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existence of feudalism, and predicates the existence of the principle confirmed in the time of the Confessor, the last real Anglo-Saxon king. Thus when the Conqueror marched on London after the battle of Hastings, proposing to take it unless it submitted, a Norman, who was Bishop of London, conferred with him, and a charter was granted by the King, the original of which in Saxon is still in existence. It said:

"William, the King, greets William, Bishop, and Godfrey, Portreve, and all the Burgesses within London, French and English, friendly. And I grant you that you be law-worthy as ye were in the days of Edward the King. And I will that each child be his father's heir after his father's days. And I will not allow that any man shall do you any wrong. And God keep you." 1

Here, as before, the King confirms rights already existing (in the days of Edward the Confessor, about two hundred years earlier). The King's charters, as well as charters of lords of manors, acknowledged the existence of something already in being, and agreed to its continued existence, in return for the stipulated fee-farm rent, and so long as it should be paid. The town was already in existence through unconscious self-creation.

The effect of the receiving of a charter was no more than the ascertainment of the fact of incorporation. Feudalism next assumed not only to grant what existed as ancient customs and liberties, but to grant as a creation of new rights a continuance of the old. This was extended to an outright grant to new communities

1 See Pollock and Maitland, History of English Law, Book II, chap. iii, sec. 8.

of rights which were theirs for the taking, for towns existed without charters.

§ 66. MUNICIPAL CORPORATIONS EXISTED BEFORE THE STATES. - The process was reproduced in this country. When the colony of Massachusetts Bay was settled, towns sprang into existence at once, and in 1634 their deputies were admitted to the General Court, although the company's charter made no provision for them. Towns in Massachusetts were not incorporated until 1785.1 Yet no one would seriously contend that this gave them new powers, franchises, and liberties. It merely recognized and confirmed the exercise of those powers to the towns of the Commonwealth which they had always had since the foundation thereof in 1623-24-25. Chief Justice Shaw said, in 1839: "Towns were of themselves corporations having perpetual succession, consisting of all persons inhabiting within certain territorial limits. "3 But the power taken by the King and the lord of the manor has been assumed by the State legislatures which, insisting upon a re-enactment of the law of nature, pretend to give to men gathered in neighborhoods or in cities the rights and powers without

2

1 Commonwealth v. Roxbury, 9 Gray, 511, note.

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2 The Overseers of the Poor of the City of Boston v. David Sears et ux. 22 Pick. 122, at 130; see Hill v. Boston, 122 Mass. 344; Debates in Constitutional Convention of Mass., 1821; Address by Josiah Quincy, Sept. 17, 1897, p. 13; Rogers in Two Centuries of Legal Growth. A corporation constituted by the inhabitants of Boston in 1772, and continued by statute, was held not to be changed but only continued by the charter of Boston of 1822.

3 New England towns admitted inhabitants to the dignity of freemen that they might share in the benefits of local liberties and franchises.

The State has power over revenues of a town to the extent that they are derived from the exercise of a power expressly dele

the free existence of which neither the States nor the nation would have existed. Strangely enough this idea came in through the grant of charters by governors during the colonial period, a relic of the power of the king or the lord. Thus Governor Wentworth, of New Hampshire, granted a charter to Dartmouth College under which it still exists. So Princeton, the University of Pennsylvania, and Rutgers College had charters from the governor. St. Mary's City was chartered by Calvert as lord and proprietor. But the college was held, in the Dartmouth College Case, to be a private corporation, and at that time the notion of general incorporation laws had not been conceived.. And, in the case of the gated by the State, or the exercise of a franchise so long as the contract therefor is merely executory or the right is not vested. Home Ins. Co. v. City Council, 93 U. S. 116; East Hartford v. Hartford Bridge Co., 10 How. 511, S. C. 16 Conn. 149, 17 Conn. 79; Railroad Co. v. Ellerman, 105 U. S. 166; Aspinwall v. County of Jo Daviess, 22 How. 364; State v. R. R. Co., 12 Gill & Johns (Md.) 399, 3 How. 534. But this power is circumscribed in the same way as that of courts to direct the execution of a trust by a municipality. Meriwether v. Garrett, 102 U. S. 472, 528; Girard v. Phila., 7 Wall. 1. And the State may not interfere with any contracts which the municipality has made. Meriwether v. Garrett, 102 U. S. 472; Furman v. Nicol, 8 Wall. 44; Wolff v. New Orleans, 103 U. S. 358; Galena v. Amy, 5 Wall. 705; Von Hoffman v. Quincy, 4 Wall. 535; Woodruff v. Trapnall, 10 How. 206; Lee County v. Rogers, 7 Wall. 185; New Orleans v. N. O. W. Co., 142 U. S. 79; U. S. v. Mobile, 12 Fed. Rep. 768; Mobile v. Watson, 116 U. S. 768; Sawyer v. Concordia, 12 Fed. Rep. 754; or in any way reduce or limit the present power of the corporation to provide by taxation for the payment of its debts. Seibert v. Lewis, 122 U. S. 284; Nelson v. St. Martin's Parish, 111 U. S. 716; Louisiana v. Pillsbury, 105 U. S. 278. Inconsiderable exemptions of property from taxation or other immaterial reductions of power do not infringe the spirit of this rule. Bannon v. Byrnes, 39 Fed. Rep. 892; Seibert v. Lewis, 122 U. S. 284; Aspinwall v. County of Jo Daviess, 22 How. 364; Concord v. Portsmouth Bk., 92 U. S. 625.

city, the land was conceived to be private property. As to the former, too, it was held by the High Court of Chancery in 1684 that the colonial legislature had no right to incorporate Harvard College, and the Charter of Massachusetts Bay was forfeited. The towns in New England were self-created. It was only after the struggle for freedom that the States assumed the position of the king.

"In 1620 the Mayflower Pilgrims found themselves in Cape Cod Bay instead of near the mouth of the Hudson, as they had intended. They were out of the bounds of the patent they had sailed under. Immediately, in the cabin of the Mayflower, without authority from England, they formed themselves into a body-politic by voluntary agreement. They became thus a self-constituted municipal corporation. They bought their title to the land from the Indians. This colony of New Plymouth, with its cluster of after-settled towns, carved out of its own territory, with its own independent self-instituted government, remained a self-constituted body-politic until its enforced union with the colony of Massachusetts Bay under the provincial charter of William III, in 1691.

"In 1634 the towns of Massachusetts Bay Colony usurped powers in violation of the charter of the company, and peacefully brought about a revolution by sending two deputies to the General Court, abolishing the oath of allegiance to the king, and substituting an oath to the Commonwealth in its place. The towns made a new central government, the first step in the separation of the American colonies, provinces, and proprietary governments from the mother country. In Rhode Island as in Massachusetts the right to local self-government exists in the towns. The original towns, Providence, founded in 1636, Portsmouth in 1638, and Newport in 1639, were really separate colonies, self-instituted municipal corporations,

that existed before there was any Rhode Island, and that made the colony when they united under the first charter in 1647, the fourth town, Warwick, being then also admitted. This was so held, in August, 1900, by the Supreme Court of Rhode Island.1

"The case is equally clear as to Connecticut. The independent river towns of Dorchester, Newtown, and Watertown, afterwards Windsor, Hartford, and Wethersfield, deriving no powers from England and buying their land of the Indians, were self-instituted municipal corporations. First uniting among themselves and then uniting with a similar settlement at New Haven, they became the colony, now the State, of Connecticut.

"So in New Hampshire, we find four towns, all separate independent colonies, self-instituted municipal corporations, that afterwards, under forced union at the order of the crown, became the province of New Hampshire. But the towns existed before the province, and by their union made the province. In one of these towns, Exeter, the inhabitants framed their own charter in 1639 and the town is still governed by it."

§ 67. THE RIGHTS NOT GRANTED WERE Reserved TO THE INHABITANTS OF THE MUNICIPAL CORPORATIONS. THE UNWRITTEN CONSTITUTION.

"It is admitted that the people are the source of all legal power and authority in the United States. 'Sovereignty is and remains in the people.' The sovereign is the person or body of persons, over whom there is politically no superior. It follows that the people, the sovereign, have parted only with what they have granted

1 Eaton, Origin of Municipal Corporations in Worcester Magazine, Vol. I, 52; Newport v. Horton, 22 Rhode Island, 196; Newport resumed the town meeting in a qualified form in 1906.

2 Jameson, Constitutional Conventions, sec. 18; Penhallow v. Doane's Administrators, 3 Dallas, 54.

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