USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume III > Part 5
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The people were comparatively homogeneous, the chief distinction being between rich and poor, and between old families and later ar- rivals. As late as 1470 the town complained that the crown in dealing with Boston proscribed "patricians and plebeians " (18 Bost. Rec. Comm., 31). At the beginning of the Province period, the right in the Common was reserved to the old settlers (11 Bost. Rec. Comm., 20, 89); but as the time went on, this claim was effaced. The people en-
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joyed liberty of conscience; but this liberty did not extend to "Papists," nor to Jews, Accordingly there was no Catholic church in provincial Boston ; but a French Protestant church appears to have existed at the beginning of the seventeenth century. Toward the end of the provin- cial period a German Lutheran church appears to have struggled for life (18 Bost. Rec. Comm., 159). In 1671 a dancing school was licensed, but the teaching of French was viewed with distrust. Entertainments were given at Faneuil Hall, which was completed in 1742, and occa- sionally at "Concert Hall." The town grew fast, but suffered a set- back after 1720, then recovered, to undergo a gradual decline in the last twenty-five years of the provincial period. The currency was generally in wretched condition. In 1774 £100 sterling equalled £133
" lawful," and £1,000 "old tenor." A dollar was rated at 4s. 6d. sterling, or 6s. lawful. Yet the provincial period began with a splendid growth; it paved the streets and sidewalks; it built sewers to drain houses; it named the streets and lanes; it straightened and widened many of them; it built Boston light, long wharf, and the town dock; it printed the town bylaws; it established wards; it adopted the social titles still in use; and at the end of the period it introduced street lamps It found Boston a plain community, to leave it a complex town to the next age.
THE TOWN AND THE PROVINCE.
It was fortunate for the cause of town government that the crown, in granting the Province charter, placed the supervision of towns entirely in the power of the Province. To be sure, the crown could veto Prov- ince laws, but it never touched those relating to towns. The town of Boston, moreover, had a sort of partnership with the Province. The General Court met in the Boston town hall; Boston was the metropolis of Massachusetts; the leading men of the Province were many of them Bostonians, and not infrequently town officers. The modern feeling between city and country did not exist, and all towns as such had the same interest regarding the Province or the General Court. The latter was not ill disposed toward Boston, though it passed many special laws affecting Boston only. The idea that a town could not exercise any rights, save such as were granted by the General Court, was not then born. On the contrary, the towns acted freely, save where the General Court had raised a distinct barrier. Many of the rights exercised, both by towns and town officers, were prescriptive, the object being, not to
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develop a system of jurisprudence, but to satisfy the wants and require- ments of the body politic. Compared with the Colony period, the rights of the Province, and indirectly of all towns in the Province, were greatly curtailed under the charter of 1691. In practice, the Province suffered more than did its towns, the latter having no dealings with the privy council, and very few with the officers appointed by the crown. The Province was friendly, if not always prudent, in dealing with town government. If the latter was wise, it did not owe its wis- dom to crown or Province, but to the common sense of the people dealing directly with their own affairs.
The charter of 1691 confirmed the title of all towns in their lands (1 Prov. Laws, 9). This barred the General Court from disposing of town lands, and gave the towns a certain power independently of the Province. In order to settle the difficulties involved in the distribution of town lands,-difficulties likely to increase with the growth of the Province and the corresponding increase in the price of lands,-the General Court found it convenient to refer the problem to the law courts. The act was passed in 1694 (1 Province Laws, 182), and inci- dentally made the town a corporation in law as well as in fact. In Colony days the Massachusetts town had neither sued nor been sued. In 1692 the General Court had passed a general act (1. c., 64) confirm- ing the towns in their boundaries, and authorizing them to continue their town business; but this general town charter continued the Col- ony law (Col. Laws, 1642, ed. Whitm., 149) that " no cottage or dwell- ing-place in any town shall be admitted to the privilege of commonage [ for ] wood[s], timber and herbage, or any other the privileges which lie in common in any town, or peculiar, other than such as were erected or privileged by the grant of such town, or peculiar, before the year 1661, or that have been since, or shall hereafter be, granted by the consent of any town, or peculiar " (1 Prov. Laws, 65). From the first arrivals of Englishmen in Massachusetts, they thought themselves the owners of the land, and all later arrivals were looked upon as intruders who must acquire and establish their rights. Fortunately this principle was never applied to towns in their corporate capacity. A happy star had stood over their birth; it did not set when a less generous age came with the Province.
The difference between the Colony and the Province in town mat- ters is best illustrated by the general town aets passed in 1636 (1 Mass. Rec., 142) and 1692 (1 Prov. Laws, 64). . The Colony told the
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towns to do as they pleased in town matters, provided the laws and orders of the General Court were not violated. The freemen of each town might distribute town lands and all other town privileges by majority vote. The Province act undertook to regulate the distribution or allotment of undivided land either "according to the interests," or "by the major part of such proprietors" (1. c., 65). This did not work, and the matter was referred to the law courts (1. c., 182). The act for towns contained stringent provisions against idle persons and intruders; provided for the care of the poor; and offered relief in case constables or selectmen refused to do their duty; but the most im- portant provision authorized towns, or their selectmen, to make all necessary rules, orders and bylaws relating to the prudential affairs of the town, provided these orders and bylaws were not to be binding, unless approved by the Court of Sessions, which consisted of justices of the peace appointed by the governor, with the advice and consent of the council. The Court of General Sessions of the Peace was not or- ganized until the act of 1699 was passed (1. c., 367). It consisted of the justices of the peace for the county, or so many of them as should be limited in their commissions, and had both civil and criminal juris- diction. In addition this court had charge of the county prudentials. It continued throughout the Province period, survived under the State constitution, and finally occasioned the incorporation of Boston as a city, one of the main purposes of which was to get rid of the court of sessions that had become a drag on all town affairs. The Colony, too, had encouraged law courts to engage in administrative work.
BOSTON AND THE COURT OF SESSIONS.
Before the court of sessions began to delay the affairs of Boston, the General Court repealed the fatal clause of 1692 under which the sessions had the absolute veto power on town orders and bylaws, and the power of enforcing these was given to the selectmen, defendants having the right of appeal to the justices in quarter sessions. Unfor- tunately this excellent provision was hidden in an act dealing with militia and other matters, and was thrown out by the privy council (1 Prov. Laws, 217, 263). No town suffered more in consequence than Boston. In 1701 the town undertook to codify its bylaws, and passed a code of nearly forty titles, on May 12. On August 5 it was announced that the court of sessions had vetoed all but twelve. The town tried
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again on September 22, and was more fortunate, the attempt at town independence having been abandoned (compare 8 Bost. Rec. Comm., 9-21, with the "Several Rules, Orders, and By-Laws, approved by his majesties justices," and printed in 1702). Undoubtedly the meddling of the sessions with town affairs was specially distasteful to the selectmen; but they offered very little opposition, and the town meeting none at all. The power of the sessions was accordingly in- creased, and that of selectmen correspondingly diminished. In 1713 the power of laying out town ways, previously exercised only by the selectmen or their agents, was vested in the sessions, to be exercised whenever the selectmen were charged with delay or something worse. One would have expected that, in case any selectmen were slow in laying out a town way really needed, the parties aggrieved might appeal to the town meeting. But in the Province period the court of sessions was superior to the town meeting, and, unlike the town meet- ing, could enforce its orders by fine and imprisonment. Fortunately, Americans have never resisted the courts of law. Law courts have been forestalled, but not resisted.
Throughout the Province period liquor licenses were issued by the court of sessions, the selectmen having only the veto power. The court of sessions ordered prisons to be built and maintained at pleasure ; the same court ordered all county taxes, and assessed them on each town; in general, the court heard appeals from selectmen, town meet- ings and towns, and any member of the court could punish the breach of a town law. In addition, the court of sessions heard and determined " all matters relating to the conservation of the peace, and punishment of offenders " (1 Prov. Laws, 367). The essence of police power, therefore, rested practically with the court of sessions, or its members, the result being peculiarly unhappy, as the justices could not directly set up and manage a suitable police force. The effects are still felt. The duty of preserving the peace in Boston was at first vested in the constable. As constables were chosen by the town, which preferred prominent men for unsalaried offices, it was difficult to find suitable persons to discharge the unpopular and ungentlemanly duties of the constable. For night service, watchmen were employed, unless the militia happened to keep what was called a "military watch " (Col. Laws, 1660, ed. Whitm., 178-9; 1 Prov. Laws, 129). The night police was first a "constable's watch " (Col. Laws, 1660, ed. Whitm., 198-9); but in 1699 the justices and selectmen together were authorized to em-
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ploy a night police force other than the constables' watch, which had proved inadequate for Boston (1 Prov. Laws, 382, s. fin.). The town voted the cost, but the assessment was vested in the court of sessions, which acted unsatisfactorily to the town (11 Bost. Rec. Comm., 108, 224, 234). Relief came in the act of 1761 (4 Prov. Laws, 462), which enabled the selectmen of Boston to employ a night police of their own. The act remained in force to the end of the Province period, and was invoked in 1744 to protect Boston from "sundry regiments of his majesty's troops " (18 Bost. Rec. Comm., 194-5). Seventy-two watch- men were to protect Boston from the troops of King George and all other harm, at least in the night time.
In law every justice of the peace was free to punish a breach of town laws, by issuing a warrant of distress, and the court of sessions had ample power, provided the offenders were duly presented. But the constables by day, and the watch by night, were unequal to the work expected of them. The moiety system was tried, the informer receiv- ing half the fine ordered by a justice; but the system failed. In 1701 the town passed an interesting order authorizing the selectmen "yearly to nominate and appoint one or more meet persons in the several divisions of the town, to inspect and prosecute the breach of all or any of the penal orders which are or shall hereafter be made by this town, and allowed of by the sessions of the peace, and to allow and assign such persons salaries and rewards, as unto the said selectmen shall be judged meet and convenient " (8 Bost. Rec. Comm., 15); but the order was apparently vetoed by the court of sessions, though occasionally carried out (11 Bost. Rec. Comm .. 61, 63, 66, 67, 86). Of course, occa- sional prosecutions were justly unpopular, and could not take the place of a systematic police force, which came much later. In Colony times, the selectmen frequently made town orders or bylaws, with penalties attached, and as frequently enforced them, the fine going into the town treasury. The selectmen of the Province period were not able to exer- cise such power, and the town suffered accordingly. It is an open question, perhaps, whether the police of a town like provincial Boston should and could bring all violations of town and Province law to justice; it is less doubtful that every town is the best enforcement of its own orders, and that the self-government of towns calls for an efficient town police, which may be supplemented, but cannot be re- placed, by a general police force. The more the towns take care of themselves, the better for all. It took Boston more than two centuries
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to produce anything like a systematic police force. The fault, if any, did not lie with Boston alone.
ATTEMPTS AT RELIEF.
It was inevitable that the dependence of the town on county officers should lead to delay and dissatisfaction. It was natural that the select- men should be the first to propose relief. In 1:08 they told the town meeting that " the orders and bylaws of this town have not answered the ends for which they were made, and the principal cause thereof is a general defect or neglect in the execution, without which the best laws will signify little. And one great reason why they are no better executed is the want of a proper head, or town officer or officers, empowered for that purpose, the law having put the execution of town orders into the hands of the justices only, who are not town but county officers " (8 Bost. Rec. Comm., 55). The selectmen added that the justices could not be expected to make town affairs their special business, and that it was inconsistent to let a town make its own rules and regulations, but deprive it of the power to enforce them. For relief they proposed a charter of incorporation, to be drafted by a large committec. The same committee was requested to propose "some way for lessening the charges of this town " (1. c., 56). The committee presented the draft of a charter, for which they received the thanks of the town, which then proceeded to reject the whole scheme (1. c., 59). Evidently the selectmen felt their dependence on the court of sessions more keenly than did the people of the town. At that time Boston was growing very fast; prosperity reigned; the town was undergoing the happy transformation from a plain village to a complex community, in which there was ample opportunity for men of am- bition; and the average "inhabitant " was not aware that the shoe pinched. He prospered; he did not care that the selectmen felt em- barrassed ; perhaps he did not care much for the breach of town laws, save where he suffered personal inconvenience; and he was by no means ready to part with power, for the purpose of increasing the power of town or city officers. It is not in the nature of democracy to part with power, such as could be exercised in town meeting, and to increase the delegated power of elective officers. So the attempt of 1708-9 to make Boston a city, failed on the spot. Leading men favored the change; the town meeting did not.
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The demagogue had not troubled the Colony; he appeared in the Province. The democracy of the Colony followed the leaders, who were men of great ability and political integrity; the democracy of the Province began to do its own leading, and to distrust all leaders not in full sympathy with the aims and opinions of the rising democracy. The Colonial age was simple and pure; the Provincial age was more complex and comparatively corrupt. In 1744 Boston suffered severely. The Province had indulged in the fatal experiment of issuing too mitch paper money, and underwent the usual effect; the number of rateable polls in Boston (males at least sixteen years of age) declined from 3,395 in 1738 to about 2,600 in 1746; trade was slack (14 Bost. Rec. Comm., 13, 100, 303); the tax laid upon Boston in 1744 was £30,000 old tenor. At such a time it might have been popular to propose an increase in the power of the town, especially by making Boston a county. Instead of that Thomas Hutchinson, himself a selectman, proposed that the General Court should confer greater power, not upon the town of Boston, but upon its selectmen and himself (1. c., 27). The matter was referred to the selectmen, who included Thomas Hitchin- son and Samuel Adams. A majority of them proposed "that the selectmen for the time being, or the major part of them, be constituted a court of record, and vested with powers sufficient to try and deter- mine all offenses against the bylaws of the town, their courts to be held the last Monday of every month " (1. c., 49). Adams did not sign the report, and the town declined to accept Hutchinson's report. It would have been a miracle if the town had voted to make the monthly meet- ing of the selectmen a police court, for trying every breach of a town order. It would have been strange if the town meeting had abdicated a part of its power to encourage the ambition of Thomas Hutchinson, who was full of schemes and plans for himself, while Adams schemed and planned and plotted for his town and country. The Hutchinson plan was impolitic and ill-timed. It failed accordingly (1. c. 27, 31, 47, 49).
In 1762 a number of inhabitants desired the town to "take such methods as shall be judged necessary for the incorporation of it" (19 Bost. Rec. Comm., 182). A clause to that effect was accordingly in- serted in the warrant for the annual town meeting. The next clause in the same warrant called for a committee to reduce town expenses. A young democracy favors economy; a more advanced democracy favors liberal appropriations. The town meeting of 1762 refused the
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committee (1. c., ?2), and the question whether the town wished to be incorporated was "passed in the negative, almost unanimously " (1. c., 64). The truth is, the town was not prosperous, and it would have been hard to convince that as a city it could do better. When politieal struggles with the mother country were added to the economic struggles at home, and when the town of Boston was almost deserted -its population fell from near 20,000 in 1738, to less than 3,000 in 1476-there was no occasion to think of being incorporated a city, least of all when the historic town meetings of the Revolution were justly applauded by the United States. At a time when the independence of the country was in issue, there was no disposition to consider the inde- pendence of municipalities. Indeed, the autonomy and self-government of a town has room only in an autonomous and self-governing nation. As long as the Province of Massachusetts was not entirely autonomous and self-governing-for a Province with governors not of its own choosing is not independent-how could its towns be little republics? They might wish for independence; they would not find it in a depend- ent Province. The Colony of Massachusetts was free; the Province of Massachusetts was not.
DOMICILE AND SUFFRAGE.
Both domicile and suffrage were municipal throughout the Province period, and, with the exception that anybody could become a free- holder by purchase, domicile and suffrage could not be acquired with- out the consent of the town or its selectmen. In practise it was the selectmen who admitted inhabitants and approved voters. Under the general town charter of 1692, strangers obtained the right of domicile in any town of the Province by living there for three months without protest on the part of the town. The protest, to be effectual, must be served on the stranger, and a record left with the court of sessions (1 Prov. Laws, 67). It was the selectmen who had to act in the premises, and in case they failed to give due warning to strangers, the latter be- came legal residents, with a right to town relief when needed. The cost of poor relief was among the heaviest burdens borne by Boston throughout the Province period.
In 1:00-1 masters of immigrant vessels were required to give a full list of such passengers, "and their circumstances," and the selectmen were authorized to require a bond for the support of any immigrants, should they prove unable to support themselves, or to return them to
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the vessel in which they came. Domicile was not acquired, save by a freehold, by birth in the town where domicile was claimed, by serving an apprenticeship, or by twelve months' residence without warning (1. e., 451). While the act of 1700-1 made the master of immigrant vessels responsible for the poor and the helpless he brought, the law of 1722 (2 Prov. Laws, ?44) made him responsible for all passengers he brought. In theory, then, the selectmen of Boston were well prepared to keep out all undesirable inhabitants; in practice they failed. When strangers thought they could improve their condition by going to Bos- ton, to Boston they went; when fortune or hope beckoned elsewhere, Boston could not hold them. The Province pursued a clear course. As early as 1705 it required four pounds for every negro brought into the Province (1 Province Laws, 578), and in 1708-9 the same rule was ap- plied to Indians (1. c., 634), while during some years a premium of forty shillings was paid for every white man-servant, between the age of eight and twenty-five years, brought from "the kingdom of Great Britain." In 1718, when the bills of credit issued by the Province were depreciated, the council recommended that the importation of white servants be again encouraged (1. c., 580), and the General Court prohibited the abduction of servants and apprentices under a fine of fifty pounds (2 Prov. Laws, 119). The Boston selectmen were mainly troubled by adventurous persons from other provinces trying to gain a residence in Boston. The list of such individuals warned out of town included persons calling themselves worsted combers, dyers, clock- makers, gardeners, and even coachmakers, at a time when the streets of Boston had barely been named; and later on dancing masters, teachers of French, professors of singing, and " comic-satirick " lec- turers. From about 1738 to 1716 the problem in Boston was not how to prevent men from acquiring domicile or a vote, but how to stay the steady decline of the population. In Boston it was a proud and strong, but dwindling, population that fought the historic fight for American independence. The greater, therefore, its honor. Revolutionary Boston consisted of native Bostonians.
None but freeholders could be members of the General Court, and a freeholder was simply a proprietor of land (1 Prov. Laws, 11, 452). Boston sent four members to the General Court of the Province, and was usually well represented in the Council, which was chosen by the General Court. The freemen of old had disappeared with the patent of 1629, and were succeeded by freeholders; but to entitle these to a
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vote for members of the General Court, their freehold must be worth forty shillings a year. Other inhabitants were entitled to vote for members of the General Court when they had property to the value of at least fifty pounds sterling (1. c., 11, 315, 363). In town matters the law was more liberal. The general act of 1692 conferred the town suffrage upon all freeholders and upon any inhabitant who was "rate- able at twenty pounds estate" (1. c., 65). In 1200-1 an inhabitant was defined as a person formally admitted to the town by the selectmen or in town meeting; but freeholders, persons born in the town, and those having served an apprenticeship in the town, were excepted from the necessity of a formal admission (1. c., 452). The poll tax, which was high, did not qualify for voting, and was assessed on all males who had completed their sixteenth year. Temporary acts passed in 1735 and 1238-9 (2 Prov. Laws, 661, 980), also in 1742-3 (3 Prov. Laws, 47), and from time to time renewed, further defined the general town act of 1692, which controlled throughout the Province period, and worked well, although it established a certain inequality not desirable in a democracy. It gave a marked preference to freeholders; this prefer- ence was intentional, and was recognized in the important act of 1700-1 (1 Prov. Laws, 452, s. fin. ), though the General Court held in 1720 that freeholders were not qualified to vote in town meeting, unless rateable at twenty pounds estate, and this interpretation prevailed (1 Prov. Laws, 104; 2 Prov. Laws, 761; 3 Prov. Laws, 47; 5 Prov. Laws, 1121). Persons not freeholders depended for their vote to some extent upon the selectmen, who never abused the power they wielded. The difference in the voting qualifications for town and Province elections made it necessary to hold them separately, the popular town meeting being managed by moderators, while the meetings for Province elec- tions were conducted by selectmen and attended by few persons. Ap- parently the highest number of votes cast for Boston representatives in the General Court of the Province was :23 (18 Bost. Rec. Comm., 78); in town meeting the number of voters present was apt to be much higher, especially at the annual meeting in March. The election of representatives for the General Court was usually held in May.
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