
for  approval  at  each  annual  meeting.3  No  other  functions  are 
mentioned  in  the  statutes  as  belonging  to  the  board ;  for  the 
latter  did  not  attain  its  full  development  as  a  supervisory 
authority  until  the  present  century. 

It  should  be  noted,  however,  that  the  general  civil  adminis- 
tration of  the  county  was  partly  controlled  by  another  body. 
Originally  that  administration  belonged  entirely  to  the  court 
of  sessions ; 4  and  after  the  fiscal  business  was  placed  in  the 
hands  of  the  supervisors,  the  justices  continued  to  discharge  a 
variety  of  important  duties. 


^'Callaghan,  Doc.  Hist.  N.  Y.,  I,  202;  Van  Schaack,  I,  15.  To  the 
county  supervisor,  the  officers  chosen  in  each  township  to  look  after  the 
estates  of  orphans  were  required  to  report. 

2  See  Chap.  Ill,  iv. 

'Van  Schaack,  Laws  of  N.  Y.,  I,  .54-6.  The  treasurer  was  required  to 
enter  into  bond  with  the  board,  with  sufficient  sureties,  for  the  proper 
execution  of  his  office:  Ib.,  II,  567. 

*  On  the  original  financial  duties  of  the  sessions,  see  Van  Schaack,  Laws  of 
N.  Y.,  I,  42-3. 


The  New  York  County.  363 

Thus  the  orders  and  regulations  made  by  overseers  of  high- 
ways were  invalid  without  their  approval ; l  they  could  hear 
appeals  from  the  decisions  of  two  justices  in  case  of  removal 
of  paupers  under  the  law  of  settlement;2  determine  the  num- 
ber of  constables  or  overseers  of  highways  which  should  be 
elected  in  the  respective  precincts;3  and  grant  licenses  to 
retailers  of  liquor.4  They  were  also  authorized  to  appoint 
inspectors  of  flour  and  repackers  of  beef;5  and  to  nominate 
assessors,  collectors,  and  supervisors,  on  failure  of  towns  to 
elect  the  same.6  Moreover  a  portion  of  the  executive  business 
of  the  county  was  transacted  by  one  or  more  justices  in  the 
respective  districts  where  they  resided.  Thus,  in  several 
counties,  a  single  justice  of  the  peace  might,  whenever  he 
thought  fit,  order  the  overseer  to  repair  any  road  or  highway 
within  his  district.7  In  Schenectady  the  resident  justices  were 
empowered  to  appoint  firemen  and  a  night  watch  and  establish 
ordinances  for  their  government.8  And  in  a  number  of  coun- 
ties, any  three  justices  could  grant  exemptions  from  the  statute 
for  the  regulation  of  inns  and  taverns.9 


1  Van  Schaack,  Laws  oj  N.  Y.,  I,  3. 
8  Van  Schaack,  Laws  of  N.  Y.,  II,  751. 

8 So  in  Dutchess  and  Orange  counties:  Van  Schaack,  Laws  of  N.  Y.,  I, 
245-6. 

4  So  in  Cumberland  County :  Van  Schaack,  Laws  of  N.  Y.,  II,  647. 
6  In  several  counties:  Van  Schaack,  Laws  of  N.  Y.,  II,  609. 

6  Van  Schaack,  Laws  of  N.  Y.,  I,  56. 

7  So  in  Dutchess,  Cumberland,  Gloucester,  Orange,  King's,  Queen's,  and 
Richmond  counties:   Van  Schaack,  Laws  of  N.  Y.,  II,  664,  773,  490,  804, 
782 ;  I,  265. 

8  Van  Schaack,  Laws  of  N.  Y.,  II,  731-2. 

9The  New  York  laws  relating  to  this  subject  are  characteristic  of  the  age. 
It  was  enacted  that  every  inn-keeper  should  provide  "three  good  spare  beds, 
two  of  wh icil  to  be  feather  beds,  with  good  and  sufficient  sheeting  and  cover- 
ing for  such  beds  respectively,  and  good  and  sufficient  stabling  and  provender 
of  hay  in  Winter,  and  hay  or  pasturage  in  Summer,  and  grain  for  six  horses 
or  other  cattle  .  .  .  ,  upon  pain  of  forfeiting  for  every  offence  the  sum  of 
twenty  shillings : "  Van  Schaack,  Laws  of  N.  Y.,  II,  798.  It  was  even  for- 
bidden to  give  credit  to  anyone,  except  travellers,  for  above  six  shillings: 
/&.,  I,  287. 


364          Rise  of  the  County  in  the  Middle  Colonies. 

(d). — The  County  as  a  Military  and  Representative  unit. 

The  remaining  functionaries  of  the  county  were  the  sheriff 
and  coroner  both  of  whom,  like  the  clerk  and  justices,  were 
nominated  by  the  governor.  All  officers  were  paid  in  fees.1 

It  is  worthy  of  note  that  the  county  in  New  York  was  the 
unit  of  representation  in  the  assembly  :  according  to  the  early 
English  precedent  two  delegates  were  elected  in  each;2  and 
the  elections  were  held  by  the  sheriff  as  returning  officer.3 
Moreover,  just  as  in  the  fourteenth  and  fifteenth  centuries,  the 
sheriff  seems  to  have  abused  his  opportunities  to  pack  the 
house  in  the  interest  of  party.  It  is  complained  in  1698  that 
four  delegates  were  returned  for  New  York  and  Orange  coun- 
ties without  an  election  ;4  and  in  1700  there  is  record  of  the 
arbitrary  conduct  of  the  sheriff  in  the  admission  of  freemen 
to  vote.6 

In  New  York,  as  in  Massachusetts,  the  county  was  used  in 
connection  with  the  militia  ;  usually  each  had  its  regiment  under 
a  colonel  or  lieutenant  colonel,  commissioned  by  the  governor.6 
Previously,  under  the  Duke  of  York's  administration,  each 
town  had  maintained  its  company ;  and  the  requirements  as  to 
age,  trainings,  and  arms  were  similar  to  those  prevailing  in 
New  England.7 


1 0'Callaghan,  Doc.  Ed.  to  Col.  Hist.,  VIII,  457. 

2 New  York  city  returned  4  delegates;  and  the  "borgh"  of  Westchester, 
the  manors  of  Rensselaerswyck,  Livingston,  and  Cortlandt,  each  one:  O'Calla- 
ghan,  Doc.  Eel.  to  Col.  Hist.,  VIII,  443-4;  Van  Schaack,  I,  67,  107, 129,  183. 

3  See  the  law  of  elections  in  Van  Schaack,  Laws  of  New  York,  I,  28-31. 

4  O'Callaghan,  Doc.  Eel.  to  Col.  Hist.,  IV,  322-3. 
8  O'Callaghan,  Doc.  Ed.  to  Col.  Hist.,  IV,  621. 

6  O'Callaghan,  Doc  Eel.  to  Col.  Hist.,  IV,  29  ;  VIII,  450-1.  See,  however, 
the  elaborate  act  of  1772 ;  Van  Schaack,  II,  668-74. 

''Duke's  Laws,  38-44;  Fernow,  Doc.  Eel.  to  Col.  Hist.,  XIV,  672.  Part  II 
of  Vol.  XIII  and  Part  II  of  Vol.  XIV  of  Doc.  Eel.  to  Col.  Hist,  of  New  York, 
edited  by  Mr.  Fernow,  contain  a  great  deal  of  matter  touching  every  depart- 
ment of  government  during  the  proprietary  regime.  The  second  volume  of 
Brodhead's  excellent  History  of  New  York  is  also  indispensable ;  and  many 
details  will  be  found  in  Vol.  I  of  Chalmer's  Political  Annals,  I,  573  ff. 


The  New  Jersey  County.  365 

II. — THE  NEW. JERSEY  COUNTY. 
(a). —  Under  the  First  Proprietors. 

The  history  of  New  Jersey  during  the  colonial  era  falls 
naturally  into  three  divisions :  the  period  of  the  first  proprie- 
tors, beginning  with  the  grant  to  the  Duke  of  York  and  his 
re-conveyance  to  Lords  Berkeley  and  Carteret,  in  1664,  and 
extending  to  1682  ;  that  of  the  twenty-four  proprietors  reach- 
ing from  the  latter  date  to  1702 ;  and  the  period  of  the  royal 
province  ending  with  the  Revolution.1 

During  the  first  period  the  history  of  the  county  begins. 
By  the  "Concessions"  of  1665,  the  first  charter  or  constitu- 
tion of  New  Jersey,2  the  assembly  was  granted  power  to  erect 
courts,  limit  their  jurisdiction,  and  appoint  their  executive 
officers.3  Accordingly  in  1675,  an  act  was  passed  providing 
for  a  system  of  judicature.  The  lowest  tribunal  was  the  town 
court  for  the  trial  of  small  causes  under  forty  shillings,  held 
"  by  two  or  three  persons  of  whom  a  justice  of  the  peace  was 
to  be  one."4  At  the  same  time  four  counties  were  somewhat 
vaguely  defined,  each  with  a  "county  court"  or  "court  of  ses- 
sions "  meeting  twice  a  year.  The  judges  of  these  courts,  it 
is  important  to  observe,  were  elected  by  the  people  of  the 
respective  districts;  and  their  jurisdiction  extended  to  "all 
causes  actionable,"  with  appeal  to  the  "  Bench "  or  to  the 
"Court  of  Chancery:"  the  former  being  probably  the  provin- 
cial court  of  assize.5 


1  For  the  materials  of  this  brief  sketch  I  am  chiefly  indebted  to  Field's 
Provincial  Courts  of  New  Jersey,  in  Coll.  of  N.  J.  Hint.  Soc.,  Vol.  Ill,  and  Prof. 
Scott's  Influence  of  the  Proprietors  in  Founding  the  State  of  New  Jersey.  Several 
documents  contained  in  the  first  four  volumes  of  the  New  Jersey  Archills  have 
also  been  of  service. 

'The  text  will  be  found  in  New  Jersey  Archives,  I,  28-43. 

s  New  Jersey  Archives,  I,  32 ;  Field,  Provincial  Courts,  5 ;  Scott,  Influence  of 
Proprietors,  7. 

*  Field,  Provincial  Courts,  7. 

•Summarized  from  Field,  Provincial  Courts,  7-10. 


366           Rise  of  the  County  in  the  Middle  Colonies. 


(6). —  Under  the  Second  Proprietors. 

In  1682 — the  first  year  of  the  second  period — the  judicial 
system  of  East  Jersey  was  reconstructed.  The  town  courts 
remained;1  but  now  either  party  could  demand  a  jury  even 
in  the  smallest  cases.  The  jurisdiction  was  divided  into  four 
counties,2  each  with  a  "court  of  quarter  sessions"  composed 
of  the  justices  of  the  peace,  three  being  necessary  for  a  quorum.3 
From  the  quarter  sessions  appeal  lay  to  the  "court  of  common 
right,"  composed  of  at  least  six  members  and  exercising 
jurisdiction  in  all  causes,  both  in  law  and  equity.4  The  office 
of  high  sheriff  for  each  county  was  now  first  created ;  and 
subsequently  that  of  county  treasurer  appears.5 

During  this  period  the  county  seems  to  have  been  of  sig- 
nificance mainly  as  a  judicial  district.  But  in  fiscal  matters, 
at  least,  the  quarter  sessions  discharged  the  functions  of  an 
administrative  board.  Not  only  was  the  court  authorized  to 
levy  rates  for  the  building  of  county  prisons  and  village 
pounds,  and  to  appoint  collectors  and  receivers  of  the  same ; 
but  there  was  instituted,  by  various  statutes,  a  system,  or 
rather  habit,  of  co-operation  between  town  and  county  in  the 
matter  of  taxation  and  equalization  of  assessments,  which  con- 
stitutes another  important  precedent  for  the  mixed  township- 


1  Field,  Provincial  Courts,  11;  but  the  lowest  court  seems  now  to  have 
been  held  by  a  single  justice  of  the  peace — whether  with  or  without  the 
two  others  elected  by  the  people,  I  am  in  doubt :  see  the  letter  of  Lord 
Corn  bury,  in  Archives  of  New  Jersey,  111,  4. 

2  Bergen,  Essex,  Middlesex,  and  Monmouth ;  Middlesex,  however,  was 
divided  in  1688,  a  fifth  county.  Somerset  being  formed :  Field,  Provincial 
Courts,  11,  note  3. 

3  Scott,  Influence  of  the  Proprietors,  21,  note;   Field,  Provincial  Courts,  12. 

4  This  court  seems  to  have  been  modelled  on  the  courts  of  Scotland,  through 
influence,  probably,  of  Robert  Barclay  and  other  Scotch  proprietors :  Field, 
Provincial  Courts,  12-13. 

5  Field,  Provincial  Courts,  12 ;  Scott,  Influence  of  Proprietors,  22-3,  note. 


The  New  Jersey  County.  367 

county  system  of  the  present  day.1  Thus  in  1686,  rates  for 
highways,  laid  out  by  county  commissioners  appointed  by 
the  general  assembly,  and  taxes  for  all  other  public  purposes 
within  the  limits  of  the  town,  were  to  be  levied  by  four  or 
five  assessors  elected  by  the  people  of  each  town  ;  and  the 
justices  of  the  county  court  were  authorized,  with  the  consent 
of  a  majority  of  the  assessors,  "  to  approve,  amend,  and  con- 
firm "  the  same.  Again  in  1693,  "each  town  in  the  county 
was  empowered  to  choose  one  or  more  men  to  join  with  the 
justices  of  the  county  court,  annually,  to  adjust  the  debts  of 
the  county  and  assess  taxes  for  their  payment." 2 


(c). —  Under  the  Royal  Province. 

We  now  come  to  the  third  phase  in  the  history  of  the  New 
Jersey  county.  Two  years  after  the  union  of  the  two  colonies 
in  the  royal  province,  the  judicial  organization  was  brought 
into  general  harmony  with  that  of  New  York  and  Massachu- 
setts. By  the  Ordinance  of  Lord  Cornbury,  1704,  "general 
sessions  of  the  peace  "  and  "  courts  of  common  pleas,"  on  the 
usual  model,  with  appeal  to  the  supreme  court  of  judicature, 
were  established ;  and  single  justices  of  the  peace  could  try 
forty  shilling  cases  of  debt  and  trespass.3  Various  other  ordi- 
nances were  subsequently  enacted,  but  the  essential  features  of 
the  system  established  by  Lord  Cornbury  remained  undisturbed 
until  the  Revolution.4 


This  interesting  fact  has  been  pointed  out  by  Prof.  Scott,  Influence  of 
Proprietors,  19-23,  from  whom  the  details  here  given  are  taken. 

2  Scott,  Influence  of  Proprietors,  22. 

During  this  period  West  Jersey  had  essentially  the  same  county  organiza- 
tion as  the  eastern  division  :  Field,  Provincial  Courts,  24-5. 

8  See  text  of  the  ordinance  of  1704  in  Field,  Provincial  Courts,  256-62; 
also  Queen  Anne's  Instructions  to  Lord  Cornbury  in  Archives  of  N.  J.,  II, 
506-36.  For  the  date  of  Cornbury's  ordinance,  see  Field,  42,  50. 

4  Field,  Provincial  Courts,  263  ff.,  gives  the  text  of  these  acts.  See  also 
Archives  of  N.  J.,  Ill,  4,  72;  IV,  166. 


368           Rise  of  the  County  in  the  Middle  Colonies. 

r 

III. — THE  PENNSYLVANIA  CouNTY.1 

(a). —  Genesis  of  the  Organism. 

Previous  to  the  English  conquest  of  New  Netherland,  vari- 
ous Swedish  and  Dutch  settlements  had  been  established  on 
the  Delaware,  particularly  upon  its  western  bank.2  To  the 
latter,  as  indeed  to  the  whole  region  subsequently  called  Penn- 
sylvania, the  Duke  of  York  laid  claim,  though  the  territory 
covered  by  his  patent  only  extended  to  the  eastern  shore.  For 
several  years  few  changes  were  made  in  law  or  government, 
the  old  Dutch  magistracies  continuing  to  exist  at  least  until 
1672.3  Little  mention  is  made  of  the  Duke's  Laws  until  1676  ;4 


1  My  leading  sources  for  the  history  of  the  county  in  Pennsylvania  are 
Hazard,  Annals;  Armstrong,  Record  of  Upland  Court,  1676-1681,  in  Memoirs 
of  the  Historical  Society  of  Pennsylvania,  Vol.  VII ;  Acts  of  the  Assembly  of  the 
Province  of  Pennsylvania,  Vol.  I  (1775)  ;  the  16  volumes  of  Minutes  of  the 
Provincial  Council  or  Colonial  Records  of  Pennsylvania;  and  especially  the 
volume  published  in  Harrisburg,  1879,  under  direction  of  the  Secretary  of 
the  Commonwealth.  The  matter  consists  of  several  distinct  divisions,  cited 
here  by  their  separate  titles:  1.  Duke  of  York's  Book  of  Laws;  2.  Charter 
and  Laws  of  the  Province  of  Pennsylvania,  1682-1700;  3.  Court  Laws,  a  collec- 
tion of  acts  relating  to  the  judicial  system  extending  to  May  20,  1767;  4. 
Historical  Notes,  by  Benjamin  M.  Nead. 

1  have  also  received  valuable  aid  from  Gould,  Local  Government  in  Penn- 
sylvania: J.  H.  U.  Studies,  Vol.  I;  Lewis,  The  Courts  of  Pennsylvania  in  the 
Seventeenth  Century:  Pennsylvania  Magazine  of  History  and  Biography,  V,  141- 
190;  and  White,  The  Judiciary  of  Alleghany  County:  Pennsylvania  Magazine 
of  History  and  Biography,  VII,  143  ff.     The  histories  of  Proud,  Gordon,  and 
Watson  have  likewise  been  of  service.    See  also  Burnaby,  Travels,  64;  Chal- 
mers, Political  Annals,  I,  641  ff. ;  Fernow,  Doc.  Rel.  to  Col.  Hist,  of  N.  Y.,  XII, 
containing  a  collection  of  papers  relating  to  the  Delaware  plantations;  and 
Allinson  and  Penrose,  Philadelphia,  Introduction. 

2  Armstrong,  Introduction  to  Record  of  Upland  Court,  11  ff.     Fernow,  Doc. 
Rel.  to  Col.  Hist,  of  N.  Y.,  Vol.  XII,  gives  a  great  deal  of  matter  relating  to 
these  early  settlements.     Cf.  Proud,  Hist,  of  Pa.,  I,  115  ff. 

3  Hazard,  Annals,  397.     In  1673,  after  the  reconquest,  Dutch  magistracies 
were  restored :  Ib.,  407 ;  Armstrong,  Rec.  of  Upland  Court,  25,  31. 

4 In  1668  it  was  recommended  that  the  Duke's  Laws  be  "showed  and  fre- 
quently communicated  to  said  Counsellors  (of  Deputy-Governor  Carr)  and 


The  Pennsylvania  County.  369 

but  on  September  25,  of  that  year  they  were  ordered  put  in 
force  by  an  ordinance  of  Governor  Andros,  with  the  important 
exception  of  the  constables'  courts,  county  rates,  and  "some 
other  things  peculiar  to  Long  Island;"  arbitration  being 
recommended  as  a  substitute  for  the  trial  of  small  causes  by 
the  constable  and  overseers.1  But  by  this  same  ordinance 
higher  courts,  similar  to  the  sessions  held  in  the  ridings  of 
Yorkshire,  were  established.  It  was  ordered  : — 

"That  there  bee  three  Courts  held  in  y"  several  parts  of  the 
River  &  bay  as  formerly,  To  witt  one  in  New  Castle,  one 
above  att  Uplands  another  below  at  the  Whorkil; 

"That  the  said  courts  Consist  of  Justices  of  the  Peace 
whereof  three  to  make  a  Coram  &  to  have  the  Power  of  a 
Court  of  Sessions  &  decide  all  matters  under  twenty  pounds 
without  Appeale,  in  which  Court  the  Oldest  Justice  to  pre- 
side, unless  otherwise  agreed  amongst  themselves."  In  civil 
cases  above  twenty  pounds  value  and  for  crime  extending  to 
"life,  Limbo  or  Banishment,"  appeal  lies  to  the  assizes. 

"That  all  small  matters  under  the  value  of  five  pounds 
may  be  determined  by  the  Court  without  a  jury  Unless 
desired  by  the  Partys,  as  also  matters  of  Equity. 

"  That  all  necessary  By  lawes  or  Orders  (not  repugnant  to 
the  Lawes  of  the  Government)  made  by  the  said  Courts,  bee 
of  force  and  binding  for  the  space  of  one  whole  year,  in  the 
severall  places  where  made,  They  giveing  an  Account  thereof 
to  the  Governo*  by  the  first  Convenience,  And  that  noe  fines 
be  made  or  imposed  but  by  Order  of  Court. 

"That  the  Severall  Courts  have  power  to  regulate  the 
Court  and  Office™  Fees,  not  to  exceed  the  Rates  in  the  booke 
of  Lawes,  nor  to  bee  under  halfe  the  value  therein  exprest. 

all  others  to  the  end  that,  being  therewith  acquainted,  the  practice  of  them 
may  also  in  convenient  time  be  established : "  Armstrong,  Int.  to  Rec.  of  Upland 
Court,  25 ;  Hazard,  Annals,  372.    Cf.  Fernow,  Doe.  Eel.  to  Col.  Hist.,  XII,  508. 
1  The  text  of  the  ordinance  of  1676  will  be  found  in  Nead,  Hist,  Notes, 
455-57  ;  Armstrong,  Bee.  of  Upland  Court,  39-43;  Hazard,  Annals,  427-29; 
Fernow,  Doc.  Eel.  to  Col.  Hist.,  XII,  561-63. 
24 


370           Rise  of  the  County  in  the  Middle  Colonies. 

"That  there  be  a  high  Sheriffe  for  the  Towne  of  New 
Castle,  the  River,  and  Bay ;  And  that  the  said  high  Sheriffe 
have  power  to  make  an  Under  Sheriffe  or  Marshall  being 
a  fitt  person,  &  for  whom  hee  will  bee  responsable,  to  be 
approved  by  the  Court,  But  the  Sheriffe,  to  act  as  in  England 
&  according  to  the  now  practice  on  Long  Island,  .  .  .  as  a 
principall  officer  in  the  Execution  of  the  Lawe,  but  not  as  a 
Justice  of  the  Peace  or  Magistrate." 

There  is  also  to  be  a  clerk  for  each  court,  appointed  by  the 
governor  on  recommendation  of  the  justices,  who  is  to  keep 
the  records  in  English. 

It  is  noticeable  that  in  this  ordinance  the  term  "riding"  is 
not  employed ;  the  courts  are  to  be  held  in  the  "  several  parts 
of  the  River  and  bay  ; "  but  they  are  to  have  "  the  power  of 
a  court  of  sessions."  Another  fact  of  the  greatest  importance, 
already  referred  to  in  connection  with  the  ridings  of  Long 
Island,  must  be  repeated  here  with  greater  emphasis  :  These 
tribunals  are,  in  reality,  county  courts;  and  the  districts  or 
"  parts  "  in  which  they  are  held  are  actually  styled  counties  in 
the  original  court  records.1  Beyond  question  the  six  years 
intervening  between  1676,  and  the  creation  of  the  proprietary 
government  of  William  Penn,  constitutes  the  first  phase  of 
county  government  in  Pennsylvania. 

Another  thing  of  great  interest  in  this  connection  should  be 
carefully  noted :  with  the  ordinance  of  1 676,  the  centralization 
of  local  government  in  the  county,  at  the  expense  of  the  town, 
begins ;  the  town  court  of  the  Duke's  code,  with  its  right  of 
enacting  by-laws,  is  abolished,  and  the  court  of  the  county  is 
granted  legislative  powers.  Thus,  in  the  very  outset,  one  of 
the  most  remarkable  features  of  county  government  in  Penn- 
sylvania— its  popular  and  independent  character — is  plainly 
revealed. 


*For  examples,  see  Record  of  Upland  Court,  119,  165,  171.    In  1678  the 
bounds  of  New  Castle  and  Upland  counties  were  defined :  Hazard,  Annals,  459. 


The  Pennsylvania  County.  371 

RECORDS  OF  A  COUNTY  COURT,  1676-1681. 

But  the  complete  records  of  one  of  these  primitive  tribu- 
nals— that  of  Upland — have  been  preserved ;  and,  through  the 
munificence  of  the  Historical  Society  of  Pennsylvania,  they  are 
now  placed  within  easy  reach  of  every  student.1  Not  only 
are  they  of  the  greatest  general  interest,  but  even  a  rapid 
examination  discloses  the  fact,  that  these  courts,  aside  from, 
their  ordinary  judicial  functions,  were  really  very  active 
popular  bodies  entrusted  with  the  administration  of  local 
government. 

Thus  all  grants  of  unoccupied  land  in  each  district  were 
made  by  the  county  court,  subject  to  the  approval  of  the 
governor  and  council  in  New  York;2  and  all  conveyances  of 
real  estate  were  acknowledged  in  open  session,  and  the  deeds 
made  a  part  of  the  record.3  By  the  court,  likewise,  letters  of 
administration  were  granted,4  ways  and  bridges  ordered  con- 
structed,5 tobacco-inspectors  appointed,6  and  taxes  levied  for 
all  public  purposes.  The  fiscal  methods  were  similar  to  those 
employed  in  early  Massachusetts.  An  example  from  the- 
record  may  prove  both  interesting  and  instructive : 

"  The  Court  takeing  into  Consideracon  the  Levy  or  Pole 
monny  for  the  defraying  of  the  publicq  Charges  whereof  the 
acct.  was  made  upp  the  Laest  Court  and  Calling  ouer  the  List 
of  the  Tydable  p'sons  in  their  Jurisdiction  doe  find  that  for 
the  payment  of  the  sd  Charges  from  Every  Tydable  prson  must 
bee  collected  and  Received  the  sume  of  twenty  and  six  gildera 
to  bee  paid  in  Either  of  the  following  species  (viz.)  wheat  at 


1  With  an  introduction  by  Mr.  Armstrong,  the  editor. 

'This  power  was  given  in  the  ordinance  of  1676,  and  a  considerable  por- 
tion of  the  records  is  filled  with  the  grants.  See  also  numerous  grants 
in  Hazard's  Annah,  444  ff. 

•  Rcc.  of  Upland  Court,  89,  90,  116,  etc. 

*  Ree.  of  Upland  Court,  44. 

*Rec.  of  Upland  Court,  118;  Hazard,  Annals,  460. 
•Hazard,  Annals,  439. 


372          Rise  of  the.  County  in  the  Middle  Colonies. 

fy  ve — Rey  and  Early  att  four  Gilders  pr  scipple,1  Indian  Corne 
at  three  gilders  pr  scipple  Tobbacco  at  8  styvers  pr  pound 
porke  at  Eight  and  bacon  at  16  styvers  pr  ft :  or  Elce  In 
wampum  or  skins  att  pryce  Courrant."  The  high  sheriff  is  to 
collect  the  tax  by  "  restraint,"  if  necessary ;  in  the  latter  case, 
he  is  to  "  call  together  twoo  of  the  neighbours  and  apraize  the 
goods  so  strayned,"  returning  the  surplus  to  the  owner;  and 
he  is  to  render  account  to  the  court.2 

The  power  granted  to  the  county  courts  to  enact  by-laws 
was  not  a  dead  letter,  as  the  following  examples  demonstrate. 

"  Itt  being  taken  in  Consideracon  that  itt  was  verry  neces- 
sary that  a  mill  bee  built  in  the  Schuylkill ;  and  there  being 
no  fitter  place  then  the  faall  Called  Capt"  haiis  moenses  faalls ; 
The  Co-'  are  of  opinion  that  Either  Capt°  hans  moens,  ought 
to  build  a  mill  'there  (as  hee  sayes  that  hee  will)  or  Else  suffer 
an  other  to  build  for  the  Comon  good  of  ye  parts."3 

"  Itt  being  Represented  to  ye  Court  by  the  Church  Wardens 
of  Tinnagcong  and  wicaco  Churches  that  the  fences  about  ye 
Church  Yards,  and  other  Church  buildings  are  mutch  out  of 
Repair,  and  that  some  of  the  People  members  of  ye  sd  Churches 
are  neglective  to  make  the  same  up,"  therefore  the  court  em- 
powered the  churchwardens  to  summon  the  church  members 
from  time  to  time,  when  necessary,  "  to  build  make  good  and 
keepe  in  Repair  the  sd  Churchyard  fences  as  also,  the  church 
and  all  other  the  appurtenances  thereof"  under  penalty  of  fifty 
gilders  each  for  neglect.4  The  right  of  the  court  to  appoint 
churchwardens  is  another  proof  of  its  power  to  order  ecclesi- 
astical affairs.5 

But  the  judicial  procedure  of  these  early  courts  seems  to 

1  Scheepd,  Dutch  for  bushel :  Armstrong,  Ree.  of  Upland  Court,  76,  note. 

2  Rec.  of  Upland  Court,  76-7 ;  cf.  Ib.,  78-80, 120, 137 ;  Hazard,  Annals,  446-7. 

3  Rec.  of  Upland  Court,  115. 

4  Rec.  of  Upland  Court,  153  (1679) ;  Hazard,  Annals,  467. 

On  the   records,  see   also  Nead,  Hist.  Notes,  462-4.     Hazard,  Annals, 
429  ff.,  makes  much  use  of  them. 

5  Hazard,  Annals,  438,  458,  citing  New  Castk  Records,  87,  88,  320. 


The  Pennsylvania  County.  373 

have  been  crude  in  the  extreme.  The  members  of  each  chose 
their  own  president ;  attorneys  were  not  allowed ;  and  the 
whole  administration  was  without  symmetry.1 

THE  COUNTY  RECONSTRUCTED  BY  THE  PROPRIETARY. 

The  erection  of  the  province  in  1682  marks  an  epoch  in 
the  institutional  history  of  Pennsylvania.  Henceforth  by  the 
legislation  of  the  proprietary  nearly  all  the  important  func- 
tions of  local  government  are  centered  in  the  county.  The 
town  now  passes  further  into  the  background.  It  becomes 
at  most  a  mere  agent  of  county  administration. 

Soon  after  his  arrival  the  proprietary  divided  the  jurisdic- 
tion into  six  counties:  three  in  the  "Territories,"  or  the  region 
west  of  the  Delaware,  and  three  in  the  "  Province;"2  and  the 
Territories  were  formally  annexed  to  the  latter  by  the  act  of 
union,  December  7,  1682.3 

The  county  thus  instituted  was  employed  for  all  the  impor- 
tant purposes  of  self-government.  It  was  a  judicial  organism, 
a  unit  of  general  civil  administration,  and  a  fiscal  body. 
These  departments  will  now  be  discussed  in  the  order  named. 

(6). — Judicial  Administration. 

The  lowest  tribunal  in  the  county  was  that  of  the  "common 
peace-makers,"  an  institution  possibly  suggested  by  the  arbiters 
of  the  Duke's  laws ;  but  the  latter  were  nominated  in  each 
particular  instance  by  the  constable  or  justice,  while  the  peace- 
makers were  local  magistrates  annually  appointed  by  the  county 
court,  three  for  each  "precinct"  in  the  county.4  The  partias 

1  Lewis,  Courts  of  Pa.  in  the  Seventeenth  Century,  144 ;  Hazard,  Annals,  438. 

1  Gordon,  Hist,  of  Pa.,  78 ;  Charter  and  Laws  of  the  Province,  104 ;  Proud, 
Hist,  of  Pa.,  1,201,  234. 

*  Charter  and  Laws  of  the  Province,  104. 

4  According  to  Lewis,  Courts  of  Pa.,  153,  citing  an  Address  of  Hon.  James 
T.  Jlitchell,  4-5;  but  the  original  text  simply  says — "in  each  precinct  three 


374          Rise  of  the  County  in  the  Middle  Colonies. 

differing  were  required  to  sign  a  "  reference  and  submission  of 
their  matters  in  controversy  .  .  .  which  references  being  satis- 
fied by  the  county  court,"  the  judgment  of  the  peace-makers 
was  as  conclusive  as  a  sentence  of  the  former  body,  with  which 
each  decision  was  recorded.1  But  these  courts  were  of  short 
duration,  being  already  obsolete  in  1692.2 

But  side  by  side  with  the  peace-makers  were  the  justices  of 
the  peace.  Actions  under  forty  shillings  for  "debt  or  dues" 
could  be  determined  by  any  two  of  them  subject  to  the  approval 
of  the  county  court,  which,  as  in  the  case  of  the  peace-makers, 
made  their  judgments  a  part  of  its  record.  Subsequently  a 
single  justice  was  granted  similar  jurisdiction.3  But,  after 
1 701,  his  power  seems  to  have  been  limited  to  taking  acknowl- 
edgments and  binding  over  to  keep  the  peace.4 

It  was  the  county  court,  however,  in  which  all  the  important 
judicial  business  was  transacted.  This  was  composed  of  all 
the  justices  of  the  peace  in  the  county,  sitting  quarterly  or 
more  frequently  when  necessary.  Originally  the  justices  were 
appointed  by  the  governor  or  his  deputy  from  a  double  num- 
ber elected  by  the  general  assembly;5  but  after  1701,  they 
were  nominated  by  commission  precisely  as  in  the  mother 
country.6 

The  jurisdiction  of  the  county  court  extended  to  all  cases 


persons  shall  be  yearly  chosen : "  Charter  and  Laws,  128.  But  see  Proud, 
Hist,  of  Pa.,  I,  262. 

1  Act  of  1683 :  Charter  and  Laws,  128. 

*  Lewis,  Courts  of  Pa.,  153-4.  According  to  this  writer,  cases  were  often 
relegated  to  the  peace-makers  from  the  county  court;  and  even  from  the 
provincial  council. 

3  Charter  and  Laws,  131,  219. 

4  See  for  example  the  act  of  1722:  Court  Laws,  388. 

5  The  elections  may  eventually  have  occurred  in  the  county  courts.     It  is 
provided  in  the  Frame  of  1682,  that  the  "  freemen  "  in  the  county  courts, 
"  when  they  shall  be  erected,  and  till  then  in  the  General  Assembly,"  shall 
elect  a  double  number  for  sheriffs,  coroners,  and  justices:  Charter  and  Laws, 
97,  159. 

8  Act  of  Oct.  28, 1701 :  Court  Laws,  311  ff.  See  also  the  commission  to  the 
justices  of  Chester  county,  /&.,  382-5. 


The  Pennsylvania  County.  375 

civil  and  criminal,  personal  and  real,  except  treason,  murder, 
and  some  other  heinous  crimes.1  The  justices  were  also  required 
to  sit  twice  a  year  as  a  court  of  orphans ; 2  and  they  were  given 
a  limited  equity  jurisdiction.8 

In  1701,  after  the  return  of  Penn  to  his  province,  a  new 
charter  or  frame  of  government  was  granted  ;4  but  now  as 
in  the  original  constitutions,  the  proprietary  refrained  from 
exercising  the  power  bestowed  upon  him  by  the  crown5  of 
establishing  courts  of  justice,  provision  therefor  being  left  for 
legislative  enactment.6  From  this  time  onward  for  more  than 
twenty  years  the  judicial  system  of  Pennsylvania  was  in  a 
most  unsettled  condition.  Act  after  act  was  passed  by  the 
legislature  only  to  be  eventually  repealed  by  the  crown.7 

By  the  first  statute  of  the  period  the  county  court  was  given 
civil  and  criminal  jurisdiction  as  before,  three  justices  consti- 
tuting a  quorum;  but  this  was  repealed  in  council,  1705.8 
One  year  later,  by  an  ordinance  of  Deputy-Governor  Evans, 
the  jurisdiction  of  the  existing  court  was  divided  between 
two  different  tribunals;  civil  causes  being  transferred  to  the 


1  Charter  and  Laws,  225, 129, 178, 184.    In  1684  jurisdiction  in  cases  relat- 
ing to  titles  was  taken  away ;  but  it  was  restored  in  the  following  year :  Lewis, 
Courts  of  Pa.,  145;  Charter  and  Laws,  168,  178. 

2  Charter  and  Laws,  131,  205. 

•For  claims  under  ten  pounds:  Charter  and  Laws,  167,  184,  214,  225. 
*  Gordon,  Hist,  of  Pa.,  120-22. 

6  See  the  charter  of  March  4,  1681/2:    Charter  and  Laws,  83;    Poore, 
Charters,  II,  1509  ff. 

6  For  text  of  the  first "  Frame  of  Government,"  see  Charter  and  Laws,  91-99 ; 
Pa.  Col.  Rec.,  I,  pp.  xxi-xxix;  for  that  of  1683:  Charter  and  Laws,  155-61 ; 
Pa.  Col.  Rec.,  I,  pp.  xxxiv-xl ;  and  for  the  charter  of  Privileges,  1701 :  Poore, 
Charters,  II,  1536-1540;  Proud,  Hist,  of  Pa.,  I,  443-50. 

7  By  the  charter  a  duplicate  of  laws  was  to  be  submitted  to  the  privy 
council,  within  five  years  after  passage ;  and  if  not  expressly  disallowed 
within  six   months  thereafter,  they  were  to  remain   in  force.     Hence 
statutes  sometimes  remained  in  operation  several  years  before  repeal  by 
the  council :  Charter  and  Laws,  84-5. 

8  Act  of  Oct.  28,1701;  repealed  Feb.  7, 1705 :  Court  Laws,  311-19;  Gordon, 
Hist,  of  Pa.,  141. 


376          Rise  of  the  County  in  the  Middle  Colonies. 

"county  court  of  common  pleas;"  and  the  criminal  actions, 
to  the  "  court  of  general  quarter  sessions  of  the  peace."  l 
Both  were  held  quarterly  at  the  same  place  by  any  three  jus- 
tices; and  from  their  judgments  appeal  lay  to  the  supreme 
court  consisting  of  three  judges  commissioned  by  the  governor. 

After  the  passage  and  repeal  of  several  additional  acts,2 
finally,  in  1722,  a  law  was  enacted  by  which  the  judicial 
system  was  given  the  form  which  it  retained,  with  slight 
modification,  throughout  the  provincial  era.3  The  two  courts 
already  named  continued  to  exist,  but  the  common  pleas  were 
now  to  be  held,  not  by  any  three  justices  indifferently ;  but 
by  judges  specially  commissioned  by  the  governor.  In  prac- 
tice, however,  until  3759,  certain  of  the  county  justices  of  the 
peace  were  usually  appointed ; 4  but  in  that  year  justices  of 
the  quarter  sessions  were  prohibited  from  hearing  common 
pleas,  which  were  transferred  to  a  court  composed  of  five 
judges  commissioned  by  the  governor.5 

Previous  to  1722  the  court  of  common  pleas  possessed 
equity  jurisdiction ;  this  was  now  discontinued.6  By  an  act 
of  1713  the  quarter  sessions  were  empowered  to  sit  as  a 
court  of  orphans  with  jurisdiction  in  all  questions  of  admin- 
istration and  guardianship ; 7  and  this  function  seems  to  have 
been  retained  until  1759,  when  it  was  transferred  to  the 
common  pleas.8 


1  Court  Laws,  319-23  (1706). 

1  Court  Laws,  323  ff. 

8  Court  Laws,  387-94;  modifications,  Ib.,  395  ff.  (1727),  407  ff.  (1767). 
However,  in  1731,  the  act  of  1727  was  repealed;  but  in  the  same  year 
that  of  1722  was  restored  by  the  assembly :  Ib.,  403,  404  f. 

4  Gordon,  Hist,  of  Pa.,  546-8,  551-2,  121,  141.     For  many  interesting 
details,  taken  from  original  documents,  relating  to  primitive  trials  and 
forms  of  punishment,  see  Watson,  Annals  of  Philadelphia,  I,  298  ff. 

5  White,  Judiciary  of  AUeghany  County,  143;  Court  Laws,  405-6. 

6  Gordon,  Hist,  of  Pa.,  547.     But  the  equity  jurisdiction  of  the  inferior 
courts  had  long  been  unpopular:  Lewis,  Cow  is  of  Pa.,  146-7. 

7  Court  Laws,  346. 

8  Court  Laws,  406 ;  White,  Judiciary  of  AUeghany  County,  143-4. 


The  Pennsylvania  County.  377 

INDIAN  COURTS. 

During  the  early  period  a  special  procedure  was  devised 
by  the  assembly  for  the  trial  of  causes  between  white  men 
and  Indians.  Questions  of  damage,  trespass,  or  personal 
injury  were  to  be  decided  by  "  Six  of  the  freemen  of  ye  same 
county  where  the  Abuse  was  Committed,  and  six  of  the  Indians 
that  are  Nearest  to  that  place."  The  "  king  to  whom  such 
Indians  doth  belong "  was  to  receive  notice,  that  he  may  be 
present  to  see  justice  done.  If  the  Indians  should  refuse  to 
submit  to  trial,  the  county  court  was  to  act.1 


(c). — General  Civil  Administration. 

If  we  now  pass  from  the  examination  of  the  constitution  of 
the  court  to  a  consideration  of  its  general  functions,  we  shall 
at  once  begin  to  appreciate  the  real  importance  of  the  county 
organism.  In  the  first  place,  in  the  absence  of  township 
government,  it  is  noticeable  that  the  appointing  and  super- 
vising power  of  the  court  is  very  great.2  To  it  belongs  the 
construction  and  repair  of  highways  and  bridges;3  and  for 
this  purpose  it  may  appoint  at  least  three  "  overseers,"  who 
are  empowered  within  their  "respective  limits"  to  summon 
the  inhabitants  "to  come  in  and  work,"  under  penalty  of 
twenty  shillings  for  refusal.4  Later  the  justices  are  ern- 


1  Charter  and  Laws,  130  (March  1683).     Compare  this  procedure  with 
that  of  the  Indian  courts  of  early  Massachusetts,  already  mentioned. 

The  character  of  the  procedure  in  trials  before  the  early  county  courts  is 
discussed  in  an  interesting  manner  by  Lewis,  Courtt  of  Pa.,  145  ff. 

2  After  the  division  of  the  court  into  two  tribunals,  the  general  business 
fell  to  the  quarter  sessions, 

*The  "king's  highways  or  public  roads,"  however,  were  laid  out  by  the 
governor  and  council :  Frame  of  Government,  1682,  in  Charter  and  Lava, 
95,  157,  285;  Acts  of  the  Assembly  of  the  Province,  I,  9;  Pa.  Col.  Rec.t  I, 
466-7 ;  III,  105,  244. 

4  Act  of  March  10,  1683:  Charter  and  Laws,  136. 


378          Rise  of  the  County  in  the  Middle  Colonies. 

powered  to  divide  the  county  into  "  precincts "  and  appoint, 
annually,  an  "  overseer  of  highways  "  for  each.1 

For  the  laying  out  of  private  roads  or  cartways,  connecting 
with  the  public  thoroughfares,  the  court,  on  "complaint  of 
the  inhabitants,"  may  appoint  six  "  housekeepers "  of  the 
neighborhood  to  "  view  the  place,"  and  should  they  find  the 
demand  justified,  any  four  of  the  viewers  are  authorized  to 
lay  out  the  road  and  report  their  action  to  the  court.2 

By  the  latter,  likewise,  are  laid  out  cartways  leading  to 
landing-places;3  and  though  the  right  to  locate  ferries  belongs 
to  the  assembly,  the  construction  and  the  assessment  of  the 
rates  therefor  are  entrusted  to  the  county  court.4 

By  the  same  authority  are  appointed  the  viewers  of  pipe- 
staves  intended  for  transportation ; 5  viewers  of  bread  in 
market  towns;6  the  three  appraisers  of  property  condemned 
on  execution;7  public  packers  for  the  inspection  of  meat 
designed  for  exportation ; 8  viewers  of  fences;9  and  "beadles" 
in  certain  towns  to  execute  the  laws  against  cattle  running 
at  large.10 

The  court  also  exercises  jurisdiction  in  controversies  between 
master  and  servant,  assessing  damage  in  case  of  runaways,  by 
extension  of  the  time  of  service  or  otherwise.11  Persons  serving 
without  indenture,  if  over  seventeen 12  years  of  age,  are  required 


I  Act  of  1700:  Acts  of  the  Assembly  of  the  Province,  I,  10-11. 
8  Act  of  1699 :  Charter  and  Laws,  285-6. 

s  Charter  and  Laws,  139,  208. 

*  Charter  and  Laws,  137,  185,  236. 

5  Charter  and  Laws,  133,  206,  283. 

6  Charter  and  Laws,  135,  230. 

7  Charters  and  Laws,  172,  215,  228 ;  Acts  of  the  Assembly  of  the  Province,  I,  5. 

8  Charter  and  Laws,  239-40. 

9  Charter  and  Laws,  179,  207. 

10  Charter  and  Laws,  187,  234.    There  was  also  a  "county  ranger"  to  look 
after  stallions  and  other  animals:  Ib.,  186,  219,  288.     The  private  marks 
or  brands  of  cattle  were  registered  by  the  court :  Lewis,  Courts  of  Pa.,  145. 

II  Charter  and  Laws,  166,  213,  etc. 

"Made  sixteen  in  1693:  Charter  and  Laws,  237. 


The  Pennsylvania  County.  379 

to  serve  five  years ;  if  below  that  age,  the  legal  term  extended 
until  majority;  and  it  is  provided  that  every  master  or  mistress, 
within  three  months  after  the  arrival  of  such  servants,  shall 
bring  them  before  the  county  court,  and  "then  and  there  oblige 
themselves  to  pay  unto  every  servant  at  the  expiration  of  their 
time  one  new  sute  of  apparell,  ten  bushels  of  wheat  or  fourteen 
bushels  of  Indian  corn,  one  ax,  two  howes  one  broad  and 
another  narrow,  and  a  discharge  from  their  service."1 

The  regulation  of  houses  of  entertainment  gave  the  legislature 
a  great  deal  of  trouble  during  the  colonial  period.  Keepers 
of  ordinaries  were  licensed  by  the  governor,  and  none  could 
receive  a  license  save  those  recommended  by  the  justices  of  the 
respective  counties.2  .The  early  provisions  touching  the  matter 
are  very  minute  and  sufficiently  absurd. 

"No  keeper  of  such  ordinary,"  runs  a  statute  of  1684, 
"shall  demand  above  seven  pence  half  penny  per  meal  by 
the  head  ;  which  meal  shall  consist  of  beefe,  pork  or  such  like 
produce  of  the  country;  with  small  beer;  and  if  a. footman 
he  shall  not  demand  above  two  pence  a  night  for  his  bed,  and 
if  a  horseman,  nothing ;  hee  having  six  pence  a  day  for  his 
horses  hay  or  grass."  Violation  of  any  of  these  rules  was  to 
be  punished  by  a  fine  of  five  shillings ;  and  if  the  house  was 
disorderly  it  could  be  closed  by  the  justices.3 

The  county  court  was  also  the  medium  of  communication 
between  the  colonial  authority  and  the  people. 

(d). — Fiscal  Administration. 

The  county  was  the  constitutional  area  for  the  levy  both  of 
the  "county  rate"  and  the  "public  charge."4 

By  the  "great  law"  of  1682  it  was  provided  that  no  public 


1  Act  of  1683 :  Charter  and  Laws,  153.    Each  county  also  kept  a  register 
of  servants:  76.,  170. 
1  Charter  and  Laws,  286-7  (1699.) 
J  Charter  and  Laws,  172-3,  139,  195. 
4 Called  also  the  "country  rate." 


380          Rise  of  the  County  in  the  Middle  Colonies. 

tax  should  continue  for  more  than  one  year.1  Consequently 
provision  for  each  levy  was  made  by  special  enactment. 

Various  methods  of  assessment  and  collection  were  succes- 
sively adopted.  In  1683  the  assembly  provided  that  the  tax 
should  be  laid,  one  half  upon  lands  and  one  half  upon  polls, 
males  between  sixteen  and  sixty  years  of  age  being  liable ;  and 
non-resident  land  owners  paying  one  half  more  than  residents. 
The  quota  of  each  county  was  to  be  "  made  up  in  open  court  by 
the  respective  magistrates  thereof,"  who  were  empowered  to 
assess  the  same  on  the  county  "according  to  proportion."2 

The  levy  of  1693 3  is  to  consist  of  one  penny  in  the  pound 
clear  value  on  land  and  other  realty,  and  a  poll-tax  of  six 
shillings  on  all  freemen  who  have  been  out  of  servitude  for 
six  months,  if  not  worth  one  hundred  pounds  nor  otherwise 
rated  by  the  act.  Provided,  however,  that  "  no  person  or  per- 
sons shall  be  taxed  .  .  .  who  have  a  great  charge  of  children 
and  become  indigent  in  the  world  and  are  so  far  in  debt,  that 
the  clear  value  of  their  real  and  personal  estate  does  not  amount 
to  thirty  pounds."  Such  were  the  usual  provisions  for  the 
public  levy  during  the  early  period. 

The  mode  of  assessment  prescribed  by  this  act  is  characteristic. 
The  members  of  the  assembly,  or  any  two  of  them,  for  each 
county  are  to  call  to  their  assistance  three  of  the  justices  or 
other  substantial  freeholders,  meeting  in  such  places  in  the 
county  as  they  may  see  fit,  to  act  as  a  board  of  assessment. 
Warrants  are  then  to  be  issued  by  some  justice  of  the  peace 
to  the  various  constables  directing  them  to  bring  before  the 
assessors  lists  of  taxable  persons  and  estates.  When  the  assess- 
ment is  complete,  collectors  are  appointed  by  the  assessors,  and 
all  moneys  collected  by  them  are  to  be  paid  into  the  hands  of 
the  treasurer  designated  by  the  governor. 

The  tax  of  1696  is  to  be  assessed  in  a  similar  way  by  mem- 


1  Charter  and  Laws,  123,  203,  221. 
*  Charter  and  Laws,  146-7. 
3  Charter  and  Laws,  221  ff. 


The  Pennsylvania  County.  381 

bers  of  the  assembly  and  four  justices  or  freeholders ;  and  it 
is  to  be  collected  by  the  sheriff  or  such  other  persons  as  the 
assessors  shall  appoint.  The  money  when  collected  is  to  be 
juiil  "unto  James  Fox  of  Philadelphia,  merchant."  The 
receiver  is  to  render  account  to  the  governor  and  council,  and 
the  latter  to  the  assembly.1 

An  important  change  in  the  constitution  of  the  board  of 
assessors  was  made  in  1699.  It  was  now  to  consist  of  three 
or  more  justices  hi  each  county  assisted  by  four  or  more  sub- 
stantial freeholders — thus  becoming  entirely  local  in  character.2 

THE  COUNTY  RATE. 

Of  still  greater  historical  interest  is  the  method  of  levying 
and  assessing  the  county  rate.  The  genesis  of  the  remarkable 
system  which  prevailed  throughout  the  provincial  period  may 
be  found  in  the  acts  of  1693  and  1696.  The  preamble  of  the 
latter  declares  that — "  Whereas  there  is  a  continual  occasion 
for  a  Publick  stock  to  Defray  the  necessary  charge  in  each 
County,  for  the  support  of  the  poor,  building  or  repairing 
of  prisons,  paying  for  salaries  belonging  to  the  Council  & 
Assembly,  paying  for  wolfs  heads,  The  Judges  expenses,  and 
all  just  Debts,  with  many  other  necessary  charges," — there- 
fore it  is  enacted  that  the  justices  in  quarter  sessions,  assisted 
by  the  grand  jury3  and  three  assessors,  are  to  "calculate  the 
public  charge  of  the  county"  and  allow  all  just  debts,  dues, 
and  accounts.  The  act  further  provides  that  six  county 
assessors  are  to  be  chosen  annually  from  the  "substantial 
freeholders  "  by  the  freemen  when  assembled  for  the  election 
of  representatives,  return  thereof  to  be  made  by  the  sheriff  to 


1  Charter  and  Laws,  253  ff. 

1  Charter  and  Lam,  280  ff. 

'In  the  act  of  1693  it  is  provided  that  "the  Grand  Jury  shall  present 
any  sum  necessary  to  be  raised  either  for  the  paying  any  publick  debt  or 
other  occasion  for  the  publick  utility  of  the  county : "  Charter  and  Laws, 
233  ff. 


382          Rise  of  the  County  in  the  Middle  Colonies. 

the  county  clerk,  who  in  turn  is  to  report  the  same  to  the 
court  at  its  next  session.  The  constables  within  their  various 
"limits,"  under  a  justice's  warrant,  are  required  to  bring  in 
the  lists  of  taxable  persons  and  estates.  The  collectors  are 
nominated  by  the  assessors ;  and  the  money  is  paid  into  the 
hands  of  a  county  treasurer,  appointed  by  the  same  body,  who 
is  required  to  render  account  annually  in  open  court  before 
the  justices  and  such  others  as  are  "willing  to  be  present." 

The  tax  as  usual  for  both  public  and  county  rates,  is  to 
consist  of  one  penny  in  the  pound  and  six  shillings  on  the 
poll,  with  exemptions  similar  to  those  already  cited.1  In 
Pennsylvania,  as  elsewhere  during  the  early  period,  taxes 
were  payable  in  produce.2 

In  1724/5  appeared  an  elaborate  statute  by  which  the  fiscal 
machinery  of  the  county  was  still  further  developed  on  the 
lines  already  traced  in  the  act  of  1696.3  The  second  article 
provides  that,  in  the  meeting  for  the  choice  of  assemblymen, 
coroners,  and  sheriffs,  there  shall  be  elected  three  "  commis- 
sioners" and  six  "assessors."  The  commissioners  are  the 
higher  authority,  performing  the  functions  hitherto  discharged 
by  the  quarter  sessions.  The  assessors  and  commissioners 
are  to  hold  a  joint  meeting  annually  "  to  calculate  the  public 
debts  and  charges."  Precepts  are  then  issued  by  the  latter 
directed  to  the  constables  of  the  several  townships  commanding 
them  to  bring  lists  of  all  polls  and  property  subject  to  taxation 
to  the  assessors,  who  are  then  to  fix  the  rate.  Furthermore 
the  assessors  are  required  to  divide  the  county  into  districts 
and  to  appoint  a  collector  for  each.  Any  "agrieved"  person 
may  appeal  to  the  commissioners,  sitting  as  a  board  of  equaliza- 
tion, the  corrected  returns  to  be  delivered  to  the  county  treasurer, 
who  is  appointed  by  the  commissioners  and  assessors.  The 
commissioners  are  authorized  to  fine  either  the  treasurer  or 


1  Charter  and  Laws,  256  ff. 

2  Charter  and  Laws,  256,  259,  282,  etc. 

1  See  Acts  of  the  Assembly  of  the  Province,  I,  131-138,  for  the  text. 


The  Pennsylvania  County.  383 

assessors  for  neglect  of  duty ;  and  they,  in  turn  are  accountable 
to  the  quarter  sessions — all  fines  accruing  to  be  "added  to  the 
stock  of  the  respective  counties." 

A  supplementary  act  was  passed  in  1732,  providing  that 
commissioners  shall  not  serve  more  than  three  years  at  one 
time,  and  that  their  accounts,  as  well  as  those  of  the  treasurer 
and  assessors,  shall  be  submitted  annually  to  the  justices  and 
the  grand  jury.  The  third  article  contains  the  curious  pro- 
vision "that  the  grand  juries,  the  commissioners  and  assessors, 
with  the  concurrence  of  the  justices  .  .  .  shall  be  the  sole 
judges  where  any  bridge  shall  be  built;"  and  the  same  com- 
plex body,  except  the  grand  jury,  is  to  let  all  contracts  for 
the  construction  and  repair  of  such  works.1 

No  further  change  of  importance  was  made  until  1779,  when 
two  assistant  assessors  for  each  township  are  to  be  appointed 
by  the  board,  composed  as  before  of  the  three  commissioners 
and  the  six  assessors.  These  are  to  perform  the  duties  thus 
far  discharged  by  the  constable  in  taking  the  lists  of  taxable 
persons  and  estates. 

At  the  same  time  it  was  enacted  that  a  county  assessor 
with  the  two  assistants  should  make  the  assessment  for  each 
district,  instead  of  the  whole  board  acting  for  the  entire  county. 
Already  in  1724/5  the  office  of  clerk  of  the  commissioners — 
the  prototype  of  the  modern  county  clerk — had  been  created.2 

(e). — Self- Government  of  the  County. 

In  almost  every  important  respect  the  county  organization 
of  Pennsylvania  is  without  a  parallel  during  the  colonial  era. 
Nowhere  else  is  there  so  clear  a  model  for  the  independent 
county  system  since  developed  in  the  western  states.  Already 
in  the  fiscal  and  judicial  departments  we  have  found  abundant 
evidences  of  this  fact ;  but  it  becomes  still  more  apparent  when 

1  Ads  of  the  Assembly  of  the  Province,  I,  173-4. 
1  Acte  of  the  Assembly  of  the  Province,  I,  134,  137. 


384          Rise  of  the  County  in  the  Middle  Colonies. 

we  consider  the  remarkable  extent  to  which  popular  election 
in  the  choice  of  officers  prevailed. 

In  the  first  place,  the  county  was  the  unit  of  representation, 
members  of  both  council1  and  assembly  being  chosen  by  ballot 
in  a  general  meeting  of  the  tax-paying  freemen  in  the  u  most 
convenient "  place  of  the  county 2  before  the  sheriff  as  return- 
ing officer ; 3  and  in  the  same  assembly  and  in  the  same  way, 
as  already  seen,  were  elected  at  a  later  time  the  county  com- 
missioners and  the  assessors.  Furthermore,  during  the  early 
period,  the  freemen  "  in  the  county  court"  4  or  in  the  general 
assembly  were  authorized  to  choose  a  "  double  number  of  per- 
sons to  serve  for  sheriffs,  justices  of  the  peace,  and  coroners,"  out 
of  which  "respective  elections  and  presentments"  the  governor 
was  to  commission  the  proper  number.  Subsequently  the  people 
lost  the  right  of  nominating  justices ;  but  at  an  early  day  it  was 
enacted  that  coroners  and  sheriffs  should  be  nominated  in  the 
general  county  meeting  for  choice  of  representatives.5  On  the 
other  hand  the  clerks  and  prothonotaries  of  the  county  courts 
were  appointed  either  by  the  governor  or  the  justices ; 6  and  by 
the  latter  also  were  nominated  the  recorders  of  deeds,  created 
by  the  act  of  171 5.7 


1  In  the  early  period. 

*So  in  " Frame"  of  1683 :  Charter  and  Laws,  156. 

8  Act  of  Settlement,  1683;  "Frame"  of  1683:  Charter  and  Laios,  124-5, 
156,  159 ;  Hildreth,  II,  344;  Lodge,  Short  Hist.,  231.  In  1701  each  county 
was  to  return  4,  and  in  1705,  8  assemblymen:  Acts  of  the  Assembly  of  the 
Province,  I,  36;  Gordon,  Hist,  of  Pa.,  121. 

*So  in  "  Frame"  of  1682:  Charter  and  Laws,  97. 

6  See  the  Acts  of  1705,  1717, 1724-5 :  Acts  of  the  Assembly  of  the  Province,  I, 
55-7,  83-4,  131-8.  Eight  representative  districts  are  mentioned  in  the  act 
of  1745-6 :  Acts  of  the  Assembly  of  the  Province,  1, 201-4 ;  but  it  does  not  appear 
that  each  district  had  a  polling  place. 

6  In  170  L  a  clerk  of  the  peace  for  each  county  was  nominated  by  the 
governor  from  a  triple  number  returned  by  the  justices;  in  1706  the  clerks 
were  to  be  chosen  by  the  respective  courts;  but  in  1767  those  of  the  lower 
tribunals  were  to  be  appointed  by  the  governor.  See  Gordon,  Hist,  of  Pa., 
121,  142,  548,  552. 

1 Acts  of  the  Assembly  of  the  Province  1,78-80;  amended,  1775 :  lb.,  1, 520-522. 


The  Pennsylvania  County.  385 

The  reappearance  of  these  democratic  assemblies  for  the 
choice  of  county  officers  is  something  unique.  In  them  we 
behold  a  revival  of  the  folkmoot  of  the  primitive  shire  in  a 
form  more  complete  than  has  existed  anywhere  else  since  the 
days  of  the  Heptarchy.  Only  the  ancient  power  of  declaring 
folcriht  is  lacking ;  and  this  belongs  to  the  justices  in  quarter 
sessions. 

• 

PHOTOTYPE  OF  THE  COUNTY-PRECINCT  AND  TOWNSHIP- 
COUNTY  SYSTEMS. 

That  the  county  organism  of  Pennsylvania  for  more  than 
three-quarters  of  a  century  of  the  proprietary  rule,  affords  the 
nearest  approximation  during  the  colonial  period  to  the  inde- 
pendent county  or  county-precinct  system,  so  well  known  at 
the  present  hour,  there  can  be  little  question. 

On  the  other  hand  it  is  scarcely  less  interesting  to  know 
that  during  the  later  portion  of  that  era,  there  was  gradually 
developed  a  practice  of  co-operation  in  the  administration 
of  local  affairs,  which  constitutes  the  direct  model  for  that 
lower  type  of  mixed  township-county  organization,  now  exist- 
ing in  an  important  group  of  western  states.1 

Thus  in  each  township  and  borough  two  overseers  of  the 
poor  were  annually  appointed  by  the  magistrates.  They  were 
declared  a  "body  politic,"  and,  with  the  approval  of  two  justices 
of  the  peace,  they  could  levy  taxes  to  be  expended  in  providing 
for  persons  requiring  relief.  Their  accounts  were  audited  by 
"  three  freeholders"  chosen  for  the  purpose.2 

In  like  manner,  by  an  act  of  1772,  each  town  was  allowed 
to  choose  one  or  two  "supervisors"  of  highways  who  could  lay 
a  road  tax,  when  necessary,  "  not  exceeding  nine  pence  in  the 


1  See  Chap.  IV,  above. 

*Law  of  1771  :  Acts  of  the  Assembly  of  the  Province,  I,  404-14;  Gordon, 
Hist,  of  Pa.,  552;  Gould,  Local  Government,  30.  In  an  act  of  1718  "over- 
seers of  the  poor  of  the  proper  township  or  district"  are  mentioned :  Acts  of 
the  Assembly  of  the  Province,  I,  96. 

25 


386          Rise  of  the  County  in  the  Middle  Colonies. 

pound/'  for  opening  and  repairing  the  public  roads  and  high- 
ways within  their  jurisdiction;1  and,  in  addition,  they  pos- 
sessed the  usual  powers  of  such  officers.2 

But  of  more  historical  interest  was  the  participation  of  the 
town  in  the  election  procedure.  As  early  as  1746  an  act  pro- 
vides that  each  township,  under  direction  of  the  constable  or 
overseer  of  the  poor  and  two  freemen,  shall  ballot  for  an 
"  inspector  of  elections."  ,The  names  of  those  nominated  are 
then  to  be  returned  by  the  constable  or  overseer  to  the  "  sheriff 
or  other  judge  of  election,"  who,  in  the  presence  of  four  free- 
holders of  the  county,  shall  place  "all  the  names  of  the  persons 
returned  for  each  district,  wrote  on  several  pieces  of  paper,  .  .  . 
into  a  separate  box ; "  and  in  the  presence  of  the  same  freeholders, 
an  "indifferent  person"  is  then  to  draw  a  name  from  each 
box,  those  whose  names  are  drawn  to  constitute  the  board  of 
inspectors  for  the  year.3  But  a  more  elaborate  statute  appeared 
in  1766.  The  inspector  is  now  to  be  chosen  directly  in  each 
township  by  those  entitled  to  vote  for  assemblymen ;  the 
clumsy  double  procedure  by  nomination  and  lot  being  thus 
dispensed  with.  The  inspectors  are  to  constitute  a  board  for 
the  county  and  are  required  to  swear  that  they  will  attend 
"the  ensuing  election,  during  the  continuance  thereof,  and 
will  truly  and  faithfully  assist  the  sheriff,  coroner,  or  other 
judges  of  election,  to  prevent  all  frauds  and  deceits  whatso- 
ever." They  are  to  receive  the  votes,  each  of  his  respective 
district;  and  for  their  assistance,  the  sheriff  is  required  to 
appoint  two  "  clerks "  whose  duty  consists  in  recording  the 
name  and  township  or  ward  of  each  elector,  and  the  number 
of  votes  received  by  each  candidate.  Finally,  before  the  elec- 
tion begins,  the  sheriff  or  his  representative  calls  to  his  aid 


JThe  tax  before  collection,  to  be  "allowed"  by  two  justices. 

*  Acts  of  Assembly  of  the  Province,  I,  444-49. 

3  Acts  of  the  Assembly  of  the  Province,  I,  201-2.  Some  provisions  of  the  act 
are  ambiguous ;  but  the  interpretation  given  in  the  text  seems  to  be  cor- 
roborated by  the  act  of  1766. 


The  Pennsylvania  Qnmty.  387 

four  respectable  freeholders  or  "assistant-judges;"  and  the 
latter  are  required  to  take  the  same  oath  and  discharge  the 
same  duties  as  the  inspectors.1  It  is  perhaps  needless  to  add 
that  in  this  somewhat  complicated  procedure  may  be  found, 
if  not  the  genesis,  at  least  a  very  early  example,  of  the  func- 
tions of  our  well  known  precinct  and  township  officers — the 
judges  and  clerks  of  election. 

The  history  of  local  institutions  in  the  middle  colonies  is 
intrinsically  interesting ;  but  that  interest  is  greatly  enhanced 
when  we  anticipate  the  profound  influence  which  those  institu- 
tions were  about  to  exert  upon  the  political  organisms  of  the 
Northwest  Territory  and  the  states  beyond  the  Mississippi  and 
the  Missouri.  To  New  York  first  and  next  to  Pennsylvania 
belongs  the  honor  of  predetermining  the  character  of  local 
government  in  the  West.  But  if,  as  we  have  seen,2  New  York 
was  first  to  return  to  the  ancient  practice  of  township  repre- 
sentation in  the  county  court,  it  was  in  Pennsylvania  that  the 
capabilities  of  the  independent  county  were  first  tested.  Here 
the  principle  of  election  to  county  offices  was  carried  farther 
than  it  was  ever  carried  before,  even  in  early  England.  New 
York  is  the  parent  of  the  supervisor  system ;  but,  with  this 
exception,  her  colonial  county  government  was  nearly  as 
dependent  upon  the  central  authority  as  was  that  of  Virginia. 
On  the  other  hand,  Pennsylvania  is  the  originator  of  the 
commissioner  system,  which  though  centralized  still  rests 
upon  the  republican  foundation  of  popular  election  and  local 
representation. 


1  Acts  of  the  Assembly  of  the  Province,  I,  323-27.     Cf.  Chap.  V,  IV,  (c). 
1  Chap.  Ill,  IV,  and  Chap.  IV,  above. 


CHAPTER  IX. 

RISE  OF  THE  COUNTY  IN  VIRGINIA  AND 
THE  SOUTH.1 

I. — ORIGIN  AND  CHARACTER. 

The  Virginia  county  has  received  far  more  attention  from 
writers  than  the  similar  institution  elsewhere  in  the  colonies ; 
and  indeed  for  several  reasons  its  history  is  unusually  important 
and  attractive.  Thus  its  constitution  was  closely  modelled  upon 
that  of  the  contemporary  English  shire ;  it  was  the  organism 
by  which  all  the  more  important  functions  of  local  govern- 
ment were  discharged ;  it  furnished  a  pattern  for  the  other 
southern  colonies ;  and  it  has  exerted  a  wide  influence  in  the 
newer  states  and  territories  of  the  southwest.  Moreover  the 
Old  Dominion,  in  population,  wealth,  and  social  prestige,  held 
a  foremost  place  among  the  English  provinces. 

But  it  is  easy  institutionally  to  exaggerate  the  importance 


principal  authorities  are  Hening,  Statutes  at  Large,  13  vols. ;  Palmer 
and  McKae's  Calendar  of  Virginia  State  Papers  ;  An  Account  of  Virginia,  in 
1  Mass.  Hist.  Collections,  V ;  Jefferson,  Notes  on  Virginia ;  Beverley,  History 
of  Virginia;  Proceedings  of  The  First  Assembly  of  Virginia,  1619,  in  Col.  Rec. 
of  Va.,  Richmond,  1874;  Stith,  Hist,  of  Virginia;  Lawes  Diuine,  MoraU,  and 
Martiall,  in  Force's  Tracts,  III;  Neill,  Virginia  Carolorum;  Burnaby,  Travels, 
16  ff. 

I  am  much  indebted  to  Mr.  Ingle's  Local  Institutions  of  Virginia:  J.  H.  U. 
Studies,  III,  and  to  Dr.  Channing's  Town  and  County  Government:  J.  H.  U. 
Studies,  II.  The  histories  of  Burk,  Hildreth,  Campbell,  Lodge,  and  Doyle 
have  also  afforded  some  assistance.  For  historical  sketches  of  the  various 
counties,  see  Howe's  Hist.  Collections  of  Virginia. 

388 


Origin  and  Character.  389 

of  all  these  considerations.  The  Virginia  county  was  not  so 
independent  as  that  of  Pennsylvania ;  for,  on  the  one  hand,  it 
was  less  democratic  in  the  choice  of  officers;  and,  on  the  other, 
the  functions  of  local  government  were  to  some  extent  shared 
with  the  parish  from  the  beginning.  Again,  while  it  may 
have  been  the  most  complete  realization  in  this  country  of  the 
parent  institution,  still  it  possessed  various  unique  features ; 
and  besides,  the  county  organization  of  Pennsylvania,  New 
York,  or  even  of  Massachusetts,  retained  the  broad  outlines  of 
the  English  model.  In  addition  to  all  this,  it  is  beyond  ques- 
tion, that  the  two  systems  of  county  government  now  existing 
in  the  northwestern  states,  were  suggested,  not  so  much  by  that 
of  the  South  as  by  those  of  the  Middle  Provinces ;  though, 
in  no  section,  did  the  people  ever  become  entirely  unfamiliar 
with  the  general  conception  of  county  organization. 

Nevertheless  the  Virginia  county  furnishes  a  most  interest- 
ing and  profitable  study ;  in  fact,  scarcely  from  any  other 
single  point  of  view  can  so  satisfactory  an  insight  into  the 
every-day  life  of  the  people  be  obtained. 

The  institution  was  a  natural  growth.  The  followers  of 
Smith,  like  those  of  Bradford-  or  Winthrop,  settled  of  necessity 
in  village  communities.  For  a  time  the  "  city  "  promised  to 
be  the  counterpart  of  the  northern  "  town."  But  a  number 
of  causes,  chiefly  economic,  determined  a  different  develop- 
ment. The  customs  of  entail  and  primogeniture,  the  rise  of 
negro  slavery,  the  numerous  watercourses,  and  the  predilection 
for  large  estates  on  the  part  of  the  principal  settlers,  all  these 
combined  to  produce  plantation,  rather  than  village  life. 

Within  a  very  few  years  from  the  original  occupation,  the 
rudimentary  cities  had  begun  to  decay — to  dissolve  or  expand 
into  the  county.1  At  first "  hundred,"  "  plantation,"  or  "  guift  " 
was  the  name  given  to  the  territorial  unit.  Not  until  1634 
was  the  colony  divided  into  "  shires,"  eight  in  number,  to  be 

1  This  point  is  brought  out  by  Ingle,  Local  Institutions  of  Fa,  81. 


390       Rise  of  the  County  in  Virginia  and  the  South. 

"governed  as  the  shires  in  England."1  Soon  after,  in  the 
records,  the  term  "  county  "  supersedes  the  more  ancient  name.2 
The  number  of  counties  was  gradually  increased,  until  in 
1680  there  were  twenty ; 3  in  1705,  twenty-nine;4  and  in  1781, 
seventy-four.6 

We  now  proceed,  without  further  preface,  to  examine  the 
county  constitution,  adopting  much  the  same  arrangement  as 
hitherto. 

II. — EVOLUTION  or  THE  COUNTY  COURT. 
(a) — Development  of  the  Organization. 

The  growth  of  the  local  judiciary  extends  over  a  number  of 
years  before  the  system  reaches  its  permanent  form.  During 
the  early  period,  the  only  tribunal  which  existed  in  the  pro- 
vince was  that  of  the  governor  and  council  at  Jamestown. 
This"court  at  first  was  held  quarterly,6  but  later  the  sessions 
were  reduced  to  three,7  and  then  two,8  each  year;  and  on 
account  of  the  inconsistency  of  retaining  the  old  name,  it  was 
ordered  by  the  assembly  in  1661/2  that  they  be  called  "general 
courts."9 

In  1624  courts  "to  be  kept  once  a  month  in  the  corpora- 
tions of  Charles  City  and  Elizabeth  City  "  were  erected.10  These, 
like  the  inferior  tribunals  of  1636  in  Massachusetts,  were  the 


1  Hening,  I,  224, 

*  In  minutes  of  the  Assembly  for  1639/40;  but  these  are  a  summary  made 
injthe  following  century :  Hening,  I,  224,  note,  228.  The  term  is  next  used  in 
1642/3 :  Hening,  I,  238  f. 

3  As  appears  from  a  list  of  counties,  where  towns  and  store-houses  are  to  be 
established :  Hening,  II,  472-3. 

*Beverley,  Hist,  of  Fa.,  192. 

5  Jefferson,  Notes  on  Fa.,  125-6,  148. 

6  Hening,  1,  145,  note,  174,  187,  270. 
'Hening,  1,524(1658/9). 

8  Hening,  III,  10  (1684) ;  Beverley,  Hist,  of  Fa.,  206. 

9  Hening,  II,  58. 

10  Extended  in  1631/2  to  other  places  in  "  remote  parts : "  Hening,  1, 168. 


Evolution  of  the  County  Court.  391 

germs  of  the  county  courts.  They  had  jurisdiction  in  suits 
"  not  exceeding  one  hundred  pounds  of  tobacco  "  and  in  petty 
offences,  and  they  were  held  by  the  commanders  of  the  respective 
places  and  such  others  as  the  governor  saw  fit  to  commission, 
the  former  being  of  the  quorum.1  In  June  the  jurisdiction 
was  extended  to  cases  involving  less  than  1600  pounds  of 
tobacco;  and  in  March,  1643,  the  name  "county  courts"  was 
substituted  for  "  monthly  courts."  They  were  now  to  be  held 
six  times  a  year  in  each  of  the  ten  counties ;  and  it  was  also 
provided  at  this  time  that  actions  for  less  than  twenty  shillings 
or  two  hundred  pounds  of  tobacco2  should  be  tried  by  a  single 
commissioner.3  The  commissioners  were  afterwards  called 
"justices"4  and  "  magistrates."8 

In  1661  the  number  of  justices  was  fixed  at  eight  including 
the  sheriff;6  but  the  law  does  not  seem  to  have  been  long 
observed,7  and  the  limit  was  removed  by  the  act  of  1748.8 
The  justices  were  appointed  by  the  governor;  but  in  prac- 
tice they  usually  nominated  candidates  who  then  received  the 
governor's  commission  ;  thus  the  county  court,  like  the  vestry, 
became  in  effect  a  close  corporation  composed  of  the  leading 
gentry  of  the  county.9  The  commission  for  each  county  was 


1Hening,  I,  125.  See  the  form  of  commission  in  Ib.,  132  (1628/9),  168-9 
(1631/2).  One  other  besides  the  commander  was  usually  of  the  quorum:  Neill, 
Virginia  Carolorum,  90-1. 

1  Made  350  pounds  in  1657/8;  and  two  commissioners  could  try  cases  of  1000 
pounds:  Hening,  I,  435.  Cf.  76.,  II,  72;  V,  491. 

'Hening,  I,  272-3;  Ingle,  Local  Inst.,  89;  Channing,  Town  and  County 
Oovt.,  44. 

*In  1661/2:  Hening,  II,  70,  note. 

6  Col.  Fa.  State  Papers,  I,  263. 

6  Hening,  II,  21.  The  reason  assigned  is  that  "  the  great  number  of  com- 
missioners in  each  county  hath  rendered  the  place  contemptible  and  raysed 
factions."  ' 

1  In  Beverley's  time,  1705,  the  court  was  held  by  "  eight  or  more  gentle- 
men : "  Hist,  of  Va.,  208. 

8  Hening,  V,  489. 

8  However,  in  1652,  it  was  enacted  that  the  assembly  should  appoint  the 
commissioners :  Hening,  I,  372. 


392       Rise  of  the  County  in  Virginia  and  the  South. 

ordinarily  renewed  every  year,  the  main  object  being  to  increase 
the  governor's  fees  and  patronage.1 

The  court  usually  met  monthly  in  the  county  town,  four 
justices  being  necessary  for  a  legal  session,  one  of  whom  must 
be  of  the  quorum.2  It  had  jurisdiction  in  criminal  actions 
not  extending  to  life  and  limb,3  and  in  civil  suits  involving 
over  twenty  shillings,  being  final  for  sums  under  sixteen 
pounds  sterling.4  It  could  also  try  equity  cases,5  hear  appeals 
from  the  single  justice,6  and  it  had  charge  of  probate  and  admin- 
istration.7 Business  in  the  county  court  seems  often  to  have 
been  loosely  administered,  the  justices  being  sometimes  dila- 
tory and  incompetent.8 

(b).—The  Officers. 

The  county  court  appointed  its  own  clerk  who,  as  else- 
where, performed  also  the  usual  duties  of  county  recorder.9 
The  sheriff  was  the  executive  officer,  and  one  of  the  most 
important  functionaries  of  the  county.  Originally,  by  a  curi- 


1 "  He  renews  that  commission  commonly  each  year,  for  that  brings  new 
fees,  and  likewise  gives  him  an  opportunity  to  admit  into  it  new  favorites, 
and  exclude  others  that  have  not  been  so  zealous  in  his  service:  An  Account 
of  Fa. :  1  Mass.  Hist.  Coll.,V,  149. 

2  Beverley,  Hist,  of  Fa.,  208  f. ;  see  various  acts  in  Hening,  especially  that 
of  1748,  Vol.  V,  489. 

3  But  in  1655/6  it  was  ordered  that  criminal  suits  should  be  tried  in  the 
quarter  courts  or  in  the  assembly — "  which  of  them  should  happen  first : " 
Hening,  I,  397-8. 

*  But  in  1748  the  lower  limit  was  fixed  at  25  shillings :  Hening,  V,  491. 

5  Hening,  I,  303;  V,  491. 

6  Hening,  I,  435. 

7  Hening,  I,  302-3,  447. 

8  See  complaints  that  courts  are  not  properly  kept,  in  Calendar  Fa.  State 
Papers,  I,  106,  195 ;  An  Account  of  Fa. :  1  Mass.  Hist.  Col,  V,  150.     On  the 
county,  see  also  Campbell,  History  of  Fa.,  352-3 ;  Hildreth,  I,  337 ;  Lodge, 
Short  History,  48-9. 

9  In  1645  the  appointment  was  vested  in  the  governor;  but  in  1657/8  the 
court  recovered  the  right :  Hening,  I,  305,  448. 


Representation  and  Civil  Administration.  393 

ous  arrangement,  he  himself  was  a  member  of  the  court :  the 
person  heading  the  list  of  justices  first  administered  the  office, 
and  the  others  "successively  as  they  held  their  places  in  the 
commission,  every  one  an  whole  year  and  no  longer."1  Later 
he  was  appointed  by  the  governor  from  a  triple  number  of 
justices  nominated  by  the  county  court.2 

This  plan  by  which  the  executive  officer  became  a  member 
of  the  court,  has  few  precedents,3  but  may  be  regarded  as  a 
revival  of  the  sheriff's  ancient  right  to  preside  in  the  shire- 
moot,  though  it  here  appears  in  connection  with  the  body 
representing  the  English  quarter  sessions. 

The  more  important  general  functions  of  the  sheriff  will 
be  noticed  further  on. 


III. — REPRESENTATION  AND  CIVIL,  ADMINISTRATION. 
(a). — Election  of  Burgesses. 

In  Virginia,  as  in  the  Middle  Colonies,  the  county  was  the 
unit  of  representation.  The  number  of  burgesses  which  each 
might  return  was  not,  at  first,  definitely  prescribed ; 4  but  in 
1 645,  it  was  restricted  to  four,  except  for  the  county  of  James 
City,  which  was  allowed  five  besides  one  for  the  town  itself.6 
Finally  in  1660  the  number  of  burgesses  was  fixed  at  two  for 
each  county  and  one  for  Jamestown — the  same  privilege  being 
subsequently  conferred  upon  Norfolk  and  Williamsburg.8 


>Hening,  11,21,78,353. 

'Hening  III,  246  (1705) ;  V,  515  (1748) ;  Calendar  of  Va.  Stale  Paper*, 
I,  98  (1706). 

*  It  was  the  same  on  Long  Island,  according  to  Duke's  Laws,  65 ;  but  in 
practice,  doubtless,  in  both  places  the  functions  of  the  sheriff  were  largely 
restricted  to  his  proper  executive  duties.  Aug.  4,  1676,  it  was  ordered  that 
he  should  no  longer  sit  as  justice  in  the  Duke's  jurisdiction:  Fernow,  Doc. 
Rel.  to  Col.  Hist.,  XII,  553. 

4  However  in  the  Assembly  of  1619  each  district  returned  two  delegate*. 

6Hening,  I,  299-300. 

•Hening,  II,  20 ;  Ingle,  Local  IntL,  79. 


394       Rise  of  the  County  in  Virginia  and  the  South. 

But  in  the  early  period  the  representative  system  was  not 
symmetrical :  certain  parishes  by  special  act  of  the  assembly 
being  authorized  to  return  delegates ;  and  the  vestry  could  levy 
a  tax  for  their  wages.  In  these  exceptional  cases  the  sheriff 
was  required  to  hold  a  special  election  within  the  borders  of 
the  parish.1 

The  elections  were  held  at  the  court-house  before  the  sheriff 
as  returning  officer ;  and  each  elector  gave  in  his  vote  "  upon 
view,"  or  viva  voce  if  a  "  poll "  were  demanded.2 

In  early  days  the  right  of  suffrage  was  given  alternately  to 
freemen,  housekeepers  and  freeholders,3  housekeepers,  and 
finally  to  freeholders  only.4  At  the  Revolution  the  freehold 
right  consisted  of  an  "estate  for  life  in  100  acres  of  unin- 
habited land,  or  25  acres  with  a  house  on  it,  or  in  a  house  and  lot 
in  some  town."5 

(6). — General  Functions. 

The  care  and  construction  of  bridges  and  highways  belonged 
to  the  county  court;  and  for  this  purpose  the  county  was 
divided  into  "  walks  "  or  "  precincts  "  for  each  of  which  the 
court  appointed  annually  a  "  surveyor  of  highways." 6  In  like 
manner  the  county  was  divided  into  "  precincts  "  for  the  con- 
stables or  "  headboroughs,"  who  were  also  appointed  by  the 
justices.7  Similarly,  in  early  times,  the  parishes  were  laid  out 


1  Hening,  I,  250,  277,  421,  545. 

'Hildreth,  II,  238 ;  Hening,  I,  411  (1655),  475  (1657/8) :  return  was  to  be 
made  by  "subscription  of  the  major  part  of  the  hands  of  the  electors." 
This  will  remind  the  reader  of  the  early  "  indentures."  Cf.  Cox,  Antient 
Par.  Elections,  108;  Stubbs,  III,  408-11.  For  an  interesting  account  of  the 
procedure  at  elections,  see  Ingle,  Local  Inst.,  80. 

'Hening,  I,  403  (freemen),  412  (housekeepers),  475  (freemen);  II,  280 
(freeholders  and  housekeepers) ;  Neill,  Virginia  Carolorum,  242,  330. 

*  Hening,  11,425  (1677). 

6  Jefferson,  Notes  on  Va.,  161.    Cf.  Ingle,  Local  Inst.,  80,  note. 
•Jefferson,  Notes  on  Va.,  209;  Hening,  I,  199,  436. 

7  Beverley,  Hist,  of  Va.,  199 ;  Burk,  Hist,  of  Va.,  II,  App.,  p.  21 ;  Ingle,  Local 
Inst.,  83,  92. 


Representation  and  Civil  Administration.  395 

by  the  county  court;  but  later  this  was  effected  by  special  acts 
of  the  assembly.1 

The  county  court  had  charge  of  ferries,  prescribing  the  rates 
and  regulations.2  It  could  also  offer  rewards  for  killing 
wolves ; 8  appoint  tobacco  viewers ; 4  admit  attorneys  to 
practice;5  license  ordinaries,  and  limit  the  charges  of  the 
same.6 

Besides  the  sheriff  and  the  clerk,  the  remaining  officers  of 
the  county  were  the  coroner,  the  land  surveyor,  and  the 
lieutenant.  The  coroners,  two  or  more  for  each  parish,  were 
appointed  by  the  governor;  but  in  their  absence  justices  of  the 
peace  could  act.7  In  1693  the  right  of  appointing  the  surveyor 
general  of  the  province  was  vested  in  the  president  of  William 
and  Mary  College,  and  the  local  surveyors  were  nominated 
either  by  the  latter  or  by  the  surveyor  general.8  The  duties 
of  the  county  lieutenant  will  be  noticed  hereafter. 

(c). — Survival  of  Legislative  Power  and  Local  Representation. 

The  government  of  the  Virginia  county,  as  thus  far  detailed, 
was  highly  centralized.  All  of  its  important  officers  were 
appointed  by  the  governor ;  while  the  inferior  agents  of  local 
administration  were  chosen  by  these  nominees.  In  the  court 
was  placed  the  entire  government  of  the  county,  save  the  few 
independent  secular  functions  discharged  by  the  vestry  and 


1  Hening,  I,  469 ;  V,  75,  96,  267,  etc. 

*  Hening,  I,  348,  411.    But,  later,  ferries  were  established  and  their  fees 
regulated  by  the  assembly :  /&.,  IV,  179 ;  V,  66,  364,  etc. 
•Hening,  I,  328,  456. 

4  Hening,  111,436. 

5  Hening,  I,  275,  419;  VI,  140  ff. 
•Hening,  I,  411,  522. 

'  Beverley,  Hist,  of  Fa.,  199 ;  Hening,  II,  325,  419. 

8  Beverley,  Hist,  of  Fa.,  198.  See  Dr.  H.  B.  Adams'  monograph,  Hist,  of 
W.  and  M.  College,  15  ff.;  Cooke,  Hist,  of  Fa.,  305;  Ingle,  Local  Intl.,  93. 
In  the  earlier  period  the  local  surveyors  were  appointed  by  the  commis- 
sioners of  the  county  court :  Heaing,  I,  404. 


396       Rise  of  the  County  in  Virginia  and  the  South. 

churchwardens.1     The  principle  of  popular  election  appears 
only  in  the  choice  of  burgesses. 

But  there  was  one  democratic  feature  of  the  county  organism 
of  considerable  interest  from  an  historical  point  of  view.  The 
court  was  not  only  authorized  to  establish  its  own  rules ;  but 
in  1662  both  parishes  and  counties  were  granted  "liberty  to 
make  laws  for  themselves,"  when  approved  by  a  majority  vote.2 
This  act  was  thought  to  be  "  too  generall,"  and  therefore  in 
1679  a  new  law  was  passed  providing  that  each  parish  should 
choose  two  delegates,  "  at  such  time  and  place  as  by  the  county 
court  shall  be  appointed,"  return  of  the  election  to  be  made  by 
the  churchwardens ;  and  the  delegates  "  shall  sitt  in  the  severall 
county  courts  and  have  their  equall  votes  with  the  severall 
justices  for  the  makeing  of  lawes,"  the  latter  to  be  binding 
upon  all  inhabitants  of  the  county.  If  the  county  consisted  of 
but  a  single  parish,  four  representatives  were  allowed ;  and 
likewise  for  every  "chapel  of  ease"  in  greater  parishes  one 
delegate  could  be  chosen.3  It  is  very  doubtful,  however, 
whether  much  practical  use  was  ever  made  of  this  institu- 
tion ;  but  its  mere  appearance  in  this  country  is  of  peculiar 
interest.  For  the  chief  characteristic  of  the  primitive  shire  as 
a  self-governing  body  is  thus  revived :  the  right  of  inde- 
pendent legislation  exercised  in  a  representative  assembly  of 
the  freemen.4 

Another  ancient  privilege  of  the  shire,  that  of  free  access  to 
the  sovereign,  found  a  parallel  in  Virginia.  It  was  usual, 
after  the  choice  of  burgesses,  for  the  county  court  to  sit  as 
a  "  court  of  claims ; "  and  such  claims  as  were  audited  and 
approved  and  any  complaints  or  gravamina  which  might  be 


1  See  above  Chap.  Ill,  vi. 

2Hening,  II,  171-2.  In  1655/6  Northampton  county  had  been  given  the 
same  right :  lb.,  I,  396. 

sHening,  II,  441.     Of.  Ingle,  Local  Inst.,  93. 

4  This  arrangement  seems  to  be  without  parallel  in  colonial  history ;  com- 
pare it,  however,  with  the  restricted  right  of  enacting  by-laws  possessed  by 
the  justices  of  the  county  courts  on  the  Delaware,  under  the  Duke  of  York. 


Fiscal  Administration.  397 

presented,  were  sent  to  the  assembly  by  the  burgesses  elect, 
and  there  referred  to  the  proper  committees.1 

IV. — FISCAL  ADMINISTRATION. 

Besides  the  quit-rents  and  customs,  with  which  we  are  not 
here  concerned,  there  were  in  Virginia  three  different  taxes  to 
which  all  heads  of  families  were  bound  to  contribute.  These 
were  the  parish,  county,  and  public  levies.  Each  was  laid 
solely  on  polls,2  the  only  land-tax  being  the  royal  quit-rents 
of  two  shillings  on  every  hundred  acres.8 

The  list  of  "tithables"  included  all  slaves,  male  and  female, 
and  all  white  men  above  the  age  of  sixteen ;  but  children  and 
white  women  were  exempt.4  In  early  days  various  expedients 
were  adopted  for  making  the  lists  of  tithables.  The  tax  of 
1629,  of  five  pounds  of  tobacco  per  capita,  was  to  be  brought 
to  the  "  houses  of  the  burgesses"  by  the  "masters"  of  families, 
and  in  default  any  burgess  could  levy  the  same  by  distress.6 
In  1645  and  1646  the  lists  were  to  be  made  by  "commissioners" 
appointed  by  the  county  courts.6  After  the  revival  of  the 
poll-tax,  in  1649,  masters  of  families  were  required  to  bring  in 
their  own  lists  to  the  county  court;7  and  in  1659  the  sheriff 


1  An  Account  qfVa.:  1  Mass.  Hist.  CoU.,\,  147. 

*But  in  1645  the  "anncient"  poll-tax  was  abolished  and  a  tax  on  land 
and  other  property  substituted,  cattle  being  appraised  at  so  much  a  head 
according  to  age ;  but  this  law  was  abrogated  and  the  former  method  re- 
stored in  1648:  Hening,  I,  305,  356. 

s  "  Their  parish,  county,  and  public  taxes  in  Virginia  have  always  been 
laid  in  this  fashion,  viz.,  not  upon  land,  houses,  stocks  of  horses,  cattle 
trade,  etc.,  but  the  number  of  tithables.  .  .  Their  servants  and  slaves 
being  the  most  considerable  parts  of  their  estate,  are  the  only  rule  they 
observe  in  laying  the  levy."  An  Account  of  Va. :  1  Mass.  Hist.  Coll^  V.  156. 

4  Beverley,  Hist,  of  Va.,  203 ;  Hening,  I,  361 ,  454.  Indian  woman  servants 
were  also  listed :  Ib.,  II,  492  ( 1 682) ;  An  Account  of  Va.:  1  M^s*.  Hut.  Coll., 
V,  154.  Even  white  women  laboring  in  the  field  were  sometimes  assessed. 

•Hening,  I,  143. 

•Hening,  I,  306,  329. 

T  Hening,  I,  361. 


398       Rise  of  the  County  in  Virginia  and  the  South. 

was  ordered  to  take  them  "as  formerly  hath  been  accustomed."1 
Finally  a  definite  plan  was  adopted  :  the  county  was  divided 
by  the  court  into  a  certain  number  of  tax  "  precincts,"  and  a 
justice  was  designated  to  take  the  lists  for  each.2 

The  procedure  in  making  a  levy,  at  the  close  of  the  seven- 
teenth century,  is  thus  described  by  a  contemporary  writer : 

"  There  is  a  certain  time  every  year,  viz.  about  the  beginning 
of  June,  before  the  1  Oth  day  of  it,  when  all  masters  of  families 
are  obliged  to  give  in  a  list  of  all  the  tithable  persons  within 
their  several  families,  to  a  certain  justice  of  the  peace  in  that 
district  where  they  live,  who  is  authorized  by  the  county  court 
to  take  it,  and  is  obliged  to  give  it  in,  at  the  next  county  court, 
where  it  is  affixed  at  the  court  door,  to  the  end,  that  if  any 
tithables,  in  any  family,  are  not  listed,  they  may  be  discovered 
and  found  out ;  for  it  is  every  man's  interest  to  have  the  list 
of  tithables  as  full  as  possible,  it  being  so  much  ease  to  him  in 
his  own  levy,  as  will  appear  by  and  by  :  and  there  is  a  great 
penalty  upon  every  master  of  a  family  that  conceals  a  tithable, 
viz.  the  loss  of  a  slave,  if  he  or  she  is  a  slave  that  is  concealed, 
and  the  penalty  of  2000  pounds  of  tobacco  if  it  is  a  free  man 
or  woman.  The  list  of  tithables  being  thus  exactly  taken  out 
of  them,  the  parish,  county  and  public  levy  are  raised  in  this 
manner. 

"  For  the  parish  levy,  the  vestry  of  every  parish  meet  usually 
some  time  about  the  month  of  October  (when  the  tobacco  is 
ready),  and  making  a  computation  of  all  the  parish  debts  for 
that  year,  viz.  so  much  for  the  minister's  salary,  so  much  for 
the  clerk,  so  much  for  building,  reparations  and  ornaments  of 
the  church,  so  much  for  the  poor  etc.  and  adding  8  per  cent, 
to  that  part  of  it  which  is  to  be  laid  with  cask,  and  5  per  cent, 
in  some  places  10,  for  collection,  they  divide  the  whole  sum  of 


1  Hening,  I,  521. 

1  Hening,  II,  19,  83  (acts  of  1660,  1661/2).    The  augmentation  of  taxes 
through  fraud  of  the  sheriff,  is  assigned  as  a  reason  for  the  innovation. 


fiscal  Admini*tration.  399 

tobacco  (for  all  levies  are  paid  in  tobacco),  by  the  number  of 
tithables  in  their  parish  list,  which  the  church  wardens  are 
obliged,  for  the  above  salary,  to  collect  from  the  several  mas- 
ters of  families  and  pay  away  to  the  several  persons  to  whom 
it  is  due.  At  the  caster  vestry  the  church  wardens  make  up 
their  accounts  with  the  vestry. 

"The  same  method  is  observed  for  the  county  levy,  viz.  the 
justices  of  the  peace  meet,  and  compute  all  the  county  debts, 
viz.  the  charge  of  building  and  repairing  their  court  house  and 
prison,  keeping  up  their  bridges,  causeways,  and  ferry-boats, 
the  charge  of  coroners'  inquests,  and  especially  (which  is  the 
greatest  charge  of  all),  the  allowance  to  their  two  burgesses 
at  the  General  Assembly,  if  there  has  been  any  that  year, 
which  allowance  is  120  pounds  of  tobacco  and  cask  per 
diem  to  each  of  them,  besides  extraordinaries  for  going  and 
coming." ' 

In  like  manner  the  estimate  of  the  public  levy  was  made  by 
a  committee  of  the  general  assembly,  the  proper  amount  being 
added  to  that  of  each  county. 

The  sheriff  was  the  fiscal  officer;  and  it  is  interesting  to 
see  the  function  which  constituted  the  chief  business  of  the 
Norman  vicecomes  again  coming  into  so  great  prominence. 
He  was  not  only  collector  of  both  public  and  county  levies, 
and  sometimes  that  of  the  parish ;  but  he  was  custodian  of  the 
tobacco  received,  paying  it  out  on  the  proper  warrant  and 
rendering  account  therefor  to  the  county  or  provincial  court. 
He  was,  in  short,  ex  ojficio  county  treasurer — there  being  no 
officer  bearing  that  name  in  Virginia.2 


lAn  Account  of  Va. :  1  Mass.  Hist.  CoU.,  V,  154-5. 

*An  Account  of  Va. :  1  Mass.  Hist.  CoU.,  V,  154,  157.  The  sheriff  also  col- 
lected the  quit-rents:  Hening,  II,  83.  His  fees  were,  of  course,  payable  in 
tobacco:  See  lists  in  Col.  of  Va.  State  Papers,  I,  142,  and  Hening,  II,  146. 
Calendar,  1, 146,  contains  the  justices'  warrant  for  collection  of  a  county  levy. 
On  the  sheriff's  fiscal  duties,  see  further  Hening,  I,  259,  284,  442,  etc. 


400       Rise  of.  the  County  in  Virginia  and  the  South. 


V. — MILITARY  ADMINISTRATION. 

The  county  was  also  employed  as  the  sole  unit  of  the  militia 
organization.  In  New  England  and  New  York,  as  already 
seen,  the  train-bands  of  the  several  towns  united  to  form  a 
regiment  for  the  shire.  In  Virginia  the  process  was  precisely 
opposite  :  the  entire  body  of  foot  or  horse  being  divided  into 
convenient  companies  or  troops  by  the  principal  militia  officer 
of  the  county,  under  such  rules  as  the  governor — who  was 
commander-in-chief  of  all  the  troops  of  the  province — should 
prescribe.1  An  example  of  such  regulations  is  given  by 
Beverley.  "  Whereas,"  he  says,  "  by  the  practice  of  former 
times  upon  the  militia  law,  several  people  were  obliged  to 
travel  sometimes  thirty  or  forty  miles  to  a  private  muster  of  a 
troop  or  company,  which  was  very  burdensome  to  some,  more 
than  others,  to  answer  only  to  the  same  duty ;  this  governor2  .  .  . 
so  contrived,  by  dividing  the  counties  into  several  cantons  or 
military  districts,  forming  the  troops  and  companies  to  each 
canton,  and  appointing  the  muster  fields  in  the  center  of  each, 
that  now  throughout  the  whole  country,  none  are  obliged  to 
travel  above  ten  miles  to  a  private  muster,  and  yet  the  law 
put  in  due  execution." 3 

The  chief  command  of  the  militia  and  the  general  adminis- 
tration of  the  military  laws,  in  each  county,  was  vested  in  the 
"commander,"4  or  as  he  was  subsequently  styled,  the  "county 
lieutenant,"  appointed  by  the  governor.5  The  latter  is  of 
peculiar  interest  as  being  the  representative  of  the  lord  lieu- 
tenant of  the  English  shire,  thus  keeping  up  in  this  country 


1  See,  for  example,  the  militia  act  of  1705  :  Hening,  III,  337. 

2  Nicholson. 

3  Hist,  of  VOL.,  218. 

4  Hening,  I,  125,  127,  140,  193,  174-5,  200. 

5 Hening,  I,  224  (1634).     He  was  to  be  "appointed  the  same  as  in  Eng- 
land." 


Military  Administration.  401 

the  continuity  in  functions  of  the  Saxon  ealdorraan  and  the 
more  ancient  princeps.1 

The  commander  was  the  constitutive  officer  of  the  monthly 
courts  established  in  1624,  being  "  of  the  quorum ; "  and,  as  a 
member  of  the  council,  he  was  a  judge  of  the  chief  tribunal  of 
the  province.2  In  early  days  he  was  entrusted  with  various 
executive  duties;  such  as  the  enforcement  of  the  tobacco  laws3 
and  those  against  drunkeness  and  swearing.4  He  could  also, 
in  his  discretion,  imprison  persons  of  "  quality  "  found  delin- 
quent in  their  duties,  such  "  being  not  fitt  to  undergoe  corporal 
punishment;"  but  the  graver  offences  were  reserved  for  the 
monthly  court.  He  was  likewise  required,  with  others,  to 
take  care  "  that  the  people  doe  repair  to  their  churches  on  the 
Saboth  clay,"  and  that  it  "  be  not  ordinarily  profaned  by 
workeing  or  by  iournyeing  from  place  to  place." ! 

But  his  function  as  military  chief  of  the  county  was  most 
important,  though  it  is  clear  from  the  form  of  commission  that 
he  was  intended  to  fill  the  place  of  a  governor's  deputy. 
"  Whereas,"  runs  the  commission  to  Edward  Waters  as  com- 
mander of  the  "  precincts  "  of  Elizabeth  City,  "  the  affaires  of 
this  colony  doe  necessarily  require  that  men  of  sufficiency  and 
experience  bee  appoynted  to  command  and  governe  the  several 


1  The  charter  of  1609  seems  to  show  an  intention  on  the  part  of  the  crown 
to  erect  the  colony  of  Virginia  into  a  county  under  the  governor  as  lieu- 
tenant. It  provides  "  that  such  principal  governor  as  from  time  to  time 
shall  duly  and  lawfully  be  authorized  and  appointed  in  manner  and  form 
in  these  presents  heretofore  expressed,  shall  have  full  power  and  authority, 
to  use  and  exercise  martial  law  in  cases  of  rebellion  or  mutiny,  in  as  large 
and  ample  manner  as  our  lieutenants  in  our  counties  within  this  our  realm 
of  England  have  or  ought  to  have  by  force  of  their  commissions  of  lieu- 
tenancy :"  Poore,  Charters,  II,  1901 ;  cf.  Ingle,  Local  Insl.,  75. 

J  These  judicial  functions  are  analogous  to  those  of  the  lord  lieutenant  as 
principal  justice  named  in  the  commission  of  the  peace. 

•Hening,  I,  152,  165. 

'Hening,  I,  126. 

6  Hening,  I,  144.  On  the  early  sabbath  laws  of  Virginia,  see  Lowes 
Divine,  MoraU,  and  Marliall:  Force's  Tracts,  III;  Doyle,  English  Colonies,  I, 
138  ff. 

26 


402       Rise  of  the  County  in  Virginia  and  the  South. 

plantations  and  inhabitants  within  the  same,  both  for  the 
better  order  of  government  in  the  conservation  of  the  peace 
and  in  the  execution  of  such  orders  and  directions  as  from 
tyme  to  tyme  shall  be  directed  unto  them,  as  alsoe  for  the 
preventing  and  avoyding  of  such  mischiefes  as  may  happen 
unto  us  by  the  intrusions  and  practizes  of  the  Indians  our 
irreconcileable  enemies  ...  I  ...  constitute  and  appoynt 
him  .  .  .  commander."  l  In  later  times,  however,  the  lieu- 
tenant's functions  were  restricted  almost  entirely  to  matters 
directly  connected  with  his  military  command.2 

The  lieutenant  was  first  in  rank  and  dignity  among  the 
county  magnates.  When  a  member  of  the  council,  he  bore  the 
honorary  title  of  colonel;3  otherwise  that  of  major;4  but  the 
regiments  of  horse  and  foot  in  each  county  had  their  separate 
colonels,  subordinate  to  the  lieutenant.6  All  the  higher  militia 
officers  were  appointed  by  the  governor,  but  those  of  inferior 
rank,  by  the  captains  of  companies.6  General  musters  of  the 
regiment  were  held  annually,  and  company  trainings  usually 
once  a  month.7  Courts  martial,  under  presidency  of  the 
lieutenant,  were  held  by  the  officers;  and  the  fines  adjudged 
were  levied  by  the  sheriff. 

Some  of  the  military  regulations  are  of  interest.  All  white 
males,  for  example,  between  sixteen  and  sixty  years  of  age, 


,  I,  131-2  (1628/9). 

2  This  is  shown  in  the  commission  of  the  lieutenant:  see  the  form  in  Cat. 
Va.  State  Papers,  I,  270  (1775).    On  his  duties,  see  Hening,  IV,  198 ;  V,  91, 
19;  VII,  30. 

3  See  Ingle,  Local  Inst.,  85. 

*  "  But  if  the  command  of  any  county  lies  very  remote  from  all  the  coun- 
sellors, then  he  gives  that  to  some  other  person,  under  the  title  of  major : " 
An  account  of  Va. :  1  Mass.  Hist.  Coll.,  V,  161. 

5  The  lieutenant  received  70  pounds  of  tobacco  a  day,  when  the  colonel  of 
horse  received  60,  and  the  colonel  of  foot,  50 :  see  lists  of  wages,  Hening,  III, 
365 ;  IV,  200,  etc. 

6  Hening,  III,  340  (1705).     But  by  Bacon's  laws,  company  officers  were 
elective:  76.,  II,  348. 

'Sometimes,  however,  once  in  two  months  or  oftener:  Hening,  V,  91. 


Military  Administration.  403 

with  a  few  exceptions,  were  enrolled  by  the  lieutenant,1  the 
latter  during  the  early  period,  serving  also  as  a  general  census 
taker.2  Alarms  were  sounded  by  discharge  of  guns,  and  all 
were  required  to  respond.  The  temper  of  the  Virginians  after 
the  massacre  of  1622  is  revealed  in  an  order  of  March,  1624, 
"that  at  the  beginning  of  July  next  the  inhabitants  of  every 
corporation  shall  fall  upon  their  adjoining  salvages  as  we  did 
the  last  yeare;  "3  and  we  catch  a  glimpse  of  the  social  condition 
of  the  colony  in  an  act  of  1656,  providing  that,  since  the  only 
means  of  giving  warnings  of  danger  from  Indians  "is  by 
allarms  of  which  no  certainty  can  be  had  in  respect  of  the 
frequent  shooting  of  gunns  in  drinking,  whereby  they  proclaim, 
and  as  it  were,  justifie  that  beastly  vice  spending  much  powder 
in  vaine,  that  might  be  reserved  against  the  comon  enemie," 
therefore  the  discharge  of  guns  "  at  drinkeing  (marriages  arid 
ffuneralls  onely  excepted)"  shall  be  forbidden  under  penalty  of 
one  hundred  pounds  of  tobacco  for  each  offence.4 

Every  man  was  required  to  supply  his  own  arms  and 
ammunition,  as  specified  by  law ;  and  if  not  provided,  the 
county  court  could  furnish  them,  and  cause  the  value  to  be 
collected  by  the  sheriff  like  other  fines.8 

Troops  of  twelve  or  more  horsemen,  called  "  rangers,"  were 
maintained  in  constant  pay  as  outposts  at  the  heads  of  the  four 
great  rivers,  to  guard  against  surprise  by  the  Indians.6 

A  very  large  space  in  Hening  is  devoted  to  the  numerous 
militia  acts,  which  are  much  alike  save  in  matters  of  detail. 
Those  of  the  eighteenth  century  generally  contain  a  clause 


1  Hening,  III,  335-7,  etc. 

1  Hening,  I,  174-5. 

•Hening,  I,  128. 

4  Hening,  1,401-2. 

•Hening,  IJ,  304-5  (1673). 

•On  the  rangers  much  will  be  found  in  the  Col.  of  Fa.  State  Papers,  I,  32, 
38,  44,  50,  62, 189,  etc.;  Hening,  II,  433;  VI,  465;  VII,  76,  etc. ;  An  Account 
of  Fa. :  1  Mags.  Hist.  Coll.,  V,  161 .  Beverley,  Hist,  of  Fa.,  218,  says  they  had 
been  done  away  within  his  day ;  but  they  were  afterwards  employed. 


404       Rise  of  the  County  in  Virginia  and  the  South. 

authorizing  the  lieutenant  or  chief  military  officer  of  the 
county  to  appoint  a  certain  number  of  the  militiamen,  usually 
four  or  less,  as  "  patrollers  "  to  "  visit  all  negroe  quarters  and 
other  places  suspected  of  entertaining  unlawful  assemblies  of 
slaves,  servants,  or  other  disorderly  persons,"  to  seize  those 
"strolling  about  from  one  plantation  to  another  without  a 
pass,"  and  to  "carry  them  before  the  next  justice  of  the  peace" 
who  may  cause  them  severally  to  receive  not  to  exceed  twenty 
lashes  on  "  his  or  her  bare  back  well  laid  on."1  The  rise  of 
this  institution  marks  the  growth  of  the  great  social  evil  of 
Virginia. 

VI. — COUNTY  GOVERNMENT  IN  MARYLAND. 

The  county  organization  of  Virginia  was  typical  of  that 
which  prevailed  throughout  the  South ;  but  nowhere  else  in 
those  colonies  was  it  so  strong  or  of  such  relative  importance. 
This  is  especially  true  of  the  county  in  Maryland  during 
the  entire  provincial  era.2  In  early  times  nearly  all  the 
functions  of  local  government,  which  the  proprietary  or  the 
assembly  saw  fit  to  entrust  to  the  people,  were  bestowed  upon 
the  city,  the  manor,  and,  particularly,  upon  the  hundred.  The 
latter,  as  already  stated,3  was  the  unit  of  the  fiscal  and  military 
organizations;  and  before  the  Commonwealth,  it  was  also  the 
area  of  representation. 

At  first  the  county  seems  to  have  been  used  solely  as  a 
judicial  district;4  but  from  the  Revolution  onward  it  began  to 


iHening,  VII,  104-5  (1757);  IV,  202;  V,  19;  VI,  421. 

2  The  Maryland  county  has  been  thoroughly  treated  from  the  sources  in 
Dr.  Wilhelm's  Local  Inst.  of  Maryland,  to  which  the  reader  is  referred  for  a 
detailed  account.  For  South  Carolina,  see  Rarnage,  Local  Government  and 
Free  Schools  in  S.  C. :  Studies,  Vol.  I.  And  for  the  rise  of  county  institutions 
in  North  Carolina,  see  Chap.  Ill,  vil,  (c). 

5  See  above,  Chap.  V,  iv,  (6). 

4For  afewdetails  as  to  the  early  county  court,  see  Archives  of  Md.  (1637-64), 
pp.  47, 148, 149, 184 ;  Bozman,  Hist,  of  Md.,  II,  138, 1 28  ff.  Cf.  Wilhelm,  Local 
Inst.,  p.  79  ff. 


County  Government  in  Maryland.  405 

gain  in  importance.  Burgesses  were  now  chosen  by  the  electors 
of  the  county  in  the  presence  of  the  sheriff  as  returning  officer. 
The  court,  composed  of  "commissioners"  appointed  by  the 
governor,  acquired  a  limited  jurisdiction  in  civil,  criminal,  and 
equity  causes ;  and  it  also  had  charge  of  orphans  and  their 
estates.  It  could  levy  county  taxes,  assess  parish  rates,  fix 
parish  boundaries,  appoint  road  overseers,  and  constables  in  the 
hundreds,  and  exercise  various  other  administrative  functions.1 
But  there  is  no  trace  of  legislative  power,  though  laws  of  the 
assembly  \yere  proclaimed  by  the  sheriff  before  the  court. 

The  executive  officer  of  the  county  was  the  sheriff,  or,  as 
originally  called,  the  marshal,  who  was  appointed  by  the 
governor  or  proprietary.2  Besides  his  ordinary  duties  as  servant 
of  the  court,  he  was  tax  collector  and,  until  1666,  performed 
the  functions  of  coroner.3  In  that  year  the  lieutenant  general 
was  empowered  to  appoint  as  many  coroners  in  each  county  as 
he  saw  fit,  and  their  commissions  were  to  be  as  "  neere  as  may 
be  "  in  accordance  with  the  laws  of  England.4 

Besides  the  clerk  of  the  court,  each  county  had  also  a 
"commander"  whose  functions  were  probably  intended  to  be 
similar  to  those  of  the  commander  in  Virginia ;  but  the  office 
seems  to  have  been,  in  fact,  of  far  less  importance  and  it  is 
little  noticed  in  the  records.6 


1  On  these  functions  see  Bacon,  Laws  of  Md.,  1692,  c.  II  (parish  boundaries) ; 
1702  (parish  rates);  1704,  c.  XXI,  3  (road  overseers) ;  1704,  c.  XXXIV,  1 
(county  charge) ;  1715,  c.  XV  (appointment  of  constables).  Cf.  Wilhelm, 
Local  Inst.,  86. 

"However  in  1662  the  Virginia  plan  was  adopted:  appointment  by  the 
governor  from  three  nominees  of  the  county  commissioners:  Archives  of  Md^ 
p.  451.  The  act  was  repealed  1675 :  Wilhelm,  Local  Inst.,  76.  In  1691  the 
crown  assumed  the  right  of  appointment  which  it  retained  until  1715. 

8  But  in  1640,  Jno.  Robinson,  high  constable  of  St.  Clement's  hundred,  was 
made  coroner:  Council  Proceedings  (1636-47),  p.  91,  85. 

*  Archives,  pp.  130-1. 

6SeeC(wnetfProce«dm08(1636-47),pp.l32, 134, 146,  for  duties  of  commander 
of  St.  Mary's  county  ;  also  Archives  of  Md.t  1644,  p.  202.  The  commander 
of  Kent  had  more  important  duties.  Bozman,  II,  614,  gives  the  form  of 
commission. 


406       Rise  of  the  County  in  Virginia  and  the  South. 


VII. — THE  PROVINCIAL,  COUNTY  COURTS  A  SURVIVAL. 

OF  THE  QUARTER  SESSIONS  AND  NOT  OF 

THE  SHIREMOOT. 

We  have  now  completed  our  examination  of  the  different 
forms  of  county  government  which  existed  in  the  American 
provinces.  In  each  instance  we  have  found  that  the  most 
prominent  feature  of  the  constitution,  nay,  the  very  heart  of 
the  organism,  was  the  county  court;  and  the  latter  everywhere, 
when  it  reached  its  full  development,  approximated  to  the 
same  general  type.  However  it  might  differ  in  powers  and 
functions,  as  the  organ  of  self-government  or  civil  administra- 
tion, in  character  it  was  the  same.  Whether  held  by  associates 
and  magistrates,  by  commissioners,  or  justices  of  the  peace ; 
whether  styled  quarter  courts,  county  courts,  or  general  sessions, 
they  were  always  essentially  a  reproduction  on  American  soil 
of  the  English  quarter  sessions — a  name  which  they  also  bore. 

This  fact  so  patent  to  the  thoughtful  observer  should  go 
without  saying,  were  it  not  a  common  practice  to  speak  of  the 
provincial  county  court  as  if  it  represented  the  English  insti- 
tution of  the  same  name.  But  it  should  not  be  forgotten  that 
in  the  English  county,  since  the  reign  of  Edward  III,  there 
have  always  existed,  side  by  side,  two  bodies:  a  newer  tribunal 
composed  of  the  peace  magistrates,  exercising  jurisdiction  in 
criminal  causes  and  entrusted  with  the  general  administration 
of  the  laws ;  and  an  elder  tribunal,  composed  of  the  freemen  of 
the  district  meeting  in  presence  of  the  sheriff  to  choose  coroner, 
verderer,  and  knights  of  shire,  or  to  declare  folkright  in  certain 
cases.  The  former  is  the  quarter  sessions  of  the  peace ;  the  lat- 
ter, the  county  court — an  outgrowth  of  the  ancient  scirgemot. 

The  provincial  courts  were  in  form  justices'  tribunals;  but 
in  functions  they  were  something  more.  It  can  not  be  denied 
that  they  possessed  certain  attributes  of  the  shiremoot,  and  in 
a  fuller  sense  than  the  English  county  court  since  the  Norman 
Conquest :  such  were  the  powers  of  local  self-government,  the 


The  Provincial  County  Courts.  407 

general  functions  of  civil  administration,  the  right  of  enacting 
by-laws,  and  the  control  of  the  parish  or  township— of  which, 
here  and  there,  we  have  found  so  many  illustrations.  The 
explanation  of  these  peculiarities  is,  however,  not  far  to  seek. 
They  are  but  the  characteristics  of  the  ancient  and  more  popu- 
lar body  transferred  or  attached  to  the  other.  And  this  is  just 
what,  historically,  was  to  be  expected.  From  the  very  first, 
as  already  pointed  out,1  the  quarter  sessions  began  to  absorb 
the  judicial  functions  of  the  county  court;  and  before  the 
seventeenth  century,  these  had  been  reduced  to  a  shadow. 
Now,  in  the  Colonies,  all  the  forces  of  local  institutions  were 
quickened  and  expanded.  In  the  county  as  well  as  in  the 
township  or  parish,  functions  grown  feeble  or  dormant  in  the 
mother  country,  were  called  into  vigorous  life,  sometimes 
being  developed  under  the  influence  of  more  favorable  condi- 
tions beyond  the  point  ever  before  attained.  This  is  precisely 
what  happened  in  the  case  of  the  quarter  sessions.  The  pro- 
cess of  encroachment  upon  the  functions  of  the  county  court — 
or  rather  of  attraction  or  inheritance,  since  the  latter  as  such 
did  not  here  exist — was  continued,  and  powers  never  possessed 
by  either  in  the  old  world  were  here  developed.  Thus  only 
through  the  absorption  or  transference  of  functions,  by  indirect 
filiation,  can  the  American  county  courts,  during  or  since  the 
provincial  era,  be  regarded  as  a  continuation  of  the  ancient 
folkmoot  of  the  shire. 

But  the  continuity  of  the  latter,  in  essence  if  not  in  name, 
was  not  absolutely  interrupted  in  this  country.  It  was  main- 
tained in  the  electoral  assemblies.  The  meetings  of  the  voters 
before  the  sheriff  at  the  court-house  in  Virginia  for  choice  of 
deputies;  or  those  more  remarkable  gatherings  in  Pennsylvania 
before  the  same  magistrate  for  choice  of  county  officers  and 
assemblymen  :  these,  beyond  question,  were  the  representatives 
of  the  English  county  court  in  the  American  colonies.2 


1  Chap.  VI,  v. 

J  But  see  Chap.  X,  vi,  on  the  relation  of  the  modern  county  board  to  the 
shiremoot  and  quarter  sessions. 


CHAPTER  X. 

RISE  OF  THE  COUNTY  IN  THE  WESTERN 
STATES. 

I. — GENESIS  OF  THE  COMMISSIONER  SYSTEM  IN  THE 
NORTHWEST  TERRITORY. 

(a). — The  First  Territ.wial  Constitution. 

The  planting  of  social  institutions  in  the  Northwest  Terri- 
tory, under  the  Ordinance  of  1787,  is  scarcely  second  in  signifi- 
cance to  any  event  in  American  annals.  Whether  regarded  as 
the  starting  point,  directly  or  indirectly,  of  numerous  populous 
commonwealths,  or  simply  as  marking  an  epoch  in  the  develop- 
ment of  constitutional  forms  and  principles,  the  foundation 
of  Marietta  in  1788  deserves  a  page  in  history  honorable  as 
that  which  commemorates  the  settlement  of  Jamestown  or 
Plymouth. 

By  the  Ordinance  the  general  government  of  the  territory, 
during  the  first  stage,  is  vested  in  a  governor,  secretary,  and 
judges,  all  elected  by  the  Congress  of  the  United  States.1  The 
governor  is  commander-in-chief  of  the  militia  and  may  appoint 
and  commission  all  officers,  except  general  officers,  who  are  to 
be  nominated  and  commissioned  by  Congress.  The  governor 


1  But  by  an  act  of  1789,  the  right  to  appoint  these  officers  is  vested  in  the 
president  by  and  with  the  advice  and  consent  of  the  Senate ;  and  it  is  fur- 
ther provided,  that,  in  case  of  death,  absence,  resignation,  or  removal  of 
the  governor,  the  duties  of  that  office  shall  devolve  upon  the  secretary : 
U.  S.  Statutes  at  Large,  I,  50-53. 
408 


The  Commissioner  System  in  the  Northwest  Territory.  409 

is  also  authorized  to  create  proper  divisions  for  the  execution 
of  process,  civil  and  criminal ;  and,  as  fast  as  circumstances 
may  require,  to  lay  off  districts,  in  which  the  Indian  title  shall 
become  extinct,  into  counties  and  townships,  subject,  however, 
to  such  alterations  as  may  subsequently  be  made  by  the  legis- 
lature.1 Moreover,  he  is  empowered  to  "  appoint  such  magis- 
trates and  other  civil  officers,  in  each  county  and  township,  as 
he  shall  find  necessary  for  the  preservation  of  the  peace  and 
good  order  in  the  same." 

The  supreme  court  is  composed  of  the  three  judges,  any  two 
being  competent  to  act ;  and  it  is  invested  with  common  law 
jurisdiction. 

In  place  of  a  legislature,  the  governor  and  judges,  or  a  ma- 
jority of  them,  are  required  to  adopt  and  publish  such  laws  of 
the  original  States,  criminal  and  civil,  as  may  be  necessary 
and  most  suitable  to  the  existing  circumstances;  which  laws 
shall  be  valid  throughout  the  territory  unless  disapproved  by 
Congress.2 


1  Governor  St.  Clair  claimed  the  right,  not  only  of  making  the  first  divi- 
sion of  the  territory  into  counties,  but  also  of  creating  new  counties  by 
subdivision.  This  led  to  a  controversy  between  him  and  the  assembly,  the 
latter  maintaining  that  the  governor's  power  ceased  with  the  creation  of 
the  original  counties.  The  question  was  finally  settled  by  Congress  unfavor- 
ably to  the  governor.  See  Smith,  St.  Clair  Papers,  I,  214 ;  II,  515  ff.;  Gra- 
ham, Legislation  in  N.  W.  Territory,  in  Ohio  Arch,  and  Hist.  Quart.,  I,  313, 
314-15 ;  Hinsdale,  The  Old  Northwest,  300. 

*The  Ordinance  gave  the  governor  and  judges  power  only  to  adopt  and 
publish  laws  of  the  original  states.  They  proceeded,  nevertheless,  to  enact 
new  ones ;  and  since  these  measures  were  not  formally  disallowed  by  Con- 
gress, they  were  enforced  as  if  valid :  Chase,  Hist.  Sketch,  in  Statutes,  I,  19 ; 
Graham,  Legislation  in  N.  W.  Territory:  Ohio  Arch,  and  Hist.  Quart.,  I,  305-6 ; 
Hinsdale,  The  Old  Northwest,  298 ;  Burnet,  Notes,  63-4.  But  on  May  24, 1794, 
the  House  of  Representatives  adopted  a  resolution  disapproving  the  laws 
of  the  territory  enacted  in  1792:  Annals  Sd  Congress,  1214;  American  State 
Papers,  Miscellaneous,  I,  82.  Later,  "a  joint  resolution  declaring  them  void 
was  read  twice  and  committed,  but  no  further  action  was  taken.  Governor 
St.  Clair  stated  that  it  passed  the  House,  but  was  rejected  by  the  Senate, 
because,  '  as  they  considered  them  all  ipso  facto  void,  they  thought  it  im- 
proper to  declare  any  of  them  so  by  an  act  of  the  legislature.' "  Dunn, 


410  Rise  of  the  County  in  the  Western  States. 

A  second  constitutional  stage  is  reached  as  soon  as  the  ter- 
ritory contains  five  thousand  free  male  inhabitants  of  full  age. 
The  power  of  legislation  is  then  transferred  to  a  general  assem- 
bly composed  of  the  governor,  legislative  council,  and  house 
of  representatives.  The  representatives  are  chosen  by  the 
people  for  a  term  of  two  years,1  on  the  basis  of  one  for  every 
five  hundred  free  male  inhabitants ;  but  only  residents  of  the 
district  possessed  therein  of  two  hundred  acres  of  land  in  fee 
simple  are  eligible.  The  council  is  composed  of  five  members 
appointed  by  Congress  from  ten  nominees  chosen  by  the  repre- 
sentatives, and  holding  office  for  five  years.  The  qualifications 
of  a  councilman  are  residence  and  a  freehold  of  five  hundred 
acres.  The  general  assembly  may  make  laws,  not  repugnant 
to  the  Ordinance,  and  prescribe  the  duties  of  all  magistrates 
and  other  civil  officers ;  but  no  legislative  act  shall  be  valid 
without  the  governor's  assent,  and  the  appointment  of  magis- 
trates and  civil  officers  is  still  vested  in  him. 

Such  are  the  principal  provisions  of  the  great  charter,  so 
far  as  they  relate  to  the  political  organization :  let  us  now  see 
how  the  local  machinery  was  developed  in  accordance  there- 
with.2 


Indiana,  273 ;  Annals  3d  Congress,  1223 ;  and  Smith,  St.  Glair  Papers,  II,  356. 
See  also  Howe,  Laws  and  Courts  of  Northwest  and  Indiana  Territories,  9.  The 
laws  of  1795  are  professedly  a  literal  transcript  of  the  statutes  adopted  :  Ib., 
9.  In  1792  the  governor  and  judges  were  authorized  to  repeal  the  laws 
adopted  by  them  whenever  they  should  "  be  found  to  be  improper  " :  U.  S. 
Statutes  at  Large,  I,  286.  "  The  laws  enacted  by  them  were  originally  printed 
in  four  volumes,  volume  1,  containing  the  laws  of  1788,  1790,  and  1791; 
volume  2,  containing  the  laws  of  1792;  volume  3,  the  first  book  printed  in 
the  territory,  containing  the  laws  of  1795,  commonly  known  as  the  Maxwell 
Code,  from  the  name  of  the  printer;  volume  4,  containing  the  laws  of 
1798  " :  Howe,  Laws  and  Courts,  6.  These  volumes  are  now  very  scarce ;  but 
in  1833,  the  laws  of  the  governor  and  judges  were  reprinted  in  the  collection 
which  I  have  cited  as  Chase's  Statutes  of  Ohio  and  the  Northwest  Territory. 

1  But  each  elector  is  required  to  have  a  freehold  in  fifty  acres. 

2  For  the  text  of  the  Ordinance,  see  Poore,  Charters,  I,  429  ff. ;  Chase,  Statutes 
of  Ohio  and  the  N.  W.  Territory,  I,  66-69 ;    United  States  Statutes  at  Large,  I, 
51-53 ;  Porter,  Outlines  of  U.  S.  Constitution,  63  ff. ;  Journals  of  Congress,  IV, 


The  Commissioner  System  in  the  Northwest  Territory.  411 


(b). —  The  Inauguration  of  Civit  Institutions. 

On  October  5,  1787,  General  Arthur  St.  Clair  was  chosen 
governor,  and  Winthrop  Sargent,  secretary,  of  the  territory ; 
and  soon  after  the  judges  were  appointed.1  The  governor 
arrived  in  the  new  colony  on  July  9,  1788,  and  immediately 
assumed  control.  But  it  was  not  until  July  15  that  the 
formal  inauguration  of  civil  authority  in  the  Northwest 
occurred.  On  that  day  the  commissions  of  the  governor, 
secretary,  and  judges,  as  also  the  fundamental  Ordinance,  were 
read  before  the  assembled  people  by  Secretary  Sargent ;  and 
Governor  St.  Clair  in  an  address  expounded  the  principles  of 
the  constitution  and  compact.2 

But  already,  three  months  before  the  formal  reign  of  law 
began,  local  self-government  had  been  established  on  the  Mus- 
kingum.  April  7,  1788,  a  band  of  pioneers,  veteran  officers 
and  soldiers  of  the  Revolution,  had  arrived  in  the  Mayflower 
of  the  West  at  the  site  of  Adelphia,  the  town  which  they  im- 
mediately founded.  But  this  village  was  presently  rechris- 
tened  Marietta3  in  honor  of  the  unfortunate  princess  who  had 
shown  constant  friendship  for  the  American  cause  in  the 


752;  St.  Clair  Papers,  II,  612-18;  Life  and  Journals  of  Manasseh  Culler,  II, 
419-27 ;  Mag.  of  West.  Hist.,  1, 56-9 ;  Albach,  Western  Annals,  466-72 ;  Cooper, 
American  Politics,  Book  IV,  10-13;  Curtis,  Hist,  of  the  Constitution,  I,  302  ff. 
(a  summary);  Williams,  Revised  Statutes  of  Ohio,  II,  1686-90;  Starr  and 
Curtis,  Annotated  Statutes  of  Illinois,  1885,  I,  42-6 ;  Donaldson,  The  Public 
Domain,  153-6;  Dillon,  Hist,  of  Indiana,  597-601. 

On  the  history  of  the  Ordinance,  in  addition  to  references  elsewhere  given 
(Chap.  IV,  I,  (a)  ),  see  Dunn,  Indiana,  177-218 ;  and  particularly  the  chap- 
ter on  the  "  Slavery  Proviso  " :  Ib.,  219-60.  Cf.  Winsor,  Nar.  and  Crii.  Hist., 
VII,  538. 

'St.  Claims  commission  dated  from  Feb.  1,  1788:  Walker,  Athens  County, 
88.  The  judges  were  appointed  Oct.  16,  1787 :  Burnet,  Notes,  38. 

1  The  inaugural  address  of  Gov.  St.  Clair  is  printed  by  Mr.  Smucker  in 
May.  of  West.  Hist.,  Sept.,  1888,  pp.  488-9. 

8  On  July  2:  Cox,  Ohio  Arch,  and  Hist.  Quart.,  II,  159;  Walker,  Athens 
County,  87  ;  Albach,  Western  Annals,  476. 


412  Rise  of  the  County  in  the  Western  States. 

struggle  for  independence,  but  who,  at  the  moment,  strangely 
enough,  was  doing  what  she  might  to  stifle  the  voice  of  civil 
liberty  in  France.  As  no  public  authority  had  yet  been  pro- 
claimed in  the  territory,  the  settlers,  in  the  spirit  of  true 
Englishmen,  proceeded  to  enact  laws  for  their  own  security 
and  governance.  These  ordinances — genuine  folk  laws  of  a 
genuine  folkmoot — were  then  nailed  to  an  oak  by  way  of 
promulgation ;  and  Return  Jonathan  Meigs — practically  the 
first  scirgerefa  in  the  West — was  appointed  to  administer 
them.1  And  precisely  similar  measures  for  self-help  were 
resorted  to  at  Losantiville,  the  future  Cincinnati,  founded  at 
the  close  of  the  same  year.  Here  also,  until  the  organization 
of  Hamilton  county  in  1790,  the  people  were  governed  by 
laws,  which  were  created  by  themselves  and  executed  by  a 
sheriff  of  their  own  choice.2 

(c). — The  First  County  Organization. 

The  new  colonies  were  established  under  the  very  eyes  of 
hostile  savages.  They  were  surrounded  by  a  fringe  of  Indian 
tribes  which,  though  generally  quiet,  were  restive  and  threat- 
ening ;  and  life  and  property  were  frequently  destroyed  by 
petty  incursions.3  Provision  for  military  defence,  therefore, 
became  the  primary  duty  of  the  newly  established  govern- 
ment. Accordingly,  on  July  25,  appeared  an  ordinance — the 
very  first  enactment  of  the  governor  and  judges — authorizing 
a  militia  organization.  And  here,  on  the  recurrence  of  similar 
circumstances,  the  history  of  primitive  New  England  is  re- 
peated. Both  the  frequency  of  trainings  and  the  requirement 
as  to  arms  remind  us  of  the  first  orders  of  the  general  court 


1  Colonel  Ebenezer  Sproat,  of  Washington  county,  was  the  first  sheriff 
appointed  after  the  arrival  of  Gov.  St.  Clair. 

2  Burnet,  Notes,  57. 

3  Cox,  Arch,  and  Hist.  Quart.,  II,  157 ;  Albach,  Western  Annals,  475  ff. ;  At- 
water,  History  of  Ohio,  132ff.;  Burnet,  Notes,  58,  etc. 


The  Commissioner  System  in  the  Northwest  Territory.  413 

of  Massachusetts.1  It  was  enacted  that  "  all  male  inhabitants 
of  the  age  of  sixteen  and  upwards,  shall  be  armed,  equipped, 
and  accoutred  in  the  following  manner ;  with  a  musket  and 
bayonet,  or  rifle,  cartridge  box  and  pouch,  or  powder  horn  and 
bullet  pouch,  with  forty  rounds  of  cartridges,  or  one  pound  of 
powder  and  four  pounds  of  lead,  priming  wire  and  brush  and 
six  flints.  .  .  And  whereas  the  assembling  of  the  members  of 
community  at  fixed  periods,  conduces  to  health,  civilization,  and 
morality  ;  and  such  assembling  without  arms  in  a  newly  settled 
country  may  be  attended  with  danger ;  therefore  the  corps  shall 
be  paraded  at  ten  o'clock  in  the  morning  of  each  first  day  of 
the  week,  armed,  equipped,  and  accoutred  as  aforesaid,  in  con- 
venient places  next  adjacent  to  the  place  or  places  .  .  .  as- 
signed for  public  worship,"  and  at  other  times  and  places,  "  as 
the  commander-in-chief  may  direct." 2 

In  171)1  Saturday  instead  of  Sunday  was  made  the  regular 
training  day ;  but  every  militiaman  attending  public  worship 
on  the  Sabbath  was  required  to  go  armed  and  equipped  accord- 
ing to  law  "  as  if  he  were  marching  to  engage  the  enemy."3 

On  the  day  following  the  publication  of  the  militia  act — 
the  twenty-sixth  of  July — Washington  county  was  created  by 
proclamation  of  the  governor.4  This  is  the  oldest  county  west 


'See  above  Chap.  VII,  IV. 

•Chase,  Statutes,  I,  92. 

'Chase,  Statutes,  I,  114.  In  1799  the  first  territorial  assembly  required 
trainings  to  be  held  every  two  months,  except  from  January  to  March  in- 
clusive :  76.,  249. 

*  Hamilton,  Knox,  and  St.  Glair  counties  were  organized  in  1790 ;  Wayne, 
in  1796;  Adams  and  Jefferson,  in  1797;  Ross,  in  1798.  Of  these,  Knox 
corresponded  roughly  to  Indiana;  St.  Clairto  I  llinois  and  Wisconsin  ;  while 
Wayne  comprised  northern  Ohio  and  Indiana,  the  northeast  corner  of 
Illinois,  the  eastern  edge  of  Wisconsin,  and  all  of  Michigan :  See  the  map 
of  Wayne  county  in  Farmer,  Hist,  of  Detroit  and  Mich.,  119.  Cf.  Graham, 
in  Ohio  Arch,  and  Hist.  Quart.,  I,  309-10;  Smucker,  in  Mag.  of  West.  Hist., 
I,  207-8.  Howe's  Historical  Coll.  of  Ohio  contains  an  account  of  the  organi- 
zation and  history  of  each  of  the  Ohio  counties. 

However  none  of  the  counties  created  by  Gov.  St.  Clair  possessed  such 
generous  dimensions  as  the  county  of  Illinois,  established  by  Virginia  in 


414  Rise  of  the  County  in  the  Western  States. 

of  Pennsylvania,  and,  like  other  counties  subsequently  formed, 
it  was  originally  of  vast  extent,  comprising  all  the  region  ceded 
by  the  Indians  east  of  the  Scioto,  or  about  one  half  of  the 
present  state  of  Ohio.1  A  few  days  later,  on  August  23,  an 
act  appeared  providing  for  county  courts  of  quarter  sessions 
and  common  pleas ;  and  soon  after  a  clerk,  sheriff,  and  judges 
of  probate  and  common  pleas  were  appointed. 

The  mechanism  of  the  first  county  was  now  ready  for  opera- 
tion. Accordingly  on  the  second  of  September,  amidst  solemn 
pageantry  and  ceremony,  the  court  of  common  pleas  began  its 
first  session.  Dr.  Manasseh  Cutler,  author  of  the  Ordinance, 
invoked  a  divine  blessing ;  the  commissions  of  the  judges, 
clerk,  and  sheriff  were  read ;  and  then  the  sheriff,  Colonel 
Ebenezer  Sproat,  proclaimed  :  "  O,  yes  !  a  court  is  opened  for 
the  administration  of  even-handed  justice,  to  the  poor  and  the 
rich,  to  the  guilty  and  the  innocent,  without  respect  of  per- 
sons ;  none  to  be  punished  without  trial  by  their  peers,  and 
then  in  pursuance  of  the  laws  and  evidence  in  the  case." 2 

Thus  it  is  seen  that  the  builders  of  1788  were  conscious  that 
they  were  laying  the  foundations  of  a  noble  edifice;  but  it 
may  be  doubted  whether,  in  their  wildest  dreams,  they  were 
able  to  conceive  either  the  magnitude  or  the  splendor  which 
the  structure  would  attain  in  a  century  to  come.3 


1778,  to  assert  her  chartered  rights  to  the  western  domain.  This  county, 
though  its  boundaries  are  not  defined,  would  really  comprise,  not  only  nearly 
the  whole  Northwest  Territory,  but  also  undefined  regions  beyond.  See 
Hening,  Statutes,  IX,  552-5. 

1This  proclamation — which  determined  the  general  form  of  many  hun- 
dreds of  future  proclamations  for  the  formation  of  counties  in  the  West — is 
printed  in  Albach's  Western  Annals,  476-7  ;  also  in  Walker's  Athens  County, 
93-4. 

2  See  the  description  of  the  ceremony  in  Smith,  St.  Clair  Papers,  I,  148-9  ; 
Cox,  Ohio  Arch,  and  Hist.  Quart.,  II,  159  f.;  Albach,  Western  Annals,  477-8. 
On  Sept.  9,  the  first  court  of  quarter  sessions  was  opened  :  Hildreth,  Pioneer 
History,  233;  Smith,  St.  Clair  Papers,  I,  149.' note  2. 

3  On  the  planting  and  development  of  civil  institutions  in  the  Northwest 
Territory,  see  Smith,  St.  Clair  Papers,  1, 137  ff. ;  Farmer,  Hist,  of  Detroit  and 


The  Commissioner  System  in  the  Northwest  Territory.  4 1 6 


(<i). — Judicial  Administration. 

The  county  organization  as  gradually  established  in  the 
Northwest  Territory  was  modelled  on  the  type  which  had 
generally  prevailed  during  the  colonial  era.  But  there  was  a 
decided  retrogression  as  compared  with  the  contemporary  insti- 
tution in  New  York  and  Pennsylvania.  For,  in  accordance 
with  the  provisions  of  the  Ordinance,  it  was  wholly  central- 
ized, the  right  of  appointment  to  all  positions  being  vested  in 
the  governor.  With  the  exception  of  the  elective  principle, 
however,  the  legal  system  of  Pennsylvania,  in  this  as  in  other 
respects,  was  usually  imitated  by  the  territorial  legislation, 
though  the  traces  of  southern,  and  New  England  influences  are 
not  wanting. 

Besides  the  high  sheriff  already  mentioned,  the  officers  of 
the  county  were  a  coroner,1  a  treasurer,2  a  recorder  of  deeds,3  a 
judge  of  probate,  and  the  justices  of  the  county  courts. 

The  judicial  system  of  the  county  consisted  of  five  classes 
of  tribunals  :  a  court  of  common  pleas,  a  court  of  general  quar- 
ter sessions,  a  court  of  probate,  a  court  of  orphans,  and  the 
courts  of  the  single  justices  of  the  peace. 


Mich.,  95  ff.,  179  ff.,  189  ff. ;  Dunn,  Indiana,  261  ff. ;  Hinsdale,  The  Old  North- 
west, 286  ff'. ;  Judge  Joseph  Cox's  Marietta  Centennial  Address :  Ohio  Arch, 
and  Hist.  Quart.,  II,  150-73  :  Graham;  The  Legislation  in  the  Northwest  Terri- 
tory, Ib.,  1, 303-18 ;  Chase,  Preliminary  Sketch  of  the  History  of  Ohio,  in  Statutes, 
1, 5-48 ;  Howe,  Laws  and  Courts  of  Northwest  and  Indiana  Territories ;  Smucker, 
Our  Territorial  Statesmen,  in  Mag.  of  West.  Hist.,  I,  207  ff. ;  Our  First  Court, 
Ib.,  IX,  Nov.  1888 ;  Centennial  Anniversary,  Ib.,  VII,  April,  1888;  and  VIII, 
Sept.,  1888;  Albach,  Western  Annals.  473-9  ;  McMasters,  History  of  the  People 
of  U.  S.,  I,  513 ff1.;  Perkins,  Fifty  Years  of  Ohio:  N.  A.  Review,  XLVII,  15, 
22,  29,  41;  Walker,  Athens  County,  83  ff.;  Atwater,  Hist,  of  Ohio,  128  ff; 
Burnet,  Notes,  38-65;  Blanchard,  Discovery  and  Conquests,  187;  Monette, 
Hist,  of  the  Discovery  and  Settlement,  II,  236-64. 

'The  act  of  Dec.  21,  1788,  provides  for  the  appointment  of  one  coroner 
in  each  county :  Chase,  Statutes,  I,  102.  Cf.  the  act  of  1795 :  /&.,  198. 

•Act  of  1792:  Chase,  Statutes,  I,  118. 

s  The  recorder's  office  was  created  in  1795 :  Chase,  Statutes,  I,  167-8. 


416  Rise  of  the  County  in  the  Western  States. 

The  courts  of  orphans1  and  probate2  were  invested  with  the 
usual  powers.  Out  of  sessions  the  single  justice  of  the  peace 
could  take  recognizances  and  perform  the  ordinary  duties  of  a 
peace  magistrate;  and  he  was  also  authorized  to  determine 
petty  offences  punishable  by  fine.3 

The  court  of  common  pleas  was  composed  of  not  less  than 
three  nor  more  than  five  judges,  appointed  and  commissioned 
by  the  governor.  It  was  held  twice  a  year  at  the  same  place 
as  the  quarter  sessions ;  and  exercised  jurisdiction  in  all  civil 
suits,  with  appeal  to  the  court  of  the  territory.  But  one  or 
more  of  the  judges  could  try  actions  for  debt  to  the  amount  of 
five  dollars.4 

The  court  of  quarter  sessions  possessed  substantially  the  same 
character  as  the  English  sessions  of  the  seventeenth  century. 
It  was  composed  of  justices  of  the  peace  commissioned  for  the 
county  at  large,  of  whom  not  less  than  three  nor  more  than 
five  were  specially  designated  to  hold  the  court.  Any  three, 
one  being  of  the  quorum,  were  competent  to  act.5  Four  regular 
sessions  and  as  many  special  sessions  as  the  justices  saw  fit  were 
held  each  year.  The  court  exercised  criminal  jurisdiction  in  all 
cases  not  involving  life  or  limb,  imprisonment  for  more  than 
one  year,  or  the  forfeiture  of  chattels,  goods,  or  tenements.6 

(e). — A  Barbarous  Criminal  Code. 

Few  communities  have  been  founded  under  more  favorable 
conditions  than  those  of  the  Northwest  Territory.7  Civil 


1  Established  by  the  act  of  1795 :  Chase,  Statutes,  I,  159. 

"Established  Aug.  30,  1788:  Chase,  Statutes,  I,  96. 

3  Chase,  Statutes,  I,  94. 

*  Chase,  Historical  Sketch,  26-7;  Statutes,  I,  95.  In  1790  the  maximum 
number  of  judges  of  common  pleas  was  fixed  at  seven  and  the  number  of 
terms  increased  to  four :  Ib.,  107. 

5  The  justices  of  the  quorum  in  each  county  were  increased  to  nine  in  1790 : 
Chase,  Statutes,  1,  107. 

6  Chase,  Statutes,  I,  94-6.     Cf.  the  act  of  1795 :  Ib.,  147-8. 

7  "  No  colony  in  America  was  ever  settled  under  such  favorable  auspices 
as  that  which  has  just  commenced  at  the  Muskingum.     Information,  prop- 


The  Commissioner  System  in  the  Northwest  Territory.  417 

liberty  was  secured  and  popular  education  was  encouraged  by 
the  incomparable  provisions  of  the  compact.  The  settlers, 
both  magistrates  and  people,  were  conspicuous  for  intelligence 
and  morality.  Nevertheless,  how  little  real  progress  had  yet 
been  made  in  social  science,  is  strikingly  revealed  by  the  char- 
acter of  the  penal  legislation.  Many  years  after  the  coloniza- 
tion began,  the  local  tribunals  were  required  to  administer  the 
same  barbarous  punishments  as  had  characterized  the  quarter 
sessions  of  both  Old  and  New  England  in  the  seventeenth 
century.  Every  county  had  its  stocks,  pillory,  whipping  post, 
and  sometimes  more  cruel  instruments  of  torture.1 

By  the  act  of  September  6,  1788 — the  first  criminal  code 
established  in  the  Northwest2 — flogging  and  the  pillory  are 
lavishly  prescribed  for  many  offences.  Thus,  for  obstructing 
the  authority  of  a  magistrate,  the  offender  shall  be  fined  not 
more  than  three  hundred  dollars  and  receive  not  to  exceed 
thirty-nine  lashes.  For  larceny,  the  convicted  party,  besides 
restoring  double3  the  value  of  the  thing  stolen,  is  required  to 
pay  a  fine  of  the  same  amount,  or  be  whipped  not  exceeding 
thirty-nine  stripes,  according  as  the  court  shall  determine. 
And  the  legislator's  conception  of  the  pecuniary  equivalence 
of  physical  suffering  may  perhaps  be  inferred  from  the  provi- 
sion that  a  person  guilty  of  perjury  or  subornation  of  perjury 
"  shall  be  fined  iu  a  sum  not  exceeding  sixty  dollars,  or  be 
whipped  not  exceeding  thirty-nine  stripes,  and  shall  moreover 
be  set  in  the  pillory  for  a  space  of  time  not  exceeding  two 
hours,"  and  be  forever  incapable  of  holding  office,  giving 
testimony,  or  serving  as  a  juror.4 


erty,  and  strength  will  be  its  characteristics.  I  know  many  of  the  settlers 
personally,  and  there  never  were  men  better  calculated  to  promote  the  welfare 
of  such  a  community  " :  Washington's  letter  to  Henderson :  Sparks,  IX,  385. 

1  Chase,  Statutes,  I,  122-3  (1792). 

1  Chase,  Statutes,  I,  97-101. 

'Or  the  thing  stolen,  in  addition  to  its  value. 

4  The  disparity  between  the  amount  of  the  fine  and  the  severity  of  the 
corporal  punishment  is,  however,  not  so  strikingly  absurd  in  this  instance 

27 


418  Rise  of  the  County  in  the  Western  States. 

The  same  number  of  stripes  is  prescribed  for  the  burglar 
whose  attempt  at  theft  has  not  succeeded ;  and  he  is  also  re- 
quired to  find  sureties  for  good  behavior  or  go  to  jail  for  a 
period  not  exceeding  three  years.  If  successful,  in  addition  to 
the  foregoing  penalties,  he  shall  be  fined  in  treble  the  value  of 
the  property  stolen,  one-third  'to  the  territory  and  two-thirds 
to  the  injured  party.  And  if  he  commit  or  attempt  to  commit 
violence,  or  if  he  be  caught  with  arms  in  his  hands,  with  the 
plain  intent  to  do  injury,  he  may  be  imprisoned  in  any  jail 
in  the  county  for  a  term  of  forty  years.  But  even  this  is  not 
sufficient.  His  family  must  be  red.ucecl  to  beggary  and  a  bribe 
oifered  for  conviction  ;  since  all  his  property,  real  and  personal, 
is  forfeited  to  the  territory,  the  injured  party  to  be  recom- 
pensed therefrom.  Moreover  this  last  penalty  is  prescribed 
in  the  case  of  arson ;  and  the  offender,  in  addition,  shall  be 
whipped,  put  in  the  pillory,  and  confined  in  jail  for  a  period 
of  not  more  than  three  years. 

The  governor  and  judges  were  not  quite  so  thoroughly  im- 
bued with  the  spirit  of  the  Levitical  law,  as  were  the  framers 
of  the  first  codes  of  New  Haven  and  Connecticut.1  Disobedi- 


as  in  the  law  of  1795  for  the  punishment  of  larceny  under  a  dollar  and  a 
half.  It  is  provided  that  any  person  found  guilty  of  such  an  offence  before 
any  two  justices  of  the  county,  shall  "be  immediately  and  publicly  whipped, 
upon  his  or  her  bare  back,  not  exceeding  fifteen  lashes ;  or  be  fined'  in  any 
sum,  at  the  discretion  of  the  said  justices,  not  exceeding  three  dollars ;  and, 
if  able,  to  make  restitution,  besides,  to  the  party  wronged:  paying  also  the 
charges  of  the  prosecution  and  whipping :  or,  otherwise,  shall  be  sent  to  the 
work-house,  to  be  kept  at  hard  labor :  and  for  want  of  such  work-house .  to 
be  committed  to  prison,  for  such  charges,  for  a  term  not  exceeding  twelve 
days."  Chase,  Statutes,  I,  147.  See  also  Dillon,  Hist,  of  Indiana,  375. 

1 "  If  any  child,  or  children,  above  sixteen  years  old,  and  of  competent 
understanding,  shall  curse,  or  smite,  his,  her,  or  their  naturall  father,  or 
mother,  each  such  child  shall  be  put  to  death,  Exod.  21.  17.  Levit.  20.  9. 
Exod.  21.  15,  unlesse  it  be  proved,  that  the  parents  have  been  very  un- 
christainly  negligent  in  the  education  of  such  child,  or  children,  or  so  pro- 
voked them  by  extream  and  cruell  correction,  or  usage,  that  they  have  been 
urged  or  forced  thereunto,  to  preserve  themselves  from  death  or  maiming  "  : 
New  Haven  Code,  1655:  Trumbull,  Blue  Laws,  201.  Alike  provision  in 


The  Commissioner  System  in  tlie  Northwest  Territory.  419 

ence  to  parents  was  not  made  a  capital  crime.  But  the  fol- 
lowing provision  is  certainly  remarkable,  not  to  say  patriarchal, 
in  character.  It  was  enacted  that,  "  if  any  children  or  ser- 
vants shall  contrary  to  the  obedience  due  to  their  parents  or 
masters,  resist  or  refuse  to  obey  their  lawful  commands,  upon 
complaint  thereof  to  a  justice  of  the  peace,  it  shall  be  lawful 
for  such  justice  to  send  him  or  them  so  offending,  to  the  gaol 
or  house  of  correction,  there  to  remain  until  he  or  they  shall 
humble  themselves  to  the  said  parents,  or  masters  satisfaction. 
And  if  any  child  or  servant  shall  contrary  to  his  bounden 
duty  presume  to  assault  or  strike  his  parent  or  master,  upon 
complaint  and  conviction  thereof,  before  two  or  more  justices 
of  the  peace,  the  offender  shall  be  whipped  not  exceeding  ten 
stripes." ! 

The  penal  laws  of  the  Northwest  Territory  remained  in 
force  in  Indiana  after  the  erection  of  that  territory  in  1800; 
and  new  measures  were  enacted  in  the  same  spirit.2 

By  the  early  legislation  of  Illinois,  likewise,  branding  with 
a  hot  iron  was  authorized ;  and  stripes  upon  the  naked  body, 
varying  in  number  from  ten  to  five  hundred,  according  to  the 
nature  of  the  offence,  were  prescribed.3 

Similar  laws  existed  in  the  territory  of  Michigan.     Persons 


almost  exactly  the  same  words  is  contained  in  the  "  Capital  Laws  "  of  Con- 
necticut, 1642:  Trumbull,  Blue  Laws,  69.  And  it  was  incorporated  in  the 
Duke  of  York's  Laws,  15. 

1  The  harsh  criminal  code  put  in  force  by  the  governor  and  judges  in  1788, 
was  re-enacted  by  the  assembly  of  1799:  Chase,  Statutes,  I,  212;  and  whip- 
ping, the  pillory,  and  ear-cropping  were  retained  in  the  laws  of  Ohio  until 
1815:  Chase,  Statutes,  I,  614  ff.  (1809),  856  ff.  (1815).  See  an  interesting 
account  of  the  early  penal  legislation,  by  Harley  Barnes,  The  Whipping  Post 
in  Ohio :  Mag.  of  West.  Hist.,  II,  192-6 ;  and  H.  B.  Curtis'  description  of  the 
flogging  of  John  Courson  for  stealing  flour,  at  Newark,  Licking  County, 
1812 :  Pioneer  Days  in  Central  Ohio,  in  Arch,  and  Hist.  Quart.,  I,  250-1.  Cf. 
Howe,  The  Laws  and  Courts  of  Northwest  and  Indiana  Territories,  7. 

*  Thus  bigamy  was  made  a  capital  crime :  Howe,  The  Loans  and  Courts,  1 5. 
Cf.  Dillon,  Hist,  of  Indiana,  421. 

1  Davidson  and  Stuve*,  Hist,  of  III.,  286.  Arson  and  horse-stealing,  on 
second  conviction,  were  punished  with  death  :  /&.,  287. 


420  Rise  of  the  County  in  the  Western  States. 

practising  witchcraft  were  punished  by  fine  not  exceeding 
fifty  dollars,  or  by  imprisonment  for  not  more  than  three 
months.1  On  the  order  of  a  single  justice  of  the  peace,  petty 
offenders  were  publicly  whipped,  and  their  services  might  be 
sold  at  auction  to  the  highest  bidder  for  a  period  of  three 
months  or  less.2  "  The  whipping  post  disgraced  the  Detroit 
market  house  until  1831,  when  this  relic  of  barbarism  was 
forever  removed."3 


(/). — Sabbath  Laws  and  the  Debtor's  Prison. 

The  practice  of  imprisonment  for  debt  was  perpetuated  in 
all  its  harshness  and  the  revolting  scenes  of  the  Marshalsea  or 
the  Fleet  were  re-enacted  on  western  soil.  By  an  act  of  the 
governor  and  judges  of  the  Northwest  Territory  in  1795,  the 
unfortunate  debtor,  for  any  sum  less  than  five  dollars,  is  made 
liable  to  indefinite  imprisonment.  On  complaint  before  any 
justice  of  the  common  pleas  or  quarter  sessions,  if  the  defendant 
do  not  produce  effects  sufficient  to  satisfy  the  sum  in  execution, 
the  constable  is  "  required  to  take  such  defendant  into  the  jail 
of  the  proper  county ;  and  the  sheriff  or  keeper  of  such  jail 
...  is  required  to  receive  the  person  so  taken  in  execution, 
and  him  safely  keep,  till  the  sum  recovered,  with  costs,  be 
paid,  or  satisfaction  made  by  goods  or  otherwise."4  Subse- 
quently the  impecunious  debtor  was  graciously  allowed  to 
substitute  servitude  for  imprisonment.  It  was  provided  that 
no  person  shall  be  kept  in  jail  after  the  second  day  of  the 
session  next  following  the  day  of  commitment,  unless  the 
plaintiff  make  it  appear  that  the  debtor  has  undisclosed  estate. 


1  Territorial  Laws,  I,  113  (1816). 

2  Farmer,  Hist,  of  Detroit  and  Mich.,  190.     See  the  act  of  the  governor  and 
judges  of  Michigan,  July  27,  1818  :  Territorial  Laws,  11,  138-9. 

3  Campbell,  Pol.  Hist,  of  Mich.,  405. 

*  Chase,  Statutes,  1,  143.     For  the  procedure  in  case  of  greater  dehts,  see 
16.,  144  f. 


The  Oommixsioner  System  in  the  Northwest  Territory.  421 

If  no  such  estate  be  found,  then,  if  the  plaintiff  require  it,  the 
debtor  shall  "make  satisfaction  by  personal  and  reasonable 
servitude  "  for  a  period  not  exceeding  seven  years,  according  to 
the  discretion  of  the  court.  This  penalty,  however,  is  restricted 
to  unmarried  debtors1  under  forty  years  of  age,  "  unless  it  may 
be  the  request "  of  persons  above  that  age ;  but  "  if  the  debtor 
be  married,  and  under  the  age  of  thirty-six,  the  servitude 
shall  be  for  five  years  only."  In  either  case  if  the  creditor 
do  not  accept  the  "satisfaction"  the  debtor  shall  be  dis- 
charged.2 

An  act  of  1799  for  the  relief  of  prisoners  for  debt  provides 
that,  where  any  such  person  establishes  the  fact  that  he  has 
not  sufficient  estate  to  support  himself  while  in  jail,3  he  may 
be  set  free ;  but  in  that  event,  the  execution  creditor  is  liable 
for  the  jail  fees  and  cost  of  diet,  and  these  are  constituted  a 


1  Bachelors  fared  ill  under  the  early  laws.  The  measure  just  cited  is  not 
the  only  one  which  reminds  us  of  the  Roman  legislation  of  the  early 
Empire.  Thus  by  an  act  for  regulating  county  levies,  passed  by  the  gov- 
ernor and  judges  of  Indiana  Territory,  1803,  it  was  provided  that,  "a  single 
man  above  the  age  o{  twenty-one  years,  not  having  property  to  the  amount 
of  four  hundred  dollars  and  neglecting  to  pay  the  tax  assessed  against  him, 
should  be  committed  to  the  county  jail  '  where  he  shall  remain  until  the 
said  tax  shall  be  paid,  unless  some  reputable  person,  in  the  opinion  of  the 
sheriff,  shall  be  forth-coming  therefor.'  Perhaps  this  law  was  not  enacted 
for«  revenue  only,  but  also  to  encourage  marrying.  At  any  rate  to  pay, 
marry,  or  run  away,  were  the  only  alternatives  presented  to  the  young  man 
of  that  day  "  :  Howe,  Laws  and  Courts,  13-14.  See  also  Davidson  and  Stuve", 
History  of  III.,  287. 

1  Chase,  Statutes,  I,  203-4. 

3  He  was  required  to  subscribe  the  following  "  iron-clad  "  oath  :  "  I  .  .  do 
in  the  presence  of  Almighty  God,  solemnly  swear  (or  affirm  as  the  case  may 
be)  that  I  have  not  any  estate,  real  or  personal,  in  possession,  reversion,  or 
remainder,  sufficient  to  support  myself  in  prison,  or  to  pay  prison  charges, 
and  that  I  have  not,  since  the  commencement  of  this  suit  against  me,  or  at 
any  other  time,  directly  or  indirectly  sold,  leased,  or  otherwise  conveyed  or 
disposed  of  to,  or  entrusted  any  person  or  persons  whatsoever,  with  all  or 
any  part  of  the  estate,  real  or  personal,  whereof  I  have  been  the  lawful 
:po8se8sor,"  with  intent  to  keep  it  from  the  creditor:  Chase,  Statute*,  I, 
259. 


422  Rise  of  the  County  in  the  Western  States. 

debt  for  which  the  person  discharged  is  responsible  just  as  for 
other  obligations.1 

Finally  it  may  be  noted  that  the  legislators  of  the  North- 
west Territory  did  not  neglect  the  enactment  of  laws  for  the 
punishment  of  profanity  and  sabbath-breaking.  Their  first 
measure  on  these  subjects  is  unique,  and  will  recall  the  moral 
admonitions  incorporated  in  the  capitularies  of  Charles  the 
Great : 

"Whereas  idle,  vain  and  obscene  conversation,  profane 
cursing  and  swearing,  and  more  especially  the  irreverently 
mentioning,  calling  upon,  or  invoking  the  sacred  and  supreme 
Being,  by  any  of  the  divine  characters  in  which  he  hath 
graciously  condescended  to  reveal  his  infinitely  beneficent  pur- 
poses to  mankind,  are  repugnant  to  every  moral  sentiment, 
subversive  of  every  obligation,  inconsistent  with  the  ornaments 
of  polished  life,  and  abhorrent  to  the  principles  of  the  most 
benevolent  religion.  It  is  expected  therefore,  if  crimes  of  this 
kind  should  exist,  they  will  not  find  encouragement,  counte- 
nance, or  approbation  in  the  territory.  It  is  strictly  enjoined 
upon  all  officers  and  ministers  of  justice,  upon  parents,  and 


1  Chase,  Statutes,  I,  259.  Similar  laws  were  enacted  in  Illinois  Territory  : 
Davidson  and  Stuv6,  Hist,  of  III.,  287.  Imprisonment  for  debt  prevailed  in 
Michigan  until  1822,  when  it  was  conditionally  abolished  whenever  estates 
were  assigned  for  the  benefit  of  creditors:  Territorial  Laws,  \,  83ft.,  206 ff., 
255  ff. ;  Farmer,  Hist,  of  Detroit  and  Mich.,  177. 

By  an  act  of  1819,  the  English  institution  of  prison  "bounds"  was  there 
introduced.  It  is  provided,  "  That  every  person  imprisoned  for  debt,  either 
on  mesne  process  or  execution,  shall  be  permitted  and  allowed  the  privilege 
of  bounds,  which  are  or  may  be  laid  off  and  assigned  by  metes  and  bounds 
around  or  adjoining  each  county  jail,  by  the  judges  of  the  county  courts  in 
each  of  their  respective  counties  :  Provided,  The  same  do  not  extend  in  any 
direction  from  the  said  jail  more  than  seventeen  hundred  and  sixty  yards ; 
but  such  prisoner  shall  in  no  instance,  pass  over  or  without  such  limits." 
But  this  indulgence  is  granted  only  to  a  deblor  who  can  give  a  bond,  with 
two  approved  sureties,  in  double  the  sum  for  which  he  stands  committed  : 
Mich.  Territorial  Laws,  II,  155. 

In  Michigan  the  poor  were  sold  by  the  sheriff  to  the  lowest  bidder : 
Territorial  Laws,  II,  115  (1817).  Cf.  Wis.  Hist.  Coll.,  II,  95. 


The  Commissioner  System  in  the  Northwest  Territory.  423 

others,  heads  of  families,  and  upon  others  of  every  description, 
that  they  abstain  from  practices  so  vile  and  irrational ;  and 
that  by  example  and  precept,  to  the  utmost  of  their  power, 
they  prevent  the  necessity  of  adopting  and  publishing  laws, 
with  penalties  upon  this  head.  And  it  is  hereby  declared  that 
government  will  consider  as  unworthy  its  confidence  all  those 
who  may  obstinately  violate  these  injunctions."  A  similar 
"  injunction  "  is  likewise  laid  down  for  the  proper  observance 
of  the  "first  day."1 

The  foregoing  measure  can  scarcely  be  styled  a  "  law  with- 
out a  sanction,"  for  the  rather  broad  hint  that  government 
patronage  may  be  withheld,  though  a  novel,  is  perhaps  not  an 
entirely  ineffective  penalty  for  the  moral  delinquencies  of 
American  citizens.  However,  in  1799,  the  assembly  found  it 
expedient  to  resort  to  more  commonplace  methods.  Every 
"  profane  curse,  damn,  or  oath  "  was  then  made  punishable  by 
fine,  or  in  default  of  payment,  by  labor  upon  the  highway 
under  direction  of  the  road  overseer ;  and  sabbath-breaking 
was  forbidden  under  similar  penalties.2 

(g), — Civil  Administration  of  the  Quarter  Sessions  and 
Tax  Commissioners. 

As  usual  the  justices  in  quarter  sessions  were  constituted  the 
general  administrative  authority  of  the  county.  The  care  of 
highways  devolved  upon  them  ;3  they  were  entrusted  with  the 
licensing  of  taverns4  and  the  fixing  of  rates  for  ferries;8  and 
they  had  charge  of  the  poor.6  They  could  also  divide  the 


1  Law  respecting  crimes,  Sept.  6,  1788 :  Chase,  Statutes,  1, 101.  Mr.  Howe, 
Laws  and  Courts,  8,  thinks  this  the  only  known  instance  of  a  "  threat  to 
legislate  by  a  legislative  body." 

1  Chase,  Statutes,  I,  228. 

1  Chase,  Statutes,  I,  120-1,  260  ff. 

*  Chase,  Statutes,  I,  294. 

s  Chase,  Statutes,  I,  219-20. 

'  Chase,  Statutes,  I,  176-8.    The  Pennsylvania  statute  was  adopted. 


424  Rise  of  the  County  in  the  Western  States. 

county  into  election  districts,1  lay  out  townships,  and  appoint 
clerks,  constables,2  overseers  of  the  poor,3  fence  viewers,4  and 
other  township  officers. 

To  the  justices  also  belonged  the  supervision  of  taxation 
and  finance ;  but  this  function  was  ultimately  entrusted  to  a 
board  of  commissioners — a  body  which  was  gradually  differ- 
entiated. Thus,  in  1792,  it  was  made  the  duty  of  the  quarter 
sessions  to  calculate  the  levy  required  for  each  year  subject  to 
the  approval  of  the  territorial  judges.  One  or  more  commis- 
sioners for  each  township  were  to  be  appointed  by  the  judges 
of  common  pleas ;  and  these  commissioners  were  required  to 
assemble  annually  and  apportion  the  tax  upon  the  respective 
towns  according  to  "  wealth  and  numbers."  The  quotas  were 
then  assessed  in  each  town  by  three  assessors  likewise  appointed 
by  the  common  pleas.5  This  is  the  germ  of  the  county  com- 
missioner system  in  the  West.  But  in  J  795  the  Pennsylvania 
plan  was  introduced.  An  assessor  was  to  be  elected  in  each 
town,  for  which  also  three  commissioners,  one  retiring  annu- 
ally, were  to  be  appointed  by  the  quarter  sessions.  The  asses- 
sors and  commissioners,  in  joint  assembly,  were  constituted  a 
county  board  of  audit ;  and  they  were  authorized  to  appoint 
the  tax  collectors.6  This  is  the  second  stage  in  the  differentia- 
tion of  the  board  of  commissioners  in  the  West. 

A  third  step  was  taken  by  the  first  general  assembly  of  the 
territory,  1799,  when  a  county  board  of  three  commissioners 
was  created  and  entrusted  with  the  levy  and  assessment  of 
taxes  and  the  auditing  of  claims.  But  the  quarter  sessions 
were  still  the  higher  fiscal  authority.  They  could  appoint  the 


1  Chase,  Statutes,  I,  304.  % 

2  See  the  act  of  the  first  assembly,  1799 :  Chase,  Statutes,  I,  240,  where  the 
sessions  are  authorized  to  appoint  constables  as  census  takers. 

3  Chase,  Statutes,  I,  107-9,  175-82. 

4 Chase,  Statutes,  I,  112.     Here  the  fence  viewer  is  styled  "appraiser  of 
damages  and  viewers  of  inclosures."     Cf.  76.,  184,  216. 

5  Chase,  Statutes,  I,  118-19. 

6  Chase,  Statutes,  I,  168-71. 


The  Commissioner  System  in  the  Northwest  Territory.  425 

commissioners,  hear  appeals  from  them,  and  let  contracts  for 
enmity  buildings;  but  the  commissioners  might  appoint  their 
nun  secretary  or  clerk,  audit  accounts  under  contracts,  and 
take  final  appeal  from  the  decisions  of  the  sessions  to  the 
supreme  court  of  the  territory.1 


(h). — Emancipation  of  the  Oounty. 

Such  was  the  character  of  county  administration  in  the 
Northwest  Territory ;  and  it  is  plain  that  the  people  were 
allowed  very  little  direct  voice  in  the  matter ;  though,  on  the 
advent  of  the  town-meeting,  with  authority  to  choose  local 
officers,  the  means  of  local  self-government  was  in  part  sup- 
plied.2 But  under  the  first  legislation  of  Ohio,  after  that 
portion  of  the  territory  was  erected  into  a  state,  a  much  more 
popular  system  was  introduced.  The  old  courts  of  probate, 
orphans,  common  pleas,  and  quarter  sessions  were  at  once 
abolished,  and  their  jurisdiction  and  powers  vested  in  new 
courts  of  common  pleas  consisting  of  three  associate  justices  in 
each  county,  presided  over  by  a  circuit  judge.3  All  county 
officers  were  soon  made  elective;4  and,  in  J804,  a  board  of 
three  elective  county  commissioners  was  instituted.  In  this 
body  was  vested  the  fiscal  and  general  administrative  authority 
of  the  old  quarter  sessions,  \\  hich  had  been  temporarily  lodged 
in  the  courts  of  common  pleas.8  With  this  event  that  central- 
ized type  of  free  county  government,  which  has  since  found  its 
way  into  many  western  states  and  territories,  was  organically 
complete.  Furthermore  the  early  institutional  history  of 
Indiana  and  Illinois,  with  respect  to  the  subject  under  con- 
sideration, is  merely  a  continuation  of  that  of  the  Northwest 


1  Chase,  Statutes,  I,  274-77. 
1  See  above  Chap.  IV,  I,  (6). 
3  Chase,  Statutes,  I,  356-60. 
*  Chase,  Statutes,  I,  362,  364. 
5  Chase,  Statutes,  I,  410-12,  369. 


426  Rise  of  the  County  in  the  Western  States. 

Territory ;  and  in  each  instance,  as  in  Ohio,  the  free  county, 
with  elective  officers  and  a  board  of  commissioners,  was  intro- 
duced after  the  attainment  of  statehood.1 

Let  us  now  trace  the  evolution  of  county  organization  in 
Michigan  Territory,  where  a  different  result  will  be  reached. 


II. — GENESIS  OF  THE  SUPERVISOR  SYSTEM  IN  MICHIGAN 
TERRITORY. 

(a). — French  Manors  and  Common  Fields. 

The  history  of  Michigan,  as  her  latest  historian  has  so 
thoroughly  demonstrated,  is  "a  history  of  governments." 
And,  indeed,  the  vicissitudes  of  the  local  constitution  have 
been  scarcely  less  remarkable  than  those  of  the  higher  au- 
thority. Her  institutional  history  fairly  begins  with  the 
arrival  of  La  Mothe  Cadillac  on  the  site  of  Detroit,  in  1701.2 


1  The  laws  of  the  Northwest  Territory  remained  valid  in  Indiana  after 
the  formation  of  that  territory  in  1800 ;  and  the  first  act  of  the  governor 
and  judges  of  Illinois  Territory  was  to  declare  all  laws  of  Indiana,  not  of  a 
special  nature,  in  force  prior  to  March  1,  1809,  valid  in  the  territory  of 
Illinois:  Howe,  Laws  and  Courts,  11.     Cf.  Dunn,  Indiana,  294-5.     See  also 
Davidson  and  Stave1,  Hist  of  III.,  285.     Mr.  Howe  gives  the  following  inter- 
esting comparison : 

"  There  is  this  marked  distinction  between  the  laws  of  the  governor  and 
judges  of  the  Indiana  territory  and  those  adopted  by  the  governor  and 
judges  of  the  Northwest  territory :  of  the  former,  where  the  source  from 
which  the  law  was  taken  is  stated  in  the  titles  of  them,  seven  were  taken 
from  Virginia,  three  from  Kentucky,  two  from  Virginia  and  Kentucky,  one 
from  New  York,  Pennsylvania,  and  Virginia,  and  two  from  Pennsylvania ; 
whereas  of  the  thirty-eight  laws  in  the  Maxwell  code,  where  the  titles 
express  the  source,  twenty-six  were  taken  from  Pennsylvania,  six  from 
Massachusetts,  one  from  New  York,  one  from  New  Jersey,  and  three  from 
Virginia.  In  other  words  the  governor  and  judges  of  the  Indiana  territory, 
took  only  two  laws  from  a  free  state,  while  the  governor  and  judges  of  the 
Northwest  territory  took  only  three  laws  from  a  slave  state."  Laws  and 
Courts,  16. 

2  There  were,  of  course,  earlier  posts  established  in  Michigan — at  Ste. 
Marie  and  Michilimackinac ;  but  Detroit  was  the  only  settlement  which 


The  Supervisor  System  in  Michigan  Territory.        427 

Fort  Pontchartrnin  was  immediately  built;  and  Cadillac  re- 
mained commandant  of  the  post  until  1710,  when  he  departed 
~ume  the  duties  of  intendant  of  Louisiana.  Throughout 
the  entire  period  of  French  supremacy  the  inhabitants  of  Mich- 
igan were  ruled  chiefly  by  martial  law,  administered  by  the 
commandant  under  the  superior  jurisdiction  of  the  governor 
and  intondant  of  Canada.1  But  the  civil  authority  of  Cadillac 
obtained  indirectly  a  higher  sanction.  In  accordance  with 
the  usual  practice  of  the  French,  the  fort,  with  a  certain  tract 
of  land,  was  granted  to  him  as  a  seigneurie,  or  manor ;  and 
doubtless  the  grant  carried  with  it  powers  "  not  less  than  those 
belonging  to  the  highest  feudal  lordship  of  France."2  More- 
over he  was  authorized  to  alienate  portions  of  the  public 
land,  but  on  such  general  conditions  as  were  prescribed  by  the 
Coutume,  de  Paris  or  by  the  decrees  of  the  king.3 

Accordingly,  on  March  10,  1707,  two  manors  were  erected, 
one  granted  to  Francois  Fafard  de  Lorme  and  the  other 
to  Jacques  de  Marsac.4  The  conditions  of  the  former  of  these 
conveyances — so  often  described  by  annalists  of  the  West — 
are  precisely  similar  in  character  to  those  of  contemporary 
tenures  in  France.  The  grant  consists  of  two  arpents6  in 
front  by  twenty  in  depth  "  on  one  side  our  manor."  It  is  re- 


gained any  political  significance  during  the  eighteenth  century.  See  Cooley, 
Michigan,  38-9. 

1  See  Walker,  The  Northwest  during  the  Revolution :  Mich.  Pioneer  Coll.,  Ill, 
13 ;  Campbell,  Political  History  of  Mich.,  65. 

'Campbell,  Pol.  Hist,  of  Mich.,  78,  65. 

*  On  the  grant  to  Cadillac  and  his  authority  to  erect  manors,  see  Farmer, 
History  of  Detroit  and  Mich.,  17 ;  Campbell,  Pol.  Hist,  of  Mich.,  70.  Mrs. 
Sheldon's  Early  History  of  Michigan  contains  much  valuable  matter  relating 
to  Cadillac,  but  little  of  importance  connected  with  law  or  institutions. 

4  In  American  State  Papers,  Public  Lands,  I,  250,  the  name  is  written  : 
"  Jacob  de  Marsac,  dit  Desroches." 

6  "  Antoine  de  la  Mothe  Cadillac  ...  is  said  to  have  been  granted  a  do- 
main of  fifteen  arpents  square.  The  arpent,  however,  was  not  a  uniform 
measure.  The  United  States  standard  fixes  it  at  192.24  feet.  A  woodland 
arpent  is  a  little  more  than  a  square  acre:  but  nrpento  and  acres  are  often 
used  as  interchangeable  terms : "  Farmer,  Hist,  of  Detroit  and  Mich.,  17. 


428  Rise  of  the  Oownty  in  the  Western  States, 

cited  that  the  "  said  Fran9ois  .  .  .  shall  be  bound  to .  pay  us, 
our  heirs  and  assigns,  in  our  castle  and  principal  manor,  each 
year,  .  .  .  the  sum  of  five  livres  quit-rent  and  rent,  and  over 
and  above  for  other  rights,  .  .  .  the  sum  of  ten  livres,  in 
peltries,  good  and  merchantable."  Later  these  dues  are  to  be 
paid  in  money.  The  grantee  is  to  enjoy  the  right  of  fishing 
and  hunting,  except  as  to  hares,  rabbits,  partridges,  and 
pheasants  ;  likewise  of  trade,  but  no  agents  or  clerks,  not  dom- 
iciled at  Detroit,  may  be  employed.  A  characteristic  French 
custom  is  preserved  in  the  requirement  that  the  grantee  shall 
"  come  and  carry,  plant  or  help  to  plant,  a  long  May-pole  be- 
fore the  door  of  our  principal  manor  on  the  first  day  of  May, 
in  every  year,"  under  penalty  of  three  livres  for  neglect.  The 
estate  may  not  be  alienated  or  hypothecated  without  the 
grantor's  consent ;  and  in  case  of  sale,  the  latter  has  the  right 
of  pre-emption,  that  is,  of  taking  the  estate  at  the  same  price 
as  the  other  purchaser  offers.  This  corresponds  to  the  rctrait 
censuel  of  the  seigneur  in  France,  but  it  is  not  authorized  by 
the  Cqutume  de  Paris.1  The  estate  is  also  subject  to  banaKtt 
of  the  mill,  that  is,  the  proprietor  is  required  to  "  come  and 
grind  his  grain  "  in  the  mill  of  the  seigneur,  and  pay  a  toll  of 
eight  pounds  for  each  minot — about  three  bushels.2  The 
grantee  is  also  bound  to  furnish  timber  for  vessels  and  fortifi- 
cations, when  desired,  and  he  is  prohibited  from  working  at 
the  trade  of  blacksmith,  cutler,  armorer,  or  brewer,  without 
special  permission.3 


1  Tocqueville,  The  Old  Regime,  334.   Cf.  Campbell,  Pol.  Hist,  of  Mich.,  73. 

2  For  an  example  of  the  usual  burdens  of  a  French  holding,  see  the 
enumeration  of  the  revenues  of  the  estate  of  Brosses,  in  Taine,  The  Ancient 
Regime,  405-9.     Cf.  lb.,  22-6 ;  and  Tocqueville,  The  Old  Regime,  333  ff. 

3  For  a  translation  of  this  conveyance,  see  American  State  Papers,  Public 
Lands,  I,  250-1.  On  the  manors  and  the  settlement  of  Detroit,  see  Farmer, 
Hist,  of  Detroit  and  Mich.,  17  ff. ;  Campbell,  Pol.  Hist,  of  Mich.,  70-6 ;  Al- 
bach,  Annals,  84-6  ;  Blanchard,  Discovery  and  Conquests,  72 ;  Dillon,  Hist,  of 
Indiana,  19 ;  Cass  Manuscripts :  Wis.  Hist.  Coll.,  Ill,  167-8 ;  Hubbard,  Early 
Colonization  of  Detroit :  Mich.  Pioneer  Coll.,  I,  347  ff. 


The  Supervisor  System  in  Michigan  Territory.        429 

Similar  grants  were  subsequently  made  by  Cadillac  and 
others,  on  much  the  same  conditions.1 

Not  less  interesting  than  these  traces  of  Vancien  rfyime,  is 
the  appearance  of  French  communistic  institutions  in  the 
Northwest.  Within  the  fort  at  Detroit  a  village  gradually 
arose.  There  each  householder  had  his  lot  and  dwelling. 
Outside  the  walls  was  the  arable  field  in  which  lie  had  a  sepa- 
rate share,  and  which  was  enclosed  and  tilled  in  common. 
Moreover  each  villager  was  entitled  to  free  enjoyment  of  the 
pasture  land  which  lay  beyond.  Thus  we  behold  the  elements 
of  the  ancient  mark  society  in  its  manorial  stage :  the  undi- 
vided mark  or  waste  ;  the  arable  mark,  surrounded  by  its  tun 
or  hedge ;  while  the  village  itself  is  a  veritable  burh  or  forti- 
fied township.2  And  similar  customs  prevailed  elsewhere  in 
the  French  dominions,  for  example,  in  the  settlements  of 
upper  Louisiana — notably  at  Vincennes  and  at  Kaskaskia  in 
the  Illinois.3 


1  American  State  Papers,  Public  Lands,  I,  251  ff.  They  are  discussed  by 
Farmer,  Hist,  of  Detroit  and  Mich.,  18  ff.  Cf.  Campbell,  Pol.  Hist,  of  Mich., 
90-1. 

1  See  Farmer,  Hist,  of  Detroit  and  Mich.,  24-5.  Cf.  Parkman,  The  Con- 
spiracy of  Pontiac,  I,  213. 

8  For  an  interesting  account  of  the  common  fields  at  Vincennes,  see 
Dunn,  Indiana,  94-8.  Here  the  "commons"  or  pastures  were  enclosed,  and 
the  cultivated  lands  were  allowed  to  lie  open.  In  1790  the  inhabitants  of 
Vincennes,  in  a  petition,  claimed  a  "  prescriptive  right "  to  the  commons ; 
and  Congress  allowed  the  claim.  "  In  1799  it  was  provided  by  law  that  the 
owners  of  any  common  field  might  assemble,  elect  officers,  and  decide  on 
such  regulations  as  they  deem  proper  for  the  management  of  their 
property,  including  the  right  to  levy  assessments  for  necessary  expenses. 
All  questions  were  to  be  decided  by  the  vote  of  the  majority  in  interest. 
The  immediate  supervision  of  the  field  was  to  be  by  three  persons  selected 
as  a  '  field  committee.'  Any  proprietor  who  so  desired,  might  fence  in  his 
allotment  and  hold  it  in  severally,  at  any  time:"  Dunn,  p.  97;  Chase, 
Statutes,  I,  280-2.  Cf.  Law,  Hist,  of  Vincennes,  121-3. 

On  the  French  customs  at  Kaskaskia  and  elsewhere  in  Louisiana,  see  A 1  - 
bach,  Annals,  201-4,  194  ff. ;  Carr,  Missouri,  46  ;  Monette,  Hist,  of  the  Dis- 
covery, I,  181  ff. 


430  Rise  of  the  County  in  the  Western  States. 

From  an  early  period  there  was  at  Detroit  a  deputy  intend- 
ant,  who  acted  as  local  receiver  of  the  king's  revenue.  He 
may  also  have  exercised  judicial  authority;  and  he  sometimes 
discharged  the  duties  of  royal  notary.  The  notarial  office  was 
everywhere  characteristic  of  French  administration,  and,  in 
this  case,  it  was  retained  after  the  English  conquest.  "  It 
practically  combined  the  duties  of  court  clerk  and  register  of 
deeds.  The  notary  kept  copies  of  all  papers  witnessed  by  or 
before  him,  registered  marriage  contracts,  and  was  connected 
with  every  transaction  in  business  and  in  social  life."1 

Elsewhere  in  the  French  settlements  minor  civil  disputes 
were  often  settled  by  the  private  arbitration  of  neighbors ; 
while  petty  misdemeanors  were  referred  to  the  priest,  who 
might  impose  spiritual  penalties.2  Similar  customs  probably 
prevailed  at  Detroit;3  and  the  practice  of  arbitration  survived 
in  the  curious  procedure  subsequently  established  under  the 
English  rule. 

(6). — British  Commandants  and  Courts  of  Arbitration. 

After  the  conquest  no  attempt  was  made  by  the  English 
authorities  to  provide  civil  government  for  their  western  set- 
tlements. The  commandant  was  the  only  representative  of 
the  crown  at  Detroit.  He  was  practically  sole  judge  and  leg- 


1  Farmer,  Hist,  of  Detroit  and  Mich.,  172.  See  Campbell,  Pol.  Hist,  of 
Mich.,  96-7  ;  Breese,  Early  Hist,  of  III.,  221. 

2 "  In  those  little  disturbances  which  would  naturally  arise  from  An- 
toine's  saying  hard  things  of  his  neighbor,  Baptiste,  who  had  killed  his 
dog,  or  whipped  his  child,  the  offended  party  would  carry  his  complaint  to 
the  good  cure,  and  in  the  confessional,  or  somewhere  else,  the  '  tort-feasor ' 
would  be  required  to  make  the  proper  atonement.  It  must  not  be  sup- 
posed, however,  because  the  priest  was  a  Jesuit,  that  his  punishment  par- 
took of  the  cruelty  of  the  rack  and  the  inquisition — an  additional  ave  and 
credo  was,  in  general,  sufficient  penance : "  Breese,  Early  Hist,  of  III.,  222. 
See  his  whole  chapter  XXII:  and  compare  Davidson  and  8tuve",  Comp.  Hist, 
of  III.,  131  ;  Law,  Hist,  of  Vincennes,  16-17. 

3  Cf.  Cooley,  Michigan,  74. 


The  Supervisor  System  in  Michigan  Territory.       431 

islator,  though  he  might  delegate  his  authority  to  another.1 
Thus  in  1767  was  created  a  court  of  arbitration  of  a  peculiar 
description.  Philip  Dejean,  a  merchant,  whose  name  appears 
for  some  years  thereafter  in  judicial  annals,  received  a  com- 
mission from  the  commandant,  which  runs  as  follows  : 

"  I  do  hereby  nominate  and  appoint  you  Justice  of  the 
Peace,  to  inquire  into  all  complaints  that  shall  come  before 
you,  for  which  purpose  you  are  hereby  authorized  to  examine  by 
oatli  such  evidences  as  shall  be  necessary  that  the  truth  of  the 
matter  may  be  better  known  ;  provided  always  that  you  give  no 
judgment  or  final  award  but  at  their  joint  request,  and  which 
by  bond  they  bind  themselves  to  abide  by,  but  settle  the  deter- 
mination of  the  matter  by  arbitration,  which  they  are  likewise 
to  give  their  bond  to  abide  by,  one  or  two  persons  to  be  chosen 
by  each  ;  and  if  they  can  not  agree  and  have  named  two  only 
you  name  a  third,  and  if  four,  a  fifth,  and  their  determination 
or  award  to  be  approved  by  me  before  put  in  execution.  I 
further  authorize  and  impower  you  to  act  as  chief  and  sole 
notary  and  tabellion,  by  drawing  all  wills,  deeds,  etc.,  proper 
for  that  department,  the  same  to  be  done  in  English  only,  and 
I  also  appoint  you  sole  veudue  master." 

Three  months  later  Dejean  was  further  empowered  as  "second 
judge  "  to  hold  a  court  twice  a  month  for  the  trial  of  actions 
for  debt,  trespass,  or  contract,  where  the  amount  in  controversy 
should  not  exceed  five  pounds,  New  York  currency.2 

By  the  celebrated  act  of  1774,3  the  entire  region  west  of 
New  York  and  extending  from  the  Ohio  and  the  Mississippi 
to  Hudson's  Bay  was  added  to  the  Province  of  Quebec. 
Legislative  authority,  subject  in  some  cases  to  the  approval  of 


'This  was  done  by  Bradstreet,  commandant  in  1764:  Cooley,  Michigan, 
68 ;  Campbell,  Pol.  Hist,  of  Mich.,  137,  141.  And  Pierre  St.  Cosme  was 
acting  as  justice  of  the  peace  in  1762 :  Farmer,  Hist,  of  Detroit  and  Mich., 
172. 

*See  both  commissions  in  Campbell,  Pol.  Hist,  of  Mich.,  141-3.  Cf. 
Cooley,  Michigan,  74. 

3  The  text  of  the  Quebec  Act  is  printed  in  Wit.  Hist.  Coll.,  XI,  53-60. 


432  Rise  of  the  County  in  the  Western  States. 

the  crown,  was  vested  in  a  governor  general,  or  in  his  absence, 
a  lieutenant  governor,  and  a  council  consisting  of  from  seven- 
teen to  twenty-three  members — all  appointed  by  the  king. 
But  judicial  decisions  were  to  conform  to  the  English  law  in 
criminal  and  to  the  French  law  in  civil  actions.  In  theory, 
therefore,  Detroit  and  Michigan  were  at  last  provided  with 
civil  government.  But  it  was  in  theory  only ;  for  to  secure 
the  protection  of  the  courts,  even  in  petty  actions  for  debt,  it 
would  have  been  necessary  for  litigants  to  traverse  the  vast 
distance  between  the  Straits  and  Montreal.1  Accordingly  no 
important  change  was  wrought  in  the  government  of  the 
Northwest.  Martial  law  still  reigned  supreme  at  Detroit. 
The  resident  governor  was  ex  officio  justice  of  the  peace,  and 
freely  exercised  both  criminal  and  civil  jurisdiction.2  Similar 
powers  were  exercised  by  the  local  commandant,  who  even 
baptized  and  joined  persons  in  marriage.3  In  practice,  how- 
ever, disputes  were  sometimes  submitted  to  arbitration  as 
before;4  and  in  1779  a  new  system  of  arbitration  was  intro- 


lHaldimand  Papers:  Mich.  Pioneer  Coll.,  XI,  637,  642-3;  X,  456,  462. 

2  See  the  letter  of  Gov.  Carleton  to  Hamilton  in  Farmer's  Hist,  of  Detroit 
and  Mich.,  172;  and  in  Haldimand  Papers:  Mich.  Pioneer  Coll.,  IX,  345-6. 

"  All  military  commandants  were  civil  officers  ex  officio,  whether  so  com- 
missioned or  not,  and  they  decided  questions  of  property,  and  put  litigants 
into  the  guard-house  who  disobeyed  their  decisions,"  etc.  From  testimony 
of  Thomas  Smith  before  the  Commissioners  of  Claims,  July  14,  1821 :  Far- 
mer, 172. 

3  Jn  1793  an  act  to  legalize  such  marriages  was  passed  :  Frazer,  Introduc- 
tion to  Mich.  Territorial  Laws,  I,  p.  ix.     Cf.  Farmer,  Hist,  of  Detroit  and 
Mich.,  171. 

In  1774  the  whole  upper  region  was  placed  under  a  "  lieutenant  gov- 
ernor" who  resided  as  superintendent  at  Detroit;  but  there  was  also  a  local 
commandant,  who  sometimes  disputed  the  jurisdiction  of  the  former :  Jb., 
172.  See  the  list  of  commandants  in  76.,  226-7. 

4  Dejean  still  continued  to  exercise  judicial  functions,  and  actually  tried 
capital  cases  and  executed  the  death  penalty,  thus  earning  the  title  of 
"  Grand   Judge  of  Detroit."     See  Cooley,  Michigan,  74-5 ;  Walker,  The 
Northwest  during  the  Revolution:  Mich.  Pioneer  Coll.,  Ill,  17  ;  Campbell,  Pol. 
Hist,  of  Mich.,  162  ff. ;  Farmer,  Hist,  of  Detroit  and  Mich.,  172.     The  au- 
thority of  Dejean  was  not  recognized  at  Montreal ;  but  it  appears  that  as 


The  Supervisor-  System  in  Michigan  Territory.       433 

duced.  "The  commandant  suggested  the  establishment  of  a 
court  of  trustees,  with  jurisdiction  extending  to  ten  pounds. 
Kijjhteen  of  the  merchants  then  entered  into  a  bond  that  three 
of  them,  in  rotation,  would  hold  a  weekly  court,  and  that  they 
would  defend  any  appeals  which  might  be  taken  to  the  courts 
at  Montreal.  This  court  lasted  about  eighteen  months,  and 
then,  as  legal  objections  were  made  to  it,  the  court  was  abol- 
ished." ' 

But  it  should  be  noted  that  these  tribunals  existed  only  by 
sufferance  of  the  commandant.  There  was  no  legal  means  of 
enforcing  their  decrees.  "  Those  who  submitted  their  differ- 
ences to  the  arbitrators  could  not  be  compelled  to  abide 
by  their  decisions ;  yet  the  dread  of  the  consequences  of  refus- 
ing to  submit  to  those  determinations  gave  force  to  their 
u\\;mls;  for  those  who  would  not  obey  could  not  recover 
debts,  and  the  commanding  officer  refused  to  grant  them 
passes  to  go  for  their  canoes  to  the  Indian  Country.  .  .  . 
People  who  lived  in  Detroit  were  compelled  to  submit,  or  live 
there  as  out  law'd."2  Finally,  in  1788,  the  first  step  was 
taken  toward  the  establishment  of  civil  government  in  the 
western  part  of  the  province.  What  was  soon  to  be  styled 
Upper  Canada3  was  then  divided  into  four  new  districts, 


early  as  1779  Thomas  Williams  was  commissioned  as  justice  of  the  peace 
by  Sir  Frederick  Haldimand,  governor  general  of  Canada:  Farmer,  pp. 
172,  174. 

1  Farmer,  Hist,  of  Detroit  and  Mich.,  174.     Cf.  Strong,  Hist,  of  Wisconsin 
Territory,  165-70. 

2  From  the  answer  of  William  Robertson,  of  Detroit,  to  the  Committee 
of  the  Council  at  Montreal,  Oct.  24,  1788 :  Haldimand  Papers,  in  Mich. 
Pioneer  Coll.,  XI,  631-2.    Speaking  of  the  court  of  arbitration,  Mr.  Robert- 
son adds :  "  I  can  only  consider  it  as  a  laudable  but  inefficacious  establish- 
ment devised  by  urgent  necessity  for  the  exigences  of  the  place,  but  which 
never  was  intended  to  supersede,  but  supply,  the  immediate  want  of  a  court 
of  law,"  etc. :  Ib.,  643,  649. 

3  By  an  act  of  Dec.  26,  1791,  the  province  of  Quebec  was  divided  into 
two  provinces — Upper  and  Lower  Canada ;  the  Quebec  Bill  was  repealed, 
so  far  as  Upper  Canada  was  concerned ;  and  trial  by  jury  was  allowed  in 

28 


434  Rise  of  the  County  in  the  Western  States. 

Michigan  and  the  whole  Northwest  being  included  in  that  of 
Hesse.1  For  each  district  a  court  of  common  pleas,  with 
plenary  jurisdiction,  to  be  held  by  three  judges  nominated  by 
the  governor  general,  was  erected  ;  justices  of  the  peace  were 
commissioned,  who  could  hold  courts  of  general  sessions ;  and 
there  were  also  appointed  a  clerk,  a  coroner,  and  a  sheriff.2 
Thus  two  days  before  the  county  of  Washington  was  created 
by  proclamation  of  Governor  St.  Clair,  county  institutions 
were  planted  in  Michigan  by  proclamation  of  George  III.3 

The  system  thus  introduced  remained  in  force,  with  slight 
modification,  until  Michigan  ceased  to  be  a  part  of  the  royal 
dominion,  in  1796.  As  required  by  Jay's  treaty  of  1794,  De- 
troit and  all  other  western  posts  still  held  by  the  British,  were 


both   civil  and  criminal  cases:    Farmer,  Hist,  of  Detroit  and  Mich.,  84; 
Campbell,  Pol.  Hist,  of  Mich.,  193. 

1  See  the  proclamation  creating  these  districts,  in  Haldimand  Papers : 
Mich.  Pioneer  Coll,  XI,  620-1. 

2  Three  judges  of  common  pleas  were  originally  nominated;  but  two  im- 
mediately declined  to  serve,  and  the  people  of  Detroit  sent  a  memorial  to 
the  governor  general  protesting  against  the  appointments  made.     Those 
nominated  for  the  common  pleas  are  merchants,  they  declare,  and  there- 
fore will  be  interested,  directly  or  indirectly,  in  most  cases  which  may 
arise ;    while   several  of   the  justices  are  illiterate  and  otherwise   unfit. 
A  committee  of  the  council  was  appointed  to  report  on  the  memorial,  and 
their  proceedings  are  very  interesting  and  instructive.     See  Haldimand  Pa- 
pers: Mich.  Pioneer  Coll.,  XI,  621-49,  655-6.     It  appears  that  the  first  con- 
stitution of  the  court  of  common  pleas  was  altered;   for  in  Dec.,   1788, 
a   session  was  held  at  Detroit  by  a   senior  justice   and  four  associates  : 
Farmer,  Hist,  of  Detroit  and  Mich.,  174.      •'  Oct.  15,  1792,  the  name  of  the 
District  was  changed  from  Hesse  to  Western  District ;  "  and  the  last  court 
of  general  quarter  sessions  under  the  British  rule  was  held  Jan.  29,  1796  : 
Ib.,  174. 

For  a  sketch  of  the  early  legal  history  of  Michigan,  covering  the  period 
under  review,  see  Frazer's  Introduction  to  Mich.  Territorial  Laws,  I. 

3  The  proclamation  creating  the  new  districts  runs  in  the  name  of  the 
king  and  bears  date  of  July  24,  1788.     On  the  same  day  the  first  officers 
and  judges  were  nominated  by  the  governor.    The  districts  were  practically 
counties.     Nov.  8,  1788,  Lord  Dorchester,  the  governor  general,  writes  to 
Lord  Sydney :  "  The  Province  of  Quebec  consists  at  present  of  seven  dis- 
tricts or  counties : "  Haldimand  Papers,  in  Mich.  Pioneer  Coll.,  XI,  652. 


The  Supervisor  System  in  Michigan  Territory.        435 

then  surrendered  to  the  United  States;1  and  in  the  same  year 
Acting  Governor  Sargent  of  the  Northwest  Territory  laid  off 
the  county  of  Wayne,  which  embraced  all  Michigan  within 
its  ample  limits.  Here  courts  of  quarter  sessions  and  common 
pleas,  as  provided  for  in  the  laws  of  the  territory,  were 
presently  established.  But,  as  we  have  just  seen,  courts  with 
similar  jurisdiction  and  bearing  the  same  names  already 
existed ;  and,  besides,  some  of  the  justices  who  had  served 
under  the  provincial  authority  were  continued  in  their  func- 
tions.2 And  so  the  continuity  of  English  county  organization 
under  British  and  American  rule  was  in  fact  secured. 

(c). — Rise  of  the  Board  of  Supervisors. 

The  institutional  history  of  Michigan  now  merges  in  that 
of  the  Northwest  Territory  and  Indiana,  until  its  erection 
into  a  separate  government  in  1805.  From  this  time  onward 


1  See  some  interesting  details  relating  to  the  evacuation  of  the  posts,  in 
Farmer,  Hist,  of  Detroit  and  Mich.,  266-7. 

•Farmer,  Hist,  of  Detroit  and  Mich.,  190-1,  133.  Cf.  Campbell,  Pol.  Hist, 
of  Mich.,  205 ;  and  his  article  in  Mag.  of  West.  Hist.,  IV,  453  ff. 

Pioneer  judicial  annals  are  notoriously  rich  in  anecdote  and  legend.  Thus 
Green  Bay — for  a  time  included  in  Michigan — boasts  a  local  hero,  Judge 
Charles  Keaume,  around  whom  a  veritable  muthos  has  gathered.  He  seems 
to  have  received  his  first  commission  as  justice  of  the  peace,  either  from  the 
British  authority,  or  from  Governor  Harrison  of  Indiana  Territory ;  and 
he  long  continued  to  administer  the  law  under  various  jurisdictions.  He  is 
represented  as  issuing  process,  in  manner  oriental,  by  sending  his  jack-knife, 
by  way  of  a  signet,  to  the  party  summoned.  And  he  appears  to  have  had 
the  eccentric  habit  of  condemning  petty  offenders  to  expiate  their  sentences 
by  physical  exercise  on  the  private  wood-pile  of  his  honor.  On  one  occa- 
sion, greatly  to  his  astonishment,  the  constable  found  himself  included  in 
the  judicial  decree,  being  condemned  to  split  a  thousand  rails  for  the  court. 
This  he  finally  consented  to  do,  on  condition  that  the  judge  would  board 
him  during  the  term  of  service.  See  Childs'  Recollections:  Wis.  Hist. 
Coll.,  IV,  165-6;  Grignon's  Recollections:  Ib.,  Ill,  241,  245-7.  Several  of 
his  writs  and  judgments  are  contained  in  the  Lawe  and  Orignon  Papers:  Ib., 
X,  91-3,  133-5.  See  also  Wis.  Hist.  Coll.,  VII,  57  ff.;  II,  87-9,  105-7; 
Campbell,  Pol.  Hist,  of  Mich.,  160;  Strong,  Hist,  of  Wis.  Territory,  79. 


436  Rise  of  the  County  in  the  Western  States. 

county  organization  passes  rapidly  through  several  phases  of 
development.  First  was  the  creation  of  four  judicial1  dis- 
tricts, in  each  of  which  originally  a  court  was  held  by  one  of 
the  territorial  judges.  Below  this  was  the  single  justice  of  the 
peace,  possessing  a  limited  civil  and  criminal  jurisdiction. 
From  him  appeal  lay  to  the  district  judges ;  and  from  the  lat- 
ter, to  the  court  of  the  territory.2  The  constitution  of  the 
district  courts  was  changed  in  1807.  It  was  then  enacted  that 
they  should  henceforth  be  held  by  a  chief  justice  and  two  as- 
sociates. At  the  same  time  they  were  given  certain  general 
administrative  functions,  similar  to  those  usually  exercised  by 
courts  of  quarter  sessions ; 3  and  thus  the  district  became,  in 
fact,  a  rudimentary  county. 

But  the  new  tribunals  were  of  short  duration.  In  1810 
they  were  abolished,  and  the  cases  which  they  had  tried  were 
probably  remitted  to  the  territorial  court.4  Below  the  latter, 
therefore,  the  only  local  tribunal  was  that  of  the  justice  of 
the  peace,  whose  jurisdiction  was  now  more  carefully  defined.5 

Under  the  wise  administration  of  General  Cass  all  branches 
of  the  political  organism,  local  and  territorial,  entered  upon  a 
more  vigorous  life.  Thus,  in  1815,  he  reconstituted  the 
county  of  Wayne;6  and  in  the  same  year  was  created  a 
"  county  court,"  composed,  like  the  old  court  of  the  district, 
of  a  chief  justice  and  two  associates,  and  exercising  "original 
and  exclusive  jurisdiction  in  all  civil  cases  both  in  law 

1  Mich.    Territorial   Laws,  I,    17-18.     But   three  districts   were  at   first 
created  ;  later  a  fourth  was  formed :  Campbell,  Pol.  Hist,  of  Mich.,  241. 

2  Mich.  Territorial  Laws,  I,  21,  37.     See  also  Campbell,  in  Mag.  of  West. 
Hist.,  IV,  454. 

a  Mich.  Territorial  Laws,  II,  7.  Another  act  relative  to  the  district  courts 
was  passed  in  1809 :  Ib.,  II,  68.  See  also  Campbell,  Pol.  Hist,  of  Mich., 
250-1. 

4  See  Campbell,  Pol.  Hist,  of  Mich.,  263. 

5  Mich.  Territorial  Laws,  I,  186-92;  II,  125,  129. 

6  Mich.  Territorial  Laws,  I,  323.     The  history  of  the  various  changes  in 
the  limits  of  Wayne  County — itself  an  interesting  study — is  illustrated  by 
a  series  of  maps  in  Farmer's  Hist,  of  Detroit  and  Mich.,  1 18-22. 


The  Supervisor  System  in  Michigan  Territory.       437 

and  equity,"  where  the  matter  in  dispute  should  exceed  the 
competence  of  a  justice  of  the  peace,  to  the  limit  of  one 
thousand  dollars,  and  in  all  criminal  offences  except  capital 
crimes.1  Within  the  next  few  years  many  new  counties  were 
formed  ; 2  and  each  was  to  have  a  sheriff,  coroner,3  treasurer,4 
and  judge  of  probate6 — all  appointed  by  the  governor.  In 
1817  it  was  enacted  that  each  county  should  have  a  court  of 
general  quarter  sessions,  to  be  composed  of  the  justices  of  the 
peace  residing  therein  together  with  the  judges  of  the  county 
court.  The  quarter  sessions  were  especially  entrusted  with 
the  supervision  of  finance  and  taxation.  The  county  assessor 
was  their  nominee ;  they  were  constituted  a  board  of  audit 
and  equalization ;  and  they  could  divide  the  county  into 
townships.6  But  a  portion  of  the  administrative  business  was 
reserved  to  the  county  court ;  by  which,  for  example,  road-tax 
lists  were  revised,  taverns  and  ferries  licensed,  and  the  rates  of 
the  latter  prescribed.7 

By  the  acts  of  1815  and  1817,  it  will  be  observed,  the 
organization  of  the  county  as  it  had  existed  under  the  laws  of 
the  Northwest  Territory  was  practically  restored.  The  court 
of  quarter  sessions,  however,  endured  but  a  single  year.  By 
an  act  of  May  13,  1818,  it  is  abolished,  and  "all  the  powers 
and  duties  ...  by  law  vested"  therein  are  transferred  to  a 
board  of  three  county  commissioners.8  These  were  at  first 
nominated  by  the  governor ;  but  in  1825,  under  authority  of 


1  Mich.  Territorial  Laws,  I,  184. 

*  Mich.  Territorial  Laws,  I,  325-6,  330-6.  Vol.  I  of  the  Mich.  Pioneer 
Coll.  is  devoted  chiefly  to  the  formation  and  organization  of  the  Michigan 
counties. 

3  By  act  of  Nov.  3,  1815,  a  sheriff  and  a  coroner  are  to  be  appointed  in 
each  county :  Mich.  Territorial  Laws,  I,  220. 

4  Mich.  Territorial  Laws,  II,  114. 

•Office  created  in  1818:  Mich.  Territorial  Laws,  I,  341. 

8  Mich.  2'errilorial  Laws,  II,  109-14. 

1  Mich.  Territorial  Laws,  I,  407,  420;  II,  98,  101,  516;  III,  1071. 

8  Mich.  Territorial  Laws,  II,  130. 


438  Rise  of  the  County  in  the  Western  States. 

an  act  of  Congress,1  the  office  of  commissioner,  as  well  as  those 
of  coroner  and  treasurer,  was  made  elective.2  The  county 
court,  on  the  other  hand,  survived  until  1833,  when  it  was 
abolished;  to  be  revived  however  with  elective  judges  in 
1846.3 

We  now  come  to  the  last  change  in  the  county  organism  of  gen- 
eral constitutional  importance.  In  1827,  as  elsewhere  noted,4 
representative  township-county  administration  on  the  New 
York  plan  was  introduced.  The  board  of  commissioners  was 
abolished  ;  and  all  their  powers  and  functions  were  transferred 
to  a  new  body  composed  of  the  elective  township  supervisors.5 
And  thus,  after  many  years  of  experimentation,  the  essential 
principles  of  the  highest  type  of  local  government  were 
planted  in  the  West. 

III. — THE  COUNTY  BOARD. 
(a). — Composition  and  Differentiated  Forms. 

The  constitution  of  the  county  board  may  fairly  be  taken 
as  the  feature  which  determines  the  character  of  county  gov- 
ernment. Accordingly  throughout  the  entire  west  but  two 
general  types  of  organization  exist.  On  the  one  hand  is  the 
commissioner  system,  by  which  the  superior  authority  is  cen- 
tralized, usually  in  the  hands  of  three  men ;  on  the  other,  the 
supervisor  system,  by  which  similar  powers  are  vested  in 
a  more  or  less  numerous  assembly  of  township  representatives. 
The  first  type  prevails  in  the  great  majority  of  state  and  terri- 


1  U.  S.  Statues  at  Large,  IV,  80 ;  Mich.  Territorial  Laws,  I,  319. 

2  Mich.  Territorial  Laws,  II,  279. 

3  Farmer,  Hist,  of  Detroit  and  Mich.,  192 ;  Campbell,  in  Mag.  of  West. 
Hist.,  IV,  461. 

4  See  Chap.  IV,  i,  (c). 

5  Mich.  Territorial  Laws,  II,  584.     For  some  account  of  the  legislation  of 
early  Michigan,  see  further  Spencer,  Local  Government  in  Wisconsin :   Wis. 
Hist.  Coll.,  XI,  502-11. 


The  County  Board.  439 

tories ;  and,  as  already  seen,  it  has  descended  in  direct  line 
from  the  colonial  laws  of  Pennsylvania  through  those  of  the 
Northwest  Territory,  Ohio,  Indiana,  and  Illinois, — to  be 
variously  modified  by  the  legislation  of  recent  times.  The 
second  type  exists  in  a  small  group  of  states,1  and  we  have  al- 
ready traced  its  evolution  from  the  enactment  of  the  New 
York  assembly  in  1703,  to  its  advent  in  Michigan  Territory 
in  1827.2 

The  board  of  commissioners  usually  consists  of  three  mem- 
bers elected  for  three  years,  one  retiring  annually.  But 
in  some  instances  provision  is  made  for  a  greater  number,  and 
for  a  longer  or  shorter  term.8 

Whatever  the  type  of  organization,  the  modern  county  is 
always  a  republic  in  which  all  offices  are  elective.  Moreover 
it  is  of  importance  to  observe,  that  even  under  the  commis- 


1  The  supervisor  plan  exists  in  New  York,  Michigan,  and  Wisconsin ; 
also  in  Illinois  since  1849,  and  in  Nebraska  since  1883.  See  above  Chap. 
IV,  I,  (6)  and  (c) ;  n,  (a). 

'See  above  Chap.  Ill,  iv,  and  Chap.  VIII,  I,  (c). 

3  Commissioners  for  each  county  are  chosen  as  follows  in  various  states 
and  territories — the  term  being  three  years,  unless  otherwise  stated: 
Nebraska,  3,  or  5  when  the  population  exceeds  70,000 ;  Compiled  Statutes, 
1887,  p.  295 ;  Pennsylvania,  3 :  Brightly's  Purdon's  Digest,  I,  378  ;  Illinois, 
3 :  Starr  and  Curtis'  Annotated  Statutes,  I,  157,  1004 ;  Kansas,  3,  or  1  for 
each  representative  district  when  the  population  exceeds  30,000 :  Compiled 
Laws,  1885,  p.  263;  Canfield,  Local  Government  in  Kansas,  19;  Iowa,  3 
supervisors  (=  commissioners),  but  the  number  may  be  increased  to  5  or  7 
by  vote  of  the  people :  McLain's  Annotated  Statutes,  I,  68 ;  Ohio,  3 :  Revised 
Statutes,  1886,  I,  179  ;  Indiana,  3:  Revised  Statutes,  1881,  p.  1233:  Colorado, 
3,  or  5  when  the  population  exceeds  10,000 :  General  Statutes,  1883,  pp. 
256-7  ;  Oregon,  2  commissioners  who  hold  office  for  four  years,  and  form  a 
board  only  when  sitting  with  the  county  judge :  Hill's  Annotated  Laws,  I, 
636;  II,  1160:  Nevada,  3,  or  5  when  4,000  votes  are  polled— chosen  for 
two  and  four  years:  General  Statutes,  1885,  pp.  530-1 ;  California,  5  super- 
visors (=  commissioners)  chosen  for  four  years :  Statutes,  1883,  p.  301  ; 
Wyoming,  3  chosen  for  two  years :  Revised  Statutes,  1887,  p.  466;  Idaho,  3 
chosen  for  two  years :  Revised  Statutes,  1887,  p.  238 ;  Dakota,  3 :  Compiled 
Laws,  1887,  p.  150 ;  Minnesota,  3,  or  5  where  there  are  800  voters :  Statutes, 
1878,  p.  135;  Montana,  3,  for  four  years:  Revised  Statutes,  1879,  p.  38; 
Washington  Territory,  3,  for  two  years  :  Washington  Code,  1881,  p.  463. 


440  Rise  of  the  County  in  the  Western  States. 

sioner  system,  the  principle  of  local  representation  is  not 
wholly  disregarded.  Often  the  commissioners,  though  chosen 
by  the  voters  of  the  county  at  large,  are  each  designated  for  a 
particular  subdivision  of  the  county,  known  as  a  "com- 
missioner district,"  and  from  the  qualified  electors  thereof.1 
The  supervisors  are  deputies  of  organized  municipal  bodies ; 
the  commissioners  are  the  representatives  of  a  neighborhood, 
but  a  neighborhood  which  may  include  several  townships  or 
precincts  within  its  limits. 

(6). — Relation  to  the  County  and  the  State. 

In  new  states  counties  formed  from  the  unorganized  do- 
main usually  receive  their  names  and  boundaries  from  the 
legislature.  And  any  unorganized  territory,  whether  laid  off 
as  a  county  or  not,  may  be  "  attached "  to  some  contiguous 
organized  county  for  all  political  or  judicial  purposes.2  After 
a  county  is  created,  the  next  step  is  organization.  The  pro- 
cedure in  that  case  may  be  illustrated  by  the  Nebraska  law  : — 

Whenever  it  appears  by  affidavit  of  three  resident  free- 
holders that  the  new  county  has  not  less. than  two  hundred  in- 


1  So  in  Nebraska :  Compiled  Statutes,  1887,  p.  295 ;  Kansas  :  Compiled  Laws, 
1885,  p.  263;  Iowa:  McLain's  Annotated  Statutes,  1880,  I,  69;  Indiana, 
Revised  Statutes,  1881,  p.  1233-4;  Colorado:  General  Statutes,  1883,  p.  256; 
California:  Statutes,  1883,  p.  301;  Idaho:  Revised  Statutes,  1887,  p.  238; 
Minnesota :  Statutes,  1878,  p.  136  ;  Dakota :  Compiled  Laws,  1887,  p.  151.    In 
Washington  Territory,  two  commissioners  may  not  be  chosen   from   the 
same  election  precinct,  when  there  are  three  or  more  such  precincts  in  the 
county  :   Washington  Code,  1881,  p.  463. 

2  In  Nebraska  unorganized  territory  may  be  attached  to  any  adjoining 
organized  county  on  petition  of  a  majority  of  the  inhabitants  of  such  terri- 
tory addressed  to  the  commissioners,  and  a  majority  vote  of  the  electors,  of 
the  county  concerned:  Compiled  Statutes,  1887,  p.  287.     And  for  purposes  of 
election,  revenue,  and  jurisdiction,  any  new  county  until  organized,  or  any 
other  unorganized  territory,  without  vote  or  petition,  is  legally  attached  to 
the  nearest  organized  county  directly  east ;  or,  if  there  be  no  county  lying 
directly  east,  then  to  the  organized  county  directly  south,  north,  or  west,  in 
the  order  named :  Compiled  Statutes,  1887,  p.  309. 


The  County  Board.  441 

habitants,  the  governor,  on  the  receipt  of  a  memorial  signed 
by  ten  resident  taxpayers,  shall  institute  a  temporary  organi- 
zation by  appointing  three  "special  commissioners"  and  a 
"  special  clerk,"  named  in  the  memorial,  and  by  designating 
SOUK-  place  centrally  located  as  a  county  seat.  The  temporary 
commissioners  shall  immediately  proceed  to  divide  the  county 
into  convenient  precincts;  and,  on  thirty  days'  notice,  order  an 
election  for  choosing  permanent  county  and  precinct  officers, 
and  for  establishing  a  permanent  county  seat.1 

In  like  manner,  by  petition  and  vote,  any  territory  may  be 
transferred  from  one  county  to  another.  And  the  same  is  true 
of  the  formation  of  a  new  county  by  division  of  any  already 
organized ;  except  that  the  result  of  the  election,  when  in 
favor  of  such  division,  must  be  certified  by  the  clerks  of  the 
respective  counties  affected  by  the  change  to  the  secretary  of 
state,  who  shall  notify  the  governor,  whose  duty  it  then 
becomes  to  call  an  election  in  the  new  county  for  the  choice  of 
officers.2  But  no  such  county  shall  be  formed  containing  an 
area  of  less  than  four  hundred  square  miles.3  On  account  of 
the  interests  involved,  the  creation  of  new  counties  from  old 
ones  is  a  matter  of  great  importance,  requiring  the  utmost  care 
and  deliberation  at  every  step  of  the  procedure.  Provision 
has  to  be  made  for  continuing  existing  precinct  or  township 
officers  in  their  functions;  for  the  disposition  of  suits  at  law 
pending  in  the  courts ;  for  the  division  of  the  property,  real 
and  personal,  as  also  of  the  debts  and  other  liabilities,  of  all 
the  counties  concerned ;  and  for  transcription  of  the  old 
records  for  use  of  the  new  county.  In  the  older  states,  of 
course,  the  gravity  of  these  various  interests  is  greatly  en- 


1  Compiled  Statutes,  1887,  p.  283. 

*  Complied  Statutes,  1887,  pp.  286-7. 

*  Constitution  of  Neb.,  Art.  X,  \  I :  Compiled  Statutes,  1887,  p.  32.    The 
provision  that  new  counties  shall  not  comprise  less  than  400  square  miles, 
is  found  in  the  laws  of  various  states.    See,  for  example,  Constitution  of 
Pa.,  Art.  XIII:  Brightly^  Purdon's  Digest,  I,  43;  Const,  of  Indiana,  Art. 
XV :  Revised  Statutes,  1881,  p.  32. 


442  Rise  of  the  County  in  the  Western  States. 

hanced ;  and   consequently  the  procedure   prescribed  by  the 
statutes  is  sometimes  very  elaborate.1 

The  county,  like  the  township,  is  a  body  politic,  possessing 
the  usual  powers.  But  in  this  capacity  its  legal  representa- 
tive is  the  county  board,  by  whom  all  its  functions  as  a  civil 
corporation  are  discharged.2 

(c). — Powers  and  Duties. 

The  western  county  board  is  a  remarkably  powerful  body. 
It  may  be  doubted  whether  any  modern  administrative  au- 
thority, unless  indeed  it  be  the  council  of  a  city  of  the  higher 
class,  is  legally  possessed  of  such  wide  discretion  in  the  exer- 
cise of  its  functions.  Where  the  commissioner  system  pre- 
vails, the  control  of  several  of  the  most  vital  interests  of  the 
community  is  entrusted  wholly  to  two  or  three  men,  with  no 
remedy  save  by  appeal  to  the  higher  courts;  and  with  no 
other  check  upon  their  actions,  save  their  official  bond  and  the 
ordinary  responsibility  of  elected  servants  of  the  people.  As 
a  rule,  however,  these  checks  are  sufficient;  county  business 
is  usually  managed  honestly  and  with  tolerable  efficiency. 
Nevertheless  the  opportunity  for  local  discrimination  and 
arbitrary  action  is  one  of  the  most  cogent  reasons  advanced 
for  the  substitution  of  the  supervisor  system.  On  the  other 
hand,  it  is  objected,  that  the  supervisors  are  unable  to  conduct 
county  affairs  so  speedily,  intelligently,  and  impartially  as  the 


1  See,  for  example,  the  law  of  Pennsylvania :  Brightly's  Pardon's  Digest, 
I,  369  ff. ;  that  of  Ohio  :  Williams'  Revised  Statutes,  1886, 1,  172  ff. ;  and  that 
of  Indiana:  Revised  Statutes,  1881,  pp.  901  ff.     In  general  on  the  formation 
of  counties,  see  Howell's  Annotated  Statutes  of  Mich.,  I,  195  ff.     Starr  and 
Curtis'  Annotated  Statutes  of  III.,  I,  649  ff. 

2  Compiled  Statutes  of  Neb.,  1887,  p.  289 ;  McLain's  Annotated  Statutes  of 
Iowa,  1880,  I,  61 :  Compiled  Laws  of  Kansas,  1885,  p.  262;  Statutes  of  Minn., 
1878,  p.  133 ;  Hill's  Annotated  Laws  of  Oregon,  II,  1073 ;  Statutes  of  California, 
1883,  p.  299 ;  Revised  Statutes  of  N.  Y.,  II,  924 ;  Howell's  Annotated  Statutes 
of  Mich.,  I,  192 ;  Revised  Statutes  of  Wyoming,  1887,  p.  465 ;  Starr  and  Curtis' 
Annotated  Statutes  of  III.,  I,  653. 


The  County  Board.  443 

commissioners.  The  board,  it  is  asserted,  is  too  large  for  the 
transaction  of  fiscal  and  other  executive  business  requiring 
careful  investigation  and  special  knowledge.  And  it  must  be 
confessed,  whatever  may  be  the  countervailing  advantages  of 
the  more  democratic  type  of  organization,  that  this  objection 
is  sometimes  a  very  serious  one,  particularly  when  the  county 
contains  within  its  limits  a  city  or  large  towns  entitled  to  rep- 
resentation on  the  board,  whether  by  wards  or  according 
to  population.1 

The  functions  of  the  county  board,  in  number  and  charac- 
ter, are  practically  the  same  whether  it  be  composed  of  com- 
missioners or  supervisors.  But  their  importance  varies 
according  to  the  degree  of  centralization.  Under  the  county- 
precinct  system,  the  authority  of  the  body  reaches  its  highest 
point.  And  where  the  township-county  system  has  been  in- 
troduced, that  authority  varies  according  to  the  type  of  organ- 
ization :  being  greatest  in  Indiana,  Ohio,  and  wherever  the 
Pennsylvania  plan  prevails;  and  least  in  Minnesota,  and 
those  states,  notably  Michigan,  where  the  New  York  plan  has 
been  somewhat  modified  to  the  advantage  of  town  govern- 
ment. 

A  concise  statement  of  the  powers  and  duties  of  the  board 
will  now  be  presented ;  and  we  shall  be  able  to  gain  a  correct 
conception  of  the  general  character  of  western  legislation  on 


1  In  Illinois  every  town  or  city  with  4000  inhabitants  is  allowed  one  addi- 
tional supervisor ;  or  two,  when  it  contains  a  population  of  6500 ;  and  so 
on  increasing  one  for  every  additional  2500  inhabitants :  Starr  and  Curtis' 
Annotated  Statutes,  II,  2416.  By  the  Nebraska  statute  it  is  provided  that, 
at  the  first  general  election  after  the  adoption  of  township  organization  in 
any  county,  one  supervisor  for  every  1000  inhabitants  "  in  each  city  and 
each  village"  shall  be  chosen:  Compiled  Statutes,  1887,  p.  387.  In  Lan- 
caster county,  containing  the  city  of  Lincoln,  township  organization  was 
defeated  in  1885,  when  a  vigorous  effort  was  made  to  adopt  it,  mainly  on 
the  ground  of  the  size  of  the  board.  It  would  then  have  comprised  some 
60  members.  Of.  Bemis,  Local  Government  in  Michigan  and  the  Northwest,  18, 
who  mentions  Judge  Cooley's  criticism  of  the  supervisor  plan.  See  Revised 
Statutes  of  Wis.,  1878,  p.  237  ;  Howell's  Annotated  Statutes  of  Mich.,  1,  198. 


444  Rise  of  the  County  in  the  Western  States. 

this  subject,  with  the  very  important  advantage  of  precision, 
by  selecting  typical  examples. 

The  board  is  authorized  to  hold  regular  and  special  meet- 
ings. In  Wisconsin,  the  annual  meeting  of  the  supervisors 
occurs  on  the  first  Tuesday  after  the  general  election,  and 
special  meetings  may  be  called  by  the  county  clerk  on  the 
written  request  of  a  majority  of  the  board.1  The  members 
choose  their  own  chairman  annually  ;2  a  majority  is  necessary 
for  a  quorum  ;  and  all  meetings  are  open  to  the  public.  As 
elsewhere,  the  powers  of  the  county  as  a  body  politic  are  ex- 
ercised by  the  board.  And  at  any  legal  meeting,  it  is  empow- 
powered  to  make  orders  concerning  the  corporate  property, 
and  for  the  erection,  repair,  or  insurance  of  county  buildings. 
It  may  also  provide  seals  for  the  county  and  county  officers ; 
prescribe  the  form  of  all  public  records ;  and  procure  the 
necessary  books,  furniture,  and  supplies  for  the  various 
departments;  make  out  lists  of  jurors;  purchase  grounds, 


1  Revised  Statutes,  1878,  p.   237.     In   Nebraska   the   commissioners   are 
required  to  hold  three  regular  meetings  annually  :  on  the  second  Tuesday 
of  January,  the  third  Monday  in  June,  and  the  first  Tuesday  in  October. 
Special  meetings  may  be  called  by  the  clerk  by  publishing  the  objects  of 
the  meeting  five  days  in  advance  :  Compiled  Statutes,  1887,  pp.  295-6.     But 
where  the  supervisor  system  has  been  adopted,  two  regular  meetings  occur 
respectively  on  the  second  Tuesday  in  January   and   the   first   Tuesday 
in  June ;  special  meetings  being  called  by  the  clerk  on  the  written  request 
of  at  least  one  third  of  the  members  of  the  board ;   but  all  the  objects  of 
such  meetings  must  be  specified  in  the  notice :  Ib.,  296-7.     Cf.  Starr  and 
Curtis'  Annotated  Statutes  of  III.,  I,   661 ;    McLain's  Annotated  Statutes  of 
Iowa,  I,  69  ;  Revised  Statutes  of  Indiana,  1881,  p.  1234. 

2  Revised  Statutes,  1878,  p.   238.     The  chairman  of    the  supervisors   is 
chosen  in  the  same  way  in  Nebraska :  Compiled  Statutes,  1887,  p.  297.     But 
where  township  organization  has  not  been  adopted,  the  rule  is  different. 
"  In  counties  not  having  more  than  70,000  inhabitants,  the  commissioner 
whose  term  of  office  expires  in  one  year,  shall  be  chairman  .  .  .  for  that 
year,"  and  in  counties  having  more  than  70,000  inhabitants,  the  board,  at 
the  January  meeting,   chooses  its  own  chairman :  Ib.,  296.     Cf.  Howell's 
Annotated  Statutes  of  Mich.,  I,  198  ;  Starr  and  Curtis'  Annotated  Statutes 
of  111.,  I,  661-2 ;  Revised  Statutes  of  Idaho,  1887,  p.  239 ;  Statutes  of  Minn., 
1878,  p.  137. 


The  County  Board.  445 

not  exceeding  eight  thousand  dollars  in  value,  for  the  use  of 
fairs  and  exhibitions ;  levy  taxes ;  examine  claims ;  settle 
accounts ;  and  represent  the  county  in  all  cases  not  other- 
wise provided  for. 

Besides  these  general  powers,  various  duties  of  a  more 
special  nature  are  prescribed.  Thus  the  supervisors  may  set 
off  and  organize  townships  and  give  names  to  the  same; 
change  or  vacate  town  boundaries ;  appoint  commissioners  to 
lay  out  highways ;  alter,  vacate,  or  discontinue  city,  town, 
and  village  plats,  or  state  roads ;  offer  bounties  for  the 
destruction  of  wolves,  lynxes,  or  wild  cats  ;  change  the  name 
of  any  town,  village,  or  person  residing  within  the  county  ; l 
make  rules  for  the  preservation  of  fish  and  fix  the  period  dur- 
ing which  they  may  be  taken ;  and  incorporate  literary 
or  benevolent  societies.2 

But,  in  various  states,  the  powers  conferred  upon  the  board 
by  law  are  still  more  comprehensive.  Thus,  in  Nebraska, 
besides  many  functions  similar  to  the  foregoing,  the  commis- 
sioners may  hear  complaints,  and  remove  any  county  officer, 
for  official  misdemeanors.3  On  petition  of  a  majority  of  the 
sheep  owners  in  the  county,  they  are  authorized  to  appoint  a 
sheep  inspector;4  and  they  may  also  construct  dams,  dykes, 
or  embankments,  for  protection  against  high  water,  when  any 
portion  of  the  county  exceeding  three  hundred  and  twenty 
acres  is  endangered  by  the  probable  diversion  of  the  channel 
of  a  water  course.8  In  like  manner  they  may  appoint  a  pro- 
bate judge,  when  the  incumbent  is  absent  or  disqualified  from 
acting  in  any  cause  ; 6  approve  the  sale  of  lands  of  wards,  ex- 


1  Of  course,  when  legal  application  is  made: 
'Revised  Statutes  of  Wis.,  1878,  pp.  237-40. 

3  Camp.  Statutes,  1887,  pp.  310-11  ;  but  two  members  of  the  board  cannot 
remove  the  third  :  5  Nebraska,  403.    The  supervisors  also  have  jurisdiction 
in  such  cases :  18  Neb.,  428.  • 

4  Comp.  Statutes,  1887,  p.  59.    Cf.  Camp.  Laws  of  Kansas,  1885,  p.  927. 

5  Comp.  Statutes,  1887,  p.  314. 
8  Comp.  Statutes,  1887,  p.  336. 


446  Rise  of  the  County  in  the ,  Western  States. 

cept  those  of  minors;1  prescribe  the  number  of  deputies  or 
assistants  of  the  respective  county  officers ; 2  and  discharge 
various  other  duties. 

But  the  most  important  functions  of  the  board  are  compre- 
hended under  the  three  heads  of  roads  and  bridges,  support  of 
the  poor,  and  administration  of  finance  and  taxation.  In  each 
of  these  departments  the  commissioners  or  supervisors  possess 
much  discretionary  power  in  the  disposition  of  the  public 
moneys.  In  Nebraska,  road  districts  are  created  and  high- 
ways established,  altered,  or  vacated,  by  their  authority.3  By 
them  also  is  granted  the  right  of  way  to  private  persons  whose 
lands  are  enclosed  or  cut  off  from  the  public  thoroughfares;4 
and  in  counties  not  under  township  organization,  the  location 
and  character  of  all  bridges  and  culverts,  where  the  cost  ex- 
ceeds one  hundred  dollars,  is  left  solely  to  their  determina- 
tion.6 Moreover,  when  they  see  fit,  they  may  grade  and  pave 


1  Comp.  Statutes,  1887,  pp.  345,  351. 

2  Comp.  Statutes,  1887,  pp.  299,  437. 

In  general  on  the  powers  of  the  county  board,  see  Howell's  Annotated 
Statutes  of  Mich.,  I,  199-210;  Starr  and  Curtis'  Annotated  Statutes  of  111.,  I, 
653-61;  Revised  Statutes  of  Indiana,  1881,  pp.  1235-50;  Williams'  Revised 
Statutes  of  Ohio,  1886,  I,  180  ff. ;  Statutes  of  Minn.,  1878,  pp.  135-41 ;  Revised 
Statutes  of  N.  Y.,  II,  925-52 ;  McLain's  Annotated  Statutes  of  Iowa,  1880,  I, 
70-1 ;  General  Statutes  of  Col.,  1883,  pp.  257  ff. ;  General  Statutes  of  Nev., 
1885,  pp.  531  ff.;  Statutes  of  Col.,  1883,  pp.  299-300,  303  ff. ;  Compiled  Laws 
of  Dak.,  1887,  pp.  151  ff. ;  Revised  Statutes  of  Idaho,  1887,  pp.  240  ff.; 
Revised  Statutes  of  Wyoming,  1887,  pp.  467  ff. 

3  Comp.  Statutes  of  Neb.,  1887,  pp.  630,  633. 

4  Comp.  Statutes  of  Neb.,  1887,  p.  632. 

5  Comp.  Statutes  of  Neb.,  1887,  pp.  637-8.     When  under  township  organiza- 
tion, "  all  contracts  for  the  erection  and  reparation  of  bridges  and  approaches 
thereto,  for  the  building  of  culverts  and  improvements  on  roads,  within  the 
limits  of  any  township,  the  cost  or  expense  of  which  shall  exceed  one  hun- 
dred dollars,  shall  be  let  by  the  town  board  to  the  lowest  competent  bidder  " : 
Ib.,  639-40.     But  the  county  may  aid  any  township  in  cases  where  the  cost 
would  be  an  "  unreasonable  burden " :  Ib.,  640.     Also   in  counties  under 
township  organization,  the  expense  of  building  and  maintaining  bridges  on 
public  roads  over  streams  shall  be  borne  exclusively  by  the  county :  Ib.,  641. 


The  County  Board.  447 

streets  leading  into  cities,  or  construct  and  repair  bridges  within 
any  incorporated  city  or  village  of  the  county.1 

How  unrestricted  is  the  authority  of  the  board  in  the  dis- 
bursement of  the  county  funds,  is  well  illustrated  in  their 
administration  of  the  poor  law.  All  warrants  for  the  ex- 
penses incurred  by  the  local  overseers  are  drawn  by  order 
of  the  board ;  and  they  are  authorized  to  employ  a  county 
physician  at  a  cost  of  not  to  exceed  two  hundred  dollars  a  year. 
They  may  also,  whenever  they  see  fit,  and  without  vote  of  the 
people,  purchase  a  farm  of  not  more  than  six  hundred  and 
forty  acres,  and  erect  thereon  a  poor-house,  with  other  neces- 
sary buildings.  For  this  purpose,  they  are  authorized,  from 
time  to  time,  to  levy  a  tax  on  the  taxable  property  in  the 
county  of  not  to  exceed  one  per  cent,  of  the  assessed  valuation. 
They  may  also  appoint  agents  or  superintendents  for  the  man- 
agement of  the  institution,  and  order  all  necessary  expenditures 
for  the  support  of  the  same ;  which  expenditures  are  discharged 
from  the  levy  for  general  county  purposes.2 

Already  in  the  days  of  Aethelred  its  fiscal  business  was  a 
characteristic  feature  of  shire  administration.  Such  is  still 
the  case.  Everywhere  the  supervisors  or  commissioners  are 
given  the  levy  of  the  county  charge.  Moreover,  in  the  major- 
ity of  states,  all  accounts  must  be  allowed  by  them;  and  they 
are  constituted  a  board  for  the  equalization  of  assessments.3 


1  Comp.  Statutes  of  Neb.,  1 887,  pp.  627, 633.  Cf.  Revised  Statutes  of  Wig.,  1 878, 
p.  240,  where  the  county  board  is  authorized  to  grant  charters  to  persons  to 
maintain  toll  or  free  bridges,  turnpike  or  plank  roads,  and  ferries. 

•  Comp.  Statutes  of  Neb.,  1887,  pp.  547-8,  598.  Cf.  Starr  and  Curtis'  Anno- 
tated Statutes  of  III.,  II,  1738-40;  Brightly's  Purdon's  Digest  of  Pa.,  II,  1341. 
In  Ohio  the  county  commissioners  may  establish  orphan  asylums  and  appoint 
the  directors:  Williams'  Revised  Statutes,  1886,  1, 193.  They  may  also  nomi- 
nate the  trustees  of  children's  homes  and  superintendents  of  infirmaries: 
'/&.,  194,  200.  See  Comp.  Laws  of  Kansas,  1885,  p.  598,  600 ;  McLain's  Anno- 
tated Statutes  of  Iowa,  1,71;  HowelPs  Annotated  Statutes  of  Mich.,  I,  200-1. 

3 Such  is  the  case  in  Nebraska:  Comp.  Statutes,  1887,  pp.  290,  596,  598; 
Kansas:  Comp.  Laws,  1885,  p.  960;  Ohio:  Williams'  Revised  Statutes,  1886, 
I,  549,  187;  Revised  Statutes  of  Ind.,  1881,  p.  1236;  Washington  Territory: 
Washington  Code,  1881,  pp.  496,  498. 


448  Rise  of  the  County  in  the  Western  States. 

But  in  some  instances  a  departure  is  made  from  the  general 
type  of  fiscal  arrangements.  Thus,  in  Oregon,  the  place  of 
the  ordinary  board  is  taken  by  a  "  county  court "  composed  of 
the  county  judge  and  two  commissioners.  This  body  is  en- 
trusted with  the  levy  of  taxes  and  the  general  civil  business ; 
but  there  is  a  separate  board  of  equalization  consisting  of  the 
county  judge,  clerk,  and  assessor.1  In  Kansas,  for  counties 
having  over  twenty-five  thousand  inhabitants,  there  is  a  county 
auditor,  to  whom  the  clerk  is  required  to  certify  all  claims. 
These  are  then  reported  back  to  the  clerk  with  the  auditor's 
approval  or  disapproval.  But  the  commissioners  may  disallow 
any  claim,  even  after  the  auditor's  sanction.2  The  board  of 
equalization,  in  Minnesota,  consists  of  the  county  auditor  and 
the  commissioners.  In  Indiana  it  is  composed  of  the  commis- 
sioners and  four  freeholders,  residing  in  different  parts  of  the 
county,  nominated  by  the  judge  of  the  district  court.3  A 
peculiar  plan,  for  special  cases,  exists  also  in  Ohio.  Here,  in 
addition  to  the  commissioners,  there  is,  for  each  county  of 
180,000  inhabitants  containing  a  city  of  the  first  class  within 
its  limits,  a  separate  "  board  of  control,"  composed  of  five  mem- 
bers elected  for  three  years.  The  body  chooses  its  own  clerks 
and  establishes  its  own  rules  of  procedure  ;  and  it  has  "  final 
action  and  jurisdiction  in  all  matters  involving  the  expendi- 
ture of  money,  or  the  awarding  of  contracts,  or  the  assessing 
or  levying  of  taxes,  by  the  board  of  county  commissioners." 
The  latter  body  is  required  to  report  its  proceedings  to  the 
board  of  control.  Provision  is  also  made  for  a  joint  meeting 
of  the  two  boards  for  the  purpose  of  prescribing  rules  for 
their  official  intercourse,  and  the  forms  to  be  observed  in  cer- 
tain fiscal  transactions.4 

But  in  the  administration  of  finance,  as  in  various  other 


1  Hill's  Annotated  Laws,  II,  1294ft". 

2  Gamp.  Laws  of  Kansas,  1885,  pp.  294-5. 

*  Revised  Statutes  of  Indiana,  1881,  p.  1383. 
4  Williams'  Revised  Statutes,  1886,  I,  208-11. 


The  County  Board.  449 

departments  of  civil  government,  the  most  complex  methods 
prevail  in  Pennsylvania.  Every  county  has  a  triple  author- 
ity. The  board  of  three  commissioners  discharge  the  usual 
miscellaneous  functions.  To  them,  for  example,  belong  the 
construction  and  repair  of  bridges,1  the  oversight  of  the  poor,2 
the  letting  of  contracts  for  public  works,3  and  the  levy  of 
taxes.4 

But  the  accounts  of  the  commissioners  are  subject  to  the 
approval  of  the  board  of  auditors,  consisting  like  the  former, 
of  three  members  elected  for  three  years,  one  retiring  an- 
nually.8 The  statute  carefully  excludes  interested  parties 
from  serving  upon  the  board.  No  guardian  of  the  poor, 
inspector  of  prisons,  controller  of  public  schools,  member  of 
the  board  of  health,  nor  any  person  employed  in  the  office  of 
sheriff,  treasurer,  or  county  commissioners,  is  eligible.  The 
regular  meeting  occurs  on  the  first  Monday  of  January  ;  but 
special  meetings  may  be  held.  Two  members  constitute  a 
quorum ;  and  it  is  their  duty  to  audit  the  accounts  of  the 
sheriff,  treasurer,  and  coroner,  as  well  as  those  of  the  com- 
missioners and  the  officers  entrusted  with  the  care  of  the  poor. 
Appeal  from  their  decisions  lies  to  the  county  court  of  common 
pleas.6 

Superior  in  some  particulars  to  either  the  commissioners  or 
the  auditors,  is  the  court  of  quarter  sessions,  held  by  judges  of 
the  common  pleas.7  The  ancient  administrative  functions  of 
this  body  have  survived  with  wonderful  tenacity.  Besides  a 
limited  criminal  jurisdiction,  it  possesses  an  extensive  civil 
authority.  Thus  the  quarter  sessions  are  required  to  approve 
the  official  bonds  of  the  commissioners ;  and  a  vacancy  in  the 


'Brightly's  Purdon's  Digest,  II,  1506-7. 

'Brightly's  Purdon's  Digest,  II,  1341. 

5  Brightly's  Purdon's  Digest,  I,  366  ff.,  380. 

4  Brightly's  Purdon's  Digest,  II,  1582  ff.,  1610,  etc. 

5  Brightly'a  Purdon's  Digest,  I,  43-4,  376. 
•  Brightly's  Purdon's  Digest,  I,  375-7. 

7  Brightly's  Purdon's  Digest,  II,  1401. 
29 


450  Rise  of  the  County  in  the  Western  States. 

latter  body  is  temporarily  filled  by  them  acting  jointly  with 
the  surviving  members.1  They  may  also  establish  school 
districts,2  incorporate  boroughs,3  erect,  change,  or  divide  town- 
ships,4 alter  election  districts,5  approve  constables'  bonds  and 
fill  vacancies  in  that  office,6  license  taverns  and  peddlers,7  and 
nominate  certain  town  officers  on  failure  of  the  people  to 
elect.8  Finally  the  commissioners  are  authorized  to  erect 
county  buildings  and  borrow  money  for  that  purpose  only 
after  receiving  the  approval  of  the  quarter  sessions  and  two 
successive  grand  juries.9 


IV. — THE  COUNTY  OFFICERS  AND  THEIR  FUNCTIONS. 
(a). — The  Clerk,  Auditor,  and  Register. 

Administratively  the  clerk  is  the  most  important  officer  of 
the  county.  He  has  inherited  a  portion  of  the  duties  of  the 
ancient  clerk  of  the  peace;  and  as  custodian  of  the  county 
records,  he  also  represents  the  English  custos  rotulorum. 

Primarily  he  is  secretary  of  the  county  board,  being  re- 


1  But  one  of  the  justices  of  quarter  sessions  may  approve  the  commis- 
sioner's bond  :  Brightly's  Purdon's  Digest,  I,  378-9. 

2  Brightly's  Purdon's  Digest,  I,  283. 

3  Brightly's  Purdon's  Digest,  I,  196-7. 
*  Brightly's  Purdon's  Digest,  I,  371. 

5  Brightly's  Purdon's  Digest,  1,  40,  b'76. 

6  Brightly's  Purdon's  Digest,  I,  316. 

7  Brightly's  Purdon's  Digest,  II,  1077,  1308. 

8  Brightly's  Purdon's  Digest,  II,  1638. 

9  Brightly's  Purdon's  Digest,  I,  366-7.     This  power  of  the  grand  jury  is 
also  handed  down  from  the  eighteenth  century. 

A  dual  fiscal  authority  exists  in  Michigan  for  Wayne  county  which  in- 
cludes the  city  of  Detroit.  There  is,  first,  the  board  of  supervisors  for  the 
equalization  of  taxes  and  for  the  apportionment  of  the  county  and  state 
taxes  among  the  towns.  All  other  ordinary  duties  of  the  supervisors,  in- 
cluding the  levy  of  taxes,  belong  to  a  second  board  of  three  auditors  : 
HowelPs  Annotated  Statutes,  I,  210-11.  Cf.  Farmer,  Hist,  of  Detroit  and 
Mich.,  124. 


The  County  Officers  and  their  Fwiction*.  451 

quired  to  attend  its  meetings,  record  its  proceedings,  preserve 
its  official  documents,  and  countersign  all  warrants  drawn 
upon  the  treasury. 

Where  the  more  centralized  forms  of  county  government 
exist,  the  clerk,  in  addition  to  the  functions  growing  directly 
out  of  his  relations  to  the  board,  performs  a  vast  number  of 
special  duties  of  an  executive  and  secretarial  nature.  He  acts 
as  a  check  upon  the  treasurer,  keeping  an  account  of  all 
receipts  and  expenditures.  In  Kansas  he  is  required  to  certify 
to  the  secretary  of  state  the  names  and  boundaries  of  all  new 
townships  formed,  or  any  change  in  town  boundaries ;  assess 
property  when  the  assessors  have  failed  so  to  do ;  countersign 
the  treasurer's  receipts ;  file  lists  of  officers  with  the  secretary 
of  state;  administer  oaths;  and  submit  annually  to  the  state 
auditor  a  financial  exhibit  of  the  revenues  and  expenditures  of 
his  county.1  Furthermore  it  is  his  duty  to  issue  certificates  of 
election  to  town  officers;2  deliver  lists  of  taxable  real  estate 
to  the  assessors  ;3  publish  meetings  of  the  board  of  equaliza- 
tion ;4  keep  a  record  of  strays  ;8  make  return  of  the  census  ;6 
and  execute  deeds  in  fee  simple  to  unredeemed  lands  sold  for 
delinquent  taxes.7 

Similar  functions  are  discharged  by  the  clerk  in  New 
York,8  Michigan,9  Illinois,10  Wisconsin,11  Nebraska,12  Oregon,13 


1  Camp.  Laws  of  Kan.,  1885,  pp.  272-3. 

I  Comp.  Laws  of  Kan.,  1885,  p.  985. 
8  Comp.  Laws  of  Kan.,  1885,  p.  955. 
*  Comp.  Laws  of  Kan.,  1885,  p.  960. 
4  Qmp.  Laws  of  Kan.,  1885,  p.  923. 
8  Comp.  Laws  of  Kan.,  1885,  p.  132. 
i  Comp.  Laws  of  Kan.,  1885,  p.  972. 

8  Revised  Statutes,  I,  Index. 

9  Howell's  Annotated  Statutes,  I,  58  :  Constitution,  Art.  X. 

10  Starr  and  Curtis'  Annotated  Statutes,  I,  157  :  Constitution,  Art.  X,  \  8. 

II  Revised  Statutes,  1878,  pp.  248-50. 
12  Comp.  Statutes,  1887,  pp.  298-302. 

"Hill's  Annotated  Laws,  I,  98;  Constitution,  Art.  VII,  |§  6,  7. 


452  Rise  of  the  County  in  the  Western  States. 

Colorado,1  and  Wyoming ; 2  and  by  the  county  auditor — who 
takes  the  place  of  the  clerk — in  Ohio,3  Indiana,4  Minnesota,5 
Iowa,6  Washington,7  and  Idaho.8  But  in  several  instances 
provision  is  made  for  both  offices ;  and  in  that  event  the 
clerk  performs  the  usual  secretarial  duties,  while  the  special 
business  of  examining  claims  and  accounts  is  relegated  to  the 
auditor.9  But  whatever  the  plan,  the  county  board  is  gen- 
erally the  superior  authority  for  the  settlement  of  claims. 

Two  other  important  county  officers  are  the  recorder  or 
register  of  deeds10  and  the  clerk  of  the  district  or  circuit 


1  General  Statutes,  1883,  pp.  266  ff. 

2  Revised  Statutes,  1887,  pp.  474  ff. 

3  Williams'  Revised  Statutes,  1886,  I,  212-23,  181. 
*  Revised  Statutes,  1881,  p.  1267. 

5  Statutes  of  Minn.,  1878,  pp.  141-4. 

6  McLain's  Annotated  Statutes,  I,  79-80. 

7  Washington  Code,  1881,  pp.  470-3. 

8  Here  the  recorder  of  deeds  is  ex  officio  auditor :  Revised  Statutes,  1887, 
pp.  249,  276. 

9  Such,  as  we  have  seen,  is  the  case  in  Kansas  and  Michigan  for  populous 
counties  ;  and  the  special  auditing  boards  of  Ohio  and  Pennsylvania  have 
also  been  discussed.      Each  county  in  California  may  have  a  clerk  and  an 
auditor,  but  the  offices  maybe  combined  in  the  same  hands:  Statutes  of  Col., 
1883,  p.  315.  A  similar  law  exists  in  Dakota ;  but  when  there  is  also  a  reg- 
ister, then  the  clerk  is  ex  officio  auditor :  Compiled  Laws,  1887,  pp.  164-6. 

10  Thus,  in  Nebraska,  a  register  is  elected  in  every  county  having  at  least 
18,003  inhabitants  ;  otherwise  the  duty  of  recorder  is  performed  by  the 
county  clerk  :   Comp.  Statutes,  1887,  p.  298-9.     Separate  registers  or  record- 
ers are  chosen  in  Kansas:  Comp.  Laws,  1885,  p.  405;  Ohio :  Williams'  Re- 
vised Statutes,  1886, 1,  235-9 ;  Indiana :  Revised  Statutes,  1881,  p.  1272 ;  Wis- 
consin: Revised  Statutes,  1878,  p.  246;  Minnesota:  Statutes,  1878,  pp.  150-3; 
Iowa :  McLain's  Annotated  Statutes,  I,  157-8 ;  and  Oregon :  Hill's  Annotated 
Laws,  II,  1 139.  The  offices  of  clerk  and  register  are  combined  in  Wyoming : 
Revised  Statutes,  1887,  pp.  474-8;  and  in  Colorado:  General  Statutes,  1883,  p. 
266.     They  may  be  united  in  Michigan:   Howell's  Annotated  Statutes,  I, 
225-6  ;  Constitution,  Art.  X  :  Ib.,  I,  58  ;  also  in  California  :  Statutes,  1883, 
p.  315.     In  Idaho  the  recorder  is  ex  officio  auditor:  Revised  Statutes,  1887,  p. 
249 ;  in  Dakota,  either  the  register  is  ex  officio  clerk,  or  the  clerk  is  ex  officio 
auditor:  Comp.  Laws,  1887,  pp.  163-6. 


The  County  Officers  and  their  Functions.  453 

court.1  These  are  often  separately  chosen  by  the  electors ;  but 
in  administrative  practice,  their  duties  sometimes  devolve  upon 
the  auditor  or  clerk. 

(6). — The  Treasurer  and  Assessor. 

Politically  the  county  treasurership  is  the  most  important 
local  office  in  the  gift  of  the  people,  since  it  is  the  most  lucra- 
tive. As  custodian  of  the  county  funds  and  temporarily  of 
the  state,  and  sometimes  of  village  and  city,  revenue  derived 
from  taxation,  the  treasurer  is,  of  course,  a  very  responsible 
officer;  and  he  is  required  to  execute  a  heavy  bond  for  the 
faithful  discharge  of  his  trust.  He  always  receives  a  liberal 
salary,  graduated,  as  a  rule,  according  to  the  population  of  the 
county  for  which  he  is  chosen.2  Besides  this  is  the  advantage, 


IIn  Nebraska  a  clerk  of  the  district  court  is  quadrennially  chosen 
in  every  county  having  a  population  of  8000  inhabitants ;  in  other  coun- 
ties the  clerk  officiates :  Comp.  Statutes,  1887,  p.  387.  In  each  county  a  clerk 
is  separately  elected  for  the  common  pleas  in  Ohio:  Williams'  Revised 
Statutes,  1886,  pp.  254-9;  for  the  circuit  court  in  Wisconsin  and  Indiana: 
Revised  Statutes  of  Wis.,  1878,  p.  246 ;  Revised  Statutes  of  Ind.,  1881,  pp. 
1263-9 ;  for  the  district  and  circuit  courts  in  Iowa :  McLain's  Annotated 
Statutes,  I,  157-8.  In  Illinois  there  is  an  elective  clerk  of  the  circuit  court, 
who,  however,  is  ex  officio  register  of  deeds,  except  in  counties  having  60,000 
inhabitants,  when  a  separate  recorder  must  be  chosen :  Starr  and  Curtis' 
Annotated  Statutes,  I,  157,  1004.  But  the  county  clerk  is  ex  officio  clerk  of 
the  circuit  court  in  Michigan :  Howell's  Annotated  Statutes,  I,  52  :  Constitu- 
tion, Art.  VI ;  of  the  courts  of  record  in  Nevada :  Oeneral  Statutes,  1885,  p. 
32:  Constitution,  Art.  IV ;  and  of  the  superior  and  county  courts  in  New 
York  :  Revised  Statutes,  I,  344. 

2  At  present,  in  Nebraska,  the  treasurer,  like  the  clerk,  sheriff,  and 
county  judge,  is  allowed  certain  fees;  but  in  counties  having  less  than  25,000 
inhabitants,  when  the  fees  amount  to  more  than  2000  dollars  a  year,  the 
excess  must  be  turned  into  the  treasury ;  elsewhere  he  receives  a  salary  of 
3000  dollars  a  year.  But  in  other  states  a  much  higher  salary  is  often  paid. 
In  Kansas  the  fees  collected  by  the  treasurer  and  clerk  are  deducted  from 
their  salaries :  Compiled  Laws,  1885,  p.  277.  In  California,  for  the  purpose 
of  grading  the  compensation  of  officers,  the  counties  are  arranged  in 
48  classes:  Statutes  of  1SSS,  pp.  332-6;  Statutes  of  1885,  pp.  195-8;  and, 
similarly,  in  Idaho,  there  are  6  classes  :  Revised  Statutes,  1887,  p.  275. 


454  Rise  of  the  County  in  the  Western  States. 

often  much  more  important  than  the  salary,  which  he  derives 
from  deposits  of  the  public  moneys :  a  practice  tolerated  by 
the  community,  but  not  contemplated  by  the  law. 

The  county  treasurer  is  usually  ex  offitio  collector  of  the 
county  and  state  taxes.1  By  the  Nebraska  statute,  where 
township  organization  has  not  been  introduced,  he  is  more- 
over the  collector  of  taxes  levied  in  villages  and  in  cities  of 
the  second  class ; 2  but  where  such  organization  has  been  adopted, 
the  local  treasurers  are  the  collectors.3  In  the  former  case,  the 
county  treasurer  is  required,  on  proper  demand,  to  pay  to  their 
respective  treasurers  all  moneys  collected  by  him  for  school 
districts,  villages,  or  cities ;  in  the  latter,  the  local  collectors 
must  settle  with  the  county  treasurer,  accounting  for  all  funds 
save  those  levied  for  their  own  districts.  And,  furthermore, 
it  is  the  duty  of  the  county  treasurer  to  settle  annually  with 
the  auditor  of  public  accounts,  and  pay  over  when  required 
all  moneys  due  the  state.4 

Generally  the  assessment  of  taxes  is  entrusted  to  precinct 
or  township  officers.  But  in  several  states  and  territories  a 
county  assessor  appears.  Such  is  the  case  in  Missouri,5  Wash- 
ington,6 Dakota,7  California,8  Oregon,9  Nevada,10  Colorado,11  and 
Wyoming  ;12  while  in  Illinois,  the  treasurer  is  ex  officio  assessor 


1  Each  county  is  authorized  to  elect  a  separate  collector  in  California ; 
but  the  office  may  be  combined  with  that  of  treasurer:  Statutes,  1883,  p. 
315.     There  is  also  a  county  collector  in  Missouri :  Shannon,  Oivil  Govt.,  308. 

2  Comp.  Statutes,  1887,  pp.  190,  205. 

5  Comp.  Statutes,  1 887,  pp.  600-4. 
*Comp.  Statutes,  1887,  pp.  616-17,  696-7. 

6  Shannon,  Civil  Government,  309. 

6  Washington  Code,  1881,  p.  477.     But  in  some  counties  the  sheriff  acts. 

7  Comp.  Laws,  1887,  p.  150. 
9  Statutes,  1883,  p.  315. 

9  Hill's  Annotated  Laws,  II,  1160. 

10  General  Statutes,  1885,  pp.  568,  570.     But  the  duties  of  the  office  are  per- 
formed by  the  sheriff. 

11  General  Statutes,  1883,  pp.  280-1. 
"Revised  Statutes,  1887,  pp.  480-1. 


The  County  Officer*  and  their  Functions.  465 

in  counties  where  township  organization  has  not  been  estab- 
lished.1 But  to  facilitate  the  administration  of  his  office,  the 
county  is  usually  divided  into  districts  and  the  assessor  is 
authorized  to  appoint  deputies. 

(o). — The  Sheriff,  Coroner,  Surveyor,  and  Superintendent. 

The  western  sheriff  is  perhaps  not  equal  in  rank  and  social 
prestige  to  the  Norman  vicecomes,  nor  even  to  the  contem- 
porary magistrate  of  the  English  shire.  Nevertheless  the 
office  is  one  of  dignity  and  power.  Though  chosen  by  the 
electors  of  his  district,  he  is  still  the  representative  of  the 
majesty  of  the  state ;  and,  practically,  he  still  remains  the  con- 
stitutive officer  of  the  county.  For  whatever  functionary 
may  be  dispensed  with,  without  a  sheriff  there  is  no  shire. 
The  emoluments  of  the  office  are  only  second  in  impor- 
tance to  those  of  the  treasurer ;  and  consequently  the  post  is 
usually  the  object  of  sharp  political  rivalry. 

The  statutory  provisions  relating  to  the  duties  of  the  sheriff 
are  everywhere  much  the  same.  He  is  always  a  peace  magis- 
trate and  the  ministerial  officer  of  the  higher  courts ;  while, 
here  and  there,  a  trace  of  his  original  fiscal  power  survives.8 

Other  elective  officers  of  every  western  county  are  the 
coroner,  whose  functions  are  important,  especially  in  populous 
districts ;  the  land  surveyor,  whose  office  has  descended  from 
colonial  times ;  and  the  superintendent,  who  is  entrusted  with 
the  examination  of  teachers,  the  visitation  of  schools,  and  the 
apportionment  of  the  public  school  funds  among  the  various 
districts  of  the  county. 

1  Starr  and  Curtis'  Annotated  Statutes,  I,  1003. 

1  Thus,  in  Nebraska,  the  sheriff  was  originally  ex  offieia  county  assessor : 
see  the  Code  of  1855-6:  Comp.  Session  Laws  of  Neb.,  I,  238-9;  and  such  is 
the  case  in  Nevada :  Gen.  Statutes,  1885,  p.  568.  In  California  the  offices  of 
sheriff  and  collector  may  be  united:  Statutes,  1883,  p.  315;  and  they  are 
united  in  Oregon:  Hill's  Annotated  Laws,  II,  1300  ff.  In  Washington  the 
sheriff  is  sometimes  county  assessor :  Code,  1881,  p.  477. 


456  Rise  of  the  County  in  the  Western  States. 

(d).  —  The  Prosecuting  Attorney,  Public  Administrator,  and 
County  Judge. 

Besides  the  prosecuting  attorney,  chosen  like  other  officials 
by  popular  vote,  the  only  important1  officers  of  the  county  not 
already  mentioned  are  the  public  administrator  and  the  county 
judge.  The  duties  of  the  former,  as  the  name  implies,  are 
concerned  with  the  administration  of  estates;  but  they  are 
usually  performed  by  the  county  judge.2 

The  higher  civil  and  criminal  jurisdiction  formerly  belong- 
ing to  the  county  courts  of  common  pleas  and  quarter  sessions 
is  now  vested  chiefly  in  the  circuit  or  district  court.3  But 
there  is  still,  in  many  states,  a  county  court  presided  over  by 
a  single  elective  judge.  This  tribunal  usually  exercises  original 
and  exclusive  jurisdiction  in  matters  of  probate,  administra- 
tion, and  guardianship.  Sometimes  it  possesses  a  wider  com- 


1  Occasionally,  however,  other  officers  appear.     Thus,  in  Nevada,  each 
county,  when  necessary,  may  have  an  elisor,  appointed  by  the  judge  of  pro- 
bate or  other  judge,  to  execute  process  in  the  absence  or  disability  of  the 
sheriff:   General  Statutes,  1885,  p.  581.     In  New  York  there  are  elective 
county  superintendents  of  the  poor:   Revised  Statutes,  III,   1873;    also  a 
sealer  of  weights  and  measures  appointed  by  the  supervisors:  16.,  II,  1848  ; 
and  commissioners  of  turnpikes  in  certain  counties:   Ib.,  I,  348.     Some 
counties  in  Washington  choose  wreck  masters:  Code,  1881,  pp.  484-8. 

2  Public  administrators  are  chosen  in  Nevada,  where  they  are  ex  officio 
coroners :  General  Statutes,  1885,  pp.  593  ff. ;  in  California,  where  the  office 
may  be  combined  with  that  of  coroner:    Statutes,  1883,  p.  315;    but  in 
Idaho  the  county  treasurer  is  ex  officio  administrator :  Revised  Statutes,  1887, 
pp.  643,  249. 

3  The  district  or  circuit  court,  like  the  courts  of  the  itinerant  justices 
under  Henry  II  and  his  successors,  is,  in  an  important  sense,  a  court  of  the 
shire.     The  district  may  comprise  several  counties ;  but  the  court  is  held 
"in  and  for"  each  particular  county,  and  its  mesne processes  do  not  usually 
run  beyond  the  county  limits.    In  Nebraska,  however,  final  process  runs 
throughout  the  state ;  and  the  jurisdiction  of  the  judge  "  at  chambers  "  may 
be  exercised  anywhere  in  his  district.     But  in  general  with  respect  to  the 
serving  of  processes,  the  authority  of  the  court  is  precisely  the  same  for  any 
other  county  of  the  state  as  it  is  for  any  county  of  the  district  in  which  it 
is  not  sitting. 


The  County  Officers  and  their  Functions.  467 

petence.  Thus,  in  Nebraska,  the  county  judge  is  granted 
the  ordinary  powers  of  a  justice  of  the  peace ;  and,  in  civil 
cases,  a  jurisdiction  concurrent  with  that  of  the  district  court 
in  any  sum  not  exceeding  one  thousand  dollars.  But  he  is 
expressly  prohibited  from  trying  actions  for  malicious  prose- 
cution, official  misconduct,  slander  or  libel,  and  those  relating 
to  the  sale  or  title  of  real  estate.1  Various  other  duties  are 
prescribed  by  law.  Thus  he  may  appoint  persons  to  assess 
damage  for  right  .of  way,  issue  marriage  licenses  and  record 
marriage  certificates,  prosecute  tramps,  commit  children  to  the 
reform  school,  enter  decrees  of  adoption,  and  try  contested 
elections.2 

Such  is  the  general  character  of  the  modern  county  court  in 
its  most  developed  form.3  Only  in  one  or  two  instances,  in 
the  group  of  states  under  consideration,  have  traces  of  the 
judicial  system  of  the  colonial  period  been  partially  preserved. 
Thus,  in  New  York,  "  courts  of  sessions "  are  held  by  the 
county  judge  and  two  justices  of  the  peace.4  And  in  Penn- 
sylvania, courts  of  common  pleas  and  quarter  sessions  are  still 
maintained.  But  these  are  now  composed  of  the  same  mem- 
bers—  a  president  and  two  associate  judges.  The  common 
pleas  are  authorized  to  try  all  "causes  civil,  personal,  and 
mixed ; "  while  the  quarter  sessions,  in  addition  to  their 


1  Comp.  Statutes,  1887,  p.  331. 

1  On  these  powers,  see  Comp.  Statutes,  1887,  pp.  249,  504-5,  583, 831,  396. 

3  Probate  judges  are  chosen  in  Michigan  :  Howell's  Annotated  Statutes,  I, 
53:  Const.,  Art.,  VI ;  Dakota:  Comp.  Laws,  1887,  p.  150;  Minnesota:  Statutes, 
1878,  pp.  157,  572;  Kansas:  Compiled  Laws,  1885,  p.  280;  Idaho:  Revised 
Statutes,  1887,  pp.  249,  251. 

There  is  a  county  judge  in  Illinois:  Starr  and  Curtis'  Annotated  Statutes, 
I,  134 :  Const.,  Art.  VI,  §  18 ;  and  in  counties  having  50,000  inhabitants  also 
a  probate  judge :  Const.,  Art.  VI,  \  20 ;  in  Wisconsin :  Revised  Statutes,  1878, 
pp.  282-3;  Oregon:  Hill's  Annotated  Laws,  I,  636,  101-2.  Cf.  Stimson, 
American  Statute  Law,  119,  126. 

'Revised  Statutes,  III,  2364-5,  2377,  2544-5;  Const.,  Art.  VI,  $  15:  Ib., 
I,  97.  Cf.  Stimjon,  American  Statute  Law,  I,  117. 


458  Rise  of  the  County  in  the  Western  States. 

criminal  jurisdiction,  still  participate  in  the  work  of  civil 
administration.1 


V.— THE  COUNTY  IN  THE  EAST  AND  SOUTH. 
(a). — Rise  of  Elective  Commissioners  in  New  England. 

The  evolution  of  local  organisms  in  the  West  constitutes  a 
remarkable  era  in  the  history  of  English  institutions.  A 
hundred  years  of  experiment  have  produced  results  of  great 
constitutional  significance.  The  proper  balance  of  local 
authorities  has  been  restored.  The  township,  the  county, 
and  the  state  have  each  been  assigned  their  just  share  in 
the  work  of  self-government.  And  that  these  results  are  of 
really  national  importance,  we  shall  better  appreciate,  if  we 
now  examine  the  history  of  county  organization  in  the  East 
and  South.  For  the  changes  of  most  general  interest  which 
have  occurred,  or  are  gradually  taking  place,  in  those  regions, 
consist  in  the  introduction  of  the  county  board  and  the  adop- 
tion of  the  principle  of  election  in  the  choice  of  officers ;  while 
here  and  there,  as  the  social  conditions  become  more  favorable, 
the  rudiments  of  the  co-operative  township-county  system  are 
making  their  appearance.  And  who  will  doubt  that  these 
innovations  are  due  in  part,  especially  in  the  southern  and 
southwestern  states,  to  the  influence  of  previous  experience  in 
the  West? 

But  in  New  England,  with  respect  to  the  powers  and  uses 
of  the  county,  no  real  progress  has  been  made.  The  county 
is  still  a  feeble  organism  employed  for  a  limited  number  of 


1 "  Judges  of  the  courts  of  common  pleas  learned  in  the  law  shall  be  judges 
of  the  courts  of  oyer  and  terminer,  quarter  sessions  of  the  peace,  and  general 
jail  delivery,  and  of  the  orphans'  court,  and  within  their  respective  districts 
shall  be  justices  of  the  peace  as  to  criminal  matters : "  Const.,  Art.  V,  §  9 : 
Poor,  Charters,  II,  1580;  Brightly's  Purdon's  Digest,  I,  36,  268-79.  Of. 
Chap.  VIII,  m,  (b). 


The  County  in  the  East  and  South.  459 

purjx>se8.  Indeed  in  some  cases  it  is  of  even  less  govern- 
mental significance  than  it  was  in  the  seventeenth  century. 

Thus,  in  Rhode  Island — to  begin  with  the  body  in  its  most 
rudimentary  condition — each  of  the  fiv.e  counties  is  merely  a 
circumscription  for  the  holding  of  courts,  and  for  the  election 
of  a  sheriff  and  the  clerks  of  the  supreme  court  and  the  court 
of  common  pleas.1 

Each  county  in  Vermont  chooses  one  commissioner  annu- 
ally, whose  duty  it  is  to  appoint  agents  for  the  various  towns, 
to  sell  spirituous  liquors  for  medicinal,  chemical,  and  mechani- 
cal purposes.2  Besides  this,  the  county  court  exercises  a  higher 
jurisdiction  in  certain  questions  connected  with  the  highway 
administration.3  But  all  real  local  authority  belongs  to  the 
towns. 

Somewhat  more  developed  is  the  organization  in  Connecti- 
cut. The  state  is  divided  into  eight  counties,  for  each  of 
which  three  commissioners  are  periodically  appointed  by  the 
general  assembly.4  They  are  entrusted  with  the  care  of  the 
county  property  and  may  purchase  and  sell  real  estate  on  its 
behalf ;  but  all  conveyances  are  made  in  the  treasurer's  name. 
To  them  also  belongs  the  oversight  of  the  county  jail,  and 
they  may  fix  the  number  of  employes,  jailors,  and  other 
officers.5  They  are  authorized  to  assess  damages  caused  by 
the  coast  survey;6  establish  rules  for  the  government  of 
county  work-houses;7  and  levy  money  for  the  repair  of  the 

^Public  Statutes,  1882,  pp.  39,  74.     A  court  of  common  pleas  is  held  in 
each  county  by  some  one  or  more  of  the  justices  of  the  supreme  court 
16.,  510. 

^Revised  Laws,  1880,  pp.  732-3. 

'Revised  Laics,  1880,  pp.  209,  570-2.  But  a  representative  county  con- 
vention is  held  quadrennially  to  equalize  the  assessment  of  lands.  It  is 
composed  of  delegates  appointed  from  their  own  members  by  the  town 
listers:  /&.,  124-5. 

*  General  Statutes,  1888,  pp.  2,  429-30. 
»  General  Statutes,  1888,  pp.  740  ff. 

•  General  Statutes,  1888,  p.  412. 
T  General  Statutes,  1888,  p.  748. 


460  Rise  of  the  County  in  the  Western  States. 

court-house  or  jail,  when  the  cost  does  not  exceed  six  hun- 
dred dollars.1 

But  by  a  curious  arrangement,  the  superior  authority  in 
fiscal  matters  is  given  to  a  joint  assembly  of  the  state  senators 
and  representatives  for  the  county.  This  body  is  required  to 
meet  biennially  at  a  suitable  place  in  the  state  capitol  designated 
by  the  speaker  of  the  house.  The  meeting  is  called  to  order 
by  the  representative  who  is  senior  in  years,  after  which  a 
chairman  and  a  clerk  are  chosen*  The  business  of  the  assem- 
bly consists  in  making  specific  appropriations  for  any  of  the 
items  of  county  expenditure;  estimating  and  apportioning 
the  county  taxes ;  and  in  appointing  from  their  own  number 
two  auditors  to  examine  the  accounts  of  the  treasurer,  commis- 
sioners, and  jailor.  And  at  any  time  when  the  commissioners 
think  a  special  tax  is  needed,  they  may  call  the  body  together 
to  make  the  levy.2 

The  remaining  officers  of  the  county  are  the  coroner, 
appointed  every  three  years  by  the  judges  of  the  superior 
court  on  recommendation  of  the  state's  attorney  ;  the  treasurer, 
nominated  by  the  commissioners ;  and  the  sheriff,  chosen  quad- 
rennially by  popular  vote.3 

A  novel  system  prevails  likewise  in  New  Hampshire. 
Here  the  elective  principle  is  thoroughly  carried  out ;  each 
of  the  ten  counties  chousing  every  two  years  a  sheriff,  treasurer, 
solicitor,  register  of  deeds,  register  of  probate,  and  three  com- 
missioners.4 


1  The  cost  of  such  repairs  may  be  apportioned  among  the  towns,  when 
such  cost  can  not  be  defrayed  from  the  county  treasury :  General  Statutes, 
1888,  p.  432. 

2  General  Statutes,  1888,  pp.  432-3.     At  such  special  meetings  the  clerk 
of  the  superior  court  is  secretary. 

3  General  Statutes,  1888,  pp.  189,  430,  434-6.     In  several  counties  of  Con- 
necticut a  court  of  common  pleas  is  held  by  judges  appointed  by  the  general 
assembly:  76.,  178,  185.     Probate  business  does  not  belong  to  the  county ; 
but  the  state  is  divided  into  a  large  number  of  districts  in  each  of  which  a 
judge  of  probate  is  biennially  elected:  /&.,  46-50,  107. 

4  The  state  is  divided  into  10  counties :  General  Laws,  1878,  pp.  80-2,  89. 


The,  Cvunty  in  the  East  and  South.  461 

But  the  commissioners  possess  little  independent  authority. 
In  all  important  matters  they  are  subject  to  the  control  of  a 
"county  convention,"  which  is  composed  of  the  "representa- 
tives of  the  towns  of  the  county."1  The  regular  meeting  of 
the  convention  occurs  biennially  in  June,  notice  being  given 
by  the  speaker  of  the  house  of  representatives.  The  body 
elects  its  own  chairman  and  clerk ;  levies  the  county  taxes ; 
and  authorizes  the  commissioners  to  issue  bonds  and  to  repair 
buildings  whenever  the  cost  shall  exceed  one  thousand  dollars. 
Moreover  it  is  empowered  to  choose  biennially  two  auditors 
of  accounts,  who,  by  a  singular  provision,  are  to  be  selected 
"one  each  from  the  two  leading  political  parties."2 

The  county  commissioners,  however,  may  elect  from  their 
own  number  a  clerk  to  record  their  proceedings;  have  the 
care  of  county  property;  take  charge  of  paupers;  and  lay 
out  highways.  But  they  are  allowed  to  establish  houses  of 
correction  and  purchase  or  convey  real  estate,  only  when 
authorized  by  the  convention.3 

More  varied  and  more  important  are  the  powers  of  the 
county  in  Maine,  where  the  entire  supervision  of  the  financial 
business  is  entrusted  to  three  elective  commissioners.4 

But  it  is  in  Massachusetts,  now  as  formerly,  that  New 
England  county  government  reaches  its  highest  development. 
And  here  the  point  of  chief  historical  interest  is  the  genesis  of 
the  elective  board. 

Until  1828  the  civil  administration  of  the  county,  origi- 
nally vested  in  the  general  sessions  of  the  peace,  was  exercised 
by  a  court  of  "  sessions,"  composed  of  a  chief  justice  and  two 
associates,  appointed  by  the  governor.8  But  already  in  1826 


1  General  Laws,  1878,  p.  88.  Note  that  senators  are  not  included  as  they 
are  in  Connecticut. 

1  General  Lavs,  1878,  pp.  87-8,  91-2. 

^General  Laws,  1878,  pp.  90-2,  176  ff. 

4 Revised  Statutes,  1883,  pp.  644-48;  and  Index. 

6  In  1814  the  powers  of  the  former  courts  of  sessions  were  transferred  to 
new  "circuit  courts  of  common  pleas;  "  but  by  an  act  of  Feb.  20,  1819,  the 


462  Rise  of  the  County  in  the  Western  States. 

an  important  step  was  taken  in  the  differentiation  of  a  new 
authority  for  the  management  of  civil  affairs.  By  an  act  of 
that  year,  the  laying  out  of  public  roads  in  each  county  was 
given  to  five  commissioners  of  highways,  to  be  appointed  by 
the  governor  for  a  term  of  five  years.1  This  is  the  germ  of 
the  board  of  commissioners  in  Massachusetts ;  and  it  is  inter- 
esting to  observe  that  here  it  was  the  management  of  high- 
ways for  which  a  body  separate  from  the  court  of  sessions  was 
first  required ;  whereas,  in  New  York  and  Pennsylvania,  the 
supervisors  and  commissioners  were  originally  employed  solely 
for  the  administration  of  taxation  and  finance. 

Two  years  later,  in  1828,  appeared  a  statute  by  which  was 
outlined  the  principal  features  of  county  organization  as  it 
still  exists.  The  governor  is  authorized  to  appoint  three  or 
four  commissioners  for  each  county,  who  are  to  perform  all 
the  duties  of  the  commissioners  of  highways  as  well  as  the 
general  functions  of  the  courts  of  sessions.  Besides  the 
regular  or  "  standing "  commissioners  two  "  special "  com- 
missioners are  to  be  appointed  for  each  county ;  and  these  are 
to  serve  as  substitutes  when  any  of  the  standing  commissioners 
are  disqualified  from  acting.2 

Finally,  in  1835,  both  classes  of  commissioners  were  made 
elective.3  And  so  it  appears  that  not  until  ten  years  after 
their  advent  in  Michigan,  were  county  commissioners  insti- 
tuted in  Massachusetts  ;  and  in  the  latter  state  they  were  not 
chosen  by  popular  vote  until  thirty-one  years  after  they  were 
so  chosen  in  Ohio,  and  eight  years  after  the  elective  town 
supervisors  had  superseded  them  in  Michigan.4 


latter  tribunals  were  abolished  and  their  jurisdiction  again  vested  in  courts 
of  sessions :  Laws  of  Mass.,  1819,  pp.  189-92.  The  courts  of  "  general  ses- 
sions of  the  peace"  appear  to  have  survived  until  the  act  of  June  19, 
1809 :  Laws  of  Mass.,  1809,  pp.  22-3. 

lLaws  of  Mass.,  1826,  pp.  304-6. 

2  Act  of  Feb.  26,  1828:  Laws  of  Mass.,  718-28. 

^Revised  Statutes  of  Mass.,  1836,  pp.  160  ff. 

*See  above  Chap.  X,  I,  (h),  n,  (c).     But  whether  the  origin  of  commis- 


The  County  in  the  East  and  South.  463 

At  present  Massachusetts  has  fourteen  counties.  The  offi- 
cers are  a  treasurer,  a  sheriff,  three  commissioners  of  insol- 
vency,1 a  register  of  deeds,3  a  district  attorney,  a  register  of 
probate  and  insolvency,  and  a  clerk  of  the  courts.  These  as 
well  as  the  three  regular  and  the  two  special  commissioners 
are  all  chosen  by  popular  vote. 

The  commissioners  possess  somewhat  more  extended  powers 
than  in  the  other  New  England  states.  It  is  their  duty  to 
provide  for  the  erection  and  repair  of  county  buildings ;  to 
levy  and  apportion  the  county  taxes;  equalize  assessments;3 
license  ferries  and  prescribe  tolls  therefor;4  and  alter,  discon- 
tinue, or  lay  out  highways  from  town  to  town.5  They  may 
also  examine  the  accounts  of  the  treasurer  ;  audit  the  fees  of 
medical  examiners;6  divide  the  county  into  representative 
districts;7  superintend  houses  of  correction;  provide  houses 
of  reformation  for  juvenile  offenders  and  enact  rules  there- 
for;8 establish  truant  schools;9  hear  appeals  from  boards  of 
health  on  their  refusal  to  abate  nuisances;10  regulate  fast  driv- 
ing on  county  bridges  ;  and  perform  various  other  special 
duties  prescribed  by  law.  But,  on  the  whole,  the  supervisory 


sioners  in  Massachusetts  is  due  mainly  to  the  influence  of  the  middle  and 
western  states ;  or  whether  it  may  be  regarded  as  a  reminiscence  of  the 
colonial  practice  of  choosing  commissioners  for  the  equalization  of  taxes 
and  other  purposes,  is  an  interesting  question  which,  so  far  as  I  am  aware, 
has  never  been  investigated.  But  at  any  rate,  the  assertion  sometimes 
made  that  the  commissioner  system'  was  carried  from  Massachusetts  into 
the  Northwest,  is  without  foundation. 

1  But  Worcester  county  has  four:  Public  Statutes,  1882,  p.  92. 

*Or  one  for  each  "district  for  the  registry  of  deeds"  when  the  county  is 
divided:  Public  Statutes,  1882,  p.  92. 
"  s  Public  Statutes,  1882,  pp.  110,  207-10. 

*  Public  Statutes,  1882,  pp.  358-9. 
8  Public  Statutes,  1882,  pp.  324  ff. 

6  Public  Statutes,  1882,  p.  223. 

7  Public  Statutes,  1882,  p.  44. 

•  Public  Statutes,  1882,  pp.  1223-5. 
'Public  Statutes,  1882,  p.  319. 
"Public  Statutes,  1882,  p.  441. 


464  Rise  of  the  County  in  the  Western  States. 

authority  of  the  commissioners  with  respect  to  the  towns  is 
not  equal  to  that  of  the  quarter  sessions  in  colonial  days. 

In  conclusion  it  may  be  noted  that  the  ordinary  civil  and 
criminal  jurisdiction  of  the  old  county  courts  is  now  vested 
partly  in  the  superior  court  sitting  in  the  various  counties;1 
partly  in  the  court  of  probate;2  and  partly  in  the  "trial  jus- 
tices : "  the  latter  being  specially  designated  by  the  governor 
for  the  trial  of  petty  civil  and  criminal  causes.3 

(6.) — Transformation  of  the  County  in  Virginia. 

The  primitive  constitution  of  the  Virginia  county  by  which 
almost  the  entire  administrative  authority  was  centered  in  the 
hands  of  the  justices  of  the  peace,  was  maintained  with  slight 
modification  until  after  the  Civil  War.  At  an  early  day,  how- 
ever, the  business  of  assessment  was  handed  over  to  "  com- 
missioners of  the  revenue";  and  by  the  constitution  of  1851, 
the  people  in  each  magisterial  district — a  division  of  the 
county  at  that  time  introduced — were  allowed  to  elect  four 
justices  of  the  peace.4  The  county  court  thus  became  an  as- 
sembly of  district  representatives,  similar  in  this  regard  to  the 
county  commissioners  of  the  West. 

No  further  important  change  was  made  until  the  legislation 
of  the  reconstruction  period,  which  has  finally  resulted  in  the 
differentiation  of  the  county  court  into  two  distinct  bodies : 
the  board  of  supervisors,  who  are  given  control  of  the  financial 
business ;  and  the  new  county  court,  held  by  a  "  county  court 
judge,"  who,  in  addition  to  his  ordinary  judicial  competence, 


1  Public  Statutes,  1882,  p.  841  ff.  This  court  is  composed  of  one  chief 
justice  and  ten  associates ;  but  any  one  or  more  are  competent  to  hold  a 
legal  session. 

*  Held  in  each  county  by  the  "judge  and  register  of  probate : "  Public 
Statutes,  1882,  pp.  871-7. 

3  From  two  to  thirty  trial  justices  are  nominated  in  each  county  for  a 
term  of  three  years:  Public  Statutes,  1882,  pp.  862-70. 

Constitution,  Art.  VI,  §  27  :  Poore,  Charters,  II,  1935. 


The  County  in  the  East  and  South.  465 

retains  a  very  large  share  of  the  general  civil  authority.  In 
accordance  with  the  requirement  of  the  constitution  of  1870, 
as  we  have  seen,1  the  New  York  system  of  township-county 
government  was  introduced,  with  a  full  corps  of  elective  county 
officers  and  a  board  composed  of  the  township  supervisors.2 
This  system  was  abrogated  in  1874 ;  but  the  new  county  court 
and  the  board  of  supervisors  were  both  retained ;  the  latter 
being  now  composed  of  supervisors  chosen,  not  in  townships, 
but  in  magisterial  districts  which  practically  correspond  to  the 
precincts  in  those  western  states  which  have  not  adopted  town- 
ship organization.3  Let  us  now  see  how  the  work  of  adminis- 
tration is  distributed  by  this  dual  arrangement. 

The  board  of  supervisors  meets  regularly  on  the  fourth 
Monday  of  July ;  but  special  meetings  may  be  called  on  the 
written  request  of  two  members  addressed  to  the  clerk  of  the 
board.  The  body  chooses  its  own  chairman.  Its  duties  are 
primarily  concerned  with  finance.  By  it  county  and  school 
taxes  are  levied  ;  accounts  are  audited ;  and  claims  allowed. 
As  usual,  also,  the  board  is  entrusted  with  the  erection,  repair, 
and  insurance  of  the  public  buildings;4  and  it  is  authorized  to 
levy  money  for  the  support  of  the  poor;8  to  negotiate  loans;6 
establish  hospitals;7  offer  premiums  for  the  destruction  of 
noxious  animals;8  and  exercise  various  other  powers. 

On  the  other  hand  appeal  from  the  action  of  the  supervisors 
in  making  the  levy  or  auditing  claims,  lies  to  the  county 
court.9  The  latter  may  also  revise  assessments ; 10  remove  county 


1  See  above,  Chap.  IV,  x,  (6). 

'See  the  act  of  July  11, 1870:  Acts  of  the  Assembly,  1869-70,  pp.  257-66. 

3  Acts  of  the  Assembly,  1874-6,  pp.  354  ff. 

4  Code  of  Fa.,  1887,  pp.  253  ff. 

5  Code  of  Va.,  1887,  p.  264. 
•Code  of  Fa.,  1887,  pp.  346-7. 
1  Code  of  Va.,  1887,  p.  448. 

6  Code  of  Va.,  1887,  p.  256. 
9Code  of  Fa.,  1887,  pp.  257-8. 
10  Code  of  Fa.,  1887,  p.  196. 

30 


466  Rise  of  the  County  in  the  Western  States. 

and  district  officers;1  rearrange  road  precincts  and  magisterial 
districts;2  direct  assistance  to  be  given  to  the  poor;3  appoint 
commissioners  to  locate  mill  dams;4  determine  election  con- 
tests;5 authorize  the  choice  of  additional  justices  or  constables 
in  any  magisterial  district ; 6  provide  a  standard  of  weights 
and  measures;7  and  appoint  registrars  and  judges  of  election 
for  towns.8 

Besides  these  and  some  other  duties,  it  is  interesting  to  ob- 
serve that  a  peculiar  function  of  the  former  justices  has  survived 
to  our  own  times.  It  is  provided  thsit  "  the  county  court  of 
every  county  ...  in  which  the  records  of  deeds  and  wills 
have  been  lost  or  destroyed,  .  .  and  the  courts  of  such  other 
counties  as  may  deem  it  necessary,  shall  divide  their  counties 
into  so  many  precincts  as  to  them  shall  seem  most  convenient, 
for  processioning  the  lands  of  all  persons  "  in  such  counties  or 
parts  of  counties,  "  as  to  such  courts  may  seem  proper." 
Moreover  the  court  is  required  to  "  appoint  three  or  more  in- 
telligent honest  freeholders"  of  every  precinct,  to  see  such 
processioning  performed  and  to  make  return  of  every  person's 
land  processioned  and  "  of  the  persons  present  at  the  same." 
But  the  processioners  may  employ  a  surveyor  when  they  deem 
it  necessary.9 

The  administration  of  the  highway  law  is  divided  about 
equally  between  the  two  bodies.  Thus  the  supervisors  may 
appoint  the  local  road  surveyors;  levy  taxes  for  road  pur- 
poses ;  and  prescribe  rules  and  plans  for  keeping  the  roads  in 


1  Code  of  Fa.,  1887,  p.  251. 

2  Code  of  Fa.,  1887,  p.  247.    For  the  purpose  of  rearranging  road  precincts 
commissioners  are  appointed  by  the  court :  Ib.,  295. 

3  Code  of  Fa.,  1887,  p.  266. 
*  Code  of  Fa.,  1887,  p.  368. 

5  Code  of  Fa.,  1887,  p.  104. 

6  Code  of  Fa.,  1887,  p.  89. 

'  Code  of  Fa.,  1887,  p.  488. 
8  Code  of  Fa.,  1887,  p.  299. 
8  Code  of  Fa.,  1887,  pp.  587-8. 


The  County  in  the  East  and  South.  467 

repair.1  But  new  ways  are  laid  out  under  direction  of  the 
county  court.2 

We  shall  not  be  able  to  gain  a  clear  conception  of  the  com- 
plexity of  the  Virginia  system,  without  noticing  the  manner 
of  making  the  assessment.  This  business  is  entrusted  in  each 
county  to  the  so-called  "  commissioners  of  revenue."  Formerly 
these  were  nominated  by  the  state  auditor  ;s  but  by  the  present 
law  they  are  chosen  by  popular  vote  as  in  early  days.4 

The  general  assessment  of  property  is  made  by  the  commis- 
sioners ;  but  the  valuation  of  lands  is  taken  for  them  by  other 
officers.  The  present  statute  provides  that  the  attorney,  the 
judge,  and  the  clerk  of  the  court  in  each  county,  shall  consti- 
tute a  board,  who  shall  in  1890  and  every  fifth  year  there- 
after, appoint  as  many  assessors  as  there  are  commissioners  of 
revenue,  to  assess  the  cash  value  of  all  lands  and  lots  in  the 
county.6  And  the  valuation  thus  fixed  is  accepted  by  the  com- 
missioners in  making  the  general  assessment.6 

The  clerk  of  the  county  court,7  the  sheriff,  and  treasurer  are 
now  elective ;  but  the  superintendent  of  schools  is  appointed 


1  Code  of  Va,,  1887,  pp.  286-9. 

2  Code  of  Va.,  1887,  p.  282  ff.    The  court  appoints  viewers  in  the  case  of 
altering  or  establishing  highways,  and  commissioners  to  assess  the  damage 
caused  thereby.     It  may  also  authorize  the  construction  of  tram  roads, 
landings,  and  wharves :  Ib.,  293. 

3  Acts  of  the  Assembly,  1869-70,  pp.  46-54.     Commissioners  of  revenue, 
so-called,  to  be  appointed  by  the  county  court,  appear  to  have  been  created 
in  1786:  Hening,  Statutes,  XII,  243  ff.     But  these  were  an  outgrowth  of 
the  "commissioners  of  the  tax"  introduced  by  an  act  of  1777;  and  the 
latter  were  elected  annually  by  the  "  freeholders  and  housekeepers  "  of  the 
county :   76.,  IX,  351.     The  office  is  also  elective  by  the  constitution  of 
1851 :  Art.  VI,  §  30 :  Poore,  Charters,  II,  1935. 

*  The  number  varies  from  1  to  4 ;  and  when  a  county  has  several,  they 
are  elected  for  districts:  Code  of  Va.,  1887,  pp.  172  ff.,  88. 

5  Code  of  Va.,  1887,  p.  167. 

•  Code  of  Va.,  1887,  p.  173. 

7  The  clerk  of  the  county  court  is  ex  officio  clerk  of  the  circuit  court  in 
counties  with  a  population  of  less  than  15,000;  elsewhere  the  offices  are 
distinct:  Code  of  Va.,  1887,  p.  88. 


468  Rise  of  the  County  in  the  Western  States. 

by  the  state  board  of  education  ; l  the  land  surveyor  and  the 
superintendent  of  the  poor,  by  the  county  judge;2  the  coroner, 
by  the  governor  from  a  double  number  nominated  by  the 
county  court;3  and  the  county  judge,  by  a  joint  vote  of  the 
two  houses  of  the  general  assembly.4  The  latter  holds  his 
office  for  six  years.  The  sheriff,  it  may  be  noted,  continued 
to  act  as  collector  and  custodian  of  the  county  funds  until 
1870,  when  the  treasurership  was  created.5 


(c). — Rise  of  Democratic  County  Government  in  other  States 
of  the  South. 

Elsewhere  in  the  southern  and  southwestern  states  county 
organization  has  developed  along  the  same  lines  as  in  Vir- 
ginia. Everywhere  there  is  a  tendency  to  introduce  the 
elective  principle  and  to  lodge  the  administration  of  finance 
in  the  hands  of  a  county  board.  But  there  is  much  variation 
in  the  degree  of  development  and  in  constitutional  details. 

Maryland  has  elective  county  commissioners  with  the  usual 
powers;  and  there  the  judicial  functions  of  the  old  justices' 
tribunals  are  relegated  to  the  circuit  court,  which  holds  at  least 
two  terms  annually  in  each  county,  and  "  when  in  session  is 
styled  the  county  court."6 

In  Delaware,  as  elsewhere  shown,7  the  old  levy  court,  com- 
posed of  commissioners  elected  in  the  various  hundreds,  still 
manages  the  county  affairs.  The  treasurer  is  nominated  by  the 
commissioners ;  but  the  sheriff  and  coroner  are  chosen  by  ballot.8 


1  Code  of  Fa.,  1887,  p.  388. 

2  Code  of  Fa.,  1887,  pp.  88-9.     But  they  are  nominated  on  recommenda- 
tion of  the  board  of  supervisors. 

3  Code  of  Fa.,  1887,  p.  270. 

4  Code  of  Fa.,  1887,  p.  731 ;  Const.,  Art.  VI,  \  13:  Ib.,  42. 

5  See  the  notes  by  Mr.  Munford  in  the  Code  of  Fa.,  1873,  pp.  90,  87. 
6Wilhelm,  Local  Insl.  of  Md.,  92-3. 

7  See  Chap.  V,  iv,  (c). 

8  Const..  Art.  VII:  Laws  of  Del.,  1874,  p.  xlL 


Tfie  County  in  the  East  and  South.  469 

Alabama  has  adopted  a  commissioner  system,  with  elective 
officers ; '  and  her  free  county  government  is  similar  to  that  of 
many  western  states.  In  Mississippi  all  the  principal  county 
officers  are  chosen  by  the  people ;  and  the  board  is  composed 
of  five  supervisors  elected  each  for  a  particular  district  every 
two  years.2  And  every  county  in  Arkansas  has  three  com- 
missioners chosen  in  the  same  manner.3  Similar  powers  are 
exercised  by  the  commissioners'  court  in  Texas;4  while  in 
Louisiana  the  administrative  area  is  styled  a  parish ;  but  its 
organization  is  on  the  general  model  of  the  county  elsewhere 
in  the  South. 

Three  county  commissioners  are  elected  biennially  in  South 
Carolina,  with  jurisdiction  over  roads,  bridges  and  ferries,  and 
in  all  matters  relating  to  taxation.6  Moreover  in  this  state  a 
singular  plan  for  taking  the  assessment  has  been  adopted.  For 
each  county  the  governor,  with  the  approval  of  the  senate, 
appoints  an  auditor  to  whom  the  general  management  of  the 
assessment  is  given.6  But  the  work  of  assessment  is  performed 
in  each  township  or  tax  district  by  a  board  of  three  assessors 
nominated  by  the  auditor.  The  town  board  chooses  its  own 
chairman ;  and  the  chairmen  of  all  the  town  boards  of  the 
county  constitute  the  county  board  of  equalization.  The  presi- 
dent of  the  latter  body  is  the  county  member  of  the  board  of 
equalization  for  the  state.7 

But  it  is  in  North  Carolina  that  the  ancient  constitution  of 
the  southern  county  survives  with  greatest  tenacity.  Here 


1  Code  of  Alabama,  1886, 1, 123,  253  ff.     But  the  county  board  is  styled  the 
"  court  of  county  commissioners,"  and  is  composed  of  the  probate  judge  and 
four  other  members:  Ib.,  240.     This  plan  is  similar  to  that  existing  in 
Oregon  :  see  Chap.  X,  in,  (a). 

2  Const.,  Art.  VI,  §  20 :  Code  of  Miss.,  1880,  pp.  29-30,  77. 

3  Arkansas  Digest,  1874,  p.  235. 

4  Revised  Statutes  of  Texas,  1879,  pp.  156  ff. 

5  General  Statutes  of  S.  C.,  1882,  pp.  183  ff. 
8  General  Statutes  of  S.  C.,  1882,  p.  84. 

1  General  Statutes  of  S.  C.,  1882,  pp.  93-4. 


470  Rise  of  the  County  in  the  Western  States. 

new  methods  have  been  introduced  without  abrogating  the  old. 
Each  county  has  a  board  of  from  three  to  five  commissioners ; 
but  they  possess  little  independent  power.  They  are  appointed 
biennially  by  the  justices,  with  whom  they  are  required  to 
meet  in  joint  session.  The  commissioners  may  audit  claims 
and  accounts,  and  they  have  the  management  of  highways.1 
But  they  may  levy  taxes  only  with  assent  of  a  majority  of  the 
justices.2  The  officers  are  all  elective,3  except  the  judges  of  the 
inferior  court  and  the  superintendent  of  schools :  the  former* 
are  appointed  by  the  justices;  and  the  latter,5  by  the  justices 
acting  jointly  with  the  county  board  of  education. 

Among  the  officers  of  the  North  Carolina  county  two  primi- 
tive functionaries  have  survived.  These  are  the  processioner 
and  the  ranger ;  but  the  former  is  now  an  ordinary  land  sur- 
veyor, whose  principal  duty  is  the  determination  of  disputed 
boundaries;6  while  the  duties  of  the  ranger  as  recorder  of 
strays  devolve  ex  officio  upon  the  register  of  deeds,  and,  in 
every  township,  upon  the  justices  of  the  peace."  In  this  state, 
likewise,  the  sheriff  retains  his  ancient  character  as  a  fiscal 
officer.  He  is  the  collector  of  taxes ;  and  the  justices,  when- 
ever they  see  fit,  may  abolish  the  office  of  treasurer  and  vest 
its  duties  in  the  sheriff.8  And,  finally,  it  may  be  noted  that 
the  constitution  of  the  county  of  North  Carolina  has  been 
reproduced  in  Tennessee,  whose  territory  long  formed  a  part 
of  the  dominion  of  the  older  commonwealth.9 


1  Code  o/N.  C.,  1883,  I,  287-92,  773,  777,  781,  etc. 

2  Code  ofN.  C.,  1883,  I,  312. 

3  Code  of  N.  C.,  1883,  11,177. 

4  Code  of  N.  C.,  1883,  I,  315. 

5  The  commissioners  are  constituted  the  board  of  education :  CodeofN.  C., 
1883,  II,  135,  137-8. 

6  Code  ofN.C.,  1883,  I,  728-30. 

7  Code  ofN.  C.,  1883,  II,  569  ff. 

8  Code  ofN.  C.,  1883,  I,  290,  304. 

9  See  the  interesting  sketch  of  local  government  in  North  Carolina  and 
Tennessee,  in  Phelan's  History  of  Tennessee,  203-14. 


The  Elective  Cmmiy  Board.  471 

VI.    THE  ELECTIVE  COUNTY  BOARD  A  SURVIVAL  OF 
THE  SHIREMOOT. 

At  the  close  of  the  last  chapter  it  was  pointed  out  that  the 
county  courts  of  the  colonial  era  were  the  representatives  of 
the  English  quarter  sessions;  and  that  the  earlier  shireraoot 
had  survived  in  the  electoral  assemblies.  Now,  however,  with 
the  results  of  another  century's  history  before  Us,  we  are  able 
to  see  that  already  in  that  period  a  process  had  begun  which 
has  finally  resulted  .in  a  more  complete  restoration  of  the 
ancient  body.  And  here  we  encounter  a  most  remarkable 
example  of  the  alternate  integration  and  differentiation  of 
institutional  organisms.  Mr.  Freeman  has  shown  us  that  the 
English  monarchy  ends,  as  it  began,  with  the  acknowledged 
source  of  its  authority  in  the  will  of  the  people.1  In  a  man- 
ner somewhat  analogous,  the  "  cycle  has  come  round  "  in  the 
government  of  the  shire. 

There  was  first  a  long  era  of  gradual  dissolution.  We  have 
already  seen  how,  after  Edward  I,  the  functions  of  the  county 
court  slowly  decreased  in  importance ;  and  how,  after  Edward 
III,  the  justices  of  the  peace  in  their  various  capacities 
absorbed  all  of  its  remaining  administrative  powers,  while 
receiving  back  more  than  the  original  criminal  jurisdiction 
which  the  court  had  surrendered  to  the  royal  judges.2  But  it 
was  not  without  regret  that  the  democratic  constitution  of  the 
shire  was  overthrown.  In  the  seventeenth  century,  we  find 
writers  lamenting  the  neglect  of  the  curia  comitatus  and  plead- 
ing for  its  restoration.3 


1  Growth  of  the  English  Constitution,  particularly,  pp.  144-59. 

'See  Chap.  VI,  v. 

5  See,  for  example,  the  little  treatise  printed  in  London  during  the  Pro- 
tectorate, 1657,  entitled  Curia,  Comitatus  Rediviva,  or  the  Pratique  Part  of  the 
County  Court  Revived.  In  his  preface  the  author,  W.  Greenwood,  evidently 
a  young  lawyer,  thus  addresses  the  reader:  "Considering  the  utilitie  and 
profit  a  peece  of  this  nature  would  produce  to  the  Countrey,  prest  me  for- 
wards (out  of  profound  and  authentick  Authors)  to  demonstrate  the  and- 


472  Rise  of  the  County  in  the  Western  States. 

But  that  restoration  was  to  be  first  realized  on  American 
soil.  And  the  process  by  which  it  has  been  accomplished  is 
precisely  the  reverse  of  that  which  has  just  been  described. 
Now  it  is  the  justices'  court  which  gradually  decays,  giving 
up  its  civil  authority  to  the  people's  representatives.  Every- 
where, in  the  beginning,  we  behold  the  same  phenomenon. 
In  New  York  and  Pennsylvania,  in  early  Michigan  and  the 
Northwest  Territory,  in  Massachusetts  and  the  southern  states, 
a  dual  authority  arises.  On  the  one  hand  there  is  a  popular 
board,  whose  powers  slowly  expand;  on  the  other  a  court, 
whose  members  are  usually  nominated  by  the  central  authority, 
and  whose  functions  tend  more  and  more  to  become  strictly 
judicial.  Furthermore  it  is  significant  that,  in  almost  every 
instance,  it  is  the  management  of  finance  of  which  the  quarter 
sessions  are  at  first  wholly  or  in  part  deprived.  And  thus,  in 
the  county  as  in  the  nation,  the  revival  of  popular  government 
has  its  genesis  in  the  control  of  taxation. 

The  highest  results  of  this  process  of  readjustment  have 
been  attained  in  the  West.1  Here  the  quarter  sessions  have 
been  dissolved  ;  yielding  their  judicial  authority,  partly  to  the 
county  judge,  and  partly  to  the  circuit  or  district  court.2  The 
fiscal  board,  on  the  contrary,  has  absorbed  all  of  the  general 


quitie,  justness,  and  Jurisdiction  of  this  Court ;  for  the  more  the  Country 
knows  it,  and  the  practice  thereof,  the  more  they  will  love  and  affect  it." 
And  elsewhere  he  adds:  "This  Court  continuing  (untill  the  time  of 
William  the  Conqueror,  and  ever  since  during  the  times  and  raigns  of  the 
antient  Kings)  and  doth  yet  continue  (in  manner)  the  same  forme,  and 
substance  that  it  then  was,  .  .  .  the  Pleas  ought  no  more  to  be  taken  from 
it,  now  in  our  dayes  (without  cause)  than  they  ought  then  to  have  been," 
etc. :  Curia  Com.  Red.,  4-5.  The  work  contains  a  full  discussion  of  the 
officers,  jurisdiction,  and  .procedure  of  the  court,  with  citations  from  the 
early  statutes. 

1  But  similar  results  have  been  already  reached  in  New  England ;  while 
throughout  the  south  the  process  is  fairly  begun,  and  in  some  instances  it 
is  far  advanced. 

2  The  circuit  or  district  court  is  the  American  counterpart  of  the  ancient 
plenus  comitatus,  or  full  county  court  held  by  the  royal  justices. 


The  Elective  County  Board.  473 

civil  powers  of  the  county.  It  is  the  legal  center  of  the  cor- 
porate life.  And  while  its  leading  functions  are  immediately 
inherited  from  the  quarter  sessions,  it  is  nevertheless  histori- 
cally connected  with  that  body  only  by  irregular  filiation. 
For  its  constituent  principle  and  its  essential  attributes  are 
those  of  the  shiremoot,  though  its  form  may  be  widely  dif- 
ferent. Its  authority  still  flows  from  the  popular  will ;  but 
it  is  now  strictly  representative,  having  freed  itself  from  the 
intermixture  of  feudal  elements.  It  retains  a  vestige  of  its 
judicial  character,  since  appeal  from  its  orders  lies  to  the  higher 
courts.  And  when  composed  of  the  town-reeves  or  super- 
visors, the  resemblance  to  its  prototype  is  indeed  striking. 
Then  it  becomes  a  deliberative  local  council,  invested  with 
restricted  legislative  powers. 

Thus  the  restoration  of  local  self-government  has  at  length 
been  accomplished.  And  it  is  with  intense  interest,  at  this 
moment,  that  the  American  student  looks  toward  the  mother 
country,  where  by  act  of  Parliament  the  quarter  sessions,  after 
five  hundred  years  of  uninterrupted  sway,  are  surrendering  a 
portion  of  their  administrative  authority  to  "  county  councils  " 
chosen  by  the  people.1 


1  Cf.  Bryce,  The  American  Commonwealth,  I,  583.  The  work  of  Mr.  Bryce, 
which  I  have  received  while  preparing  these  last  pages,  contains  two  valu- 
able chapters  on  town  and  county  government  in  the  United  States :  Vol. 
I,  561-92.  But  scant  justice  is  done  to  the  use  made  of  representation 
under  the  western  township-county  systems.  See,  for  example,  Vol.  I.  571, 
586,  591.  The  Local  Government  Act  of  1888  takes  effect  April  1,  1889. 
The  new  county  council  is  composed  of  members  chosen  by  the  people  for 
parts  of  the  county  called  "electoral  divisions."  See  Chambers,  A  Poptdar 
Summary  of  the  JMW  relating  to  Ijocal  Government,  London,  1888. 


AUTHORITIES  CITED.1 


In  the  following  list  general  works  are  entered  but  once  and 
then  in  the  respective  classes  where  each  has  been  of  most  ser- 
vice. Many  books  and  articles  incidently  referred  to  have  been 
excluded. 

I.— GRECIAN,  ROMAN,  AND  PRIMITIVE  INSTITUTIONS. 

ARNOLD,  W.  T.  The  Roman  System  of  Provincial  Administration.  Lon- 
don, 1879. 

BOECKH,  AUGUSTUS.  The  Public  Economy  of  the  Athenians.  Translated 
by  Lamb.  Boston,  1857. 

CAPES,  W.  W.    The  Early  Empire.    New  York.     Epoch  Series. 

CAPES,  W.  W.     Age  of  the  Antonines.    New  York.    Epoch  Series. 

CLARK,  E.  C.     Early  Roman  Law.    The  Regal  Period.     London,  1872. 

COOTE,  H.  C.     The  Romans  of  Britain.     London,  1878. 

COULANGES,  FUSTEL  DE.  The  Ancient  City.  Translated  by  Small.  Bos- 
ton, 1877. 

Cox,  GEORGE  W.     The  Athenian  Empire.     New  York.     Epoch  Series. 

Cox,  GEORGE  W.    Greeks  and  Persians.     New  York.     Epoch  Series. 

FORBIGER,  A.    Hellas  und  Rom.    5  vols.    Leipzig,  1876. 

FREEMAN,  E.  A.     Comparative  Politics.    London,  1873. 

FREEMAN,  E.  A.    History  of  Federal  Government.    Vol.  I.    London,  1863. 

FREEMAN,  E.  A.    Historical  Essays.     Second  Series.    London,  1880. 

GAIUS.  Institutionum  juris  civilis  commentarii  quatuor.  Translated  by 
Edward  Poste.  Clarendon  Press,  1875. 

GIBBON,  E.  Decline  and  Fall  of  the  Roman  Empire.  Edited  by  Milman. 
5  vols.  New  York,  1869. 


1  To  obviate  the  necessity  of  repeating  nearly  the  entire  list,  the  authorities 
for  Volume  II  are  here  included.  But  a  supplementary  list  will  hereafter 
be  presented,  should  further  investigation  render  it  desirable. 

475 


476  Authorities  Cited. 

GILBERT,   G.     Handbuch  der   griechischen   Staatsalterthiimer.     2  vols. 
Leipzig,  1881-5. 

GLADSTONE,  W.  E.    Juventus  Mundi.    The  Gods  and  Men  of  the  Heroic 
Age.    London,  1870. 

GROTE,  GEORGE.     History  of  Greece.     12  vols.    New  York,  1870. 

HADLEY,  JAMES.     Introduction  to  Eoman  Law.    New  York,  1878. 

HEARN,  W.  E.    The  Aryan  Household.     London,  1879. 

HERMANN,  K.  F.    Lehrbuch  der  griechischen  Antiquitaten.    Biinde  II,  IV. 
Freiburg,  1882-8. 

HERODOTUS.    Translated  by  Gary.    Bohn.    London,  1879. 

HOMER.    The  Iliad  and  Odyssey. 

JEBB,  R.  C.    Homer :  An  Introduction  to  the  Iliad  and  Odyssey.     London, 
1887. 

JOWETT,  B.     The  Politics  of  Aristotle.     2  vols.    Oxford,  1885. 

KLEIN,  J.     Die  Verwaltungsbeamten  der  Provinzen  des  romischen  Eeichs. 
Bonn,  1878. 

KUHN,  E.    Die  stadtische  und  biirgerliche  Verfassung  des  romischen  Reichs. 
2  Theile.    Leipzig,  1864. 

LANGE,  LUDWIG.    Romische  Alterthiimer.    3  vols.    Berlin,  1876. 

LUBBOCK,  SIR  JOHN.     Origin  of  Civilization.     New  York,  1879. 

LYALL,  SIR  A.  C.    Asiatic  Studies.     London,  1884. 

MAINE,  Sir  HENRY  SUMNER.    Ancient  Law.     New  York,  1878. 

MAINE,  Sir  HENRY  SUMNER.    Dissertation  on  Early  Law  and  Custom. 
New  York,  1883. 

MAINE,  Sir  HENRY  SUMNER.     Lectures  on  the  Early  History  of  Institu- 
tions.   New  York,  1875. 

MAINE,  Sir  HENRY  SUMNER.    Village  Communities  in  the  East  and  West. 
New  York,  1876. 

MARQUARDT,  JOACHIM.    Das  Privat  Leben  der  Romer.    Vol.  VII  of  the 
Handbuch. 

MARQUARDT,  JOACHIM.    Romische  Staatsverwaltung.    Vols.  IV-VI  of  the 
Handbuch. 

MARQUARDT,  JOACHIM,  and  MOMMSEN,  THEODOR.    Handbuch  der  rom- 
ischen Alterthiimer.    7  vols.     Leipzig,  1876-1888. 

MAYNE,  J.  D.     A  Treatise  on  Hindu  Law  and  Usage.    London,  1883. 

MCLENNAN,  JOHN  F.    Studies  in  Ancient  History,  comprising  a  Reprint 
of  Primitive  Marriage.     London,  1876. 

MOMMSEN,  THEODOR.    Romisches  Staatsrecht.    Vols.  I-III  of  the  Hand- 
buch. 

MOMMSEN,  THEODOR.    Romische  Geschichte.   Vols.  I-III,  187*4-5 ;  vol.  V, 
1885.     Berlin. 

MORGAN,  LEWIS  H.    Ancient  Society.    New  York,  1878. 

MUIRHEAD,  JAMES.    Historical  Introduction  to  the  Private  Law  of  Rome. 
Edinburgh,  1886. 

MULLER,   IWAN.      Handbuch   der  klassischen   Alterthums-Wissenschaft. 
Vol.  IV.    Nordlingen,  1887. 


Authorities  Cited.  477 

M ri.i.K.K,  C.  O.  The  History  and  Antiquities  of  the  Doric  Race.  Trans- 
lated by  Tufnell.  Oxford,  1830. 

PAULY,  A.  Real-Encyclopiidie  der  classischen  Alterthumswissenschaft.  6 
Tola.  Stuttgart. 

RUDORFF,  A.  F.     Romische  Rechtsgeschichte.     2  vols.    Leipzig,  1857. 

SAVIGNY,  CARL  v.  The  History  of  the  Roman  Law  during  the  Middle 
Ages.  Vol.  I.  Translated  by  Cathcart.  Edinburgh,  1829. 

SCHEURL,  C.  G.  A.  v.    Lehrbuch  der  Institutionen.     Erlangen,  1850. 

SCHUMANN,  G.  F.  The  Antiquities  of  Greece.  Translated  by  E.  G.  Hardy 
and  J.  8.  MANN.  London,  1880. 

SCHOMANN,  G.  F.  Athenian  Constitutional  History,  as  represented  in 
Grote's  History  of  Greece,  critically  examined.  Translated  by  Bernard 
Bosanquet.  Oxford  and  London,  1878. 

SCHOMANN,  G.  F.  A  Dissertation  on  the  Assemblies  of  the  Athenians. 
Translated  from  the  Latin  of  the  author  by  F.  A.  P.  Cambridge,  1838. 

SCHRADER,  O.    Sprachvergleichung  und  Urgeschichte.    Jena,  1883. 

SMITH,  WILLIAM.  A  Dictionary  of  Greek  and  Roman  Antiquities.  Lon- 
don, 1878. 

ST.  JOHN,  J.  A.  The  History  of  the  Manners  and  Customs  of  Ancient 
Greece.  3  vols.  London,  1842. 

THIERRY,  M.  AMEDEE.     Tableau  de  1'Empire  Romain.    Paris,  1872. 

TYLOR,  EDWARD  B.  Researches  into  the  Early  History  of  Mankind. 
New  York,  1878. 

TYLOR,  EDWARD  B.    Primitive  Culture.    2  vols.    New  York,  1874. 

WACHSMUTH,  W.  The  Historical  Antiquities  of  the  Greeks.  2  vols. 
Translated  by  Woolrych.  Oxford,  1837. 

WILSON,  D.     Prehistoric  Man.    2  vols.     London,  1876. 


II.— ENGLISH  AND  GERMANIC  INSTITUTIONS. 

ACLAND,  C.  T.  D.  County  Boards.  In  Probyn's  Local  Government,  etc., 
1882. 

ADAMS,  HENRY.  The  Anglo-Saxon  Courts  of  Law.  In  Essays  in  Anglo- 
Saxon  Law. 

ALLEN,  GRANT.    Anglo-Saxon  Britain.    London. 

ALLEN,  JOHN.  Inquiry  into  the  Rise  and  Growth  of  the  Royal  Preroga- 
jtive.  London,  1849. 

ALLEN,  W.  F.  The  Village  Community  and  Serfdom  in  England ;  and 
Town,  Township,  and  Tithing.  Reprint  from  Vol.  VII  of  the  Trans- 
actions of  the  Wisconsin  Academy  of  Sciences,  Arts,  and  Letters. 

ALLEN,  W.  F.    The  Primitive  Democracy  of  the  Germans. 

ANGLO-SAXON  CHRONICLE.    In  Mon.  Hist.  Brit.,  291  ff. 

ARCH^OLOOIA  or  Miscellaneous  Tracts  relating  to  Antiquity.  Published 
by  the  Society  of  Antiquaries.  Vol.  XLVI,  1880-1 881 . 


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ARCHBOLD,  J.  F.    The  Justice  of  the  Peace  and  Parish  Officer.    4  vols. 

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NEW  HAVEN  Colonial  Records.  2  vols.  Edited  by  C.  J.  Hoadly.  Hart- 
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NEW   HAVEN  <k>lony  Historical  Society.    Papers.    Vols.  I,   IV.      New 

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NEW  JERSEY  Archives,  1631-1776.  10  vols.  Edited  by  Whitehead,  Ricord, 
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NEW  YORK,  Documents  relating  to  the  Colonial  History  of.  Edited  by  E. 
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NEW  YORK,  Documents  relating  to  the  Colonial  History  of.  Vols.  XII- 
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NEW  YORK,  Documentary  History  of  the  State  of.  4  vols.  Edited  by  E. 
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NEW  YORK.     See  Van  Schaack. 

NORTH  CAROLINA  Colonial  Kecords.    4  vols.    Raleigh,  1887. 

NOURSE,  HENRY  S.  The  Early  Records  of  Lancaster,  Massachusetts,  1643- 
1725.  Lancaster,  1884. 

O'CALLAGHAN,  E.  B.    History  of  New  Netherland.    New  York,  1846. 

O'CALLAGHAN,  E.  B.    See  New  York,  &c. 

OLIVER,  PETER.     The  Puritan  Commonwealth.     Boston,  1856. 

PAIGE,  Lucius  R.  History  of  Cambridge,  Massachusetts,  1630-1877.  Bos- 
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PALFREY,  JOHN  GORHAM.  A  Compendious  History  of  New  England. 
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PARKER,  JOEL.  Origin,  Organization,  and  Influence  of  the  Towns  of  New 
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PARKER,  JOEL.  The  First  Charter  and  the  Early  Religious  Legislation  of 
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PENNSYLVANIA,  Acts  of  the  Assembly  of  the  Province.  Vol.  I.  Phila- 
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PENNSYLVANIA  Colonial  Records  :  Minutes  of  the  Provincial  Council.  16 
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PENNSYLVANIA  Archives.     13  vols.    Philadelphia,  1852-1856. 

PENNSYLVANIA,  Charter  and  Laws  of  the  Province,  1682-1700.  In  Duke's 
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PENNSYLVANIA,  Court  Laws  of  the  Province.    In  Duke's  Laws. 

PENNSYLVANIA,  Votes  and  Proceedings  of  the  House  of  Representatives  of 
the  Province,  Dec.  4,  1682,  to  Sept.  26,  1776.  6  vols.  Folio.  Philadel- 
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PENNSYLVANIA  Historical  Society.  Memoirs.  12  vols.  Philadelphia,  1864- 
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PENNSYLVANIA  Magazine  of  History  and  Biography.  12  vols.  Philadel- 
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PLYMOUTH  Colonial  Records.  12  vols.  Edited  by  Shurtleff  and  Pulsifer. 
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POORE,  BEN  :  PERLEY.  Federal  and  State  Constitutions,  Colonial  Charters 
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INDEX. 


Act,  the  first  township,  of  Massachu- 
setts, 58. 

Adams,  Henry,  on  the  origin  of  pri- 
vate jurisdictions,  26,  note  2 ;  on 
the  origin  of  the  shire  and  hun- 
dred, 301,  note  3. 

Adams,  Herbert  B.,  on  the  Germanic 
origin  of  New  England  towns,  50, 
note  1 ;  on  commoners  and  non- 
commoners,  58,  note  7 ;  on  the 
hog-reeve,  92,  note  3. 

Adams,  Samuel,  in  Boston  town- 
meeting,  74. 

Adelphia,  first  name  of  Marietta,  411. 

Adfathamire,  260  and  note  3. 

Administration,  of  estates,  in  Massa- 
chusetts, 331;  New  York,  362; 
Pennsylvania,  371,  376;  North- 
west territory,  415;  western  states, 
456. 

Administrators,  county,  456  and  note 
2. 

AfFeerer,  to  assess  penalties  in  the 
court  leet,  29;  in  Maryland,  116. 

Agnates,  definition  of,  3  and  note  2. 

Agriculture,  common,  17-18;  in  Eng- 
land, 20  and  note  1 ;  on  the  manor, 
31 ;  in  French  settlements  of  the 
Northwest,  429  and  note  3. 

Aigikoreis,  5. 

Alabama,  township  in,  234,  note  2; 
free  schools,  237;  county  organi- 
zation, 469. 

Alarms,  how  sounded,  279,  349-50, 
403. 

Albemarle  county,  divided  into  pre- 
cincts, 129. 

Allen,  W.  F.,  on  early  German  occu- 
pation and  settlement,  14,  note; 
attacks  Seebohm's  theory  of  the 
English  village  community  for  the 
early  period,  19,  note  5. 

Alms-chest,  to  whom  entrusted,  193. 


Almshouses,  controlled  by  selectmen, 
81 ;  overseers  of,  83,  97. 

Analyst,  the  county,  316. 

Ancestor-worship,  6  and  note  2. 

Andrews,  Chas.  M.,  his  manuscript 
on  Anglo-Saxon  Manorial  Life,  26, 
note. 

Andros,  Governor,  ordinance  of,  es- 
tablishing courts  on  the  Delaware, 
369-70. 

Apaturian  festival,  registration  of 
births  at,  243-4. 

Appraisers  of  property  condemned 
on  execution,  378. 

Apprentices,  admitted  to  practice  by 
selectmen,  81,  82;  how  regulated 
in  Boston,  86-7;  indentures  of,  87 
and  note  1 ;  runaway,  how  punished, 
325. 

Arbitration,  courts  of,  on  Long 
Island,  106,  359-60;  in  Penn- 
sylvania, 373-4;  at  Detroit, 
430-5;  in  early  French  settle- 
ments, 430  and  note  2. 

Archos,  chief  of  genos,  7 ;  of  phra- 
tria,  243. 

Argadeis,  5. 

Aristotle,  on  the  family  as  the  social 
unit,  4. 

Arizona,  school  district  in,  236 ; 
school  franchise  in,  237,  note  5. 

Arkansas,  county  commissioners  in, 
469. 

Arpent,  427  and  note  3. 

Ashley,  W.  J.,  his  Introduction  to  Eng- 
lish Economic  History  and  Theory, 
26,  note. 

Assessment  committee,  of  the  parish, 
41,42;  of  the  union,  185  and  note  2. 

Assessment  of  taxes,  parish  commit- 
tee of,  41,  42 ;  by  town  officers  in 
New  England  colonies,  60 ;  by 
overseers  under  Duke's  laws,  106, 

499 


500 


Index. 


108;  by  juries,  177-8,  179-80; 
hide  superseded  by  knight's  fee 
as  the  unit  of,  179 ;  procedure  in 
mediaeval  England,  181  and  note 
3 ;  fifteenth  and  tenth  established 
as  a  rate-unit,  1334,  182-3;  under 
the  Commonwealth,  183 ;  under 
law  of  1692,  183-4;  in  New  Eng- 
land colonies,  186-7,  342-4;  New 
York,  111,  362 ;  New  Jersey,  367  ; 
Pennsylvania,  380,  381-3;  Vir- 
ginia, 281,  397-9,  467  ;  Maryland, 
125-6,  277,  405 ;  Delaware,  284-6 ; 
Northwest  territory,  424-5;  wes- 
tern states,  188-91,  447-50,  454-5 ; 
Massachusetts,  341-3,  463 ;  South 
Carolina,  469.  See  Assessor,  Taxes, 
Taxation,  and  Rates. 

Assessments,  equalization  of,  by  the 
union  committee,  185  and  note  2 ; 
in  Massachusetts,  342-3, 463';  New 
Jersey,  366-7  ;  Pennsylvania,  382 ; 
by  the  county  board,  in  the  western 
states,  190,  447  and  note  3 ;  in  some 
western  states,  by  special  boards, 
448-50 ;  in  Delaware,  285 ;  North- 
west territory,  424-5 ;  South  Caro- 
lina, 469;  Virginia,  465;  Vermont, 
459,  note  3. 

Assessor,  evolution  of  the  office,  176- 
85 ;  derivation  of  the  term,  177  and 
note  4 ;  the  jury  as,  177-8, 179-80; 
origin  of  elective,  180-1 ;  who  were 
under  law  of  1692, 183-4;  various 
parish  officers  as,  41,  42,  184-5 ; 
vestry,  the  original,  184. 

— —  rise  of,  in  the  American  colo- 
nies, 186-8 ;  in  New  England,  60, 
91,  186-7,  333;  New  York,  106, 
108,  111,  187;  New  Jersey.  187, 
366-7  ;  Pennsylvania,  187-8,  378, 
380,  381-3,  384;  Virginia,  188, 
397-9;  Maryland,  188;  Delaware, 
188,  281,  284-5. 

in  various  western  states,  188- 

91,  167,  note  1 ;  Northwest  terri- 
tory, 424 ;  Pennsylvania,  380, 
382-3;  Rhode  Island,  227;  Con- 
necticut, 228.  note;  Virginia,  231, 
467 ;  South  Carolina,  469. 

Assessor,  county,  in  Michigan  terri- 
tory, 437 ;  in  various  western 
states,  454-5. 

Assistance,  parish  committee  of,  41  ; 
germ  of  select  vestry,  42,  75. 


Assistants,  in  Massachusetts,  ex  offieio 
justices,  62;  hold  great  quarter 
courts,  322 ;  sit  in  quarter  courts, 
322-3 ;  how  elected,  351-5. 

Assize  of  Arms,  assessment  of  rents 
and  chattels  for,  179. 

Assize  of  Bread,  82. 

Assize  of  Clarendon,  twelve  legal 
men  of,  268. 

Assizes,  court  of,  according  to  Duke's 
laws,  359-60 ;  in  New  Jersey,  365. 

Associates  of  Massachusetts  county 
courts,  323,  328. 

Athens,  did  not  overcome  tendency 
to  city  autonomy,  7. 

Attorney,  the  county,  456. 

thedistrict,inMassachusetts,464. 

Attorneys,  how  licensed,  in  Virginia, 
395. 

Auditor,  the  county,  in  various  wes- 
tern states,  448-9,  452;  in  South 
Carolina,  469. 

Auditor,  the  parish,  39. 

Auditors,  county  board  of,  in  Penn- 
sylvania, 449 ;  in  Wayne  county, 
Michigan,  450,  note  9. 

Auditors,  town  board  of,  in  Penn- 
sylvania, 169,  note  2. 

Ausmarker,  55. 

Authorities,  list  of,  475-98;  See 
Bibliographical  Notes. 

Bachelors,  discriminated  against  in 
laws  of  Northwest  territory,  421 
and  note  1. 

Baeda,  on  old  Saxon  institutions,  296. 

Bailey,  Sarah  Lor  ing,  her  Historical 
Sketches  of  Andover,  51,  note. 

Bailiff,  manorial,  represents  old 
bydel,  27 ;  as  assessor,  177,  note 
1 ;  in  hundred  court,  270. 

town,  98  and  note  14. 

Baron,  the  court,  38 ;  in  New  York, 
105  and  note  1 ;  also  in  Carolina, 
113-14;  in  Maryland,  114-17. 

Barony,  provided  for  in  New  Eng- 
land, 113,  272;  also  in  Carolina, 
113-14. 

Beadle,  the  colonial  marshal  of 
Massachusetts,  338. 

for  cattle  running  at  large,  378. 

the  parish,  39,  218. 

Beaver,  as  a  legal  tender,  344. 

Beisassen,  55 ;  after  16th  century 
absorb  political  powers,  63,  note  3. 


Index. 


•501 


Bell,  Chas.,  his  History  of  Cheater, 
51,  note. 

Bellman,  the  town,  83,  96. 

Beans,  Edward  W.,  on  early  laws  of 
Michigan,  154;  on  influence  of 
Gen.  Cuss,  155;  on  by -laws  of  wes- 
tern township,  166. 

Beverley,  Robert,  quoted  on  precari- 
ous livings  of  ministry,  121-2. 

Bibliographical  notes,  the  chief  mar- 
ginal :  the  family  as  the  social  unit, 
3,  note  I ;  agnates,  3,  note  2  ;  abso- 
lute power  of  house  father,  4,  note 
1 ;  patriarchal  family,  5,  note  1 ; 
ancestor-worship,  6,  note  2 ;  occu- 
pation of  land  in  time  of  Tacitus, 
13,  notes  4  and  5 ;  theories  of  early 
German  land-holding,  16-17,  notes 
2  and  3 ;  mark  system  in  England, 
19,  notes  3  and  5 ;  common  fields 
in  England,  20,  note  1 ;  tithing, 
24-5,  notes ;  manor,  25,  note  2 ; 
origin  of  private  jurisdictions,  26, 
note  2 ;  court  baron,  28,  note  3 ; 
court  leet,  31,  note  I ;  origin  of  the 
parish,  32-4,  notes;  the  New  Eng- 
land town,  50,  note  1 ;  parish,  pre- 
cinct, and  district,  52,  note  3;  num- 
ber of  selectmen,  75,  note  1 ;  Dutch 
colonies  and  village  communities, 
102,  note  1 ;  New  York  manors, 
105,  note  1 ;  ordinance  of  1785,  141, 
note  2 ;  ordinance  of  1787,  authori- 
ties, 142,  note  3,  410,  note  2;  ordi- 
nance of  1787,  text  where  found, 
410,  note  2;  moderator  of  western 
town-meeting,  163,  note  2 ;  western 
township  officers,  167,  note  1 ;  deri- 
vation of  assessor,  177,  note  4 ; 
carucage,  179,  note  7 ;  western 
assessor,  188,  note  6 ;  care  of  the 
poor  in  Saxon  period,  192,  note  3 ; 
English  poor  laws,  194,  note  2; 
relief  of  the  poor,  cost  of,  198,  note 
1 ;  western  overseer  of  the  poor, 
200,  note  2 ;  trinoda  necessitous,  203, 
note  1 ;  western  road  officers,  210, 
notes  4  and  5 ;  Lammas  meadows, 
215,  note  1 ;  beating  boys  at  boun- 
dary marks,  217,  note  1 ;  western 
fence  viewers,  224,  note  5 ;  school 
franchise  of  women,  237,  note  5 ; 
phratries,  241,  note  2,  244,  note  3 ; 
common  lands  of  the  hundred,  255, 
note  5 ;  use  of  gau  and  pagus,  256, 


note  4  ;  rachineburgii,  259,  notes  2 
and  3;  adfathamire,  260,  note  3; 
reipus,  260,  note  4;  scabini,  263, 
note  2 ;  old  English  hundred,  269, 
note  3 ;  hundred  in  Virginia,  274, 
note  1 ;  phule,  290,  note  1 ;  early 
Teutonic  kingship,  295,  note  3; 
origin  of  the  shire,  301,  note  3; 
Gauverfassung,  304,  note  1 ;  assem- 
bly of  Prankish  hundred,  309,  note 
2;  Massachusetts  colonial  courts, 
338,  note  1 ;  taxes  payable  in  kind, 
wampum,  and  beaver,  344,  notes; 
Pennsylvania  colonial  county  or- 
ganization, 368,  note  1 ;  Virginia 
colonial  county  organization,  388, 
note  1 ;  legislation  of  Northwest 
territory,  409,  note  2  ;  first  counties 
in  the  west,  413,  note  4;  origin  of 
civil  institutions  in  the  Northwest 
territory,  414,  note  3 ;  criminal 
laws  of  the  Northwest  territory, 
419-23,  notes;  land  grants  and 

.  manors  of  Cadillac,  427-8,  notes; 
common  fields  in  western  French 
settlements,  429,  notes;  Dejean  and 
the  early  courts  at  Detroit,  431-4, 
notes;  Charles  Beaume,  justice  at 
Green  Bay,  435,  note  2;  board  of 
county  commissioners  in  various 
western  states,  439,  note  3 ;  commis- 
sioner districts,  440,  note  1 ;  meet- 
ings,organization,and  powers'of  the 
county  board,  444-50,  notes;  register 
of  deeds,  452,  note  10 ;  clerk  of  dis- 
trict or  circuitcourt, 453, note  1;  pro- 
bate or  county  judge,  457,  note  3. 

Blackstone,  William,  on  origin  of 

.  highway  officer,  202,  note  4 ;  on 
appointment  of  the  same,  205. 

Borowhead,  37,  note  3. 

Borsholder,  37,  note  3. 

Boston,  chooses  constables  for  de- 
pendent towns,  55,  note  4 ;  national 
importance  of  her  town-meeting, 
74 ;  duties  of  her  selectmen,  80-2 ; 
ordinance  of,  regulating  constable's 
watch,  84-6 ;  regulation  of  appren- 
tices in,  86-7  ;  number  of  officers, 
99;  origin  of  elective  assessors, 
186 ;  overseers  of  the  poor,  origin, 
195,  note  2 ;  perambulators,  220 ; 
fence  viewers,  hay  wards,  and  cow 
keepers,  221 ;  long  continuance  of 
town  government,  229,  note  3. 


502 


Index. 


Boston  Record  Commission,  reports 
of,  50,  note  1. 

Boueries,  or  house-lots,  104. 

Boundaries,  perambulation  of,  214— 
24;  curses  on  the  disturbers  of, 
217-18  and  notes  2  and  3;  how 
described  in  Old  and  New  Eng- 
land, 220,  note  2;  established  and 
recorded  by  selectmen,  80. 

Boundary  stones,  punishment  for  re- 
moval of,  218  and  note  1. 

Bounties,  for  destruction  of  noxious 
animals,  in  New  England,  65,  note 
3;  on  Long  Island,  107  and  note 
4;  in  Pennsylvania,  381;  Virginia, 
395,  465 ;  western  states,  445. 

Boy  train  bands,  349-50. 

Boycl,  Rev.  John,  quoted,  133,  note 
3 ;  mentioned,  134. 

Braintree,  number  of  officers,  99 ; 
fence  viewers,  haywards,  cow 
keepers,  and  field  drivers,  221. 

Branders  of  cattle,  in  New  England, 
98. 

Brett,  Rev.  Daniel,  mentioned,  134. 

Brewers,  elected  by  the  town,  97. 

Bridges,  local  administration  of,  in 
Massachusetts,  331,  463 ;  Pennsyl- 
vania, 371 ;  Virginia,  394;  South 
Carolina,  469 ;  western  states,  210- 
14,  446. 

Brodhead,  J.  B.,  his  History  of  New 
York,  cited,  358,  note  3. 

Brotherhood  or  ward,  241-52. 

Brycgbot,  202. 

Bryc-geweorc,  202,  note  3. 

Bull,  the  town,  95  and  note  2. 

Burgesses,  in  Virginia,  274  and 
note  1,  393-4,  396 ;  in  Maryland, 
275-7. 

Burh,  a  more  strictly  organized  town- 
ship, 23. 

Burial  acts  parish,  46. 

Bydel,  the  town  messenger,  21 ;  sur- 
vival of,  27,  39,  218. 

By-laws,  derivation  of  term,  21,  note 
3 ;  of  manorial  courts,  28,  30 ;  of 
the  parish,  203;  New  England 
towns,  64,  66,  334-5;  selectmen, 
80,  81,  84-8;  New  York  towns, 
106,  1 10 ;  early  courts  on  the 
Delaware,  369,  372;  Virginia 
county  courts,  124;  western  town- 
ship, 165-6. 


Cadillac,  La  Mothe,  settles  Detroit, 
426  ;  erects  manors,  427-9. 

Csesar,  on  early  German  society,  12— 
13,  296. 

California,  origin  of  the  township  in, 
151-2, 157,  note  2;  county  collector 
of  taxes,  454,  note  1,  455,  note  2 ; 
county  board  of  supervisors,  439, 
note  3 ;  county  assessor,  454. 

Cambridge,  town-meeting  of,  enforces 
right  of  pre-emption,  53 ;  care  of 
poor  in,  194. 

Cannoneers,  town,  98. 

Carucage,  179  and  note  7. 

Cass,  Gen.  Lewis,  influence  of,  on 
local  self-government  in  Michi- 
gan, 154,  note  3,  155,  436. 

Cattle,  town,  94  and  note  2. 

Cayugas,  phratries  of,  250. 

Caziques,  of  Locke's  charter,  114. 

Centena  or  untergau,  257-63 ;  organi- 
zation of,  according  to  Lex  Salica, 
258-61 ;  centenarius  or  thunginus, 
258;  the  mallus,  derivation  of 
term,  258;  rachineburgii,  259  and 
note  2,  263 ;  sacebaro  and  grafio, 
260 ;  organization  of,  under  Frank- 
ish  empire,  261-3;  scabini,263and 
note  2.  See  Hundred  and  Hundert- 
schaft. 

Centenarius,  258,  261,  262,  270. 

Centuria,  relation  of,  to  the  curia, 
244-9. 

Centurio  or  centurionus,  commander 
of  a  centuria,  248. 

Chalmers,  M.  D.,  on  causes  of  separa- 
tion of  civil  and  ecclesiastical  par- 
ish, 43 ;  anecdote  by,  touching 
small  parishes,  45,  note  2;  on 
modern  ecclesiastical  parish,  47 ; 
on  the  sexton,  49. 

Chimney  sweepers,  83,  98. 

Church-rate,  origin,  35 ;  compulsory, 
abolished,  1868,  47.  See  Kates. 

Churchwardens,  instituted,  1127,  35; 
ex  offido  overseers  of  the  poor,  40, 
45,  48 ;  character  and  duties  of,  38 
and  note  4;  call  vestry  meeting, 
41 ;  in  modern  ecclesiastical  par- 
ish, who  eligible,  48;  of  the 
Duke's  laws,  108-9  ;  ex  officio  over- 
seers of  poor  in  New  York,  109, 
note  4 ;  in  Virginia :  chosen  for 
early  hundreds  and  plantations, 


Index. 


.003 


118;  number  and  duties,  122-3, 
396-6;  care  of  poor,  196-7;  in 
Maryland,  126  and  note  2;  South 
Carolina,  127,  128;  North  Caro- 
lina, 131 ;  as  assessor  of  church 
rate,  184. 

Cincinnati,  foundation  of,  412. 

City,  highest  conception  of  the  state 
among  the  Greeks,  9,  307 ;  un- 
known to  primitive  Germans,  13; 
an  integral  part  of  English  shire, 
23. 

— —  gravitation  towards  in  America, 
150,  note  1  ;  resistance  to,  in  New 
England,  229  and  note  3;  use  of 
term  in  early  Virginia,  389-90. 

Civitas,  identical  with  volkerschaft, 
15 ;  organization  and  duties  of, 
292-8;  used  for  paaus  in  Gothic 
and  Lombard  laws,  308. 

Clan,  as  the  prototype  of  the  town- 
ship, 3-10;  not  an  artificial  pro- 
duct, 6 ;  its  bond  was  common 
blood  and  common  worship,  6; 
organization  of,  7 ;  still  exists  in 
India,  8  ;  of  Celtic,  Turanian,  and 
Semitic  peoples,  8. 

Clerk,  of  the  band,  348-9. 

of  the   county.     See   County 

Clerk. 

of  the  county  court  in  Virginia, 

392;  in  Maryland,  405. 

of  elections,  in  Pennsylvania 

386-7 ;  in  Delaware,  284. 

of  the  market,  91,  99. 

the     parish,    38-9 ;     surviv- 
ing duties  of,   49 ;    in  Virginia, 
123;  elective,  in  South  Carolina, 
128. 

of  the  peace,  origin  of,  315; 

prototype  of  modern  county  clerk, 
315 ;  in  Massachusetts,  338 ;  New 
York,  361 ;  Pennsylvania,  384  and 
note  6;    Michigan,  under  British 
rule,  434. 

the  township,  represents  ves- 
try clerk,  39 ;  duties  of,  in  New 
England,  89-90;   in   New   York, 
112;  in  the  west,  163,  173-4. 

the  vestry,  in  England,  39 ;  in 

Virginia,  123,  note  5;   Maryland, 
126;  North  Carolina,  131. 

of  the  writs,  90,  91,  331. 

Clients,  sharers  in  the  family  sacra, 
3,  note  3. 


Collector,  of  alms,  40,  193. 

the  county,  in  the  western  states, 

454  and  note  1. 

of  the  hundred,  in  Delaware, 

286,  286. 

of  parish  taxes,  39,  123,  131. 

—  of  the  town,  91  and  note  5;  in 
New  York,  111;  in  the  western 
states,  175  and  note  1. 

Colonies,  the  Dutch  of  New  Nether- 
land,  102-5. 

— —  of  Locke's  charter,  114. 

Colorado,  school  districts  in,  236; 
school  franchise  in,  237,  note  5 ; 
county  board,  439,  note  3;  com- 
missioner districts,  440,  note  1  ; 
county  assessor,  454;  county  clerk, 
452. 

Colverton  (Calverton)  manor,  116. 

Comes  civitatis,  analogue  of  the  graf, 
308. 

Comes  patrimonii,  analogue  of  the 
domesticus,  308. 

Comitatus  or  gefolge,  296. 

Comitia  curiata,  246,  291. 

Commander,  of  the  county  in  Mary- 
land, 405. 

of  the  hundred  in  Maryland, 

280-1. 

of  plantations  in  Virginia,  273 

and  note  4,  400-1. 

Commissioners,  county  board  of, 
genesis  in  Pennsylvania,  382-3, 
385-7;  in  Delaware,  284-5;  North- 
west territory,  408-26;  stages  in 
development  of,  424-6 ;  in  Michi- 
gan territory,  437-8 ;  in  the  west- 
ern states,  438-50 ;  rise  of,  in  New 
England,  458-64 ;  in  various  south- 
ern states,  469-70. 

of  the  county  court,  in  Connec- 
ticut, 320. 

of  courts,  in  Virginia,  390-1. 

of  equalization  of  assessments, 

98,  342-3. 

of  the  hundred  in  Delaware,  285. 

of  insolvency,  in  Massachusetts, 

463. 

to  join  in  marriage,  99,  331. 

of  the  revenue,  *n   Virginia, 

464,  467  and  notes  3  and  4. 

road   or    highway,   in    South 

Carolina    parish,   128 ;    in    New 
York,  209,  213;  in  the  west,  213- 
14 ;  in  Delaware,  283. 


504 


Index. 


Commissioners,  of  small  causes, 
chosen  in  town-meeting,  61,  98, 
323;  or  appointed  by  general 
court,  329. 

tax,  early  English,  181,  note  3 ; 

of  the  Massachusetts  shire,  186-7, 
341-3 ;  the  English  county  board 
of,  1692,  183;  in  Virginia,  467, 
note  3. 

to  carry  votes,  98,  355. 

water,  170. 

Committees,  of  correspondence,  1772, 
74. 

the  parish,  41. 

Commoners  as  opposed  to  non-com- 
moners, in  New  England,  54,  62-3 ; 
in  Germany,  63  and  note  3. 

Common  driver,  chosen  originally  in 
the  leet,  39-40,  218;  called  field 
driver,  cow  keeper,  herder,  neat- 
herd, and  hayward,  93  and  note  3, 
221 ;  duties  of,  93-4. 

Common  fields,  among  the  Germans, 
16-18  and  notes;  in  England,  18- 
19 ;  of  the  hundred,  question  as 
to,  255  and  notes  4  and  5  ;  in  New 
England,  53,  80,  228-9,  and  note  1 ; 
New  Netherland,  104 ;  in  western 
French  settlements,  429  and  note  3. 

Common  peace  makers,  court  of,  in 
Pennsylvania,  373-4. 

Common  pleas,  county  court  of,  in 
Rhode  Island,  320,  449,  457 ;  Mas- 
sachusetts, 330;  New  York,  361; 
New  Jersey,  367 ;  Pennsylvania, 
375-6,  449;  Northwest  territory, 
414,  415,  416 ;  Michigan :  under 
British  rule,  434;  under  North- 
west territory,  435 ;  dissolution  of, 
in  the  west,  456. 

Community  of  blood  and  religion, 
the  bond  of  primitive  society,  6, 
242,  289 ;  survived  among  early 
Germans,  14-15,  254,  293;  and 
old  English,  18,  19,  20,  22. 

Connecticut,  general  court  of,  enforces 
right  of  pre-emption,  54 ;  supervi- 
sion of  towns  of,  by  the  general 
court,  59 ;  unit  of  representation 
in,  61  and  note  4;  origin  of  towns- 
men in,  76 ;  origin  of  road  survey- 
ors in,  207-8;  modern  township 
of,  226  and  note  2,  227  and  note  4 ; 
origin  of  the  county  in,  319-20; 
modern  county  of,  459-60. 


Constable,  the  hundred,  in  England, 
267,  269,  270;  office  of,  permis- 
sively  abolished,  271 ;  in  Mary- 
land, 276,  277,  280 ;  in  Delaware, 
283,  284,  286. 

the  township,  parish  or  mano- 
rial, chosen  in  the  leet,  37 ;  consti- 
tutive officer  of  the  parish,  37 ; 
various  names  of,  37,  note  3 ;  called 
petty,  270 ;  decay  of  the  office,  40 ; 
calls  vestry  meeting,  40;  office 
practically  extinct,  in  England, 
45;  original  road  overseer,  202-4; 
in  New  England :  chosen  for  de- 
pendent towns,  55,  note  4 ;  gives 
warning  of  town-meeting,  63 ;  col- 
lects and  and  disburses  taxes,  79, 
89 ;  sometimes  nominated  by  select- 
men, 83 ;  his  watch,  ordinance  for, 
84-6 ;  constitutive  officer  of  the 
town,  89 ;  number,  99 ;  road  duties 
of,  208;  judicial  functions  of,  under 
the  Duke's  laws,  106,  359 ;  under 
the  New  York  province  laws,  112 
and  note  2 ;  appointed  for  the  par- 
ish, in  South  Carolina,  128 ;  in 
North  Carolina,  234 ;  the  western 
states,  175;  Pennsylvania,  380,  382, 
386 ;  in  Northwest  territory,  424. 

Control,  board  of,  in  Ohio,  448. 

Convention,  county,  in  New  Hamp- 
shire, 461 ;  in  Vermont,  459,  note  3. 

the   nominating,    genesis    of, 

353-5. 

Cornbury,  Lord,  ordinance  of,  estab- 
lishing courts,  367. 

Coroner,  the  county,  origin  of,  314; 
still  chosen  in  old  county  court, 
317;  in  Pennsylvania,  382,  384; 
Virginia,  395 ;  Maryland,  405  ; 
Northwest  territory,  415 ;  Michi- 
gan :  under  British  rule,  434 ;  dur- 
ing territorial  period,  437,  438  ;  in 
the  western  states,  455;  Connec- 
ticut, 460 ;  Virginia,  468. 

Cortlandt  Manor,  105,  note  1. 

Coulanges,  Fustel  de  opposes,  popu- 
lar theory  of  Teutonic  village  com- 
munity, 17,  note  3. 

County  or  shire,  evolution  of  the 
organism,  289-318. 

the  tribe  as  the  prototype,  289- 

92. 

the  volkerschaft,  292-8.    See 

Volkerschaft. 


Index. 


608 


County  or  shire,  the  old  English,  298- 
309 ;  origin,  298-301 ;  ascribed  to 
Aelfred,  298 ;  why  called  scir, 
299-300;  analogy  with  Roman 
tribus,  299;  significance  of  rape, 
lathe,  nnd  riding  as  intermediate 
divisions  of,  301 ;  dual  govern- 
ment of  scirgerefa  and  ealdorman, 
significance  of,  301-2 ;  the  scirge- 
mot,  302-3 ;  comparison  of  the 
shire  system  and  the  Gauverfas- 
sung,  304-9. 

the  Norman,  3Q9-14:   at  the 

mercy  of  the  sheriff,  309-12;  the 
county  court,  the  meeting-place  of 
local  and  national  organisms,  312- 
14;  functions  of,  in  age  of  Edward 
1,313-14;  fiscal  administration  of, 
313-14. 

the  modern  English,  314-18: 

the  court  superseded  by  the  quar- 
ter sessions,  314-15;   rise  of  the 
custos  rotulorum  and  clerk  of  the 
peace,  315 ;  rise  of  the  lord  lieu- 
tenant, 316 ;  other  county  officers, 
316-17 ;  effects  of  modern  legisla- 
tion, 317-18. 

rise  of,  in  the  New  England 

colonies,  319-57  :  origin  in  various 
jurisdictions,  319-22 ;  evolution  of 
the    Massachusetts   shire    courts, 
322-38:    quarter    courts,    322-7; 
county    courts,    327^31 ;    general 
functions    of    the    county    court, 
331-2;  supervision  of  the  towns, 
333-35;    records    of   a    court   of 
general  sessions,  335-8 ;  court  offi- 
cers, 338-9;  the  shire  as  a  fiscal 
unit,    339-44:    the    county   rate, 
339-41 ;  the  country  rate,  341-2 ; 
equalization  of  assessments,  342-3; 
taxes  payable  in  kind,  343-4 ;  the 
shire  as  a  militia  district,  345-51 ; 
genesis  of  the  primary  and  nomi- 
nating  convention,   351-6 ;    com- 
parison    of     the     Massachusetts 
county   with   the   English   shire, 
356-7. 

rise  of,  in  New  York,  358-64 : 

the  riding  of  the  Duke's  laws, 
358-60;  the  county  of  the  New 
York  royal  province,  360-2 ;  dual 
administration  of  supervisors  and 
justices,  362-3 ;  as  a  military  unit, 
364. 


County  or  shire,  rise  of,  in  New 
Jersey,  365-7 :  under  the  first 
proprietors,  365;  under  the  sec- 
ond proprietors,  366-7 ;  under  the 
royal  province,  367. 

rise  of,  in  Pennsylvania,  368- 

87  :  genesis  of  the  organism,  368- 
73;  judicial  administration,  373- 
77;  Indian  courts,  377;  civil  ad- 
ministration, 377-9 ;  fiscal  admin- 
istration, 379-83;  self-government 
of,  383-5;  prototype  of  the  county- 
precinct  and  township- county  sys- 
tems, 385-7. 

rise  of,  in  Virginia,  388-404: 

origin  and  character,  388-90;  evo- 
lution of  the  court,  390-3 ;  repre- 
sentation   and    civil    administra- 
tion, 393-7  ;  fiscal  administration, 
397-9 ;    military    administration, 
400-4. 

rise  of,  in  Maryland,  404-5. 

the  provincial  county  courts, 

a  survival  of  the  quarter  sessions, 
406-7. 

rise  of,  in  the  western  states, 

408-73:   genesis   of  the   commis- 
sioner system   in  the  Northwest 
territory,  408-26:  the  first  terri- 
torial   constitution,    408-10;    the 
inauguration  of  civil  institutions, 
411-12;  the  first  county  organiza- 
tion, 412-14;  judicial  administra- 
tion, 415-16;  a  barbarous  crimi- 
nal code,  416-20;  sabbath  laws  and 
the  debtor's  prison,  420-3;   civil 
administration   of  the   tax  com- 
missioners  and   quarter   sessions, 
423-5;  emancipation  of  thecounty, 
425-6 ;  genesis  of  the  supervisor 
system  in  Michigan  territory,  426- 
38:  French  manors  and  common 
fields,  426-30 ;  British  command- 
ants   and    courts   of   arbitration, 
430-5 ;  rise  of  the  board  of  super- 
visors, 435-8 ;  the  western  county 
board :  composition  and  differenti- 
ated forms,  438-40  and  notes;  rela- 
tion to  the  county  and  the  state, 
440-2;  powers  and  duties,  442-50; 
county  officers  and  their  functions : 
the  clerk,  450-1 ;    auditor,  452 ; 
register  and  clerk  of  the  courts, 
452-3  and  notes  ;  treasurer,  453— 4; 
assessor,  454-5;   sheriff,  455  and 


506 


Index. 


note  2 ;  coroner,  surveyor,  and 
superintendent,  455 ;  prosecuting 
attorney  and  public  administra- 
tor, 456  and  note  2 ;  county  or 
probate  judge,  456-7  and  notes; 
survival  of  colonial  courts,  457-8. 

in  modern  New  England,  458- 

64 :  influence  of  the  west  on  the 
East  and  South,  458  ;  the  county, 
in  Rhode  Island,  459  ;  in  Vermont, 
459 ;  in  Connecticut,  459-60 ;  in 
New  Hampshire,  460-1;  in  Maine, 
461 ;  in  Massachusetts,  461-64. 

in  various  southern  states :  Vir- 
ginia, 464-8  ;  Maryland  and  Dela- 
ware, 468;  Alabama,  Mississippi, 
Arkansas,  Texas,  and  Louisiana, 
469;  South  Carolina,  469 ;  North 
Carolina,  469-70 :  Tennessee,  470. 

the  elective  county  board  a  sur- 
vival of  the  shiremoot,  471-73. 

Counties,  new,  how  formed,  440-2. 

County  assembly,  in  Connecticut,  460. 

County  board,  in  the  west,  438-50. 
$eeCommissionersand  Supervisors. 

County  clerk,  represents  the  clerk  of 
the  peace,  315 ;  the  clerk  of  the 
commissioners,  in  Pennsylvania 
and  the  Northwest  territory,  382, 
383,  425 ;  the  clerk  of  the  county 
court,  in  Virginia,  392;  the  office 
in  the  western  states,  450-1. 

County  convention,  in  New  Hamp- 
shire, 461 ;  in  Vermont,  459,  'note  3. 

County  courts :  the  scirgemot,  302-3 ; 
its  organization  unique,  309. 

in  the  Norman  reigns,  310-11 ; 

meeting  place  of  local  and  national 
organisms,  312-14:  after  Henry  II, 
held  in  two  forms,  312;  decay  of, 
after  Edward  I,  314-18 ;  super- 
seded by  quarter  sessions,  136,  315, 
471-3. 

in  the  New  England  Colonies : 

Connecticut,  319-20;  Rhode  Is- 
land, 320 ;  Plymouth,  321. 

in  Massachusetts,  322-39 :  the 

quarter  court,  322-3 ;  records  of  a 
quarter  court,  323-7 ;  the  county 
court,  327-31 ;  equity  jurisdic- 
tion, 330 ;  general  sessions,  330-1  ; 
general  functions,  331-2;  subor- 
dination of  towns  to,  333-5;  rec- 
ords, 335-8 ;  officers,  338-9. 

in  New  York,  361-3,  457. 


County  Courts,  in  New  Jersey,  365-7. 

in    Pennsylvania,    the    early, 

369-70;    records  of,    371-3;    the 
common    peace    makers,    373-4; 
evolution    of  the   common   pleas 
and  quarter  sessions,  374-6 ;   In- 
dian   courts,    377 ;    general    civil 
administration,  377-9;   the  mod- 
ern, 449-50,  457-8. 

in  Virginia,   development   of 

the  organization,  390-2 ;   officers, 
392-3;   general  functions,  394-5, 
397-8 ;     survival     of    legislative 
power  :md  representation,  395—7; 
the  mo  lern,  465-7. 

in  the  Northwest  territory,  in- 
stituted, 414,  415-16 ;  civil  admin- 
istration of,  423-5 ;  abolition  of, 
425. 

in  Michigan,  under  British  rule, 

434  and  notes;  during  the  terri- 
torial period,  436-7. 

in   the   western  states,  456-8 

and  notes, 

in    modern    New    England: 

Rhode     Island,     459 ;    Vermont, 
459 ;  Massachusetts,  464. 

in  various  southern  states,  468, 


470. 

County  courts,  the  new  English,  of 
1846,  317. 

County  judge,  in  various  western 
states, '445,  456-7  and  note  3. 

County-precinct  system,  prototype 
of,  in  Pennsylvania,  385 ;  au- 
thority of  county  board,  443 ;  ele- 
ments of,  in  Virginia,  464 ;  Dela- 
ware, 282,  284-5,  468;  in  other 
southern  states,  468-70. 

Court,  of  assizes.     See  Assizes. 

of  common  pleas.  See  Common 

Pleas. 

of  common  right,  in  New  Jersey, 

366. 

county.     See  County  Court. 

general,  supervision  of  towns 

by,  56-62:  as  the  source  of  local 
authority,  56-9  ;  in  Plymouth,  61 ; 
Massachusetts,  322 ;  Virginia,  390. 

hundred,  ordinary  tribunal  of 

the   freemen,    21,    257;    the   old 
English,    composition    and    func- 
tions, 267-8 ;  two  courts  differen- 
tiated,   270;    in    Maryland,    279, 
281. 


Index. 


507 


Court,  of  sessions,  of  Duke's  laws,  359, 

369-70 ;  of  New  Jersey,  365 ;  New 

York,  457;  Massachusetts,  461  and 

note  5. 
town,  of  the  Duke's  laws,  359 ; 

not  established  on  the  Delaware, 

369 ;  of  New  Jersey,  365,  366. 
Courts,  circuit,  in  western  states,  456 

and  note  3;  Maryland,  468. 
district,  in  Michigan  territory, 

153,  430 ;  in  western  states,  456 

and  note  3. 
— —  equity,  in  Massachusetts,  330; 

New  Jersey,  365;   Pennsylvania, 

376;  Virginia,  392. 
levy,  in  Delaware,  284-5. 

manorial,  in  England,  27-30, 

36;  New  York,  105  and  note  1; 
provided    for,   in   New   England, 
113;    and    Carolina,    113-14;    in 
Maryland,  114-17. 

monthly,of  Virginia,  390-1,401. 

of  orphans,  in  Pennsylvania, 

375-6;   New  York,  362;   North- 
west territory,  415.    See  Admin- 
istration,   General    Sessions,   and 
Quarter  Sessions. 

probate.     See  Probate  Juris- 
diction. 

quarter,  the  great,  of  Massa- 
chusetts, 322. 

quarter,  the  county,  of  Massa- 
chusetts, 322-3. 

Coutume  de  Paris,  enforced  in  North- 
west, 428. 

Cow  keeper,  83,  93,  221. 

Crier,  the  town,  96. 

Crimes  and  offences,  harsh  punish- 
ment of,  in  New  England,  325-7 ; 
in  Northwest  territory,  416-23. 

Cullers  of  fish,  97. 

Cullers  of  staves,  83,  97. 

Curia,  a  union  of  gentes,  5;  analogue 
of  hundertschaft,  11 ;  its  relation 
to  the  centuria,  244-9 ;  number  and 
composition  of  the  curies,  244-5  ; 
derivation  of  the  term,  246,  note  4. 

Curio,  president  of  curia,  245. 

Curses  on  disturbers  of  boundaries, 
217-18  and  notes. 

Customary  court,  27-8. 

Gustos  rotulorum,  origin,  315  ;  the 
office  usually  conferred  on  the  lord 
lieutenant,  316;  survives  in  county 
clerk,  450. 


Cutler,    .M:m:i--cli.   mentioned,  142, 

414. 
Cyclops,  as  the  type  of  savage  life,  in 

Homer,  4  and  note  4. 
Cynn,  derivation  of,  6. 

Dakota,  flexible  township-county 
plan  of,  152-3 ;  type  of  township 
organization  in,  158 ;  township 
officers  in,  168,  note;  headship  of 
town  vested  in  a  board,  169,  172 ; 
overseer  of  highways,  210,  note  4 ; 
school  districts,  236 ;  school  fran- 
chise, 237,  note  5;  county  assessor, 
454. 

Debtors,  imprisonment  of,  in  North- 
west territory,  420-2. 

Decania  or  decuria  of  Franks,  a  divi- 
sion of  the  host,  24,  note  1. 

Decuria  of  foot  and  horse,  248. 

Decurio,  commanderof  a  decuria,  248. 

Dedham,  creation  of  the  township  of, 
57. 

Deeds,  registration  of,  in  New  Eng- 
land towns,  57.  See  Register. 

Deer  inspectors,  97. 

reeves,  97  and  note  5. 

preservers,  97. 

Dejean,  Philip,  justice  at  Detroit, 
431,  432,  note  4. 

Delaware,  assessments  in,  188;  the 
hundred  in,  281-6 ;  county,  468. 

Demesne,  of  the  Maryland  manors, 
115-16. 

Demos,  the  Kleisthenian,  9,  note  4; 
relation  of,  to  early  localized  genfi, 
10,  note  1,  292,  note  1. 

Detroit,  settlement  of,  by  Cadillac, 
426 ;  manors  at,  42,7-8 ;  a  burh, 
429;  common  fields  at,  429;  French 
notaries  in,  430;  British  comman- 
dants and  courts  of  arbitration 
in,  430-5;  martial  law  in,  under 
British  rule,  432. 

Dikaearchos,  on  the  phratria,  242 
and  note  3. 

Disobedience  to  parents,  how  pun- 
ished in  New  England,  418  and 
note  1  ;  in  Northwest  territory, 
418-19. 

Distributors  of  alms,  40,  193. 

District,  evolution  of  the  parochial. 
32-4;  extra-parochial,  44;  used 
for  parish,  in  New  England,  52, 
note  3. 


508 


Index. 


District,  subdivision  of  the  county, 
in  New  York,  110  and  notes  4  and 
5. 

commissioner,  440  and  note  1. 

judicial,  in  South  Carolina,  128, 

147-8. 

judicial,  in  Michigan,  1805, 153. 

road,  in  the  west,  210  and  note  4. 

magisterial,  in  Virginia,  231-2. 

See  School  District. 

Doctors,  town,  98. 

Dogs,  persons  chosen  to  keep  them 
out  of  church,  98. 

Domesday  Book,  compilation  of,  178; 
the  assessment  list  for,  178-9. 

Dorchester,  extracts  from  town  rec- 
ords of,  65,  note  3,  66-7 ;  school 
ordinance  of,  1645,  68-72 ;  admis- 
sion of  strangers  in,  88  and  note  1 ; 
number  of  officers  of,  99 ;  of  fence 
viewers,  221. 

Dowell,  Stephen,  quoted  on  the 
assessment  of  movables,  181,  note 
3 ;  on  the  settlement  of  the  fifteenth 
and  tenth,  1334,  182. 

Dreifeldwirthschaft,  18. 

Drummer,  town,  83;   duties  of,  96. 

Duke  of  York,  laws  of,  relating  to 
the  town,  105-9 ;  enforced  on  the 
Delaware,  105,  note  4  ;  relating  to 
assessments,  187 ;  relating  to  the 
riding,  358-60. 

Dutch  colonies  and  village  commu- 
nities, 102-5. 

Dux  or  herzog,  295,  302. 

Dux,  analogue  of  shire  ealdorman 
among  Lombards,  309. 

Dymanes,  Dymanatae,  9,  note  2. 

Ealdor,  of  the  hundred,  266-7  ;  sur- 
vived after  the  Conquest,  270; 
partially  superseded  by  high  con- 
stable and  bailiff,  269-70. 

Ealdorman,  the  shire,  301-2,  303; 
analogue  of,  in  the  Gau,  308-9; 
office  becomes  extinct,  310  and 
note  5 ;  reappears  as  county  lieu- 
tenant, 316,  347,  400-1. 

Elections,  inspectors  and  clerks  of, 
in  Delaware,  283-4;  in  Pennsyl- 
vania, 386-7. 

Elisor,  county,  in  Nevada,  456,  note 
1. 

Ellis,  Sir  H.,  quoted  on  Domesday 
assessment,  178. 


Elting,  Irving,  his  Dutch  Village 
Communities,  102,  note  1. 

Engrossers,  91  and  note  7. 

Evans,  deputy  governor  of  Pennsyl- 
vania, ordinance  of,  regulating 
courts,  375. 

Family,  the  unit  of  ancient  society, 
3-5 ;  the  patriarchal,  more  ex- 
tended than  the  modern,  3,  note 
3 ;  importance  of,  in  early  German 
state,  15,  note  1. 

Fanum,  converted  into  Christian 
church,  33. 

Farmer,  Silas,  his  History  of  Detroit 
and  Michigan  quoted,  427,  note  5, 
430,  432,  note  2,  433. 

Feldgraswirthschaft,  18. 

Fences.     See  Fence  Viewer. 

Fence  viewer,  evolution  of  the  office, 
214-25;  the  English  hayward, 
218;  in  New  England,  83;  duties, 
91-2,  221 ;  number,  99,  221 ;  vari- 
ous names,  91,  note  6,  221 ;  in  the 
west,  224-5;  Delaware,  282 ;  North- 
west territory,  424. 

Feorm-fultum,  176  and  note  3,  303. 

Ferries,  administration  of,  in  Massa- 
chusetts, 81 ;  Pennsylvania,  378  ; 
Virginia,  395 ;  Northwest  terri- 
tory, 423 ;  Michigan  territory,  437. 

Festus  on  the  curia  and  decuria,  248, 
note  2. 

Feudal    tenures  of    Europe    trans- 

S1  anted  to  the  Hudson,  102;  in 
ichigan,  427-8. 

Field  driver,  93,  99,  221. 

Filialdorfer,  in  New  England,  55 
and  note  4. 

Fire  ordinances,  enacted  by  select- 
men, 81. 

Firewards,  84. 

Fishers,  town,  98. 

Folc-land,  dependent  townships  crea- 
ted from,  26. 

Folkmoot,  of  the  volkerschaft,  292-4; 
of  the  shire,  302-3 ;  in  the  Ply- 
mouth jurisdiction,  61 ;  the  town- 
meeting  as,  74 ;  in  Dutch  villages, 
104;  of  New  York  towns,  111 ;  of 
the  Maryland  hundred,  279,  281; 
of  the  tribus,  291 ;  of  the  Massa- 
chusetts shire,  349 ;  of  the  Penn- 
sylvania county,  384-5. 

Forestallers,  91  and  note  7. 


Index. 


509 


Fnmehise,  political,  by  whom  pos- 
sessed in  New  England  towns,  62 
and  note  3;  extended  to  women, 
237  and  note  5 ;  in  Virginia,  394. 

Frankpledge,  view  of,  in  tourn,  41, 
271 ;  provided  for  in  first  charter 
of  Carolina  and  in  Locke's  Grand 
Model,  113;  in  Maryland,  115. 

Freedoms  and  exemptions  of  1629, 
102. 

Freeman,  Edward  A. :  regards  origi- 
nal Roman  tribes  as  local,  1 0,  note 
1 ;  quoted  on  the  evolution  of  Teu- 
tonic social  groups, -10-11;  on  the 
establishment  of  the  mark  system 
in  Britain,  19  and  note  3 ;  on  the 
relation  of  century  and  hundred, 
247,  252 ;  his  use  of  par/us  and  gau, 
257,  note;  on  the  significance  of 
shire,  299,  300 ;  on  the  evolution 
of  the  English  monarchy,  471. 

Freeman,  Frederick,  his  History  of 
Cape  Cod  mentioned,  51,  note. 

Functional  ism,  in  New  England, 
96-9,  228. 

Fundamental  constitutions  of  Locke, 
113-14. 

Gardiner's  Island,  manor  of,  105, 
note  1. 

Gastalde,  analogue  of  scirgerefa,  309. 

Gau,  authorities  on  the  use  of  the 
term,  256,  note  4;  later  use  of, 
262,  307-8.  See  Hundertschaft. 

Gangers  of  tar,  83. 

Gauverfassung,  compared  with  the 
shire  system,  304-9. 

Geisthardt,  S.  L.,  communication 
from,  228,  note  1. 

Geleontes,  5. 

General  sessions  of  the  peace:  in 
Rhode  Island,  320 ;  Massachu- 
setts, 330-8,  461-2;  New  Jersey, 
367. 

Gens,  genos,  a  union  of  families,  5 ; 
whether  localized,  10,  note  1 ;  a 
state  in  miniature,  6;  embryo  of 
township,  6 ;  ritual  of,  6-7 ;  rela- 
tion to  phratria,  242-3;  the  Iro- 
quois,  252. 

Geographer  of  the  United  States, 
office  of,  instituted,  137. 

Georgia,  free  schools  in,  237. 

Gerefa,  of  township,  21  and  note  5 ; 
survives  as  lord's  steward,  27. 


Gewere  or  possession  as  opposed  to 

sondereigen,  16-17. 
Gilbert's  (Douglas)  Manor,  113,  note 

3. 
Glebe,    provided    for    ministers   in 

Virginia,    120 ;     and    in    North 

Carolina,  132. 
Gneist,  Rudolph,  on  the  Frankish 

decania  or  decuria,    24,   note    1 ; 

denies  that  old  English  tithing 

was  local,  24,  notes  1  and  3 ;  on  the 

manor,  mentioned,  25,  note  2. 
Gorges,  Sir  Ferdinando,  establishes 

tithings  in  Maine,  100,  note  1 ;  also 

hundreds,  272-3. 
Gospel  oak,  217. 
Graf,  ruler  of  pagus,  262,  308  and 

notes  1,  2,  and  3. 
Grafio,  of  Lex  Salica,  258,  260. 
Grafschaft,  304,  308  and  note  1. 
Grand  jury,  a  true  bill  of,  336-8 ; 

administration  of  bridges  by,  in 

Pennsylvania,   383,    of   taxation 

by,  381. 
Grand  Model  of  Locke,  113-14;  one 

provision  carried  out,  129. 
Grayson  of  Virginia,  drafts  ordinance 

for  disposing  of  western  lands,  137. 
Gregory,  the  Great,  his  letter  as  to 

distribution  of  oblations,  191-2. 
Grimm,  Jacob,  on  mark  boundaries, 

217,  note  1,  218,  note  1 ;  on  origin 

of  the  hundred,  253. 
Grimstead  Manor,  105,  note  1. 
Grubbers,  town,  98  and  note  17. 
Guardians,  of  the  poor,  46 ;  appoint 

assessment  committee,  185. 
Guardians  of  orphans,  170. 
Guests,  sharers  in  the  family  sacra, 

3,  note  3. 

Hamilton,  A.  H.  A.,  his  Quarter 
Sessions,  91,  note  7,  335. 

Hanssen,  Georg,  on  the  Germans  of 
Caesar's  time,  and  on  shifting 
occupation,  1 3,  notes  2  and  4. 

Hayward,  originally  chosen  in  leet, 
39-40,  218 ;  in  New  England,  91, 
note  6,  93,  note  3,  221,  228,  note  1. 

Headboroughs,  in  Virginia,  394. 

Head  officer,  of  the  Rhode  Island 
town,  88-9. 

Hege-weard,  or  hayward,  218. 

Herder,  93,  95,  note  2. 

Hesse,  district  of,  in  Northwest,  434. 


510 


Index. 


Hide,  as  unit  of  assessment,  179  and 
note  1. 

High  constable  of  the  hundred.  See 
Constable. 

Highway  parish,  46. 

Highways,  administration  of:  duty 
to  care  for,  a  part  of  the  trinoda 
necessitas,  202-3 ;  regulated  by  the 
statute  of  Winchester,  204;  later 
laws,  205-6 ;  in  New  England,  57, 
207-9,  331,  461,  463;  New  York, 
209  ;  Pennsylvania,  210,  371, 
377-8,  385;  Virginia,  210,  394, 
466-7  ;  Northwest  territory,  423 ; 
western  states,  446;  South  Caro- 
lina, 469. 

Hinsdale,  B.  A.,  quoted  on  the  ordi- 
nance of  1785,  139-40. 

Hog  reeve,  appointed  by  selectmen, 
83 ;  office  of,  instituted  in  Massa- 
chusetts, 92 ;  duties  of,  92-3 ;  sur- 
vival of,  in  New  England,  228, 
note  1. 

Holmes,  Jesse  H.,  on  the  reconstruc- 
tion township,  230,  note  2,  231, 
note  4. 

Homer :  cyclops  mentioned  in  Odys- 
sey, 4 ;  his  poems  reveal  the  polis 
stage,  9 ;  evidence  of  the  Iliad  as 
to  military  character  of  the  phra- 
tria,  243,  249. 

Honorius,  the  archbishop,  not  origi- 
nator of  the  parish,  33. 

Hopletes,  5. 

House-father,  authority  of,  3,  4  and 
note  1. 

House  lots,  in  New  England  towns, 
53 ;  restraint  on  alienation  of,  53 ; 
in  Dutch  villages,  104. 

Howe,  Daniel  Waite,  on  legislation 
of  Northwest  and  Indiana  terri- 
tories, 426,  note  1. 

Hucbald,  on  the  old  Saxons,  297. 

Hundertschaft,  analogue  of  curia  and 
phratria,  11,  241-52,254-5;  theory 
of  its  origin,  252-4,  265,  note  1 ; 
Sohm's  theory  of  the  j  udicial  char- 
acter of  the  organization,  11,  note 
2,  256,  259,  note  4 ;  identical  with 
the  pagus  of  Tacitus  and  the  gau, 
256  and  note  4;  use  of,  in  the 
military  organization,  254 ;  the 
court  of,  257.  See  Hundred. 

Hundred,  evolution  and  decay  of 
the  organism :  the  brotherhood  or 


ward  as  the  prototype,  241-52; 
the  Ionic  phratria,  241-4 ;  the 
curia  in  its  relation  to  the  centuria, 
244-9 ;  the  Iroquois  brotherhood, 
249-52. 

the  hundertschaft,  252-63.  See 

Hundertschaft  and  Centena. 

the  old  English,  264-71 :  origin, 

252—4 ;  relation  of,  to  the  wapen- 
take,  265-6 ;  ealdor  or  head  officer, 
266-7  ;  the  hundredgemot,  267-8 ; 
fiscal  administration  of,  268 ;  its 
police  administration,  269 ;  disso- 
lution of  the  organism  of,  269-71 ; 
two  courts  differentiated,  270. 

in  Maine  and  Virginia,  the 

name,  272-4 ;  contemplated  by 
the  Council  for  New  England, 
272  ;  by  Gorges,  272-3 ;  the  term 
used  for  plantation,  273,  389 ; 
commander  of,  a  survival  of  the 
hundredman,  273  and  note  4. 

in  Maryland,  274-81 :  origin  of, 

274-5 ;  a  representative  district, 
276-7  ;  a  fiscal  unit,  277  ;  a  mili- 
tary unit,  278-9 ;  its  folkmoot, 
279 ;  officers  of,  280-1 ;  extinction 
of,  281. 

in  Delaware,  281-6  :  a  township 

in  character,  282,  286 ;  a  highway 
district,  282-3;  care  of  poor  by, 
283 ;  officers  of  283 ;  election  pro- 
cedure in,  283-4 ;  an  area  for  rat- 
ing, 284-5 ;  rise  of  the  representa- 
tive board  of  county  commissioners, 
285. 

Hundredgemot,  267.  See  Court, 
Hundred. 

Hundredman.     See  Ealdorman. 

Hutchins,  Thomas,  whether  author 
of  ordinance  of  1785,  137,  note  2. 

Hylleis,  9,  note  2. 

Idaho,  school  districts  in,  236 ;  school 
franchise  in,  237,  note  5 ;  county 
board  in,  439,  note  3;  county 
auditor  in,  452. 

Illinois,  sectional  rivalry  of  local 
organisms  in,  144-6 ;  has  New 
York  type  of  township  organiza- 
tion, 158 ;  township  officers  in, 
167,  note  I ;  supervisor  in,  the 
head  officer  of  the  town,  168 ;  the 
town  board,  172 ;  care  of  poor,  199 ; 
dual  highway  administration,  213; 


Index, 


511 


school  districts,  235;  school  fran- 
chise, 237,  note  5  ;  early  criminal 
laws,  419;  supervisors  for  cities, 
443,  note  1;  county  clerk,  451; 
register  of  deeds  ana  clerk  of  cir- 
cuit court,  453,  note  1 ;  county 
judge,  457,  note  3. 

Illinois  county,  great  size  of,  413, 
note  4. 

Inama-Sternegg,  K.  T.,  on  the  impor- 
tance of  the  family  union,  15,  note 
1 ;  doubts  popular  theory  of  early 
German  land-holding,  17,  note  3. 

Indiana,  rudimentary -township  or- 
ganization in,  146,  157  and  note  2; 
the  township  of,  has  no  .indepen- 
dent power  of  taxation,  161 ;  head- 
ship of  the  town  vested  in  a  trustee, 
168,  171;  superintendent  of  roads 
in,  213,  note  3 ;  school  franchise  in, 
237,  note  5 ;  early  criminal  laws  of, 
419 ;  county  board  in,  439,  note  3 ; 
board  of  equalization  in,  448. 

Indians,  American,  tribal  organiza- 
tion of,  249-52. 

Indian  courts,  in  Massachusetts,  332 ; 
in  Pennsylvania,  377. 

Indian  manors,  in  Maryland,  116. 

Indian  tithings,  101. 

Informers  of  offenders  against  license 
laws,  84. 

Ingle,  Edward,  on  the  Maryland 
parish,  125,  note  2,  126,  note  2. 

Inspectors  of  brick  makers,  97. 

of  hides,  97. 

of  the  killing  of  deer,  97. 

of  elections,  in  Delaware,  283-4; 

in  Pennsylvania,  386-7. 

of  tobacco,  in  Pennsylvania,  371. 

Intendant,  deputy,  at  Detroit,  430. 

Intestates,  town  officers  chosen  in 
New  York  to  look  after  the  estates 
of,  112. 

lonians,  tribal  organization  of,  5, 
242-3 ;  tendency  to  city  auton- 
omy of,  7. 

Iowa,  has  Pennsylvania  type  of  town- 
ship organization,  157 ;  township 
officers  in,  168,  note;  headship  of 
town  of,  vested  in  a  board  of 
trustees,  169,  172;  care  of  poor 
in,  199 ;  school  system  of,  235 ; 
school  franchise  of,  237,  note  5 ; 
her  county  board,  439,  note  3 ;  her 
county  auditor,  452. 

Iroquois  brotherhood,  249-52. 


Jefferson,  Thomas,  quoted  on  char- 
acter of  Virginia  vestrymen,  122; 
on  counties  and  parishes,  1 19,  note 
2 ;  his  ordinance  for  disposing  of 
western  lands,  137. 

Jews,  may  be  churchwardens  in 
modern  ecclesiastical  parish,  48. 

Johnson,  Edward,  his  Wonder-  Work- 
ing Providence,  345. 

Johnson,  John,  his  Old  Maryland 
Manors,  116,  note  3. 

Judges  of  boundary  disputes,  98. 

of  delinquents  at  town-meeting, 

98. 

of  elections,  in  Delaware,  283-4 , 

in  Pennsylvania,  386-7. 

of  probate.  See  Probate  Ad- 
ministration. 

Jurats,  sworn  arbiters,  41.    . 

Jury,  the  leet,  30. 

Jury,  used  for  assessments,  177-82 ; 
for  laying  out  roads,  209,  213 ; 
supersedes  freemen  in  county 
court,  317. 

Jurymen,  elected,  98. 

Justices  of  the  peace,  origin,  314- 
15;  appoint  overseers  of  poor,  40, 
45,  194;  assistants  in  New  Eng- 
land, were,  62 ;  the  office,  in  Con- 
necticut, 320;  in  Massachusetts, 
330,  464;  in  New  York,  360-3, 
457;  New  Jersey,  365-7;  Penn- 
sylvania. 369-70,  374-6,  383,  384, 
457;  Virginia,  391,  392,  394-5, 
396,  397-9,  466 ;  Northwest  terri- 
tory, 415-16,  42&-5;  Michigan 
territory,  under  British  rule,  431, 
433-4;  during  the  territorial 
period,  436,  437 ;  in  the  western 
states,  175-6,  167,  note  1 ;  North 
Carolina,  470.  See  General  Ses- 
sions and  Quarter  Sessions. 

Kansas,  has  Pennsylvania  type  of 
township  organization,  157 ;  town- 
ship officers  in,  168,  note;  head- 
ship of  the  town  of,  vested  in  a 
trustee,  168 ;  care  of  poor  in,  199  • 
highway  commissioners  in,  210  and 
note  4,  214 ;  school  district  of,  236 ; 
school  franchise  of,  237,  note  5; 
her  county  board,  439,  note  3; 
equalization  taxes  in,  448;  her 
county  clerk,  451 ;  county  audi- 
tor, 452;  fees  of  clerk  and  treas- 
urer, 453,  note  2. 


512 


Index. 


Kaskaskia,  common  fields  at,  429 
and  note  3. 

Kemble,  John  Mitchell,  holds  that 
mark  system  was  transplanted  to 
Britain,  19 ;  confuses  gegyldan 
and  frankpledge,  25,  note  1 ;  on 
the  origin  of  the  parochial  dis- 
trict, 33;  on  origin  of  the  hun- 
dred, 253 ;  his  use  of  ga  for  stir, 
256,  note  4. 

Kentucky,  free  schools  in,  237. 

King,  the  early  German,  294-5. 

Kitchin,  John,  his  Le  Court  Leete  et 
Court  Baron  mentioned,  25,  note  2. 

Kleisthenes,  effort  to  supersede  re- 
ligious bodies,  9,  243,  292,  note  1. 

Knight's  fee,  supersedes  the  hide  as 
unit  of  assessment,  179. 

Lamb,  Martha  J.,  her  papers  on  the 
New  York  manors,  105,  note  1. 

Lambard,  on  the  names  for  consta- 
ble, 37,  note  3 ;  on  character  of  the 
churchwarden,  38,  note  4. 

Lammas  meadows,  215,  note  1. 

Land-holding,  early  German,  theo- 
ries of,  13  and  notes  4  and  5,  16- 
17,  notes  2  and  3;  in  New  Eng- 
land, 53-4;  in  New  Netherland, 
102-5 ;  in  French  settlements  of 
the  west,  429  and  note  3. 

Land-tax  parish,  46. 

Lange,  Ludwig,  on  the  curies,  245. 

Lathe,  301. 

Lawrence,  P.  H.,  his  Extracts  from 
the  Court  Molk,  26,  note. 

Leet  court,  28-30;  officers  chosen 
in,  39-40;  of  New  York  manors, 
105  and  note  1 ;  provided  for,  by 
the  Council  for  New  England, 
113 ;  provided  for,  in  Carolina, 
113-14;  in  Maryland,  114-17. 

the  great,  of  the  hundred,  270. 

Leetmen,  provided  for,  by  Locke,  114. 

Levermore,  Charles  H.,  on  the  dif- 
ferentiation of  towns  in  New  Eng- 
land, 52,  note  3;  on  Mutter  and 
Filialdor/er,  55,  note  3. 

Lex  Salica,  provisions  of,  relating  to 
the  hundred,  258-61. 

Lieutenant,  the  county,  316 ;  in 
Massachusetts,  347 ;  in  Virginia, 
401-2;  in  Maryland,  commander 
the  analogue,  405. 

Livingston  Manor,  105,  note  1. 


Local  government  board,  46. 

Locke,  John,  his  charter  for  Caro- 
lina, 113-14,  129. 

Lombard  local  organization,  similar 
to  English,  308-9  and  note  1. 

Losantiville,  first  name  of  Cincin- 
nati, 412. 

Lot-layers,  98. 

Luceres,  5,  290. 

Maesse-preost,  34,  note  4;  the  first 
parish  officer,  34-5. 

Magisterial  districts,  in  Virginia, 
231-2. 

Maine,  tithings  in,  100  and  note  1 ; 
the  hundred  in,  272-3 ;  the  county 
in,  461. 

Maine,  Sir  Henry,  on  the  theories  of 
Morgan  and  McLennan,  5,  note  1 ; 
on  adoption,  7 ;  on  the  village 
council,  16 ;  on  theory  of  the 
court  leet,  29,  note  1. 

Mallus,  258-63 ;  compared  with  the 
hundredmoot,  267. 

Maloberg,  258,  263. 

Manor,  authorities  on,  25,  note  1 ; 
an  outgrowth  of  the  dependent 
tunscipe,  25-6 ;  the  English 
manor  essentially  a  township, 
27 ;  the  gerefa  replaced  by  lord's 
steward,  27 ;  and  the  bydel  by 
the  bailiff,  27  ;  but  the  reeve  and 
four  still  appear  in  the  higher 
courts,  27 ;  court  customary,  27 ; 
court  baron,  28 ;  court  leet,  28- 
30;  survival  of  mark  system  in, 
31 ;  relation  of,  to  the  parish, 
35-6. 

so-called,  in  New  Netherland, 

102-4. 

in  New  York,  105  and  note  1 ; 

treated  as  towns  for  purposes  of 
local  government,  110. 

provided  for,  by  the  Council 

for  New  England,  113. 

provided  for,  by  the  charter  of 

Pennsylvania,  113. 

provided  for,  by  the  Carolina 

charter,   1663,    113;    by    Locke's 
charter,  113-14. 

in  Maryland,  114-17. 

established,    by    Cadillac    at 

Detroit,  427-8. 

Mantineia,  composed  of  village  com- 
munities, 8,  note  6. 


Index. 


613 


Marietta,  foundation  of,  408,  411. 

Mark:  the  primitive,  of  Ctesar  and 
Tacitus,  10-14;  the  unit  of  Teu- 
tonic society,  11-12;  lands  of, 
how  settled,  13;  theories  of 
Maurer,  Allen,  and  Ross,  13, 
note  5;  growth  of  the  constitu- 
tion, 14-16 ;  derivation  and  sig- 
nificance of  mark,  15;  mark-moot, 
whether  judicial,  16,  note  2;  chief 
of,  16,  note  1;  economy  of,  16-18; 
whether  established  in  England, 
theories,  18-20 ;  whether  the  par- 
ish originated  in,  33 ;  restoration 
of,  in  New  England,  50-6 ;  trans- 
planted from  Holland  to  New 
Netherland,  104;  elements  of,  at 
Detroit,  429. 

Markgenossenschaft,  10-18.  See 
Mark. 

Mark-procession,  214-15. 

Markets,  regulation  of,  in  New  Eng- 
land, 91,  97,  99. 

Marklo,  meeting  place  of  the  Saxon 
volkerschaft,  297. 

-Marshal,  the  countv,  of  Massachu- 
setts, 338-9;  of  "the  New  York 
riding,  360;  of  the  early  Mary- 
land county,  405. 

Maryland,  the  manor  of,  114- 
17;  the  hundred  in,  116;  the 
parish  of,  1 24-7 ;  assessment  of 
taxes  in,  188;  the  county  of, 
404-5,  468. 

Massachusetts,  committees  of  gen- 
eral court  of,  to  set  out  town 
boundaries,  56-7 ;  first  township 
act  of,  -58  ;  enforces  registration 
of  deeds,  57  ;  unit  of  representa- 
tion in,  60-1 ;  franchise  in  towns 
of,  62,  note  3;  general  court  of, 
establishes  elementary  and  gram- 
mar schools,  67-8;  origin  of  select- 
men in,  75 ;  duties  of  selectmen 
in,  82:  duties  of  town  clerk  of, 
90 ;  assessors  of  taxes  in,  186-7 ; 
overseers  of  poor  in,  194-5;  care 
of  roads  in,  208-9 ;  institutes  per- 
ambulations, 219-20;  the  modern 
township  of,  226-7 ;  her  colonial 
county  organization,  321-56 ;  com- 
parison of  her  county  organization 
with  that  of  the  English  shire, 
356-7 ;  her  present  county, 
461-4. 

33 


Maurer,  G.  L.  v.,  on  mode  of  settle- 
ment of  early  Germans,  14,  note; 
his  theory  of  the  village  commu- 
nity, 16-17,  note  2. 

Maurer,  K.,  on  origin  of  the  hundred, 
253. 

Mayllower  of  the  West,  411. 

Mayne,  J.  D.,  on  family  customs  of 
India,  5,  note  1. 

McLennan,  John  F.,  on  promiscuity, 
exogamy,  endogamy,  and  wife- 
capture,  5,  note  1. 

Measurers  of  boards,  83,  97. 

of  corn,  83,  97. 

of  salt,  97. 

•: of  wood,  97. 

Meigs,  Jonathan,  first  scirgerefa  of 
the  west,  412. 

Messenger,  the  vestry,  39. 

Michigan,  rise  of  township-county 
organization  in,  153-6;  adopts  the 
New  York  plan,  154,  158 ;  influ- 
ence of  General  Cass  in,  155,  436 ; 
incorporation  of  single  townships 
in,  by  the  legislature,  159,  note  1 ; 
first  state  to  institute  the  town- 
meeting  in  the  west,  162,  note  3 ; 
township  officers  in,  167,  note.  1 ; 
headship  of  the  town  of,  vested  in 
a  supervisor,  duties  of,  168,  170; 
composition  of  the  town  board  in, 
172 ;  care  of  poor  in,  199 ;  her  dual 
highway  administration,  213;  her 
school  system, 235;  school  franchise 
of,  237,  note  5 ;  early  criminal  laws 
of,  419-20 ;  genesis  of  the  super- 
visor system  in,  426-38,  462  ;  how 
governed  under  French  dominion, 
426-30 ;  how  under  British,  430-5 ; 
local  government  in,  during  the 
territorial  period,  435-8. 

Militia  organization,  unit  of,  in  New 
England,  60;  the  hundred,  the 
unit  in  Maryland,  278-80 ;  in 
Massachusetts  colony,  345-51  ; 
New  York,  364 ;  Virginia,  400-4 ; 
Marvland,  278-9;  Northwest  ter- 
ritory, 412-13. 

Minister  or  parson,  spiritual  head  of 
the  parish,  37,  45,  48 ;  appoints 
parish  clerk  under  canons  of  1603, 
39,  note  1 ;  a  corporation  sole,  48 ; 
duties  of,  under  Duke's  laws,  109; 
in  Virginia,  121 ;  practice  of  lur- 
ing, 121  and  note  4 ;  was  principal 


514 


Index. 


of  parish  in  Maryland,  125 ; 
elected,  in  South  Carolina  parish, 
127;  salary  of,  128;  hired,  in 
North  Carolina  parish,  132  and 
notes  6  and  7  ;  provided  for  towns 
by  the  county  court,  in  Massachu- 
setts, 333  and  note  5. 

Minnesota,  her  flexible  township 
plan,  152-3;  her  type  of  township 
organization,  158 ;  township  offi- 
cers in,  168,  note;  headship  of 
town  of,  vested  in  a  board,  169, 
172;  highway  overseers  in,  210, 
note  4 ;  school  district  of,  236 ; 
school  franchise  of,  237,  note  5  ; 
her  county  board,  439,  note  3 ; 
board  of  equalization  in,  448 ;  her 
county  auditor,  452. 

Missouri,  rise  of  the  township-county 
system  in,  146-7  ;  admission  of,  as 
a  state,  146 ;  has  Pennsylvania 
type  of  township  organization, 
157 ;  headship  of  the  town  of, 
vested  in  a  trustee,  duties  of,  168, 
171, 175,  note  1 ;  overseers  of  high- 
ways in,  210,  note  4 ;  school  districts 
of,  236. 

Moderator,  of  town-meeting,  in  New 
England,  how  chosen,  64  and  note 
3 ;  in  western  states,  163  and  note  2. 

Moir,  Rev.  James,  quoted,  132,  note  7. 

Mommsen,  Theodor,  on  the  curia 
and  centuria,  247-8. 

Morgan,  Lewis  H.,  on  the  evolution 
of  the  family,  5,  note  1 ;  on  the 
American  tribal  organization,  8, 
249-52. 

Movables,  origin  of  taxation  of,  179. 

Muddy  River,  dependent  on  Boston, 
55,  note  4. 

Mutter  and  Filialdorfer,  in  New 
England,  55  and  note  4. 

Mynster-scir,  or  diocese,  32. 

Naherrecht,  or  right  of  pre-emption, 
in  New  England  towns,  53-4 ;  in 
German  communities,  53,  note  4. 

Navipletio,  or  ship  money,  levied  on 
the  wapentake,  266. 

Neatherd,  93. 

Nebraska,  economic  rivalry  of  local 
organisms  in,  150-1 ;  rise  of  her 
township  organization,  151  ; 
sources  of  her  population,  151 ; 
has  New  York  type  of  township 


organization,  158 ;  law  of,  as  to 
choice  of  town  officers  on  failure 
to  elect,  161 ;  town-meetings  in, 
when  held,  162-3;  functions  of 
town-meetings  in,  164-6;  town- 
ship officers  of,  167;  headship  of 
the  town  in,  vested  in  a  supervisor, 
duties  of,  168, 169;  her  town  board, 
172 ;  town  clerk,  173-4 ;  town 
treasurer,  174-5;  assessment  of 
taxes  in,  189-91 ;  care  of  poor  in, 
198;  care  of  highways  in,  211-12; 
fence  viewers  in,  224-5 ;  school 
district,  236  ;  school  franchise, 
237,  -i'Ote  5;  county  board,  439, 
note  3,  440-2,  443,  note  1,  444,  notes 
1  and  2,  445-7 ;  county  clerk, 
451 ;  register  of  deeds,%  452,  note 
10;  county  treasurer  and  clerk  of 
the  district  court,  453-4  and  notes ; 
county  assessor  under  territorial 
laws,  455,  note  2 ;  county  judge, 
457. 

Nevada,  school  districts  of,  236 ;  her 
county  board,  439,  note  3 ;  county 
assessor,  454;  county  elisor,  456, 
note  1 ;  public  administrator,  456, 
note  2. 

Newark,  origin  of  selectmen  in,  76. 

New  Hampshire,  close  supervision 
of  towns  in,  by  general  court,  59, 
note  3;  the  county,  460-1. 

New  Haven,  unit  of  representation 
in,  61 ;  origin  of  selectmen  in,  76 ; 
her  mixed  town  and  city  govern- 
ment, 229  and  note  3. 

New  Jersey,  school  system  of,  235 ; 
school  franchise  of,  237,  note  5 ; 
rise  of  the  county  in,  365-7. 

New  Mexico,  school  districts  of,  236. 

New  Netherland,  feudal  tenures  in, 
103 ;  colonies  of,  102-4 ;  rise  of 
self-government  in,  104. 

New  York,  the  town  of,  under  the 
Duke's  laws,  105-9 ;  the  town  of 
the  province  laws,  110-12 ;  manors 
in,  105  and  note  1,  110, 112;  origin 
of  the  supervisor  system  in,  111, 
362-3,  387 ;  her  township-county 
plan  adopted  in  Michigan,  154, 
158 ;  in  Illinois,  Wisconsin,  and 
Nebraska,  158 ;  township  officers 
in,  167,  note  1 ;  headship  of  town 
vested  in  a  supervisor,  duties  of, 
168,  169 ;  the  town  board  of,  172 ; 


Index. 


515 


assessment  of  taxes  in,  187 ;  over- 
seers of  poor  in,  196 ;  care  of  poor 
in,  199 ;  her  dual  highway  system, 
209,  213;  fence  viewers  and  per- 
ambulators in,  221-2 ;  school  sys- 
tem of,  236;  school  franchise  in, 
237,  note  5 ;  rise  of  the  county  in, 
858-64 ;  minor  county  officers  in, 
456,  note  1 ;  courts  of  sessions  in, 
457. 

Nichtmiirker,  acquire  political  pow- 
ers, 63,  note  3. 

Non-coininoners,  politically  equal  to 
commoners  in  town-meeting,  62-3. 

North  Carolina,  Locke's  charter  for, 
113-14,129;  the  precincts  of,  129- 
30 ;  the  parish  of,  130-4 ;  the  re- 
construction township  in,  233-4 ; 
free  schools  of,  237 ;  her  present 
county  government,  469-70. 

Northwest  territory,  rise  of  the  town- 
ship in,  sectional  rivalry  of  local 
organisms,  143-4;  benefits  to,  de- 
rived from  the  ordinance  of  1785, 
140;  from  the  ordinance  of  1787, 
142  and  note  I ;  genesis  of  county 
government  in,  408-26 ;  inaugura- 
tion of  civil  institutions  in,  411- 
12;  barbarous  criminal  code  of, 
416-23. 

Norwich,  notice  of  the  town-meeting 
of,  226,  note  2. 

Notaries,  town,  99. 

French,  430. 

Oba,  the  Spartan,  241  and  note  1. 

Oblations,  192  and  note  1,  194. 

O'Callaghan,  E.  B.,  his  History  of 
New  Netherland,  cited,  103,  104. 

Ohio,  origin  of  township  in,  144, 
146 ;  has  Pennsylvania  type  of 
township  organization,  157  and 
note  2 ;  township  officers  in,  157, 
note  2;  167,  note  1;  headship  of 
town-meeting  of,  vested  in  a  board 
of  trustees,  169 ;  care  of  the  poor 
in,  199;  supervisor  of  roads  in, 
210,  note  4;  her  school  system, 
235;  origin  of  commissioners  in, 
425-6 ;  county  board  of,  439,  note 
3 ;  her  county  board  of  control,  448. 

Onondagns,  phratries  of,  250. 

Open-air  meetings,  22,  note  2 ;  of  the 
manor,  31,  note  1 ;  of  the  hundred, 
258,  263,  268  and  note  4. 


Open-field  system,  in  Germany,  18; 
in  England,  19-20  and  note  1 ;  in 
French  settlements  of  the  North- 
west, 429  and  note  3. 

Open  vestry.    See  Vestry. 

Ordinance  of  1785,  history  of,  137 ; 
chief  provisions  of,  137-39;  au- 
thorship of,  137,  note  2 ;  text  of, 
139,  note  1 ;  bibliography  of,  141, 
notes  1  and  2;  defects  of,  139  and 
note  2;  defects  of,  removed,  141, 
note  2. 

Ordinance  of  1787,  formation  of 
township  and  counties  contem- 
plated by,  141 ;  remarkable  pro- 
visions of,  141-2  and  note  1 ;  au- 
thorship of,  142;  the  first  terri- 
torial constitution,  analysis  of  its 
provisions,  408-10;  bibliography 
of,  142,  note  3,  411,  note;  text  of, 
where  found,  410,  note  2. 

Ordinaries,  licensed  by  selectmen, 
80 ;  keepers  of,  97  ;  in  New  York, 
how  regulated,  363  and  note  9; 
Pennsylvania,  379;  Virginia,  395. 
See  Taverns. 

Oregon,  school  districts  in,  236 ; 
school  franchise  in,  237,  note  5 ; 
county  board  of,  439,  note  3 ;  her 
board  of  equalization,  448 ;  has 
county  assessor,  454. 

Outlands,  of  New  England  towns, 
53,  55. 

Overseers,  town,  of  the  Duke's  laws, 
106,  108,  359. 

of  almshouses,  97. 

of  chimneys,  83,  98;   in  the 

manor  of  Rensselaerswyck,   112, 
note  2. 

of  fences,  91,  note  6. 

of  landing  places,  81. 

of  wood   corders,  83,  97  and 

notes  7  and  8. 

Overseer  of  highways,  evolution  of 
the  office  of,  39  and  note  5,  202-6  : 
origin  of,  in  the  constable,  202 
and  note  4;  the  brycgbot,  202; 
the  trinoda  necessitas,  202-3  and 
note  1 ;  constable's  highway  duties 
under  statute  of  Winchester,  204 ; 
the  orderer  of  1555,  205 ;  develop- 
ment of  the  overseer's  office,  205-6; 
the  warden,  206 ;  survival  of  per- 
sonal services,  206 ;  various  names 
of,  206  and  note  3 ;  in  the  Ameri- 


516 


Index. 


can  colonies,  207-10:  Rhode  Is- 
land, 207;  Connecticut,  207-8; 
Massachusetts,  99,  208 ;  Plymouth 
and  New  York,  209,  363;  Penn- 
sylvania, 377-8;  the  south,  130, 
210  and  note  3;  the  west,  210-14: 
dutiesof, inNebraska,211-12;  dual 
administration  of  district  overseers 
and  town  commissioners,  213-14. 
Overseer  of  the  poor,  evolution  of 
the  office,  191-4:  office  of,  not 
known  to  the  common  law,  191, 
note  2;  the  principle  of  the  first 
English  poor  law  established  by 
Gregory,  191-2  and  note  1 ;  sup- 
port of  poor  in  middle  ages,  192-3 ; 
origin  of  overseer,  40,  45,  193-4; 
irresponsible,  43 ;  assesses  church 
rates,  184 ;  duties  of,  transferred 
to  the  guardians,  46;  rise  of,  in 
the  American  colonies,  194-7 : 
Massachusetts,  82,  95,  note  3, 
194-5;  Plymouth,  195;  New 
York,  109,  note  4,  112;  Virginia, 
120,  196;  South  Carolina,  128; 
Delaware,  283;  Pennsylvania,  196, 
385  ;  Northwest  territory,  423-4 ; 
the  western  overseer,  198-202, 447 : 
in  Nebraska,  198 ;  county-option 
law,  199 ;  dual  system  of  poor 
relief:  in  Illinois,  Wisconsin, 
Ohio,  Indiana,  and  Kansas,  199; 
functions  of  overseer,  200-2;  law 
of  settlement,  200-1 ;  duties  of 
near  kindred,  201. 

Packers  of  flesh  and  fish,  97 ;  in 
Connecticut,  228,  note  1 ;  in  Penn- 
sylvania, 378. 

Pagus,  identical  with  gau  and  hun- 
dred, 15,  256  and  note  4 ;  the  term, 
how  used  in  Frankish  laws,  260, 
262-3 ;  of  the  old  Saxons,  297. 

Paige,  Lucius  R.,  his  History  of  Cam- 
bridge, 51,  note. 

Palatinate,  provided  for  by  Locke's 
charter,  114. 

Pamphili,  9,  note  2. 

Parish,  the  ancient,  31-42:  evolu- 
tion of  the  district,  32 ;  origin 
of,  in  the  township  or  mark,  33 ; 
growth  of  its  constitution,  34-42 : 
mass-priest,  the  first  officer  of,  34; 
institution  of  churchwardens  for, 
35 ;  origin  of  its  open  vestry-meet- 


ing, 35;  area  of,  often  identical 
with  the  manor  and  township, 
35-6;  double  character  of,  36; 
differentiation  of  its  offices,  36; 
the  minister  and  constable,  37 ; 
churchwardens,  37-8;  clerk,  bea- 
dle, sexton,  and  other  officers,  39 ; 
overseers  of  poor,  40 ;  its  open 
vestry,  40-2;  select  vestry,  42; 
perambulation  of,  215-18. 

the  modern  civil  parish,  43 ; 

separation  of  the  civil  from  the 
spiritual     body,     43-4;     varying 
areas  of,   44-5 ;    its  officers,   45 ; 
common  and  select  vestries,  46; 
as  a  school  district,  238. 

the  modern  ecclesiastical  par- 
ish, 47-9. 

land-tax,  burial  acts,  and  high- 
way parishes,  46. 

the  term,  how  used  in   New 

England,  52  and  note  3,  117. 

of  the  Duke's  laws,  106, 108-9; 

dual  character  of,  117. 
of  Virginia :  genesis  of  the  or- 

fanization,  117-19;  the  early  hun- 
reds  and  plantations  were  de  facto 
parishes,  118-19;  counties  divided 
into,  119  and  note  2 ;  the  vestry  of, 
originally  elective,  119,  120  and 
note  1;  duties  of  the  vestry,  120; 
duties  of  the  minister,  121 ;  min- 
ister "hired"  by  the  vestry,  121 
and  note  4 ;  character  of  the  ves- 
try, 122;  officers  of,  122-3;  as  a 
unit  of  self-government  and  rep- 
resentation, 123-4,  396  ;  burgesses 
chosen  by,  124  and  note  1. 

of  Maryland,  124-7  ;  the  select 


vestry,  125-6  ;  officers  of,  126. 

in  South  Carolina,  127-9 ;  im- 
portance of,  as  the  political  unit, 
128,  147. 

in  North  Carolina,  under  the 

law  of  1701,  130 ;  its  select  vestry, 
131 ;  hiring  of  minister,  132  and 
notes  6  and  7 ;  law  of  1715,  133 ; 
weakness  of  the  colonial  church, 
133  and  notes  3  and  4. 

Parochia,  used  for  bishoprick,  33. 

Pastoral  stage,  among  Italians  and 
Hellenes,  8-9 ;  transition  from, 
among  the  Germans,  12,  292. 

Patriarch,  authority  of,  3,  4  and 
note  1. 


Index. 


517 


Patrollors,  in  Virginia,  404. 

Patronymics,  in  names  of  English 
villages,  18-19. 

Patroons,  colonies  of,  in  New  Nether- 
land,  102-4. 

Peacock,  Edward,  his  Notes  from,  the 
Court  Roll*  of  Scatter,  25,  note  2 ; 
his  Notes  on  Churchwardens'  Ac- 
counts, 38,  note  4. 

Pearson,  C.  H.,  quoted  on  the  present 
English  tithing,  24;  his  Historical 
Maps,  25,  note  2. 

Pennsylvania,  manors  provided  for 
in,  113  and  note  3  ;-in  what  states, 
her  type  of  township  government 
adopted,  157  ;  township  officers  in, 
167,  note  1 ;  headship  of  the  town 
of,  vested  in  a  board  of  supervisors, 
169  and  note  2 ;  composition  of  her 
town  board,  172 ;  assessment  of 
taxes  in,  187-8 ;  overseers  of  poor 
in,  196,  385 ;  overseers  of  high- 
ways in,  210,  note  5 ;  school  system 
of,  235 ;  her  county  organization, 
colonial,  368-87 ;  triple  county 
authority,  448-9 ;  survival  of  quar- 
ter sessions  in,  449-50,  457-8. 

Perambulation :  the  mark  proces- 
sion, 214-15 ;  of  the  parish,  44-5, 
215-18 ;  in  New  England,  219-21 ; 
in  Virginia,  222-24,  466. 

Perambulators,  in  New  England,  83, 
219^21. 

Perquimans  precinct,  records  of,  130, 
note  5. 

Phratria,  a  union  of  gen6,  5,  242—3 ; 
relation  of,  to  the  hundred,  241- 
52,  255 ;  character  of,  according  to 
Dikaearchos,  242  and  note  3 ;  con-, 
stitution  of,  243-4;  where  found, 
241,  note  2. 

Phratriarchos,  243-4. 

Phule,  the  Ionic,  5,  9;  decay  of, 
243;  prototype  of  the  shire,  char- 
acter and  organization,  289-90. 

Phulo-basileus,  290 ;  the  primitive 
Teutonic  king,analogous  to,  295,305. 

Pillory,  in  Northwest  territory,  417. 

Pinder,  98  and  note  11. 

Pireisa  or  mark-procession,  215  and 
note  2. 

Plantation,  use  of  the  term  in  Vir- 
ginia, 118,  273-4  and  note  1. 

Plato,  on  the  family  as  the  social 
unit,  4. 


Pleas  of  the  crown,  recorded  by 
sheriff,  311 ;  removed  from  local 
courts,  312-13. 

Plymouth,  the  jurisdiction,  super- 
vision of  towns  in,  by  the  general 
court,  59 ;  enforces  registration  of 
deeds,  57  ;  folkinoot  of,  61 ;  origin 
of  selectmen  in,  77 ;  duties  of 
selectmen  in,  82 ;  duties  of  town 
clerk  in,  89-90;  Indian  tithings 
of,  101 ;  assessors,  187  ;  overseers 
of  poor,  195;  care  of  roads  in, 
209 ;  bounds  of  towns  in,  determ- 
ined, 219 ;  origin  of  counties  in,  321. 

Polis,  highest  conception  of  state 
among  the  Greeks,  9,  307. 

Poor-law,  administration  of.  See 
Overseer  of  the  Poor. 

Poor-master,  in  New  York,  196, 
note  3. 

Posse  comitatus,  316. 

Pound-keeper,  83,  218. 

Pound-master,  in  New  York,  112. 

Praecipe,  writs  of,  311,  313. 

Precinct,  used  for  parish  in  New 
England,  52,  note  3. 

for  processioning,  in  Virginia, 

120  223 

road,  in  Virginia,  210,  394. 

tax,  in  Virginia,  188,  398. 

the  electoral,  a  phase  in  the 

growth  of  the  western  township, 
140. 

of  the  common  peace  makers, 

in  Pennsylvania,  373. 

Precincts,  the  North  Carolina:  es- 
tablished under  Locke's  charter, 
129 ;  called  counties  in  1738,  129 ; 
court  of,  held  by  justices,  129-30 ; 
officers  of,  130 ;  original  records 
of,  130,  note  5. 

Pre-emption,  town  right  of,  53-4. 

Preost,  used  for  any  priest,  34,  note  4. 

Presbyter,  as  assessor,  177,  note  1. 

Preservers  of  deer,  97. 

Priest,  duties  of,  in  Teutonic  assem- 
blies, 293. 

Primary,  the  genesis  of,  351-5. 

Princeps,  of  the  gens,  7. 

of  the  volkerschaft  and  hun- 
dred, 257,  294-6 ;  among  old  Sax- 
ons,  296-7 ;  represented  by  eal- 
dorman,  302 ;  by  the  English  lord 
lieutenant,  316 ;  and  the  Ameri- 
can county  lieutenant,  347,  400-2. 


518 


Index. 


Principal,  of  the  Maryland  parish, 
125. 

Prison  bounds,  instituted  in  Michi- 
gan, 422,  note  1. 

Probate  districts,  in  Connecticut,  460, 
note  3. 

Probate  judge,  in  Michigan,  437  ;  in 
various  western  states,  456-7  and 
note  3.  See  Probate  Jurisdiction. 

Probate  jurisdiction,  exercised  by 
head-officer,  in  Rhode  Island,  89 ; 
by  Massachusetts  county  court,  330, 
331;  in  New  York,  362;  North- 
west territory,  415,  416 ;  Michi- 
gan, 437 ;  the  western  states,  456-7. 

Processioners,  in  Virginia,  120, 222-4; 
North  Carolina,  470. 

Proprietors,  as  opposed  to  non-com- 
moners, in  New  England,  54, 62-3 ; 
hold  meetings,  63,  note  1 ;  modern 
powers  of,  229  and  note  1. 

Provost  marshal,  of  North  Carolina 
precinct,  130 ;  name  changed  to 
sheriff,  130. 

Proxies,  sealed,  use  of,  in  Massachu- 
setts, 351-2. 

Quarter  courts,  of  Massachusetts, 
322-7;  of  Virginia,  390. 

Quarter  courts,  the  great,  of  Massa- 
chusetts, 322. 

Quarter  sessions,  rise  of,  315,  317 ; 
in  Massachusetts,  330;  New  Jer- 
sey, 366;  Pennsylvania,  376, 
377-9 ;  prototype  of  colonial 
county  courts,  406-7  ;  but  not  of 
county  boards,  471-3 ;  in  North- 
west territory,  414,  415-16 ;  gen- 
eral functions  of,  423-5 ;  in  Michi- 
gan, under  British  rule,  434  and 
note  2;  during  the  territorial 
period,  437  ;  survival  of,  in  Penn- 
sylvania, 449-50,  457-8 ;  relation 
of,  to  the  county  board,  471-3. 
See  County  Courts  and  General 
Sessions. 

Quebec  Act,  431. 

Questmen,  41. 

Quit-rents,  in  Virginia,  397. 

Eace  isolation,  an  obstacle  to  social 

development,  7. 
Rachineburgii,  259  and  note  2,  263 ; 

mentioned,  267. 
Eamnes,  5,  290. 


Hangers,  troops  of  horse,  in  Virginia, 
403. 

county,  in  North  Carolina,  470. 

Rapes,  301. 

Rates,  church,  origin  of,  35 ;  how 
assessed,  184 ;  in  New  York,  under 
the  Duke's  laws,  108 ;  in  Mary- 
land, 125-6 ;  South  Carolina,  127  ; 
North  Carolina,  131. 

country  or  public,  unit  of,  in 

New  England,  60 ;  in  Massachu- 
setts, 341-2;   Pennsylvania,  379- 
81 ;  Virginia,  397-8. 

county,  in  England,  185,  316 ; 

unit  of,  in  New  England,  60;  in 
Massachusetts,  339-41 ;  New  York, 
362;    Pennsylvania,   379,    381-3; 
Virginia,  399  ;  Maryland,  277. 

highway,  184;  genesis  of,  202-6. 

parish,  in  Virginia,  120,  398-9. 

See  Church  Rate. 

poor,  origin  of,  40,  192,  193; 

becomes  burdensome,  43,  185. 

school,  origin  of,  in  New  Eng- 
land, 67  ;  in  England,  67  and  notes 
2  and  3. 

town,   in  New  England,  79 ; 

example  of,  65  and  note  3. 

Reaume,  Judge  Charles,  of  Green 

Bay,  435,  note  2. 
Reeve,  township,  21 ;  and  four  best 

men,  in  hundred  and  shire  courts, 

22-3,  27,  41,  311 ;  analogue  of,  in 

Virginia,  124. 

the  hundred,  as  assessor,  177, 

note  1. 

hog.    See  Hog  reeve. 

deer,  97,  99. 

Regiment,  based  on  the  shire,  in 
Massachusetts,  347-9 ;  in  New 
York,  364. 

Reipus,  260  and  note  4. 

Rebukers  of  boys,  97,  99. 

Reconstruction  township,  in  the 
south,  230-4. 

Recorder,  town,  83. 

Records,  of  Steeple  Ashton  parish, 
39,  note  5,  206 ;  extracts  from  the 
selectmen's  records,  84—8 ;  extracts 
from  the  town,  64-73 ;  historical 
value  of,  73 ;  records  of  St.  Clem- 
ent's manor,  116,  note  3;  of  the 
court  of  Perquimans  precinct,  130, 
note  5  ;  of  St.  Paul's  parish,  Cho- 
wan  precinct,  131 ;  the  Colonial, 


Index. 


519 


of  North  Carolina,  131;  of  the 
Friends'  monthly  meeting,  quoted, 
131,  note  1 ;  of  a  Massachusetts 
quarter  court,  323-7;  of  a  court 
of  general  sessions,  335-S ;  of  Up- 
land Court,  371-3. 
Register  or  recorder  of  deeds,  in 
Northwest  territory,  415;  in  the 
western  states,  452  and  note  10, 453 
and  note  1 ;  in  Massachusetts,  463. 

of  births,   deaths,    and    mar- 

riages,   the   minister   as,   37,   48, 
109,   121   and   note   2;   the   town 
clerk  as,  90;  clerk  of  the  writs 
as,  90 ;  vestry  clerk  as,  126 ;  the 
county  judge  as,  457 ;  in  ancient 
Athens,  243-4. 

of  probate  and  insolvency,  in 

Massachusetts,  463. 

Relationship,  agnatic,  3,  note  2;  by 
blood,  the  bond  of  ancient  society,  6. 

Religion,  common,  a  constituent 
principle  of  ancient  society,  6 ; 
survived  among  early  Germans 
and  English,  14,  :J<).  " 

Religious  isolation,  an  obstacle  to 
social  development,  7. 

Rensselaerswyck,  manor  of,  105, 
note  1. 

Representation :  germ  of,  in  the 
reeve  and  four  of  the  township, 
22-3,  27,  267,  303 ;  in  New  Eng- 
land, the  unit  of,  60,  61  and  note 
4;  the  shire  proposed  as  the  unit 
of,  355-6;  of  the  parish,  in  the 
Virginia  county  court,  124,  396 ; 
and  sometimes,  in  the  assembly, 
394;  in  South  Carolina,  the  parish 
the  area  of,  128 ;  the  hundred  the. 
unit  of,  in  Maryland,  275-7 ;  the 
county  the  unit  of,  in  Pennsyl- 
vania, 384;  and  Virginia,  393. 

Rhode  Island,  independence  of  the 
towns  in,  59;  the  unit  of  repre- 
sentation in,  61  and  note  4 ;  fran- 
chise in  towns  of,  62,  note  3 ;  town 
councils  in,  76-7  ;  head-officer  of 
the  town  in,  88-9 ;  road  surveyors 
of,  207 ;  modern  town  officers  of, 
227 ;  origin  of  counties  in,  320 ; 
the  present  county  of,  459. 

Ridings,  the  old  English,  301  ;  on 
Long  Island,  practically  counties, 
358-BO;  not  established  on  the 
Delaware,  370. 


Ringers  and  yokers  of  swine,  83,  98, 
99. 

Rivalry  of  local  organisms,  sectional, 
143-8 ;  economic,  148-66. 

Road-master,  in  Indiana,  213,  note  3. 

Rome,  overcame  tendency  to  city- 
isolation,  7,  291 ;  formed  of  vil- 
lage communities,  8,  note  6. 

Ross,  Den  man,  on  mode  of  settle- 
ment of  early  Germans,  14,  note ; 
his  theory  of  early  German  land- 
holding,  17,  note  3. 

Rounders,  279. 

Rumney  Marsh,  dependent  on  Bos- 
ton, 55,  note  4. 

Sabbath  laws,  in  New  England, 
336-8  and  notes;  in  Virginia,  401, 
in  the  Northwest  territory,  422-3. 

Sacebaro,  260  and  note  1,  262,  270. 

Sacra,  3,  note  3 ;  strangers  admitted 
to,  by  adoption,  7. 

Saladin  Tithe,  first  tax  on  mova- 
bles, 179. 

Salem,  quarter  court  of,  323-7. 

Sargent,  Winthrop,  chosen  secretary 
of  the  Northwest  territory,  411 ; 
erects  Wayne  County,  Michigan, 
435. 

Scabini,  263  and  note  2. 

Scavengers,  town,  98. 

Schomann,  G.  F.,  on  the  religious 
phratries,  244,  note  3  ;  on  registra- 
tion at  Athens,  244;  on  localiza- 
tion of  the  Ionic  phulai,  289, 
note  2. 

School  district,  as  a  differentiated 
form  of  the  township,  234-8 : 
flexibility  of  the  school  organ- 
ism, 234;  the  town  system,  in 
New  England,  235 ;  the  township- 
sub-district  plan,  in  various  states, 
235;  the  Dakota  system,  236;  the 
New  York  system,  236 ;  the  inde- 
pendent school  district,  in  various 
states,  236;  free  schools  in  the 
South,  a  preparation  for  self-gov- 
ernment, 23b-7 ;  school  franchise 
extended  to'  women,  in  many 
states,  237  and  note  5. 

School  ordinance,  adopted  by  Dor- 
chester town-meeting,  68-72. 

School  teachers,  81,  98,  128. 

School  visitors,  dinners  provided  for, 
82 ;  committee  of,  235. 


520 


Index. 


School  wardens,  prototype  of  the  dis- 
trict board,  68,  97. 

Schools,  public,  established  in  New 
England,  66 ;  early  introduction 
of  school-rate  in  New  England,  67 
and  note  3;  established  in  Eng- 
land, 1870,  67,  notes  2  and  3,  238, 
note;  regulated  by  the  selectmen, 
81 ;  duties  of  the  Massachusetts 
county  court  regarding,  334. 

Schultheiss,  262  and  note  4. 

Scir,  the  scrift,  32 ;  the  mynster,  32, 
300,  note  1 ;  the  kirk,  300,  note  1. 
See  County. 

Scirgemot,  dual  character  of,  302-3. 
See  County  Courts. 

Scirgerefa,  301-2.     See  Sheriff. 

Scirft-scir,  not  the  basis  of  the  parish, 
32.  See  Scir. 

Scroggs,  Sir  William,  his  Practice  of 
Courts-Leet  and  Courts-Baron,  25, 
note  2. 

Scutage,  179. 

Sealers  of  leather,  97. 

of  weights  and  measures,  83, 

97. 

of  wood,  97. 

Seebohm,  Frederic,  theory  of  early 
German  tenure,  17,  note  3 ;  on  the 
early  establishment  of  manorial 
tenures  in  England,  19 ;  on  com- 
mon fields,  20,  note  1. 

Seignory,  of  Locke's  Charter,  114. 

Selectmen,  the  New  England :  town- 
meeting  called  under  their  war- 
rant, 63  and  note  4 ;  evolution  of 
•  the  office  of,  74—8 :  various  names 
of,  74  and  note  3 ;  number  of,  in 
various  towns,  75  and  note  1 ;  pro- 
totype of,  75 ;  a  responsible  repre- 
sentative board,  75 ;  early  origin 
of,  in  Massachusetts,  75;  origin 
of,  in  New  Haven,  Connecticut, 
and  Rhode  Island,  76-7  ;  in  New- 
ark, 76;  Plymouth,  77;  as  local 
agents  of  the  crown,  78 ;  oath  of, 
77;  functions,  78-82:  clerk  and 
records,  78  and  note  3 ;  financial 
administration,  79 ;  exercise  cor- 
porate powers  of  the  town,  79 ; 
admit  inhabitants,  79-80;  control 
lands,  allotments,  and  common 
fields,  80 ;  vast  number  of  duties 
of,  in  Boston,  81 ;  other  functions, 
80, 82 ;  officers  appointed  by,  83-4 ; 


extracts  from  the  records  of,  84-8  ; 
fined  by  the  county  court,  333 ;  the 
office  in  modern  New  England, 
227  ;  represented  by  the  overseers, 
under  the  Duke's  laws,  106,  108 ; 
represented  by  the  town  board,  in 
the  western  states,  167-9. 

Senecas,  phratries  of,  250,  251. 

Servants,  in  Pennsylvania,  378-9. 

Servitude  for  debt,  at  Salem,  327  ; 
in  the  Northwest,  421,  422. 

Settlement,  law  of,  in  Massachusetts, 
195 ;  in  Wisconsin,  200-1. 

Sexton,  39 ;  women  eligible  to  the 
office  of,  49 ;  duties  of,  defined  by 
the  selectmen,  82. 

Shaw,  Albert,  quoted  on  the  rise  of 
the  township-county  system  in  Illi- 
nois, 145,  146. 

Sheep  inspector,  how  appointed  in 
Nebraska,  445. 

Sheriff,  origin  and  character  of  the 
office,  301-2 ;  his  tourn,  28-9,  41, 
270,  271 ;  his  original  fiscal  duties, 
303 ;  analogue  of,  under  Lombard, 
Prankish,  and  Gothic  laws,  308-9 ; 
powers  of,  in  Norman  period,  310 ; 
holds  ordina  ry  session  of  the  county 
court,  312 ;  records  pleas  of  the 
crown,  311 ;  loses  judicial  powers, 
314,  315-16;  the  office  in  Connec- 
ticut, 460;  Massachusetts,  338-9, 
463;  New  York,  360,  364;  New 
Jersey,  366 ;  Pennsylvania,  370, 
382,  384,  386-7 ;  Virginia,  392-3, 
394,  397,  399,  402,  467-8 ;  Mary- 
land, 405 ;  North  Carolina,  470 ; 
Northwest  territory,  412  and  note 
1,  415 ;  Michigan,  during  British 
rule,  434;  in  territorial  period, 
437 ;  western  states,  455  and 
note  2. 

Shire.     See  County. 

Shoemaker,  Michael,  on  the  origin 
of  Michigan  townships  and  coun- 
ties, 155-6  and  note  1. 

Sidesmen,  41 ;  in  Virginia,  123. 

Six  nations,  phratric  organization  of, 
250-2. 

Sizers  of  meadows,  98. 

Slaves,  sharers  in  the  family  sacra, 
3,  note  3  ;  legislation  regarding,  in 
Virginia,  404. 

Small  causes,  court  of,  in  Massachu- 
setts, 61,  323,  329. 


Index. 


521 


Smith,  Tmilmiii,  on  self-government 
ot  the  manor,  27;  on  the  secular 
character  of  the  parish,  36,  note  3 ; 
on  the  origin  of  the  overseer  of  the 

Cr,  191,  note  2 ;  on  the  early  poor 
s,  192-3 ;  regards  the  consta- 
ble as  the  original  highway  over- 
seer, 202,  note  4 ;  on  the  control  of 
highways  by  the  parish,  203 ;  on 
the  perambulation,  216. 

Sohm,  R.,  his  theory  of  the  evolu- 
tion of  Teutonic  social  groups,  11, 
note  2,  256,  259.  note  4,  304-9 ;  on 
the  stum m  and  stamm -kingdom, 
12,  305,  note  1 ;  on  the  dux  and 
ealdorman,  309  and  note  1. 

Solon,  effort  of,  to  supersede  the  re- 
ligious bodies,  9. 

Sondereigen,  as  opposed  to  gewere 
or  possession,  16-17. 

South  Carolina,  sectional  rivalry  of 
local  organisms  in,  147-8 ;  rise  of 
the  township  in,  148,  234,  note  2 ; 
of  the  county,  148 ;  overseers  of 
the  poor  in,  197 ;  her  school  sys- 
tem, 237  ;  present  county  govern- 
ment in,  469. 

Sparta,  tribes  of,  9,  note  2;  coales- 
cence of  village  communities  in, 
8,  note  6 ;  the  oba  of,  241. 

Springetsbury  manor,  113,  note  3. 

Sproat,  Col.  Ebenezer,  the  first  ap- 
pointed sheriff  in  the  west,  412, 
note  1,  414. 

St:mim,  a  union  of  volkerschaften,  12, 
note  1,  292,  304;  becomes  staium- 
kingdom,  258,  305-7. 

St.  Clair,  Qen.  Arthur,  chosen  gov- 
ernor of  Northwest  territory,  411 ; 
claims  right  to  create  counties  by 
subdivision,  409,  note  1 ;  inaugural 
address  of,  411  and  note  2. 

St.  Clements  manor,  Maryland,  rec- 
ords of,  116,  note  3. 

Steeple  Ashton,  records  of,  39,  note 
5,  206  and  note  3. 

Steward,  the  manorial,  represents  the 
tungerefa,  27. 

Stocks,  punishment  by,  in  the  North- 
west, 417. 

Strays,  record  of,  by  New  England 
town  clerk,  90 ;  by  western  county 
clerk,  451 ;  by  the  ranger,  in  North 
Carolina,  470. 

Stubbs,  William,  on  the  origin  of  the 


township  in  the  mark,  19;  on  sig- 
nificance of  the  patronymic  ing, 
18;  on  origin  of  the  hundred, 
253-4 ;  on  the  twelve  senior  thegns, 
267 ;  on  the  old  Saxon  organiza- 
tion, 297-8 ;  on  the  functions  of 
the  county  court,  313-14. 

Superintendent,  of  the  poor,  in  New 
York,  456,  note  1. 

of  roads,  in  Indiana,  213,  note  3. 

of  schools,  county,  in  the  wes- 
tern states, 455 ;  inVirginia, 467-8 ; 
in  North  Carolina,  470. 

of  schools,  the  town,  in  Vermont, 

235. 

Supervisor,  of  highways,  39;  in 
Pennsylvania,  385.  See  Overseer 
of  Highways. 

of  orphans,  362. 

the  town,  first  chosen  in  New 

York,  111,  362 ;  the  western,  du- 
ties of,  169-71. 

Supervisors,  the  county  board  of: 
genesis  of,  in  New  York,  111, 
362-3 ;  elements  of,  in  Massachu- 
setts colony,  342,  357  ;  genesis  of, 
in  Michigan  territory,  154,  426- 
38 ;  in  the  western  states,  438-50 ; 
revival  of  the  ancient  representa- 
tion of  the  town  in,  135-6,  158, 
471-3 ;  in  Virginia,  230-2,  464-7 ; 
Mississippi,  469. 

the  town  board  of,  in  various 

states,  169  and  note  2,  172. 

Surveyor,  the  county,  316 ;  in 
Virginia,  395 ;  in  the  western 
states,  455 ;  represented  by  the 
processioner,  in  North  Carolina, 
470. 

Surveyor  general  of  the  United 
States,  supersedes  the  geogra- 
pher, 137. 

Surveyors,  of  fences,  91,  note  6. 

of  highways,  39,  91 ;  in  New 

York,  110,  112 ;  in  Virginia,  394. 
See  Overseer  of  Highways. 

of  lumber,  97. 

of  tar,  84,  332. 

of  wood,  97. 

Surveys,  origin  of  the  United  States 

system  of,  137-141  and  notes. 
Synodsmen,  41. 

Tacitus,  on  kthe  primitive  Teutonic 
constitution,  10-16,  252-6,  292-6. 


522 


Index. 


Taverns,  how  licensed  in  the  North- 
west territory,  423 ;  Michigan  ter- 
ritory, 437.  See  Ordinaries. 

Taxation,  origin  of,  176-7  and  notes; 
complexity  of  the  English  system 
of,  185 ;  unsatisfactory  methods  of, 
employed  in  the  western  states, 
191. 

Taxation,  county:  of  the  old  Eng- 
lish shire,  303 ;  in  the  age  of 
Edward  I,  313-14;  in  the  New 
England  colonies,  339-44:  the 
county  rate,  339-41 ;  the  country 
rate,  341-2 ;  equalization  of  assess- 
ments, 342-3 ;  the  system  in  New 
York,  362-3 ;  New  Jersey,  366-7 ; 
Pennsylvania,  371-2,  379-83;  Vir- 
ginia, 397-9,  465,  467  ;  Northwest 
territory,  424 ;  western  states,  188- 
91,  447-50 ;  New  England  states : 
Connecticut,  459-60 ;  New  Hamp- 
shire, 461 ;  Vermont,  459,  note  3 ; 
Massachusetts,  463 ;  Maryland, 
405 ;  South  Carolina,  469  ;  North 
Carolina,  469-70;  Delaware,  284-6. 
See  Taxes,  Rates,  Assessor,  and 
Assessment. 

of  the  hundred,  in  early  Eng- 
land, 268;  Maryland,  277;  Dela- 
ware, 284-6. 

of  the  parish,  in  England,  35, 

39-40, 43,  45,  48 ;  in  Virginia,  120, 
398;     Maryland,    125-6;     South 
Carolina,  127-8 ;  North  Carolina, 
131. 

of  the  school  district,  237. 

of  the  township,  in  New  Eng- 
land, 64-5   and  note  3;   in  New 
York,  106,  111 ;  Northwest  terri- 
tory, 144;  western  states,  165. 

of  the  wapentake,  265-6. 

Taxes,  services  and  gifts,  the  ancient 
substitute  for,  176-7 ;  payable  in 
kind:  in  New  England,  343-4; 
in  Pennsylvania,  382 ;  payable  in 
tobacco,  125,  397-9 ;  payable  in 
wampum  and  beaver,  344. 

levied  on  the  poll,  in  Massa- 
chusetts,   341 ;    in    Pennsylvania, 
371,   380,   381-2;   Virginia,  397; 
Maryland,    277.      See    Taxation, 
Rates,  Assessor,  and  Assessment. 

Taylor,    Isaac,    his    theory    of   the 

wapentake,  265-6. 
Teachers  of  town  drummers,  83. 


Tennessee,  free  schools  in,  237 ;  the 
county  in,  470. 

Territorial  sovereignty,  late  origin 
of  the  conception  of,  292—3. 

Teutonic  social  organisms,  evolution 
of,  11 ;  Sohm's  theory  of,  11,  note 
2,  12,  15,  255-6. 

Texas,  free  schools  in,  237 ;  the 
county  in,  469. 

Thegns,  the  twelve  senior,  267. 

Themistes,  4,  note  2. 

Theodore  of  Tarsus,  33. 

Thirdborow,  37,  note  3. 

Thunginus,  258,  261. 

Tithables,  in  Virginia,  397 ;  in  Mary- 
land, 277  and  note  3 ;  in  Pennsyl- 
vania, 371. 

Tithes,  34;  part  of,  devoted  to  the 
poor,  192-3. 

Tithingman,  the  ancient,  always  elec- 
tive, 21-2;  differentiation  of  the 
office  of,  40 ;  in  New  England,  83, 
101 ;  a  Sunday  constable,  95-6 ; 
number  of,  99. 

Tithings,  origin  of,  23 ;  not  local  on 
the  Continent,  24 ;  historical  rela- 
tion of,  to  the  township,  24-5 ;  the 
term  used  interchangeably  with 
parish  and  township,  36 ;  the  in- 
stitution in  New  England :  cre- 
ated by  Gorges  in  Maine,  100, 
note  1 ;  local,  not  permanently  es- 
tablished, 100. 

personal  Indian,  in  Plymouth, 

101. 

Tides,  5,  290. 

Tobacco  inspectors,  in  Pennsylvania, 
371. 

viewers,  of  the  Maryland  hun- 
dred, 281 ;  in  Virginia,  395. 

as  a  legal  tender,  121,  397-9. 

Tourn,  the  sheriff's,  the  court  leet 
an  offshoot  from,  28-9 ;  called 
great  court  leet  of  the  hundred, 
270.  See  Sheriff. 

Town,  derivation  of  the  word,  18 ; 
the  term,  how  used  in  New  Eng- 
land, 52.  See  Township. 

Town  bellman,  83,  96. 

board,  the  western,  168,  172. 

See  Supervisors  and  Trustees. 

brewers,  97. 

bull,  95  and  note  2. 

cannoneers,  98. 

crier,  96. 


f/23 


Town  doctors,  98. 

drummers,  83,  96. 

fishers,  98. 

grubbers,  98  and  note  17. 

Town-meeting,  the  Old  English  ;  its 
officers  and  functions,  21-2. 

the  New  England,  62-74,  226 

and  note  2 :  qualified  members  of, 
62 ;  non-commoners  not  excluded, 
63 ;  how  warned,  63 ;  how  organ- 
ized, 64;   the  moderator,  64  and 
note  3 ;  powers  and  functions,  ex- 
tracts  from    the  records,   64-74; 
importance    of,    in    the    national 
history,  74 ;  relation  to  selectmen, 
63,  75,  78,  79. 

of  the  Dutch  villages,  104. 

of  the  Duke's  laws,  106. 

of  the  New  York  Province  laws, 

111. 

in  the  Northwest  territory,  144. 

in  the  western  states,  162-7. 

Town  records,  extracts  from,  64-73; 
historical  value  of,  73. 

— —  scavengers,  98. 

Townsmen,  74.    See  Selectmen. 

Township,  evolution  of  the  organism, 
3-49 :  the  clan  or  gens,  the  proto- 
type of,  3-10;  the  mark,  a  stage 
in,  10-18. 

the  Old  English  tunscipe :  de- 
rivation of  tun,  town,  18 ;  its  rela- 
tion to  the  mark,  theories,  18-20  ; 
its  organization,  20-22:  the  con- 
stitutional unit,  20 ;  free  and  de- 
pendent, 20 ;  the  tungemot,  21 ; 
the  gerefa,  bydel,  and  tithingman, 
21 ;  the  reeve  and  four  in  the  hun- 
dred and  shire  courts,  the  germ  of 
the  English  representative  system, 
22-3. 

affiliated    and    differentiated 

forms,     in     England :     teothung, 
23-5;  manor,  25-31;  parish,  31- 
49.    See  Manor,  Parish,  and  Tith- 
ing. 

the  New  England  town,  50-99 : 

authorities  on,  50,  note  1 ;  restora- 
tion of  the  mark  in,  50-6 :  town, 
township,  and  parish,  how  used,  52 
and  notes  2  and  3 ;  common  fields 
of,  53;  Vorkaufsrecht  in,  53-4; 
Mutter  and  Filialdorfer,  55 ;  pub- 
licity of  town  life,  55-6 ;  relation 
of,  to  the  general  court,  56-62: 


the  court  was  the  source  of  ito 
authority,  56;  grant  of  its  terri- 
tory, 56 ;  the  court  enforces  regis- 
tration of  deeds  in,  57 ;  super- 
intends ways  in,  57 ;  and  enacts 
general  police  laws  for,  57 ;  first 
general  township  act,  58  ;  the  con- 
stitutional unit,  59-62;  the  town- 
meeting,  62-74:  qualified  mem- 
bers of,  62;  non-proprietors,  not 
excluded,  63 ;  warning,  63 ;  or- 
ganization, 64;  functions,  64-74: 
votes  taxes,  64,  65  and  note  3 ; 
chooses  officers,  66 ;  elects  school 
teachers  and  maintains  free  schools, 
66-8 ;  school  ordinance  of  Dorches- 
ter, 1645,  68-72 ;  importance  of  the 
town-meeting  in  the  national  his- 
tory, 74 ;  the  selectmen,  74-88 : 
evolution  of  their  office,  74-8 ; 
functions  of,  78-82 ;  officers  ap- 
pointed by,  83-4;  extracts  from 
their  records,  84-8 ;  town  officers . 
and  their  duties,  88-99 :  princi- 
pal officers,  88-96 ;  New  England 
functionalism,  55-6,  96-9 ;  subor- 
dination of  the  town  to  the  county 
court,  333-5. 

and  its  differentiated  forms  in 

the  middle  and  southern  colonies : 
the  tithing :  in  Maine,  100,  note  1 ; 
personal,  in  Plymouth,  101.  See 
Tithing.  Dutch  colonies  and  vil- 
lage communities,  102-5 ;  the  town 
of  the  Duke's  laws,  105-9 :  the  gov- 
erning body,  106 ;  the  meeting, 
107 ;  common  fields  of,  107 ;  a 
parish,  108-9 ;  the  town  of  the 
New  York  Province  laws,  110- 
12:  supervisors  first  chosen  in, 
1703,  111;  its  meeting,  111;  its 
officers,  112 ;  rise  of  the  town- 
ship in  Pennsylvania,  385-7  ;  the 
manor,  112-117.  See  Manor.  The 
Virginia  parish,  117-24;  the 
Maryland  parish,  124-7  ;  the  par- 
ish of  South  Carolina,  127-8 ;  of 
North  Carolina,  129-134. 

—  the  western :  evolution  of  the 
township-county  system,  135-156 : 
the  fundamental  ordinance  of  1785, 
137-141;  the  ordinance  of  1787. 
141-2;  sectional  rivalry  of  local 
organisms :  in  Northwest  terri- 
tory, 143-4;  in  Illinois,  144-6; 


524 


Index. 


Missouri,  146-7 ;  South  Carolina, 
147-8 ;  the  economic  rivalry  of 
local  organisms :  reasons  why  the 
county  should  precede  the  town- 
ship, 148-50;  economic  rivalry, 
in  Nebraska,  150-1 ;  the  rudi- 
mentary township  of  California, 
151 ;  flexibility  of  the  Minnesota 
and  Dakota  plan,  152-3;  rise  of 
the  township  in  Michigan,  153-6 ; 
constitutional  limitations  of  the 
western  township :  differentiated 
forms,  156-8 ;  its  subordination 
to  the  state,  159 ;  to  the  county, 
160-2 ;  adoption  of  township  or- 
ganization, 160 ;  how  first  organ- 
ized, 160-1 ;  the  town-meeting, 
162-7 ;  what  town  officers  chosen 
in  various  states,  167  and  note  1 ; 
western  selectmen :  differentiated 
forms,  167-9  ;  the  trustee  or  super- 
visor, 169-71 ;  the  town  board, 
172-3;  the  clerk,  173-4;  treas- 
urer, 174-5  ;  constable,  175 ;  jus- 
tice of  the  peace,  176 ;  assessor, 
176-91 ;  overseer  of  the  poor, 
191-202 ;  overseer  of  highways, 
202-14;  perambulators  and  fence 
viewers,  214-25. 

in  the  New   England   States, 

225-9. 

the  reconstruction,  in  Virginia, 

230-2 ;  West  Virginia,  232;  North 
Carolina,  333-4. 

in   South   Carolina   and    Ala- 
bama, 234,  note  2. 

the  school  district  as  a  differ- 
entiated form  of,  234-8. 

the  congressional,  an  embryonic 

civil  body,  140,  145,  152,  219. 

Township-county  system  :  genesis  of, 
in  New  York,  111,  136,  362-3; 
genesis  of,  in  Pennsylvania,  385—7  ; 
elements  of,  in  Massachusetts,  357  ; 
New  Jersey,  366-7 ;  and  Delaware, 
285 ;  evolution  of,  in  the  western 
states,  135-156,  408-438  ;  in  what 
western  states  established,  135, 
note  1 ;  revival  of  ancient  repre- 
sentation in,  135-6 ;  genesis  of,  in 
Northwest  territory,  143-4 ;  in 
Illinois,  144-6;  Missouri,  146-7; 
South  Carolina,  147-8  ;  Nebraska, 
150-1;  California,  151;  Dakota 
and  Minnesota,  152-3 ;  Michigan, 


153-6 ;  types  of  township-county 
organization,  156-8 ;  attempt  to 
introduce  it  in  the  South,  230-4. 
See  Township  and  County. 

Train  bands,  in  Maryland,  278 ;  in 
Massachusetts,  60,  345-6;  boy, 
349^50. 

Treasurer,  county :  origin,  316-17 
and  note  1 ;  in  Massachusetts,  332, 
463;  New  York,  362;  New  Jer- 
sey, 366 ;  Pennsylvania,  382 ;  Vir- 
ginia, duties  of,  originally  per- 
formed by  the  sheriff,  399 ;  office 
of,  instituted  in  Virginia,  468 ; 
in  the  Northwest  territory,  415 ; 
Michigan  territory,  437,  438  ;  wes- 
tern states,  453-4;  Connecticut, 
460 ;  in  Delaware,  285. 

the  parish,  in  South  Carolina, 

128. 

the  town,    in   New   England, 


79,  83,  91 ;  in  the  western  states, 
174-5. 

Tribal  organization,  Graeco-Roman, 
3-10,  241-2,  244-5,  289-92 ;  Teu- 
tonic, 11,  15,  254,  292-3,  305-9; 
Semitic  and  Turanian,  8,  292,  note 
2 ;  American  Indian,  8,  249-52. 

Tribes,  the  Doric,  9,  note  2.  See 
Phul£  and  Tribus. 

Tribunus,  291. 

Tribus,  the  primitive  Koman,  5 ; 
whether  localized,  10,  note  1,  291 ; 
political  suppression  of,  245-6, 
291 ;  derivation  of  the  word,  291, 
note  1 ;  as  the  prototype  of  the 
shire,  character  and  organization, 
290-2;  the  new  local,  9,  291-2 
and  notes  1  and  2 ;  analogy  of,  to 
the  English  shire,  299. 

Trial  justices,  in  Massachusetts,  464. 

Triers  of  malt,  331. 

Trinoda  necessitas,  176,  177,  note  1, 
202-3,  and  note  1. 

Truant  schools,  in  Massachusetts, 
463. 

Truckmaster,  97. 

Trustee,  the  town,  169-71. 

Trustee,  the  town  board  of,  172. 

Tun,  cognate  with  zun  and  zaun,  18 ; 
use  of  the  term  in  the  early  laws, 
18,  note  2,  52,  note  1.  See  Town- 
ship. 

Tungemot,  21 ;  officers  and  functions 
of,  21-2 ;  the  open  vestry,  an  out- 


Index. 


growth  of,  36 ;  the  school  meeting 
is,  in  miniature,  234.  See  Town- 
meeting. 

Tunscipe,  18-23;  constitutional  sig- 
iiiliriiniv  of,  a-  comparrd  with  the 
New  England  town,  69-60.  See 
Township. 

Turnia,  of  foot  and  horse,  248. 

Tuscaroras,  phratries  of,  260,  251. 

Types,  of  township  organization, 
157-8. 

of  county  organization,  386-7, 

438-40,  443. 

Underwood,    John    €.,    mentioned, 

231. 
Union,  the  poor  law,  44 ;  guardians 

of,  how  chosen,  46. 
Untergau  or  centena,  257-63.     See 

Centena. 

Upper  Canada,  formed,  433  and  note  3. 
Urmstone,  Mr.,  quoted,  131,  note  2, 

132,  note  6,  134  and  note  3. 
Ushers,   chosen   by   the  parish,   in 

South  Carolina,  128. 
Utah,  school  districts  in,  236 ;  school 

franchise  in,  237,  note  5. 
Uthmanne,  55. 

Vermont,    school    system    of,    235 ; 

school  franchise  in,  237,  note  5 ; 

the  county  in,  459  and  note  3. 
Vestry,  the  open,  35;  a  form  of  the 

tungemot,  35 ;  how  summoned,  40 ; 

use  of  committees  by,  41. 

select,    the   English,   an    out- 
growth of  the  committee  of  assist- 
ance, 42,  50 ;  customary  and  statu- 
tory, 46;   whether  the  prototype 
of  the  selectmen,  75 ;  mentioned. 
117. 

the  common,  all  rate  payers, 

46. 

of  New  York  province  laws, 

109,  note  4 ;  the  select,  of  Virginia, 
119-122, 123 ;  the  select,  of  Mary- 
land. 1 25 ;  and  of  North  Carolina, 
131/133,  134  and  note  3  ;  elective, 
in  South  Carolina,  127. 

Vicaria,  261  and  note  3. 
Vicecomes,  310. 

Vicus,  the  word,  how  used  by  Taci- 
tus, 16,  note  2. 
Viewers,  of  bread,  378. 
of  fences.    See  Fence  Viewers. 


Viewers,  of  lands,  98. 

of  pipe  staves,  378. 

of  tar,  83. 

of  ways,  378. 

Vill,  used  for  parish  and  township. 
36. 

Village  communities,  cities  formed 
by  coalescence  of,  8,  note  6 ;  the 
Germanic,  16-18;  revival  of,  in 
the  New  England  colonies,  52-5 ; 
traces  of,  in  modern  New  Eng- 
land, 228-9  and  note;  the  Dutch, 
in  New  Netherland,  102-5 ;  in 
French  settlements  of  the  North- 
west, 429. 

Village  council,  the  embryo  of  legis- 
lative assemblies,  16. 

Vincennes,  common  fields  of,  429  and 
note  3. 

Vinogradoff,  Paul,  opposes  See- 
bob  m's  theory  of  the  English 
village  community,  19,  note  5. 

Virginia,  the  parish  of,  117-24;  as- 
sessments in,  188;  care  of  the 
poor  in,  196-7;  processioners  in, 
222-4 ;  her  reconstruction  town- 
ship, 230-2 ;  the  name  hundred 
in,  273-4 ;  colonial  county  organi- 
zation of,  388-404;  her  present 
county,  464-8. 

Volkerschaft,  union  of  hundert- 
schaften,  11 ;  the  bearer  of  politi- 
cal sovereignty,  the  primitive  state, 
12,  258,  262,  292,  256,  note  4,  304 ; 
the  prototype  of  the  shire,  char- 
acter and  organization,  292-8 :  an 
independent  state,  in  the  age  of 
Tacitus,  292;  assemblies  of,  293-4; 
magistrates  of,  294-5;  the  comi- 
tatus,  296 ;  the  old  Saxon  volker- 
schaft,  29t>-8 ;  becomes  a  gau  or 
district  in  Prankish  period,  305-9. 

Vorkaufsrecht,  in  New  England,  53. 

Waitz,  George,  denies  that  the  tith- 
ing was  an  original  Teutonic  in- 
stitution, 24,  note  1 ;  on  origin  of 
hundred,  253,  254;  on  the  char- 
acter of  the  hundred  organization, 
255,  note  4. 

Walks,  or  road  precincts  in  Virginia, 
210,  394. 

Wampum,  as  a  legal  tender,  344  and 
note  4. 

Wapentake,  Taylor's  theory  of,  265-6. 


526 


Index. 


Ward  or  brotherhood,  241-52. 

Wardens,  school,  68,  97. 

Warners  of  town-meeting,  chosen,  98. 

Warrant,  the  selectmen's,  63  and  note 
4,79. 

Washington  county,  Ohio,  first  exist- 
ing county  organized  in  the  west, 
413. 

Washington  territory,  school  districts 
in,  236 ;  school  franchise  in,  237, 
note  5 ;  her  county  board,  439,  note 
3 ;  has  county  auditor,  452 ;  has 
county  assessor,  454,  455,  note  2. 

Watch,  the  constable's,  directed  by 
selectmen,  81 ;  Boston  ordinance 
regulating,  84-6. 

Watch  and  ward,  parish  committee 
of,  41. 

Water  bailiffs,  83. 

Wayman,  39.  See  Overseer  of  High- 
ways. 

Wayne  county,  Michigan,  413,  note 
4,  435,  436  and  note  6;  board  of 
auditors  of,  450,  note  9. 

Ways,  private,  laid  out  by  the  select- 
men, 80.  See  Highways  and  Over- 
seer of  Highways. 

Waywarden,  39.  See  Overseer  of 
Highways. 

Webster,  Daniel,  quoted  on  the  ordi- 
nance of  1787,  142,  note  1. 

Wenham,  town-meeting  of,  enforces 
right  of  pre-emption,  54 ;  extracts 
from  the  records  of,  72. 

West  Virginia,  reconstruction  town- 
ship of,  232 ;  free  schools  of,  237. 

West  India  Company,  the  Dutch, 
institutes  colonies  in  New  Nether- 
land,  102. 

Western  selectmen :  differentiated 
forms  of,  167-9;  the  trustee  or 
supervisor,  169-71 ;  the  town 
board,  172-3. 


Whipping  post,  at  Salem,  325-7  ;  in 
Northwest  Territory,  417-20. 

Wilhelm,  Lewis  W.,  his  Local  Insti- 
tutions of  Maryland,  404,  note  2. 

Winchester,  statute  of,  204,  270. 

Winsor,  Justin,  jhis  Narrative  and 
Critical  History  of  America  men- 
tioned, 51,  note. 

Wisconsin,  has  New  York  plan  of 
township  organization,  158 ;  by- 
laws of  her  town-meeting,  165; 
township  officers  in,  168,  note; 
headship  of  the  town  of,  vested  in 
a  town  chairman,  168 ;  composi- 
tion of  her  town  board,  168,  172 ; 
care  of  poor  in,  law  of  settlement, 
200-1 ;  duties  of  kindred  as  to 
care  of  poor,  201 ;  highway  com- 
missioners in,  214 ;  her  school  sys- 
tem, 235 ;  school  franchise  in,  237, 
note  5 ;  functions  of  her  county 
board,  444—5. 

Witnesses  of  bargains,  in  laws  of 
Eadgar,  268. 

Wolves,  bounties  for  destruction  of. 
See  Bounties. 

Women,  franchise  extended  to,  237 
and  note  5. 

Wood  corders,  83,  97. 

Worcester,  the  county,  its  court  of 
general  sessions,  335-8. 

Worcester,  the  town,  extracts  from 
its  records,  73 ;  number  of  officers 
in,  99. 

Wyoming,  school  franchise  in,  237, 
note  5 ;  her  county  clerk,  452 ;  has 
a  county  assessor,  454. 

Yard  pales,  81. 
Yokers  of  swine,  83. 

Zelgen  or  open  fields,  17. 
Zent  or  centena,  261. 


539 


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