USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume III > Part 3
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When the first town house was built, on the spot where the Old State House now stands, at the head of State street, in the place previously occupied as a market, the General Court contributed " Boston's propor- tion of one single country rate, "-one penny in the pound of assessed valuation, -on condition that the said house should be forever free for the keeping of all Courts, the General Court included (+ Mass. Records, part I, 327). When repairs were ordered in 1667, the selectmen of Bos- ton could charge half the cost to the Commonwealth, one-quarter to the County, and the remainder to the town of Boston (4 Mass. Rec., part II, 351). A similar arrangement was had in 1671 (1. c., 486). This illustrates the very friendly relations between Boston and Massach11- setts. Yet the Commonwealth has always guarded its supremacy. Only in 1681 Boston received permission to send three deputies to the
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General Court, while every other town sent two (5 Mass. Records, 305). Again and again Boston asked to be made a city, and was always re- fused. It asked that at least the county and Boston be made one; in- stead the county authorities were given the right to hear cases appealed from the Boston selectmen or town meeting; but this cruelty was in- flicted by the Province, in 1692 (1 Province Laws, ed. Goodell, 66, 136). Professional lawyers, in particular, have not been the firmest friends of city charters in Massachusetts, and our legislation has been kinder to towns than to cities. Indirectly the great ambition of Bos- ton may have strengthened this strange sentiment, which treats a town as an ideal government, and a city as a government that needs watching.
Boston as a town or city has always taken a lively interest and an active part in larger affairs. Here is an entry from the Town Records of January 21, 1684: " At a meeting of the freemen of this town, upon lawful warning. Upon reading and publishing his majesty's declara- tion, dated 26th of July, 1683, relating to the Quo Warranto issued out against the charter and privileges claimed by the Governor and Com- pany of the Massachusetts Bay in New England: It being put to the vote, Whether the Freemen were minded that the General Court should make a full submission and entire resignation of our charter and privi- leges therein granted, to his majesty's pleasure, as intimated in the said declaration now read: The question was resolved in the negative, nc- mine contradicente" (? Boston Rec. Comm., 164). The same proud spirit induced the town as early as 1659 to separate town and general elections. "It being judged convenient that the freemen should meet distinctly as to what concerns them, it is therefore ordered that the se- leetmen shall for the future appoint the times of meeting for the free- men distinct from the general town's meetings" (2 Boston Record Comm., 149). The freemen alone voted for the General Court; but a more liberal suffrage in town affairs had prevailed since 1647. Since 1660 the municipal and general elections in Boston have been held on separate days, and the separation is wise, as it prevents the general election from being influenced by the municipal contest. Voters usually feel stronger on what they know than on what they believe; and the financial interests involved in a Boston city election are at least fourfold the sums expended by Massachusetts in the course of a year. It was convenience and pride that led Boston, in 1659, to separate its town and general elections.
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CONSTITUTIONAL HISTORY.
BOSTON SELECTMEN.
The character of the Boston selectmen is significant, and shows that municipal pride is always conservative. First in the list is the incom- parable John Winthrop; his great opponent, Harry Vane, did not serve, though he was made governor. But the incorruptible Bellingham, who served thirteen years as Deputy Governor, and ten as governor, was eight times chosen selectman. He was the last survivor of the original patentees named in the charter of 1629. Governor Leverett was chosen selectman in 1651; he was justly popular for his military character, but was defeated for the governorship when he accepted the knighthood from Charles II. His father, Thomas Leverett, had served as select- man before him. John Coggan was elected, although he practised as an attorney. Of Hutchinsons there were, in Colony days, William, Ed- ward, and Elisha, to be succeeded, during the Province period, by the elder Thomas, William, and Thomas, the governor, thus beginning with the husband of Mistress Ann, and ending with the remarkable his- torian who now receives tardy justice. Elisha Hutchinson was joined by Elisha Cooke, another selectman, in making a desperate defense of the original patent. Among the great families of Massachusetts the Hutchinsons should be named with the Winthrops and the Quincys. William Coddington, twice chosen selectman, was treasurer of the colony, founded the colony on Rhode Island, and served it as governor. William Hibbens served for years as selectman and assistant. James Penn was the first marshal-general of the colony; William Tyng was treasurer of the colony, and nine times chosen selectman. John Hull filled the same positions, and is the father of the Massachusetts coinage. Thomas Savage was a selectman, and six times speaker of the house of deputies. Thomas Clarke was thrice selectman, and five times speaker. Robert Keayne, finally, was the father of the first town house in Bos- ton, of the artillery company, and of the longest will ever filed in Mas- sachusetts. One is tempted to think that Massachusetts was founded by the best Englishmen when England was at her best; that Boston attracted what was best in Massachusetts; and that the best men of Boston served as selectmen. Most of the selectmen were merchants; in 1669 all were. It would have been wise to give to such a town the self-government of a city; but it was not to be.
The Boston selectmen acted with much dignity, and soon outshone all other local officers. As early as 1637 the town voted to pay all the charges at the selectmen's meetings ( Boston Record Comm., 20); in
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1641 the constables, who collected the tax, were ordered to " pay unto Robert Turner for diet for the townsmen [the selectmen] £2 18s." (1. c., 63); shortly after the order was to " pay unto Robt. Turner for dyet, beere, and fire for the select men, 18s." (1. c., 68). This sort of expense continued until 1884, when the " act to improve the civil service of the Commonwealth and the cities thereof " provided that no city in the State should pay any bill incurred for " wines, liquors, or cigars, " and that refreshments for a member of the city government should not ex- ceed a dollar a day, if paid by the city (Acts of 1884, ch. 320, sec. 13). The selectmen imposed fines long before the law gave them authority to do so (1. c., ?), and notified " all that have businesses for the towns- men's meeting to bring them in to Mr. Leveritt, Mr. Willyam Ting, or to Jacob Elyott, before the town's meetings " (1. c., 46). A surprise of the selectmen by demagogues was thus prevented. As early as 1651 the Selectmen issued an order "that if any Chimney be on fyer, so as to flame out of the top thereof, the Partie in whose possession the Chimney is shall pay to the Tresurer of the Towne, for the Towne use, tenn shillings " (2 Bost. Rec. Comm., 106). This ordinance was re- tained in the code of 1702, the first digest of the Town bylaws in print, and is an interesting illustration of the legislative power exercised by the selectmen. This power was not expressly conferred by the town, but was implied. It was exercised repeatedly (1. c., 98, 104, 116, 145- 1), and a large part of the first town code, printed in 1702, consisted of bylaws made by the selectmen. The General Court never favored such power, but hard necessity compelled the General Court of 1847 to restore to " the mayor and aldermen of any city in this commonwealth " the exercise of a certain legislative power which the Boston selectmen under the colony had exercised very freely. The Regulation of the aldermen requiring a driver to remain with his team (Rev. Regul. of 1892, ch. 6, sec. 14) has the force of a city ordinance. This power was conferred by the Act of April 23, 1847. But it was exercised by the selectmen on June 4, 1658, and was accepted as good law by the Court of Sessions in 1701. In a word, the colonial selectmen exercised nearly all functions that a town meeting could exercise; but they acted so prudently as never to lose the support of the town. The town meet- ing as a great political engine, not only in municipal affairs, was the product of the provincial period. There was no room for the town demagogue under the colony, for the reason that the town had en- tire confidence in its selectmen and their power to regulate all pruden- tials.
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CONSTITUTIONAL HISTORY.
In 1659 the town ordered "that there shall be a moderator chosen annually, to regulate publick towne meetings," the first moderator so chosen being William Davis (1. c., 152), who served as selectman for fifteen years, being elected as early as 1647, and for the last time in 1675. The dignity of being permanent moderator of the town meeting fell to Thomas Savage, deputy, speaker, assistant, commissioner for Boston, captain, major, and commander in chief of all the forces against the Indian enemy. The office of moderator was of Massachusetts origin, and is first mentioned in the Body of Liberties, 21: " The Gov- ernor shall have a casting voice whensoever an Equi vote shall fall out in the Court of Assistants, or general assembly, So shall the presedent or moderator have in all Civil Courts or Assemblies " (Col. Laws, 1660, ed. Whitmore, 49). The law of Massachusetts still prescribes that "At every town-meeting, except for the election of national, state, district, and county officers, a moderator shall be first chosen " (Public Statutes, 1882, ch. 27, sec. 58), and great power is vested in him. The early law of Massachusetts made his duty equal to his power (Col. Laws, 1660, ed. Whitmore, 45, 49, 143, 198. St. 1893, ch. 412, sec. 263-5). The term moderator was borrowed from the English university debates; thence it passed to the ecclesiastical meetings of the English dissenters, and to New England.
COLONIAL BOSTON.
In Colony days Boston was bounded in the north as Suffolk County is now; Lynn was the boundary to the north, Charlestown to the north- west, but until 1649 Charlestown included Malden with the present municipalities of Everett and Somerville. In the south Boston reached down to Plymouth colony, and still shares its jurisdiction over Hull and a part of Hingham with Plymouth county (Publ. Stat., 1882, ch. 22, sec. 12). But Dorchester and Roxbury were independent towns, like Boston; and Roxbury was not merged in Boston until 1868, Dor- chester until 1840, Charlestown until 1874 (Boston Municipal Register, 1890, p. 6). Until 1804 South Boston was a part of Dorchester. In Colony times, Cambridge included Newton, Needham was a part of Dedham, Milton was a part of Dorchester, but Braintree and Quincy were originally owned in part by Boston, which reached in the south- west to Weymouth (1 Mass. Records, 217, 291). This ceased in 1640. Brookline, on the other hand, was a part of Boston until 1505, Chelsea, which included Revere and Winthrop, until 1739. Boston clearly
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BOSTON.
began with metropolitan proportions, but began to lose in 1640, and to regain in 1804. Boston used to choose constables and surveyors of highways for both Muddy River (Brookline) and Rumney Marsh (Chelsea) ; and continued to do so after President Dudley and his Coun- cil had made Muddy River nominally independent of Boston (? Bost. Rec. Comm., 190, 200). The President and Council ordered in 1686 "that henceforth the said hamlet of Muddie River be free from towne rates to the town of Boston ;" but the latter voted at the annual town meeting in 1689-90 " that Muddy river inhabitants are not discharged from Boston, to be a hamlet by themselves, but stand related to Bos- ton as they were before the year 1686." After 1640, then, colonial Boston included the peninsula up to the Roxbury line; also East Bos- ton, Breed's Island, the islands in the harbor proper, Chelsea, Revere, Winthrop, and Brookline. The Boston commissioners, a municipal court established in 1651, were given jurisdiction over the larger Boston in 1674 (Col. Laws, 1672, ed. Whitmore, 21, 217).
The principal business in early Boston was to get possession of land. The earliest records, if any, of the distribution are not extant. The Town Records begin with September 1, 1634, and abound in allusions to the distribution of greater Boston, the peninsula being mostly occu- pied or allotted by that time. In the year following "it was by general consent agreed upon for the laying out of great allotments unto the then inhabitants " (? Boston Rec. Comm., 22, 6). Under this authority, either implied or assumed, the selectmen entered on the Town Records allotments made at Muddy River (Brookline), Rumney Marsh (Chel- sea), and Pullen Point (Winthrop), and amounting to about five thou- sand acres. At Brookline, Thomas Leverett and Thomas Oliver re- ceived 115 acres each, William Colburn 160; they were selectmen. John Cotton, the minister, received 250 acres; the poorer sort, as they were called, at the rate of four or five acres per head (1. c., 6), the table of distribution thus giving a clear account of the size of families, except that the leading men received land in keeping with their social position. The Book of Possessions, being part 2 of the Boston Record Commissioners' second volume, undertakes to show how the peninsula was divided among the early settlers. These accounts, reduced to a map by Mr. George Lamb, are the delight and despair of the antiquary. They show how soon the Boston Puritan found his boundaries too nar- row. Breed's Island was annexed to Boston in 1634, or three years be- fore East Boston. As soon as it became Boston property, the felling
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of trees in the island was forbidden, and the island distributed among "the inhabitants and freemen of this town, according to the number of names in every family " (1. c., 2). Truly, the early comers were a great land company. In Boston the work of the land company was nominally done by allotters; the real allotters were the selectmen.
The allotters or selectmen used great skill in the distribution of es- tates; but for this the new office would have been abolished. But it grew steadily, and still enjoys many prescriptive rights, though men of the law tell us that a town or city has no powers, save those con- ferred by the General Court. Yet the Boston selectmen, who had divided a principality, were told by the town meeting of 1641 that " there shall be no more lands granted unto any inhabitants that shall hereafter be admitted into the town, unless it be at a general town's meeting " (2 Bost. Rec. Comm., 65). But inhabitants were admitted by the selectmen, and the freemen of 1641-2 continued to distribute land "amongst the present inhabitants," great latitude being allowed in the distribution (1. c., 67). The final order for distributing what land remained, was given by the town on March 4, 1641-2 (1. c., 67). In the most critical trials the new institution of selectmen was found equal to all demands. Less competent men distributing the vast estate of a great town and future city, might have come to blows; a less orderly community than the Puritans of Boston might have resorted to crime. The early history of Boston is not the least honorable, and, perhaps, the most instructive. The town established itself before the General Court gave a general charter; indeed, this general charter, greatly to be honored, simply gave the approval of law to what the people had worked out for themselves with extraordinary skill and foresight. In 1651 the owners of land on the peninsula were allowed to buy and sell it at pleasure, and the year following the General Court passed the order that all sales of real property must be effected by written deeds, provided the deeds were duly acknowledged and re- corded (3 Mass. Rec., 280). But the town of Boston ordered that "no inhabitant shall let any house, housing or land to any Forriner without the consent of the selectmen " (? Bost. Rec. Comm., 103). An order like this may look timid; it was needed, and it strengthened the attach- ment of the founders to their new home.
5
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BOSTON.
STREETS AND WAYS.
How did they appoint this home? The founders attempted to draw a line between public highways and the town ways. After Boston had distributed its lands, both in the town proper and in the country, the General Court declared " that the selected towne's men have power to lay out particular and private ways concerning their towne onely " (2 Mass. Rec., 4), the result being that the town ways in Boston were as badly planned and built as the public highways from town to town. The selectmen would have alienated the town, and imperilled their very existence, had they systematically ordered streets and caused them to be properly built. First the settlers received the land they wanted; then the town decided that " every one shall have a sufficient way unto his allotment of ground, wherever it be, and that the inhab- itants of the towne shall have libertie to appoint men for the setting of them out, as need shall require, and the same course to be taken for all comon high ways, both for the towne and countrie " (2 Bost. Rec. Comm., 7). Surveyors of highways, on the other hand, were author- ized by the General Court as early as 1635-6 (1 Mass. Rec., 172), but were not appointed in Boston until later. In 1637 special surveyors were chosen " for the high wayes towards Roxbury and to the Milne " (2 Bost. Rec. Comm., 16), though the office is mentioned earlier (1. c., 10); general surveyors were apparently first chosen in 1638 (1. c., 35). Throughout the days of the Colony surveyors and selectmen were kept apart, the result being confusion, not only as to highways and town ways, their laying out and construction, but also as to the very title in these thoroughfares. This confusion continues to the present time, when the city has a board of survey as well as a board of street commissioners, beside private owners of land, to lay out streets and highways. This confusion was complete by 1640, or as early as the town had distributed all the land within its reach.
On the peninsula an interesting attempt was made to set houses back from the street lines, and to have a "pale " in front of every house (1. c., 12, 105); the attempt failed, though a pale of Colony days still remains in front of the Old South meeting-house (7 Bost. Rec. Comm., 60), being the last pale mentioned in the Town Records. At present the term street includes the sidewalks on .either side of the street (Boston City Ordinances, 1892, p. 4); in early days the street was " between pale and pale," as now in Commonwealth avenue. The
Howhen Doal
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CONSTITUTIONAL HISTORY.
uncertainty of the title in streets and highways led to extraordinary license. The General Court authorized the demolition of houses built "in any towne liberties [streets], preinditiall to the townes, without leave from the townes" (1 Mass. Rec., 168); and the selectmen, en- couraged by such authority, ordered a fine of ten pounds for every encroachment upon the street line, a fine they could not properly inflict, least of all without special authority from a general town meeting. In 1641-2 the selectmen ordered " for the preserving of all high wayes in this Towne, that none shall dig any sand or clay in any of them, under the penalty of 5s. per load " (? Bost. Rec. Comm., 67). The condition of these ways may be imagined ; in the highways the freeman or inhabitant was required to do very little, in the town-ways nothing at all. For fear of expecting too much of public spirit or private duty, the General Court resolved in 1639 that "it is not intended that any person shall be charged with the repairing of the high wayes in his
owne land " (1 Mass. Rec., 280). In the case of gates and rails en- croaching upon the highway, county courts or the court of assistants might appoint a committee (2 Mass. Rec., 192). No wonder the Gen- eral Court appointed, in 1667, a committee "to bring in an effectuall order for keeping in good repayre all streets and highways " (+ Mass. Rec., part II, 350).
The principal highways in early Boston were those leading to Rox- bury and Charlestown, communication with Cambridge being neglected until later days. In the beginning, it seems, no allowance for travel to or from Roxbury was made. In 1636 surveyors were appointed to make a "sufficient foote way," apparently along the neck to Roxbury. They seem to have failed, for within a year "Thomas Grubbe and Jonathan Negoose are Chosen Surveyors for the high wayes towards Roxbury (? Bost. Rec. Comm., 10, 16), and in 1650 Peter Oliver was to "have £15 per annum, for 7 years, to maintaine the High wayes from Jacob Eliots Barne [near the present corner of Washington and Boylston streets] to the fardest gate bye Roxsbery Towns end, to be sof- ficient for Carte and horse, to the satisfaction of the Countrye " (1. c., 99. See, also, ? Bost. Rec. Comm., 22). In 1635 Thomas Marshall was chosen to maintain a ferry from " Miln Point" to Charlestown. The town was in 1642-3 called upon to lay out a convenient way to the ferry as well as to the windmill on Copps hill (1. c., 72), but the committee simply reserved a highway through that part of the town, to be laid out in the future, but to be thirty-three feet wide, and as straight as the
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BOSTON.
lay of the land might permit (1. c., 73). When the water mill was built, it was connected with Copps hill by a highway " a rod in breadth " (1. c., 95). Other streets had to be built through this part of the town, but only the "highway " was thirty-three feet wide, while the town ways were a rod in width, the ground for them being taken from private owners who were entitled to pay (1. c., 100). One of these ways, given by Thomas Marshall, was relinquished by the selectmen in 1652, to save expense. In other words, in 1650 the town of Boston had begun to buy land for streets, and from necessity bought as little as would suffice for immediate wants. It has pursued that policy ever since. When Boston opened the way to Roxbury it had previously closed, no road led through Roxbury to Muddy River, which was a part of Boston. Only the General Court could solve this difficulty, and ap- pointed in 1645 a committee that laid out the highway, and assessed the cost in part on Boston (2 Mass. Rec., 115). The committee was continued in 1658 (4 Mass. Rec., part I, 321). The owners of the land through which the highway passed, were awarded "meete satisfac- tion." Boston, then, had to pay dearly for its own ways, and for neces- sary travel through another town. If any of the streets were paved, it was done at private expense; but it is more likely that colonial Bos- ton had no paved streets (Bost. Rec. Comm., 53, 59, 66, 85, 99, 108, 116, 127). Rather than go to the cost of paving, every cart horse in town was required to give one day's work to street repairs, under the direction of the surveyors of highways.
The earliest houses in Boston were made of mud walls and thatched roofs (2 Bost. Rec. Comm., 40). But frame buildings were put up as soon as the wood could be prepared. At first the logs were sawed in Boston, and the market place, the site of the old State house, was once used as a " sawe pitte." Timber not being abundant, brick making soon began, and after some heavy losses by fire, the General Court re- quired that all buildings in Boston should be of brick or stone, and covered with slate or tiles (5 Mass. Rec., 240, 426); but the law was not permanently enforced, notwithstanding a severe penalty attached (" Bost. Rec. Comm., 174). To fight fire and for other purposes, a number of conduits, or cisterns, were built, one near the town dock, another near the town house (? Bost. Ree. Comm., 138, 158). These conduits, copied from English models, proved insufficient, as an at- tempt was made to feed them from springs which frequently failed. The first fire engine was imported from London in 1678, and was to be
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CONSTITUTIONAL HISTORY.
served by paid men (? Bost. Rec. Comm., 125). So the selectmen, always sustained by the town meeting, contrived to maintain order, to check irregularities, and to pilot the town successfully through many perplexing difficulties. This was achieved by moral force and remarkable judgment. In many cases the selectmen did not even act as a board, but as vested with individual authority. By a singular force of tradition this exercise of individual power on the part of mem- bers of a board survives in the practice of the aldermen, who are the successors and heirs of the selectmen. Even the law reflects this anomaly, a paper signed by a majority of selectmen or aldermen being generally received as representing the respective boards. Technically and in strictness, the board of aldermen can act only as a board (Public Stat. of 1882, ch. 28, se. 2; Acts of 1882, ch. 164).
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