chief value is to give organic security to such antecedent and existing conditions and rights as are deemed to be vital and fundamental. Accordingly the Constitutions of the American States recognize the existence and contemplate the continuance of incorporated communities, and that they shall enjoy, in accordance with immemorial usage the right of local government; and it is a fair inference, even in the absence of special provision, that their property rights and rights of a pecuniary character are within the protection of important provisions of the State and Federal Constitutions. Constitutions are not to be interpreted alone by their words abstractly considered, but by their words read in the light of the conditions and necessities in which the provisions originated, and in view of the purposes sought to be attained and secured. Constitutions are devised not so much to create rights, as to guarantee and secure the enjoyment of those which are considered primordial and indestructible. The subject of the extent of legislative authority over municipalities and its limitations is considered in subsequent chapters.1

§ 4. After the subversion of the Roman Empire the towns of EUROPE from the fifth to the tenth century were in a state neither of servitude nor liberty, though their condition differed greatly in different countries. During this period the power and influence of the towns were, in general, on the decline. The power of the church was great, and the inhabitants found their chief protection in the clergy.

The establishment of the feudal system worked a great change in the condition of the towns. Before that, towns, as we have seen, were the centres of wealth and population. The ruling class lived within them. The land was cultivated by persons who were not recognized as having political rights. After feudalism was established this changed. The proprietor then lived upon his estates, instead of living within a town; the town became part of the lands of the lord, or enclosed within his fief. It, with its population, thus became subject to his arbitrary exactions, oppression, and pillage. Still the towns gradually prospered; with prosperity came wealth; and with wealth came power. Such, in general, was the condition of the towns of continental Europe down to the eleventh century. About this time, without any union or concert, many of them in most of the countries of Europe rose against the lords, and demanded for the burgesses, commonalty, or inhabitants a greater or

Post, chaps iv., vii., viii.

Sometimes a town failed in its

less measure of enfranchisement. struggle, and its oppression was redoubled by the victorious lord. Sometimes the towns were aided by the king, who was frequently not unwilling to humble the arrogant and haughty nobility, and thereby acquire the influence and affection of those whom he had assisted. Not unfrequently, however, the struggle had to be maintained by their own unaided resources, and when successful, the result was the granting by the lords to the burghers of CHARTERS, conferring more or less extensive municipal immunities and rights. These charters, as Guizot justly observes, were in the nature of "treaties of peace between the commons and their lords;' were in fact, "bills of rights" for the people. During the twelfth century "all Europe, and especially France, which for a century had been covered with insurrections by burghers against their lords, was covered by charters more or less favorable; the corporators enjoyed them with more or less security, but still they enjoyed them."

§ 5. After the overthrow of the Roman Empire and the decay of the civilization which accompanied the Roman power, Europe became largely indebted to cities and to the authority and jurisdiction which they acquired and exercised for the creation of the third estate, popular power, and for the development of the principles of constitutional or free government.3

THE ITALIAN CITIES, especially Venice, Genoa, and Pisa, grew rich out of the commerce resulting from the vast armies that the Crusaders for two hundred years had successively pushed forward into the Holy Land. The oppressive feudal system was at this time in full force throughout Europe. These Italian cities used their power and wealth to secure their independence. Cities and towns, as well as people who dwelt in the country, were alike sub

1 People v. Morris, 13 Wend. (N. Y.) cipal jurisdiction, contributed more, per325, 334, per Nelson, J.

2 Guizot, History Civilization in Europe, Lect. VII. This philosophic and valuable work is the source from whence are drawn most of the statements of the text as to the condition of the towns of Europe from the fifth to the tenth century. See similar account, Wealth of Nations, Book III. chap. iii.; Hallam's Middle Ages, chap. ii. Part II., and notes to later editions.

8 "The institution of cities into communities, corporations, or bodies politic, and granting them the privilege of muni

haps, than any other cause, to introduce regular government, police and arts, and to diffuse them over Europe." Robertson's Charles V.; see Hallam's Middle Ages, chap. ii. Part II. M. Guizot considers the three great elements of modern civilization to be the Feudal System, the Christian Church, the Commons, or free corporate cities. Civilization in Europe, Lect. VII.; see also Wealth of Nations, Book III. chap. iii., on "The Rise and Progress of Cities and Towns, after the Fall of the Roman Empire."

cerns.

ject to the arbitrary domination of their feudal masters. Some of the cities, in the eleventh century, obtained their freedom by purchase, some by force, and some by gift. They, in effect, constituted so many little republics, with the right to manage their own conIn this way, before the end of the thirteenth century, nearly every considerable city of Italy was enfranchised or had received extensive corporate immunities from the sovereign or lord. The happy effects were soon perceived in the increased population and improved condition. Liberty and prosperity ever go hand in hand.

§ 6. Whether from example, as asserted by Dr. Robertson, or from other causes, the same course was pursued by the cities of other states in Europe. The King of FRANCE, Louis le Gros, and his great barons granted many charters of community, by which the inhabitants were freed from feudal servitude and erected into municipal corporations, with the power of local government. These charters contained grants of new privileges, and prescribed salutary methods for the enforcement of rights and the redress of grievances. They are interesting and instructive, and a brief view of their general character is given in the note.1

1 Abstract of municipal charter in the Middle Ages. In those turbulent times personal safety was an object of the first importance, and this was usually afforded to the vassal by the baron or lord. The communities or free towns which were instituted undertook to provide for the safety of their members, independent of the nobles. For, (1) All the members were bound by oath to assist and defend each other against all aggressors. (2) All

residents in a town made free were obliged to take part in the mutual defence of its members. (3) The communities could execute the judgments of their magistrates by coercion, if necessary. (4) The practice of making private satisfaction for crimes was abolished, and provision made for the regular punishment of offenders. (5) A person reasonably suspected to be about to injure another might, as with us at the present day, be compelled to give security to keep the peace. These communities also undertook to provide for the security of property by the following: (1) Abolishing the right of the creditor to seize the effects of his debtor with his own hand and by his private authority, and compelling him to proceed before a magistrate, who was

authorized to issue the necessary process for the seizure and sale of property, humane and necessary exemptions being allowed. (2) Every member was obliged to bring some of his property into the town, or build a house, or buy land; and in some places the members were bound for each other. (3) Judgments by magistrates, duly selected, took the place of the arbitrary and capricious decisions of the baron or feudal lord. (4) Arbitrary taxation was prohibited, and regulations for an equal tax were sometimes especially prescribed. Digested from Robertson's Charles V., Vol. I. note xvi., Proofs and Illustrations. "The communities of France never aspired," says this accurate and elegant historian, "to the same independence with those in Italy. They acquired in France new privileges and immunities; but the right of sovereignty remained entire to the king or baron within whose territories the respective cities were situated, and from whom they received the charter of their freedom." 1b. Charters defined, post, secs. 32,82. Municipal charters, treated of, post, chaps. v., vi. Outline of modern municipal charters in the United States, post, sec. 39.

We meet in FRANCE with great diversity in the origin and government of towns and cities. In some of them, especially in southern France, the Roman municipal system, more or less modified from time to time, was perpetuated. The Roman system was formed upon an aristocratic model. In each municipium there was a senate, called an ordo or curia. This was, politically considered, the city; it was the governing body. The mass of the population, except in a few cases, had no voice in municipal affairs. This senate was composed of a comparatively small number of families, and the office was hereditary. When the body became reduced in numbers by death or otherwise, it was not filled by the people, but by the survivors. Other towns or communities originated, in the most natural manner, upon the fiefs or estates of the feudal proprietors. Many of these estates became centres or agglomerations of population, composed of the working and industrial classes. Trade sprang up, and towns and cities originated. The lord, or proprietor, was interested in and derived profit from their prosperity. To induce others to settle there, he frequently conceded certain privileges. He did not emancipate them from all feudal restraints and burdens, but these he mitigated. Often he granted lands and privileges to all who settled in towns on his domains, on receiving a moderate fixed rent and specified military services. These concessions had no higher origin than the personal interest of the proprietor, and were often violated. They did not constitute the towns locally independent, or make them true corporations. But, limited and uncertain as these concessions were, the towns which received them prospered and became more or less important.

Other places in FRANCE were chartered towns and true corpora、 tions. In the twelfth century there was the general movement, before noticed, on the part of the towns of France for their enfranchisement, or delivery from feudal bondage. The extent of this movement may be judged from the fact that the royal charters of this period are numbered by hundreds, and those granted by the lords, by thousands. These were, in general, wrested from the feudal proprietors by force, or the fear of it, and conferred an almost independent political existence upon the commune, or town. charters gave the community the power of having its people judged for offences by magistrates of their own choosing; crimes and punishments were defined; arbitrary rents and taxes were abolished, and fixed rents and regular taxes substituted; main-morte and other restraints upon the alienation and enjoyment of property were removed. The government of towns thus created, unlike those which were mere perpetuations of the Roman system, was formed upon a demo

These

cratic model. A voice was given to all burghers, or persons of a certain fortune, or who exercised a trade or calling. In a word, with considerable diversity, this class of towns was independent, and possessed, in local matters, the power of self-government. From and after the fourteenth century, the political power and influence of the towns of France decayed. The causes of this decline have been traced with a masterly hand by M. Guizot, but they do not relate to our purpose. In the course of change, we may remark. that the royal power over them became predominant, and instead of being self-governed, they were administered by the intendants, or officers of the king or emperor, or the central authority at Paris.

Towns, or communes in modern FRANCE are governed by a mayor and council. By the law of 1855, in all communes of 3,000 inhabitants and upwards, these officers are appointed by the emperor; while in small communes the appointment is made by the prefect of the department, himself appointed by the emperor. The prefect may suspend municipal councillors, but the emperor alone can dismiss them.2 Under the present republic the prefect is appointed by the president; and in the larger towns the mayor is nominated by the government at Paris, but he must be selected from the municipal council, which is chosen by universal suffrage.3

§ 7. It seems to be well established that the towns and cities of SPAIN acquired charters of freedom at an earlier period than those in France, England, or Germany. The cities of Italy, as we have seen, owed their freedom, to a large extent, to their commercial importance and wealth; but those of Spain owed their privileges

1 History Civilization in France, Lect. XIX.; see also Hallam's Middle Ages, chap. ii. Part II., and notes.

2 American Encyclopædia, Commune. Encyclopædia Brit. (9th ed.), 509, 511, title France.

4 The most ancient of these regular charters of incorporation now extant was granted by Alfonso V., in 1020, to the city of Leon and its territory. It preceded by a long interval those granted to the burgesses in other parts of Europe, with the exception, perhaps, of Italy. Acts of enfranchisement became frequent in Spain during the eleventh century, several of which are preserved, and exhibit with sufficient precision the nature of the privileges accorded to the inhabitants. Robertson (in his History of

Charles V., Introductory View), who wrote when the constitutional antiquities of Castile had been but slightly investigated, would seem to have no authority, therefore, for deriving the establishment of communities from Italy, and still less for tracing their progress through France and Germany to Spain. Prescott, Ferdinand and Isabella, Introduction, Vol. I.

note 24.

Hallam, who, as well as Prescott, founds his judgment upon the historical works of Marina and Sempere, expresses a similar opinion as to the early period at which the towns of Spain were invested with chartered rights and privileges. Middle Ages, chap. iv.; Ib. chap. ii. Part II. and

notes.