CHAPTER XXII LOCAL GOVERNMENT I. RELATION OF LOCAL TO CENTRAL GOVERNMENT 407. Local and central government. Local and central government may be distinguished in several fundamental ways.1 The difference between local and central government is not a matter of area or of population. The distinction lies partly in their relative constitutional positions, and partly in the respective nature of the public services performed. In regard to the first point, it is true of most independent states that the local government derives its powers from the central government, and holds them at the pleasure of the latter. . . . The other point of distinction between local and central government consists in the different nature of the services accomplished. This requires some further explanation. The various functions performed by the agencies of the state for the benefit of the citizens will roughly fall into two classes. Some of them will be in the interest of the community generally, and the benefit thereby effected will not be assignable to any single part of the country. . . The whole class of functions thus indicated will properly fall within the province of the central government. But in addition to these, there are other state activities (for it must be recollected that both local and central government form a part of the organization of the state) of quite a different character. Here the benefit to be conferred only affects a small portion of the community, and is obviously assignable to a particular area. . . . Here it seems reasonable that the advantage, the cost, and the control of the enterprise should be looked upon as solely the concern of those who are affected by it. . . . In spite, however, of the obvious nature of the general distinction, the functions of local and central government shade and blend into one another. 408. Degrees of centralization. The relation existing between central and local organizations falls into three general types. Naturally and historically the various subdivisions should exercise full local powers, subject only in general matters to the larger area. . . . As, 1 By permission of Houghton Mifflin Company. however, states have developed policies of centralization, they have interpreted their general powers more broadly, and have pressed their authority more and more vigorously on subordinate administrative areas. This has usually been under plea of military necessity or of needed uniformity or of general welfare. As the strength of this tendency varies with conditions, the degree of centralization varies in each particular state according to the dominant theories of militarism, uniformity, and general welfare. On the whole, three grades of centralization may be noted: (1) That in which the subordinate areas or bodies politic are clearly regulated and supervised directly by the national administration through its own officials, as in France. (2) That in which the subordinate areas are regulated and supervised indirectly by the national administration, as in England, where in many matters a uniform system is adopted, but the administration of it is left to the local administrative bodies. (3) That in which the subordinate areas practically regulate all their local affairs without much interference from the national administration, as in the relation of Great Britain to its autonomous colonies, and in the United States of America. No state conforms entirely to any one of these types; the most centralized government may allow large local powers in some matters and the most decentralized may employ large general powers in such affairs as war, diplomacy, and taxation. The test is made by the theoretical principle on which government acts, irrespective of whether at any particular time it seems expedient to use many or few powers of regulation. II. COMMONWEALTH GOVERNMENTS 409. The Swiss cantons and the union. The Swiss constitution contains distinct traces of confederation, clearly stating the doctrine of divided sovereignty. The Constitution of Switzerland rests upon federal foundations such as our own government had during the first half century of its existence rather than upon national conceptions such as have dominated us since the war between the States. The Swiss Constitution does indeed expressly speak of the Swiss nation, declaring that "the Swiss Confederacy has adopted the following Constitution with a view to establishing the union (Bund) of the Confederates and to maintaining and furthering the unity, the power, and the honor of the Swiss nation"; and not even the war between the States put the word nation into our Constitution. But the Constitution of Switzerland also contains a distinct and emphatic assertion of that principle of divided sovereignty which is so much less familiar to us now than it was before 1861. It speaks of the Confederation as formed by "the people of the twenty-two sovereign Cantons,” and it explicitly declares that "the Cantons are sovereign, so far as their sovereignty is not limited by the federal Constitution, and exercise as such all rights which are not conferred upon the federal power"; and its most competent interpreters are constrained to say that such a constitution does not erect a single and compacted state of which the Cantons are only administrative divisions, but a federal state, the units of whose membership are themselves states, possessed, within certain limits, of independent and supreme power. The drift both of Switzerland's past history and present purpose is unquestionably towards complete nationality; but her present Constitution was a compromise between the advocates and the opponents of nationalization; and it does not yet embody a truly national organization or power. 410. The German Empire and the individual states. The nature of the German Empire and the constitutional position of its component commonwealths are indicated in the following: 1 The German Empire is not a league of princes. It is a State constructed out of States. In becoming a member of the Bund each several State gave up its sovereignty, receiving therefor, as Bismarck expressed it, a "share in the joint sovereignty of the Empire." Since there can be no limitation of sovereignty and no division of it, these States are not sovereign "in their own sphere." But the individual State takes a part in forming the power that stands over it. The German States are not subjected to the domination of any one of them, nor to any foreign sovereign, but rather to a corporate State builded out of themselves. "The German States are as a totality sovereign." Sovereignty, according to the German jurists, is not an essential element of a State. It may constitute the basis of recognition in international law, but from the standpoint of constitutional law it is an insufficient test of statehood. The true mark of a State consists in its possession of original and underived power. This mark belongs to each of the German States. There is a large field in which the State is left free to govern itself. The powers of the Empire are specifically defined. It may enlarge those powers, but until it does the State enjoys a free hand. This independence is not granted to it by the Empire. It forms no part of the imperial powers. It is State power, pure and simple. The State wields it as of 1 Copyright, 1906, by The Macmillan Company. right and not by concession. It existed before the founding of the Empire. It survives that act. It is that autonomous area of power belonging to the State which has not yet been invaded by the Empire. 411. Variety and unity of commonwealth organization in the United States. In some respects the American commonwealths exhibit striking similarities; in other respects, marked differences. The cardinal principle of the present Union is that, except in matters distinctly regulated by the federal constitution, each state is free to govern itself. Hence great variety in the form and the functions of the state governments. . Such differences are not all accidental; some of them go back for centuries of the present forty-five states eighteen formed parts of English colonies before the Revolution, and show distinct traces of colonial tradition in their governments; another group of states, from Louisiana to California, bears the impress of former Spanish and French law. Other communities, such as Arkansas and Michigan, have been founded by those settlers who first came in and brought with them familiar law from the old states. Local conditions also account for and require a great variety of legislation: lumber states, like Maine or Wisconsin or Washington, have special laws governing forests; stock-raising states, like Colorado and Texas, legislate on wire fences and branding cattle; states with large areas of waterless lands, like Nebraska and Utah, provide for irrigation; communities like New Jersey, with hundreds of thousands of foreign immigrants engaged in manufactures, need different legislation from a community like Vermont, with a rural American population. On the other hand, throughout the Union the state governments are very much alike, and legislation rests more on a common basis than appears on the surface. All the governments have three departments, each intended to act independently of the other two. In all, the legislature, of two houses, is the repository of governing power not otherwise granted or expressly withheld. Its legislative work is supplemented by the traditions of English common law. Most of the states elect the chief financial and other administrative and executive officers. All have a series of courts, culminating in a single supreme court. In every state large areas of public power are transferred by the legislatures to cities and localities. The legislation of the states is freely borrowed one from another; and the courts quote and follow decisions of their neighbors. Nevertheless, great confusion comes from the variety of criminal and civil legislation. The advantage of the variety of state legislation is that the people of each state establish the system and make the laws which they think best adapted for themselves, and therefore the easiest to execute. III. RURAL LOCAL GOVERNMENT 412. Centralization of local government in France. The reasons for the lack of local self-government in France may be stated as follows: 1 An explanation of the centralization of the state entails a brief survey of local government; and here we meet with a deeply rooted French tradition, for centralization was already great under the old régime, and although the first effect of the Revolution was to place the administration of local affairs under the control of independent elected bodies, the pressure of foreign war, and the necessity of maintaining order at home, soon threw despotic power into the hands of the national government. Under Napoleon this power became crystallized in a permanent form, and an administrative system was established, more perfect, more effective, and at the same time more centralized than that which had existed under the monarchy. The outward form of the Napoleonic system has been continuously preserved with surprisingly little change, but since 1830 its spirit has been modified in two distinct ways: first, by means of what the French call deconcentration, that is, by giving to the local agents of the central government a greater right of independent action, so that they are more free from the direct tutelage of the ministers; second, by a process of true decentralization, or the introduction of the elective principle into local government, and the extension of the powers of the local representative bodies. But although the successive rulers of France have pursued this policy pretty steadily, the progress of local selfgovernment has been far from rapid. One reason for this is the habit of looking to the central authorities for guidance in all matters. Another is a fear on the part of the government of furnishing its enemies with rallying points which might be used to organize an opposition, a fear that takes shape to-day in provisions forbidding the local elected councils to express any opinions on general politics, or to communicate with each other except about certain matters specified by law. A third cause of the feeble state of local self-government is to be found in the fact that the Revolution of 1789 destroyed all the existing local divisions except the commune, and replaced them by artificial districts which have never developed any real vitality, so that the commune is the only true 1 By permission of Houghton Mifflin Company. |