USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume III > Part 2
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spective |respectful] manner " (Mass. Col. Laws, 1660, ed. Whitmore, 50). The right to vote, of course, was reserved to the freemen. The General Court was always chosen by freemen only. But the rest of the community was carefully and prudently deprived of every pretext for banding together as against the Town or Colony. The Town Meet- ing was the public platform where anything could be ventilated that touched the community. This same right is now exercised by the city council, the direct successor and heir of the historic town meeting.
THE MASSACHUSETTS TOWN.
A kindly star stood over the birth of the Massachusetts town. The Massachusetts town was not created, like a city, by the General Court, but was born at a happy moment. The supreme authority was glad to acknowledge the town, and to help in making it an instrument for good, both to the town itself and to the country. Our counties are artificial corporations, and have never lost their artificial character; the town was the immediate neighborhood of men and women that had one mind, one church, and one common endeavor. A General Court not com- posed of the Massachusetts Company might have laid out towns and regulated their settlement; the General Court of Massachusetts recog- nized what the early founders of towns did for themselves, and added its approval and aid. The first comers of the Massachusetts Company settled where they thought best, and always made a church the centre of their establishment. A settlement of ten freemen might send a deputy to the General Court, and every town was free to distribute the town lands, the General Court not being able to make allotments throughout the Colony. It tried to establish boundaries between towns, but acted only in appealed cases. So it fell to many of the Company to become founders of towns as well as of the commonwealth; and to cach town fell the inestimable privilege of allotting its forests and fields to the freemen or those fit for freedom. At the same time each town was a church, and every settlement of fifty householders had a school. A happier beginning of towns the world had not seen. Nor has the star set that stood over the infant Boston and sister towns.
As early as 1635 the General Court gave the towns of Massachusetts a general charter: "The freemen of every town, or the major part of them, shall only [exclusively ] have power to dispose of their own lands and woods, with all the privileges and appurtenances of the said towns, to grant lots, and make such orders as may concern the well ordering
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of their own towns, not repugnant to the laws and orders here estab- lished by the General Court; as also to lay mulets and penalties for the breach of these orders, and to levy and distrain the same, not exceed- ing the sum of twenty shillings; also, to choose their own particular officers" (1 Mass. Rec., 172). Under this wise law, most of the towns were founded without the special aid of the colony. Groton, one of the most interesting of all towns, was established under a special grant from the General Court (3 Mass. Rec., 388), as were others. The Groton petitioners were required to look out "for the speedy procuring of a godly minister among them," but however essential the ministry, and however close the union of church and town, the civil authority was distinctly superior to the spiritual powers. New churches required the approval of three magistrates and the ministers directly interested in a possible rival ; and the Body of Liberties, about 1641, contemplated that no church censure should affect the civil standing or office of the offender (1. e., 47). Every church was a pure democracy, entirely in- dependent, and the equal of every other church, yet subject to the civil power, the supremacy of which was in fact never questioned, at least not with impunity. When for any reason, spiritual or litigious, a new church was to be formed by seceding members, the consent of the town meeting and the County court was required, under severe penal- ties (see the order of 1679 in 5 Mass. Rec., 213). The power of the elergy was moral and intellectual, and it was gladly recognized, in its proper exercise, by the people. It was the intellectual leaven for the entire community, doubly useful in an aristocratie society. The church is democratic. Society is not.
THE TOWN OFFICERS.
The principal officer in each town, at the beginning, was the con- stable. The constable was an inheritance from England; the select- man was a product of the Massachusetts town and its peculiar necessities. The term " selectman " does not appear in the Body of Liberties, 1641, while the constable was a familiar figure from the very outset. He was essentially a town officer, and the original collector of taxes. In 1638-9 a general oath was prescribed, the constable, who was chosen by the town for one year, swearing that he would "carefully intend the preservation of the peace, the discovery and preventing all at- tempts against the same," and that he would duly execute all warrants issued by lawful authority (1 Mass. Records, 252). He was the chief
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executive officer of the town in all police matters; he was to " whip or punish any to be punished by order of authority," to arrest offenders, to supervise the licensed sellers of beer or wine, to provide standard weights and measures, to serve as election officer, to levy all fines, to employ night watchmen, to serve as coroner, and not to refuse the office of constable "on penalty, of five pounds, and, if in Boston, ten pounds." Every town was required to have at least two constables. It was not an accident that the duties of constables were the first to be codified by the General Court (see the code in 4 Mass. Records, part 1, 324-1). His badge of office was "a black staff, of five foot long, tipped at the upper end about five inches with brass" (Col. Laws, 1660, ed. Whitmore, 140). In short, during the Colony period the con- stable was to Boston all that is now performed by the constables of the City, the sheriff of Suffolk County, and the Board of Police. History tells us that in previous centuries the office of constable, both in France and England, was truly exalted. In Boston and Massachusetts a mere shadow remains. From the beginning it was the least popular of all offices.
While the constables of Boston were town officers by election, and the usual medium of communication between the public authorities and the inhabitant, they were virtually state officers executing state law. The selectmen were primarily and essentially town officers, dealing with town affairs, and but indirectly concerned in the execution of state laws. The name "selectmen " originated in Charlestown. The Bos- ton Town Records first used it on November 27, 1643 (2 Boston Record Comm., 76). Their first election by that name took place in Boston on December 10, 1645, when they were chosen also for the first time to serve a whole year (1. c., 86), the previous elections having been for six months. The first entry in the Town Records (1. c., ?) calls them " the 10 to manage the affaires of the towne." They were called, also, overseers of the town's occasions, townsmen, or deputies. The Body of Liberties, 14, called them "select persons," in 1641, and limited their number to nine. A year later the General Court ordered "that the selected townes men have power to lay out particular and private wayes concerning their owne towne onely," damage, if any, to be paid by the said " townes men," or, in case this was not satisfactory, " then by ? chosen by the townesmen & two by the party " (2 Mass. Records, 4). The Colony Laws of 1660 (ed. Whitmore, 157) changed "the selected townes men " to "the Select Townes-men," and "the said
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townes men " to " the sayd Select men," a form apparently preferred by the general laws, while the Boston men soon spoke of "selectmen " and wrote as they spoke. It was the special business of the selectmen to deal with the " prudential " affairs of the town. The constable car- ried out orders, both general and special; the selectmen gave orders as well. The constable was bound by the letter of the law ; the selectman was to consult prudence and equity as well as the letter of the law.
The Boston city charter (Acts of 1854, chapter 448, section 2) vests in the City Government "the administration of all the fiscal, prudential, and municipal concerns of said city." The same term "prudential " is found in the Body of Liberties, 66: " The freemen of every township shall have power to make such by-laws and constitutions as may con- cern the welfare of their town, provided they be not of a criminal, but only of a prudential nature, and that their penalties exceed not 20 shil- lings for one offense " (Col. Laws, 1660, ed. Whitmore, 47). In 1642 the General Court used the same term in alluding to "the chosen men " or selectmen of every town, and described them as "appointed for managing the prudential affairs of the same " ( Mass. Records, 6). In 1646 the following was called a prudential law: "Every town- ship, or such as are deputed to order the prudential affairs thereof, shall have power to present to the Quarter Court all idle and unprofit- able persons, and all children who are not diligently employed by their parents " (3 Mass. Rec., 102). The term passed into the general laws of the Colony, the Province, and the Commonwealth, and still survives. The Colony Laws of 1660 (ed. Whitmore, 195-6) authorize towns to " make such laws and constitutions as may concern the welfare of their town, provided they be not of a criminal, but of a prudential nature, and that their penalties exceed not twenty shillings for one offense, and that they be not repugnant to the public laws and orders of the country ;" also, "to choose yearly, or for less time, a convenient num- ber of fit men to order the planting and prudential affairs of their towns, according to instruction given them in writing." The term ap- pears to be the coinage of Nathaniel Ward, the "Simple Cobler of Agawam," and was first used as the opposite of " criminal." Criminal and other matters reserved for state jurisdiction were not touched by the selectman, who was confined to town affairs, many of which were not provided for in the bylaws or orders, yet called for action. These matters were to be prudently dealt with by the selectmen, and came to be called the prudentials of the town. When the law was silent, and
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the town meeting had not spoken, the selectmen were yet bound to act where the welfare of the town was concerned; they administered also the bylaws of the town and the general laws, except those relating to law courts, crimes, and state affairs. These municipal interests were aptly called prudential affairs, as distinct from affairs of the common- wealth, on the one hand, and from those confided to constables, on the other. The Massachusetts towns still have the right to make "such necessary orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare . for directing and managing the prudential affairs, preserving the peace and good order, and maintain- ing the internal police thereof " (Mass. Publ. Stat., ch. 27, sec. 15). The terms "selectman " and "prudential " mark the transition from English to Massachusetts law, and show how little our towns, their prudential affairs and selectmen, owe to English precedents. A new thing usually finds for itself a new name. Yet the men who managed English municipal corporations in the time of Elizabeth and James I. were usually called "select " bodies, and the founders of Massachusetts knew that term.
In the beginning none but freemen could serve as constables, select- men, or other town officers. The order of the General Court, passed on March 3, 1635-6 (1 Mass. Records, 112), is sufficient evidence on this point. In 1647 "inhabitants" who were not freemen, but had taken the oath of allegiance, and were at least twenty-four years of age, were made eligible for town offices, and received the right to vote, but a majority of the selectmen and of all companies must be freemen (2 Mass. Records, 19?). Voting inhabitants were allowed, also, to take part in the distribution of lands, which was the chief business of towns (Col. Laws, 1660, ed. Whitmore, 195); but later on, apparently in 1658, these inhabitants, not freemen, were required in addition to be householders and rated "at twenty pound estate in a single country rate " (1. c., 196). In 1670 this property qualification of voting inhabit- ants not freemen was raised to eighty pounds (Col. Laws, 1672, ed. Whitmore, 148). In 1680-1 the property requirement was abolished, and persons who had served as town officers were given the municipal suffrage during life (5 Mass. Records, 306). The Province charter of 1691 did away with the patent and its freemen, and gave the suffrage to freeholders and other inhabitants with a property qualification. Boston had meanwhile become a prosperous town of some 5,000 inhab- itants, and the capital of a happy commonwealth. The foundation of future greatness had been laid so well that it still lasts.
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It is this which entitles the colonial period of our municipal institu- tions to peculiar respect. To belittle those days, seems ungracious and unfilial; to measure them by the ideas and achievements of our time, seems to be little less than impertinent. Noble minds will be glad to find in the institutions of our great city the fruit which it took centuries to bring forth, and to remember with grateful regard the early his- bandman that cleared the ground and planted the seed, in order that future generations might be happy in their great state and splendid city. If the founders failed in one thing more than another it was in regard to streets and highways. The land hunger of the founders led them into serious errors. Towns were settled at pleasure, and each town distributed its lands indiscriminately. The highways between towns, and the streets in towns, were an afterthought. In consequence Boston suffers today, though millions have been spent to correct the error of the past. This error was fundamental. Each town was re- quired to lay out its own streets, and in 1634-5 the Court of Assistants was required to lay out the highways between towns. Of course, they failed; and then the towns were required to lay out and construct country highways. In 1642 the selectmen were authorized to lay out all town ways; the laying out of highways between towns was to be done upon an appeal to the county courts. This did not answer, and as early as 1649 the General Court took a hand in a special order (2 Mass. Records, 271). As the expense of highways was borne by each town, the road making was bad, the planning worse. The cost of the town ways was borne by abuttors, the result being narrow and inconvenient alleys, not deserving the name of streets.
In 1641, upon a threat from the General Court, the highways in Boston had the benefit of every team in town for one day; the "richer sort of inhabitants " were to supply one man for three days, the "men of middle estate " for two days, " the poorer sort " for one day (? Bost. Record Comm., 62). In 1650 the repair of the highway to Roxbury was farmed out for seven years, at £15 a year, " to be sufficient for carte and horse " (1. e., 99). And as late as 1700 a happy land owner reported to the town that he could not get to his land, there being no way. The town aeted upon the old tradition that "every allotment should have a way laid out to it by a committee chosen and authorized by the town for that purpose " (? 1. c., 240, 242). The towns were first settled, and then a highway found to other towns; in the towns the lands were distributed first, and the ways to them laid out after-
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wards. Penn and Pennsylvania showed how to do these things better, the roads and ways being laid out first, and the lands occupied after- wards. Massachusetts was less wise, partly perhaps because the soil was naturally adapted to good roads, and for that reason permitted neglect; but the consequences have been serious, in Boston they con- tinue to be embarrassing. At an early day Massachusetts shipping found its way wherever there was a promise of profit; as a road builder the colony was a failure. It seemed wholly indifferent to a highway that might have bound Plymouth more closely to Boston, or Connect- icut more closely to Massachusetts. Indeed, the road-building age came very much later, and the great economic and moral value of country roads and easy commerce between towns is still underrated. Yet the wealth of a community depends largely on local traffic.
TOWN VS. COUNTY.
The Massachusetts Act of 1854, chapter 448, popularly known as the City charter, prescribes that "the City Council [of Boston] . . may choose a register of deeds whenever the City shall be one county." This clause is still valid, except that the register of deeds would be ap- pointed by the mayor, and confirmed by the board of aldermen, were Boston and Suffolk County now united in one. The charter of 1854 merely repeats the language of the original City charter, which was signed in 1822. And the expectation so expressed was uttered as early as 1677, when the Town of Boston instructed its deputies in the General Court to see that Boston might be a corporation, a county as well as a town. A similar petition, " in the name & in the behalf of the towne of Boston, " was discussed by the General Court in 1650, when the propo- sition was rather encouraged, provided a suitable plan were presented in terms. The ideal in the minds of both Boston and the General Court was to make the capital of Massachusetts what London was to England. This was not realised, though the Boston City Government of today has the power of County Commissioners, including that of laying County taxes, in consideration of which right Chelsea, Revere, and Winthrop, though in Suffolk County, do not pay County taxes and have no County property. Repeated efforts have been made to merge the whole county in Boston, but they have failed. Yet the interesting fact remains that Boston, always ambitious, has generally desired to be more than part of a county, and less than subject to County as well as State authority. Unconsciously, perhaps, the Boston of 1893, in aspiring to metropolitan
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grandeur, remembers that from the beginning Boston was paramount in Suffolk County. All that is now known as Suffolk County, except Charlestown, Roxbury, and Dorchester with South Boston, was a part of Boston from 1630, or very early days, to 1139, when Chelsea was set off. But Suffolk County, in the same year, included Roxbury and Dor- chester, Hingham and Hull, the whole of the modern Norfolk County, and until 1731 had included a good part of Worcester County, beside Woodstock, now in Connecticut.
It was Boston jealousy of County authority that led to the establish- ment of the City as a corporation. As soon as Suffolk County was es- tablished, in 1643, it was given a County Court, and this Court was given jurisdiction in many matters that concerned the Town of Boston very closely. The County Court had charge of the house of correction, and appointed its master; it performed the judicial duties now vested in the Overseers of the Poor and the Commissioners of Public Institutions; it granted liquor licenses; and was the executive body superior to the Selectmen. As the County Court met but four times a year, one can imagine the difficulties that would arise in the administration of many Town affairs. This difficulty increased when the Colony became a Province; for as early as 1692 (1 Prov. Laws, ed. Goodell, 66) the Gen- eral Court provided that all orders and by-laws of towns should be pre- sented to the justices in quarter sessions, being the previous county courts, and should not be binding until approved by said courts, the judges of these courts in Suffolk County being appointed by the Gov- ernor, with the advice and consent of the Council. This law stood un- til 1822. The last edition of "The By-Laws and Orders of the Town of Boston," issued in 1818, carries on its very title-page the statement that the ordinances of the Town are " duly approved by the Court of Sessions." Such an arrangement led to unavoidable delays and un- certainties, -the very thing to be avoided in the administration of affairs, where prompt action is the condition of success and public ap- proval.
To put an end to these delays and uncertainties in administration, the Town of Boston became a City, and the General Court passed the famous Act on the Administration of Justice within the County of Suf- folk, section 11 of this Act, which was signed on February 23, 1822, providing that "The Court of Sessions, within and for the County of Suffolk, be and the same is hereby abolished: And the Mayor and Aldermen of the City of Boston, for the time being, shall have all the
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powers, and perform all the duties, which before, and until the passing of this Act, were had and performed by the Court of Sessions, except- ing as otherwise provided for." In other words, the executive author- ity of the Town of Boston, as far as vested in the cumbersome Court of Sessions, which met four times a year, was transferred to the Mayor and Board of Aldermen, who were prepared to act every day in the year. For the first time in its history of nearly two centuries the municipal government of Boston received in part the benefit of the great principle laid down in the Constitution of the Commonwealth (Declaration of Rights, art. XXX): " The legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and ex- ecutive powers, or either of them."
The sequel showed that it would have been better, had this distribu- tion of power been fully applied to the government of Boston. The memorable Acts of 1822 separated the judiciary from the legislative and executive branches of the municipal government, and so made a city government possible. The City Council, and especially the Board of Aldermen, were not fully shorn of executive power until 1885. It took two hundred and fifty years to apply to Boston the rule laid down by John Locke that administrative, legislative and judicial duties, or any two of them, should never be exercised by one body, if government is to be free and pure. The same principle had been expounded nearer home by the immortal John Adams. Yet what is so simple in princi- ple, is rarely and reluctantly applied to the government of a great city, as if a great city could be well governed on principles different from those applied to a country that means to be both great and free. The history of Boston as a municipality is an interesting and deeply instruc- tive illustration of the same principle of government which Montesquieu considered to be the chief glory of the English constitution, -a principle still further developed in the government of the United States. Under this principle the law-making and money-appropriating power, the ex- ecutive, and the administration of reasonable justice, are a check upon each other, yet bound to cooperate, in order that the citizen may de- rive from government the highest good, while bearing the least burden compatible with the legitimate interests of the body politic, outside of which there is neither citizenship nor, perhaps, property, neither peace nor publie morality. Government is constituted in order that man may
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be as free, as powerful, and as ambitious as the government of which he forms part.
BOSTON THE CAPITAL.
The seventeenth day of September, 1630, is commonly mentioned as the birthday of Boston, when it was first named by the Governor and Company of Massachusetts Bay, under the patent of 1629. On the 19th of October, 1630, the first General Court on this side of the Atlantic was held in Boston. It has been the capital of Massachusetts since then, not merely in name and by law, but in feeling and fact. Until 1198 its town house was the capitol of the State, and from the begin- ning the most eminent men of the commonwealth have been glad, also, to serve the city or town. The Town Records preserved to us begin on September 1, 1634, with the name of Governor Winthrop, who served as one of the Boston selectmen, and the first entry is "only a declara- tion of the Common Lawe." The General Court, later on, resolved formally that the Governor " make his abode in Boston . . that so he may be the more serviceable to the country in generall " (3 Mass. Rec -- ords, 374). With few exceptions the General Court has always met in Boston, at the beginning as the guest of the First Church, in which town meetings were held as well, the church and the town being one. During the Province period and the second half of the Colony, as soon as Boston had a town house, the General Court was the guest and friendly partner of the tov n. Even since Boston became a city, mem- bers of Congress were glad to serve it as city officers. This municipal spirit was marked from the outset.
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