Civil Government in the United States Considered with Some Reference to Its Origins

by John Fiske

Section 2. The Modern County in Massachusetts.

The modern county system of Massachusetts may now be very briefly described. The county, like the town, is a corporation; it can hold property and sue or be sued. It builds the court-house and jail, and keeps them in repair. The town in which these buildings are placed is called, as in England, the shire town.

[Sidenote: County commissioners.] In each county there are three commissioners, elected by the people. Their term of service is three years, and one goes out each year. These commissioners represent the county in law-suits, as the selectmen represent the town. They "apportion the county taxes among the towns;" "lay out, alter, and discontinue highways within the county;" "have charge of houses of correction;" and erect and keep in repair the county buildings.[6]

[Footnote 6: Martin's Civil Government, p. 197.]

[Sidenote: County treasurer.] The revenues of the county are derived partly from taxation and partly from the payment of fines and costs in the courts. These revenues are received and disbursed by the county treasurer, who is elected by the people for a term of three years.

[Sidenote: Courts.] The Superior Court of the state holds at least two sessions annually in each county, and tries civil and criminal causes. There is also in each county a probate court with jurisdiction over all matters relating to wills, administration of estates, and appointment of guardians; it also acts as a court of insolvency. The custody of wills and documents relating to the business of this court is in the hands of an officer known as the register of probate, who is elected by the people for a term of five years.

[Sidenote: Shire town and court-house.] To preserve the records of all land-titles and transfers of land within the county, all deeds and mortgages are registered in an office in the shire town, usually within or attached to the court The register of deeds is an officer elected by the people for a term of three years. In counties where there is much business there may be more than one.

[Sidenote: Justices of the peace.] Justices of the peace are appointed by the governor for a term of seven years, and the appointment may be renewed. Their functions have been greatly curtailed, and now amount to little more than administering oaths, and in some cases issuing warrants and taking bail. They may join persons in marriage, and, when specially commissioned as "trial justices," have criminal jurisdiction over sundry petty offences.

[Sidenote: The Sheriff.] The sheriff is elected by the people for a term of three years. He may appoint deputies, for whom he is responsible, to assist him in his work. He must attend all county courts, and the meetings of the county commissioners whenever required. He must inflict, either personally or by deputy, the sentence of the court, whether it be fine, imprisonment, or death. He is responsible for the preservation of the peace within the county, and to this end must pursue criminals and may arrest disorderly persons. If he meets with resistance he may call out the posse comitatus; if the resistance grows into insurrection he may apply to the governor and obtain the aid of the state militia; if the insurrection proves too formidable to be thus dealt with, the governor may in his behalf apply to the president of the United States for aid from the regular army. In this way the force that may be drawn upon, if necessary, for the suppression of disorder in a single locality, is practically unlimited and irresistible.

We have now obtained a clear outline view of the township and county in themselves and in their relation to one another, with an occasional glimpse of their relation to the state; in so far, at least, as such a view can be gained from a reference to the history of England and of Massachusetts. We must next trace the development of local government in other parts of the United States; and in doing so we can advance at somewhat quicker pace, not because our subject becomes in any wise less important or less interesting, but because we have already marked out the ground and said things of general application which will not need to be said over again.

QUESTIONS ON THE TEXT.

Give an account of the modern county in Massachusetts under the following heads:—

1. The county a corporation. 2. The county commissioners and their duties. 3. The county treasurer and his duties. 4. The courts held in a county. 5. The shire town and the court-house. 6. The register of deeds and his duties. 7. Justices of the peace and trial justices. 8. The sheriff and his duties. 9. The force at the sheriff's disposal to suppress disorder.

Section 3. The Old Virginia County.

By common consent of historians, the two most distinctive and most characteristic lines of development which English forms of government have followed, in propagating themselves throughout the United States, are the two lines that have led through New England on the one hand and through Virginia on the other. We have seen what shape local government assumed in New England; let us now observe what shape it assumed in the Old Dominion.

[Sidenote: Virginia sparsely settled.] The first point to be noticed in the early settlement of Virginia is that people did not live so near together as in New England. This was because tobacco, cultivated on large estates, was a source of wealth. Tobacco drew settlers to Virginia as in later days gold drew settlers to California and sparsely Australia. They came not in organized groups or congregations, but as a multitude of individuals. Land was granted to individuals, and sometimes these grants were of enormous extent. John Bolling, who died in 1757, left an estate of 40,000 acres, and this is not mentioned as an extraordinary amount of land for one man to own.[7] From an early period it was customary to keep these great estates together by entailing them, and this continued until entails were abolished in 1776 through the influence of Thomas Jefferson.

[Footnote 7: Edward Channing, "Town and County Government," in Johns Hopkins University Studies, vol. ii. p. 467.]

[Sidenote: Absence of towns.] A glance at the map of Virginia shows to what a remarkable degree it is intersected by navigable rivers. This fact made it possible for plantations, even at a long distance from the coast, to have each its own private wharf, where a ship from England could unload its cargo of tools, cloth, or furniture, and receive a cargo of tobacco in return. As the planters were thus supplied with most of the necessaries of life, there was no occasion for the kind of trade that builds up towns. Even in comparatively recent times the development of town life in Virginia has been very slow. In 1880, out of 246 cities and towns in the United States with a population exceeding 10,000, there were only six in Virginia.

[Sidenote: Slavery] The cultivation of tobacco upon large estates caused a great demand for cheap labour, and this was supplied partly by bringing negro slaves from Africa, partly by bringing criminals from English jails. The latter were sold into slavery for a limited term of years, and were known as "indentured white servants." So great was the demand for labour that it became customary to kidnap poor friendless wretches on the streets of seaport towns in England and ship them off to Virginia to be sold into servitude. At first these white servants were more numerous than the negroes, but before the end of the seventeenth century the blacks had come to be much the more numerous.

[Sidenote: Social position of settlers.] In this rural community the owners of plantations came from the same classes of society as the settlers of New England; they were for the most part country squires and yeomen. But while in New England there was no lower class or society sharply marked off from the upper, on the other hand in Virginia there was an insurmountable distinction between the owners of plantations and the so-called "mean whites" or "white trash." This class was originally formed of men and women who had been indentured white servants, and was increased by such shiftless people as now and then found their way to the colony, but could not win estates or obtain social recognition. With such a sharp division between classes, an aristocratic type of society was developed in Virginia as naturally as a democratic type was developed in New England.

[Sidenote: Virginia parishes.] [Sidenote: The vestry of a close corporation.] In Virginia there were no town-meetings. The distances between plantations cooperated with the distinction between classes to prevent the growth of such an institution. The English parish, with its churchwardens and vestry and clerk, was reproduced in Virginia under the same name, but with some noteworthy peculiarities. If the whole body of ratepayers had assembled in vestry meeting, to enact by-laws and assess taxes, the course of development would have been like that of the New England town-meeting. But instead of this the vestry, which exercised the chief authority in the parish, was composed of twelve chosen men. This was not government by a primary assembly, it was representative government. At first the twelve vestrymen were elected by the people of the parish, and thus resembled the selectmen of New England; but after a while "they obtained the power of filling vacancies in their own number," so that they became what is called a "close corporation," and the people had nothing to do with choosing them. Strictly speaking, that was not representative government; it was a step on the road that leads towards oligarchical or despotic government.

[Sidenote: Powers of the vestry.] It was the vestry, thus constituted, that apportioned the parish taxes, appointed the churchwardens, presented the minister for induction into office, and acted as overseers of the poor. The minister presided in all vestry meetings. His salary was paid in tobacco, and in 1696 it was fixed by law at 16,000 pounds of tobacco yearly. In many parishes the churchwardens were the collectors of the parish taxes. The other officers, such as the sexton and the parish clerk, were appointed either by the minister or by the vestry.

With the local government thus administered, we see that the larger part of the people had little directly to do. Nevertheless in these small neighbourhoods government was in full sight of the people. Its proceedings went on in broad daylight and were sustained by public sentiment. As Jefferson said, "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 neighbours, and the distinction which that gives them." [8]

[Footnote 8: See Howard, Local Constitutional History of the United
States, vol. i. p. 122.]

[Sidenote: The county was the unit of representation.] The difference, however, between the New England township and the Virginia parish, in respect of self-government, was striking enough. We have now to note a further difference. In New England, as we have seen, the township was the unit of representation in the colonial legislature; but in Virginia the parish was not the unit of representation. The county was that unit. In the colonial legislature of Virginia the representatives sat not for parishes, but for counties. The difference is very significant. As the political life of New England was in a manner built up out of the political life of the towns, so the political life of Virginia was built up out of the political life of the counties. This was partly because the vast plantations were not grouped about a compact village nucleus like the small farms at the North, and partly because there was not in Virginia that Puritan theory of the church according to which each congregation is a self-governing democracy. The conditions which made the New England town-meeting were absent. The only alternative was some kind of representative government, and for this the county was a small enough area. The county in Virginia was much smaller than in Massachusetts or Connecticut. In a few instances the county consisted of only a single parish; in some cases it was divided into two parishes, but oftener into three or more.

[Sidenote: The county court was virtually a close corporation.] In Virginia, as in England and in New England, the county was an area for the administration of justice. There were usually in each county eight justices of the peace, and their court was the counterpart of the Quarter Sessions in England. They were appointed by the governor, but it was customary for them to nominate candidates for the governor to appoint, so that practically the court filled its own vacancies and was a close corporation, like the parish vestry. Such an arrangement tended to keep the general supervision and control of things in the hands of a few families.

This county court usually met as often as once a month in some convenient spot answering to the shire town of England or New England. More often than not the place originally consisted of the court-house and very little else, and was named accordingly from the name of the county, as Hanover Court House or Fairfax Court House; and the small shire towns that have grown up in such spots often retain these names to the present day. Such names occur commonly in Virginia, West Virginia, and South Carolina, very rarely in Kentucky, North Carolina, Alabama, Ohio, and nowhere else in the United States.[9] Their number has diminished from the tendency to omit the phrase "Court House," leaving the name of the county for that of the shire town, as for example in Culpeper, Va. In New England the process of naming has been just the reverse; as in Hartford County, Conn., or Worcester County, Mass., which have taken their names from the shire towns. In this, as in so many cases, whole chapters of history are wrapped up in geographical names.[10]

[Footnote 9: In Mitchell's Atlas, 1883, the number of cases is in Va. 38, W. Va. 13, S. C. 16, N. C. 2, Ala. 1, Ky. 1, Ohio, 1.]

[Footnote 10: A few of the oldest Virginia counties, organized as such in 1634, had arisen from the spreading and thinning of single settlements originally intended to be cities and named accordingly. Hence the curious names (at first sight unintelligible) of "James City County," and "Charles City County.">[

[Sidenote: Powers of the court] The county court in Virginia had jurisdiction in criminal actions not involving peril of life or limb, and in civil suits where the sum at stake exceeded twenty-five shillings. Smaller suits could be tried by a single justice. The court also had charge of the probate and administration of wills. The court appointed its own clerk, who kept the county records. It superintended the construction and repair of bridges and highways, and for this purpose divided the county into "precincts," and appointed annually for each precinct a highway surveyor. The court also seems to have appointed constables, one for each precinct. The justices could themselves act as coroners, but annually two or more coroners for each parish were appointed by the governor. As we have seen that the parish taxes—so much for salaries of minister and clerk, so much for care of church buildings, so much for relief of the poor, etc.—were computed and assessed by the vestry; so the county taxes, for care of court-house and jail, roads and bridges, coroner's fees, and allowances to the representatives sent to the colonial legislature, were computed and assessed by the county court. The general taxes for the colony were estimated by a committee of the legislature, as well as the county's share of the colony tax.

[Sidenote: The sheriff.] The taxes for the county, and sometimes the taxes for the parish also, were collected by the sheriff. They were usually paid, not in money, but in tobacco; and the sheriff was the custodian of this tobacco, responsible for its proper disposal. The sheriff was thus not only the officer for executing the judgments of the court, but he was also county treasurer and collector, and thus exercised powers almost as great as those of the sheriff in England in the twelfth century. He also presided over elections for representatives to the legislature. It is interesting to observe how this very important officer was chosen. "Each year the court presented the names of three of its members to the governor, who appointed one, generally the senior justice, to be the sheriff of the county for the ensuing year." [11] Here again we see this close corporation, the county court, keeping the control of things within its own hands.

[Footnote 11: Edward Channing, op. cit. p. 478.]

[Sidenote: The county lieutenant] One other important county officer needs to be mentioned. We have seen that in early New England each town had its train-band or company of militia, and that the companies in each county united to form the county regiment. In Virginia it was just the other way. Each county raised a certain number of troops, and because it was not convenient for the men to go many miles from home in assembling for purposes of drill, the county was subdivided into military districts, each with its company, according to rules laid down by the governor. The military command in each county was vested in the county lieutenant, an officer answering in many respects to the lord lieutenant of the English shire at that period. Usually he was a member of the governor's council, and as such exercised sundry judicial functions. He bore the honorary title of "colonel," and was to some extent regarded as the governor's deputy; but in later times his duties were confined entirely to military matters.[12]

[Footnote 12: For an excellent account of local government in Virginia before the Revolution, see Howard, Local Const. Hist. of the U.S., vol. i. pp. 388-407; also Edward Ingle in Johns Hopkins Univ. Studies, III., ii.-iii.]

If now we sum up the contrasts between local government in Virginia and that in New England, we observe:—

1. That in New England the management of local affairs was mostly in the hands of town officers, the county being superadded for certain purposes, chiefly judicial; while in Virginia the management was chiefly in the hands of county officers, though certain functions, chiefly ecclesiastical, were reserved to the parish.

2. That in New England the local magistrates were almost always, with the exception of justices, chosen by the people; while in Virginia, though some of them were nominally appointed by the governor, yet in practice they generally contrived to appoint themselves—in other words the local boards practically filled their own vacancies and were self-perpetuating.

[Sidenote: Jefferson's opinion of township government.] These differences are striking and profound. There can be no doubt that, as Thomas Jefferson clearly saw, in the long run the interests of political liberty are much safer under the New England system than under the Virginia system. Jefferson said, "Those wards, called townships in New England, are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government, and for its preservation[13]….As Cato, then, concluded every speech with the words Carthago delenda est, so do I every opinion with the injunction: Divide the counties into wards!" [14]

[Footnote 13: Jefferson's Works, vii. 13.]

[Footnote 14: Id., vi. 544]

[Sidenote: "Court Day.">[ We must, however, avoid the mistake of making too much of this contrast. As already hinted, in those rural societies where people generally knew one another, its effects were not so far-reaching as they would be in the more complicated society of to-day. Even though Virginia had not the town-meeting, it had its familiar court-day, which was a holiday for all the country-side, especially in the fall and spring. From all directions came in the people on horseback, in wagons, and afoot. On the court-house green assembled, in indiscriminate confusion, people of all classes,—the hunter from the backwoods, the owner of a few acres, the grand proprietor, and the grinning, heedless negro. Old debts were settled, and new ones made; there were auctions, transfers of property, and, if election times were near, stump-speaking.[15]

[Sidenote: Virginia prolific in great leaders.] For seventy years or more before the Declaration of Independence the matters of general public concern, about which stump speeches were made on Virginia court-days, were very similar to those that were discussed in Massachusetts town-meetings when representatives were to be chosen for the legislature. Such questions generally related to some real or alleged encroachment upon popular liberties by the royal governor, who, being appointed and sent from beyond sea, was apt to have ideas and purposes of his own that conflicted with those of the people. This perpetual antagonism to the governor, who represented British imperial interference with American local self-government, was an excellent schooling in political liberty, alike for Virginia and for Massachusetts. When the stress of the Revolution came, these two leading colonies cordially supported each other, and their political characteristics were reflected in the kind of achievements for which each was especially distinguished. The Virginia system, concentrating the administration of local affairs in the hands of a few county families, was eminently favourable for developing skilful and vigorous leadership. And while in the history of Massachusetts during the Revolution we are chiefly impressed with the wonderful degree in which the mass of the people exhibited the kind of political training that nothing in the world except the habit of parliamentary discussion can impart; on the other hand, Virginia at that time gave us—in Washington, Jefferson, Henry, Madison, and Marshall, to mention no others—such a group of consummate leaders as the world has seldom seen equalled.

[Footnote 15: Ingle, loc. cit.]

QUESTIONS ON THE TEXT.

1. Why was Virginia more sparsely settled than Massachusetts?

2. Why was it that towns were built up more slowly in Virginia than in Massachusetts?

3. How was the great demand for labour in Virginia met?

4. What distinction of classes naturally arose?

5. Contrast the type of society thus developed in Virginia with that
developed in New England.

6. Compare the Virginia parish in its earlier government with the
English parish from which it was naturally copied.

7. Show how the vestry became a close corporation.

8. Who were usually chosen as vestrymen, and what were their powers?

9. Compare Virginia's unit of representation in the colonial legislature with that of Massachusetts, and give the reason for the difference.

10. Describe the county court, showing in particular how it became a close corporation.

11. Bring out some of the history wrapped up in the names of county seats.

12. What were the chief powers of the county court?

13. Describe the assessment of the various taxes.

14. What were the sheriff's duties?

15. Describe the organization and command of the militia in each county.

16. Sum up the differences between local government in Virginia and that in New England (1) as to the management of local affairs and (2) as to the choice of local officers.

17. What did Jefferson think of the principle of township government?

18. What was the equivalent in Virginia of the New England town-meeting?

19. What was the value of this frequent assembling?

20. What schooling in political liberty before the Revolution did Virginia and Massachusetts alike have?

21. What was an impressive feature of the New England system?

22. What was an impressive feature of the Virginia system?

SUGGESTIVE QUESTIONS AND DIRECTIONS.

1. How many counties are there in your state?

2. Name and place them if the number is small.

3. In what county do you live?

4. Give its dimensions. Are they satisfactory? Why?

5. Give its boundaries.

6. Is there anything interesting in the meaning or origin of its name?

7. How many towns and cities does it contain?

8. What is the county seat? Is it conveniently situated? Reasons for thinking so?

9. If convenient, visit any county building, note the uses to which it is put, and report such facts as may be thus found out.

10. Obtain a deed, no matter how old, and answer these questions about it:—

a. Is it recorded? If so, where?
b. Would it be easy for you to find
the record?
c. Why should such a record be kept?
d. What officer
has charge of such records?
e. What sort of work must he and his
assistants do?
f. The place of such records is called what?
g. What sort of facilities for the public should such a place have? What
safety precautions should be observed there?
h. Why should the county
keep such records rather than the city or the town?
i. Is there a record of the deed by which the preceding owner came into
possession of the property?
j. What sort of title did the first owner have? Is
there any record of it? Was the first owner Indian or European?

(The teacher might obtain a deed and base a class exercise upon it. It is easy with a deed for a text to lead pupils to see the common-sense basis of an important county institution, and thereafter to give very sensible views as to what it should be, even if it is not fully known what it is.)

11. Is there a local court for your town or city? 12. How do its cases compare in magnitude with those tried at the county seat?

13. If a man steals and is prosecuted, who becomes the plaintiff?

14. If a man owes and is sued for debt, who becomes the plaintiff?

15. What is a criminal action?

16. What is a civil action?

17. What is the result to the defendant in the former case, if he is convicted?

18. What is the result to the defendant in the latter case, if the decision is against him?

19. Is lying a crime or a sin? May it ever become a crime?

20. Are courts of any service to the vast numbers who are never brought before them? Why?

21. May good citizens always keep out of the courts if they choose? Is it their duty always to keep out of them?

22. Is there any aversion among people that you know to being brought before the courts? Why?

23. What is the purpose of a jail? Is this purpose realized in fact?

24. Should a disturbance of a serious nature break out in your town, whose immediate duty would it be to quell it? Suppose this duty should prove too difficult to perform, then what?

25. What is the attitude of good citizenship towards officers who are trying to enforce the laws? What is the attitude of good citizenship if the laws are not satisfactory or if the officers are indiscreet in enforcing them?

26. Suppose a man of property dies and leaves a will, what troubles are possible about the disposal of his property? Suppose he leaves no will, what troubles are possible? Whose duty is it to exercise control over such matters and hold people up to legal and honourable conduct in them?

27. What is an executor? What is an administrator?

28. If parents die, whose duty is it to care for their children? If property is left to such children, are they free to use it as they please? What has the county to do with such cases?

29. How much does your town or city contribute towards county expenses? How does this amount compare with that raised by other towns in the county?

30. Give the organization of your county government.

31. Would it be better for the towns to do themselves the work now done for them by the county?

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