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PROFESSIONAL AND INDUSTRIAL HISTORY

OF

SUFFOLK COUNTY

iMASSACHUSETTS

IN THREE VOLUMES

yOI.IIN4K TIT

Sb. —

401 1[lliigttate6

Till-. liOS'lOX lllSTORV CO.MPAXV 180i

CONTENTS. 1^8,2115

Page.

CONSTITUTIONAL HISTORY OF BOSTON 9

C. W. Ernst.

MEDICAL PROFESSION OF SUFFOLK COUNTY 174

Edward Jacob Forstf:r, M. D.

STREET RAILWAY SYSTEM OF BOSTON 286

Prentiss Cummings.

AVHOLESALE SHOE TRADE OF SUFFOLK COUNTY 303

Frank W. Norcross.

THE HIDE AND LEATHER TRADE OF SUFFOLK COUNTY 868

Frank W. Norcross.

INDUSTRIAL HISTORY OF SUFFOLK COUNTY 392

BOSTON'S RELATION TO THE TEXTILE INDUSTRY 491

THE MASSACHUSETTS CHARITABLE MECHANIC ASSOCIATION ... .521

BIOGRAPHIES 543

ILLUSTRATIONS.

Facing- Page

Alden, George A 286

Batchelder, Edward E 90

Batcheller, Tyler > 62

Brackett, William D. 604

Bray, Mellen 596

Breed, Francis W 412

Chapin, Nahum 476

Converse, Elisha S 20

Converse, James W 574

CuNNiFF, Michael M. 494

Curtis, George 458

Curtis, NoahI 542

Curtis, Noah^ 546

Dancel, Christian 526

Dennison, Aaron L 234

Dennison, Eliphalet W 248

Dow, Stephen 34

Emery, Francis F 272

Evans, Robert D 300

Fennessy, Edward H. 440

Fennessy, Frank E _..630

Field, John 584

Flagg, George H. P. 148

Fogg, John S 48

Gay, George W., M. D 360

Goodyear, Charles. 120

Hood, George H. 314

Facing Page

Hunter, S. V. R 384

Jones, V. K 1 398

Kelly, Thomas __328

Lewis, Orlando E 658

Lincoln, Joseph B 550

Litchfield, Georcje A 506

McKay, Gordon. 104

McLauthlin, George T 258

Mansfield, George A 76

Matthews, Nathan... 220

Metcalf, Albert 644

Moody, William H 370

MuNYAN, Jonathan 134

NicKERSON, Albert W 206

NoRRis, Howes . 618

Pope, Arthur W . 426

Prouty, Charles N 192

Rawson, Warren W 668

Smith, Aaron F 626

Spofford, John C 664

Squire, John P. 350

Thompson, Abijah . Frontispiece

Walworth, James J 340

Warnock, Adam 666

White, William H 560

Winch, John F 162

Winch, Joseph R 178

BIOGRAPHIES.

Page

Alden, George A 615

Batcheeder, Edward E 549

B AlCHELEER, T VEER 572

Brackett, William D 604

Brav, Mellen 596

Breed, Francis W 623

Chai'In, Nahlm 668

CuN\ ERSE, El.ISHA S. ._554

CoNX ERSE, James W. 574

Clnniee, Michael M 660

Curtis, GE()R(iE 669 ■

Clrtis, Noahi 543

Curtis, Noah- 545

Dancei-, Christian 595

Dennison, Aaron L. 642

Dennison, Eliphalet W 635

Dow, Stephen 581

Emery, Francis F. 606

Evans. Roheri D. 654

Fennessv, Edward H . 630

Fennessv, Frank E 630

Field, John 584

Fla(;(;, George H. P 601

Fo(;(;, John S. 577

c;av, GEOR(iE W., M. D 672

Goo D Y E a R , Cl I ar les 590

Hood, George H 650

Page

Hunter, S. V. R 592

Jones, V. K 628

Kelly, Thomas 670

Lewis, Orlando E 658

Lincoln, Joseph B 550

Litchfield, George A. 664

McKay, Gordon 586

McLauthlin, George T 646

Mansfie:ld, George A 548

Matthews, Nathan 673

Metcalf, Albert _..644

Moody, William H 653

Munyan, Jonathan ._ . 593

Nickerson, Albert W 673

NoRRis, Howes 618

Pope, Arthur W 621

Prouty, Charles N 557

Rawson, Warren W 667

Smith, Aaron F 626

Spofford, John C 661

Squire, John P 656

Thompson, Abijah 568

Walworth, James J 632

Warnock, Adam 666

White, William H 560

Winch, John F 563

Winch, Joseph R 563

CONSTITUTIONAL HISTORY

OF

Boston, Massachusetts

AN ESSAY

BY

C. W. ERNST, A. M.,

SECRETARY OF THE MAYOR'S OFFICE, 1889-go.

COLONIAL PERIOD, 1630 TO 1692.

Two things helped to make Boston a great city: Geographical posi- tion, and the character of the founders. Without certain natural ad- vantages the founders of Boston would have failed ; for even a Puritan cannot militate effectually against nature. Yet the geographical posi- tion and the topography of Boston are not without disadvantages. For the city proper, nature provided a peninsula wholly insufficient to meet the wants of a great community. A large part of modern Boston, that is, the peninsula, known to the Fathers as "the neck," stands on ground that was wrested from salt water. But the harbor is magnifi- cent, and was provided by nature. The advantage of the harbor is its proximity to the fisheries, — an advantage generally underrated by mod- ern opinion. But without the fisheries, Boston and Massachusetts could not have lived. The fisheries led directly to commerce; for in agriculture Massachusetts could not rival the colonies further south. This made Boston from the very beginning a commercial city and the chief port of New England. In the days of the Colony and Province. Bos- ton was the chief port on this continent, the most easily reached and the most generally frequented by English shipping. This supremacy was lost, when the empire west of the Hudson river became the 2

10

BOSTON.

granary of the United States and Europe. For it is easier and cheaper to send grain from the fresh-water lakes to New York than to Boston. Nature provided a way to New York ; it barred the way to Boston. And the gain on the voyage to European markets was more than offset by the greater cost of carrying freight from the great wheat farms to Boston. Even steel rails, steam, and the Hoosac tunnel have not de- stroyed this advantage, as compared with the easier and shorter road to New York. Nor is the port of Boston favorably placed for easy commerce with the South, which produces cotton, or even with Penn- sylvania, wdiich supplies our coal.

These comparative disadvantages put Boston to a sharp test, and helped to develop its character. Boston was obliged to work hard, and to mix its toil with farsighted intelligence. The character of Boston is best shown in its institutions, and not the least, perhaps, in the general organization and management of the community. Whoever wishes to understand and appreciate Massachusetts, should read her laws, and ascertain what they effected. Our public laws, after all, are the quint- essence of our public life no less than of our joint ambition and public morals. They are the outcome of what the community for the time being wants. To the historian they are the backbone of all researches. The sources for a constitutional history of Boston, therefore, are the town orders and the town records, interpreted by the acts of the town officers, on the one hand, and by the Massachusetts statutes and records, on the other. The first period of Boston, in the history of its constitu- tion the most important, begins with the settlement under the patent, in 1630, and ends with the granting of the Province Charter, i:n 1691-92. The chief sources are the second and seventh Report of the Boston Record Commissioners (ed. of 1881); the Colonial Laws of Massachu- setts, edited, after the editions of 1660 and 1672, by W. H. Whitmore (1889 and 1887); and the Records of the Governor and Company of Massachusetts Bay (1853-4, 5 vols, in six parts.)

The Patent of 1629.

The men and women who founded Boston and Massachusetts came here to improve their condition. But they came as English subjects, not prepared to lose any advantage that relation might afford. The chief attraction in New England were the fisheries, famous along the At- lantic coast of all Europe, and the certainty that the land hunger of the English race could be appeased in the new world. The land laws of

CONSTITUTIONAL HISTORY.

11

England, and its controversies in church and state, made the new world attractive. But the immediate precedent for the New-England enterprise was the success that had attended the charter of the East- India company. Perhaps it is not unjust to affirm that the charter of 1000, granted by Queen Elizabeth, has made Queen Victoria the Em- press of India, with almost three hundred million inhabitants. Greater triumphs might have been achieved, by the successors of Queen Eliza- beth, in New England and America. The beginning was auspicious. On the last day in 1600 " The Governor and Company of Merchants of London trading in the East Indies" was incorporated; on March 4, 1628-9, a better charter was given to " The Governor and Company of the Mattachusetts Bay in Newe England." The East-India merchants were given a monopoly of trade ; the Massachusetts Company received a monopoly of trade together with a monopoly of land to be held "in free and common Socage," that is, absolutely, the crown reserving only one-fifth of the gold and silver that might be mined in Massachu- setts.

It was an interesting fiction that led the crown to give the present United vStates to enterprising Englishmen, and the latter to treat the patents of James and Charles as a valid title in the land that became New England and America. Yet so strong is the attachment of Amer- cans to the forms of law that the present boundary of Essex county, Massachusetts, to the north was established in the patent of 1629, when Charles I. gave to the Governor and Company of Massachusetts Bay ' ' all those landes and hereditaments whatsoever, which lye and be within the space of three English myles to the northward of the saide river called Monomack, alias Merrymack." The same patent established the Great and General Court which still controls the public affairs of Bos- ton and Massachusetts, although the authors of the patent thought only of a commercial company, with headquarters in England. The patent intended to constitute the Governor and Company of Massachusetts "one b(jdy corporate and politique," that is, a corporation that could sue and be sued, "like any other corporation." The corporation was to have very large rights, except those of sovereignty or semi-sover- eignty. The corporation was to have a Governor and Deputy Gover- nor, to be elected annually; and a board of Assistants or directors consisting of eighteen persons, who were to hold monthly meetings ; while the corporation at large, meeting four times a year, was to con- sist of freemen formally admitted as such. In the patent a meeting of

12

BOSTON.

the freemen, the Assistants, and the Governor combined, was called the Great and General Court.

Under the patent of 1629 the Governor and Company of Massachu- setts were to be exempt from taxes for seven years, as far as New Eng-land was concerned, and in the same respect to enjoy free trade for twenty-one years. The emig-rants were to remain English subjects, and might admit " any other strangers that will become our [the King's] loving subjects." The Governor and Company were given leave "from tyme to tyme to make, ordeine, and establishe all manner of wholesome and reasonable orders, lawes, statutes, and ordinances, directions and instructions, not contrarie to the lawes of this our realme of England, as well for setling of the formes and ceremonies of government and magistracy fitt and necessary for the said plantation and the inhabit- ants there;" but all this was to be done "according to the course of other corporations in this our realme of England," showing that the patent expected the Governor and Company, who were made a close corporation, to remain in England. In reality the Governor and Com- pany, together with the patent, were taken to New England ; and the commercial corporation acted from the outset as a semi-sovereign com- monwealth, or rather as a quasi-autonomous aristocracy. The Governor was the head; the Assistants were his senators; the citizens were the freemen, and all freemen were citizens, with the active and passive right of suffrage, with all that implied. The belief, commonly enter- tained (Washburn, Judicial History of Massachusetts, 15), that "the government of the company, as established by the charter, was a pure democracy," is not well founded. The early church and the early Commonwealth of Massachusetts were an aristocracy, which prescribed mechanics' wages, did not allow servants to trade, and discriminated against " the poorer sort of the inhabitants."

The Colony.

The king had intended to create another commercial corporation ; from the outset it was a municipal corporation, nominally attached to the crown, in fact separated from king and parliament by the Atlantic ocean and a deeper gulf. In time this municipal corporation became a sovereign commonwealth. Land hunger, or love of wealth, scattered the early immigrants over a wide area, and thus led to the founding of numerous neighborhoods, called towns. The accidental right of towns to distribute all land within their boundaries, increased their number

CONSTITUTIONAL HISTORY.

13

rapidly. As soon as a town was named or otherwise recognized by the General Court, it was deemed to be incorporated, and even a table of precedency among towns was adopted and retained (3 Mass. Records, 2). Boston ranked fourth in this hierarchy, vSalem, Charlestown, and Dorchester having precedence. The ruling minds had brought from England certain notions of the realm being subdivided into shires or counties, which consisted of several towns each, beside boroughs or cities. These notions received a new application and development in Massachusetts, where the town obtained some of the rights of the English shire, notably that of direct representation in the General Court. Yet our Massachusetts counties began with a copy of the Eng- lish lord lieutenant (2 Mass. Records, -42). The Massachusetts town became important at the expense of the county, and in Rhode Island it became the rival of the vState itself. Outside of New England the county is the political unit ; in New England the town is the chief ele- ment to make good citizens and good states. Easily the chief town in New England is Boston, whose rank has never been disputed. Yet the great importance of the New-England town is an accident. A French governor and company of Massachusetts might have begun with the laying out of counties; Governor Winthrop and his company wanted land, but on it they wanted actual settlers with a church and a con- stable. The church and the constable became the attributes of the New-England town ; the county was an afterthought, occasioned by the arrangement of judicatories. When Massachusetts established its first counties, in 1043, there were thirty towns, and these were grouped in four " sheires," namely, Essex, Middlesex, old Norfolk, and vSuffolk.

The theocratic element in early New England is easily overrated and misjudged. In those theological days it was easy for the patent of King Charles to profess that the conversion of the Indians to the Chris- tian religion was the principal end of the plantation in New England. The king him.self could have added with perfect truth that the chief end of the patent and all it implied or occasioned was the glory of God. But let no one imagine that such utterances meant any disregard of secular interests. Strict Calvinism and sound business go very well together. vSound business and ecclesiastical rivalries do not. For this reason it was sound business and legitimate, not to say necessary, that the founders of Massachusetts, who were also the founders of Boston, insisted u]3on uniformity in church matters. Had they begun each town with two or three churches, or witli none at all, the great experi-

14

BOSTON.

ment they made would have failed. They came here to improve their con- dition, that is to say, to flourish as they could not in England. They knew what they wanted, and they were right in excluding dissent, until the safety of Massachusetts was well assured. It was better for the dis- senter to be exiled than for the infant town and colony to fail, in order that men with a windmill in their heads might be let loose upon a community that had harder work to do than to concoct schemes of reform or discuss rival theologies. The early settlers were strong ; but one system of theology was all they could bear. And it was all the infant town and country could bear.

The glory of the Fathers is not their development of theology or theoretical jurisprudence, but the fact that they succeeded in building a great city,. a multitude of happy towns, and a great commonwealth in the wilderness which offered few attractions beyond good water, a wholesome climate, free land, and ready access to abundant fisheries. This glory will not diminish upon a comparison of the natural advan- tages that favor other cities and States in this nation. It is an open question whether the relative sterility of the agricultural lands of Mas- sachusetts was a help or a hindrance in the founding of the State. It compelled hard work, and thus tended to produce a hardy race. It led men to seek wealth by commerce, and thus prevented them from leading the narrower life of prosperous farmers. The very struggle for existence bound the founders more closely together ; for partners in business quarrel more easily in days of success than in times of struggle and adversity. The early settler wanted prosperity for himself; but he knew that individual prosperity cannot endure in a loose and ill- governed commimity. Hence the double endeavor of the founders to build their own fortunes together with the orderly government of the settlement at large. These practical interests were paramount, and left no time for theories. Theories may have suffered ; the founders of Massachusetts were not, perhaps, very systematic ; but their experi- ment succeeded, and that under circumstances which would have dis- heartened almost any other set of men. This is their honor ; this honor is among the many inheritances of modern Boston and Massachusetts,- that they have prospered in everything that makes life attractive, where a race less sturdy, less ambitious, and less gifted would have failed.

To be sure, the Fathers brought with them the very flower of English civilisation, which had just passed through the Elizabethan

CONS TITUTIONA L HIS TOR Y.

15

age; they had the English Bible, which gave to New England the purity of its speech. But what was uppermost in the minds of the New-England Puritan was dissent from king and prelate, deep distrust of crown law, and an ardent desire to do better in the new world than seemed possible in the old. In all constitutional questions the New- England fathers were opposed to the dominant doctrines preached and practised in old England. With inexpressible joy they found them- selves unopposed, in New England, by royal pretensions and ecclesi- astical authority. This relief gave strength to new endeavors; here the freedom-loving Puritan could be his own king, lord, and parliament. What wonder that he clung to such an opportunity with the full tenac- ity of a tenacious race, kindled by new ambitions. But it is not true that he brought with him a full set of municipal and state institutions. The institutions he left were tottering ; royalty and popular self-gov- ernment were arrayed against each other; and nobody could know what the outcome might be. All that was settled in the minds of the emigrants was that they proposed to establish, if possible, a New Eng- land with the tyrann}^ and foolish traditions of old England left out. In reality they had to build anew ; their chief advantage was that they were not called upon to tear down and clear the ground before they could begin the new building. But the plan for the new building in America was their own; the plans brought from the old world would not answer. The municipal laws of Elizabeth and Charles were bad ; they legalized "select" bodies that made municipal government in England a failure.

Colonial Suffrage.

The patent did not define in detail the grounds on which the corpo- ration of the Governor and Company of Massachusetts might enlarge itself, but authorized the incorporators to admit whom they pleased. The members of the corporation were called freemen. New freemen were admitted by vote. Beside the freemen there were " inhabitants," who were not voters, but owed allegiance to the corporation, or Com- monwealth, and in theory to the king. Thus, both in theory and practice, the constitution was aristocratic. The Governor exemplified this trait, which still survives. The corporation was a pure democracy; but the corporation was not the whole enterprise, and from the outset had attached to it many persons who were not freemen. Freemen was a term borrowed from the municipal corporations of England, which

16

BOSTON.

admitted freemen by a vote of the ruling body, itself elected by the freemen. In London a prerequisite of freemen was their admission to a city guild, usually procured by purchase. As the New-England company consisted of Puritan church members, it was natural that they were slow to admit any but church members, except as inhabitants occupying a subordinate position. This prerequisite, that the freemen of Massachusetts must be church members, was relaxed as soon as it was safe to indulge in greater latitude. In defense of the requirement it should not be forgotten that the patent had created a close corpo- ration. The East-India company, not a wholly dissimilar body, was never expected to admit all comers to membership. At any rate the Massachusetts company acted lawfully and from legitimate self- interest. It did not set out to be an asylum for the refugees of man- kind.

The opinion that church membership conferred the rights of a free- man, is not well founded. It required a formal vote of freemen, or their authorized representatives, to admit new freemen. In 1641 this right was conferred upon courts where at least two magistrates were present ; and they could admit as freemen such church members only as were ''fit," the magistrates deciding what constituted fitness. The provision was distinctly aristocratic, and was administered in that spirit. In 1664 the right of admitting freemen reverted to the General Court, which required applicants to be Englishmen, twenty-four years of age or more, "settled inhabitants in this jurisdiction, " householders, tax- payers in their own name, "orthodox in religion," and not vicious in their lives; or, "that they are in full communion with some church amongst us. " In English municipal corporations the rights of a freeman could be acquired by marriage with the widow or daughter of a free- man ; this law was never adopted in New England, possibly because the daughters of New England usually declined to marry men not freemen in their own right. The religious test of freemen disappeared with the patent, the Province charter of 1691 establishing other re- quirements than those deemed prudent in Colony days. The sterner requirements of the first comers, who laid the foundation and were re- sponsible for its strength, had been complied with, and Massachusetts was the result.

The right of suffrage in America is municipal rather than imperial. In Massachusetts, where the supreme authority — the General Court — has always been jealous of its prerogative, a municipal character of the

CONSTITUTIONAL HISTORY.

17

suffrag-e has never been wholly avoided. When the "Company" es- tablished by the patent became too numerous for all freemen to take part in the Great and General Court, each Town was invited to send deputies. This arrangement began as early as 1634 (1 Mass. Records, 118), and added to the dignity of towns, all being treated alike. When the General Court resumed the right of conferring the freedom of the colony, it required applicants to present proper credentials from the clergy as to character, and from the other town officers as to secular qualifications, like . domicile and freehold. But domicile could not be acquired without the formal consent of the selectmen, thus giving them, at least indirectly, great power over the admission of freemen. Applicants for the freedom of the colony had to acquire also a free- hold before they could be considered, and the freehold was likewise conferred b)^ the towns. Even the temporary presence of strangers re- quired the consent of the selectmen. Admission as an inhabitant and as a freeman was thus carefully guarded, and it was guarded through the towns and their selectmen. The Boston Town Records show how carefully this was done. Anybody was free to go, but not to come (Col. Laws, 16G0, ed. Whitmore, 50, 2). It was the Town through which men entered the "Company" of Massachusetts, and through which they exercised their rights as freemen.

The number of freemen appears to have been from one-twentieth to one-tenth of the population. In 1075 Boston was estimated to have a population of about 4,000; in 1G?9, when it demanded more deputies to represent it in the General Court, a Town Meeting asked indignantly: " Shall twenty freemen [rural towns of twenty freemen were entitled to two deputies, the maximum number of any town] have equal privi- lege with our great Town, which consists of near twenty times twenty freemen" (7 Boston Rec. Comm., 134), A full list of all freemen is given in the ?^Iassachusctts Records (ed. Shurtleff, G vols., 4to, 1853-54), and to every living freeman it may be safe to count about fifteen " in- hiibitants " or perscms. These latter were so important that at an early day they received privileges of value. In KUl the (jcneral Court pro- vided that "every man, whether inhabitant or foreigner, free[man| or not free[man|, shall have liberty to come to any pul)lic court, council or Town Meeting, and either by spcecli or writing to move any lawful, seasonable or material cpiestion, or to ])resent any necessary motion, complaint, petition, bill, or information whereof that meeting has proper cognizance, so it be done in convenient time, due order and re- 3

18

BOSTON.

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 arid to the country. Our co^^nties 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 allotment^ 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 each 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

CONSTITUTIONAL HISTORY.

19

of their own towns, not repugnant to the laws and orders here estab- hshed by the General Court; as also to lay mulcts 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 lookout "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. c, 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 w^as 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 clergy 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 aristocratic society. The church is democratic vSociety 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-li a general oath was prescribed, the constable, who was chosen by the town for erne 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

^0

BOSTON.

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, 824-7). 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, 2) 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, 74, 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 2 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

CONSTITUTIONAL HISTORY.

21

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 " (2 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 Colon}^, 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 l)e ])rudent1y dealt with l)y the selectmen, and came to be called the ])nidcntials 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, 172), 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, 197). 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.

CONSTITUTIONAL HISTORY.

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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 hus- 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 (2 Bost. Record Comm., 62). In 1650 the repair of the highw^ay to Roxbury was farmed out for seven years, at ^15 a year, "to be sufficient for carte and horse " (1. c, 00). And as late as 1700 a happy land owner reported to the t(nvn that he could not get to his land, there being no way. The town acted 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" (7 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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BOSTON.

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 shippiag 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