§ 1. As this treatise is designed strictly for the practising lawyer, it does not fall within its scope to give a detailed account of the origin and rise of cities and towns, or to trace minutely the history of the rights, powers, and jurisdiction with which they are now generally invested. Such inquiries more appropriately belong to the legal antiquary, to the historian, or to the general scholar; and yet a brief historical survey of municipalities will conduce to a more intelligent understanding, even in its practical bearings, of the subject of which it is proposed to treat.' The existence of towns and cities, 1 Mr. Dicey has some just observa- rules of the Constitution in the year tions on the different purposes of the 1886. To a lawyer, on the other hand, historical and of the legal inquirer. the primary object of study is the law "An historian is primarily occupied as it now stands: he is only secondarily with ascertaining the steps by which occupied with ascertaining how it came a constitution has grown to be what it is. He is deeply, sometimes excessively, concerned with questions of 'origins.' He is only indirectly concerned in ascertaining what are the into existence." Dicey, Law of the Constitution (2d ed.), Lect. I. The present work is intended for the use of courts and lawyers, and the historical view of the development of mu and probably the exercise by them, to a greater or less extent, of local jurisdiction, may be ascribed to very remote periods. PHOENICIA and EGYPT were noted for their large and splendid cities. In the latter country we find Memphis, one of the Old World's proudest capitals, even whose site was, until recently, a matter of learned conjecture. It was, centuries ago, buried beneath the sands of the encroaching desert, and in our own day it has been exhumed in the midst of Bedouins too wild to be interested in the wondrous revelations of its entombed mysteries. Temples and buildings, vast and magnificent, dating probably fifteen centuries before the Christian era, and preserved by burial from decay and spoliation, may to-day be seen in great perfection. "The pyramids themselves," as Fuller quaintly says, "doting with age, have forgotten the names of their founders." There, too, in "old, hushed Egypt and its sands," on the banks of the Nile, are the massive ruins of Thebes (Diospolis), the city of Homer's "hundred gates," antedating secular history, and claimed by the Egyptians to have been their first capital, as undoubtedly it was one of the oldest cities of the historic world.' As the eye runs along the wreck of ruined temples, the mind runs back through the Egypt of the Ptolemies to the Egypt of the Pharaohs, three thousand years ago, when Thebes was in its glory and its pride. But in the midst of these stupendous remains of an early civilization, the product of forced labor and arbitrary taxation, we find but little evidence of their municipal history and organization. The chief lesson they teach is that they were the centres of great wealth and power in the ruling classes, and that the people, who constitute the true wealth of modern cities, were at the absolute disposal of their masters, bound down and degraded by servitude and oppression. § 2. Notwithstanding the people of GREECE were of a common blood, language, and religion, Greece was never politically united. nicipal institutions in this country is entirely subordinated to the legal and strictly technical view. In the course of the present chapter and elsewhere, the sources of historical information are more or less indicated, and the author specially refers with pleasure to the valuable series of publications on Local Government in the United States, in The Johns Hopkins University Studies, and to the works of Professor Goodnow, Comparative Administrative Law, New York, 1893, and Municipal Home Rule, New York, 1895, and of Albert Shaw, Municipal Government in Continental Europe, 1895, and Municipal Government in Great Britain, 1895. "Not even all 1 Iliad, IX. 381. the revenue of Egyptian Thebes of the hundred gates, whence sally forth two hundred warriors through each with horses and chariots." Lang's Translation. "Thebes was at the height of its power and prosperity under the Kings of the twenty-second dynasty, probably about 930-900 B. C." Leaf, Comp. to Iliad, p. 182. Political power resided not in a number of independent states, but in a large number of free, independent, and autonomous cities, with districts of country adjoining or attached to them. Each city, except in Attica, was sovereign; was the sole source of supreme authority, and possessed the exclusive management of its own affairs. The citizen of one was a foreigner in the others, and could not, without permission or grant, acquire property, make contracts, or marry out of his own city. The Grecian heart always glowed with patriotic fervor for the city, but it rarely, except in times of great common danger, kindled with a love for the whole country. Although, according to Chancellor Kent," the "civil and political institutions of some of the states of Greece bear some analogy to the counties, cities, and towns in our American States," the analogy, it must be confessed, is remote, uncertain, and without practical value in the inquiries we are to prosecute. § 3. Municipal Corporations, as well as Private Corporations, were familiar to the Roman Law. The learned Savigny, under the style of Juristical Persons, has traced the origin and stated the nature of Corporations in the Roman law with great clearness. It corresponds in essentials almost exactly with our own conceptions of corporations. Thus, he says, "The essential quality of all Corporations consists in this, that the Subject of the right does not exist in the individual members thereof (not even in all the Members taken collectively) but in the ideal Whole; hence, by a change of an individual member, indeed even of all the members, the Essence and Unity of a Corporation is not affected." Communities, towns, and villages are, he says, mostly older than the State, and have therefore a natural existence. Their Unity is of a geographical character, since it is based upon the local condition of dwelling and ownership of land. The governing body represents the collective Whole. Such corporations are to be distinguished from the State, since the State is not the subject of private law relations. The communities (i. e., municipal corporations as we style them) "had on the one hand need of property, and the opportunity for its acquisition, but, on the other hand, such a dependent character that they could be arraigned (unlike the State) before a court of justice." In the required sanction of the State to their existence, in the power of the majority, in responsibility for the obligations and frauds of 'Hearn, Government of England, chap. xvii. p. 467; Grote, Hist. Greece, ii. 302; ib. 348. 2 3 Jural Relations, by Rattigan, § 86. • Ib. § 86. 5 Ib. § 87; post, § 970. • Ib. § 97. 2 their representatives,' in their property rights, it is instructive as well as interesting to observe the strikingly close analogy and even identity between the concept of the Roman Corporations and our own. Other aspects of the subject may briefly be noticed. "To conceive," says a modern author, "of ancient Rome as the capital of Italy in the same sense that London is the capital of England, or Paris of France, would be a great mistake. London and Paris are the chief cities of their respective countries, because they are the seat of government. The people of these cities and their surrounding districts have no privileges superior to those of other English or French citizens. But the city of ancient Rome, with her surrounding territory, was a great corporate body or community, holding sovereignty over the whole of Italy and the provinces. None but persons enrolled on the lists of the tribes had a vote in the popular assemblies or any share in the government or legislation of the city." The common division of civic communities established by the Roman government was three, prefectures, municipal towns, and colonies. The prefectures did not enjoy the right of self-government, but were under the rule of prefects, and the inhabitants were subjected to the burdens without enjoying the privileges of Roman citizens. But with the municipal towns it was different. They at length received the full Roman franchise; "and hence," says the writer just named, "arose the common conception of a municipal town; that is, a community of which the citizens are members of the whole nation, all possessing the same rights, and subject to the same burdens, but retaining the administration of law and government in all local matters which concern not the nation at large," a description which answers almost perfectly to municipal organizations in England and America. The colonies, composed of Roman citizens, were established by the parent city, sometimes to reward public services, but generally as a means of securing and holding the country which had been subdued by Roman arms. The constitution of these colonies, and the rights of the citizens and communities composing them, varied; but it is not necessary for our purpose to trace these differences. The colonies were obliged to provide for the erection of a city, and cities thus erected were called municipia. We thus perceive the justness of the observations of a distinguished historian and statesman, who says that "the history of the conquest of the world by Rome is the history of the conquest 1 Jural Relations, by Rattigan, §§ 92, 2 Ib. §§ 90, 91. 95. 3 Dr. Liddell, Rome, chap. xxvii. § 8. |