USA > Massachusetts > Suffolk County > Professional and industrial history of Suffolk County, Massachusetts, Volume III > Part 6
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The first little code of town laws, issued by Boston in 1702, contained the important provision that town meetings should be conducted by a moderator, and that "no matter of any weight or moment shall be voted at any town meeting, without the same hath been specially ex- prest in the warrant" (8 Bost, Rec. Comm., 17, 21). In 1715 the 8
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Province made a general law to the same effect (? Prov. Laws, 30). This law, which prevented the town meeting from becoming a mob, required the selectmen, who called the town meetings, to insert in the warrant or call whatever ten freeholders might require under their hands, and added that "no matter or thing whatsoever shall be voted or determined, but what is inserted in the warrant for calling said meeting." The result was that the town meeting of the Province period was controlled by freeholders. This is no longer the case; but the Massachusetts laws of 1893 governing the town meeting (chapter 417, sec. 259-265) is almost to a letter a repetition of the Province law passed in 1715; this, in turn, repeats the Boston town orders of 1701; and these were evolved or wrought out by the experience of Boston under the Colony. It is this conservatism, this respect for precedent, this clinging to past experience, that best protects us from interesting experiments in government. However society may change, whatever leaps in the dark may be taken by persons and property, the body politic is deeply conservative, and rarely parts with a solid gain made in our history as an organized political community. And the history of its government is the greatest glory as well as the noblest inherit- ance of America. This inheritance is not fully appreciated, unless one first studies and masters the history of a government like Boston or some ancient town in New England.
TOWN POWER.
The power vested in towns was not defined by the Province, and is not now defined. When towns came to be incorporated as cities, juris- prudence adopted the theory that cities could not exercise a right not conferred by the General Court, it being assumed that the city was "created " by the General Court, and that the creature had nothing beyond what was given by its creator. The theory reacted upon the power supposed to be in towns. But practice did not comply with the theory, and it is not rash to assume that in such cases the theory is im- perfect, an ounce of fact being worth more than a pound of theory. The first act passed by the General Court under the Province under- took to continue " all the local laws " of the Colony, and ordained that they should "remain and continue in full force in the respective places for which they were made and used " (1 Prov. Laws, 27); and a later act adds that they " shall so continue, until the general assembly shall take further order " (1. c., 99). But both these acts were disallowed
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by the privy council, which wanted to get rid of the Colony, and let the Province start fresh. None the less, and despite the remark in the general town act that selectmen were chosen "for the ordering and managing the prudential affairs of such town," and other town officers " for the executing of other matters and things in the laws appointed by them to be done and performed " (1. c., 65), this same act recognized town usage, and simply limited town acts by the requirement that they be "not repugnant to the general laws of the Province " (1. c., 66). In fact, neither the General Court nor the science of jurisprudence could foresee what a town ought to do in a given case, and the town of Boston found no legal or other difficulty in doing what it thought prudent. Its selectmen enjoyed a similar latitude; for no wisdom could tell exactly what was covered by the prudential affairs which the selectmen were chosen to manage.
In 1250 the General Court placed an excise duty of a shilling on every pound of tea sold in the Province (3 Prov. Laws, 496), where- upon the town of Boston objected. When the General Court dismissed the objection, the town meeting voted to "make application at home, in order to prevent said acts being confirmed by his majesty." Chris- topher Kilby was chosen as the town agent to get the General Court overruled by the privy council, and he was successful (14 Bost. Rec. Comm., 183-4, 241). If the town was the creature of the General Court, the creature was strong enough, it seems, to thwart the will of its immediate creator. No wonder it took courage to resist also the creator of the General Court. Before this battle, the town adopted in 1743 with unanimity a report submitted by Samuel Adams, and vindi. cating the right of the town meeting to consider as town affairs what- ever touched the town, and to act accordingly. The report quoted the Province acts, and appealed at the same time to "the great and per- petual law of self-preservation, to which every natural person or corporate body hath an inherent right to recur." To Governor Hutch- inson's statement that the town of Boston had no authority to discuss the salaries paid to judges in Massachusetts by order of the crown, the report replied that " no law forbids the inhabitants of towns in their corporate capacities to determine such points as were then determined," and added the general rule for town conduct that "where the law makes no special provision for the common safety, the people have a right to consult their own preservation." The town had asked that the General Court be called together to consider the judges' salaries, but
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the Governor refused to act. The report disposes of the case by this reasoning, which fairly took the wind out of Governor Hutchinson's sail: " The town had determined upon no point but only that of. petitioning the governor; and will his excellency or any one else affirm that the inhabitants of this or any other town have not a right, in their corporate capacity, to petition for a session of the general assembly, merely because the law of this Province, that authorizes towns to assemble, does not expressly make that the business of a town meet- ing ?" (18 Bost. Rec. Comm., 120-125. )
No better vindication of the town meeting and its powers is on record, and Samuel Adams is justly considered the typical American of the typical town meeting. His report, moreover, was directed against Governor Hutchinson, the first scholar who made the constitutional history of Massachusetts his special study. But even if Hutchinson · had quoted good law, the facts were plainly against him ; and while it is conceivable that the law may be bent to the facts, it is not conceiv- able that the great facts of history can be bent to human statutes. The town of Boston had done many things not expressly authorized by the General Court, and not a few of these are living today. Massachusetts did not authorize towns to choose overseers of the poor until Novem- ber 16, 1692 (1 Prov. Laws, 65, 67); at the annual town meeting of March 9, 1690-1, Boston chose four persons to be "ouer Seers of the poore of this towne for the yeare ensuinge," and on March 14, 1691-2, again elected four "Onerseers of the poore by papor votes " (" Bost. Rec. Comm., 206, 210). Indeed, the Province law merely recognized what the Boston town meeting had done, and the act of the town could not be undone by the General Court. In 1772 the Province incor- porated the Boston overseers of the poor (5 Prov. Laws, 177), whose history dates back to the very Colony which the crown lawyers in Lon- don, together with their friends in Massachusetts, attempted by a fic- tion of the law to blot out of existence (see the interesting " observa- tions" printed in 1 Province Laws, 109-110). The Colony pursued the true course, and even now it is the Colony, rather than the Province, that teaches us the lesson of local self-government, a part of which Massachusetts has yet to learn. A treasure lost for a long time is not necessarily lost for all time.
TOWN OFFICERS.
The Province town inherited from the Colony nearly all the town offices named up to 1776. The town constable was the earliest of all
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town officers, and among the few adopted directly from England. The tithingman, introduced in 1676, and originally appointed to look after ten families, his neighbors, was a sub-constable who looked after sab- bath breakers (Col. Laws, 16:2, ed. Whitm., 249). He was not thrifty; neither was his successor, the warden of 1261 (4 Prov. Laws, 417). The Massachusetts town immediately produced the selectmen, whose name means the men specially chosen or selected to manage the prudentials of the town. In 1641 the Boston selectmen chose a treas- urer and recorder, and in 1650 the office was divided; but the recorder was not called town clerk until 1693 (7 Bost. Rec. Comm., 213), the Province law of 1692 having provided for the annual choice, in town meeting, of a "town clerk, who shall be sworn truly to enter and record all town votes, orders, grants and divisions of land made by such town, and orders made by the selectmen" (1 Prov. Laws, 65). The market department of the city of Boston dates back to 1649. A sealer of weights and measures was chosen in 1650.
Overseers of the poor were appointed before the Province charter was signed (^ Bost. Rec. Comm., 206). The finance and school depart- ments of Provincial Boston were inherited from the Colony age, which made a good beginning with a fire department; but the police and health departments of Colonial Boston were blind attempts. In the matter of laying out and repairing highways, as well as town ways, the fatal confusion of the Colony age was continued under the Province, and is still an inheritance. On the whole, then, the Colony was the creative age of the Boston government; the Province was not. Colonial Boston did not swear its selectmen; neither did Provincial Boston. Up to 1726 the selectmen of Boston had never acted as a board, always as a committee. Indeed, Provincial Boston barely pre- served and bequeathed the great achievements of Colonial Boston.
Like the Colony, the Province drew a line more nominal than real between highways and town ways. Highways were to be laid out under the authority of the court of sessions, town ways by the select- men ; but the surveyors of highways were to repair all ways and bridges within their respective towns (1 Prov. Laws, 136). In 1727-8 it was provided that the act of the selectmen in laying out town ways, to be binding upon the town, must be formally approved by the town meet- ing (2 Prov. Laws, 453). The expense of constructing and maintaining all sorts of ways must be borne by the town, but the town could make almost any bargain with the persons nearest in interest. In theory the
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surveyors employed " all persons from sixteen years old and upward," until all the ways were in proper condition. In practice the whole work in streets, including construction, repairs, and drains, drifted into the care of the selectmen, and the town meeting usually chose them surveyors of highways, They made pathetic efforts to charge paving and repairs to abuttors ; but the law permitted the payment of highway repairs from the town tax, and gradually it became the rule of the town to meet all street expenses from the general tax levy. Sewers and drains, thanks to the act of 1709 (1 Prov. Laws, 643), were built and maintained at the expense of the immediate beneficiaries, the selectmen supervising the work, and assessing the cost. Notwithstand- ing this law, the town had a system of drains almost as soon as it had sidewalks, and paved streets, and a system of wards that was occasioned by the great care the town of Boston bestowed upon its poor (11 Bost. Rec. Comm., 240). The selectmen exercised in substance all the powers of a board of public works, beside being a board of health, a board of police, fire commissioners, and school committee. Early in Province days the Boston selectmen were relieved of the care for the town finances and for the poor; all other town affairs fell upon the selectmen. Yet Boston never developed faster, and never advanced more rapidly, than from 1200 to 1220, when it enjoyed the benefits of a cheap and abundant currency.
The first department to be separated from all others, in Provincial Boston, was the finance department. Under the Colony, valuations for tax purposes were made by the selectmen and a commissioner specially chosen by the town for that purpose (Col. Laws, 1672, ed. Whitm., 23, 1 Prov. L., 29). The selectmen usually decided what the town rate should be; to this they added the county and Colony rates, and the collections were made by the constables. The amounts were then expended by the selectmen, through the town treasurer, and ap- parently all went well. In 1687 the town was reported to have 1,444 rateable polls (males above sixteen years of age), and rateable estates to the value of £21,898 15s. On October 24, 1690, the Boston select- men called for a town tax of £412 4s. 2d. ; on June 11, 1691, they called for a town tax of £435 fs., both rates being payable in "countrie pay," with an allowance of one-third to such as paid money (? Bost. Rec. Comm., 194, 204, 208). The Province tax was very much larger, and, to facilitate its assessment, the General Court ordered each town to choose assessors. A Boston assessor must be a freeholder, and
Tyler Balcheller
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"reputed worth " at least £300. On July 16, 1694, then, the town of Boston chose its first assessors (1 Prov. Laws, 166; 7 Bost. Rec. Comm., 219). The appointment of tax collectors, in the place of constables, had been previously authorized (1 Prov. Laws, 93, 409), but the town meeting was not unwilling to let the selectmen do the assessing and the collecting (8 Bost. Rec. Comm., 33, 35, 64, 116, 140, etc.). The selectmen, on the other hand, voted as early as 1702 to record abate- ments, as well as drafts on the town treasurer, "in the several books for that use " (11 Bost. Rec. Comm., 27). These financial records of Boston under the Province are lost.
It happens, therefore, that the finances of Colonial Boston are better known than those of the Province period. Of the latter we know very little, beyond the general appropriations made in town meeting, the nominal tax levy, and occasionally a balance sheet of the town treas- urer. But all these figures should be used with extreme caution. Valuations were irregular; a tax assessed was never collected in full; and the currency was fluctuating. If the Province had been faultless in other respects, it should be condemned for the "bills of eredit" it issued. This mischief began with the Province. When the old-tenor bills had been sufficiently multiplied to defeat the object for which they were issued, the Province ordered a new kind, eighty shillings of which " shall be in value equal to " a troy pound of standard silver, which was 31-40 fine (? Prov. Laws, 818). This lawful money, then, as they called it, rated twenty shillings at three ounces of standard silver, while the royal mint rated a troypound of silver at 62 shillings. There was no objection to calling a pound of silver eighty shillings in Massachu- setts, while in England it was called sixty-two shillings; there was great objection to depreciating whatever currency the Province saw fit to adopt. When the Province introduced its lawful money, so called, in 1232, it offered to accept old-tenor bills at one-third of their face value (1. c., 867). The new-tenor bills underwent the same fate as their predecessors, and when the Province became a State, its finances were in utter confusion. So were those of Boston, where a committee reported a debt of "near eighteen thousand pounds " just after Mas- sachusetts had ceased to be a Province (18 Bost. Rec. Comm., 258-9). The town tax ordered in 1412 was 66,500; in 1763, 61,000; in 1724, £8,000 (1. c., 86, 135, 180); only a small part could be collected, and in 1445 no town tax appears to have been ordered. Boston received from the Province, in matters of finance, the good institution of asses-
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sors and collectors, and a currency as bad as was ever inflicted upon a reputable community. Governor Belcher told the crown in 1432 that "his majesty's instruction always intended there should be issued from time to time bills of credit sufficient for the annual support and service of the government " (2 Prov. Laws, 845). The charge was substantial- ly true, but cannot excuse the Province, however culpable the crown may have been. The Province persisted in trusting the crown; the crown persisted in proving that it should not be trusted. The crown succeeded; with some reluctance the Province accepted the situation.
HEALTH, SCHOOLS, FIRE DEPARTMENT, POLICE, LIGHTING.
As the city charter of 1822 vested all health and quarantine matters in the city council, it was not strange that the Province made the selectmen a board of health (1 Prov. Laws, 469). The Colony had done the same, whereupon the selectmen of 1618 ordered that all per- sons that had the smallpox should not air their clothes and bedding "except it be in the dead time of the night" (? Bost. Rec. Comm., 119). The selectmen of the Province period were expected to deal with " the plague, smallpox, pestilential or malignant fever, or other contagious sickness, the infection whereof may probably be communi- cated to others" (1 Prov. Laws, 469). As the selectmen could not enforce their will, least of all when an appeal was taken to the famous court of sessions, any two justices of the peace were authorized to issue a warrant enforcing the regulations of the selectmen in this business. It was held later (1. c., 48%) that the two justices, acting upon the ad- vice and direction of the selectmen, could order the forcible removal of smallpox patients. Rainsford island became the quarantine hospital, and woe to the vessel that had smallpox on board. In 1722 a schooner arrived, with a boy on board who had had the smallpox, but had recovered and been well for ten days. The boy, the captain, the crew, the passengers, and the vessel were smoked with "rossom and brim- stone," also "washed and cleansed," whereupon the officer at Rains- ford thought they might be dismissed. The selectmen replied: "Our orders are that you continue to use the proper means for cleansing the schooner, and everything on board, as well as the people. With respect to the captain and the two passengers, you must take particular care as to their washing and cleansing. Those of them who have any hair must wash the same well with vinegar. Their clothes, especially the suits they are to come up with, must be aired, washed, and smoked as
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carefully as possible. And when this is done, report to us again." After much more smoking, washing and cleansing, the keeper was allowed to let the schooner go, "first taking care that you are paid for your trouble " (? Bost. Rec. Comm., 135-8).
Not, perhaps, to strengthen the power of the selectmen as a board of health, but to fight the smallpox, the most dreaded of all epidemies in Province times, the General Court repeatedly supplemented its " Act providing in case of sickness," passed in 1401-2. In 1439 persons ar- riving in Boston from any place " where the smallpox or other malig- nant infectious distemper is prevailing,"-the act referred to places " in the neighboring provinces " only,-were required to report to the selectmen, and the selectmen had full power to warn such persons out of the Province (2 Prov. Laws, 987). The fine of neglectful travellers was £20. In 1:42-3 families with a case of "pestulous eruptions " were required to inform the selectmen, and to display a red flag, under a penalty of £50 in either case, £5 to go to the informer (3 Prov. Laws, 35). Inoculation was prohibited by the act of 1764, unless thirty fam- ilies suffered from the smallpox, and the selectmen permitted inocula- tion (4 Prov. Laws, 668). As the laws of the General Court did not . stop the dreaded malady, another act was passed in 1764, fining country people £100 for going to Boston and being inoculated there (1. c., 129). On July 4, 1476, the court of sessions was authorized to permit the establishment of inoculating hospitals, and to punish private inocula- tion with whipping (5 Prov. Laws, 552). At that time the people of Boston were frantic; their town was nearly empty, it was without a reasonable supply of food, trade had ceased, the epidemie was com- monly thought to have been occasioned by the British soldiers, and the selectmen had neither money nor skill to meet the case. From April 3, 1175, to March 29, 1926, no town meeting was held in Boston ; the selectmen's meetings were interrupted for more than a year. When they were resumed, the absence of British soldiers was duly noticed ; also " the present opportunity of transacting the affairs and business of the town in a free town meeting " (18 Bost. Rec. Comm., 221); nobody believed for a moment that the town or the Province had lost any wisdom supposed to dwell with kings; nobody imagined that, in case the Massachusetts health laws were bad, better laws could be framed upon a hint from the mother country. Even a crown that in theory never does wrong, cannot convey those ideas of which it is not pre- viously possessed. The Province did not know that epidemics are more
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than a town affair; perhaps a later age will learn that they are more than a State matter. Towns were justly required to take care of their prudentials; to make their selectmen a board health, and the only guardians of the public health, quarantine included, was to impose imperial duties upon a municipal corporation. As well might a town be required to regulate the coinage, or to provide original standards of weights and measures. The distribution of power in public-health matters is not much better in 1893 than it was in 1776 or 1692.
In the matter of schools, the Province inherited the admirable law and practice of the Colony, which was fortunate in providing for Har- vard college and for secondary education, before reading and writing schools were established. For it seems that primary schools depend more on the higher schools than the latter depend on the lower schools. For this reason it was a happy law that required for all grammar-school masters the approval of at least two ministers. A grammar-school prepared directly for college, and ministers represented liberal learning better than any other profession. Free trade in teaching being pro- hibited, Provincial Boston was saved from the self-appointed professors that profess more than they make good. In 1768 the law authorized the establishment of school districts within towns, such districts or precinets being allowed to order a higher tax for school purposes than the town at large was disposed to levy. This interesting law was the beginning of a policy under which the schools and their management have become a separate establishment, and rather independent of the general town or city government. The management of the schools rested with the selectmen; but as early as 1210 the practice of choosing eminent men for the inspection of schools was formally adopted by the town (8 Bost. Rec. Comm., 65). In 1:24-5 the selectmen began the custom of annual school visits, to which eminent men were invited, the affair ending usually with a dinner (13 Bost. Rec. Comm., 134, 153, 242, 254). This custom continued long after the establishment of the school committee and until Boston had become a city. The Prov- ince law did not greatly affect the Boston schools (Prov. Laws, I, 63, 470, 681; II, 100; IV, 988); they were founded in the affection and liberality of the people, who never wavered in this attachment.
The fire department of Provincial Boston continued under the man- agement and control of the selectmen; but in 1721 the management of fires was placed in the hands of ten firewards, who were appointed by the selectmen and the justices of the peace (1 Prov. Laws, 672). In
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1745 the town was allowed to appoint its firewards (3 Prov. Laws, 214), and as they gave satisfaction, their number was gradually increased to sixteen (4 Prov. Laws, 661). The fire engines were manned by volun- teers, and the engine " first brought to work upon any building on fire " received a premium; but the engine men and their captains were appointed by the selectmen. The fire service was always popular, and the frequent recipient of favors. In 1772 John Hancock gave the town " a new and finely-constructed engine (imported) for the extinguishing of fires; " it was apparently the tenth; it was named in honor of the donor, who was requested to name the captain of the company; and in case of fire the Hancock engine was instructed to give " the preference of its service " to the Hancock estate (18 Bost. Rec. Comm., 86, 88; 23 Bost. Rec. Comm., 162). To prevent fires, the Province continued the Colony law of 1683 that no building should be put up in Boston, "ex- eept of stone or briek, and covered with slate or tile " (5 Mass. Ree., 426; 1 Prov. Laws, 42). Wooden buildings required the consent of the selectmen, the justices of the peace, and the governor and council (1 Prov. Laws, 42, 404). In 1460 a similar law was passed, but the same law excused all previous offenders, provided they would cover their buildings within ten years with slate or tiles (4 Prov. Laws, 380). By a certain irony the building, fire, and street-widening laws of Bos- ton under the Province are commingled; and had it not been for its many great fires, both under the Colony and the Province, the amounts the city of Boston has expended for street widenings, great as they are and will be, might have been double or treble. The fault lies with the founders, who distributed the territory of Boston, and then tried to give each lot owner some kind of access to his property, always at the expense of others who were entitled to damage. The wonder is, not that the streets of the peninsula are irregular and narrow, but that the officers of the town and city have contrived, against disadvantages not experienced in any other civilized community, to make the streets we have. The great fires of Boston have helped, and the seleetmen of Provincial Boston took full advantage of every fire that ravaged the town. These fires, it appears, were not prevented by building laws of Spartan rigor, nor by maintaining a fire-engine company for every five hundred or one thousand inhabitants. The best laws, and the best government service, cannot prevail against private indifference. A free community must delegate many rights; it cannot delegate respon- sibility, and be safe.
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