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 Constitutional history of Boston Massac 
 
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 CONSTITUTIONAL HISTORY 
 
 Boston, Massachusetts. 
 
 AN ESSAY 
 
 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 
 
to 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, which 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, in 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 1673, 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 
 1600, 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 IfiOO "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 States 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 body 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 
 England was concerned, and in the same respect to enjoy free trade for 
 twenty-one years. The emigrants 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 setHng 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, Salem, 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 State 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 1643, there were thirty towns, and these were grouped 
 in four " sheires, " namely, Essex, Middlesex, old Norfolk, and Suffolk. 
 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 himself 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. Sound 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 upon uniformity in church matters. Had they begun each 
 town with two or three churches, or with 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 
 commiTnity 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. 
 
 1 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 thera 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 community. 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 
 
CONSTITUTIONAL HISTORY. 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 tyranny 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 
 
10 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 
 
 suffrage has never been wholly avoided. When the "Company" es- 
 tablished by the patent became too numerotis 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 by 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 guai^ded 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, 1660, ed. Whitmore, 50, 3)'. It was the Town through 
 which men entered the "Company" of Massachusetts, and through 
 which they exercised their rights as freemeii. 
 
 The number of freemen appears to have been from one-twentieth to 
 one-tenth of the population. In 1675 Boston was estimated to haye a 
 population of about 4,000; in 1679, 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. Coram., 134). ^ A full list of all freemen is 
 given in the Massachusetts Records (ed. Shurtleff, 6 vols., 4to, 1853-54), 
 and to every living freeman it may be safe to count about fifteen ' ' in- 
 habitants " or persons. These latter were so important that at an early 
 day they received privileges of value. In 1641 the General Court prc- 
 vided that "every man, whether inhabitant or foreigner, free[man] or 
 not free[manj, shall have liberty to come to any public court, council 
 or Town Meeting, and either by speech or writing to move any lawful, 
 seasonable or material question, or to present 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 and to the country. Our counties are artificial 
 corporations, and have never lost their artificial character ; the town 
 was the immediate neighborhood of men and women that had one mind, 
 one church, and one common endeavor. A General Court not com- 
 posed of the Massachusetts Company might have laid out towns and 
 regulated their settlement ; the General Court of Massachusetts recog- 
 nized what the early founders of towns did for themselves, and added 
 its approval and aid. The first comers of the Massachusetts Company 
 settled where they thought best, and always made a church the centre 
 of their establishment. A settlement of ten freemen might send a 
 deputy to the General Court, and every town was free to distribute the 
 town lands, the General Court not being able to make allotments 
 throughout the Colony. It tried to establish boundaries between towns, 
 but acted only in appealed cases. So it fell to many of the Company 
 to become founders of towns as well as of the commonwealth ; and to 
 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 1636 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- 
 lished 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, 173). Und.er this wise law, most of the towns 
 were founded without the special aid of the colony. Groton, one of 
 the most interesting of all towns, was established under a special grant 
 from the General Court (3 Mass. Rec, 388), as were others. The 
 ^Groton petitioners were required to look out ' ' for the speedy procuring 
 of a godly minister among them," but however essential the ministry, 
 and however close the union of church and town, the civil authority 
 was distinctly superior to the spiritual powers. New churches required 
 the approval of three magistrates and the ministers directly interested 
 in a possible rival ; and the Body of Liberties, about 1641, contemplated 
 that no church censure should affect the civil standing or office of the 
 offender (1. c. , 47). Every church was a pure democracy, entirely in- 
 dependent, aiid the equal of every other church, yet subject to the 
 civil power, the supremacy of which Was in fact never questioned, at 
 least not with impunity. When for any reason, spiritual or litigious, a 
 new church was to be formed by seceding members, the consent of the 
 town meeting and the County court was required, under severe penal- 
 ties (see the order of 1679 in 5 Mass. Rec, 213). The power of the 
 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. Society is not. 
 
 The Town Officers. 
 
 The principal officer in each town, at the beginning, was the con- 
 stable. The constable was an inheritance from England ; the select- 
 man was a product of the Massachusetts town and its peculiar necessities. 
 The term " selectman " does not appear in the Body of Liberties, 1641, 
 while the constable was a familiar figure from the very outset. He 
 was essentially a town officer, and the original collector of taxes. In 
 1638-9 a general oath was prescribed, the constable, who was chosen 
 by the town for one year, swearing that he would "carefully intend 
 the preservation of the peace, the discovery and preventing all at- 
 tempts against the same," and that he would duly execute all warrants 
 issued by lawful authority (1 Mass. Records, 262). 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 offeiiders, 
 to supervise the licensed sellers of beer or wine, to provide standard 
 weights and measures, to serve as election officer, to levy all fines, to 
 employ night watchmen, to serve as coroner, and not to refuse the 
 office of constable " on penalty of five pounds, and, if in Boston, ten 
 pounds." Every town was required to have at least two constables. 
 It was not an accident that the duties of constables were the first to be 
 codified by the General Court (see the code in 4 Mass. Records, part 1, ' 
 324-7). His badge of office was "a black staff, of five foot long, 
 tipped at the upper end about five inches with brass " (Col. Laws, 
 1(160, 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 commtmication 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 hmited 
 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 Colony, the Province, and the Commonwealth, and still survives. 
 The Colony Laws of 1660 (ed. Whitmore, 195-6) authorize towns to 
 ' ' make such laws and constitutions as may concern the welfare of their 
 town, provided they be not of a criminal, but of a prudential nature, 
 and that their penalties exceed not twenty shillings for one offense, 
 and that they be not repugnant to the public laws 'and orders of the 
 country;" also, "to choose yearly, or for less time, a convenient num- 
 ber of fit men to order the planting and prudential affairs of their 
 towns, according to instruction given them in writing." The term ap- 
 pears to be the coinage of Nathaniel Ward, the "Simple Cobler of 
 Agawam," and was first used as the opposite of " criminal." Criminal 
 and other matters reserved for state jurisdiction were not touched by 
 the selectman, who was confined to town affairs, many of which were 
 not provided for in the bylaws or orders, yet called for action. These 
 matters were to be prudently dealt with by the selectmen, and came to 
 be called the prudentials of the town. When the law was silent, and 
 
32 BOSTON. 
 
 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 6,000 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. 23 
 
 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 1643 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 abutters, 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 highway to Roxbury 
 was farmed out for seven years, at ;^15 a year, " to be sufficient for 
 carte and horse " (1. c. , 99). And as late as 1700 a happy land owner 
 reported to the town that he could not get to his land, there being no 
 way. The town 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). Th6 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- 
 
24 BOSTON. 
 
 wards. Penn and Pennsylvania showed how to do these thing's better, 
 the roads and ways being laid out first, and the lands occupied after- 
 wards, Massachusetts was less wise, partly perhaps because the soil 
 was naturally adapted to good roads, and for that reason permitted 
 neglect ; but the .consequences have been serious, in Boston they con- 
 tinue to be embarrassing. At an early day Massachusetts shipping 
 found its way wherever there was a promise of profit ; as a road builder 
 the colony was a failure. It seemed wholly indifferent to a highway 
 that might have bound Plymouth more closely to Boston, or Connect- 
 icut more closely to Massachusetts. Indeed, the road-building age 
 came very much later, and the great economic and moral value of 
 country roads and easy commerce between towns is still underrated. 
 Yet the wealth of a community depends largely on local traffic. 
 
 Town vs. County. 
 
 The Massachusetts' Act of 1864, chapter 448, popularly known as the 
 City charter, prescribes that " the City, Council [of Boston] . . may 
 choose a register of deeds whenever the City shall be one county." 
 This clause is still valid, except that the register of deeds would be ap- 
 pointed by the mayor, and confirmed by the board of aldermen, were 
 Boston and Suffolk County now united in one. The charter of 1854 
 merely repeats the language of the original City charter, which was 
 signed in 1832. And the expectation so expressed was uttered as early 
 as 1677, when the Town of Boston instructed its deputies in the General 
 Court to see that Boston might be a corporation, a county as well as a 
 town. A similar petition, '' in the name & in the behalf of the towne 
 of Boston," was discussed by the General Court in 1650, when the propo- 
 sition was rather encouraged, provided a suitable plan were presented 
 in terms. The ideal in the minds of both Boston and the General Court 
 was to make the capital of Massachusetts what London was to England. 
 This was not realised, though the Boston City Government of today has 
 the power of County Commissioners,. including that of laying County 
 taxes, in consideration of which right Chelsea, Revere, and Winthrop, 
 though in Suffolk County, do not pay County taxes and have no County 
 property. Repeated efforts have been made to merge the whole county 
 in Boston, but they have failed. Yet the interesting fact remains that 
 Boston, always ambitious, has generally desired to-be more than part 
 of a county, and less than subject to County as well as State authority. 
 Unconsciously, perhaps, the Boston of 1893, in aspiring to metropolitan 
 
CONSTITUTIONAL HISTORY. 35 
 
 grandeur, remembers that from the beginning Boston was paramount 
 in Suffolk County. All that is now known as Suffolk County, except 
 Charlestown, Roxbury, and Dorchester with South Boston, was a part 
 of Boston from 1630, or very early days, to 1739, when Chelsea was set 
 off. But Suffolk County, in the same year, included Roxbury and Dor- 
 chester, Hingham and Hull, the whole of the modern Norfolk County, 
 and until 1731 had included a good part of Worcester County, beside 
 Woodstock, now in Connecticut. 
 
 It was Boston jealousy of County authority that led to the establish- 
 ment of the City as a corporation. As soon as Suffolk County was es- 
 tablished, in 1643, it was given a County Court, and this Court was 
 given jurisdiction in many matters that concerned the Town of Boston 
 very closely. The County Court had charge of the house of correction, 
 and appointed its master ; it performed the judicial duties now vested in 
 the Overseers of the Poor and the Commissioners of Public Institutions ; 
 it granted liquor licenses ; and was the executive body superior to the 
 Selectmen. As the County Court met but four times a year, one can 
 imagine the difficulties that would arise in the administration of many 
 Town affairs. This difficulty increased when the Colony became a 
 Province; for as early as 1692 (1 Prov. Laws, ed. Goodell, 66) the Gen- 
 eral Court provided that all orders and by-laws of towns should be pre- 
 sented to the justices in quarter sessions, being the previous county 
 courts, and should not be binding until approved by said courts, the 
 judges of these courts in Suffolk County being appointed by the Gov- 
 ernor, with the advice and consent of the Council. This law stood un- 
 til 1832. The last edition of "The By-Laws and Orders of the Town 
 of Boston," issued in 1818, carries on its very title-page the statement 
 that the ordinances of the Town are ' ' duly approved by the Court of 
 Sessions." Such an arrangement led to unavoidable delays and un- 
 certainties, — the very thing to be avoided in the administration of 
 affairs, where prompt action is the condition of success and public ap- 
 proval. 
 
 To put an end to these delays and uncertainties in administration, 
 the Town of Boston became a City, and the General Court passed the 
 famous Act on the Administration of Justice within the County of Suf- 
 folk, section 11 of this Act, which was signed on February 23, 1832, 
 providing that "The Court of Sessions, within and for the County of 
 Suffolk, be and the same is hereby abolished: And the Mayor and 
 Aldermen of the City of Bpston, for thf tinje being, shall have all thq 
 
26 BOSTON. 
 
 powers, and perforin all the duties, which before, and until the passing 
 of this Act, were had and performed by the Court of Sessions, except- 
 ing as otherwise provided for." In other words, the executive author- 
 ity of the Town of Boston, as far as vested in the cumbersome Court of 
 Sessions, which met four times a year, was transferred to the Mayor 
 and Board of Aldermen, who were prepared to act every day in the 
 year. For the first time in its history of nearly two centuries the 
 municipal government of Boston received in part the benefit of the 
 great principle laid down in the Constitution of the Commonwealth 
 (Declaration of Rights, art. XXX): " The legislative department shall 
 never exercise the executive and judicial powers, or either of them ; the 
 executive shall never exercise the legislative and judicial powers, or 
 either of them; the judicial shall never exercise the legislative and ex- 
 ecutive powers, or either of them." 
 
 The sequel showed that it would have been better, had this distribu- 
 tion of power been fully applied to the government of Boston. The 
 memorable Acts of 1822 separated the judiciary from the legislative 
 and executive branches of the municipal government, and so made a 
 city government possible. The City Council, and especially the Board 
 of Aldermen, were not fully shorn of executive power until 1885. It 
 took two hundred and fifty years to apply to Boston the rule laid down 
 by John Locke that administrative, legislative and judicial duties, or 
 any two of them, should never be exercised by one body, if government 
 is to be free and pure. The same principle had been expounded nearer 
 home by the immortal John Adams. Yet what is so simple in princi- 
 ple, is rarely and reluctantly applied to the government of a great city, 
 as if a great city could be well governed on principles different from 
 those applied to a country that means to be both great and free. The 
 history of Boston as a municipality is an interesting and deeply instruc- 
 tive illustration of the same principle of government which Montesquieu 
 considered to be the chief glory of the English constitution, — a principle 
 still further developed in the government of the United States. Under 
 this principle the law-making and money-appropriating power, the ex- 
 ecutive, and the administration of reasonable justice, are a check upon 
 each other, yet bound to cooperate, in order that the citizen may de- 
 rive from government the highest good, while bearing the least burden 
 compatible with the legitimate interests of the body politic, outside of 
 which there is neither citizen,ship nor, perhaps, property, neither peace 
 nor public morality. Government is constituted in order that man may 
 
Constitutional history. 3^ 
 
 be as free, as powerful, and as ambitious as the government of which 
 he forms part. 
 
 Boston the Capitai.. 
 
 The seventeenth day of September, 1630, is commonly mentioned as 
 the birthday of Boston, when it was first named by the Governor and 
 Company of Massachusetts Say, under the patent of 1G29. On the 19th 
 of October, 1630, the first General Covtrt on this side of the Atlantic 
 was held in Boston. It has been the capital of Massachusetts since 
 then, not merely in name and by law, but in feeling and fact. Until 
 1798 its town house was the capitol of the State, and from the begin- 
 ning the most eminent men of the commonwealth have been glad, also, 
 to serve the city or town. The Town Records preserved to us begin 
 on September 1, 1634, with the name of Governor Winthrop, who served 
 as one of the Boston selectmen, and the first entry is "only a declara- 
 tion of the Common Lawe." The General Court, later on, resolved 
 formally that the Governor ' ' make his abode in Boston . . that so he 
 may be the more serviceable to the country in generall " (3 Mass. Rec- 
 ords, 374). With few exceptions the General Court has always met in 
 Boston, at the beginning as the guest of the First Church, in which 
 town meetings were held as well, the church and the town being one. 
 During the Province period and the second half of the Colony, as soon 
 as Boston had a town house, the General Court was the guest and 
 friendly partner of the town. Even since Boston became a city, mem- 
 bers of Congress were glad to serve it as city officers. This municipal 
 spirit was marked from the outset. 
 
 When the first town, house was built, on the spot where the Old State 
 House now stands, at the head of State street, in the place previously 
 occupied as a market, the General Court contributed " Boston's propor- 
 tion of one single country rate," — ^one penny in the pound of assessed 
 valuation,- — on condition that the said house should be forever free for 
 the keeping of all Courts, the General Court included (4 Mass. Records, 
 parti, 337). When repairs were ordered in 1667, the selectmen of Bos- 
 ton could charge half the cost to the Commonwealth, one-quarter to the 
 County, and the remainder to the town of Boston (4 Mass. Rec. , part 
 II, 351). A similar arrangement was had in 1671 (1. c, 486). This 
 illustrates the very friendly relations between Boston and Massachu- 
 setts. Yet the Commonwealth has always guarded its supremacy. 
 Only in 1681 Boston received permission to send three deputies to the 
 
28 BOSTON. 
 
 General Court, while every other town sent two (5 Mass. Records, 305). 
 Again and again Boston asked to be made a city, and was always re-_ 
 fused. It asked that at least the county and Boston be made one; in- 
 stead the county authorities were given the right to hear cases appealed 
 from the Boston selectmen or town meeting; but this cruelty was in- 
 flicted by the Province, in 1692 (1 Province Laws, ed. Goodell, 66, 
 136). Professional lawyers, in particular, have not been the firmest 
 friends of city charters in Massachusetts, and our legislation has been 
 kinder to towns than to cities. Indirectly the great ambition of Bos- 
 ton may have strengthened this strange sentiment, which treats a 
 town as an ideal government, and a city as a government that needs 
 watching. 
 
 Boston as a town or city has always taken a lively interest and an 
 active part in larger affairs. Here is an entry f-rom the Town Records 
 of January 21, 16R4: "At a meeting of the freemen of this town, upon 
 lawful warning. Upon reading and publishing his majesty's declara- 
 tion, dated 26th of July, 1683, relating to the Quo Warranto issued out 
 against the charter and privileges claimed by the Governor and Com- 
 pany of the Massachusetts Bay in New England : It being put to the 
 vote. Whether the Freemen were minded that the General Court should 
 make a full submission and entire resignation of our charter and privi- 
 leges therein granted, to his majesty's pleasure, as intimated in the said 
 declaration now read: The question was resolved in the negative, iie- 
 miiic contradicente" (7 Boston Rec. Comm. , 164). The same proud 
 spirit induced the town as early as 1659 to separate town and general 
 elections. " It being judged convenient that the freemen should meet 
 distinctly as to what concerns them, it is therefore ordered that the se- 
 lectmen shall for the future appoint the times of meeting for the free- 
 men distinct from the general town's meetings " (2 Boston Record 
 Comm., 149). The freemen alone voted for the General Court; but a 
 more liberal suffrage in town affairs had prevailed since 1647. Since 
 1660 the municipal and general elections in Boston have been held on 
 separate days, and the separation is wise, as it prevents the general 
 election from being influenced by the municipal contest. Voters usually 
 feel stronger on what they know than on what they believe ; and the 
 financial interests involved in a Boston city election are at least fourfold 
 the sums expended by Massachusetts in the course of a year. It was 
 convenience and pride that led Boston, in 1659, to separate its town and 
 general elections. 
 
CONSritUflONAL HISTORV. 39 
 
 Boston Selectmen. 
 
 The character of the Boston selectmen is significant, and shows that 
 municipal pride is always conservative. First in the list is the incom- 
 parable John Winthrop ; his great opponent, Harry Vane, did not serve, 
 though he was made governor. But the incorruptible Bellingham, who 
 served thirteen years as Deputy Governor, and ten as governor, was 
 eight times chosen selectman. He was the last survivor of the original 
 patentees named in the charter of 1629. Governor Leverett was chosen 
 selectman in 1651 ; he was justly popular for his military character, but 
 was defeated for the governorship when he accepted the knighthood 
 from Charles II. His father, Thomas Leverett, had served as select- 
 man before him. John Coggan was elected, although he practised as 
 an attorney. Of Hutchinsons there were, in Colony days, William, Ed- 
 ward, and Elisha, to be succeeded, during the Province period, by the 
 elder Thomas, William, and Thomas, the governor, thus beginning 
 with the husband of Mistress Ann, and ending with the remarkable his- 
 torian who now receives tardy justice. Elisha Hutchinson was joined 
 by Elisha Cooke, another selectman, in making a desperate defense of 
 the original patent. Among the great families of Massachusetts the 
 Hutchinsons should be named with the Winthrops and the Quincys. 
 William Coddington, twice chosen selectman, was treasurer of the 
 colony, founded the colony on Rhode Island, and served it as governor. 
 William Hibbens served for years as selectman and assistant. James 
 Penn was the first marshal-general of the colony ; William Tyng was 
 treasiirer of the colony, and nine times chosen selectman. John Hull 
 filled the same positions, and is the father of the Massachusetts coinage. 
 Thomas Savage was a selectman, and six times speaker of the house of 
 deputies. Thomas Clarke was thrice selectman, and five times speaker. 
 Robert Keayne, finally, was the father of the first town house in Bos- 
 ton, of the artillery company, and of the longest will ever filed in Mais- 
 sachusetts. One is tempted to think that Massachusetts was founded 
 by the best Englishmen when England was at her best ; that Boston 
 attracted what was best in Massachusetts ; and that the best men of 
 Boston served as selectmen. Most of the selectmen were merchants ; 
 in 1669 all were. It would have been wise to give to such a town the 
 self-government of a city ; but it was not to be. 
 
 The Boston selectmen acted with much dignity, and soon outshone 
 all other local officers. As early as 1637 the town voted to pay all the 
 charges at the selectmen's meetings (2 Boston Record Comm., 20); in 
 
^0 ^OSTOM. 
 
 1641 the constables, who collected the tax, were ordered to " pay unto 
 Robert Turner for diet for the townsmen [the selectmen] £% ISs." (1. c, 
 63); shortly after the order was to "pay unto Robt. Turner for dyet, 
 beere, and fire for the select men, l^s. " (1. c. , 68). This sort of expense 
 continued until 1884, when the " act to improve the civil service of the 
 Commonwealth and the cities thereof " provided that no city in the 
 State should pay any bill incurred for "wines, liquors, or cigars," and 
 that refreshments for a member of the city government should not ex- 
 ceed a dollar a day, if paid by the city (Acts of 1884, ch. 330, sec. 13). 
 The selectmen imposed fines long before the law gave them authority 
 to do so (1. c, 2), and notified " all that have businesses for the towns- 
 men's meeting to bring them in to Mr. Leveritt, Mr. Willyam Ting, or 
 to Jacob Elyott, before the town's meetings " (1. c. , 46). A surprise of 
 the selectmen by demagogues was thus prevented. As early as 1651 
 the Selectmen issued an order ' ' that if any Chimney be on fyer, so as 
 to flame out of the top thereof, the Partie in whose possession the 
 Chimney is shall pay to the Tresurer of the Towne, for the Towne use, 
 tenn shillings " (2 Bost. Rec. Comm., 106). This ordinance was re- 
 tained in the code of 1702, the first digest of the Town bylaws in print, 
 and is an interesting illustration of the legislative power exercised by 
 the selectmen. This power was not expressly conferred by the town, 
 but was implied. It was exercised repeatedly (1. c, 98, 104, 116, 145- 
 7), and a large part of the first town code, printed in 1702, consisted 
 of bylaws made by the selectmen. The General Court never favored 
 such power, but hard necessity compelled the General Court of 1847 to 
 restore to " the mayor and aldermen of any city in this commonwealth " 
 the exercise of a certain legislative power which the Boston selectmen 
 under the colony had exercised very freely. The Regulation of the 
 aldermen requiring a driver to remain with his team (Rev. Regul. of 
 1892, ch. 6, sec. 14) has the force of a city ordinance. This power was 
 conferred by the Act of April 23, 1847. But it was exercised by the 
 selectmen on June 4, 1658, and was accepted as good law by the Court 
 of Sessions in 1701. In a word, the colonial selectmen exercised nearly 
 all fu.nctions that a town meeting could exercise; but they acted so 
 prudently as never to lose the support of the town. The town meet- 
 ing as a great political engine, not only in municipal affairs, was the 
 product of the provincial period. There was no room for the town 
 demagogue under the colony, for the reason that the town had en- 
 tire confidence in its selectmen and their power to regulate all pruden- 
 tials. 
 
CONSTITUTIONAL HISTORY. 31 
 
 In 1659 the town ordered "that there shall be a moderator chosen 
 annually, to regulate publick towne meetings," the first moderator so 
 chosen being William Davis (1. c, 152), who served as selectman for 
 fifteen years, being elected as early as 1647, and for the last time in 
 1675. The dignity of being permanent moderator of the town meeting 
 fell to Thomas Savage, deputy, speaker, assistant, commissioner for 
 Boston, captain, major, and commander in chief of all the forces against 
 the Indian enemy. The office of moderator was of Massachusetts 
 origin, and is first mentioned in the Body of Liberties, 71 : "The Gov- 
 ernor shall have a casting voice whensoever an Equi vote shall fall out 
 in the. Court of Assistants, or general assembly. So shall the presedent 
 or moderator have in all Civil Courts or Assemblies " (Col. Laws, 1660, 
 ed. Whitmore, 49). The law of Massachusetts still prescribes that "At 
 every town-meeting, except for the election of national, state, district, 
 and county officers, a moderator shall be first chosen " (Public Statutes, 
 1882, ch. 27, sec. 58), and great power is vested in him. The early law 
 of Massachusetts made his duty equal to his power (Col. Laws, 1660, 
 ed. Whitmore, 45, 49, 143, 198. St. 1893, ch. 417, sec. 263-5). The 
 term moderator was borrowed from the English university debates; 
 thence it passed to the ecclesiastical meetings of the English dissenters, 
 and to New England. 
 
 Colonial Boston. 
 
 In Colony days Boston was bounded in the north as Suffolk County 
 is now ; Lynn was the boundary to the north, Charlestown to the north- 
 west, but until 1649 Charlestown included Maiden with the present 
 municipalities of Everett and Somerville. In the south Boston reached 
 down to Plymouth colony, and still shares its jurisdiction over Hull 
 and .a part of Hingham with Plymouth county (Publ. Stat., 1882, ch. 
 22, sec. 12). But Dorchester and Roxbury were independent towns, 
 like Boston; and Roxbury was not merged in Boston until 1868, Dor- 
 chester until 1870, Charlestown until 1874 (Boston Municipal Register, 
 1890, p. 6). Until 1804 South Boston was a part of Dorchester. In 
 Colony times, Cambridge included Newton, Needham was a part of 
 Dedham, Milton was a part of Dorchester, but Braintree and Quincy 
 were originally owned in part by Boston, which reached in the south- 
 west to Weymouth (1 Mass. Records, 217, 291). This ceased in 1640. 
 Brookline, on the other hand, was a part of Boston until 1705, Chelsea, 
 which included Revere and Winthrop, until 1739. Boston clearly 
 
3a BOSTON. 
 
 began with metropolitan proportions, but began to lose in 1640, and 
 to regain in 1804. Boston used to choose constables and surveyors 
 of highways for both Muddy River (Brookline) and Rumney Marsh 
 (Chelsea) ; and continued to do so after President Dudley and his Coun- 
 cil had made Muddy River nominally independent of Boston (7 Bost. 
 Rec. Cdmm., 190, 200). The President and Council ordered in 1686 
 "that henceforth the said hamlet of Muddie River be free from towne 
 rates to the town of Boston;" but the latter voted at the annual town 
 meeting in 1689-90 "that Muddy river inhabitants are not discharged 
 from Boston, to be a hamlet by themselves, but stand related to Bos- 
 ton as they were before the year 1686." After 1640, then, colonial 
 Boston included the peninsula up to the Roxbury line ; also East Bos- 
 ton, Breed-'s Island, the islands in the harbor proper, Chelsea, Revere, 
 Winthrop, and Brookline. The Boston commissioners, a municipal 
 court established in 1651, were given jurisdiction over the larger Boston 
 in 1674 (Col. Laws, 1672, ed. Whitmore, 21, 217). 
 
 The principal business in early Boston was to get possession of land. 
 The earliest records, if any, of the distribution are not extant. The 
 Town Records begin with September 1, 1634, and abound in allusions 
 to the distribution of greater Boston, the peninsula being mostly occu- 
 pied or allotted by that time. In the year following "it was by general 
 consent agreed upon for the laying out of great allotments unto the 
 then inhabitants " (2 Boston Rec. Comm. , 22, 6). Under this authority, 
 either implied or assumed, the selectmen entered on the Town Records 
 allotments made at Muddy River (Brookline), Rumney Marsh (Chel- 
 sea), and PuUen Point (Winthrop), and amounting to about five thou- 
 sand acres. At Brookline, Thomas Leverett and Thomas Oliver re- 
 ceived 115 acres each, William Colburn 160; they were selectmen. 
 John Cotton, the minister, received 250 acres ; the poorer sort, as they 
 were called, at the rate of four or five acres per head (1. c, 6), the 
 table of distribution thus giving a clear account of the size of families, 
 except that the leading men received land in keeping with their social 
 position. The Book of Possessions, being part 2 of the Boston Record 
 Commissioners' second volume, undertakes to show how the peninsula 
 was divided among the early settlers. These accounts, reduced to a 
 map by Mr. George Lamb, are the delight and despair of the antiquary. 
 They show how soon the Boston Puritan found his boundaries too nar- 
 row. Breed's Island was annexed to Boston in 1634, or three years be- 
 fore East Boston, As soon as it became Boston property, the felling 
 
CONSTITUTIONAL HISTORY. 33 
 
 of trees in the island was forbidden, and the island distributed among 
 "the inhabitants and freemen of this town, according to the number of 
 names in every family" (1. c, 3). Truly, the early comers were a 
 great land company. In Boston the work of the land company was 
 nominally done by allotters ; the real allotters were the selectmen. 
 
 The allotters or selectmen used great skill in the distribution of es- 
 tates; but for this the new office would have been abolished. But 
 it grew steadily, and still enjoys many prescriptive rights, though men 
 of the law tell us that a town or city has no powers, save those con- 
 ferred by the General Court. Yet the Boston selectmen, who had 
 divided a principality, were told by the town meeting of 1641 that 
 ' ' there shall be no more lands granted unto any inhabitants that shall 
 hereafter be admitted into the town, unless it be at a general town's 
 meeting" (2 Bost. Rec. Comm. , 6S). But inhabitants were admitted 
 by the selectmen, and the freemen of 1641-3 continued to distribute 
 land " amongst the present inhabitants," great latitude being allowed in 
 the distribution (1. c, 67). The final order for distributing what land 
 remained, was given by the town on March 4, 1641-2 (1. c, 67). In 
 the most critical trials the new institution of selectmen was found 
 equal to all demands. Less competent men distributing the vast estate 
 of a great town and future city, might have come to blows; a less 
 orderly community than the Puritans of Boston might have resorted to 
 crime. The early history of Boston is not the least honorable, and, 
 perhaps, the most instructive. The town established itself before the 
 General Court gave a general charter; indeed, this general charter, 
 greatly to be honored, simply gave the approval of law to what the 
 people had worked out for themselves with extraordinary skill and 
 foresight. In 1651 the owners of land on the peninsula were allowed 
 to buy and sell it at pleasure, and the year following the General Court 
 passed the order that all sales of real property must be effected by 
 written deeds, provided the deeds were duly acknowledged and re- 
 corded (3 Mass. Rec, 380). But the town of Boston ordered that "no 
 inhabitant shall let any house, housing or land to any Forriner without 
 the consent of the selectmen" (2 Bost. Rec. Comm., 103). An order 
 like this may look timid; it was needed, audit strengthened the attach- 
 ment of the founders to their new home. 
 
34 BOSTON. 
 
 Streets and Ways. 
 
 How did they appoint this home? The founders attempted to draw 
 a line between public highways and the town ways. After Boston had 
 distributed its lands, both in the town proper and in the country, the 
 General Court declared " that the selected towne's men have power to 
 lay out particular and private ways concerning their towne onely " 
 (2 Mass. Rec, 4), the result being that the town ways in Boston were 
 as badly planned and built as the public highways from town to town. 
 The selectmen would have alienated the town, and imperilled their 
 very existence, had they systematically ordered streets and caused 
 them to be properly built. First the settlers received the land they 
 wanted ; then the town decided that ' ' every one shall have a sufficient 
 way unto his allotment of ground, wherever it be, and that the inhab- 
 itants of the towne shall have libertie to appoint men for the setting of 
 them out, as need shall require, and the same course to be taken for all 
 comon high ways, both for the towne and countrie " (3 Bost. Rec. 
 Comm., 7). Surveyors of highways, on the other hand, were author- 
 ized by the General Court as early as 1635-6 (1 Mass. Rec, 172), but 
 were not appointed in Boston until later. In 1637 special surveyors 
 were chosen ' ' for the high wayes towards Roxbury and . . to the 
 Milne" (2 Bost. Rec. Comm., 16), though the office is mentioned 
 earlier (1. c, 10); general surveyors were apparently first chosen in 
 1638 (1. c, 35). Throughout the days of the Colony surveyors and 
 selectmen were kept apart, the result being confusion, not only as to 
 highways and town ways, their laying out and construction, but also as 
 to the very title in these thoroughfares. This confusion continues to 
 the present time, when the city has a board of survey as well as a board 
 of street commissioners, beside private owners of land, to lay out 
 streets and highways. This confusion was complete by 1640, or as 
 early as the town had distributed all the land within its reach. 
 
 On the peninsula an interesting attempt was made to set houses 
 back from the street lines, and to have a "pale" in front of every 
 house (1. c, 12, 105); the attempt failed, though a pale of Colony days 
 still remains in front of the Old South meeting-house (7 Bost. Rec. 
 Comm., 60), being the last pale mentioned in the Town Records. At 
 present the term street includes the sidewalks on either side of the 
 street (Boston City Ordinances, 1892, p. 4); in early days the street 
 was " between pale and pale, " as now in Commonwealth avenue. The 
 
CoMsflTUTldNAl HiSTORf. §S 
 
 Uncertainty of the title in streets and highways led to extraordinary 
 license. The General Court authorized the demolition of houses built 
 " in any towne liberties [streets], preiuditiall to the townes, without 
 leave from the townes" (1 Mass. Ree. , 168); and the selectmen, en- 
 couraged by such authority, ordered a fine of ten pounds for every 
 encroachment upon the street line, a fine they could not properly inflict, 
 least of all without special authority from a general town meeting. In 
 1641-2 the selectmen ordered " for the preserving of all high wayes in 
 this Towne, that none shall dig any sand or clay in any of them, 
 under the penalty of 5j. per load" (3 Bost. Rec. Comm., 67). The 
 condition of these ways may be imagined ; in the highways the freeman 
 or inhabitant was required to do very little, in the town- ways nothing 
 at all. For fear of expecting too much of public spirit or private duty, 
 the General Court resolved in 1639 that " it is not intended that any 
 person shall be charged with the repairing of the high wayes in his 
 owne land " (1 Mass. Rec, 280). In the case of gates and rails en- 
 croaching upon the highway, county courts or the court of assistants 
 might appoint a committee (2 Mass. Rec, 192). No wonder the Gen- 
 eral Court appointed, in 1667, a committee " to bring in an effectuall 
 order for keeping in good repayre all streets and highways " (4 Mass, 
 Rec, part II, 350). 
 
 The principal highways in early Boston were those leading to Rox- 
 bury and Charlestown, communication with Cambridge being neglected 
 until later days. In the beginning, it seems, no allowance for travel 
 to or from Roxbury was made. In 1636 surveyors were appointed to 
 make a "sufficient foote way," apparently along the neck to Roxbury. 
 They seem to have failed, for within a year ' ' Thomas Grubbe and 
 Jonathan Negoose are Chosen Surveyors for the high wayes towards 
 Roxbury (2 Bost. Rec. Comm., 10, 16), and in 1650 Peter Oliver was 
 to "have;^15 per annum, for 7 years, to maintaine the High wayes 
 from Jacob Eliots Barne [near the present corner of Washington and 
 Boylston streets] to the fardest gate bye Roxsbery Towns end, to be spf- 
 ficient for Carte and horse, to the satisfaction of the Countrye " (1. c, 99. 
 See, also, 7 Bost. Rec. Comm., 22). In 1635 Thomas Marshall was 
 chosen to maintain a ferry from " Miln Point" to Charlestown. The 
 town was in 1642-3 called upon to lay out a convenient way to the ferry 
 as well as to the windmill on Copps hill (1. c, 72), but the committee 
 . simply reserved a highway through that part of the town, to be laid 
 out in the future, but to be thirty-three feet wide, and as straight as the 
 
36 BOSTON. 
 
 lay of the land might permit (1. c, 73). When the water mill was 
 built, it was connected with Copps hill by a highway "a rod in breadth " 
 (1. c, 95). Other streets had to be built through this part of the 
 town, but only the "highway" was thirty-three feet wide, while the 
 town ways were a rod in width, the ground for them being taken from 
 private owners who were entitled to pay (1. c, 100). One of these 
 ways, given by Thomas Marshall, was relinquished by the selectmen 
 in 1653, to save expense. In other words, in 1650 the town of Boston 
 had begun to buy land for streets, and from necessity bought as little 
 as would suffice for immediate wants. It has pursued that policy ever 
 since. When Boston opened the way to Roxbury it had previously 
 closed, no road led through Roxbury to Muddy River, which was a part 
 of Boston. Only the General Court could solve this difficulty, and ap- 
 pointed in 1645 a committee that laid out the highway, and assessed 
 the cost in part on Boston (2 Mass. Rec, 115). The committee was 
 continued in 1658 (4 Mass. Rec, part I, 327). The owners of the land 
 through which the highway passed, were awarded ' ' meete satisfac- 
 tion. " Boston, then, had to pay dearly for its own ways, and for neces- 
 sary travel through another town. If any of the streets were paved, 
 it was done at private expense ; but it is more likely that colonial Bos- 
 ton had no paved streets (Bost. Rec. Comm., 53, 59, 66, 85, 99, 108, 
 116, 127). Rather than go to the cost of paving, every cart horse in 
 town was required to give one day's work to street repairs, under the 
 direction of the surveyors of highways. 
 
 The earliest houses in Boston were made of mud walls and thatched 
 roofs (2 Bost. Rec. Comm. , 40). But frame buildings were put up as 
 soon as the wood could be prepared. At first the logs were sawed in 
 Boston, and the market place, the site of the old State house, was once 
 used as a " sawe pitte. " Timber not being abundant, brick making- 
 soon began, and after some heavy losses by fire, the General Court re- 
 quired that all buildings in Boston should be of brick or stone, and 
 covered with slate or tiles (5 Mass. Rec, 240, 426); but the law was 
 not permanently enforced, notwithstanding a severe penalty attached 
 (7 Bost. Rec. Comm., 174). To fight fire and for other purposes, a 
 number of conduits, or cisterns, were built, one near the town dock, 
 another near the town house (2 Bost. Rec Comm., 138, 158). These 
 conduits, copied from English models, proved insufficient, as an at- 
 tempt was made to feed them from springs which frequently failed. 
 The first fire engine was imported from London in 1678, and was to be 
 
CONSTITUTIONAL HISTORY. Z1 
 
 served by paid men (7 Bost. Rec. Comm., 135). So the selectmen, 
 always sustained by the town meeting, contrived to maintain order, 
 to check irregularities, and to pilot the town successfully through 
 many perplexing difficulties. This was achieved by moral force and 
 remarkable judgment. In many cases the selectmen did not even act 
 as a board, but as vested with individual authority. By a singular 
 force of tradition this exercise of individual power on the part of mem- 
 bers of a board survives in the practice of the aldermen, who are the 
 successors and heirs of the selectmen. Even the law reflects this 
 anomaly, a paper signed by a majority of selectmen or aldermen being 
 generally received- as representing the respective boards. Technically 
 and in strictness, the board of aldermen can act only as a board 
 (Public Stat, of 1882, ch. 38, se. 3; Acts of 1883, ch. 164). 
 
 The Town and Trade. 
 
 The jurisdiction of the town over the business affairs of the freemen 
 and inhabitants was necessarily more limited than over the streets and 
 highways, but not inconsiderable. In 1648 the General Court incor- 
 porated the shoemakers of Boston, also the coopers of Boston and 
 Charlestown, giving them a monopoly of their trades, and virtually the 
 character of guilds. This arrangement appears to have failed under 
 the greater individual liberty exercised in a community where nearly 
 everybody was a freeman, who helped directly in electing and defeat- 
 ing governors, and was himself, at least in theory, a part of the Gen- 
 eral Court. But the system of apprentices was formally adopted by 
 the town. In 1660 a town meeting ordered that "no person shall 
 henceforth open a shop in this town, nor occupy any manufacture or 
 science, till he has completed 31 years of age, nor except he hath 
 served seven years apprenticeship, by testimony under the hands of 
 sufficient witnesses ; and that all indentures made between any master 
 and servant shall be brought in and enrolled in the Towne's Records 
 within one month- after the contract made, on penalty of ten shillings 
 to be paid by the master at the time of the apprentices being made 
 free" (3 Bost. Rec, 156). Under this order the selectmen of 1667-8 
 told John Farnum that he could not set up his son in the cooper trade, 
 unless he had served the apprenticeship of seven years, ' ' on penalty of 
 10 shillings per month " (7 Bost. Rec. Comm., 39), In this case the 
 complaint was made by the coopers, but the authority relied on was 
 
the town order, and the selectmen acted, claiming at the same time the 
 doubtful right of inflicting a cumulative penalty. In other words, the 
 town was treated as the only corporation, and the selectmen were 
 supposed to be its executive officers. But the principle of free-trade, 
 as then understood — every man to practise the trade he thought best — 
 asserted itself beyond all legislative regulations, before the colony 
 ended. Boston began as an aristocracy ; but the democratic principle 
 triumphed over all obstacles; and the aristocracy yielded, except in 
 social matters. 
 
 Before the founders left England, they considered the importance of 
 ironworks in the new world (1 Mass. Rec, 28, 30). Here the town of 
 Boston led in the enterprise. In 1643 the town gave to John Winthrop, 
 jun., and his associates, " three thousand acres of the common land at 
 Brain try, for the encouragement of an iron worke, to be set up about 
 Monotocot river" (2 Bost. Rec. Comm., 77). The General Court fol- 
 lowed with a generous act of incorporation (2 Mass. Rec, 61, 125), and 
 the enterprise had the benefit of Thomas Foley's advice and capital, 
 Foley being one of the great English iron masters of his time. Gov- 
 ernor Winslow, of Plymouth, was likewise interested in this undertak- 
 ing, which has never died out, the Boston selectmen having chosen the 
 best ground in all Massachusetts. They contributed also to the first 
 ship built in Boston, the "Trial," which was built in 1641, and made 
 her first voyage to the Azores, the second to Spain. The builder was 
 Nehemiah Bourne, and the selectmen contributed the value of sixty 
 acres that had been alienated by Brother Wright, of Braintree, who 
 was fined £,2> \Qs., to be paid to Bourne. The selectmen had no right 
 to lay so heavy a fine ; they probably relied on the fact that they were 
 the guardians of the town lands, and that they were bound to put these 
 lands to the best uses. The town did not object, and the proceeding 
 stood (2 Bost. Rec. Comm., 58, 59). In 1645 the General Court opened 
 all harbors of Massachusetts to ' ' all ships from any of the ports of our 
 native country or elsewhere, coming peaceably" (3 Mass. Rec, 12). 
 The law remained until 1661, when it was repealed, possibly under the 
 influence of the English navigation law passed in 1651, the influence 
 of which is still felt. 
 
 In 1667 all sea-going vessels not owned in Massachusetts were re- 
 quired to pay tonnage dues whenever they entered a Massachusetts 
 port, and a year later a customs tariff on imports and exports was 
 adopted, to take effect on March 1, 1668-9. Boston and Massachusetts 
 
CONSTITUTIONAL HISTORY. 39 
 
 had learned that commerce was apt to be so profitable as to bear tax- 
 ing. By a certain inconsistency the navigation act then gathered the 
 tax on commerce largely of home merchants. The navigation act 
 known as 13 Carol., ch. 2, was formally adopted by Massachusetts in 
 1677 (5 Mass. Rec, 155), and in 1681.-3 a naval office was established 
 at Boston. James Russell was the first naval officer, and his commis- 
 sion was dated March 17, 1681-3 (5 Mass. Rec, 337-8). Within a year 
 the General Court ordered that ' ' the port of Boston, to which Charles- 
 town is annexed, and the port of Salem . . are and shall be lawful 
 ports in this colony, where all ships and other vessels shall lade or un- 
 lade any of the plantations enumerated goods, or other goods from 
 foreign parts, and nowhere else, on penalty of the confiscation of such 
 ship or vessel, with her goods, tackle, etc. , as shall lade or unlade else- 
 where " (5 Mass. Rec, 383). Russell's successor was Samuel Nowell. 
 Arrivals in the port of Boston reported at Castle Island, the fortifi- 
 cations of which were Originally intended to protect Boston from 
 foreign enemies. Indeed Boston had chiefly paid for the "castle." 
 If the navigation acts, the naval officer, and the custom-house of later 
 days, injured Boston and her merchants, the town remained silent. 
 In truth, the laws were not strictly enforced, and commerce did not 
 suffer. Boston commerce appeared to depend on the wants of the 
 people, and the enterprise that supplied these wants. 
 
 As early as 1633-4 Boston was made a market town. The market 
 was held where the old State House stands, and Thursday was market 
 day, when the people from the country could sell their goods to the 
 people at Boston without difficulty, and take in return what merchan- 
 dise was for sale. In 1648 Boston received authority to hold two fairs 
 a year, in June and October (3 Mass. Rec, 357), which led at the next 
 town meeting to the election of two " clarkes of the market." A fair 
 was simply a market of two or three days ; but a market was in those 
 times the only chance of every comer to enjoy free trade in the full 
 sense of the term. Clerks or superintendents of the market have been 
 elected ever since, and the Market Department of the Boston city gov- 
 ernment may justly boast of being the first of all such departments 
 here established. It dates back to March 13, 1649. By a quaint anomaly 
 the market department has become a source of great revenue to the 
 city, when the characteristic of the old markets was that they should 
 be- entirely free. This freedom from expense, even rent, was expressly 
 guaranteed when the first town house was built in Boston, and the 
 
40 BOSTON. 
 
 lower part of it reserved for market purposes : " The place underneath 
 [the town house, which stood on pillars] shall be free for all inhabitants 
 in this jurisdiction, to make use of as a market for ever, without pay- 
 ment of any toll or tribute whatever" (4 Mass. Rec, part i, 327). It 
 deserves notice, also, that the first department established in our town 
 government should have slipped away from the selectmen, as far as the 
 administrative work of this department is concerned. The power so 
 lost they have never regained ; neither have their successors, the alder- 
 men. Very likely the selectmen of 1649 were not aware that the elec- 
 tion of clerks of the market by the town meeting was the first marked 
 step toward reducing the management of all town prudentials by 
 selectmen. In time they were to lose more. 
 
 Finances, Temperance, Schools. 
 
 In the matter of finance, the town bore heavy burdens from the be- 
 ginning, and always proceeded with good judgment. Since 1885 the 
 financial officers of the city are the appointees of the mayor, and not re- 
 sponsible to anybody but him. Even the auditing of accounts is con- 
 trolled by the executive head of the city. The selectmen of colonial 
 Boston were too prudent to ask for such power. They assessed all 
 taxes, but in making valuations of property for assessment purposes, 
 they had the assistance or supervision of a special commissioner elected 
 in town meeting. This arrangement began in 1646, and lasted to the 
 end of the colonial period (3 Mass. Rec. ,87, 116). The taxes, or rates, 
 were always collected by constables. But the selectmen generally 
 chose the town treasurer, the town appointing committees for the ex- 
 amination and auditing of accounts. , The report of this committee in 
 1685 (7 Bost. Rec. Comm., 175) is a good illustration. The town tax 
 usually exceeded the " country rate," as it was called, though the latter 
 was high. The country rate, or State tax, paid by Boston, amounted 
 in the five years from 1675 to 1679 to ^10,776 5s. %d. Of this total, 
 ;£10,353 hs. 2d. went to John Hull, the treasurer of Massachusetts, 
 who gave Thomas Brattle, the treasurer of Boston, a full discharge (7 
 Bost. Rec. Comm., 153). The amount was occasioned mainly by King 
 Philip's war. The ordinary town expenses, at the end of the colonial 
 period, were about 400 pounds a year, mostly fixed charges for schools, 
 for the poor, for highways, and for rents and repairs. To obtain this 
 sum, about 600 pounds was the sum committed to the constables for col- 
 lection. An interesting account of the town budget, from Edward Wil- 
 
CONSTITUTIONAL HISTORY. 41 
 
 lis, town treasurer, is preserved in the Town Records of 1686 (7 Bost. 
 Rec. Comm., 187). The number of polls, in 1687, was returned at 
 1,447, but included all males of the age of sixteen and above (1. c, 
 194). This fixes the population for that year at more than 5,000, a 
 small number of whom lived in Muddy River or Rvimney Marsh. 
 Then, as now, the tax laws were made by the General Court, and the 
 town officers were required to collect both the State tax and the town 
 money. The colonial selectmen discharged this duty with ability and 
 integrity. 
 
 The liquor laws of the time were not radically unlike those of the 
 present time. The town simply recommended persons that might be 
 trusted to sell intoxicating drink, and supervised the proper adrninis- 
 tration of the law ; but did not issue licenses, and did not receive the 
 revenue connected with the liquor business. This revenue consisted in 
 import duties, license fees, and excise, and went to the colony. In 
 1681-2, when Boston had three churches and three schools, it was al- 
 lowed six wine taverns or wholesalers, ten innholders, and eight retail- 
 ers, who sold liquor to be drunk in the homes of the people. Intem- 
 perance was greater than now. On the whole, the people had very 
 little to do with the regulation of this traffic, local option being a mod- 
 ern growth, and opinion increasingly sensitive. The selectmen of col- 
 onial Boston were the overseers of the poor. They needed an alms- 
 house, but did not succeed in getting it, while their expenses for the 
 poor were very considerable. Most of the bequests made to early Bos- 
 ton were for the poor of the town, and in most cases it was necessary 
 to pay out the principal ; so urgent were the necessities of the select- 
 men. 
 
 The school system of Boston, now its most democratic institution, had 
 its beginning in the establishment of the Latin school and Harvard 
 College. But the people at large never intended to go to college or 
 study Latin. To supply the wants of the plain people, who are the 
 town, a school with Latin in it, and looking to the ministry, did not 
 answer. On December 18, 1682, a public meeting of the inhabitants 
 appointed a committee, including the selectmen, to " consider of and 
 provide one or more free schools for the teaching of children to write 
 and cipher, within this town " (7 Bost. Rec. Comm., 158), The com- 
 mittee voted that two such schools should be established ; that the town 
 should allow ;^25 for each ; and that parents might improve the teach- 
 ers' lot by paying tuition. On November 24, 1684, the selectmen en- 
 
 6 
 
43 BOSTON. 
 
 gaged John Cole to keep a free school for instruction in reading and 
 writing, his pay to consist in ;^10 in money, and ^30 in country pay. 
 When the colony ended, Boston had the Latin school, and two schools 
 for reading and writing English. The care for these schools did not 
 fall altogether upon the selectmen, though they had to supply the 
 larger part of the money. The care of the schools gradually drifted 
 away from the selectmen, and in modern days became an independent 
 branch of our municipal government. The selectmen and their suc- 
 cessors never managed the schools. Indeed, the free school is the 
 work of the people, and the people have generally preferred to control 
 the free school more directly than by a general town or city govern- 
 ment. 
 
 Results. 
 
 The colony government, under the patent of 1629, ended in May, 
 1686. The Province government, under the charter of 1691, began in 
 May, 1692. The interregnum was brief. President Dudley and his 
 council served less than a year, and Sir Edmund And-ros was swept 
 away, together with Edward Randolph, in the revolution of April 20, 
 1689, when the colony resumed its former methods of doing business, 
 and so continued until the arrival of Sir William Phips and the begin- 
 ning of the Province government. In the sixty-two years of its history 
 under the colony, the town of Boston had become the most influential 
 town in New England and America. Since 1680-81 it was the only 
 town that had three deputies in the General Court (5 Mass. Rec, 305), 
 The colony had enjoyed complete self-government, and enabled the 
 towns of Massachusetts to enjoy the same privilege in all prudential 
 affairs of a municipality. No town made better uses of this opportunity 
 than Boston, It laid the foundations of a municipal government which 
 has rarely failed the community in its reasonable expectations, and on 
 historic occasions pointed the way to the highest duty aiid , honor. ^ 
 Nearly everything that makes the government of Boston attractive or 
 instructive, has its root in the high endeavors and hopeful ambition of 
 the colonial period. As late as 1685 the town instructed its officers not 
 to collect a fine of £100 lawfully ordered by the county authorities. It 
 had previously defied a king ; it was to defy another, Boston has never 
 defied Massachusetts. Yet it was Boston that prevented the coun- 
 ties of Massachusetts from being a power between the town and the ' 
 commonwealth. It was Boston that insisted upon direct dealings be- 
 
CONSTITUTIONAL HISTORY. 43 
 
 tween the commonwealth and the towns that gave the commonwealth 
 its character and strength. It was Boston that gave the town and town 
 government a superior dignity that has been admired by many great 
 minds, and rarely criticised by any mind. Colonial Boston began as an 
 aristocracy ; it ended as a pure democracy. This interesting transition 
 entitles the people of colonial Boston to enduring honor ; for the change 
 was made almost imperceptibly. The more the whole community was 
 fit for municipal self-government, the more it had. Special praise, 
 however, is due to the early leaders. They never sought to defend the 
 aristocratic institutions in church and state they had brought with them 
 from England; but helped bravely and wisely to elevate the entire 
 community to a reasonable understanding of what was best calculated 
 to build a good town and a free commonwealth. A commonwealth 
 like Massachusetts, and a community like Boston, are not a natural 
 growth, nor the result of evolution and happy environment, but the 
 work of reasoning and highly ethical generations, who know what is 
 best, and always raake for moral and political freedom, whatever the 
 sacrifice. 
 
 After two centuries of political experience it is easy to point out 
 where the Colony failed : It did not separate the powers of govern- 
 ment. With equal justice the founders may be charged with not hav- 
 ing been logical. But it is a mistake to estimate the seventeenth 
 century by the nineteenth ; the true business of the historian is to show 
 how the present resulted from the past. We should not forget that 
 the seventeenth century was emphatically a theological age, when 
 dogmatic theology ruled supreme. Our time is emphatically untheo- 
 logical, and not kind to' dogmatic theology. Whether this is really a 
 gain, may be open to doubt; it is not doubtful, perhaps, that a scien- 
 tific or science-making age is not the best qualified to judge a time when 
 religion reigned supreme and the ideal interests of mankind had a 
 theological cast, as if the highest hopes could not be separated from the 
 eternities. We of the present are not given to theology ; but the ideal- 
 ism of Massachusetts and its capital began with the theological 
 founders. Whatever our opinion of dogmatic theology, it is an ideal 
 pursuit ; and it is the special honor of Boston and Massachusetts that, 
 in the midst of practical labors, they have always evinced a marked 
 interest in the ideal concerns of mankind. Scholarship has never lan- 
 guished in Boston ; here is the cradle of our national literature ; fine art 
 has made Boston a home ; Boston artisans have ever tried for the best. 
 
44 BOSTON. 
 
 This whole continent owes a debt to Puritan Boston. But the eminence 
 of Boston in practical government and the ideal life began in 1630. In 
 the days of the Puritan colony it was supreme. Liverpool and Glasgow 
 have no such story to tell ; neither have Hamburg and Marseilles. In 
 the seventeenth century they were strangers to ideal pursuits ; Boston 
 was not. 
 
 The colony passed easily and very early from a government by free- 
 men to representative institutions, or government by the representa- 
 tives of freemen. The town of Boston was anxious to take a like step, 
 but was prevented by the sister towns as represented in the General 
 Court. A preference of town government to incorporated cities is still 
 the dominating creed of Massachusetts, although a city is nothing 
 but a town with representative institutions. The same sentiraent 
 attributes to towns certain prescriptive powers or rights, which are 
 denied to the city, as though a city had only enumerated rights, ex- 
 pressly conferred, while towns are sometimes thought to have all 
 municipal powers not expressly denied. The early selectmen proceeded 
 on this latter theory, and it is due to them that our aldermen's powers 
 cannot be enumerated. Meanwhile it is odd, and illustrates the con- 
 servative force of tradition, that public opinion in 1893, as in 1650, 
 looks upon representative government in the State as safe and neces- 
 sary, in municipal matters as apt to be fraught with mischief and a loss 
 of popular rights. In truth, the ' founders of Boston reasoned deeper 
 and better on town government than this century does on city govern- 
 ment. It is safe to add that the early selectmen of Boston vindicated 
 their rights more effectually than did the city oflScers of two centuries 
 later. So well did the early selectmen manage as not to invite the in- 
 terference of the General Court, or even of the town meeting; a later 
 age goes to the State House when it wishes to govern Boston. Nor 
 should it be forgotten that municipal self-government must vindicate 
 itself. Had the constitution of Boston from 1630 to 1693 been ill ad- 
 ministered, the General Court would have been glad to offer relief ; but 
 no relief was needed; Boston took better care of itself than did the 
 commonwealth. For this we are indebted to the early selectmen ; they 
 taught a lesson for all time. 
 
 Yet who can deny that the constitutional law of colonial Boston and 
 Massachusetts was ill-defined? The colonists constantly spoke of the 
 magistrates, who were the "assistants," or board of directors, sur- 
 rounding the Governor. They were intended by the patent to be ex- 
 
CONSTITUTIONAL HISTORY. 45 
 
 ecutive officers ; they turned out to be a branch of the General Court, 
 and judges from whom litigants could appeal to the General Court. 
 The weakness of the system lay in the jealousy with which the execu- 
 tive power was scattered, while the assistants wielded great power in 
 legislation and as the chief judiciary of the country. This waste of ex- 
 ecutive power, accidentally enhanced by the establishment of a council 
 (1 Mass. Rec. , 361), still affects the Commonwealth; in colonial times 
 it led the selectmen of towns to assume much executive power, an ap- 
 peal lying, not to a superior executive who could have acted, but to 
 magistrates or the General Court who would deliberate. The county 
 officers never had much executive authority, and the Governor less. 
 Hence the executive power of towns had to be exercised by special of- 
 ficers or committees ; as a matter of fact, the selectmen soon became a 
 standing committee of the town for all executive purposes and for the 
 prudentials. In short, while the executive officers of the common- 
 wealth were intentionally deprived of power, the selectmen became 
 general executive officers in town affairs, partly from necessity, but 
 mainly from choice. They were the best executive product of the time. 
 This outcome is certainly remarkable ; for the patent intended the Gov- 
 ernor to be an executive of real power, assisted but not limited by the 
 assistants. He became a respectable figure head; the assistants be- 
 came judges and the higher branch of the General Court, while the 
 town, relieved of court business, and too busy for making many by- 
 laws, evolved the selectman, whose duties were almost altogether ex- 
 ecutive or administrative. But being men of energy, the selectmen of 
 the colonial age exercised many powers never conferred upon them by 
 the town, much less by the General Court. 
 
 PROVINCIAL PERIOD, 1693 TO 1776. 
 
 The Province Charter was signed October 7, 1691 ; but the govern- 
 ment under the new charter did not begin until May 14, 1692, and the 
 first act of the General Court in the Province period was not passed un- 
 til June 14, 1692. It is proper, therefore, to treat the colonial period 
 as ending in 1692, and to consider the Andros interregnum, from 1686 
 to 1689, a mere episode, the effect of which upon, the town government 
 of Boston was very slight. Indeed, the town government was so well 
 established, and Andros as well as Randolph so little appreciated its 
 importance, that they scarcely made an impression upon the organiza- 
 tion of the town which led in their overthrow. The Province period 
 
46 BOSTON. 
 
 ended in 1776. If a day may be named, it should be July 4, although 
 the Revolution began much earlier, and was complete in Massachusetts 
 as early as 1774. Great Britain, on the other hand, did not formally 
 recognize the independence of Massachusetts and the United States un- 
 til November 30, 1782, and the definitive treaty recognizing the United 
 States was not signed until September 3, 1783. July 4, 1776, was 
 acknowledged beforehand by theBoston town meeting as Independence 
 Day, for it resolved on May 23, 1776, that •' If the Honorable Conti- 
 nental Congress should, for the Safety of the Colonies, declare them In- 
 dependent of the Kingdom of Great Britain, they, the Inhabitants, will 
 solemnly engage with their Lives and Fortunes to support them in the 
 Measure " (18 Bost. Rec. Conim., 235), It is the honor of Boston, as a 
 municipality, to have taken a leading part in defending American in- 
 dependence against both Andros and Gage. 
 
 The freedom of a state is indicated by the self-government it enjoys, 
 and political maturity is indicated by municipal self-government. The 
 Massachusetts Colony governed itself, and expected each town to do 
 the same. The Province indicated a marked decline from the freedom 
 of the colonial period. The Colony chose its own governor; under the 
 Province charter the crown appointed the governor, the lieutenant-gov- 
 ernor, and the secretary. The Colony made its own laws, and the only 
 recognized test of these laws was that they must not conflict with the 
 patent of 1629. The Province was required to submit its laws to the 
 privy council in England for review, and they were subject to nullifica- 
 tion on the part of the privy council within three years after receipt. 
 The charter, then, did not encourage freedom, and did not contemplate 
 municipal self-government, except that the subjects of the Province 
 were supposed to have the liberty and immunity of natural born Eng- 
 lishmen. The towns were incidentally recognized by the charter, but 
 the writers of the charter probably did not know a Massachusetts town. 
 When the crown learnt from Boston the meaning of town and town 
 meeting. Governor Gage was instructed not to let any town meetings 
 be called without his knowledge and consent; to which the Boston 
 selectmen replied with grim humor that they had no need of calling a 
 town meeting, for "we had two now alive by adjournment " (23 Bost. 
 Rec. Comm., 226). For the validity of this proceeding they reHed on 
 the law of the Province, which had the approval of the privy council. 
 
CONSTITUTIONAL HISTORY. 47 
 
 Area and Population. 
 
 The Province inherited ' Boston a flourishing town of about six 
 thotisand inhabitants, and including the present towns of Brookline, 
 Revere and Winthrop, as well as the city of Chelsea. Suffolk county- 
 included Boston, Roxbviry, Dorchester, Milton, Brain tree, Weymouth, 
 Hingham, Hull, Dedham, Medfield, Wrentham, Mendon, and Oxford. 
 Before long, Woodstock was added, being settled by emigrants from 
 Roxbury, and originally called New Roxbury. It passed to Connecti- 
 cut about .1749, though the Province never gave up its claim. In 1705 
 Brookline was set off from Boston, and in 1739 Chelsea became inde- 
 pendent of Boston. The town of Boston, ha^ sold, also, its lands in 
 Braintree. From 1739 to 1804, then, when South Boston was added, 
 Boston was small in area. In 1743 it boasted of 16,383 inhabitants; in 
 1771 it was supposed to have 1,800 dwelling-houses; but on July 4, 
 1776, it had less than 3,000 residents, many being absent on account of 
 the war and the smallpox then raging in Boston. A few months later, 
 907 men from Boston were reported to be in the service of the country 
 against Great Britain. Meanwhile Suffolk county had been greatly 
 reduced, notably by the establishment of Worcester county, in 1731, 
 when Mendon, Woodstock, Oxford, Sutton, and Uxbridge were set off. 
 For in 1730 the county of Suffolk comprised the following towns: Bos- 
 ton, Roxbury, Dorchester, Hingham, Braintree, Dedham, Medfield, 
 Medway, Weymouth, Milton, Hull, Wrentham, Mendon, Woodstock, 
 Brookline, Needham, Sutton, Oxford, Bellingham, Walpole, Stoughton, 
 and Uxbridge. On July 4, 1776, Suffolk county comprised- Boston, 
 Roxbury, Dorchester, Milton, Braintree, Weymouth, Hingham, Ded- 
 ham, Medfield, Wrentham, Brookline, Needham, Stoughton, Stough- 
 tonham District, Medway, Bellingham, Hull, Walpole, Chelsea, and 
 Cohasset. But the power of the county was small ; its chief importance 
 lay in the administration of justice, which was wisely kept from town 
 control and from all town officers. 
 
 The people were comparatively homogeneous, the chief distinction 
 being' between rich and poor, and between old families- and later ar- 
 rivals. As late as 1770 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., 30, 
 89) ; but as the time went on, this claim was effaced. The people en- 
 
48 BOSTON. 
 
 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., 169). In 1771 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 4^. 6rf. 
 sterling, or ^s. 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 
 
CONSTITUTIONAL HISTORY. 49 
 
 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, 1672, 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, 66). 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 acts passed in 1636 
 (1 Mass. Rec, 173) and 1692 (1 Prov. Laws, 64). The Colony told the 
 
60 BOSTON. 
 
 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 Session^, 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 
 
Constitutional history. 5i 
 
 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- 
 
52 BOSTON. 
 
 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 ]761 (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 1774 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 u.nequal 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 
 
CONSTITUTIONAL HISTORY. 53 
 
 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 1708 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. Coram., 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 committee. 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. 
 
54 BOSTON. 
 
 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 much 
 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 Hutchin- 
 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 
 
CONSTITUTIONAL HISTORY. 55 
 
 committee (1. c. , 72), and the question whether the town wished to be 
 incorporated was "passed in the negative, almost unanimously" 
 (1. c, 67). 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 
 political 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 30,000 in 1738, to less than 3,000 in 
 1776 — 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 mtmicipalities. 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 1700-1 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 
 
56 BOSTON. 
 
 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. c, 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, 244) 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 1776 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 
 
CONS TITUTIONA L HIS TOR Y. 57 
 
 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 1693 conferred the town 
 suffrage upon all freeholders and upon any inhabitant who was "rate- 
 able at twenty pounds estate" (1. c. , 65). In 1700-1 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, 453). 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 
 1738-9 (3 Prov. Laws, 761, 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 1730 that 
 freeholders were not qualified to vote in town meeting, unless rateable 
 at twenty pounds estate, and this interpretation prevailed (1 Prov. 
 Laws, 107 ; 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 733 (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. 
 
 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 
 
58 BOSTON. 
 
 Province made a general law to the same effect (3 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. 269-266) 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 communitj'. 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 
 
Constitutional hisTOrV. da 
 
 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 1750 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 
 1773 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 
 
60 BOSTON. 
 
 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., 130-125.) 
 
 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 " Ouerseers of the poore by papor votes " (7 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 
 
CONSTITUTIONAL HISTORY. 61 
 
 town officers, and among the few adopted directly from England. The 
 tithingman, introduced in 1677, and originally appointed to look after 
 ten families, his neighbors, was a suh-constable who looked after sab- 
 bath breakers (Col. Laws, 1672, ed. Whitm., 249), He was not 
 thrifty; neither was his successor, the warden of 1761 (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 (7 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 1776 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 
 
62 BOSTON. 
 
 stirveyors 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 abutters ; 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 1700 to 1720, 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 commis.sioner 
 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 1,447 
 rateable polls (males above sixteen years of age), and rateable estates 
 to the value of ;^21,898 15s. On October 27, 1090, the Boston select- 
 men called for a town tax of ;^412 4.S-. 2d. ; on June 11, 1691, they called 
 for a town tax of ;^435 'is., both rates being payable in " countrie 
 pay," with an allowance of one-third to such as paid money (7 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 
 
CONSTITUTIONAL HISTORY. 63 
 
 " reputed worth " at least ;^300. On July 16, 1694, then, the town of 
 Boston chose its first assessors (1 Prov. Laws, 166; 7 Boat. 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 1703 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 credit" 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 37-40 fine (2 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 1737, 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 1772 was ;^6,600; in 1773, ^7,000; in 1774, 
 ^8,000 (1. c, 86, 135, 180); only a small part could be collected, and 
 in 1775 no town tax appears to have been ordered. Boston received 
 from the Province, in matters of finance, the good institution of asses- 
 
64 BOSTON. 
 
 sors and collectors, and a currency as bad as was ever inflicted upon a 
 reputable community. Governor Belcher told the crown in 1737 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 1678 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" (7 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 jxistices of the peace were authorized to issue 
 a warrant enforcing the regulations of the selectmen in this business. 
 It was held later (1. c, 487) 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 1772 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 
 
CONSTITUTIONAL HISTORY. 65 
 
 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" (3 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 epidemics 
 in Province times, the General Court repeatedly supplemented its "Act 
 providing in case of sickness," passed in 1701-2. In 1739 persons ar- 
 riving in Boston from an)' place ' ' where the smallpox or other malig- 
 nant infectious distemper is prevailing," — the act referred to places 
 " in the neighboring provinces " only, — were reqviired to report to the 
 selectmen, and the selectmen had full power to warn such persons out 
 of the Province (3 Prov. Laws, 987). The fine of neglectful travellers 
 was ;^20. In 174:3-3 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, ;^35 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. , 739). 
 On July 4, 1776, the court of sessions was authorized to permit the 
 establishment of inoculating hospitals, and to punish private inocula- 
 tion with whipping (5 Prov. Laws, 553). 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 epidemic 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, 1775, to March 39, 1776, no town meeting was held in Boston; 
 the selectmen's meetings were interrupted for inore 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., 337); 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 pot; know that epidepijc§ are more 
 
66 BOSTON. 
 
 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 1693. 
 
 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 
 precincts 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 1710 the practice of choosing 
 eminent men for the inspection of schools was formally adopted by the 
 town (8 Bost. Rec. Comm., 65). In 1724-5 the selectmen began the 
 custom of annual school visits, to which eminent men were invited, 
 the affair ending usuflUy 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, 677). In 
 
COMSTITUTIOMAL HISTORY. &1 
 
 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- 
 cept of stone or brick, and covered with slate or tile " (5 Mass. Rec, 
 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 1760 a similar law was passed, but the 
 same law excused all previous oflienders, 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 fireg of Boston have helped, and the selectmen 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. 
 
68 BOSTON. 
 
 The Province authorized Boston, in 1761, to establish a town police 
 (4 Prov. Laws, 463). The theory had been that the town constable 
 was the town policeman, that the constable might have officers to help 
 him, and that where the constables proved insufficient the Colony or 
 the Province must act, and that they would act by the militia. The 
 theory broke down, because neither the Colony nor the Province was 
 prepared or disposed to maintain a standing militia. After the theory 
 had failed, the town of Boston was permitted to make what police 
 arrangements it could. The chief difficulty was the cost. Well might 
 the Province shrink from the cost of a police force for all Massachu- 
 setts; but even a rich town that raised by lotteries the money required 
 for paving the way to Roxbury, or for rebuilding Faneuil Hall, would 
 have great difficulty in maintaining a standing police force such as it 
 needed. In truth, the police of Provincial Boston was wretched. The 
 first militia act of the Province, passed in 1693, provided for military 
 watches, that is, for such night duty of the militia as the chief military 
 officers of the town might order; and all males from sixteen to sixty 
 years of age were liable to serve (1 Prov. Laws, 128). Of course, no- 
 body was anxious to serve as night watchman, and pay his own ex- 
 penses. In 1699, therefore, all towns were authorized to employ a 
 night watch, with or without pay; but in case the watch was paid, the 
 cost was assessed upon the ratepayers by the court of sessions (1. c. , 
 381), although the law admitted the watch to be for the benefit and 
 safety of the town, and the justices were not town officers. The act 
 provided for a watch by night, and for a ward by day, including Sun- 
 days ; and to that extent marks the end of the constables' watch to- 
 gether with the constables' character as general peace officers. The 
 stately German marshal, and the French constable of higher rank, 
 became in Massachusetts a beadle. And before the Province gave the 
 authority, the town of Boston employed ten watchmen, to protect the 
 inhabitants better by night than the constables did by day (7 Bost. Rec. 
 Comm., 231). To distinguish, the new watch from the constables' 
 watch and the bellmen (so called because they carried a bell to alarm 
 the town in case of danger), the term "select watch " was used, the 
 men being specially chosen or selected. In two years the new watch 
 cost ^265 per annum, and the amount was raised by special assessment 
 (1. c, 232, 241, 243). 
 
 In 1712, when Boston assumed the character of a provincial metrop- 
 olis, its watchmen were given the powers of a modern police officer (1 
 
CONSTITUTIONAL HISTORY. 69 
 
 Prov. Laws, 699). On the whole, the arrangement worked well; it 
 remained for a century and a half. When the British soldier came, to 
 overawe revolutionary Boston, not only was the number of watchmen in- 
 creased, but they received a new and eificient ally. In 'the annual 
 town meeting of March 10, 1773, the town was asked to consider "the 
 expediency of fixing lamps in proper parts of the town, for the better 
 accommodation of the inhabitants." As usual in such cases, the mat- 
 ter was referred to a committee. The committee recommended that 
 three hundred lamps be put up, that the first cost be met by private 
 subscription, and that the new department be maintained from the 
 general tax levy. The lamps were bought by John Boylston in Lon- 
 don, their cost was about five shillings sterling each, and within a year 
 three hundred and ten street lamps were put up in all parts of Boston. 
 Meanwhile the General Court had * passed a good act giving the pro- 
 ceeding the approval of law, and expressing the reasonable belief that 
 the street lamps would help to prevent ' ' fires, burglaries, robberies, 
 thefts, and other lesser breaches of the peace " (5 Prov. Laws, 303; 18 
 Bost. Rec. Comm., 73, 115, 138, 135, 163-5). The intentions of the 
 Province were that Boston should enter the Commonwealth properly 
 lighted, and with all the appointments of a capital city. It had found 
 the town unpaved, unlighted, and unguarded; it left Boston well 
 paved, well lighted, and well protected. The town might have answered 
 that it owed the Province very little, that it was in debt, that its streets 
 were deserted, that a smallpox epidemic was more ruinous than a 
 foreign army, and that the court of sessions had not been abolished. 
 On one point Boston and Massachusetts were of one mind — that almost 
 anything might be suffered to secure a free Commonwealth and a free 
 town meeting. As soon as these were established — greatly surpass- 
 ing the liberties of the ancient Colony — the miseries and shortcomings 
 of the Provincial period were mercifully forgotten. Boston saW' its 
 darkest days in 1776: but the Boston of 1776 looked forward, and 
 moved bravely onward. 
 
 The main sources for the constitutional and government history of 
 Boston under the Province, from 1693 to 1776, are the "Acts and Re- 
 solves of the Province of the Massachusetts Bay, " admirably edited, 
 especially by A. C. Goodell, jr., and published by the Commonwealth 
 of Massachusetts, 6 vols., Boston: 1869-93; and volumes 7, 8, 13, 14, 
 16, 18, also, 11, 13, 15, 17, 19, 30, and 33 of the Boston Record Com- 
 missioners, published by the city of Boston. 
 
70 BOSTON. 
 
 COMMONWEALTH PERIOD OF THE TOWN, 1776 TO 1832. 
 
 The sources fot the government history of Boston from 1776 to 1822 
 are not easy of access. The State laws, especially for the earlier part 
 of the period, were not well printed, and are rarely found in a com- 
 plete set. The Secretary of State has begun to reprint them from 1780 
 to 1806. For many purposes the edition of the General Laws, from 
 1780 to 1822, edited by Metcalf, will suffice (Boston, 1823, 2 vols,, 
 8vo. ). The special laws for the same period have been published in 
 five volumes, and exceed the general laws in local interest. The town- 
 meeting records for the period exceed in bulk the entire period from 
 1634, when they began, to 1776, being the larger part of the ten 
 volumes in the custody of the Boston City Clerk. The records of the 
 town meetings are printed up to, 1778. Of the twenty-three volumes 
 containing the minutes of the selectmen, from 1701 to 1822, the publi- 
 cation ends in vol. 15, with April 19, 1775. The records of the school 
 committee, the assessors, and of a miscellaneous nature, are all in 
 manuscript. Those in the possession of the Overseers of the Poor are 
 important, as they cover a constitutional conflict between the town or 
 city and the board. The records of the court of sessions are in the 
 office of the clerk for the Supreme Court of Suffolk county. The town 
 printed much, and most of this is lost. But the editions of the By-Laws 
 issued in 1786, 1801, and 1818, are useful, as each undertook to give all 
 the bylaws and the important acts of the General Court relating to 
 Boston. The edition of 1818 is specially helpful. For the period from 
 1776 to 1780, when the Massachusetts Constitution was adopted, the 
 fifth volume of the Province Laws, edited by A. C. Goodell, Jr., is a 
 storehouse that supplies everything, as far as the General Court is 
 concerned. Of private writers on the government of Boston from 1776 
 to 1822, Josiah Quincy's "Municipal History" is interesting, in that 
 it rests largely upon direct knowledge. He had been the orator of 
 Boston on July 4, 1798. From 1823 to 1828 he was mayor. 
 
 Suffolk County. 
 
 In 1733 the Boston Town Meeting presented elaborate reasons why 
 Suffolk county should not be reduced, and why Dedham in particular 
 should not be set off (12 Boston Rec. Comm., 50). When the Province 
 became a State, Suffolk county comprised twenty towns : Boston, Rox- 
 bury, Dorchester, Milton, Braintree, Weymouth, Hingham, Dedham, 
 
, CONSTITUTIONAL HISTORY. 71 
 
 Medfield, Wrentham, Brookline, Needham, Stoughton, Stoughtonham, 
 Medway, Bellingham, Hull, Walpole, Chelsea, and Cohasset. The 
 county was more than a district for the administration of justice: it 
 had large executive powers over each town, as Boston knew to its 
 sorrow. The bill of rights had laid down the principle that ' ' in the 
 government of this Commonwealth . . the judicial [department] 
 shall never exercise the legislative and executive powers, or either of 
 them: to the end it maybe a government of laws, and not of men. " 
 This principle, best vindicated by John Adams, was violated in Boston 
 throughout the period un^er discussion, the county judges having the 
 veto power over all town bylaws, the power to grant liquor licenses, 
 the assessment of county taxes, the appointment of certain local officers, 
 the permitting of Sunday funerals, the right to discontinue highways, 
 and the locating of distilleries, potteries, and slaughterhouses. The 
 county, to which their jurisdiction extended, was large, and Boston in 
 particular kept the court of sessions busy. Boston had always wished 
 to be a separate county, and in 1793 Norfolk county was established, 
 taking every Suffolk town, except Boston and Chelsea (1 Gen. Laws, 
 423). It was found proper to restore Hingham and Hull to Suffolk 
 (1. c, 436); but in 1803 they were set off to Plymouth county (3 
 Gen. Laws, 80). Suffolk county, then, was reduced to its smallest 
 size, which remained until 1804, when South Boston was added. The 
 next addition to Suffolk, of Roxbury, was not made until 1868. When 
 Norfolk county was established in 1793, it had more inhabitants than 
 Suffolk. In 1790 Suffolk County had a population of 44,875, of whom 
 18,330 were in Boston. Of the total 33,878 were set off to Norfolk 
 county, and 20,997 remained in Suffolk, including Hingham and Hull. 
 In 1830 Suffolk county had a popula:tion of 43,890, against 36,471 in 
 Norfolk county. The population of Boston, in 1820, was 43,398. 
 
 It is not clear whether the authors of the Massachusetts Constitution 
 and the General Court considered the justices of the peace and the court 
 of sessions executive or judicial officers (Constit. , part ii, ch. iii, art. 3 ; 
 amendm. 8). It is certain that they did both judicial and administrat- 
 ive work, and natural that neither was well done. The Constitution 
 of 1780, which is still in force, provided that judicial officers should 
 serve during good behavior, but excepted justices of the peace, on the 
 ground that they might fail to discharge the important duties of their 
 office "with ability or fidelity " (Const, of Mass., Ill, 1 and 3). Ac- 
 cordingly they were appointed for seven years. Their authority, in 
 
72 BOSTON. 
 
 the period under discussion, was great. In 1784 the General Court 
 avithorized them to determine civil causes up to twenty dollars, and 
 expressly took such cases away from the Court of Common Pleas, save 
 in appeal (1 Gen. Laws, 123). In 1808 the act was renewed (2 Gen. 
 Laws, 184). Their criminal jurisdiction was even more extensive, as 
 all offenders were supposed to be brought first before a justice of the 
 peace (1 Gen. Laws, 133). Fines for the violation of town and other 
 laws were imposed by justices of the peace, who accounted for these 
 fines annually to the town, county, or State treasury concerned. The 
 justices were paid by the fees they collected. In addition, they exer- 
 cised executive power, as a sort of check upon the selectmen. Most of 
 the justices of the peace were laymen, and their judicial work was not 
 good. Accordingly all civil jurisdiction was taken away from them in 
 1822, in the act that formed part of the city charter (2 Gen. Laws, 585). 
 The justices of the peace together formed the court of sessions, 
 which had original jurisdiction in criminal matters. But the act of 
 July 3, 1782, which continued the Province court of sessions (1 Prov. 
 Laws, 367), omitted the quorum clause that required certain justices, 
 or any one of them, to make the proceedings in the sessions complete. 
 An appeal lay from the court of sessions to the Supreme Court (1 Gen. 
 Laws, 68). The act of June 19, 1807, required the court of sessions 
 for Suffolk county, at that time one of the smaller counties, to consist 
 of a chief justice and four associates (2 Gen. Laws, 171). This ruled 
 the justices of the peace out of the court they could not dignify, and 
 the members of the court were relieved of the duty, previously exer- 
 cised, of assisting in the administrative work of laying out or discon- 
 tinuing highways. None the less the court of sessions was abolished 
 in 1809, and its power transferred to the Court of Common Pleas, 
 which thus became a court with administrative duties attached to it 
 (2 Gen. Laws, 208); but in 1811 the court of sessions was revived, and 
 continued until Boston became a city (1. c. , 295, 587). Its adminis- 
 trative power was then transferred to the mayor and aldermen, at that 
 time one board. The criminal jurisdiction was transferred to the 
 police court, of three judges, who sat also as a justices' court, and as 
 such inherited the entire civil jurisdiction previously vested in justices 
 of the peace. It was the commingling of purely administrative work 
 with judicial duties that impaired the usefulness of the ancient court of 
 sessions. In town matters the court of sessions or the county justices, 
 all paid by fees, could chegk many things th? town or its selectmen 
 
CONSTITUTIONAL HISTORY. 73 
 
 were ready to do ; and a judiciary living on fees was not.likely to win 
 confidence. A court without the confidence of the community is a 
 failure where failure is most unfortunate. 
 
 To give relief, especially in prosecuting the violations of town laws, 
 the General Court established, in 1800, the Mimicipal Court of Boston 
 (3 Gen. Laws, 26). It consisted of a salaried judge, who had the same 
 criminal jurisdiction as the court of sessions, and was to take special 
 ' ' cognizance of all crimes and offenses against the by-laws of the 
 town." In addition, the town was authorized to choose annually a 
 town attorney, who was to prosecute in behalf of the town, and was 
 allowed a salary. In 1813 the original jurisdiction of this Municipal 
 Court was extended to all crimes in Suffolk county ; meantime the town 
 attorney had become a county attorney (1. c, 328, 172). The field of 
 the court of sessions was thus encroached upon in every direction, until 
 in 1822 the anomaly of having a sort of lay court for judicial and ex- 
 ecutive work was got rid of, to the profit of the law courts and the 
 administrative interests of the town. The higher courts, being the 
 Court of Common Pleas and the Supreme Court, had law judges only, 
 and worked well. The Court of Common Pleas heard civil cases in- 
 volving more than forty shillings (1 Gen. Laws, 67) ; and in 1814 the 
 Boston Court of Common Pleas was authorized to try minor cases with- 
 out a jury (2 Gen. Laws, 352). This was called the Town Court, which 
 became a separate court in 1818 (1. c. , 444), held by a special justice of 
 the peace. The town judge for civil actions, together with the Boston 
 Court of Common Pleas, which had added to its duties the hearing of 
 certain criminal raatters, was swept away by the act of February 14, 
 1821, establishing a Court of Common Pleas for the Commonwealth 
 (1. c. , 551). This court was to become, in 1859, the Superior Court. 
 
 The main reason why Boston became a city is not so much the fact 
 that the town had become too large for a government by town meet- 
 ing, selectmen, and other town officers, although this reason was 
 strong, as the very serious fact that the town suffered because the 
 county authorities, especially the justices, failed to do well what town 
 business was by law entrusted to them, and because the administration 
 of justice was bad, especially where the violation of town laws was in- 
 volved. On December 10, 1821, a report commonly attributed to 
 Lemuel Shaw, who was Chief Justice of the State from 1830 to 1860, 
 urged the town to become a city for the double purpose of improving 
 the administration of justice and the prudentials. In support of the 
 
 10 
 
74 BOSTON. 
 
 former this language was used : ' ' The present mode of administering 
 justice in its first stages is attended with many growing abuses ; and 
 though they have already attained to a very considerable extent, they 
 must, unless prevented by an entire change in the system, produce 
 eventually the most mischievous and immoral consequences." The 
 report demanded two acts of the General Court, the town joined, and 
 it is chapter 109 in connection with chapter 110 of the acts of 1821 — 
 both were signed on February 23, 1822— that made Boston a city, with 
 some approach to autonomy, and without a court of sessions. The 
 General Court reserved the right to annul bylaws made by the town ; 
 but that was relief from the approval previously vested in the court of 
 sessions. The town meeting was reluctant to ask for its own extinc- 
 tion ; the question whether the court of sessions should be abolished, 
 received the support of 4,557 votes, with but 257 opposed (Quincy, 
 Munic. History, 33). The people of Boston were not convinced that 
 town government was a failure; they were convinced that the com- 
 mingling of town business with the administration of justice was a 
 mistake the consequences of which were as unfortunate as they were 
 notorious. Had it not been for the hope of establishing justice in town 
 matters where a court alone could establish justice, and where the 
 justices of the peace, jointly and severally, had failed to establish so 
 much as reasonable justice, the town would not have voted, on January 
 7, 1822, that the " Town of Boston " should be changed to the " City 
 of Boston." The proposals of 1784, 1792, 1804, and 1815, while favor- 
 ing the adoption of a city charter, had failed to ask for reform where it 
 was most urgently needed. This reform came in 1822, when Boston 
 was made a city, in order that the judiciary should not exercise legis- 
 lative and executive powers, or either of them. The city of Boston 
 would have fared better still had the thirtieth article in the Declaration 
 of Rights been applied in its full meaning and in all its consequences 
 to the instrument known as our first city charter. But the charter 
 was a great step forward, in that it limited and defined executive and 
 judicial powers for the city of Boston and its government. 
 
 Area and Population of Boston. 
 
 In Colony and Province days it was customary to speak of Boston 
 "within the neck," meaning the peninsula on which the capital of Mas- 
 sachusetts is situate. This peninsnla consisted of several parts. The 
 old north end was separated from the centre of the town by a navigable 
 
CONSTITUTIONAL UlSTOkY. % 
 
 creek or canal, since changed to Blackstone street, which was not built 
 until after Boston became a city. Originally this canal was about six 
 hundred feet long, the present Haymarket square and the junction of 
 North and Blackstone streets being covered by the tide. The easiest 
 road to Charlestown ferry was through Sudbury street, which is also 
 the earliest street in Boston with a definite name attached to it (7 Bost. 
 Rec. Comm. , 3). The streets through the old north end to the Charles- 
 town ferry were built later, and at great expense. The strip of land that 
 connected the peninsula proper with Roxbury and the main land, was 
 about two hundred feet wide at the present junction of Washington and 
 Dover streets. But the territory of Boston extended beyond, the bound- 
 aries toward Roxbury being two creeks that emptied respectively into 
 the Back Bay and the South Bay (11 Bost. Rec. Comm., 80). Kendall 
 and Arnold streets were in Boston, but the south end (south of Dover 
 street) was not generally settled until after Boston had become a city. 
 Boston west of Sudbury street, at that time called New Boston, was 
 not generally occupied until the latter part of the Province period. 
 Boston had become a narrow town as early as 1740, for East Boston 
 failed to attract population until quick and sure communication by 
 steam was established. The necessity of more room was felt as soon as 
 Boston recovered from the ravages of the Revolution. By 1790 it had 
 18,038 inhabitants, not counting the islands. In 1800 this population 
 was 34,655; in 1810, 33,896. In 1820 the population of Boston proper, 
 not counting East Boston, South Boston, and the islands, was about 
 43,000. For the accommodation of such a population the old peninsula 
 proved insufficient. Charlestown offered some opportunity for relief ; 
 but communication with Charlestown was not easy, it was an inde- 
 pendent municipaiity, and the system of separating the business and 
 residence sections of a community had not forced itself upon atten- 
 tion. 
 
 Some relief was had by the great bridges built in the period undei" 
 consideration. The first of these was the Charles-River bridge, from 
 the foot of Prince street to Charlestown, opened to travel on June 17, 
 1786. On November 33, 1793, the great bridge from the foot of Cam- 
 bridge street in Boston, to Cambridge, was opened to travel. Until 
 these great works were achieved, the only bridge over the lower part 
 of Charles river was the "Great Bridge," from the foot of North Har- 
 vard street, in Brighton, to Cambridge (4 Mass. Rec, part I, 470; 1 
 Prov. Laws, 158, 383). It was first built in Colony days, apparently in 
 
76 BOSTON. 
 
 1662, and as late as 1833 the towns of West Cambridge (Arlington) and 
 Lexington petitioned the General Court that they might be relieved of 
 contributing toward the support of this interesting structure, which for 
 more than a hundred and thirty years was the only highway connecting 
 Boston with Cambridge, except by the Charlestown route. From Bos- 
 ton the bridge was reached via Roxbury and Brookline. The bridges 
 of 1786 and 1793 made travel easier, but did not relieve the growing 
 population of Boston, For this purpose South Boston, known as Dor- 
 chester Neck, was transferred, in 1804, from Dorchester to Boston. 
 South Boston now covers 1300 acres ; in 1804 it, covered less than half that 
 area. But a bridge to South Boston (now Dover street bridge, originally 
 the Boston South bridge) was opened to travel on August 6, 1805 (3 
 Spec. Laws, 368, 371), and a second bridge was immediately proposed. 
 Before this was built, it was found best to encroach upon the South Bay 
 by filling the area south of Beach, and east of Washington street (1. c. 375). 
 This district is called the South Cove. The land so won from the sea re- 
 tarded the settlement of South Boston, which had about two hundred in- 
 habitants when annexed to Boston, and less than two thousand in 1820, 
 though it had the second Catholic church in Boston. An addition of 
 greater importance than the South Cove, for the immediate relief of the 
 population, was the filling of the ancient Mill Pond, at the north end. 
 This pond was made in 1643-46, by constructing a causeway or mill-dam 
 along the present Causeway street, from Leverett to Prince street. 
 The pond was roughly triangular, the base, along the causeway, being 
 about two thousand feet, and the distance from the causeway to the 
 point where a canal connected the mill pond with Boston harbor about 
 fourteen hundred feet. The present Haymarket square was part of the 
 mill pond. This territory was filled in 1807-22, and is still indicated 
 by the names of North Margin and South Margin streets (2 Bost. Rec. 
 Comm., 74; By-Laws of 1818, p. 204). As early as 1693 there were 
 three mills where the sluice connected the mill pond, or mill cove, with 
 Charles river, and two mills where the pond was joined by the canal to 
 Boston harbor (map in Boston city doc. 119 of 1879). The filling was 
 taken from Beacon hill ; the streets of the Mill-pond district were laid 
 out by Charles Bulfinch, who was the leading man in town improve- 
 ments for the period under consideration (Quincy, Mun. Hist., 26). 
 From 1791 to 1817 he served with but one interruption as selectman, 
 and most of the time as superintendent of police. Th,e arrangements for 
 filling the old mill pond were as admirable as was the skill that first de- 
 
CONSTITUTIONAL HISTORY. 77 
 
 vised the pond, with its double supply of water and power from the 
 north and the south. The similar enterprise of using the Back Bay 
 was planned on the like principle, and finally led to like results, — a 
 large addition to the area of Boston by encroachments upon tidewater. 
 The milldam from the junction of Charles and Beacon streets to Brook- 
 line was first proposed in the town meeting of June 11, 1813. On Oc- 
 tober 20, 1813, the town meeting accepted the committee report recom- 
 mending a large grant of flats on condition that the grantees build the 
 dam named, with proper sluice ways for mill purposes, and a second 
 dam, of similar character, to South Boston, as well as a canal from the 
 South Bay to the Back Bay, the canal to be near the present Dover 
 street, and to supply mill power (By-Laws of 1818, p. 219). An act in 
 this sense was passed by the General Court (5 Sp. Laws, 17, 136, 331). 
 The South-Boston dam and the canal across Washington street were not 
 built; the milldam to Brookline (Beacon street) was opened to travel 
 on July 2, 1821. When the filling of the north cove was complete, the 
 filling of the Back Bay began; about that time Boston adopted a city 
 charter. The palm for enterprise appears to belong to Henry Simons 
 and the grant of 1643. 
 
 Right of Settlement and of Voting. 
 
 The town code of 1786, p. 108, continued the bylaw prohibiting 
 strangers from making Boston their home, except under a permit from 
 the selectmen ; persons acquiring a freehold, and apprentices, had per- 
 mission to settle in Boston. The code reprinted the law of 1700-1 
 (1 Prov. Laws, 451), under which nobody could vote in town meeting 
 without the consent of the selectmen or the town ; but natives, free- 
 holders, and apprentices were excepted. Immigration was carefully 
 restricted, and strangers could not be entertained in Boston, even by 
 their relatives, for more than twenty days, unless the facts were re- 
 ported to the selectmen in writing. The pertinent law of 1736-7 (2 
 Prov. Laws, 836) was reprinted in the town code of 1786, p. 113. The 
 Constitution of 1780 (ch. I, sec. II, art. 2) undertook to define an "in- 
 habitant, " but left the right of admitting inhabitants as before, that is, 
 to the towns and the selectmen. Technically, then, nobody had the 
 right of domicile in Boston, except natives of the town, freeholders, 
 apprentices, and persons admitted by vote of the selectmen or the 
 town. This admission must be formal and explicit, and without this 
 formality the right of domicile or "inhabitancy" could not be acquired 
 
n bostojv. 
 
 (4 Prov. Laws, 912). The Constitution recognized only the fact of 
 actual residence. In 1789 a law defined "the settlement of a citizen in 
 any particular town "-(1 Gen. Laws, 366). The term citizen was new, 
 not being found in the Constitution of 1780, save incidentally and in 
 the sense of resident. The Constitution called citizens "subjects." 
 At first the term " citizen " was used as an equivalant for inhabitant, 
 or legal inhabitant. Before long the national government took charge 
 of this subject, and citizenship was conferred, not by selectmen, nor 
 by the Commonwealth, but by the United States. The State regulated 
 the rights of domicile and suffrage, also the right of settlement, with 
 its implied right to poor-relief. 
 
 The laws of citizenship and settlement were substantially one in 
 Boston until Congress passed its first naturalisation act, in 1795. Up 
 to that time citizenship, or "inhabitancy," was the prerequisite to 
 voting as well as to poor-relief. For a short time Massachusetts 
 naturalised, but could not grant inhabitancy. When citizenship be- 
 came a national affair, there was nothing in the premises left to the 
 town, except to prevent the settlement of persons likely to need relief. 
 But a settlement could be, and can be, acquired without citizenship. 
 The old law of settlement, which had been inherited from the Colony, 
 and had added greatly to the power of the town, thus passed away, 
 leaving behind it the mean duty of protecting the town from paupers, 
 while the inestimable right of citizenship was conferred by the United 
 States. Boston had become part of a sovereign nation, and the nation 
 decided who should be admitted to the enjoyment and exercise of 
 national power. The Colony had freemen, that is, members of the 
 company ; the Province had freeholders, or owners of land, which con- 
 ferred the rights of a British subject; the United States conferred 
 citizenship, which was the first step to the highest rights the people of 
 the United States as a body politic could confer. Surely, a new era 
 had begun; the great Revolution yielded great results; the town of 
 Boston had become part of a national partnership. It was to learn this 
 in other directions, and to reap additional benefits. 
 
 No religious test was prescribed by the patent of 1629. The Colony 
 was true to this silence, except that in 1654 it required the members of 
 the General Court to be " orthodox Protestants " (Col. Laws, 1660, ed. 
 Whitmore, 146), and that violent laws against Quakers were enacted. 
 The responsibility for these violations of the patent (1 Mass. Rec, 16) 
 rests wholly with the Colony (see the laws of 1660, ed. Whitm., 154-6). 
 
CONSTITUTIONAL HISTORY. 79 
 
 In part the action of the Colony may be explained by the fact that self- 
 preservation was the paramount duty of the Colony, and that it was 
 more important to save Massachusetts than to engage in untried ex- 
 periments of toleration. The Province charter provided that "there 
 shall be a liberty of conscience allowed in the worship of God to all 
 Christians, except Papists " (1 Prov. Laws, 14). In 1700 all Roman 
 Catholic priests were specially prohibited from living in the Province 
 (1. c. , 424), and the law remained in force until the Constitution of 1780 
 (part II, ch. VI, art. 6). The Colony did not and could not prevent 
 the Society of Friends from establishing itself in Boston. The first 
 Catholic church in Boston was not built until after the beginning of 
 this century, though Catholics began to arrive after the Constitution of 
 Massachusetts had replaced the Province charter. The declaration of 
 rights (art. 2) established freedom of conscience and freedom of wor- 
 ship, though the next article authorized town taxes for the support of 
 "public Protestant teachers of piety, religion, and morality." This 
 authority was taken away by the eleventh amendment, in 1833. The 
 oath that no foreign person hath, or ought to have, any authority in 
 any matter, ecclesiastical or spiritual, within this Commonwealth, had 
 been replaced, in 1621, by the simple oath of allegiance. Nor were the 
 members of the General Court required, after the amendments of 1821, 
 to declare the truth of the Christian religion. The era from 1776 to 
 1822, then, saw something like emancipation from the political test of 
 creed, as far as Massachusetts was concerned. The United States did 
 not tolerate a test of its officers' religion, and made the free exercise of 
 religion the supreme law of the land. 
 
 The difference between town and state suffrage was continued, town 
 suffrage being the raore liberal of the two. The Province had never 
 defined the qualification of voters as to age and sex. The Constitution 
 of 1780 expressed the practice of the Province period, limiting the right 
 of voting in State matters to males at least twenty-one years of age. 
 The property qualification was either a freehold yielding three pounds 
 a year, or any estate worth sixty pounds. This was virtually an adop- 
 tion of the Province charter requirements, the Massachusetts pound 
 consisting, ever since 1652 (3 Mass. Records, 261-262), of three ounces 
 of silver 37-40 fine. It was customary to treat two pounds sterling as 
 equal to three pounds of this Massachusetts money of account. As a 
 curiosity it is worth stating that the Massachusetts Constitution recog- 
 nized silver money only (part II, ch. VI, art, 3), while the Province 
 
80 BOSTON. 
 
 law was bimetallic in ordering the new-tenor bills of credit. In addi- 
 tion to the sex, age, and property qualifications, which controlled to 
 1821, the voter must be a legal "inhabitant " or formally admitted to 
 the town in which he claimed the right of suffrage. This iaheritance 
 from the Colony, which was a close corporation, was done away with 
 in 1821, when the third Amendment of the State Constitution required 
 all voters to be male citizens, residing in Massachusetts, who had paid 
 a tax. In town matters the General Court gave the suffrage, in 1782, 
 to ' ' every person who is an inhabitant within any town in this Com- 
 monwealth, who shall pay to one single tax, besides the poll or polls, a 
 sum equal to two-thirds of a single poll tax " (1 Gen. Laws, 62). The 
 general town act of 1786 retained this provision, but replaced the term 
 "every person " by the phrase "the freeholders and other inhabitants 
 of each town in this government" (1. c, 250). The act of June 18, 
 1811, required town voters to be male citizens, at least twenty-one 
 years of age, of at least one year's residence in the town, and to have 
 been taxed (2 Gen. Laws, 279). The city charter (sec. 8), finally, adopted 
 for mtmicipal purposes the sanle requirements of voters as the amend- 
 ment of 1821 required in State elections. 
 
 At last, then, the difference between town voters and voters for State 
 affairs was to disappear, but not while Boston remained a town. While 
 Boston was a town, the selectmen decided who should vote, though in 
 town meeting the moderator had control. In deciding who was a voter, 
 the selectmen had the assistance of the assessors, who were required by 
 the law of March 7, 1801, to make regular lists of voters (2 Gen. Laws, 
 44, 72). This list was perfected by the selectmen, but had reference 
 to State elections only. In 1813 the assessors were required to make 
 also a list of " all such inhabitants as may be qualified by law to vote 
 in the choice of town officers" (1. c. , 341). The same law introduced 
 the system of checking at all elections. The city charter required the 
 board of mayor and aldermen to make the voting lists (sec. 24). The 
 active and passive right of suffrage in town matters was substantially 
 one since the general town act of 1786 (1 Gen. Laws, 250) ; in State 
 matters more was required of voters, and still more of persons voted 
 for. The town, therefore, was more democratic than the State. It 
 had been so ever since Colony times, and traces of this are still found. 
 Among State officers the law recognizes rank ; in town matters rank 
 never counted for much. The idea of manhood suffrage, however, was 
 unknown to the age under discussion. On the other hand, the town 
 
CONSTITUTIONAL HISTORY. 81 
 
 of Boston under the Commonwealth began with complicated restric- 
 tions of suffrage, and ended in 1822 with simple and obvious require- 
 ments upon the citizen voter. The progress made was altogether in 
 the direction of simplicity and equality. No wonder the people were 
 attached to their own town meeting, where they had rights unknown 
 in State matters. The town was the nearest approach to a democratic 
 republic known to the men of Boston in 1822. 
 
 Poi.tCE Department. 
 
 For the better order of the town, Boston introduced street lamps just 
 before the end of the Province ; in part also to help the night watch- 
 men who had to look after the British soldiers. When the soldiers left 
 Boston, and the people returned to their own — they came in thousands 
 — a day patrol was found necessary to maintain reasonable order. 
 Some years later the first "inspectors of the police" were appointed, 
 and the interesting ordinance authorizing a permanent patrol still 
 stands in the town code of 1786, p. 66. The police department, then, 
 began in 1786; but the old night watch was retained as a separate 
 service until 1854. The force appointed in 1786 consisted of four " in- 
 spectors of the police," the term police having reference to the good 
 order of the town, not to the men appointed for that purpose. The 
 term was new, it had not gone into the dictionaries, and at best a stu- 
 dent would write of " well-policed states," meaning well-ordered states 
 (18 Bost. Rec. Comm,, 133). Howell used a similar expression in 
 1642, but the word was as foreign to the people of Boston in 1786 as 
 the terms bi-cameral or physiological psychology are today. The "in- 
 spectors of the police " were ordinary patrolmen, subject to the select- 
 men, by whom they were appointed. A patrolman was required to 
 report to his superiors once a week. Of course, the arrangement failed. 
 Patrolmen who received their instructions from any one of the nine 
 selectmen were obliged to consult their own judgment, and free to con- 
 sult their own convenience. Promptness and responsibility in admin- 
 istration are not compatible with committee rule. A committee means 
 the absence of individual responsibility in administration. In addition 
 it means delay, lack of discipline, and want of executive force. 
 
 Experience led to a change. The selectmen were authorized to 
 " elect one suitable person to superintend the police [good order] of 
 this town " (By-Laws of 1801, p. 33). The selectmen chose their own 
 11 
 
83 BOSTON. 
 
 chairman, Charles Bulfinch, a good man, who served from 1799 to 1817, 
 when he was succeeded by Jeremiah Freeman. In 1820 Caleb Hay- 
 ward was appointed. The "superintendent" was required to patrol 
 the streets in person. In case the work was too much for him, the 
 selectmen were authorized ' ' to appoint, from time to time, such and 
 so many assistants to the superintendent as the business of the office 
 may be found from experience to require" (By-Laws of 1801, p. 33). 
 This arrangement remained until Boston became a city, and the city 
 charter vested "the administration of police " in the mayor and alder- 
 men. The term still meant, in the language of the old ordinance, the 
 administration of ' ' the by-laws of the town, and the laws of the Com- 
 monwealth, which especially relate to the good order and government 
 of this town," the purpose being that these laws and by-laws might be 
 "carried into effect with energy and promptness" (1. c. , p. 33). It 
 took a long time to produce the modern term " police " and the estab- 
 lishment so designated. The Colony began with a constable ; a ' con- 
 stables' watch was added ; the next step was the watch and ward as 
 recognized by the law of 1699; in 1761 Boston was graciously permitted 
 to hire and pay its own watchmen, the General Court claiming the 
 right to regulate some things the General Court did not pay for ; in 1786 
 Boston began to employ a regular day police; and in 1799 the police 
 department was complete, if not perfect. Even the term, "superin- 
 tendent of police," was revived in 1878, after it had done duty from 
 1799 to 1823. The Boston police department, then, is not of provincial 
 origin. It was the first executive department to rise in Boston after 
 Massachusetts had become a State. 
 
 The Public Schools. 
 
 The province did not prove a great benefactor to schools. The most 
 illustrious name in the history of the Boston town schools belongs to 
 the Colony age. The same age boasted of three schools supported by 
 town taxes (7 Bost. Rec. Comm., 187); the visitors of 1772 reported 
 that they found the five schools of the town to have 941 pupils, of whom 
 199 were in the grammar or Latin schools, and 743 in the three writing 
 schools, which ranked with our later grammar schools. Girls and 
 young boys were not admitted. The girls were all taught in private 
 schools ; the rudiments of reading and writing were supposed to have 
 been picked up by the boys before they entered the town schools. Yet 
 there was no free trade in private schools. The system of town schools 
 
CONSTITUTIONAL HISTORY. 8^ 
 
 began from the top. Under the Commonwealth it was that the town 
 of Boston admitted girls to its public schools, that primary instruction 
 was first supplied at the public expense, and that the English high 
 school was established for such children as wanted a practical education 
 without preparing for college. George B. Emerson was the first mas- 
 ter of the " English classical school," as it was called. Independence 
 brought a certain largeness of speech that has never been wholly 
 effaced. But the school system was made democratic. At the same 
 time it slipped away, though gradually, from the selectmen and their 
 successors. Today the public schools of Boston have a government of 
 their own ; the City government simply supplies the money. The gov- 
 ernment of the schools is vested in the School Committee. The first 
 School Committee, as the term is now understood, was chosen October 
 20, 1789. 
 
 This School Committee is a Boston invention. Up to 1789 the select- 
 men had the management of the schools. In 1789 the management 
 passed to the School Committee consisting of the nine selectmen and 
 twelve person/ chosen by the town. The School Committee was the 
 accidental outcome of the annual committee that used to visit the 
 schools once sujeax, and then dined with the selectmen at Concert or 
 Faneuil Hall/ This visiting committee was recognized by the Massa- 
 chusetts school act of June 35, 1789: "No person shall be allowed to 
 be a mastei/or mistress of such [primary] school, or to keep the same, 
 unless he or she shall obtain a certificate from the selectmen of such 
 town or district where the same may be kept, or the committee ap- 
 pointed by such town, district or plantation, to visit their schools, as 
 well as from a learned minister settled therein, if such there be, that he 
 or she is a person of sober life and conversation, and well qualified to 
 keep such school " (1 Gen. Laws, 370). Much more was required of the 
 teachers in the high schools, then called grammar schools; and all 
 teachers were wisely required to be citizens of this or some other of the 
 United States. Possibly the town was not -unaware of this act when it 
 appointed a committee of twelve, one from each ward, to propose a 
 better government of the schools. The committee reported that there 
 ought to be seven schools, that girls ought to be admitted to the higher 
 schools, and that the town schools should be managed by a School Com- 
 mittee, the latter to consist of the nine selectmen and one person from 
 each ward. The report was adopted and carried into effect. At that 
 time Boston had 18,000 inhabitants. No provision was made for pri- 
 
84 BOSTON. 
 
 mary schools, although the State law tolerated them, provided they were 
 kept at private cost, and superintended by the town authorities. Pri- 
 mary schools were known as dames' schools, being kept by women. 
 There were some charity schools of this kind, and the principle of free 
 primary schools was greatly promoted by the Sunday schools, success- 
 fully introduced in Boston in 1816. 
 
 In 1817 the town schools had 2,365 pupils, of whom but 836 were 
 girls. Yet the town had nearly 40,000 inhabitants. Beside these pub- 
 lic schools there were one hundred and sixty-two private schools, with 
 4,132 children in attendance, most of them girls. The number of tru. 
 ants was reported at 526. As the School Committee failed to act prop- 
 erly, the friends of primary town schools appealed to the town meet- 
 ing, and Mr. James Savage hurled this indictment at the conservatives: 
 ' ' All children have an equal right to the [free] schools, we know, on 
 the following conditions, and no other, viz., 1st, The child must be 
 seven years old; 2d, He must be able to read in the Bible sufficiently 
 well to keep his place in a class ; 3d, He cannot be admitted after the 
 age of fourteen, however well he can read, or however deficient he may 
 be in writing or arithmetic." The town meeting, it is needless to say, 
 decided m favor of establishing primary schools at the expense of the 
 town; the School Committee, or grammar board, was ordered to ap- 
 point a committee of thirty-six, three from each ward, to carry the plan 
 into effect; and $5,000 was allowed for expenses. The town of Boston 
 and its schools were enriched by this memorable vote on June 11, 1818. 
 Twenty-five primary schools attended by about a thousand pupils were 
 immediately established ; when Boston became a city, it had the Latin 
 School, the English classical, the Eliot, the Adams, the Franklin, the 
 Mayhew, the Hawes, the Smith, the Boylston, and thirty-five primary 
 schools. In 1855, when the Primary School Committee held its last 
 meeting, and its work passed into the hands of the School Committee, 
 there were one hundred and ninety-seven primary schools, with some 
 twelve thousand pupils. From 1818 to 1855, then, Boston had two 
 school committees, one for the grammar and high schools, and another, 
 appointed by the grammar board, for the primary schools. This com- 
 mittee consisted finally of one hundred and ninety-nine members. Its 
 "Annals" have been saved from oblivion by Joseph M. Wightman, 
 Mayor of Boston in 1860 and 1861. The men of 1818, especially James 
 Savage and Elisha Ticknor, gave Boston not only its free primary 
 schools, but an establishment which, in connection with the higher 
 
CONSTITUTIONAL HISTORY. 85 
 
 grades, was destined to become a government in a government, to per- 
 petuate government by committee, and to retain public respect, wliile 
 the interest entrusted to them has become a popular passion of no mean 
 significance. 
 
 Board of Health. 
 
 It may be possible to reduce police matters to municipal regulation, 
 though not without danger to the State and nation. Epidemics, quar- 
 antine, and the public health are not altogether municipal. The 
 questions of public health that troubled Boston in the seventeenth and 
 eighteenth centuries were essentially non-municipal, the smallpox 
 being a frequent and cruel visitor. Yet the selectmen were the town 
 board of health from 1630 to 1799, the Province merely offering advice 
 in the form of penal laws. The first quarantine act passed by the 
 Province, in 1699, had been thrown out by the privy council, as an ob- 
 struction to commerce (1 Prov. Laws, 376). The State inherited from 
 the Province the bad habit of leaving the management of epidemics 
 and quarantine matters with the selectmen. In 1793 the General Court 
 passed' a law to prevent the spreading of smallpox, but left the admin- 
 istration to the selectmen (1 Gen. Laws, 420). In 1810 vaccination was 
 provided for ; but while every town was required to have vaccination 
 officers, vaccination itself was left to the discretion of the towns (2 
 Gen. Laws, 253). In 1797 a general health and quarantine act was 
 passed by the General Court, but left matters with the selectmen, un- 
 less towns saw fit to appoint a health committee (1 Gen. Laws, 539). 
 A supplementary act, of 1800, did not change this (2 Gen. Laws, 9). 
 Nor is it surprising that the health laws of the eighteenth century were 
 confined to a struggle against Contagious diseases. But by 1800 Boston 
 had become a crowded and congested town. Nearly 25,000 people 
 were living on the old peninsula of about one square mile. The water 
 supply was not good, the sanitary arrangements were bad. 
 
 To appreciate the sanitary condition of Boston at about 1800, it 
 should be borne in mind that the town ended just south of the present 
 Kendall, Arnold, and Thorndike streets; that nearly 25,000 persons 
 were living on less than a square mile of uneven territory, with im- 
 perfect drainage, and surrounded by flats ; that the streets were ill- 
 paved and ill-swept; and that the houses were low, thus calling for 
 more ground to spread on. Add the commerce of Boston, involving 
 the arrival of nearly 2,000 vessels a year from all parts of the world. 
 
86 BOSTON. 
 
 and the fact that but one corporation had tried to add to the natural, 
 but insufficient, water supply. The selectmen and their police force 
 were unable to cope with the nuisances that endangered the public 
 health. On February 13, 1799, therefore, the General Court passed its 
 first law for suppressing nuisances in the town of Boston, by a board of 
 health to be chosen by the people. On June 20, 1799, this act was re- 
 placed by another, which has made a permanent impression (2 Special 
 Laws, 307). It provided for the election of the twelve members con- 
 stituting the Board of Health, by ward meetings, to be presided over 
 by a ward clerk (sec. 1, 21). This eliminated the selectmen from the 
 very beginning; they could not even call the ward meetings (sec. 21). 
 In 1813 the board of health, together with the selectmen and the over- 
 seers of the poor, were entrusted with the duty of appointing the town 
 treasurer and collectors (4 Spec. Laws, 502), — good evidence that the 
 board had the public confidence. The board of health was the third of 
 the new administrative departments established since 1776, and occa- 
 sioned the new institution of ward clerks and ward elections. Its 
 powers were very great. 
 
 The board of health appointed the scavengers, who were police in- 
 spectors with great powers for ordering other persons to keep the 
 streets clean (8 Bost. Rec. Comm., 97; 14 Bost. Rec. Comm., 325; By- 
 Laws of 1786, 123-126). The board was required to deal with all 
 nuisances, and was given power to invade any premises for that pur- 
 pose. Its Rules and Regulations, when published, had the force of town 
 bylaws, the penalty attached being five dollars. The board had some 
 power in the matter of tainted provisions, and undertook to do what 
 the ancient market department ought to have attended to (see the reg- 
 ulations of the board, By-Laws of 1801, 36-39). Finally, the board 
 had full quarantine powers, and was allowed a physician of approved 
 ability. For the payment of all necessary expenses the board of health 
 was "authorized to draw upon the town treasurer." The town com- 
 mittee of accounts, however, might inspect the accounts of the board. 
 In 1803 the power of the board of health was enlarged ; it could estab- 
 lish a quarantine on land, by preventing all unnecessary communication 
 with infected places (3 Sp. Laws, 211). In 1816 a new act continued 
 and enlarged the powers conferred in 1799 (5 Spec. Laws, 137). This 
 act is an honor to the time. The board of health was to examine into 
 ' ' all causes of sickness, nuisances, and sources of filth that may be 
 injurious to the health of the inhabitants of the town of Boston." The 
 
CONSTITUTIONAL HISTORY. 87 
 
 board had power to seize any unwholesome meat, fish, bread, vegetable, 
 or liquor; its rules were to cover all clothing and other articles that 
 could convey or create any sickness, whether such clothing and other 
 articles were brought into or conveyed from the town of Boston, the 
 penalty in this case being up to a hundred dollars ; the board had full 
 authority over all burying grounds and funerals; it was allowed a 
 town physician and a port physician (see its excellent regulations in the 
 By-Laws of 1818, 72-96). The city charter transferred all these powers 
 from the board of health to the city council. In 1799 the powers of 
 the board of health were taken away from the selectmen, who were 
 executive officers, to be transferred, in 1833, to a compound legislative 
 body. The evil effect was felt for fifty years. 
 
 Overseers of the Poor. 
 
 Beside the police, the school committee, and the board of health, no 
 new department was created by or for the town of Boston under the 
 Commonwealth. Moreover, the board of health was unwisely abolished 
 when Boston had become a city ; the police department was created in 
 theory only, or mainly, the expense being an obstacle in the way of 
 maintaining an efficient police ; but the school committee was to last, 
 and to assume ever increasing importance, which is now (in 1893) 
 greater than ever. On the other hand, the power of the venerable 
 overseers of the poor began to crumble in the last days of the town. 
 The overseers, whose mission was charitable, had kindly permitted 
 themselves to look after the vicious poor, and in that way to become 
 the instruments of reformatory, correctional, and penal work. Under 
 the law of 1788 the overseers could discharge from the house of cor- 
 rection; under the law of 1798 the insane poor, properly under the 
 charge of the overseers, were sent to the house of correction ; the law 
 of 1794 gave them special duties as to houses of ill fame ; finally, the 
 law of 1735, to which the Boston overseers appealed, when Josiah 
 Quincy attacked them, had made them the managers of the workhouse 
 ■for "the idle and poor" (1 Gen. Laws, 334, 557; 3 Prov. Laws, 757). 
 As the town of Boston had no separate house of correction, workhouse, 
 and almshouse, and as the overseers had charge of the almshouse, and 
 the workhouse, and some authority in the house of correction, the poor, 
 the idle, and the vagabonds all drifted under the care of the overseers, 
 the latter consenting. Their colony, first in Beacon street, then in 
 Leverett street, contained the respectable poor, with the vagabonds. 
 
88 BOSTON. 
 
 the sick, the orphans, the insane, and the outcasts. Even the jail was^ 
 there. 
 
 This colony was kept together in 36 rooms; there it was fed by 
 the overseers, who tried in vain to keep their company duly employed, 
 the result being that the expenses of the town for the nominal relief of 
 the poor were enormous. In 1776, for instance, the town was informed 
 that its treasury had been drawn upon by the overseers for _^3,468 112, 
 while the selectmen had drawn _^4,421 17 7^ (18 Best. Rec. Comm., 
 257). It was not uncommon for the annual drafts of the overseers to 
 exceed those of the selectmen (1. c. , 87, 135). Mr. Quincy perceived 
 that this was misplaced generosity, and induced the town to buy the 
 estate at South Boston now occupied by the house of correction. The 
 estate covered some sixty acres; there the house of industry was 
 erected, the inmates to be employed on the farm. One of the last votes 
 of the town approved the proceeding, and the overseers of the poor 
 were requested to deliver to the house of industry such able-bodied 
 poor as could be put to work. The overseers resisted. When Mr. 
 Quincy became mayor, he fought this fight to the end, and the over- 
 seers were beaten. Under the town the overseers had charge of all 
 indoor and outdoor relief, of the insane and the workhouse ; Mr. Quincy 
 left them nothing but outdoor relief, all else being transferred to what 
 is now (since April 21, 1890) called the department of public institu- 
 tions. The theory advanced by Mr. Quincy was correct, but it was 
 not carried into effect. His opposition to the overseers of the poor 
 simply resulted in making two administrative departments where one 
 would suffice. It wotild have been wise to separate charity, correction, 
 and punishment ; this separation was not made ; it has not been com- 
 pleted in 1893. Mr. Quincy's Municipal History states his view with 
 spirit (pp. 34-40, 88-96, 138-147). The overseers defended their 
 course in a spirited address "To their constituents," published in 
 1823 ; but they lost their control of indoor relief. The laws of Febru- 
 ary 3, 1823 (house of industry), of June 12, 1824 (house of correction), 
 and of March 4, 1826 (house of reformation for juvenile offenders), 
 made this loss complete. 
 
 Financial and Minor Changes. 
 
 Under the laws of 1786 (1 Gen. Laws, 217, 251) the town meeting 
 chose annually nine assessors. As they were not able to cope with the 
 work of determining the value of taxable property for a town of more 
 
CONSTITUTIONAL HISTORY. 89 
 
 than 25,000 inhabitants, the General Court, in 1802, authorized each of 
 the twelve wards to choose annually two assistant assessors, who elected 
 the three principal assessors (3 Spec. Laws, 5). This arrangement 
 answered the purpose, and incidentally strengthened the practice of 
 ward elections, in the place of overcrowded town elections at Faneuil 
 Hall. The assistant assessors and the board of health were chosen on 
 the same day, the ward meetings for that purpose being held on the 
 first Wednesday in April. The financial year, like the tax year, began 
 on the first day of May. This date was found the most convenient. 
 In 1822 a change was attempted, but proved inconvenient (Quincy, 
 Mun. Hist. , 46) ; a second change was made by the ordinance of March 
 21, 1891. But the tax year continues to begin on May 1, as in the 
 days when Boston was a town. The act creating assistant assessors 
 provided that the town treasurer, chosen in town meeting, should be 
 the collector of taxes. In 1813 the selectmen, the overseers of the 
 poor, and the board of health were authorized to choose the town treas- 
 urer and the collectors (4 Spec. Laws, 602). The same officers, thirty- 
 three in all, had been authorized in 1812 to superintend the finances of 
 the town, and were called the committee of finance (By-Laws of 1818, 
 p. 4). The city charter transferred the election of the city treasurer to 
 the mayor and aldermen, but the assessment and collection of taxes to 
 the discretion of the city council — good evidence that the charter was 
 not a thoroughly well-considered instruriient. The town had ordered 
 as early as 1786 that at every town vote involving money the vote 
 should be counted, and that reconsideration should not be allowed, un- 
 less demanded by at least the same number of voters (By-Laws of 17.86, 
 p. 84). This prevented undue haste, and worked well. 
 
 Regular committees audited the accounts of the town treasurer, and 
 submitted town budgets. Before the close of the eighteenth century 
 the accounts of the town were annually published, at first in the form 
 of broadsides. In 1811 a detailed account of expenses and town prop- 
 erty was begun in pamphlet form. In 1812 this duty was assigned to 
 the committee on finance, consisting of the nine selectmen, the twelve 
 overseers of the poor, and the twelve members of the board of health, 
 and when the office of city auditor was established, in 1824, he con- 
 tinued the series of reports begun by the finance committee of the town, 
 his first report being the thirteenth in the series. Indeed, no suspicion 
 attaches to the financial transactions of the town and its ofificers. The 
 town was equally fortunate in the orders it issued, To prevent block- 
 
 12 
 
90 BOSTON. 
 
 ades in the principal street of the town, now Washington street, all teams 
 were required more than a century ago to drive on the east side of the 
 street when going north, and on the west side when going south, under 
 a fine of ten shillings for every offense (By-Laws of 1786, p. 11). The 
 Province system of fire companies was continued, but the selectmen 
 were allowed in 1785 to appoint eighteen men for every engine, and 
 in 1801 the number was increased to twenty-four men. The " Cata- 
 ract," or number 14, was allowed forty men. The men attached to 
 each engine chose their own captains, and made their own rules (By- 
 Laws of 1818, pp. 150-164). In a case of fire the twenty-four firewards 
 took control, if disorder can be called control. Nor was the later vol- 
 unteer system an improvement equal to the occasion, though Mayor 
 Quincy boasted in 1828 that he had twelve hundred firemen to fight the 
 enemy of the town. The truth is, the town had not the money to pay 
 for a good police,, a good fire service, good water, good sewers, and 
 good streets. 
 
 Plans for a City in 1'''84. 
 
 The change from town to city was taken with great reluctance. It 
 was thought best to amend the State Constitution, in order to dispel 
 all doubt about a city charter the General Court might grant. This 
 amendment, proposed by the constitutional convention of 1820, was 
 ratified by a very small majority of the voters, but it was ratified and 
 still stands. It authorizes the General Court to give a city constitution 
 to such towns as have at least twelve thousand inhabitants, provided 
 such towns make formal application and give due consent (art. 2 of the 
 Amendments). This amendment did not take effect until 1821, but 
 prepared public opinion for the change impending in Boston. In the 
 Colony and the Province the mere suggestion of such a change was re- 
 jected by the town meeting. • Under the Commonwealth formal plans 
 for the transition from the town organization, which is simple democ- 
 racy, to a city, which is representative democracy, were submitted in 
 1784, in 1792, in 1804, and in 1815. They were all rejected, and fort- 
 unate it is they were rejected. The constitutions of the State and the 
 United States supplied good precedents for a city charter; these prec- 
 edents were not mentioned. Yet the government of a city cannot be 
 wholly unlike that of a State or the nation. The essential part, as far 
 as the constitution of either is concerned, is the extent and the proper 
 distribution of the power to be vested in the government. The Con- 
 
CONSTITUTIONAL HISTORY. 91 
 
 stitution of Massachusetts had laid down the ideal principle as to tlie 
 distribution of power in a free government (Declaration of Rights, 
 art. 30). When the charter of Boston was drawn up, the learned jurists 
 looked to the town they would and would not abandon, and never to 
 the State or the nation which had shown how to organise democracy, 
 through representative institutions, in a free and efficient government. 
 The lesson of the Articles of Confederation of 1777 had been forgot- 
 ten. 
 
 The several plans for a city charter, submitted to the town meeting 
 from 1784 to 1821, are still extant, but have very little save antiquarian 
 or pathological interest. The committee of 1784, which included 
 Samuel Adams, William Tudor, James Sullivan, and Thomas Dawes, 
 submitted two plans, one of them an adaptation of the old New- York 
 charter, as if the world had not advanced since King George II. The 
 town meeting ordered the " Two Plans " printed and distributed, and 
 at a later meeting rejected the schemes tumultuously (Quincy, Mun. 
 Hist., 22—24; H. H. Sprague, City Government in Boston, 10-11). 
 The first plan contemplated four annual elections by the people, two to 
 be held in March, beside general meetings. The people were to meet 
 for certain purposes in wards, for other purposes at Faneuil Hall. In 
 a word, the simple arrangement of the town meeting was to be replaced 
 by a complicated system. The government was to be vested in a cor- 
 poration called " The Mayor, Aldermen, and Common Council of the 
 City of Boston, in the Commonwealth of Massachusetts. " The corpora- 
 tion was to be divided against itself, the mayor, recorder, and twenty-four 
 councilmen to constitute the common council, but no common-council 
 meeting to be legal, unless the aldermen were present. The mayor, 
 recorder, twelve aldermen, and twenty-four councilmen were to make 
 the ordinances ; the mayor, recorder, and twenty-four councilmen were 
 to raise the money for the use of the city ; but only the mayor and 
 aldermen were to appropriate and expend it. There was to be a town 
 clerk, btit the recorder was not to be that person ; he was to tell the 
 corporation of thirty-eight persons what each division could lawfully 
 do. The second plan proposed that the corporation consist of the 
 president and eighteen selectmen, one-third of the latter to be chosen 
 by the people at large in a general meeting, and the remaining tweilve 
 selectmen by wards on the next day. No checks and balances were 
 provided, and the corporation of nineteen was to tax and expend taxes 
 at pleasure. This plan was rejected because the people understood it 
 
02 ^ BOSTON. 
 
 too well ; the other plan because nobody could understand it. The 
 town was not prepared to transfer its whole government to an irrespon- 
 sible committee of nineteen ; neither would the town accept a common 
 council of thirty-eight for one purpose, of twenty-six for another, while 
 the power of appropriating and expending money, and of appointing 
 city officers, was vested in the mayor and aldermen who were part of 
 the common council, but voted only on certain topics. The wonder is, 
 not that the plans were rejected, but that men of standing and reputa- 
 tion proposed them. The administration of justice and the onerous 
 dependence on the county justices were not touched in the plans of 
 1784; the legislative and executive powers of the government were 
 neither separated nor even defined ; government by committee was to 
 be made permanent ; no appreciable relief or gain was offered to the 
 voters and taxpayers. How could they help rejecting the plans? The 
 rejection took place on June 17, 1784, and was complete. 
 
 Town versus City. 
 
 In 1785 a committee including Adams, Tudor, Sullivan, and Dawes, 
 of the committee of 1784, reported that the constitution of the town 
 was perfect, thus justifying the rejection of the previous plans (Sprague, 
 1. c, 12). On March 23, 1786, the General Court passed its general 
 town act, declaring ' ' the inhabitants of every town within this govern- 
 ment . . to be a body politic and corporate " (1 Gen. Laws, 250). 
 The statement, therefore, that "the town of Boston was never formally 
 incorporated " (Sprague, 6), is not entirely correct. The act of 1786 
 replaced the general town act of 1692 (1 Prov. Laws, 64), and this took 
 the place of the memorable Colony act passed in 1635-36 (1 Mass. Rec, 
 172). These three acts are the ancient charters of the Massachu- 
 setts town, and as such have permanent interest. Without them it is 
 difficult to understand the constitution of these towns, even at the 
 present time. But it is significant that the rights and duties of a town 
 or its selectmen have never been enumerated, and that towns generally 
 may do anything not expressly prohibited by the General Court, or 
 since 1789, by the law of the United States. The powers not delegated 
 to the United States are certainly reserved to the States or the people. 
 In Massachtisetts the State has entimerated powers, and the State Con- 
 stitution does not vainly enumerate and reserve the rights remaining 
 with the people and not delegated. The declaration of rights is almost 
 profuse in affirming the rights remaining with "the people," a term 
 
CONSTITUTIONAL HISTORY. 93 
 
 used as freely as the term "town" is used in the frame of government. 
 It is not unreasonable, then, to conclude that the people certainly have 
 many reserved rights, and that they are free tp exercise these rights in 
 their corporate capacity as towns. The General Court can establish 
 and abolish towns, but not wholly without their consent ; it cannot pro- 
 hibit town meetings (decl. of rights, art. 19), and it cannot annul a 
 lawful contract (U. S. Const., art. 1, sec. 10). It cannot prevent the 
 people from organising themselves for public purposes, from taxing 
 themselves, from changing their government, and from treating all 
 government as an agent of the people to whom it is responsible (decl. 
 of rights, art. 5, 7). In their town meetings the men of Massachusetts 
 could exercise the rights justly dear to them as freemen and as mem- 
 bers of organised society. There they exerted their powers directly 
 and visibly; there they could .speak their rtiinds; there they could join 
 with their neighbors in ordaining what should be, or what should 
 not be. It was in the town meeting and by the town meeting that 
 the local aristocracy had become democratic, and that the American 
 principle of equal rights and equal duties had been established. The 
 people of Boston might exchange this government, with its many re- 
 served and prescriptive rights, for something better ; but the town meet- 
 ing would not abdicate in favor of a committee, which it had been in 
 the habit of creating and discharging at pleasure. The town might be 
 disposed to delegate a part of its power temporarily to one set of agents, 
 another part to another set of agents ; it would not retire in favor of an 
 annual committee. The town would accept greater power; it would 
 not resign the power it had. The Boston men feared that the estab- 
 lishment of a city meant the loss of town rights ; the neighbors of Bos- 
 ton feared that a city meant an increase in Boston rights, to the detri- 
 ment of the neighbors. 
 
 In 1792 the town discussed the melioration of its government as pro- 
 posed by a committee of twenty-one, including James Sullivan, William 
 Tudor, Christopher Gore, John Quincy Adams, and Charles Bulfinch. 
 They proposed a town council of twenty-seven, the nine selectmen to 
 be chosen on a general ticket, and the remaining eighteen in the nine 
 wards to be established. This town council was to make bylaws, and 
 to choose a town attorney for prosecuting their violation. A special 
 court was to be established for these causes. The town did not take 
 kindly to this notion. The average voter does not naturally like a pros- 
 ecuting attorney, and the idea of a town attorney to prosecute all 
 
94 BOSTON. 
 
 violations of town ordinances was not acceptable. The town would 
 elect a number of officers ; but the legislative and executive power was 
 vested in the town council. That was more than the town meeting 
 could bear, and, greatly to the surprise of John Quincy Adams and 
 young Harrison Gray Otis, the whole scheme was rejected after full and 
 fair consideration. Mr. Adams was disgusted with "simple democ- 
 racy." Yet what could have induced the town to transfer the power 
 of the town meeting to a committee of twenty-seven? To establish this 
 committee, the people were required to have a general election and an 
 election by wards, and the committee so elected was to unite legislative, 
 executive, and prosecuting powers. The men who finally rejected the 
 scheme have not been praised (Sprague, 12-14) ; but was it right, was 
 it prudent, was it American, to vest nearly the whole power of the 
 town in one unwieldy and irresponsible committee? Had not the Con- 
 federation illustrated the efficiency of committees that legislated and 
 executed, nobody in particular being responsible for failures? The 
 superiority of an annual committee over a temporary committee was 
 not conceded. So the attempt of 1791-2 fell through, on January 26, 
 1792 (Quincy, Mun. Hist., 25). 
 
 The Plan of 1804. 
 
 In 1804 the town ordered a constitutional convention. The members 
 were chosen in wards, that system having been introduced in 1799. 
 The convention included James Sullivan, James Prince, John Davis, 
 and Harrison Gray Otis, but none of the town officers that knew best 
 where the shoe pinched. The convention met in Faneuil Hall, and 
 was charged to propose whatever changes might be necessary in the 
 town and county government. The work of the convention was pre- 
 pared by a committee of the gentlemen named, with R. G. Amory and 
 Charles Jarvis added. The convention finally proposed a town council 
 of thirty-three or thirty-four, to consist of nine selectmen chosen at 
 large, of twenty-four delegates chosen two by each ward, and of the 
 Intendant, to be chosen by the thirty-three from among themselves or 
 from the people at large. This title was borrowed from Charleston, 
 S. C. The intendant was to preside at the town council, which made 
 the bylaws,- ordered taxes, appropriated money, and, strange to say, 
 was to prosecute all suits in which the town might be a party. Lest 
 this legislative body lack executive power, it was to manage all town 
 property and to "give deeds in their name and behalf." The selectmen 
 
CONSTITUTIONAL HISTORY. 95 
 
 were to expend the money not spent by the town council, the board of 
 health, the overseers of the poor, or other town officers. The latter 
 were to be appointed by the town council, except that the intendant 
 was to appoint "the police officer" [sicj. The intendant was to 
 preside at the meetings of the school committee, the selectmen, and the 
 town council, and, worst of all, he was to appoint a regular time and 
 place " to receive the complaints and representations of individuals. " 
 There he was to attend " daily." He was to have a salary, and would 
 have earned it. 
 
 The convention — famous as the only constitutional convention ever 
 held by the town — recommended " that suitable measures be taken to 
 render the town of Boston a county," the town council to be the heir of 
 the court of sessions, whose judicial work had been transferred to the 
 municipal court. The reason why the selectmen were retained, is not 
 clear, except that in managing his police officer the intendant was to 
 have "the concurrence of the selectmen." But they were to be sur- 
 veyors of highways. To produce the town council, at least two elec- 
 tions were required. As for the intendant, the town would be unable 
 to see why he should not be elected by the people. If he was to be the 
 head of the town, though only in name, the town would never permit 
 him to be chosen by the town council, which was altogether overloaded 
 with legislative and executive duties, and was to have more, should the 
 court of sessions be abolished. Still the convention showed a certain 
 improvement upon all previous attempts : it tried to regulate the town 
 finances, it proposed to unite the town and county, and it tmdertook to 
 give the town a visible head. The chairman of the selectmen was 
 simply the parliamentary chairman of a board with undefined powers 
 and rights. The town meeting was retained, but it was shorn of 
 power. Then why retain it ? the town meeting might ask. Plain men 
 have a keen eye to the difference between shadow and substance. The 
 people were less partial to the name of town, town meeting, or select- 
 man, than to the power they knew so well how to exercise through 
 these agencies. The people desired this exercise of power, and they 
 were not prepared to transfer the whole power of the town to a stand- 
 ing committee they could not control. Nor are the plain men ever 
 wholly wrong in their conclusions and judgments. The scheme of 
 1804 was laid before the town on March 12, and was not accepted. 
 The people might distribute power, as they did in town meeting ; they 
 would not transfer all power to one body however representative. 
 
«J6 BOSTON. 
 
 The Rehash of 1815. 
 
 The plan of 1804, somewhat modified, was again proposed in 1815, 
 when certain members of the town government had failed to be re- 
 elected, and gentlemen felt that town government was a failure (Quincy, 
 Mun. Hist., 26). Charles Bulfinch, who had been defeated, was chair- 
 man of the selectmen, received a salary, and was superintendent of 
 police. Such men are apt to lose in popular elections. Nor does it 
 appear why town government was a failure when certain good officers 
 were thrown out. The town appointed a large and influential committee 
 to report on the expediency of changing the municipal constitution. The 
 committee included Jacob Rhodes, Redford Webster, and George Blake, 
 who had served in the convention of 1804. Among the new members 
 were John Phillips and Josiah Quincy, both destined to serve the city 
 of Boston as mayors. The report of the committee is amusing, and the 
 draft of the charter they submitted an echo of 1804. The convention 
 had proposed a plain town council ; the gentlemen 1815 proposed to call it 
 "The Intendant and Municipality of the Town and City of Boston," 
 adding that the term "town " was " absolutely indispensable " because 
 it stood in the State Constitution ; that Boston should be called a city 
 because " this name has an effect to raise the rank of a place in the es- 
 timation of foreigners;" and that the head of the city-town should be 
 called intendant because that term was used in Charleston, South Caro- 
 lina. " implying the duties which he is to execute." The convention of 
 1804 had proposed that the intendant should be removable by three 
 quarters of the town council so voting. The committee of 1815 omitted 
 this bit of pleasantry. They gave him a voice at least in the manage- 
 ment of town property, and treated the selectmen with some respect. 
 All money not expended by the board of health or the overseers of the 
 poor was to be expended by the selectmen, but only upon appropri- 
 ations made by the municipality, which was to consist, apparently, of 
 the intendant, the nine selectmen, and the twenty-four delegates com- 
 bined. 
 
 The school committee and the county justices were treated with 
 slender respect, and it was provided that ' ' the town and city of Boston 
 shall hereafter be a county. " But the thirty-three or thirty-four mem- 
 bers of the municipality were to appoint three justices of a police court 
 and "care shall be taken that all the justices of the county shall be 
 taken in succession quarterly, if they shall express their consent to act 
 as justices of said court." The same municipality was to appoint the 
 
CONSTITUTIONAL HISTORY. 97 
 
 clerk of this police court. Possibly as a bid for votes the committee 
 proposed that the municipality should ' ' grant to any association of ar- 
 tists, artificers, or mechanics, such power of regulating themselves in 
 their several occupations, and of possessing such immunities, and im- 
 posing such restrictions, as the said municipality shall consider for the 
 benefit of the community and for the encouragement of industry." 
 The chief exec^^tive of the town was to be chosen by a convention of 
 the nine selectmen, the twenty-four delegates, the twelve overseers of 
 the poor, and the twelve members of the board of health. The select- 
 men, overseers, and board of liealth, acting under the law of 1813, 
 chose the town treasurer and collectors; this power the committee pro- 
 posed to transfer to their municipality. But the most brilliant passage 
 of their report is this: " The executive power efficiently exists at pres- 
 ent in a superintendent of police, who is chosen by the selectmen out 
 of their own body, and receiving a salary dependent upon their discre- 
 tion, and responsible solely to them." The committee appears to have 
 thought that the executive work of the town consisted in the duties 
 discharged by the head policeman. Yet Josiah Quincy, who fancied 
 himself a champion of the town meeting, would not trust the same 
 town meeting to appoint a superintendent of police. The real execu- 
 tive work of the town-city was to be done by the thirty-three select- 
 men and delegates, the intendant to be the figure head, while the in- 
 evitable committees would use their best judgment in managing mat- 
 ters. 
 
 The constitutional reasoning offered by the report is astonishing. 
 The report states correctly that the chief executive of the city-town 
 should not be vested with jvidiciary powers [be the judge of the police 
 court?], because in that case he would have to be appointed by the 
 governor. Then the report proposes a police court of three justices 
 selected by the city-town in quarter-yearly rotation, and " acting under 
 the authority of the government of the town." The State Constitution 
 said, and still says : "All judicial officers . . shall be nominated 
 and appointed by the governor, by and with the advice and consent of 
 the council," and Mr. Phillips, who signed the report, was president of 
 the State senate. As the State Constitution contained the words 
 " town " and " selectmen," the committee concluded bravely that " a 
 board of selectmen is rendered necessary, by the letter of the Constitu- 
 tion, in every town in this Commonwealth." By a like train of think- 
 ing the terms " town " and " town clerk " were offered as " absolutely 
 
 13 
 
98- _ BOSTON. 
 
 indispensable," being "made so essential by the provisions of the State 
 Constitution," which mentioned the terms just as it happens to mention 
 " subjects," meaning citizens. The report tried to draw a line between 
 executive and judiciary powers, though it treated justices of the peace 
 and the police court as executive agencies. The obvious line between 
 executive and legislative work was not drawn, partly, perhaps, because 
 town affairs had always been conducted by committees, the members 
 of which took part in town meeting ; and it seemed natural that the 
 men who had voted the money should expend it. The ideal that runs 
 through all these committee reports is a town government containing 
 none but able, honest and thrifty men, with a predominance of persons 
 that have attended at least a highschool, and occupy some social 
 position. The class of inhabitants that had neither wealth nor educa- 
 tion nor influence to boast of, took a different view. They knew that 
 they were not drones in the body politic or the body social, and that 
 power belongs to him that fairly takes it. The report of 1815 was 
 treated kindly by the town, which rejected it by a vote of 951 to 930. 
 About one person in twenty saw fit to vote. The liberties of the town 
 were saved. 
 
 From Town to City. 
 
 On Jime 5, 1821, the governor of Massachusetts announced that the 
 General Court, under the second amendment of the Constitution, might 
 incorporate cities. The people had approved the amendment with 
 special reference to Boston, although it applied also to Salem which 
 had the requisite 12,000 inhabitants. The amendment was carried by 
 a very small majority, but it was carried, and prepared the public mind 
 for the impending change. If the General Court could incorporate 
 towns, it could incorporate cities; but the law lights of the Common- 
 wealth thought the amendment desirable. In the same month — June, 
 1821 — the Boston town meeting proposed to unite the office of town 
 and county treasurer. The finance committee, which elected the town 
 treasurer under the authority of ch. 62, Acts of 1813, failed to comply 
 with the request of the town, for the county treasurer was elected by 
 the people. This petty incident led the town to insist upon its prefer- 
 ence, and to reconsider the relations of the town to the county. As 
 usual when there is discontent, the cry of extravagance was raised. 
 The fact is, the cotmty expenses were moderate, but the county author- 
 ities were unpopular, mainly because most of them were Bostonians 
 
CONSTITUTIONAL HISTORY. 99 
 
 appointed by the governor, and lived on fees and litigation. As 
 the town was virtually the county, it seemed inconsistent with self- 
 government that the acts of the town should be revised and occasion- 
 ally set aside by a few townsmen whom the governor had commissioned. 
 In due course the town received two reports, on the union of the town 
 and county treasurer, and on making Boston a county. The two re- 
 ports were turned over to a committee of thirteen, with instructions to 
 report a plan for a better town and county government. Clearly the 
 town was ready to act. It was ready to escape, if possible, from all 
 county bondage. 
 
 The committee, as usual under the town, when important affairs 
 were in hand, included great names: John Phillips, for years president 
 of the Massachusetts senate, and destined to be the first mayor of Bos- 
 ton; Josiah Quincy, the speaker of the house, and deeply interested in 
 Boston affairs, destined to be the great mayor; Lemuel Shaw, who had 
 been selectman, and was to be chief justice; and Daniel Webster. The 
 committee report was considered by the town on December 10, and re- 
 committed. The report, commonly attributed to Lemuel Shaw, recom- 
 mended the union of the town and county, and for the rest hoped that 
 all powers of the town and county might be vested in a town council of 
 nine selectmen and "about forty" assistants, except that the town 
 clerk, the board of health, the overseers of the poor, the assessors, the 
 firewards, the school committee, and some fifty petty officers should be 
 chosen by the people, and, — which is important, — that the court of 
 sessions be abolished, its executive duties to go to the town, while the 
 judiciary work of the court and its members was to be vested in salaried 
 law courts. The report appeared to separate the judiciary from the 
 other branches, but, while leaving the town to choose annually some 
 hundred and twenty town officers, not counting ward officers and State 
 or national representatives, the executive and legislative work of the 
 town and county was to be done by nine selectmen and forty assistants, 
 without an executive head, that is, without responsibility. Boston, at 
 that time, had about 45,000 inhabitants. The committee allowed one 
 assistant to every nine hundred, and concluded that the total number 
 of assistants would be "about forty." The town concluded that the 
 committee had not gone far enough, added twelve men, and instructed 
 this committee of twenty-five to draft a city charter. 
 
 The report so called for was submitted on December 31, and led to 
 a memorable debate. The debate lasted three days, and ended in the 
 
100 BOSTON. 
 
 adoption of the terms mayor, aldermen, and common cotmcil, where 
 the committee had proposed intendant, selectmen, and assistants ; but 
 far more important was the adoption of the principle that the executive 
 power of the town and county was not to be in the hands of one body; 
 it was to be divided ; there was to be a system of checks and balances. 
 The report had wisely proposed that the judiciary be separated from 
 the other branches ; the remaining power was to be distributed, lest any 
 one branch wield too much power. This was achieved by the democ- 
 racy of the town meeting. The plain men felt that the town gained 
 when it inherited all the administrative work of the county ; the plain 
 men felt, also, that it was better to divide and distribute the adminis- 
 trative and legislative power of the town than to lodge it in any one 
 body. The committee had proposed that the selectmen, now reduced to 
 seven, should elect the "intendant;" the town voted that the mayor 
 be chosen by the people. With like intelligence the plain men insisted 
 upon elections by wards, and that the city government should not have 
 the right to sell the common or "Funnel Hall." On the whole, the 
 people showed greater progress and better insight than did the gentle- 
 men who fought so tenderly for leaving things more or less as they 
 were. It was the honor of the lawyers to have separated the judiciary 
 from all other work.- Nobody thought of separating executive and 
 legislative work; everybody appeared to think that the mayor and 
 aldermen were the executive body, while the city cotmcil was to be the 
 town legislature that passed ordinances and made appropriations. The 
 consequences of this confusion were to be felt for more than sixty years 
 of administration by committee. 
 
 The result of the debate begun on December 31, 1821, was submitted 
 to a popular vote on Januar)^ 7, 1823. The people voted almost unan- 
 imously that Boston be a cotmty, and, by a vote of 2,805 yeas to 2,006 
 nays, that the report for changing the town to a city, as adopted in 
 town meeting, be approved and carried into effect. The act of the 
 General Court was approved on February 23 ; on March 4 it was ac- 
 cepted by a popular vote of 2,797 yeas, to 1,881 nays, about one person 
 in ten voting. On April 8 the first city election was held. Josiah 
 Quincy describes the change from personal knowledge. Mr. H. H. 
 Sprague (pp. 18-31) gives additional details. It is difficult to exagger- 
 ate the services the town officers had rendered, especially the selectmen 
 who were not consulted when a city charter was under consideration. 
 Under the Colony the selectmen had been administrative, legislative. 
 
■ CONSTITUTIONAL HISTORY. 101 
 
 and semi-judicial officers in one; tinder the Province all their judiciary 
 and many of their administrative duties had been lost to the county 
 justices ; the management of many important affairs had been trans- 
 ferred, both under the Province and especially under the Common- 
 wealth, to other town officers ; yet they had served faithfully and 
 without compensation, except that their chairman received a salary 
 when he became superintendent of police. The selectmen, the over- 
 seers, and the board of health had free access to the town treasury ; 
 their acts were never suspected. They had the power to incur debts ; 
 they left the town without a debt ; the city inherited from the county 
 a debt of $71,185. 
 
 The volume of By-Laws published by the selectmen of 1818, possibly 
 the compilation of Thomas Clark, the town clerk, illustrates the fidelity 
 and insight of the selectmen, and presents a matchless picture of the 
 town government. No later attempt has equal value. The city has 
 published many ambitious volumes; but only the code of 1818 under- 
 takes to cover the whole field of local government. And that attempt 
 is almost silent as to schools. It enumerates the 112 officers chosen 
 annually in town meeting; also the officers appointed by the selectmen. 
 It shows how each ward elected a member of the board of health, two 
 assessors of taxes, and a ward clerk, and how the board of health to- 
 gether with the overseers and selectmen elected the town treasurer and 
 collectors of taxes. In the place of this army the citizens of Boston, 
 qualified as the amended State Constitution prescribed, were to choose 
 one mayor and eight aldermen at large ; in each ward four councilmen, 
 one member of the school committee, one overseer of the poor, not less 
 than three firewards, and the ward officers. All other officers were to 
 be appointed by the city government. The town and county finances, 
 managed by two treasurers and at least four conflicting boards, were 
 united and transferred to the city government. The ordinances of the 
 city were not subject to the veto power exercised by justices of the 
 peace. The city was to have a representative head, and the powers 
 formerly exercised by the town meeting were distributed among two 
 bodies, each having the negative upon the other. The town, then, 
 made a great gain in power ; this power was not vested in any one body, 
 but distributed ; the constitution was simplified ; a system of accounta- 
 bility was made possible ; and the individual citizen was relieved. Under 
 the town he had to elect more officers than he could possibly know, and 
 to attend more meetings than was reasonable. Under the city he was 
 
102 BOSTON. 
 
 to attend to all local afEairs in one election. The town had gained ; the 
 citizen had gained; the government had gained; and the liberties of 
 Boston were increased beyond those of any other community in Massa- 
 chusetts. This very striking advantage was secured by the plain men 
 of Boston who did not reason closely upon constitutional principles, but 
 knew very well whether popular rights were to be increased or dimin- 
 ished. Much is due to the learned and highminded men that drafted 
 the charter; more is due to the town meeting that Stood for popular 
 rights. All honor to the reforms that come from the intellectual and 
 scholarly few ; the noblest reforms come from the plain people. 
 
 THE CITY PERIOD, 1822 TO 1890. 
 
 The chief source for a constitutional history of the city is to be found 
 in the Acts of the General Court. A complete set of these laws is not 
 common; nor is there a general index. Up to 1831 the General Court 
 usually met twice a year. The general laws have been digested in 
 three several codes, the Revised Statutes, passed November 4, 1835; 
 the General Statutes, passed December 28, 1850; and the Public Stat- 
 utes, passed November 19, 1881. The special statutes passed by the 
 Commonwealth have been printed in a separate set, under the author- 
 ity of the State ; but the set is not absolutely complete. The city of 
 Boston has repeatedly tried to make a code of all laws and ordinances 
 applicable to the municipality. Such codes were issued in 1827, 1834, 
 1850, 18(14, 1869, and 187(1. The compilations of 1837 and of 1850 are 
 interesting as illustrating the government of the city under the first 
 charter; the compilation of 18(14, with its several supplements, is rela] 
 tively complete; and the compilation of 187G, being the work of James 
 M. Bugbee, is valuable. A purely historical ti^eatment of the laws, 
 ordinances, regulations, and orders of the city government is a desid- 
 eratum. The city published in 1860 the Annals of the Boston Primary 
 School Committee, by Joseph M. Wightman, covering the government 
 of the lower schools from 1818 to 1855. A " Manual for the use of the 
 Overseers of the Poor" appeared in 18(;(i. Private enterprise has un- 
 . dertaken a history of the Boston fire department. And some of the ex- 
 ecutive departments have begun to publish the law by which they are 
 governed. The city ordinances have been issued, in separate digests, 
 in 1883, 1885, 1890, and 1892, with the Regulations of the Board of 
 Aldermen added. In 1885 the law department of the cityissi.ied a vol- 
 ume of special statutes relating to Boston ; an enlarged edition, with 
 
CONSTITUTIONAL HISTORY. 103 
 
 " extracts from the Public Statutes," appeared in 1887 ; a third edition, 
 entitled "Special Statutes relating to the City of Boston," and omit- 
 ting the general laws, appeared in 1893, but is not complete. Much 
 information is scattered through the "City Documents," the titles of 
 which are digested in an index. The documents mentioned under the 
 entry of " charter " are important. Charter digests appear in the city 
 codes, up to 1876, also in document 28 of the year 1875, in a pamphlet 
 published by the city in 1886, and in the Municipal Register, published 
 annually since 1841. All these digests shotild be used with reserve. 
 Quincy's Municipal History is a brilliant account of the author's admin- 
 istration, from 1823 to 1828. Mr. James M. Bugbee, in 1887, and Mr. 
 H. H. Sprague, in 1890, published brief reviews of the Boston govern- 
 ment from the beginning. In 1891 the Record Commissioners pub- 
 lished a Catalogue of the past City governments. 
 
 Area and Population. 
 
 The area of Boston was smallest from 1739, when Chelsea was set 
 off, to 1804, when Soiith Boston was annexed. The area of the city 
 was enlarged by encroachments upon the surrounding water, especially 
 in the South and Back Bays, by the annexation of Roxbiiry in 1868, of 
 Dorchester in 1870, of West Roxbury in 1874, all these being trans- 
 ferred from Norfolk County, and by the annexation of Charlestown 
 and Brighton in 1874, these two being transferred from Middlesex 
 County. Including the harbor islands, the area of the city is nearly 
 forty square miles ; the original peninsula, north of Dover street, was 
 less than five hundred acres. The population of Boston, in 1820, was 
 43,298; in 1890 it had risen to 448,477, the original peninsula, enlarged 
 by encroachments upon tide water, containing 161,330, while 287,147 
 lived on annexed territory, including East Boston, the harbor islands, 
 and South Boston. Suffolk County, which had 43,940 inhabitants in 
 1820, rose to 484,780 in 1890. Its area was smallest from 1803 to 1804. 
 The annexations of 1874 made it the most populous county in Massa- 
 chusetts. The city and the county are one ; the city holds all property 
 of Suffolk County; the voice of Chelsea, Revere, and VVinthrop in Suf- 
 folk-County matters is insignificant; the dreams of 1650 and 1677 have 
 been realised ; Boston is the only municipality in Massachusetts not 
 subject to a separate body of county commissioners ; it is not surpassed 
 for municipal spirit ; and yet the great city has not become a homo- 
 geneous community. East Boston and West Roxbury have a city gov- 
 
104 BOSTON. 
 
 ernment in common, but little else that they have not in common with 
 other cities or towns. The law of 1885 made the city a monarchy ; but 
 even a great monarch in this democratic land cannot master the rea- 
 sonable ambition of so composite a community. Local ambition has 
 achieved magnitude. Has it achieved municipal greatness ? Has it 
 magnified self-government ? In 1845 it was thought that foreign im- 
 migration destroyed or impaired the unity of Boston. In the fifties 
 this sentiment swept through the State ; and yet the foreign immigrant 
 should not be blamed when Brighton and East Boston are commonly 
 spoken of as separate communities. Boston made its greatest gains in 
 self-government before it covered thirty-seven square miles. After the 
 great annexation it has been governed mainly by State law, and since 
 1885 the General Court is the chief legislature of Boston; the mayor 
 the executive officer chiefly of State-House law. The ordinances of the 
 city, since 1885, have been comparatively insignificant. Boston has be- 
 come large ; but it consists of the city proper, with a half-dozen thrifty 
 suburbs mechanically attached to the metropolis. These suburbs have 
 gained by annexation, the old peninsula has not. Once it had to sat- 
 isfy only its own local wants; now it has to provide for a family 
 enlarged by hopeful agreement. Yet the old peninsula, up to the 
 Roxbury line, contains two-thirds of all the property taxed by the 
 city. 
 
 Of the Boston population roughly one-third is foreign born ; another 
 third is of foreign parentage. In 1845 it was noticed that only 27 per 
 cent, of the population was born in Boston of American parents, and 
 that "foreigners and their children " constituted nearly one-third of 
 our population. Persons interested in such subjects will find Lemuel 
 Shattuck's Census of Boston for 1845 interesting, and may consult 
 Carroll D. Wright's digest of the Boston census for 1880. The national 
 census of 1890 promises the latest details. The admirable State Census 
 of 1885 gives luminous details as to the parent nativity of our popula- 
 tion. These writers all show how largely our population has been 
 recruited from Ireland and British North America, and, to the thinking 
 mind, how rapidly this immigrant element is either amalgamated or 
 lost. A great city seems, to be the cemetery of the country, and 
 America seems to be the cemetery of foreign nations. What survives 
 helps to make up the American nation, without visibly affecting our 
 inherited laws, institutions or language. These appear to be stronger 
 than all infiuences from without. And even the humble immigrant 
 
CONSTITUTIONAL HISTORY. 105 
 
 comes here very much as did the fathers we honor, — to improve his 
 condition, not to upset the law and order to which he looks for encour- 
 agement. This immigration is governed by natural causes. It was 
 slight while Boston was a commercial city ; it became noticeable when 
 we had occasion to build canals, turnpikes, and especially factories.' In 
 1822, when Boston became a city, the art of Macadam was not gener- 
 ally known; illuminating gas did not light the streets of Boston; 
 steamboats had been seen, but were not trusted; our first railway track 
 was laid in 1826, at Quincy; our passenger railways belong to 1834 and 
 later, years; the first ocean steamer, the " Britannia," arrived in 1840; 
 our first line of street railways was opened in 1856 ; we had our last 
 riot in 1863 ; the elevator in our city hall was built in 1874 ; the first 
 message by the electric telegraph was sent by Morse in 1844; in 1846 
 the telegraph connected Boston with Springfield: the telephone came 
 in 1877; the city introduced electric lights in 1882; electricity as a 
 motor in our streets was accepted by the city in 1889. The number of 
 tippling-shops in Boston is not any larger in 1892 than it was in 1822. 
 On the whole, then, immigration has not checked progress, and per- 
 haps it has supplied some of the hard work that had to be done to build 
 our sewers, streets, canals, railways, and waterworks, and to carry out 
 the plans of more enterprising minds. These minds have more enter- 
 prises than there are hands to carry them out, and the whole world has 
 more work to do than there are raen ready to do it. Boston would be 
 a small city but for fresh blood from the country, and New England 
 would have lost its people in good part to the great West, had not 
 foreign immigration supplied the places left vacant by our own emi- 
 grant who sought to improve his condition beyond the Alleghanies. 
 But the character of New England and Massachusetts and Boston has 
 not suffered. The census of 1885 tells us that of the Boston population 
 ten years of age and older, seven per cent, was illiterate. That fact is 
 due to immigrants. But they have neither made nor marred the laws 
 that govern the city. 
 
 The City and the County. 
 
 In accepting the city charter the people of Boston accepted also the 
 Act of 23 February, 1822, for regulating the administration of justice 
 in Suffolk Count}'. This interesting act, known as ch. 109 of 1821, 
 formed part of the charter, with which it was to stand or fall. Without 
 this act the charter is incomplete. Its effect is still felt, It drew ^ 
 14 
 
106 BOSTON. 
 
 sharp line between the administration of justice and all other work of 
 the city and county. It relieved the law courts of all administrative 
 work, which was assigned to the board of mayor and aldermen, and it 
 abolished the veto power the ancient court of sessions had exercised 
 since 1699 over all bylaws passed by the town. The administration of 
 justice was kept by the State; the executive power of the county was 
 transferred to the city, and by the Act of February 10, 1823, the city 
 council was empowered to lay and assess county taxes (1821, ch. 109,' 
 s. 13; ch. 110, s. 15; 1822, ch. 85). The town of Chelsea, beside Bos- 
 ton the only town in Suffolk County from 1803 to 1846, was relieved of 
 all county taxes, and of all ownership in the property of Suffolk County 
 in 1831 (1831, ch. 65, accepted by Chelsea Sept. 5, 1831). But Boston 
 supplies all Suffolk county, now consisting of the cities of Boston (since 
 1823) and Chelsea (since 1857), and the towns of Revere (setoff in 1846 
 as North Chelsea, named Revere in 1871) and Winthrop (since 1852, 
 when it was set off from North Chelsea), with county buildings, and 
 pays all expenses of Suffolk County, except that Chelsea, Revere and 
 Winthrop pay for such services as they may accept from the county 
 commissioners of Middlesex acting in the three communities named 
 (Publ. Stat., 205). 
 
 By a fiction Boston became virtually a county. Under another fiction 
 Chelsea, Revere, and Winthrop remain in Suffolk county, and vote for 
 certain officers of Suffolk county, such as the district attorney, three 
 clerks of the Supreme and Superior courts for Suffolk county, the 
 register of probate, the register of deeds, the commissioners of insolv- 
 ency, and the sheriff, though all these officers are paid by the city of 
 Boston. At the same time the people of Chelsea, Revere and Winthrop 
 vote for the county and special commissoners of Middlesex, who have 
 one kind of jurisdiction in Chelsea (1872, ch. 87), and another in Re- 
 .vere and Winthrop (1893, ch. 417, s. 255). The East-Boston District 
 Court has jurisdiction of Winthrop (1886, ch. 15), and the Police Court 
 at Chelsea has jurisdiction in Revere, but both courts are a charge upon 
 the city of Boston, while the justices and clerks of these courts are ap- 
 pointed by the State. The Boston city charters of 1822 and 1854 con- 
 templated that Boston should become a county in fact (1821, ch. 110, 
 15; 1854, ch. 448, s. 38); and the law of 1831 debarred Boston from 
 opposition, should Chelsea, since then divided into one city and two 
 towns, request to be set off to "any other county." But why should 
 Chelsea, Revere and Winthrop ask for such a transfer, when Boston 
 
CONSTITUTIONAL History. lol 
 
 pays their county expenses, and they vote for county officers in both 
 Suffolk and Middlesex? The Superior Court for Suffolk County, the 
 Municipal Court of the City of Boston, the East-Boston District Court, 
 the municipal court for the Charlestown district, and the municipal court 
 of the South-Boston district, moreover, have concurrent criminal juris- 
 diction over a part of Hingham and over Hull (set off from Suffolk to 
 Plymouth county in 1803), and over the islands in the lower harbor, as 
 well as over a large water area (Publ. St., 303, 409, 856). By implica- 
 tion this jurisdiction is held to extend, in a measure, to the Boston 
 police force, which is an executive body (Rules and Reg. of Police 
 Department, 1889, p. 13). 
 
 The jurisdiction of Boston includes the harbor as far as Lovell's 
 island; a certain joint jurisdiction goes farther, and includes a part of 
 Plymouth county. Chelsea, Revere and Winthrop, on the other hand, 
 are nominally in Suffolk county, but virtually in Middlesex county as 
 well. The jurisdiction of the lower law courts is concurrent along the 
 boundary lines of their respective districts (Publ. St., ch. 154, s. 50); 
 and where the counties of Suffolk and Middlesex are separated by the 
 Charles river, the counties have concurrent jurisdiction over the 
 river (1794, ch. 31; Publ. St., ch. 22, s, 11). The rights and 
 duties of Suffolk county, then, are extremely complicated, and not ■ 
 always clearly defined. But Boston alone among all the municipalities 
 in the Commonwealth exercises all the powers a county and city can 
 exercise in Massachusetts; and this advantage was obtained by the 
 two acts of 1822, which made Boston a city. No other city in the State 
 has like advantages. Boston had fought for this unique position in 
 Colony and Province times, and from the very beginning it had shown 
 generous hospitality to the government offices of Massachusetts. This 
 hospitality continues ; for the court house of Suffolk county is main- 
 tained by the city of Boston and is the home of the vSupreme Court for 
 the Commonwealth. Accordingly the proud capital still repays the 
 privilege conferred upon it in 1822. It has always been the capital, 
 and it has never failed to discharge the duties of a capital. Some of 
 these duties it has dischai'ged with munificence, and since 1822 it has 
 not asked for favors. 
 
 Administration of Justice. 
 
 The reason why the administration of justice, during the later years 
 of the town, was so unsatisfactory, is twofold. In the first place, the 
 
108 BOSTON. 
 
 justices of the peace could not command public confidence ; their courts 
 were almost private, and they lived on fees. Far more serious and 
 annoying was the fact that the court of sessions, which consisted of 
 justices of the peace, had large administrative powers, especially in 
 county matters. This was remedied by the act of 1823 (1821, ch. 109). 
 The police court then established consisted of three competent judges, 
 who inherited the criminal jurisdiction of the sessions and the justices 
 of the peace, and also, as a justices' court, the entire civil jurisdiction 
 of the justices of the peace. The town court, which had existed since 
 1814, was merged in the Court of Common Pleas for the Commonwealth, 
 in 1821. The municipal court, established in 1800, remained — since 
 1843 as a branch of the Common Pleas — until 1859, when it was merged 
 in the Superior Court, as was the Superior Court of the County of 
 Suffolk, that had been established in 1855 (ch. 449). The Superior 
 Court, then, established in 1859, was the heir of the Superior Court of 
 Suffolk County, of the Municipal Court, of the Court of Common Pleas, 
 and, indirectly, of the town court. Under the amended Constitution 
 (am. 19) the clerks of the Supreme and Superior courts for Suffolk 
 county have been elected by the people since 1865. The police court 
 of 1822, and its civil branch, the justices' court, were merged, in 1866, 
 in the Municipal Court of the City of Boston (1866, ch. 270). At first 
 its judges were paid by the Commonwealth ; but its clerks were elected 
 by the voters of Boston. The clerks are now appointed by the State, 
 and the judges are paid by the city. The coiirt has given great satis- 
 faction, but was established before the great annexations took place. 
 
 Boston had a prosecuting attorney as early as 1800; and he was 
 elected by the people (1799, ch. 81, sec. 4). In 1807 his appointment 
 was vested in the State, and for obvious reasons the offices of town and 
 county attorney were united when Boston, in 1822, assumed all expenses 
 of Suffolk County (1821, ch._ 104). In 1865, in an age that had limited 
 wisdom and unlimited courage, the attorney-general and all district at- 
 torneys were made elective officers, the district attorney being chosen - 
 triennially by the voters in Suffolk county (Mass. Const., am. 17, 19; 
 St. 1893, ch. 417, sec. 250). But a prosecuting officer is clearly a branch 
 of the executive, not of the judiciary. For this reason he should be ap- 
 pointed by, and responsible to, the executive head. For purely execu- 
 tive purposes, and as counsel, the city established a law department in 
 1827, the head of the department being called city solicitor, who had 
 an assistant, from 1839 to 1844, called city attorney. In 1881 the office 
 
CONSTITUTIONAL HISTORY. 109 
 
 of corporation counsel was established, the city solicitor being his asso- 
 ciate. Unfortunately the opinions of this law department are not pub- 
 lished, except incidentally. But the city has been well advised in the 
 law, and the law courts in Boston, down to the lowest, are above re- 
 proach. The judges have been learned in the law, very faithful, and 
 in the iuU possession of public confidence. The city of Boston votes 
 higher salaries than does the General Court. The country appears to 
 oppose salaries above a certain conventional point, and may boast that 
 it has not failed in securing both talent and integrity, particularly in the 
 administration of justice. The judiciary is the only branch of govern- 
 ment in the United States that has escaped general distrust. 
 
 In consequence of annexations to the city, its municipal court, as es- 
 tablished in 1866, would have proved insufficient, had it been required 
 to serve the enlarged community. Like its predecessor it had but three 
 judges ; now it has five. ' The police court at Chelsea had been estab- 
 lished in 1855 (1855, ch. 36) ; in 1874 the municipal court of the East- 
 Boston district, with jurisdiction over Winthrop,' was established, and 
 became the East-Boston district court in 1886 (1874, ch. 271; 1876, ch. 
 240; 1886, ch. 15); the municipal court of the South-Boston district 
 was established in 1874 (1874, ch. 371; 1876, ch. 340). This relieved 
 the municipal court of the city of Boston, the jurisdiction of which is 
 limited, since 1876, to the peninsula proper, or wards 6-12 and 16-18. 
 When Roxbury was annexed, in 1868, its police court was retained, and 
 is now known as the municipal court of the Roxbury district (1867, ch. 
 359; 1876, ch. 340). In 1870, soon after annexation, the municipal 
 court at Dorchester was established (1870, ch. 333). When Charles- 
 town was annexed, in 1874, its police court became the municipal court 
 of the Charlestown district (1873, ch. 386, sec. 4), and in the same year 
 the municipal courts in the West-Roxbury and the Brighton district 
 were established (1874, ch. 371; 1876. ch. 340). So there are nine 
 municipal - courts in Suffolk County, and eight in Boston. They have 
 jurisdiction of civil causes involving not above a thousand dollars, and 
 of crimes under the degree of felony, where a prosecution by informa- 
 tion or indictment is not required (Publ. St., ch. 154; St. 1893, ch. 396). 
 Owing to the uniformity of the law, and to the authority of the higher 
 courts, but especially in consequence of the character of the justices 
 who have summary power, the municipal courts have worked well. 
 The Probate Court, inherited from the earliest time of the Province, 
 now also a court of insolvency, is a county court in the best sense. It 
 
no BOSTON. 
 
 still acts under the interesting law of 1818 (ch. 190) ; but since 1858 the 
 register of probate is elected quinquennially by the people (1893, ch. 
 417, s. 252). 
 
 The Charter. 
 
 The first city government of Boston was organized on May 1, 1822. 
 The mayor, the eight aldermen, and the common council were im- 
 pressed with the idea, that town government was a great blessing, and 
 that a city was intended to be as nearly like a town as possible. ' ' As 
 far as practicable," Mr. Quincy tells us, "the customs and forms to 
 which the citizens had been familiarized under the government of the 
 town, were adopted" (Quincy, Mun. Hist., 44). The same prejudice, 
 for such it was, runs through the charter of 1822. The administration 
 of police, the executive powers of the city, and all the powers previously 
 vested in the selectmen, whether by law, by town vote, or by prescrip- 
 tion, were given to the board of mayor and aldermen (1821, ch. 110, 
 sec. 13), and all other powers previously exercised by the town were 
 vested in the two branches of the city council, to be exercised by con- 
 current vote, each branch having a negative upon the other (1. c. , sec, 
 15). The mayor was to nominate all officers whose appointment de- 
 pended on the aldermen (sec. 21), and he could summon the city coun- 
 cil or either branch to hear his recommendations (sec. 12) ; but he was 
 to be no more and no less than the chairman of the city board of select- 
 men, with strict orders to be a vigilant and useful inspector. The real 
 power of administration was lodged with the aldermen. The same 
 principle still adorns the statute book of Massachusetts. City coun- 
 cils have the power of towns, "the mayor and aldermen shall have 
 the powers and be subject to the liabilities of selectmen " (Publ. 
 Stat., ch. 28, sec. 2). The intention of the charter was that the city 
 should be governed like a town, or that a representative democracy 
 should follow the precedents of a self-governing democracy. But the 
 difference between a simple democracy and representative democracy is 
 radical. 
 
 The powers vested in a town are not defined, save. in particular in- 
 stances. Neither are the powers of selectmen. It appears that select- 
 men are chosen for a definite period of time; but their powers are 
 indefinite (see 1893, ch. 423, sec. 6-9), and subject to orders issued by 
 the town meeting, which is the town government. A selectman is an 
 agent ; a board of selectme.n is not a government. The mayor of a city 
 
CONSTITUTIONAL HISTORY. ' 111 
 
 and the members of a city council are not the agents, but the members 
 of a government. Selectmen are the agents of a government; the 
 mayor and city council are themselves a government. Public opinion 
 shrinks from this conclusion, and likes to urge that cities are mere cor- 
 porations, but not a government. In truth, the mayor and city council 
 of Boston are a real government, not wholly unlike that of either the 
 State or the United States. All three have limited powers; but within 
 the limits prescribed by law each government has very great powers. 
 A selectman is constantly subject to new orders from the town meeting; 
 a city government is not, although the Boston charter of 1823 retained 
 the semblance of general meetings giving instructions to the city gov- 
 ernment (1821, ch. 110, sec. 36). The orders of a town meeting are 
 binding upon the selectmen; the "instructions" of a Faneuil-Hall 
 meeting are not binding upon the city government. It was an illusion 
 to retain these meetings. It is an illusion to say that aldermen have 
 the power of selectmen. It is an illusion to think that a town govern- 
 ment and a city government can be similar. Being a representative 
 government, with distributed power, the government of the city of 
 Boston resembles that of the United States rather than that of a Massa- 
 .chusetts town. A town government is the very ideal of self-governing 
 democracy acting for itself, issuing orders, and supervising its agents ; 
 a representative government is not a real democracy, but a sort of 
 democratic aristocracy, on the theory that the democracy will choose 
 the best men to conduct the government business. A town meeting is 
 democracy with government power exercised by the many ; represent- 
 ative democracy is the power of the many transferred to the few. The 
 charter of 1823 made this transfer, but failed in the proper distribution 
 of the power transferred. It separated the judiciary from the executive 
 and legislative branches; and this separation entitles the charter to 
 permanent respect. The charter erred in not separating the legislative 
 and executive ofificers of the city government, and in not establishing a 
 system of checks and balances, which is the very essence of represent- 
 ative government. Without a sharp separation of powers, and 'without 
 a full system of checks and balances, a representative government 
 might be a tyranny. Democracy, as the town meeting well knows, 
 holds all municipal power. When the town surrenders the direct exer- 
 cise of this power, when simple democracy becomes representative 
 democracy, full municipal power is not given to one person, nor to one 
 body, but is carefully divided, lest the government be despotic. Under 
 
112 BOSTON. 
 
 a wise separation and distribution of power, the legislative authority 
 of the municipality is vested in a body composed of two branches, each 
 having the negative upon the other, lest there be hasty ordinances, 
 hasty loans, hasty appropriations, hasty action. The executive power 
 is vested elsewhere, lest the laws of the city fail of impartial, fearless, 
 and prompt execution. 
 
 The charter of 1822 did not make this necessary separation; it vested 
 in the aldermen full legislative and executive power, while establishing 
 a figure head called the mayor, whom the public might blame when 
 the aldermen did not govern well. As great executive power was 
 vested in the eight aldermen, the forty-eight members of the common 
 council were pardonably jealous, and tried to secure a part of the ad- 
 ministrative power. When the aldermen consented to a government 
 by committees, the common council came very near exercising execu- 
 tive power through the joint committees of the two legislative branches. 
 The charter itself gave the city council power to elect all officers not 
 otherwise provided for, and this power was used freely (1. c., sec. 16). 
 Nor is it wrong that a government branch or board or officer should 
 exercise all power within lawful reach. The result was that as late as 
 1881 Mayor Prince declared the functions of the mayor, in the inaugura- 
 tion of civic measures, to be " merely advisory " (Inaug. Addr,, p. 8). He 
 might have added that his executive powers were chiefly advisory, arid 
 that. city councils were reasonably unwilling to take advice. Why 
 should they seek advice? It is as safe to trust one's own judgment as 
 to follow other men's advice. The fault was not with the city council, 
 to whom it is usually charged, but with the charter of 1822. That 
 instrument lodged all municipal power in the city council, and instead 
 of creating an executive officer, the equal and rival of the city council, 
 made the mayor the chairman of the aldermen, without any veto 
 power beyond his vote. At the same time he was made a member of 
 the school committee, and not even its chairman, except by courtesy. 
 The "care, custody, and management of all the property of the city" 
 was expressly vested in the city cotmcil (1821, ch. 110, sec. 16) In a 
 word, the charter of 1822 transferred the power of the municipality to 
 the city council, except the judiciary, and a few matters, like the fire- 
 wards, the overseers of the poor, and the care of the public schools. 
 The only remedy left with the people was a refusal to re-elect members 
 of the government that had proved unsatisfactory. Beyond this the 
 city council had almost unlimited municipal power, and one marvels 
 
CONSTITUTIONAL HISTORY. 113 
 
 that this power of creating taxes and debts was not used more extrav- 
 agantly than the records disclose. One marvels at the ability and 
 fidelity of the several city councils. One wonders that the city ever 
 escaped a great scandal in its municipal affairs. It was not the virtue 
 of the charter that saved the city government from disgrace. On the 
 whole, the city councils and their committees were better than .the 
 charter, and did better than the charter required. For the charter 
 almost invited misgovernment. It established irresponsibility, and" yet 
 the city was not totally misgoverned. 
 
 The Public Schools. 
 
 Easily the most interesting of all our municipal institutions are the 
 pubUc schools, not only for the lavish support they have from the tax 
 levy, but also for the position they occupy in our system of govern- 
 ment. The schools are entirely supported from taxes, and now con- 
 sume, speaking roughly, about one-fifth of the annual tax. No ex- 
 pense for schools seems too high in the estimation of the people, and 
 an attempt to reduce teachers' salaries, or to delay the erection of new 
 schoolhouses, or to reduce the work of the schools, excites popular 
 indignation. At the same time the schools retain the traditional 
 government by committee. And the more popular they became, the 
 more they drifted away from the general city government. The city 
 council votes a gross sum for schools ; the school committee expends 
 the money, and has entire .charge of the schools, including, since 1889, 
 the erection and repair of all school buildings. The mayor of the city, 
 however, has a limited veto power over all school-committee votes 
 involving the expenditure of money (1885, 266, sec. 10), and his ap- 
 proval of contracts involving $2,000 or more, is required (1890, 418, 
 sec. 6). But the civil-service law of the State does not apply. The 
 laborers and clerks employed by the city must first pass an examination, 
 conducted by the State, while the teachers in our schools are entirely 
 under the control of the school committee. 
 
 The charter of 1822 vested the care and superintendence of the pub- 
 lic schools in a board of twenty-one persons consisting of the mayor, 
 the eight aldermen, and one person in each of the twelve wards chosen 
 at the annual city election. As the aldermen were overwhelmed with 
 all sorts of duties, many of them purely administrative, they were 
 relieved of their school work in 1835, The law of that year (ch. 128), 
 
 15 
 
114 BOSTON. 
 
 adopted by the people on April 39, 1835, vested the management of 
 the schools in a school committee of twenty-six persons, including the 
 mayor, the president of the common council, and two persons from 
 each of the twelve wards chosen annually by the people. The common 
 council was jealous of the executive power exercised by the aldermen, 
 and the new arrangement, such as it was, appears to have been a con- 
 cession. But this school committee dealt with the grammar schools, 
 the 'primary schools being left to the care of the self-perpetuating 
 primary school committee established in 1818, and continued until 
 1854. The city built its first primary school house in 1835. Even so 
 great a man as the elder Mayor Quincy rejoiced when the establishment 
 of a girls' highschool was prevented (Mun. Hist., 316-235, 369-371). 
 He seemed happy that the girls' highschool had not been revived in 
 1851. Yet when the first examination for admission to the girls' high- 
 school was held in 1826, the number of applicants was two hundred 
 and eighty-six. In other words, the school system was imperfect, and 
 the school government irregular in fact as well as in law (Mayor Bige- 
 low's inaug. address, 1850, p. 5; city docs, of 1853, no. 32). 
 
 This irregularity was removed by the city charter of 1854, which 
 incidentally abolished the primary school committee, and placed the 
 care and management of the public schools under a committee of 
 seventy-four persons, consisting of the mayor, the president of the 
 common council, and six persons from each of the twelve wards, chosen 
 by the people. These specially-elected members of the school commit- 
 tee were chosen for three years, being the first departure from the 
 ancient habit of returning public officers once a year to the people. 
 Not only were these members of the school committee chosen by wards, 
 but they must be inhabitants of the wards that chose them. The ques- 
 tion whether aldermen and members of the school committee should 
 be chosen by wards, or by the city at large, has been much discussed. 
 The critics usually prefer the arrangement that has not been made. 
 As long as the city was relatively compact, that is, before the annexa- 
 tions from 1868 to 1874, a certain community of interests existed 
 which justified general popular votes for general officers. Yet this 
 principle was in part abandoned as early as 1799, to the satisfaction of 
 the people. The school committee established in 1854 certainly gave 
 satisfaction, 'and unified the school department. The primary school 
 committee, with its 199 members, — one to each primary school, — was 
 discontinued, and an attempt was made to give the schools.an executive 
 
CONSTITUTIONAL HISTORY. iio 
 
 head, by the title of superintendent. The first superintendent of schools 
 was appointed in 1851; but he is still the mere clerk of the school 
 committee. The principle of dividing legislative and administrative 
 functions as to the public schools was not considered in 1854, and has 
 not been established since. 
 
 This fact, that the schools needed an executive head, and the annex- 
 ations of the suburbs to 1874, occasioned the law of Ma)^ 19, 1876 (ch. 
 341), which still controls. This law continued the mayor as chairman 
 of the school committee, as if to maintain some connection between the 
 public schools and city hall ; occasionally the mayor would serve as 
 chairman of some sub-committee appointed from the general school 
 committee. The latter consisted, beside the mayor, of twenty-four 
 members, eight being chosen annually to serve three years. They are 
 chosen by the voters of the city at large, and in 1879 the right to vote 
 for members of the school committee was given to women substantially 
 on the same conditions as the male voters must comply with. The law 
 of 1885, ch. 266, wisely excluded the mayor from the school commit- 
 tee, which thus consists of twenty-four persons elected by the people at 
 large, under a generous suffrage, the constitutional amendment of 1891 
 having swept away the payment of a tax as a prerequisite of voting. 
 All American citizens at least twenty-one years of age, not paupers, 
 able to read the Constitution of Massachusetts in English and to write 
 their names, who have lived a year in Massachusetts, and six months 
 in Boston, who are duly registered as voters, may now vote for the 
 Boston school committee (1893, ch. 417, sec. 13, 14). While the pos- 
 sible number of voters for school committee is now (in 1893) about 
 200,000, the actual number has never approached 100,000. At the 
 city election of 1888, when the largest number of citizens voted, the 
 total was only 63,548 men and 19,490 women. At the city election 
 of 1892 the number of municipal voters was 68,447 men and 9,510 
 women. 
 
 The expense for schools, disbursed by the school committee, is about 
 two million dollars a year. Nominally the expense was as high in the 
 first year after the great annexations. Theoretically the school cora- 
 mittee is the product of a suffrage that cannot be more liberal, unless 
 aliens and minors be included. The school committee of twenty-four 
 persons can discharge teachers and other servants at pleasure.' It may 
 engage them on its own conditions, except that janitors and persons 
 having charge of boilers are supplied by the civil-service commissioners 
 
116 BOSTON. 
 
 of the Commonwealth. For executive officers the school committee 
 has a board of one superintendent and six supervisors, who may ex- 
 amine and report, but cannot really order or act, their power over prin- 
 cipals being specially limited. Yet the vast establishment has never 
 been tainted by party politics ; owing in part to the high salaries of- 
 fered, the school committee, itself unpaid, has secured instructors and 
 other officers of the best character; and the schools have the enthusi- 
 astic stipport of the people. From time to time the general city gov- 
 ernment has been assailed by public opinion ; the school committee has 
 not. The organisation of the city government has been condemned; 
 the organisation of the schools and their government is scarcely a sub- 
 ject of discussion, much less of criticism. The system ma}' be theo- 
 retically wrong; it has worked to the general satisfaction of the people 
 who pay the bills. The establishment shows that even a defective law 
 may be well administered, and the school committee itself is the best 
 illustration of American adaptability and of unselfish citizenship de- 
 voted to the public service. 
 
 Fire Department. 
 
 The charter of 1822, in establishing the city of Boston as a municipal 
 corporation, vested its government in the mayor and city council, the 
 school committee, the overseers of the poor, and the firewards, respect- 
 ively. The firewards had existed for more than a century, and under 
 the law of 1711 were appointed by the selectmen and the justices. Ever 
 since 1745 they were elected by the people, and the city charter of 1822 
 (sec. 19) required that three or more firewards be chosen in each of the 
 twelve wards. A fireward was in command at fires, and could require 
 any person to obey. The term is still used (Publ. Stat., 267), a fire 
 engineer having the authority of a fireward. At the same time, the 
 firewards had a certain authority over buildings and explosives. The 
 appearance of dozens of commanders at a fire may be imagined. A 
 petty conflict of opinion between the fire companies and the elder Quincy 
 led to the appointment of a chief engineer, in 1826, and to the repeal of 
 the law requiring the election of firewards (see the law of June 18, 1825, 
 adopted by the people on July 25, 1825). Mayor Quincy's Municipal 
 History tells the story in detail; but the real point is the establishment 
 of an executive officer to take command at fires. That office still ex- 
 ists. When Mayor Quincy retired, he reported the department to con- 
 sist of "twelve hundred men and officers" (Mun. Hist., 264); the re- 
 
CONSTITUTIONAL HISTORY. 117 
 
 port of the department for 1892 says: " The entire force of the depart- 
 ment consists of about 800 men." 
 
 The chief engineer and his assistants were elected by the mayor and 
 city council; the fire companies were appointed by the mayor and 
 aldermen, but elected their own foreman, and made their own rules 
 and regulations, subject to the approbation of the mayor and aldermen. 
 It was the old volunteer department, with a volunteer in command. 
 This led to the very difficulties encountered by Mayor Quincy, particu- 
 larly as premiums were .paid to the ardent volunteers. From and after 
 February 16, 1829, a salary was paid to the chief engineer, and Mayor 
 Eliot, a man of high ability, established the important principle of a 
 paid fire department, in 1837 (city ordinance of July 29, 1837). In 
 1826 it was found expedient to reorganise the entire force of the fire 
 department (Quincy, Mun. Hist., 203, 264); Mayor Eliot did the same 
 thing in 1837 (see his inaug. addr. of 1838, p. 3). But even the ordi- 
 nance of 1861 left the choice of the chief and the assistant engineers to 
 the city council, and the appointment of the companies to the mayor 
 a:nd aldermen, each company choosing its own foreman, subject to ap- 
 proval. All this was swept away by the great fire of 1872, and the 
 ordinance of 1873, which required the mayor to appoint, subject to 
 approval on the part of the board of aldermen, a board of three fire 
 commissioners, who appoint the chief engineer and all other members 
 of the department, purchase ■ supplies, and manage the department. 
 The law of June 21, 1831, enabled the city to pay an indemnity to 
 members of the fire department disabled in the discharge of their 
 duties. In 1874 (ch. 61) the Boston Protective department was incor- 
 porated, and in 1886 the office of fire marshal was established, this 
 officer, appointed by the State, to pass semi- judicially upon fires. 
 
 In 1850 the General Court passed a special act relating to the Boston 
 fire department (1850, ch. 262), the value of the act consisting in the 
 repeal of old statutes, and in leaving the city free to work out its own 
 safety. The city government decided finally in favor of a paid com- 
 mission. Government by committee had broken down, partly because 
 it was inefficient, partly because it was gratuitous, and mainl)^ because 
 it was irresponsible. Public opinion was not prepared to establish one- 
 man power, and compromised by establishing paid commissions, such 
 as still conduct a large part of the business of the State. The Boston 
 fire commission has given great satisfaction. It is watched very closely, 
 especially by underwriters. At the same time the popular interest in 
 
118 BOSTON. 
 
 the department is lively. It is one of the few departments that has 
 found a chronicler. It controls scores of buildings, valuable apparatus 
 and supplies, and a numerous force ; the cost of the department is not 
 far from a million dollars a year; yet it has not been found necessary to 
 invoke the State for regulating or reforming the establishment. Twice 
 in the remote past the city government has disbanded the whole depart- 
 ment ; but municipal authorit)^ has stifficed to establish order, discipline, 
 and extraordinary efficiency. One is tempted to affirm that the depart- 
 ments are generally efficient in proportion to the popular interest they 
 command, and that popular opinion is apt to be right. But much is 
 due, also, to the city council, which has created and sustained the fire 
 department, thus proving that a city council, duly informed, is likely 
 to consult the public good. Of all municipal departments created by 
 the city council, the fire department is the most typical. As such it 
 deserves special attention on the part of students devoted to municipal 
 affairs. 
 
 Relief and Correction. 
 
 The charter of 1832 (sec. 19) required the election, in each ward, of 
 an overseer of the poor, who must be an inhabitant of the ward. The 
 charter of 1854 retained this provision without material modification. 
 But the board of overseers had changed in its powers and duties. 
 When Boston became a city, the overseers were the most venerable 
 corporation, and the only branch of the government that had been 
 formally incorporated. They had charge of the poor, of the degraded, 
 of the insane, and of prisoners. To provide for the poor that could 
 work, the house of industry was built in South Boston. Instead of 
 interesting the overseers in the undertaking, they were alienated, and 
 a long controversy ended in the defeat of the overseers. Then the 
 house of reformation for juvenile offenders was established ; also, the 
 house of correction, a lunatic hospital, an almshouse, and a home for 
 neglected children. All these establishments, to which the city hospital 
 might be added, were the natural province of the overseers of the poor. 
 They permitted the establishment of rival boards, the result being that 
 in 1857 all indoor relief, together with the reformatory and correctional 
 institutions, were united under twelve directors for public institutions, 
 and that in 1864 the election of the overseers was transferred to the 
 city council, to pass, in 1885, to the mayor, acting with the approval 
 of the board of aldermen. In 1889 the public institutions were placed 
 
CONSTITUTIONAL HISTORY. 119 
 
 under a board of three commissioners (1864, ch. 128; 1857, ch. 35; 
 1889, ch. 345). 
 
 The overseers hold trust funds amounting, in 1893, to more than 
 $700,000,, They devote about $100,000 a year to charity, but maintain 
 a temporary home and a lodge so-called. The real mission of the 
 board is out-door relief. The commissioners, on the other hand, deal 
 with some 3,500 paupers, orphans, truants, insane, and malefactors, at 
 a cost not far from $300 per head. But the complete separation of the 
 unfortunate from the vicious has not been effected, though attempted 
 by Mayor Quincy. On the other hand, the city provides generously 
 for those whom it is required to support. The overseers of the poor have 
 always served without pay ; so did the directors for public institutions 
 from 1857 to 1889. The board of directors included three members of 
 the city council, elected annually, and nine citizens at large, three of 
 whom were annually elected for three years. Of course, a board so 
 composed was apt to lack that force which is specially required in deal- 
 ing with thousands of unfortunates and criminals. But the fault lay 
 largely in the law. It was to oppose the overseers of the poor that the 
 General Court was induced to establish a separate board of directors 
 for the house of industry, in 1823 (1832, ch. 56). In 1834 separate 
 directors for the house of correction were authorized by the General 
 Court (1824, ch. 38). In 1835 another board, for the house of reforma- 
 tion, was authorized (1836, ch. 183). In 1827 the directors of the house 
 of industry were given the same power as to paupers that overseers of 
 the poor had ; but the Boston overseers were not deprived of this power 
 (1836, ch. 111). The wonder is that the work of dealing with the un- 
 fortunate and vicious did not itself become more unfortunate. , Had the 
 General Court required the city to work out this problem, the city 
 would have supplied the means. Nor is it ever well to invoke the 
 General Court, when municipal means will answer. Municipal prob- 
 lems are best solved by municipalities, not by outside power. It is 
 safe to add that true municipal reform, when needed, must come from 
 within. The new city was mistaken when it created several depart- 
 ments to do the work of one inherited from 1691. 
 
 It was competent for the city to establish a house of industry, in 
 which to house and employ its paupers ; but law, tradition, and pro- 
 priety vested the management of the enterprise in the overseers of the 
 poor. It was an tmfortunate precedent when a rival establishment, 
 with like powers as the overseers had, was set up. The law of Febru- 
 
120 BOSTON. 
 
 ary .3, 1823, under which this step was taken, has not proved a benefit, 
 least of all in the general policy it established. The city government 
 had the highest interest to keep down the number of independent ad- 
 ministrative departments ; by pursuing the^ opposite course, it. has sur- 
 rounded the mayor of Boston with a cabinet as large as a town meeting. 
 The President of the United States has a cabinet of eight men; the 
 mayor of Boston of about a hundred. That the General Court con- 
 sented, is natural, as it must take its Boston information from Boston, 
 not from Berkshire. Nor were the overseers blameless. They did not 
 think it their duty to cooperate with the city council, and set up the 
 idle claim that they were not accountable for their expenditures. Yet 
 the charter provided, and still provides (1821, ch. 110, sec. 20; 1854, 
 ch. 448, sec. 51), that all boards and officers of the city, " entrusted 
 with the expenditure of public money, shall be accountable therefor to 
 the city council, in such manner as they may direct." The city council, 
 therefore, had the right to ask very close questions wherever money of 
 the city was involved, and might have extended its enquiries to school 
 and county matters. The claim of the overseers was not tenable, and 
 led to their own defeat (compare Mayor Lincoln's inaugural address, 
 1859, page 21). The results continue in 1893, and so does the needless 
 multiplicity of rival departments. The seed was sown in the charter ; 
 the city council and the General Court have added indiscriminately. 
 What harvest could they expect? 
 
 Police Department. 
 
 The charter vested "the administration of police " in the board of 
 mayor and aldermen (1821, ch. 110, sec. 13). The charter of 1854 pre- 
 scribed that appointments should emanate from the mayor, then to be 
 acted upon by the aldermen (1854, ch. 448, sec. 49), while in all other 
 cases the aldermen were to act first (sec. 48), when the mayor and 
 aldermen were required to act (see also 1821, ch. 110, sec. 21; 1882, 
 ch. 164). The term "police," as used in the charters of 1821 and 1854, 
 did not mean " police officers " or " police force," but had reference to 
 the general good order of the municipality. Even the Revise4 Statutes 
 of 1836 do not mention any police force or police officers. In fact, the 
 first law of the State authorizing the appointment of " police officers " 
 in Boston, was passed in 1838' (ch. 123), and the first law authorizing 
 cities and towns in general to make such appointments, was not passed 
 by the General Court until 1851. Boston had acted in the premises soon 
 
CONSTITUTIONAL HISTORY. , vn 
 
 after the Province reign was ended, the confusion occasioned at that 
 time requiring the employment of special officers for maintaining order 
 in the streets. This led to the interesting ordinance on page 66 of the 
 By-Laws of 1786, which authorized the selectmen to appoint officers 
 called "the inspectors of the police," who were day patrolmen. The 
 night watch had been established soon after 1630. The "inspectors of 
 the police " were required to report once a week to the selectmen, and 
 were otherwise inefficient. The selectmen were therefore authorized 
 by the town to elect " one suitable person to superintend the police of 
 this town " (By-Laws of 1801, p. 33). The term poHce, in this case, 
 meant "good order," and the selectmen could appoint " assistants to 
 the superintendent" (1. c, 34), that is,' appoint day poHcemen, if 
 necessary, provided there was money to pay them. The chairman of 
 the board of selectmen was usually chosen superintendent of police, 
 and the mayor and aldermen, in 1822, inherited the police arrangements 
 of the town. They inherited also the night watch, which, under the 
 law of January 29, 1802, had been appointed by the selectmen. The 
 mayor and aldermen took charge of the day police and the night watch 
 because these establishments had been under the care of the selectmen, 
 who appointed them. The common council tried repeatedly to get 
 concurrent power over the police, but failed ; the legislative power the 
 common council shared with the mayor and aldermen was not well 
 exercised, least of all by the common council. 
 
 The city council maintained separate watch and police departments 
 to the year 1854. In 1823 a special head for the day police was estab- 
 lished, under the name of city marshal, who was also tithingman and 
 constable, and soon took charge, in a measure, of street cleaning and the 
 removal of house refuse, the ordinance of 1833 providing that " the de- 
 partment of internal and external police, as far as it regards the pres- 
 ervation of the health of the city, be placed under the superintendence 
 of the city marshal " (co'de of 1834, pp. 174, 226). The captain of the 
 watch, on the other hand, took charge of the street lamps. When the 
 night watch and the day police were united, in 1854, the lamp depart- 
 ment became a separate establishment, with a separate superintendent, 
 but continued under the special control of the mayor and aldermen. 
 The removal of house refuse and street refuse, after consideration, was 
 treated, the former as a health matter under the jurisdiction of the city 
 council (1821, 110, sec, 17), and street refuse as a police matter to be 
 regulated by the mayor and aldermen only (1. c, sec, 13). This di§- 
 10 
 
132 BOSTON. 
 
 tribution of power is related by Mayor Quincy with great spirit (Mun. 
 Hist., 62-73). The real work drifted into the hands of the superinten- 
 dent of streets, who had teams to work with. The ordinance of 1833 
 made the superintendent of streets a general officer for paving and re- 
 pairing streets, for laying out and widening them, for building and re- 
 pairing sewers, for the repair of public buildings, the school houses in- 
 cluded, for supplying fuel, and ' ' for cleaning the streets, disposing of 
 manure, and removing house dirt " (code of 1834, 260). The stiperin- 
 tendent of streets attended to this police duty until 1853, when a sep- 
 arate department for "cleaning the streets, disposing Of manure, and 
 removing house dirt and house offal " was established and placed under 
 a " superintendent of the health department." From 1890 to 1891 this 
 officer was called "superintendent of sanitary police" (Rev. Ord. of 
 1890, 55), then to be merged again in the street department, the head 
 of which is called superintendent of streets (ordin. of March 0, 1891). 
 The confusion of the departments was due to a confusion of terms. 
 From 1834 to 1837 the city marshal was superintendent of sewers (code 
 of 1834, 246). As late as 1867 the aldermen had a committee on ex- 
 ternal health, and another on internal health. The term police was 
 used by the charter of 1822 in a very general sense, but soon acquired 
 the narrower meaning of police officer, without losing the law sense 
 that recurs in the term " sanitary police. " In some instances the terms 
 health and police were used as identical, even by Mayor Quincy, and 
 the city marshal was actually the health officer of the city, under the 
 ordinance of October 7, 1833 (code of 1834, p. 175). The health ordi- 
 nance of May 31, 1824 (code of 1827, p. 170), was entitled "an ordi- 
 nance relative to the police of the city of Boston." 
 
 The chief impulse for establishing a regular police force in Boston 
 came from Mayor Eliot, who has left his impressions in other branches 
 of the city government. But it was an error to leave the appointment 
 of all police officers with- the mayor and aldermen. Before 1838 the 
 night watchmen were the principal police force. When Mayor Quincy 
 retired from office, he exclaimed: " The name of police officer has in- 
 deed been changed to city marshal. The venerable old charter num- 
 ber of twenty-four constables still continue the entire array of city 
 police; and eighty watchmen, of whom never more than eighteen are 
 out at a time, constitute the whole nocturnal host of police militant, to 
 maintain the peace and vindicate the wrongs of upwards of sixty thou- 
 sand citizens " (Mun. Hist., 272). Later the city marshal was given 
 
CONS T ITU t ION A L HIS TOR Y. 133 
 
 deputies to aid him, but the constables continued the chief peace of- 
 ficers. After the act of 1838 (ch. 123) the appointment of regular police 
 officers began; but the first Municipal Register, of 1841, enumerates 
 all police officers in two lines (p. 89), and in 1854 the force numbered 
 but 47 men. After the union with the watch, which took place on 
 May 26, 1854, the department consisted of 236 men. When it passed 
 under the control of commissioners, the force was about 700 strong, 
 eyery man appointed by the mayor and aldermen. Well might Mayor 
 Cobb ask to be relieved of this business; well might he say that " the 
 affairs of this department cannot be properly attended to by the com- 
 mittee on police" (Inaug. Addr. , 1876, 31). Mayor Lincoln had ex- 
 pressed another view in 1864 (Inaug. Addr., 35). It was finally under 
 Mayor Pierce, and in part on his suggestion, that the police department 
 was placed under three commissioners, appointed by the mayor and 
 aldermen. At the same time the new commissioners were given the 
 power to grant liquor licenses, which is not, perhaps, a police duty 
 (1878, ch. 244; Mayor Pierce's Inaug. Addr., 1878, p. 20). With un- 
 conscious rashness the whole " administration of police," as mentioned 
 in the charters of 1822 and 1854, was transferred from the aldermen to 
 the new board. 
 
 The new board was destined to have a stormy career. The civil- 
 service law of 1884 had not been passed, the commission was exposed 
 to the whole force of municipal pressure. In seven years it had ten 
 different members, and in 1885 it was superseded by a board of three 
 members, appointed by the State. They are appointed for five years, 
 and the first change in the membership of the board was made in 1893. 
 The law requires the board to be selected from the "two principal po- 
 litical parties," the members of the board cannot be removed without 
 the consent of the governor and council, and the expenses of the board 
 in the administration of their department must be paid by the city. 
 The number of patrolmen, and their pay, cannot be increased without 
 the consent of the city. The board, as far as the city had any power 
 to part with, holds all the power vested in the previous board on June 
 12, 1885. The city council may grant additional power. The mem- 
 bers of the police force hold the power of constables and watchmen, as 
 exercised ever since the days of the Colony. The principle of a board 
 appointed by the Commonwealth, in the exercise of the constitutional 
 right vested in the Commonwealth, but paid by the city, has been 
 called in question, especially as interfering with municipal self-govern- 
 
124 BOSTON. 
 
 ment. On the other hand, the city has had the benefit of a quiet and 
 efficient police service, and the political complexion of the board has 
 not occasioned the evils it appeared to invite. For the board is pro- 
 fessedly a body made up of party men. Financially the arrangement 
 has worked well, as a comparison with the kindred fire department 
 shows. A government machine that works well, and satisfies a public 
 want, justifies itself. But it is never well to invoke the country for 
 redressing the evils of the city, and a city is not doing its whole duty 
 when it occasions interference from the General Court. The latter 
 should not be invoked by the city, except to give strength or relief, 
 after the resources of the city and the citizens are exhausted. Nor can 
 the supreme power ever relieve the citizen and the city of their public 
 duty, including that of caring well for their own. 
 
 Health Department. 
 
 The history of the Boston health department, as made by the city 
 council, is mournful, and proves conclusively that the charter of 1822 
 made a mistake when it transferred the power of the old board of 
 health, established in 1799, to the city council, to be exercised at pleas- 
 iire (sec. K). The law under which the early board acted was excep- 
 tionally good, and the elective board showed great efficiency (see By- 
 Laws of 1S18), though Mayor Quincy holds the opposite view (Mun. 
 Hist. , 64). From the adoption of the city charter, in 1822, to 1847, 
 the city council was the board of health. Then the mayor and alder- 
 men were the board of health until 1873, when a better arrangement 
 went into effect. The charter of 1822 did not contemplate that the 
 council should be an executive board, but provided expressly that the 
 health power vested in the city council should be carried into execution 
 " by the appointment of health commissioners," or in some other way. 
 The Revised Statutes of 1836 said instead: " In the city of Boston, the 
 city council shall exercise all the powers, and perform all the duties, of 
 a board of health for the said city " (ch. 21, sec. 2). It is worth adding 
 that the Revised vStatutes, being the first codification of the Massachu- 
 setts statutes, were the work of Theron Metcalf and Horace Mann. 
 The clause, due perhaps to the dim ideas, then entertained of municipal 
 government, was repealed April 23, 1847, and on June 8 of the same 
 year the city council appointed the mayor and aldermen health com- 
 missioners for the city (Mun. Reg., 1848, 40, 83). They continued to 
 be the nominal board of health until 1873, although the laws of 1849 
 
CONSTITUTIONAL HISTORY. 125 
 
 (ch. 211) and 1854 (eh. 448, sec. 40) persisted in making the city coun- 
 cil a board of health, with power to delegate their authority, as a board 
 of health, to "any committee of their number." The city council 
 delegated its power to the mayor and aldermen (code of 1851, 102; 
 code of 1863, "306), but created the superintendent of health, in 1853, 
 to carry out all laws and ordinances relating to " the subject of internal 
 health." This confusion ended in 1873, with the appointment of the 
 board of health. 
 
 Of course, neither the aldermen nor the city council could do execu- 
 tive health work. In 1824 the work was divided between a health 
 commissioner, who attended to "the external police" or health, 
 especially quarantine matters ; a supermtendent of burial grounds ; and 
 the city marshal, who had control of " the internal police " or health 
 (code of 1837, 170; Quincy, Mun. Hist, 73). In 1833 the city marshal 
 was given control of all health matters, and up to 1853 he was virtually 
 the Boston board of health. The duty of street cleaning and the re- 
 moval of house refuse was transferred, in 1825, to the superintendent 
 of streets, who performed that duty until 1853. In 1834 the city coun- 
 cil treated sewers as a health matter, and required the city marshal, 
 the police officer of the city, " to take the general superintendence of 
 all common sewers " (code of 1834, 246, 174). In 1837 the office of 
 superintendent of sewers was created, thus relieving the city marshal ; 
 but the first Municipal Register issued by the city, in 1841, treated the 
 superintendent of sewers, the superintendent of streets, and even the 
 surveyors of highways as parts of the "health department." So did 
 Mayor Lyman in his inaugural address of 1835 (p. 11), as far as sewers 
 are concerned. The division of quarantine, meanwhile, had drifted 
 under the control of a physician, and the superintendent of burials con- 
 tinued his .special work. To promote executive efficiency, then, the 
 early city government abolished the board of health, which should have 
 been retained, and divided its power among three departments newly 
 created, but not defined, for in the city the health duties of the city 
 marshal, the superintendent of streets, the sewer department, and the 
 two branches of the city council were commingled. The city marshal, 
 however, was the health officer of Boston from 1823 to 1853. while the 
 superintendent of streets,, from 1825 to 1853, removed the street and 
 house refuse. 
 
 To terminate this confusion as to " internal health " or police, the 
 city council of 1853 created a superintendent of the health department. 
 
126 BOSTON. 
 
 requiring him to execute all laws and ordinances relating to ' ' the sub- 
 ject of internal health." In truth, the superintendent had charge of 
 the city stables and teams, and attended to street sweeping and the 
 removal of house dirt. Later ages will wonder how such a department 
 ever came to be called a health department. Mayors "Shurtleff and 
 Gaston (inaug. addr., 1869, 30; 1870, 62; 1872, 18) insisted that street 
 cleaning was one thing, and that the city needed a professional board 
 of health. Mayor Gaston approved the ordinance of December 2, 1872, 
 under which the health power of the city was transferred to a board of 
 health, consisting of three men. They were to serve three years, and 
 the arrangement has worked well, mainly because the ordinance was 
 reasonable, although it continued the "superintendent of health," as a 
 subordinate of the board, requiring him to "make all necessary arrange- 
 ments for cleaning the streets, disposing of manure, and removing 
 house dirt and house offal, to the entire satisfaction of the board of 
 health " (code of 1876, 403). The Revised Ordinances of 1885 made 
 the superintendent of health once more an independent officer, ap- 
 pointed by the mayor, subject to approval on the part of the board of 
 aldermen, and popularly his division was known as the health depart- 
 ment (auditor's finance report for 1889-90, 97). In 1890-91 the estab- 
 lishment was called the department of sanitary police, to be merged, 
 by the ordinance of March 9, 1891, in the street department, which 
 still calls the removal of house refuse its " sanitary, division," beside 
 having a street-cleaning division (rep. of street department for 1891, 
 1-2). The board of health, on the other hand, has become a great 
 department. It holds all the power of the former board, with some 
 additions. Its quarantine service is good, and beside having charge of 
 cemeteries and undertakers, public baths and lying-in hospitals, the 
 the abattoir, stable permits, and hawkers, it guards the general health 
 of the city. When the city of Boston decides not to. have more depart- 
 ments than the government of the United States, the health department 
 may include the inspection of milk and vinegar, the inspection of pro- 
 visions, the registry department, and possibly the hospital department. 
 Certainly there is no reason why the city should not have entrusted 
 absolutely all health matters to the board of health, which has so amply 
 justified the ordinance signed by Mayor Gaston. It is pleasant to add 
 that the chairman of the board in 1893, Dr. Samuel H. Durgin, has 
 been a member of the board from its establishment in 1873, and that 
 the publications of the board have some scientific value. 
 
CONSTITUTIONAL HISTORY. 127 
 
 Taxation. 
 
 The city charter vested the power to lay and assess taxes in the city 
 council (1821, ch. 109, sec. 1; ch. 110, sec. 1"6, 28; 1822, ch. 85). The 
 city council discharged this duty with reasonable judgment, having 
 good precedents to go by. As early as 1694 the town chose assessors 
 separate from the selectmen, and in 1802 the law authorized the town 
 to elect two assistant assessors in each of the twelve wards, the assist- 
 ants electing the three principal assessors. This law was repealed by 
 the charter, and from 1822 to 1885 the city council chose all assessors 
 of taxes. The number established in 1802 was not changed until 1849, 
 and by the ordinance of October 24, 1850, the distinction between first 
 and second assistants was virtually established. In 1866 the board of 
 principal assessors was increased to five, and so remained until the ordi- 
 nance of April 20, 1891, required the appointment of nine assessors. 
 The institution of assessment districts, together with first and second 
 assistants for each, was established by the ordinance of January 3, 1868, 
 due to the annexation of Roxbury, and in 1880 the principle of electing 
 assessors for three years was established. The law of 1885 (ch. 266) 
 transferred the appointment of assessors to the mayor, subject to ap- 
 proval by the board of aldermen, and the appointment of assistant as- 
 sessors was left to the assessors (Rev. Ord. of 1885, 55; but see St. 
 1885, ch. 266, sec. 1), it being the apparent policy to vest great power 
 in heads of departments. The city councils, from 1822 to 1885, acted 
 conservatively in this matter, especially as regards the choice of princi- 
 pal assessors. 
 
 As under the town, the assessors were the first city department to 
 administer State law only, the city supplying merely the means for 
 carrying the tax laws of the State into local effect. Massachusetts 
 taxes wealth, and the Boston assessors were among the first to tax 
 wealth at its real value as nearly as the market can indicate value. 
 That personal property largely escapes direct taxation, is not the fault 
 of the assessors. Neither is it their fault that the principle of municipal 
 or special taxes has been discouraged in Massachusetts. The vast 
 privileges conferred by the city, therefore, have not yielded fair returns 
 to the corporation as such. The assessors tax the wealth they find, and 
 out of the general levy on wealth nearly all municipal expenses are de- 
 frayed. As these expenses are heavy, the tax is heavy, the principle 
 of 'special assessments or of fees for special rights or services having 
 
128 BOSTON. 
 
 been discouraged. But the tax actually assessed is apparently borne 
 without hardship, payments being prompt. Up to the war period the 
 expenses of the city and county were relatively light. For the year 
 ended April 30, 1863, the city and county expenses, including the State 
 tax, were $3,438,651.91, against $5,203,706.55 for the next year. But 
 during the first year the premium on gold did not touch 105, while in 
 the second year it rose above 172. Municipal expenses grew very high 
 when Boston saw fit to annex the suburbs, while the premium on gold 
 melted away. In the year preceding annexation, when Boston had 
 about 200,000 inhabitants, expenses were $6,532,619.77, and the gold 
 premium rose above 167. During the first year after annexation, 
 when the gold premium did not go above 117, and the population was 
 311,919, municipal expense reached $15, 388, 632. 28. On April 30, 1867, 
 the net debt of the city was $8,558,281.59; on April 30, 1874, it was 
 $27,473,213.02. All this is not due to annexation; but during the 
 years of annexation Boston began its present scale of municipal house- 
 keeping. 
 
 Ten years after this period, in 1885, an accident led to a law (1885, 
 ch. 178) limiting both the debt and the tax of Boston. This interesting 
 law has prevented the Boston tax rate from being 17 per thousand of 
 assessed property, which was the rate in 1884, but has not checked gen- 
 erous expenses. The law desired the net debt of the city to be within 
 2 per centum of the average valuation. On this basis the net debt, on 
 January 31, 1893, ought to have been within $16,386,264.04; it was re- 
 ported by the auditor at $21,323,238.11 (ann. rep., 1893, p. 8, 9), this 
 amount not including the debt for water supply. The General Court 
 of 1885 laid down a strict rule, and its successors from 1886 to 1892 
 authorized the city to incur debts amounting to $28,806,469.69, to which 
 the fine resolutions of 1885 need not apply. The auditor reports the 
 net debt of the city (funded debt, less means to pay), on January 31, 
 1893, at $30,908,879.14, which includes the debt for water supply, and 
 is nearly four per centum of the average valuation for the preceding 
 five years, less abatements. Against this stand the vast assets of the 
 corporation, briefly alluded to in Mayor Hart's inaugural address of 
 1890, p. 13. For the amount of interest and sinking-fund requirements 
 of the city, see Mayor Hart's inaugural address of 1889, p. 10. It 
 should be remembered, also, that the city debt includes the county 
 debt, and that the city tax includes the county and State tax. That 
 debts are an evil, need not be stated ; nor that the prudence of a o-qv- 
 
CONSTITUTIONAL HISTORY. 129 
 
 ernment is measured by the degree to which it meets current require- 
 ments from current revenues. 
 
 Voting. 
 
 As the right of suffrage in Massachusetts could not be exercised, 
 until 1892, except upon the payment of a. tax, it was natural that the 
 assessors should make out the lists of voters. The city charter placed 
 this duty upon the mayor and aldermen ; and Mayor Quincy, always 
 energetic, seems to have personally revised such a list, " subject to the 
 revision of the board of aldermen" (Mun. Hist, 237). The list con- 
 tained about twelve thousand names. The list of 1892 contained but 
 87,227, or a smaller proportion, notwithstanding the tax requirement 
 upon voters had been abolished. Mayor Quincy may have tho;ight that 
 mayor and aldermen meant chiefly the mayor; after his time it meant 
 chiefly the aldermen, and Mayor Shurtleff tells in his last inaugural 
 address how the aldermen made voting lists (1870, 35). They let the 
 faithful city clerk do the work, of course with the aid of the assessors. 
 Annexation made this arrangement impossible, and in 1874 (eh. 60) 
 the duty of preparing lists of voters was transferred to a board of three 
 registrars. These registrars and their assistants are not allowed to 
 hold any other office, and since 1890 they are required to represent 
 political parties (1893, ch. 417, sec. 38, 33). When such a man quits 
 the political party "which he was appointed to represent," he must 
 be removed from office, says the statute (1. c. , sec. 29). How the 
 politics of a clerk can be ascertained under the guarded secrecy of the 
 ballot, established in 1889, the law does not indicate. But it provides 
 that assessors shall send their assessment lists to the registrars (1. c, 
 sec. 16, 17), which lists must contain the names of all men of the vot- 
 ing age, and of such women as make written application therefor. 
 
 The law intended from the outset to guard the registrars of voters, 
 but could not separate them from other offices. Even after the repeal 
 of t^e tax requirement upon voters, the assessors' list of persons to be 
 taxed is justly made a basis for registering voters; for the assessors go 
 from house to house to learn who should be taxed, and the city requires 
 them to keep " a full and complete record of the name of each person 
 having a residence in the city of Boston, and his present and past resi- 
 dences " (Rev. Ordin. of 1892, 21). The State requires every male of 
 the age of twenty years or above to be taxed ; women of the voting 
 age may be taxed, and in case they hold taxable property must be 
 
 17 
 
130 BOSTON. 
 
 taxed. Registrars are justly required to help in enforcing the tax 
 laws (181)3, ch. 417, s. 21). It is not quite certain, therefore, that it was 
 best to make thein an independent department, and that an attempt to 
 reduce the many independent departments of the city might not make 
 the registry of voters a bureau under the assessing department. The 
 government of the United States requires many executive offices, but 
 nearly all are subordinate to one of the eight cabinet officers. The 
 work of the registrars of voters is largely ministerial, and a ministerial 
 office should not be made an independent department. The govern- 
 ment of the United States requires good work of the coast survey and 
 the mint, but has properly subordinated these offices. It is pleasant to 
 add that the Boston voting list is very accurate, especially in the case 
 of naturalised voters, whose names are not entered, save upon adequate 
 evidence. The present ward lines of Boston were established in 1875-6, 
 previous divisions having been made in 1715 (eight wards), 1735, 1805, 
 1832, 1838, 1850, and 1865 (always twelve wards). The annexed cities 
 and town were treated as- new wards, until 1875-6. Precincts, for 
 voting, were not established until 1878, the number being 107, until 
 1889, when it was increased to 286, to be reduced in 1890 to 205. 
 
 The city charter accepted the suffrage requirements of the third 
 amendment to the Constitution of Massachusetts (the amendment was 
 adopted in 1821) as the proper test for municipal voters. The ancient 
 difference between State suffrage and municipal suffrage was thus 
 swept away, to be restored in 1879, when women were given the right 
 to vote for school committee. The General Court may establish munic- 
 ipal suffrage at pleasure, while State suffrage is regulated by the 
 Constitution. The male inhabitant of the Province was not replaced, 
 until 1821, by the citizen; nor, imtil 1857, by the legal voter, who must 
 be a citizen as well as an inhabitant. But the poll tax as such never 
 had anything to do with voters as such. The poll tax is still assessed 
 on minors, and until 1844 it was assessed on all males " between the 
 ages of sixteen and seventy years." In 1855 the constitution was so 
 amended as to establish the principle of plurality elections, in the place 
 of the majority previously required by candidates. For town, city, 
 and county elections the plurahty rule had been previously adopted, 
 on February 27, 1854 (1864, ch. 39). The pubUcation of election re- 
 turns used to be left to private enterprise. In 1875 the Boston reg- 
 istrars of voters issued a sheet showing, by wards, the number of names 
 registered for the city election of 1874, The number was 57,045; the 
 
CONSTITUTIONAL HISTORY. 131 
 
 total vote for mayor was 18,733; yet the city had about 330,000 inhab- 
 itants. In 1832, when Mayor Phillips was elected, the entire vote was 
 2,650, in a population of more than 45,000. For the national election 
 of 1892 the registrars report the Boston vote at 74,883, and the num- 
 ber of registered voters at 87,327, while the population was about 
 460,000. For the votes of the mayors, see the Catalogue of the City 
 Councils XXXIII (pubHshed in 1891). The registrars of voters issue 
 annual reports. In 1888 (ch. 436) the law established the principle of 
 ballots supplied at the public expense, of elections conducted entirely 
 by public officers, and of secret voting. This arrangement, popularly 
 known as the Australian ballot, was first used at the November election 
 of 1889, for State officers, and met a public want, especially on the part 
 of candidates for office and of all persons who desired orderly elections. 
 A code of all election laws was presented in the acts of 1893, ch. 417. 
 Occasionally the charge of fraud or corruption has been made in regard 
 to Boston elections, but always without evidence. The elections, or 
 the contrary, show great intelligence and independence on the part of 
 voters. 
 
 Finance Departments. 
 
 The financial departments of the city were greatly simplified by the 
 charter. Previously there were separate treasurers for the town and 
 county, and the town collectors were separate from the town treasurer. 
 Until 1811 the collectors allowed a discount to tax payers who paid 
 within three months after the delivery of the tax bill. The city char- 
 ter vested the appointment of the city treasurer in the city council 
 (1821, ch. 110, 18), and the supplement of the charter (1831, ch. 109, 
 sec. 12) made the city treasurer the treasurer of Suffolk county. He 
 was also collector of taxes until 1875 (ch. 176), and as such appointed 
 deputies, while up to 1822 the constables were the real collectors, police 
 and peace officers. Since 1875 the office of the city treasurer, there- 
 fore, performs mostly ministerial duties. Unless otherwise ordered, 
 the city treasurer holds the trust funds devised to the city, the amount 
 on January 31, 1893, being $578,932.11. He receives the same salary 
 as the treasurer of the United States ($6,000). The collecting depart- 
 ment has been remarkably successful in collecting taxes' and other sums 
 due to the city, except poll taxes. This may be adduced as a justifica- 
 tion of the tax system that prevails in Boston and Massachusetts, and 
 makes any material changes difficult. Those that ought to pay special 
 
132 BOSTON. 
 
 taxes or fees oppose the change, and the community as a whole appears 
 to favor the payment of all municipal expenditures from the general 
 tax levy. But this system, inherited from the remote past, invites spe- 
 cial appropriations and demands for special work. Special work done 
 by the city for special interests should be specially paid for. The 
 amount of special collections in Boston is slight. The tax year begins 
 on May 1 ; the finance year of the city and town began on the same 
 day, except from 1833 to 1825, and since 1892, when it began on Feb- 
 ruary 1. From 1823 to 1825 it began on June 1. 
 
 Under the town government all finances finally drifted under the con- 
 trol of the selectmen, the overseers of the poor, and the board of health, 
 who constituted the committee of finance, and acted as such since 1812, 
 though the town meeting elected annually three auditors of .accounts 
 (code of 1818, p. 4). These auditors simply took a final look at the ac- 
 counts before they were published. The charter supplement (1831, ch. 
 109, sec. 14) authorized the city to appoint an auditor, and an ordinance 
 to that effect was passed on August 2, 1824. By a curious anomaly a 
 separate board of accounts was established for the county courts and 
 prisons (1821, ch. 109, sec. 9). This board, consisting of judges, was 
 replaced, in 1866 (ch. 117), by the board of aldermen, who acted until 
 1879, when the city auditor became county auditor, — an office that 
 should have been assigned to him in 1834 (1879, ch. 256). A greater 
 anomaly is the fact that Boston became a city to get rid of county in- 
 terference, and then let all county matters drift away from city con- 
 trol. The charter supplement (1821, ch. 109, sec. 13) vested the laying 
 of county taxes in the city council, and permitted county taxes to be 
 treated as city taxes (see also 1822, ch. 85); yet the city council chose 
 to neglect county matters, and so occasioned the constant interference 
 of the State with this subject. Originally (1821, ch. 109, 4, 5) the sal- 
 aries of the police court and its clerk were fixed by the city. As the 
 city council neglected county finances, the General Court took charge, 
 the result being that county expenses have become rather onerous. 
 This unsatisfactory condition could have been avoided, if the city gov- 
 ernment had given dtie attention to county affairs. It was more atten- 
 tive to city finances proper. To meet all public indebtedness, the ordi- 
 nance of December 38, 1840, required the annual purchase of three per 
 cent, of the city debt, which from the days of Mayor Quincy (Mun. 
 Hist., 274) to 1870 was managed by a special committee. The ordi- 
 nance of December 34, 1870, created the board of sinking-fund commis- 
 
CONSTITUTIONAL HISTORY. 138 
 
 sioners (Mayor Gaston's inaug. addr., 1871,11), but did not prevent an 
 alarming increase of the city debt, the fire of 1872 and the annexations 
 adding to its growth. 
 
 The ancient committee on the reduction of the city debt, consisting of 
 the mayor and two members of the common council, established on April 
 33, 1837, had acted with ability and success. They had excellent ordi- 
 nances to aid them. The sinking-fund commissioners are ministerial 
 officers. The ordinance of 1870, which created the board, laid down 
 the rule that loans for public buildings should run ten years ; loans for 
 street widenings and improvements were to run twenty years ; loans for 
 the water supply were to run thirty years. These loans were to be pro- 
 vided for by paying into the sinking fund, respectively, six, three, and 
 one and a-half per cent, on each. The General Court, alarmed by the 
 increase of municipal debts, provided in 1875 (ch. 309) for sinking funds 
 in general, and required at least eight per cent, to be set aside against 
 ten-year loans, and enough against other loans to cancel them at matu- 
 rity. The same law provided that water loans should not run above 
 thirty years, sewer loans not above twenty years, and all other loans 
 not above ten years. The city requires eight per cent, on ten-year 
 loans, three and a-half per cent, on twenty-year loans, and two per cent, 
 on thirty-year loans (code of 1870, 330; Rev. Ordin. of 1892, 70). The 
 court-house loan the General Court permitted to run fifty years (1885, 
 ch. 377) by which time the present building and its furniture will cer- 
 tainly be inadequate ; fifty-year park construction loans have also been 
 authorized (1891, ch. 301 ; 1886, ch. 304). A catalogue of the city debt, 
 on January 31, 1893, appears in th-j annual report of the auditor, 1893, 
 p. 170-301. It should be stated that the city has always met its debt 
 at maturity, except twice, in the case of water loans (1. c. , 190), and 
 that its debt management was best, perhaps, when it rested entirely 
 with the city. The water debt has always been treated as a separate 
 establishment, and was the first to have a sinking fund by that name 
 (1846, 167, sec. 11). In 1882 (ch. 133) the General Court wisely per- 
 mitted the annual payment of loans or loan certificates, instead of re- 
 quiring the accumulation of sinking funds, provided a given loan is thus 
 cancelled at maturity. This arrangement is not favored, but is pref- 
 erable to a sinking fund. 
 
 Superintendent of Streets. 
 
 The administrative departments traced in the preceding pages are 
 mentioned, if not founded, in the charter of 1833. But the charter 
 
134 BOSTON. 
 
 could not keep them from a tortuous course. The departments created 
 by ordinance were not more fortunate. When Boston became a cit)', 
 the duty of paving and repairing all streets and ways was found to rest 
 with the surveyors of highways, while the selectmen could widen, lay 
 out, and discontinue such ways, though the court of sessions also had 
 the power to lay out highways. The mayor and aldermen inherited 
 the power of the selectmen and the sessions, and greatly desired to be 
 surveyors of highways, the more so because the selectmen had usually 
 acted as surveyors. But the city council of 1833 elected three sur- 
 veyors of highways, and it took much pressure to make the common 
 council recede from its desire to have some control of street work. -A 
 citizens' meeting was held, a law was passed by the General Court 
 (Quincy, M. H., 65), and in 1833 the mayor and aldermen became sur- 
 veyors of highways. They divided the city into four districts of three 
 wards each, and, in the words of Mayor Quincy, "appointed two alder- 
 men superintendents of each district." This arrangement gave way, 
 in 1835, to the committee on paving. From 1836 to 1885 that com- 
 mittee ruled over the streets of Boston, wielding great power and 
 expending vast fortunes. In theory the mayor and aldermen were the 
 surveyors of highways from 1833 to 1854, and the aldermen alone from 
 1854 to 1885 (1854, ch. 448, sec. 41). The law of 1885 (ch. 366, sec. 6) 
 undertook to separate the executive powers of the highway surveyors 
 from their legislative and judicial powers, if any. In fact, the mayor 
 was made surveyor of highways, and as such wields great power (see 
 also 1893, ch. 433, sec. 31, 33). 
 
 As early as May 33, 1835, the mayor and aldermen appointed a 
 superintendent of streets, and made him their agent for general street 
 work. As they obliged him to do much additional work, such as re- 
 pairing school houses, the common council insisted upon having a voice 
 in appointing the superintendent. The ordinance of April 33, 1837, 
 provided for his annual election and prescribed his duties. Up to 1885 
 he was elected by the concurrent vote of the two branches of the city 
 council ; since then he is appointed by the mayor, subject to approval 
 on the part of the board of aldermen. Up to 1885 he was the special 
 agent of the aldermanic committee on paving; since then he is the 
 special agent of the mayor. At first the superintendent of streets had 
 charge of laying out and widening, of paving and repairing streets, of 
 all common sewers, of cleaning streets and removing house dirt, of the 
 public buildings, the public wells and pumps, and whatever else the 
 
CONSTITUTIONAL H/STORY. 135 
 
 aldermen might direct, though up to 1854 the mayor had some authority 
 over the superintendent. As a curiosity the health ordinance of May 
 31, 1824, " relative to the pohce of the city of Boston," may be men- 
 tioned. It ordains that " the department of internal police be placed 
 under the superintendence of the city marshal," and that "to this de- 
 partment shall belong the care of the streets, the care of the common 
 sewers, and the care of the common vaults, and whatever else affects 
 the health, security, and comfort of the city " (code of 1827, 170-1). 
 In 1834 an ordinance required the city marshal " to take the general 
 superintendence of all common sewers " and even to make plans of 
 them (code of 1834, 246). The actual work on public sewers, however, 
 was done by the superintendent of streets (1. c, 261), and the sewer 
 assessments made by the city marshal proved an illusion. 
 
 The duties assigned to the superintendent of streets could not be 
 discharged by one officer, however diligent, and by the ordinance of 
 June 6, 1837, the office of superintendent of sewers was established, 
 relieving the superintendent of streets of much work, and the city 
 marshal of inspecting, accounting and drafting he was not well. qualified 
 to manage. The sewer department has always been interesting for the 
 attempt it made to assess the cost of sewers, in part or altogether, on 
 the abutters or immediate beneficiaries. On the whole, the attempt 
 has failed in a city that paid all public expenses from the general tax 
 levy; the town, however, had never treated sewers as a town affair. 
 In 1840 the care of the public buildings was transferred from the 
 superintendent of streets to the superintendent of lands (ordin. of Sep- 
 tember 17, 1840), and in 1846 an independent superintendent of public 
 buildings was authorized (ordin. of December 24, 1846), who has 
 charge, also, of the fuel for the city. By the ordinance of April 26, 
 1853, finally, the city stables and the work of street cleaning, as well 
 as the removal of house refuse, were transferred from the superintend- 
 ent of streets to the superintendent of health, so called. The ordinance 
 of March 9, 1891, again united the street, sewer, health or sanitary- 
 police, and bridge departments (the latter having been authorized in 
 1828, 1870, and 1885, respectively) under the superintendent of streets. 
 Possibly the work of the street commissioners, the board of survey, the 
 lamp and ferry departments might have been added. At any rate the 
 first superintendent of our streets was required to do the work now 
 assigned to the board of survey and the street commissioners (see also 
 Quincy, Mun. Hist., 194). 
 
136 BOSTON. 
 
 Additiomal Departments Establisheu Before 1854. 
 Law Department. 
 
 The city of Boston began, and continued for more than five years, 
 without a law department. The early mayors were learned in the law, 
 yet the failure of establishing a department for interpreting and apply- 
 ing the city charter proved a mistake. In 1827, after some heavy bills 
 for counsel had been incurred, the office of city solicitor was established 
 (ordin. of June 18, 1827). His duties have continued substantially the 
 same, and may be described as those of a business lawyer. The salaries 
 paid at that time to city officers ranged at or above a thousand dollars 
 each. The clerk of the police court received $1,400, and his assistant 
 $700. The city solicitor was allowed $600, the same as the city mes- 
 senger. From 1839 to 1843 the city solicitor, at that time John Pick- 
 ering, had the assistance of a city attorney, Elbridge G. Austin. Mr. 
 Pickering served from 1829 to 1846, and was unsurpassed for accurac)'. 
 Unfortunately few of his opinions are published; but he overruled 
 many views and precedents he found, and placed the law business of 
 the city on a good foundation. In particular he put an end to the 
 absurd habit of the early city fathers to imitate town usages. The 
 code of 1827 illustrates the early period; the code of 1834 introduces a 
 better age. Mr. Pickering drafted the first part of the Revised Statutes, 
 "Of the internal administration of the government," which still stands, 
 duly amended, in the Public Statutes of the Commonwealth. Before 
 he became city solicitor, he had won fame by his dictionary of Greek, 
 and previous to that he had published his vocabulary of Americanisms. 
 He was easily the most learned man in the service of the city. 
 
 His" successor, Peleg W. Chandler, was city solicitor from 1846 to 
 1853, and has left two monuments behind him, the city code of 1850 
 and the charter of 1854. Of the two, the former is the better. It 
 presents a complete picture of the city laws and ordinances prior to 
 the charter of 1854, and contains some historical references. Mr. 
 Healy was the head of the law department from 1856 to 1882. In 1881 
 the office of corporation council was created for him (ordin. of March 
 30, 1881). He was the pupil and partner of Daniel Webster, and him- 
 self the Webster of our municipal law. He was not a literary lawyer, 
 and few of his opinions are published. But it was in part due to his 
 sturdy honesty and courage that the affairs of the city were kept un- 
 tarnished at a time when municipal extravagance was not uncommon, 
 
CONSTITUTIONAL HISTORY. 137 
 
 and corruption sometimes charged against other cities. He was 
 annually elected by the city council ; he reigned while government by 
 committee was supreme ; his speech was homely ; he was incapable of 
 an indirection ; but he kept the corporation straight. The law of the 
 corporation, perhaps, deserved no other monument than the name of its 
 honest and faithful servant (a portrait and sketch of Mr. Healy ap- 
 peared in the Municipal Register of 1882). It is not creditable to the 
 city that its law department continues to be "under the charge of the 
 corporation counsel and the city solicitor jointly" (Rev. Ord. of 1892, 
 46). The United-States Department of Justice is better arranged. It 
 is to be regretted, also, that all formal opinions given by the law de- 
 partment of the city are not published. They might be an honor to 
 the department and a light to the corporation. The city has had good 
 law at a small cost. 
 
 Bridge Department. 
 
 On November 3, 1828, the city appointed a superintendent of the 
 free bridge. A few years later a superintendent of the Boston south 
 bridge was appointed. The free bridge is now known as the Federal- 
 street bridge, and the Boston south bridge is called the Dover-street 
 bridge. The principle established by the appointment of the bridge 
 superintendent has proved a source of great expense. In 1857 the city 
 had seven siiperintendents of as many free bridges ; on May 22, 1871, 
 the two bridges to Charlestown, and the two to Cambridge, were added 
 (auditor's report for 1871-72, 19, 71, 81). The Revised Ordinances of 
 1885 united all bridges, except three to Cambridge, under one super- 
 intendent of bridges, who began to serve on April 5, 1886, taking 
 charge of more than twenty bridges over navigable waters. The ordi- 
 nance of March 9, 1891, placed all highway bridges under the care of 
 the superintendent of streets, thus restoring the establishment to the 
 simple arrangement with which it began in 1828. Meantime the 
 number of bridges maintained in part or wholly by the city is seventy- 
 five, and the total number of public bridges in the city is a hundred 
 and ten (ann. rep. of city engineer for 1892-93, 14). The first bridge 
 that connected Boston with any of its neighbors, Charles-river bridge, 
 was opened to the public on June 17, 1786. Forty years later there 
 was no free bridge in Boston. Exactly a hundred years after the com- 
 pletion of the first Boston bridge, some twenty superintendents of 
 bridges, nearly ^11 elected annually by the city council, were reduced 
 
 18 
 
138 BOSTON. 
 
 to the rank of draw-tenders, under a general superintendent, who be- 
 came a mere division chief in 1891. 
 
 Had not Boston yielded to annexation, the history of its bridges 
 might be simpler. South Boston was annexed for the benefit of South 
 Boston, and did not rest until the free bridge of 1828 was accepted by 
 the city, the outlay in the first fiscal year thereafter being more than 
 $3,000. To make the city accept the bridge, the owners paid $1,607, 
 which was immediately required to put the bridge in order. The 
 Dover-street bridge was purchased at $3,500, and then a larger sum 
 was expended on repairs. The Charles-river bridges to Charlestown 
 and Cambridge were obtained on the like principle as the free bridge 
 of 1828. The South-Boston bridges, in particular, were the subject of 
 meetings, debates, divisions, legislation, and great excitement. But 
 South Boston committed the city to the principle that bridges are ways 
 to be maintained, like other ways, out of the annual tax. Later on, in 
 the case of the Charles-river bridges, the same principle was applied to 
 structures connecting the city, not with another part of the city (South 
 Boston), but with the municipalities on the other side of Charles river. 
 Is it inconsistent in East Boston to ask for a free bridge, or, in default 
 of that, for free ferries? To be sure, the people of Boston have had a 
 free road to South Boston since 1828, and across Charles river since 
 1858 (for historical notes see the code of 1876, 64). To be sure, the 
 city is rich ; but New York is richer, and the East-river bridge is not 
 free. The people of Boston and the General Court have always had 
 great faith in the city treasury, and the treasury has justified this con- 
 fidence. In addition, the city has provided sumptuously for the 
 suburbs whose inhabitants desired to do business in Boston. No 
 wonder the proposition is now made that Boston build elevated roads, 
 tunnels, and tracks of steel in order that the suburbs may have free 
 access to the market they want, and none of the expense that main- 
 tains the great metropolis. 
 
 Quarantine and City Physician. 
 
 The city council of 1824, apparently anxious to delegate as little 
 power as possible, and to increase the number of its servants, under- 
 took to do all the work previously transferred to the board of health. 
 The astonishing ordinance of May 31, 1821 (code of 1827, 170), estab- 
 lished three coordinate health departments, — the city marshal, to take 
 care of health in the city ; the commissioner of health, to take care of 
 
CONSTITUTIONAL HISTORY. 139 
 
 quarantine matters; and the superintendent of burial grounds. This 
 oflficer, Deacon Hewes, rose to some importance. The city owned the 
 ' ' funeral cars, " and conducted the funerals, took care of the cemeteries, 
 and the superintendent kept the mortality record. The ordinance re- 
 quiring the city to conduct funerals and to supply the funeral cars, 
 continued until 1869, though the office of superintendent of burial 
 grounds was changed, in 1849, to that of city registrar, which still con- 
 tinues (in 1893). This office is now devoted to the recording of births, 
 marriages, and deaths, the former having been transferred from the 
 city clerk's office. The department, it appears, came from the board of 
 health (code of 1818, 73), to which it may return, unless departments 
 are to be multiplied. The records of marriages and deaths in Boston 
 are strikingly accurate ; those of births are not. If the registry depart- 
 ment has not served the cause of medical science or vital statistics, it 
 has been careful of all records within its province, and accurate in 
 essentials, the value of the papers being personal and legal, rather than 
 medical. 
 
 The board of health, established in 1799, had received from the 
 selectmen all ■ quarantine matters, and did very well. The early city 
 government transferred the general supervision of the quarantine 
 service to a commissioner, who was abolished in 1826 (code of 1827, 
 177). Of course, the board of health and the commissioner employed 
 a physician to do the work; in 1826 the " resident physician," as they 
 called him, was made the head of the quarantine service. He was 
 called resident physician because he did not reside at the quarantine 
 station, which was Rainsford island, as in the past. In 1841 the resi- 
 dent physician's title was changed to port physician ; he was required 
 to vaccinate all suitable applicants, and he was virtually the city phy- 
 sician, though the mayor and aldermen fancied themselves to be the 
 real board of health because they were the nominal board. In 1849 
 the office of city physician was established (Mun. Reg. for 1850, 85- 
 90) ; and the port physician was transferred to Deer Island, which was 
 made the quarantine station, and was to contain the house of industry, 
 the house of reformation, and other correctional establishments previ- 
 ously located at South Boston. The quarantine hospital was trans- 
 ferred, in 1866, to Gallop's island, the pearl of the harbor islands. 
 From 1826 to 1849 Dr. J. V. C. Smith was the resident or port phy- 
 sician. He attended to his business, studied local history, and later on 
 was mayor for two terms. Another city physician. Dr. S. A. Green, 
 
140 BOSTON. 
 
 was mayor in 1882. The wise ordinance of 1872 restored all quaran- 
 tine matters, all health matters, cemeteries, and kindred affairs to the 
 board of health, which appoints its own physicians, and has done well, 
 although its jurisdiction might be larger. In a large sense, quarantine 
 and public health are not a municipal subject, perhaps; but the Boston 
 quarantine and health service is good. 
 
 Public Lands. 
 
 When Boston became a city, it held large tracts of land. Boston 
 owned a township in Maine, and within the city limits it owned large 
 estates at the north end. Fort Hill, and especially some 280 acres of 
 neck lands, so called. These latter became the South End, a name that 
 continued long after Roxbury had been annexed. By filling, the real 
 estate of the corporation was greatly increased, and for sixty years the 
 city was a large operator in the land market. From 1834 to 1880 it had 
 a superintendent of lands, who performed the ministerial duties con- 
 nected with the preparation of the lands for the market, and their sale. 
 The directing was done by committees, and on the whole it was well 
 done. The system invited malfeasance, yet the city was not defrauded. 
 The ordinance of 1834 (code of 1834, 298) required the superintendent 
 of public lands to sign contracts and agreements, and in case he was 
 prevented authorized the mayor to execute all legal instruments. This 
 illustrates the view the city government took of its power. Nor was it 
 strange that the committees on lands committed certain errors of judg- 
 ment, among them the costly blunder in the Suffolk-street district so 
 called. This district covers the territory between Pleasant, Washing- 
 ton, Dover, and Tremont streets, about 31 acres, and was nearly all 
 wrested from tide water. But the grade adopted was so low that when 
 additional land was filled in, the Suffolk district could not be drained 
 and was subject to overflows when the tide was high. It had to be 
 raised at an expense of some $2,500,000. Yet when Middlesex street 
 was accepted by the city, in 1831, who could foresee that the Back-Bay 
 basin would be filled in as far as the mill dam, now Beacon street ? 
 Very likely the city might have become rich, had its public lands been 
 leased instead of sold. On the other hand, the committee contrived to 
 sell the public lands for immediate improvements of the first order. 
 The policy pursued was not the best, perhaps, but nobody was wronged. 
 A government that does not wrong the people, has nothing to regret. 
 The larger part of the streets laid out by the committee on lands has 
 
CONSTITUTIONAL HISTORY. 141 
 
 borne the test of time, and continues among the best improved estates 
 in Boston. The public lands of the city, not otherwise cared for, passed 
 in 1880 to the street commissioners. 
 
 Harbor. 
 
 In 1847 the office of harbor master was established. In 1889 the 
 office was wisely transferred to tlie board of police. The jurisdiction 
 of the police has been gradually extended over the outer ha;rbor as 
 well, and over certain adjacent territory (St. 1864, ch. 50 ; 1868, ch. 168). 
 The wonder is that no harbor police was had until 1847, and that 
 hardly any harbor legislation was passed until 1837. Up to that time 
 the harbor was generally treated as public property with which men 
 might do as they chose, provided no individual was wronged. The 
 result was that the harbor of Boston was greatly injured; for in the 
 early days of the city the government of the United States did very 
 little for harbors. Harbor lines, beyond which piers must not extend, 
 were first established in 1837 (ch. 229) ; a map of the inner harbor, with 
 a view to its preservation, was made by the Commonwealth in 1847; 
 and early in the sixties, mainly at the suggestion of Mayor Lincoln, 
 the harbor was surveyed, by the city of Boston, again with a view to 
 its preservation and improvement. Since then the government of the 
 United States has cared for the harbor with great liberality, while the 
 Commonwealth regulates riparian interests, and the city performs 
 police duty. This police duty, it is interesting to think, covers a htm- 
 dred square miles or more ; the original area of Boston proper was less 
 than one square mile. The United States Coast Survey published its 
 first chart of the Boston harbor in 1856. 
 
 Minor Departments. 
 
 In 1849 the city was first authorized to appoint coal weighers. The 
 law is important to coal consumers, especially such as buy in very small 
 quantities. The city commissions these sworn weighers by the score, 
 and the arrangement works. From the outset the municipal govern- 
 ment has supervised weights and measures with skill and care ; yet it 
 would have been well to lodge the appointment of all weighers and 
 measurers with the city sealer, and to attach the latter to the police 
 department. The traditional phrase of the General Court in providing 
 for municipal officers of a minor character vests their appointment in 
 
142 BOSTON. 
 
 the selectmen, or mayor and aldermen, respectively, the result being 
 that the mayor of Boston has to appoint thousands of officers every 
 year, or more than the greatest care of one man can readily supervise. 
 The city government, on the other hand, made few attempts at con- 
 solidating departments and offices, the tendency being rather in the 
 opposite direction, partly, perhaps, on the theory that all appointments 
 have something of patronage about them, and that patronage is worth 
 haviag. It may have been for some such reason, coupled with the dis- 
 like of novelty in public affairs, that Boston appointed a surveyor of 
 hemp as late as 1850, and an assay master as late as 1857. The assay 
 master had to certify, under the law of 1723, that distilleries did not 
 use lead in their apparatus, and the surveyor of hemp had to certify, 
 under an act which expired in 1738, that certain hemp and flax grown 
 in this "province" were "of great service to the crown" (2 Prov. 
 Laws, 737). Perhaps it was the love of creating departments that led 
 the government of 1852 to make its messenger a sort of a department 
 officer, and the Revised Ordinances of 1890 to establish the " city mes- 
 senger department." Of course, the city government had a messenger 
 from the start, and the selectmen had under the Province, but without es- 
 tablishing a separate department. The; superintendence and lighting of 
 street lamps was the duty of the night watch up to 1854, the captain of 
 the watch receiving an allowance as superintendent of lamps. When 
 the watch was merged in the police department, in 1854, a separate 
 lamp department, with a separate superintendent, was created, and is 
 still continued, although the department might be a bureau under the 
 superintendent of streets. The aldermen treated lamps as their special 
 province, and the common council was unable to get a voice in the 
 matter, the law of 1772 having authorized the selectmen to set up 
 street lamps, and the aldermen having been made the heirs of the 
 selectmen, although the city council had the sole right to create the 
 office of superintendent of lamps. 
 
 Truant Officers. 
 
 In 1850 the mayor and aldermen appointed the first truant officers. 
 In 1873 the appointment of these officers was wisely transferred to the 
 School Committee, and in 1893 the appointment was confined to persons 
 certified by the civil-service commissioners of the Commonwealth. In 
 Colony days the selectmen were the truant officers; in 1735 the over- 
 seers of the poor had joint authority; when the city was established, 
 
CONSTITUTIONAL HISTORY. 143 
 
 and Mayor Quincy had his struggle with the overseers of the poor, the 
 city had a great many truant officers, namely, the mayor, every alder- 
 man, any director of the house of industry, any director of the house of 
 reformation, any overseer of the poor (Act of March 4, 1826, sec. 3; 
 Act of March 21, 1843), the result being total neglect. Nominally the 
 house of reformation was the truant school ; but the authorities of the 
 public institutions were at liberty to transfer inmates from one establish- 
 ment to another, and unable to effect a full separation of the vicious 
 from the unfortunate. It has been intended to establish a parental 
 school, especially for minors not simply criminal ; but the management 
 has not been entrusted to the School Committee (St. 1886, ch. 282). 
 The ancient confusion, therefore, continues ; for if there were a parental 
 school, the commissioners of public institutions and the school com- 
 mittee would have joint atithority over an estabHshment nominally 
 parental, but correctional in fact. The subject falls properly under the 
 care of the School Committee, which appoints the truant officers. 
 
 Market Department. 
 
 Under the interesting ordinance of September 0, 1852, the city ap- 
 pointed a superintendent of the Faneuil-Hall market, since called the 
 superintendent of markets (Rev, Ord. of 1890, p. 67), and previously 
 known as the clerk of the market, the first being chosen in 164'.). This 
 is, in one respect, the most interesting office under the city government. 
 The modern city of the Germanic world owes its first character largely 
 to market laws ; and a trace of these early laws still survives in Boston 
 (Rev. Ord. of 1892, ch. 43, sec. 00). When markets became a neces- 
 sity, special laws for regulating them were required. The administra- 
 tion of these market laws and regulations was vested in the market 
 towns; whence the piepowder courts, courts with summary proceed- 
 ings, and municipal courts, round which gathered the municipal rights 
 and duties that distinguish a market town from other municipalities. 
 The Boston market place retained the medieval law, and a part of it 
 still reigns within the limits of the Faneuil-Hall market. Within these 
 limits the ordinance of 1852 permitted free trade only two days before 
 Thanksgiving and Christmas, respectively. The purpose of the market 
 is to give the people of Boston the full advantage of open competition 
 in the sale of perishable provisions, and to give the farmers within the 
 neighborhood of Boston a certain advantage over distant rivals. A 
 history of the market laws has not been written. In early English 
 
U4 BOSTON. 
 
 cities the mayor was generally clerk of the market and judge of the 
 piepowder court, whence his popular title "your honor," which still 
 survives in Boston, by a sort of atavism (see G. L. Gomme's Index of 
 Municipal Offices, 11). 
 
 Water Department. Engineer and Surveyor, 
 
 The Boston water supply has more interest as a financial and engin- 
 eering enterprise than in law. Up to the present time the work has 
 cost nearly twenty-four million dollars, and is sufficiently vast to 
 transcend mastery by one mind. The literature of the subject is a 
 library. In 1825 the City ordered the first report upon the subject, 
 and in 1834 Loamnii Baldwin's famous report pointed to the supply 
 that was taken. In 1846 the proper authority was obtained, and the 
 work begun, Nathan Hale, James F. Baldwin, and Thomas B. Curtis 
 being the commissioners who carried the Lake Cochituate supply to 
 Boston, at an expense of four million dollars. The introduction of 
 water was dul)^ celebrated on October 25, 1848. In 1849 an ordinance 
 established the Cochituate Water Board, to consist of a commissioner, 
 an engineer, and a water registrar who, together with the committee 
 on water, were to manage the great undertaking. In 1850 the board 
 was so changed as to consist of an alderman, a member of the 
 common council, and five citizens at large, who served without pay. 
 The board was chosen by the city council, as were the city engineer 
 and the water registrar, whose offices were created by the same ordi- 
 nance (Oct. 31, 1850). The city council, then, created three depart- 
 ments, where one would have sufficed. And yet the arrangement 
 worked. The board was faithful, the engineer excellent, and the water 
 registrar all that was wanted, as far as the assessment of water rates 
 was concerned. The first report of the new board, issued in 1852, pre- 
 sented a good history of the establishment. 
 
 The commissioners who built the works were also appointed by the 
 city council, but they were paid. They secured the service of E. S.- 
 Chesbrough, engineer, and overcame all obstacles occasioned by indif- 
 ferent regulations and divided authority. The act of 1846, under which 
 the work was done, is interesting, also, for the first mention of a sink- 
 ing fund in the history of the city government. The sinking fund was 
 controlled by the mayor, treasurer, and auditor of the city, yet it was 
 not well managed. Apparently a part of the water revenue was ex- 
 pended for new construction, and the sinking fund was supplied from 
 
CONSTITUTIONAL HISTORY. 145 
 
 the general tax levy (see the auditor's annual report for 1879, p. 9). 
 In 1877, therefore, this subject was transferred to the board of sinking- 
 fund commissioners. The case shows that at times a good law may 
 operate indifferently, and that an indifferent law will not prevent the 
 right men from doing their duty. The union with Charlestown brought 
 the Mystic water works under the control of the city, and led, in 1876, 
 to the establishment of the Boston Water Board, consisting of three 
 paid members, appointed for terms of three years, respectively, by the 
 mayor, with the approval of the city council up to 1885, and the board 
 of aldermen since. The ordinance provided, also, that the members of 
 the board should not be directly or indirectly interested in any matter or 
 thing connected with the water works (code of 1876, 941). The intent 
 of the ordinance is obvious. Nor has it been necessary to construe 
 the terms. The city has had good water, apparently at a fair price, 
 and certainly without disgrace. 
 
 The engineering department owed its origin to the water works, but 
 the bridges, sewers, and parks made it an office of general importance, 
 and the increase in street work led, in 1868, to the separate establish- 
 ment of the surveying department. This department should have 
 remained a bureau under the city engineer ; but the betterment law of 
 1866 (ch. 174) gave added importance to the aldermen's committee on 
 laying out and widening streets, and the city surveyor was made their 
 clerk. But the " care and supervision" of the office were vested in a 
 special committee, which fixed the salaries of the subordinates, and 
 had the approval of their appointment and discharge. The same prin- 
 ciple was applied to the engineering department. The heads were 
 elected by the city council for a year at the time. None the less both 
 departments were efficient, possibly because the publicity of the super- 
 vision was a protection. Systematic work was not possible in offices 
 that took their orders from "any committee of the city council," yet 
 the city was well served. As the water department is supposed to pay 
 for itself, it is an open question how far it should employ engineers and 
 other officers paid entirely from the water revenue. Its sinking fund 
 used to get replenished from the general tax levy, and some of its law, 
 engineering, and other expenses are still charged to general appropria- 
 tions. On the other hand, the water revenue may be used, under the 
 law (St. 1893, ch. 213), for new construction. To have made the 
 water registrar an independent department, which assesses the water 
 rates, seems odd, unless it is proper to multiply departments. 
 
 19 
 
146 BOSTON. 
 
 The Public Library. 
 
 At the time when the popular interest in public schools was inflamed, 
 the city of Boston received the gift of some books from Paris, and con- 
 cluded that these documents were a proper nucleus for a free public 
 library. In 1848 the General Court authorized the city to expend not 
 exceeding $5,000 a year for such a purpose. In 1850 Edward Everett 
 offered a thousand volumes of public documents, and Mayor Bigelow 
 $1,000. In 1851 the General Court authorized cities and towns to 
 establish and maintain public libraries open to " the inhabitants there- 
 of," Boston being allowed to expend $28,000 the first year, and about 
 $7,000 a year for maintenance. In 1852 Mayor Bigelow suggested the 
 appointment of a librarian, whose work began May 13, and of trustees, 
 whose first report led Joshua Bates to offer $50,000 toward the library, 
 the city to find a suitable building. In the same year the permanent 
 board of trustees was organized under an ordinance which called also 
 for the annual election of a librarian by the city council. In 1853 the 
 General Court authorized the expenditure of $150,000 for the library, 
 up to December 31, 1856, and $10,000 a year thereafter. In 1854 the 
 library had the services of a librarian, who was chosen by the city 
 cotincil; of trustees chosen in the same way; of commissioners who 
 were to provide the library building ; and of the usual committee, with 
 the mayor left off. The circulating department was opened on May 2, 
 1854. On January 1, 1858, the library building in Boylston street was 
 dedicated; in 1863 the trustees were authorized to appoint the librarian 
 and superintendent, subject to the approval of the city council; in 1869 
 the trustees received authority to appoint their subordinates, but the 
 city council was represented in the board up to 1885. The law limit- 
 ing the library expenses to $10,000 a year had been repealed in 1857, 
 and in 1878 the trustees were incorporated, with leave to hold property 
 up to $1,000,000. 
 
 In 1880 the State gave a piece of land for the erection of a new 
 library building, at the corner of Boylston and Dartmouth streets, the 
 building to be erected within three years, and to be open to all the 
 citizens of the Commonwealth. This estate has been added to by the 
 city, and in 1887 the trustees were given entire control of the new 
 building, its erection and management. In 1869 the city had authorized 
 them to establish branch libraries; but up to 1863 the ordinance vested 
 in the trustees only "the general care and control of the public library," 
 and in the librarian its "immediate care and custody." So far from 
 
CONSTITUTIONAL HISTORY. 147 
 
 preventing the growth of the establishment were the early ordinances, 
 with their conflict of authority, that those were really the palmy days 
 of the library. The people had found a new idol, the municipality a 
 new mission. . The people were passionate in their attachment to the 
 library, and a share of this early love continues, unchecked by the vast 
 expenses incurred in recent years. Apparently the city expends more 
 for its public library than does any imperial government. The services 
 of the trustees are gratuitous. 
 
 The Charter, 1832 to 1854. 
 
 The charter of 1832 made the mistake of trying to adapt a city to 
 town government. But the difference between direct self-government 
 by the people and representative government is radical. The mistake 
 of treating the two alike still haunts our municipal jurisprudence (Publ. 
 Stat., ch. 28, sec. 2), and illustrates the conservatism of American 
 democracy. If town government and its departments were sacred, 
 they should have been retained, and Boston should not have become a 
 city. Having become a city, the methods of town government should 
 have been abandoned. The charter of 1822 failed in this, and by false 
 conservatism increased the evils it meant to remedy. In theory the 
 principle was established that the city council should have the powers 
 of the town ■ meeting, and that aldermen should have the powers of 
 selectmen. The theory was wrong ; for a town meeting is essentially 
 an administrative body, giving specific orders to its agents and servants, 
 while the city council is not the agent and servant of the government, 
 but itself the most important branch of the government. In substance, 
 the charter placed the actual government of the city in the hands of 
 eight aldermen, requiring them only to obtain in some matters the 
 concurrence of the common council. Instead of dividing and distribut- 
 ing the poweif of the corporation, in a system of checks and balances, 
 the charter provided for the continuance of town offices, and placed the 
 real authority with the aldermen, who were not required to act as a 
 board only, but had great power as individual aldermen. 
 
 The framers of the charter were bound to draw a sharp line between 
 legislative and administrative work in the city government; for the 
 very purpose and essence of a representative government consists in 
 "a government of laws, and not of men," as the Massachusetts declar- 
 ation of rights expressed it in 1780. In a town it is not necessary to 
 legislate much, or to give many permanent orders, because the town 
 
148 BOSTON. 
 
 meeting may issue new orders at short notice. In a representative 
 government legislation is of the utmost importance, because the direct 
 self-government of men has been displaced by the indirect self-govern- 
 ment through law. In a city government that neglects municipal 
 legislation, the administration will become irresponsible and reckless. 
 Yet our charter of 1822 gave the city council chiefly administrative 
 duties, and reserved the legislative work in good part to the General 
 Court. The charter provided for ward officers, firewards, overseers of 
 the poor, school committee, and the treasurer and auditor ; and then 
 vested in the corporation " the administration of all the fiscal, pruden- 
 tial, and municipal concerns" (St. 1821, ch. 110, sec. 1). " The care, 
 custody, and management of all the property of the city" were assigned 
 to the city council (sec. 16), and " the administration of police, together 
 with the executive powers " were vested in the mayor and aldermen 
 (sec. 13). What wonder that every man named in the charter tried to 
 administer and manage? What wonder that Mayor Quincy called the 
 common council the legislative branch of the government, and the 
 aldermen its executive board? What wonder that in the general en- 
 deavor to manage and administer, the mayor and the common council 
 were crowded to the wall? What wonder that the city council neglected 
 its legislative duties? It is a wonder that the charter did not work 
 mischief. The government was saved, not by the merit of the charter, 
 but by the character and integrity of the mayor and aldermen. 
 
 The standard by which the charter of 1822 should be judged is not 
 the constitution of a Massachusetts town, but the Constitution of the 
 United States, which had been in operation for more than thirty years. 
 Nor is there an essential difference between the governments of Boston 
 and the United States, Both have limited powers ; the powers of both 
 can be enumerated; both governments are representative and free. 
 But the Constitution of the United States did not engage in any at- 
 tempt at saving the offices of the Confederation ; neither did it establish 
 executive departments. It divided and distributed government power, 
 and left the rest to Congress and the good sense of future generations. 
 In more than a century it has not been very much changed; the Boston 
 charter of 1822 required amending in 1823, and had received more than 
 fifteen amendments by 1864, when it was revised (see the code of 1850, 
 453-482). Yet it cannot be harder to make a constitution for a city 
 than for a sovereign nation. The defect of our charter was the imper- 
 fect distribution of power, and the implication that the city council 
 
CONSTITUTIONAL HISTORY. 149 
 
 might manage and admmister, while the real legislative authority was 
 to be exercised by the General Court. In defense of the framers it 
 should be stated that the administrative sub-divisions of the Common- 
 wealth and the United States are as complicated and confusing as those 
 of Boston, and that the fault lies with the legislative bodies that make 
 them. But in the State and nation the fault is not constitutional ; in 
 Boston it is. This fault of our charter consisted in reserving to the 
 General Court certain legislative functions that should have been en- 
 trusted to the city council, and in imposing upon the city council 
 administrative duties which should have been withheld. In a repre- 
 sentative government it is fatal to let the same body legislate and 
 administer. 
 
 The population of Boston had increased from about 45,000, in 1822, 
 to less than 160,000 in 1854; the taxes were less than $160,000 in the 
 first year of the city ; in 1853-54 they exceeded |1, 500, 000. The city 
 did not inherit any town debt, and the county debt left to the city was 
 $71,815; in 1854 the city owed more than seven million dollars, includ- 
 ing nearly two millions for general city purposes, except the water 
 siipply. Yet the government had been honest. It might have done 
 better ; but it was not to be expected that it should do better than the 
 charter prescribed or permitted. And the charter prescribed that the 
 city council should manage and administer in general, that the alder- 
 men should administer and manage in particular. They did ; and the 
 people might have fared worse. The public schools, those idols of the 
 plain people, are still managed by a committee of twenty-four, and are 
 well managed, certainly with some ability, great fidelity, and entire 
 integrity. General city affairs were equally well managed under the 
 charter of 1822. To be sure, the early city councils were strikingly 
 unfortunate in their ordinances, as is illustrated in the town code of 
 1827. But could city councils do much, when anybody and everybody 
 might go to the General Court for Boston legislation? The special laws 
 relating to Boston, and passed by the General Court, are not less than six 
 hundred, and one-fifth of the number was passed from 1822 to 1854. 
 Such an arrangement must be ruinous to city-council work. And the 
 common council was treated with peculiar contempt. The charter did 
 not intend to give the common council concurrent jurisdiction, which 
 is the greatest protection against haste, negligence, and corruption. 
 In 1847 the mayor and aldermen as a board were authorized to make 
 penal by-laws, known as regulations ; and the charter revision of 1854 
 
130 BOSTON. 
 
 made the municipal power of aldermen supreme, save where they 
 shared it with joint committees. But the responsibility for the unhappy 
 arrangements rests with the General Court. The members of the city 
 government must answer for individual shortcomings, if any; the 
 system, the government, the constitution of the city were not of their 
 making. These were made and marred at the State House. 
 
 Attempts at Reform, 1823-1854. 
 
 When matters did not go to the satisfaction of the people, it was 
 customary, in the early days of the city charter, to hold meetings at 
 Faneuil Hall, under sec. 25 of the city charter. Mayor Quincy thought 
 well of these meetings, and considered them a continuation of the old 
 town meeting. They were nothing of the kind. The town meeting 
 could order the town officers; the "' general meetings " authorized by 
 sec. 25 of the city charter might advise or censure, but had no power 
 that bound anybody. Anybody could hold such meetings, and any- 
 body could advise or censure the city government, charter or no 
 charter. Those general meetings merely show how useless it was to 
 retain the form of town government, when the substance was gone. 
 Accordingly a new way 8.t reform had to be found. It became cus- 
 tomary to get an act passed by the General Court, and to let the people 
 vote upon its acceptance. Of course, the people usually rejected such 
 acts, save where some substantial gain was offered. An act enabling 
 the mayor and aldermen to choose one of their own number superin- 
 tendent of police, as under the town, and to order ward meetings to be 
 held outside the respective wards (6 Spec. Laws, 84), fell by its own 
 weight. So did a building law, passed in 1827 (1. c, 564), which called 
 for non-combustible or slow-burning architecture, but gave the mayor 
 and aldermen great latitude. In Mayor Eliot's day the people were 
 twice invited to vote on charter amendments proposed by the city 
 government (city doc. 21 of 1837, doc. 5 of 1838). The amendments 
 were rejected. 
 
 The reason why these measures were rejected is apparent. The 
 people favor what they think advantageous ; all else they view with 
 indifference or opposition. It was not to be expected, in the early 
 years of the city charter, that the people would add to the power of the 
 mayor and aldermen. Why should they? The charter amendments 
 of 1837 and 1838 proposed to transfer the election of the overseers of 
 the poor from the people to the city council. Why should the people 
 
CONSTITUTIONAL HISTORY. 151 
 
 support such a proposition? A more radical measure might have been 
 approved, provided some public gain was to be made. How discrimin- 
 ating a popular vote may be, was illustrated by the treatment of St. 
 1853, ch. 266. The people rejected the offer to choose aldermen and 
 assistant assessors by wards, but gave the common council concurrent 
 authority, with the mayor and aldermen, when more than $5,000 was 
 to be expended on a county building, or in laying out a street. The 
 people decided correctly that it was immaterial whether they had eight 
 or twelve aldermen, and whether these aldermen were chosen by wards 
 or at large, but that the power vested in the board of aldermen was an 
 important matter, and that concurrent authority should be vested in 
 the common council. Unlike the student or lawyer, the people are in- 
 different as to form; they are disposed to trust, and are not jealous of 
 power where power is properly vested and exercised. They are dis- 
 posed to delegate much, and are not pining for the Swiss referendum. 
 But they insist that government shall be orderly and efficient. If 
 the government be orderly, efficient, and creditable, the people are 
 ready to support, to bear much, and to forgive something. But the 
 people have an intuitive dislike for measures not transparently clear 
 and useful. The reforms proposed from 1822 to 1854 were a matter of 
 form, and for that reason could not command public respect. 
 
 Nobody floundered more than the members of the government, ex- 
 cept the eight aldermen. They used the power they had, and did not 
 complain. They said very little, and during the period under discus- 
 sion did not even publish their rules of procedure, if they had any. 
 They acted as a legislative board, as a branch of the city council, as an 
 executive board, and as indivxl.;. '. e:-:ecutives. The common council 
 demanded more power, but met with opposition both quiet and effect- 
 ive. The concession made by the aldermen consisted in the appoint- 
 ment of joint committees, which rose to such importance that they 
 figure in the charter of 1854 (sec. 40). The charter amendments of 
 1837 and 1838 had proposed that either branch of the city council, or 
 any committee thereof, should have power to lease or sell city property. 
 This passion for committees was honestly inherited. Under the town, 
 orders were usually carried out by committees. Indeed, the selectmen 
 were a standing committee of the town meeting. Under the city 
 charter all executive and administrative work should have been done, 
 as since 1885, by paid officers. The members of the city council were 
 not so anxious to do work as they were willing to supervise and direct 
 
152 BOSTON. 
 
 the work of others, to help in selecting these others, to wield patron- 
 age, and to dine or celebrate at the public expense. They have been 
 bitterly denounced for this ; but they did not create the absurd system 
 that required the city council to give orders and to manage the execu- 
 tion. The chief sufferer was the mayor. Mayor Bigelow explained 
 this with insight when he retired in 1852. The duties of the mayor, 
 he said after three years' experience, should be purely of an executive 
 character, whereas he presided over the board of aldermen, the school 
 committee, and many other committees, to the exclusion of adminis- 
 trative work. As a member of these bodies he had one vote, and no 
 more. He had no veto power, and as an executive he had about the 
 same power as an alderman, except that he nominated police officers, 
 undertakers, and weighers. Mayor Bigelow (see doc. 80 of 1851) was 
 the first to point out the true reform. 
 
 Charter of 1854. 
 
 Mayor Bigelow had pointed out that the mayor should be an execu- 
 tive officer, and that he should not be a member of the board of alder- 
 men and the school committee. The city goverment of 1854 undertook 
 to act upon this hint, the outcome being the charter of 1854, which is 
 still in force, though literally reformed by many amendments. The 
 immediate impulse for the new charter came from Mayor Smith and 
 Henry J. Gardner, prominent members of the Native American party. 
 There is no reason why such a party might not produce a good charter. 
 But the charter was drafted under directions from the city council, and 
 the city council was not likely to deprive itself of the administrative 
 powers conferred by the charter of 1832. Nor were the tirnes favorable 
 to sound legislation. The Constitutional Convention of the State, 
 assembled in 1853, had failed of success; the Commonwealth was 
 divided into three or more parties, none of which commanded a 
 majority, and Boston was more divided than the Commonwealth. The 
 contest for the mayoralty, in 1853, had been led by a Whig, a Prohibition- 
 ist, and a Know-Nothing, the last named being elected on the third trial. 
 This contest led the General Court to establish the principle of 
 election by plurality vote in all town, city, and county elections, in the 
 place of elections by majority vote that had been in force up to that 
 time (St. 1854, ch. 39). That the General Court should improve the 
 charter submitted by the city council, was not to be expected. It was 
 not apt to have better views of a city charter than the men of Boston. 
 
CONSTITUTIONAL HISTORY. ■ 153 
 
 The new charter, as first proposed, placed the election of the school 
 committee under the control of the city council. This was expunged. 
 In order to make the mayor an executive officer, he was deprived of his 
 vote in the board of aldermen, over whom he was to preside ; and it 
 was decided that the term "mayor and aldermen" should virtually 
 mean "aldermen," except that the mayor was to have the qualified 
 veto power over formal votes of the board or the city council, and that 
 he should continue to nominate a few petty officers whose appointment 
 was vested in the mayor and aldermen. These he might also remove. 
 But all important officers, save the police, were chosen and removed by 
 the city council. Over the executive power vested in the aldermen the 
 mayor had no control. Indeed, the only new power given to the mayor 
 was the qualified veto; but every alderman could nominate offic^ers, 
 give information to the city council, direct the department officers, and 
 watch the execution of the laws and orders. The charter was just 
 such an instrument as the aldermen wished, and ought not to have 
 had. It made the mayor a figure head of the administration, it con- 
 firmed and increased the power of the aldermen, and virtually estab- 
 lished government by legislative committees. The provision that 
 ordinances might carry a penalty up to $50, has not been carried out 
 by the city government. But a term of three years was wisely estab- 
 lished for members of the school committee. The number of aldermen 
 was increased to twelve, but the plan of electing them by wards was 
 rejected by the people. As nothing better was- offered, the people 
 accepted the charter, but in alight vote. The yeas were 9,166, the 
 nays 990; the population of the city more than 150,000. The proposed 
 election of aldermen by wards was rejected by 5,138 votes, against 
 4,833 in its favor. At the previous city election more than 13,000 
 ballots were cast. 
 
 The common council attempted to get the same power as the board 
 of aldermen, but failed. Public opinion acquiesced in the idea that 
 municipal business was mainly administrative, that aldermen were the 
 legitimate administrative officers, like selectmen in towns, and that 
 common councilmen might possibly do the work of minor town officers 
 who did not draw pay. The common council itself supported this 
 position by giving much attention to purely administrative work, to the 
 neglect of municipal legislation. The lawyers seemed partial to the 
 prerogative of aldermen, and the germ of power entrusted to the com- 
 mon council was never allowed to develop beyond the state of a modest 
 
 20 
 
154 BOSTON. 
 
 bud. Yet the city council had the power of towns, aldermen had only 
 the power of selectmen, and towns were not obliged to employ select- 
 men as their agents for every kind of town business. The philosophy 
 and jurisprudence of the charter were neglected in the general attempt 
 of the city council to administer and manage as much as possible, and 
 to avoid theoretical questions. In this misplaced endeavor the common 
 council could not compete with the aldermen. It fought for executive 
 rights ; the more important field of legislation was neglected, and the 
 great constitutional problems of municipal government were not 
 touched. In fact, whenever important legislation was desired for the 
 city, application was made to the General Court, and the General 
 Court, always partial to special legislation, rarely refused to consider 
 problems which should have been solved by the city government. 
 
 The aldermen worked night and day, the common councilmen were 
 faithful, the people could not understand their government. Its fault 
 was not want of integrity or diligence, but constitutional. The mayor, 
 who should have had full executive power, was confined to ornamental 
 speeches. The city council, which should have legislated for all mu- 
 nicipal departments and concerns, was required by the charter to admin- 
 ister and manage, and the General Court never hesitated to legislate 
 for the city of Boston. The city, therefore, had three legislatures, — 
 two at city hall, another at the State House. For the aldermen could 
 legislate without the concurrence of the common council. The mayor 
 was to be "taken and deemed" the chief executive officer; but the ex- 
 ecutive powers of the corporation were vested in the aldermen (not in 
 the board of aldermen) ; yet the city council was to appoint the prin- 
 cipal city officers, and had the care, custody, and management of all 
 city property, as well as ' ' the administration of all the fiscal, pruden- 
 tial, and municipal concerns." The lawyers decided that cities were 
 " created " by the General Court, and the people were too civil to find 
 fault with their creators at the State House, but blamed the city 
 government when taxes or debts were too high, or improvements too 
 slow. They demanded the best that money would buy, and insisted 
 that taxes must be low. With few exceptions all public expenses were 
 met from the general tax levy or loans, and there is still' a lurking 
 belief that a government may be rich while taxes are low, or that skill 
 and influence can get improvements for which the beneficiary need not 
 pay. As the city could assess taxes and incur debts without limit, 
 it is greatly to the credit of the city governments and their committees 
 
CONSTITUTIONAL HISTORY. 155 
 
 that the people who pay the bills fared so well. Surely, worse things 
 might have come from a city council that both levied and disbursed 
 the tax, and could borrow millions to satisfy the popular cry for the 
 latest improvements. Future generations will marvel when they read 
 the Boston charter of 1854. 
 
 City Hospital. 
 
 Before the charter of 1854 went into the effect, the machinery for 
 governing the city was complete. Great ingenuity in establishing a 
 variety of conflicting departments and city organs had been shown. 
 The departments created since then might have been made a part of 
 some department to which the people were accustomed ; but the Gen- 
 eral Court and the city council were determined to create a new depart- 
 ment for every kind of work that could be entrusted to new officers and 
 at least one governing committee. From time immemorial the town 
 had established a hospital when occasion required, and the Province 
 had a regular establishment on Rainsford island. This hospital was at 
 first kept by the Province; it was then kept by the town at the 
 expense of the Province; finally it was ingeniously transferred to 
 Boston. When Boston indicated a willingness to establish a permanent 
 hospital, nominally for emergency cases, the General Court hastened 
 to grant permission (St. 1858, ch. 113). The usual committees were 
 appointed ; in addition a board of trustees was created, and on May 34, 
 1864, the city hospital was dedicated. The late Elisha Goodnow had 
 left a bequest of $26,000 for a hospital to be erected in or near South 
 Boston, half the income to be used for free beds ; in 1863 the city pro- 
 vided for a board of trustees of the hospital ; the building was erected 
 under the joint management of the conimittee on public buildings, the 
 committee on the city hospital, and the trustees. Between them they 
 laid a very broad foundation, though Thomas C. Amory, jr., chairman 
 of the trustees, confessed at the dedication that, ' ' were we permitted, 
 with our present experience, to recommence our task, the control 
 would be left with a single committee, and to fewer minds" (1864, city 
 doc. 40, 31). 
 
 The city hospital has become a whole colony, with more than twenty 
 buildings, and an annual requirement of not less than $350,000 for 
 maintenance. It is well managed, and one of the few city departments 
 that have undertaken to enrich knowledge, and not simply to consume. 
 In 1880 the trustees, now five in number, were incorporated, and have 
 
156 BOSTON. 
 
 "the general care and control" of the hospital with all its branches, 
 training school, convalescent home, and out-patient departments. Yet 
 when this enterprise was proposed, in 1849, so distinguished a man as 
 Dr. D. Humphreys Storer, whose opinion was entitled to attention, de- 
 clared that the institution was not required, and that he was not the 
 only physician who held that view. Mr. Amory comforted his dedica- 
 tion audience in advance, "if our beds are not immediately in requisi- 
 tion," with the statement that the Massachusetts General Hospital re- 
 ceived its first patient on Sept. 3, 1831, and "no other application be- 
 fore the twentieth." Of course, a hospital offering the best treatment 
 free of expense was not to be wholly without applicants. The building, 
 when delivered to the trustees for use, had cost $350,000; the expense 
 in the first year thereafter was $113,437, a large part of this being bor- 
 rowed, while the building was erected almost entirely from borrowed 
 money. The city thus committed itself to expenses not exclusively of 
 a public nature, and the General Court consented. The people rejoiced, 
 and look upon the city hospital with almost the same delight they take 
 in the Public Library. The trustees are not paid, they are appointed 
 for five years each, and they collect from patients that are able to pay. 
 The city council leaves the management of the hospital entirely to the 
 trustees. 
 
 East Boston Ferry. 
 
 In view of the money devoted by the city to the hospital and the pub- 
 lic library, which were not municipal necessities, as defined by munic- 
 ipal jurisprudence, it seems surprising that the East Boston ferry, 
 though owned and operated by the city, should continue as a toll ferry. 
 In old times the East-Boston ferry, when operated, was a part of the 
 Chelsea ferry, which was in private hands. The first regular ferry to 
 East Boston appears to have been established in 1833. In 1852 the 
 East-Boston Ferry Company bought the ferry then in operation for 
 $300,000, the city was to prescribe the duties of the company and the 
 tolls, provided the latter netted eight per cent, on the capital invested, 
 which might be $300,000. The act of incorporation held out the hope 
 of a free ferry, to be established by the city. In 1870 the city bought 
 the ferry property for $375,000, and the enabling act again held out the 
 hope of a free ferry. In 1877 the city council voted to make the ferry 
 free, but the Supreme Court of Massachusetts ruled such a vote to be 
 illegal. Whether or not the city might have established a free ferry in 
 
CONSTITUTIONAL HISTORY. 157 
 
 1870. under St. 1869, ch. 155, is undecided, although the presumption 
 is against free ferries, as far as the science of jurisprudence is con- 
 cerned. The question would be free from doubt, were East Boston an- 
 other town or city; but it has been a part of Boston since 1637, and the 
 right of the city to build a free bridge to East Boston is not to be 
 doubted, provided authority from the General Court is obtained. The 
 ferry has cost the Boston tax payers about $3,000,000. (See St. 1852, 
 344; 1868, 353; 1869, 155; Chief Justice Gray's decision in 133 Mass. 
 Rep., 460). The ordinance of April 17, 1891, wisely transferred the 
 management of the ferry from a board of commissioners or directors, 
 appointed annually, to one superintendent. Another ferry, conducted 
 by a railroad company, connects the city proper with East Boston. 
 
 Parks. 
 
 In 1870 the people of Boston voted upon an act (St. 1870, ch. 383) 
 under which a board of nine park commissioners, four to be appointed 
 by the State, should lay out one or more parks, the annual cost of 
 maintenance not to exceed $50,000. Two-thirds of the voters were to 
 accept the act to make it binding upon the city. The vote was 9,333 
 in favor, and 5,916 opposed; so the measure failed. After the annexa- 
 tions of 1874 another act, under which three park commissioners, 
 appointed by the mayor and city council, were to establish parks 
 within the city limits, was accepted by the light vote of 3,706 yeas, to 
 3,311 nays, a majority vote to decide. The act did not contain any 
 limitations, except that expenses were to be kept within appropriations 
 made by the city council. The park commissioners have never 
 received a salary ; yet the cit)'' has had good service. A fine system of 
 parks has been projected, and is in part complete. Not including the 
 common, the public garden, and the public squares, the parks cover 
 nearly three square miles, and the cost, up to January 31, 1893, was 
 about $11,500,000. The General Court and the city government have 
 been equally lavish in this matter, and the city has received an equiva- 
 lent for its great outlay. The city government has very little to do 
 with the parks, beyond authorizing the loans and expenditures. But 
 the common, the public garden, and other public grounds, to the extent 
 of about 140 acres, with some thirty thousand trees, remain under the 
 care of the city government and its superintendent of public grounds, 
 an office established as early as 1841, and important since the public 
 
158 BOSTON. 
 
 garden has been made a delight to all comers. The parks and these 
 public grounds might well be under one management. 
 
 Review of Executive Departments. 
 
 This ends the list of the great spending departments. Other depart- 
 ments created since the charter of 1854 are certain cemeteries; the in- 
 spection of milk and vinegar, which has proved a benefit ; the commis- 
 iiioners of the Charles-river bridges ; the inspection of buildings, which 
 looks after the safety of all houses and other buildings in the city, and 
 has had the benefit of very much legislation from the General Court, 
 but has been useful; the inspection of provisions; the record commis- 
 sioners, who have published important documents of the early local 
 government ; the city architect ; and even an art commission. In 1870 
 the laying out and widening of streets was transferred from the alder- 
 men to the board of three street commissioners, elected by the people ; 
 and in 1874 the registration of voters was transferred from the alder- 
 men to a board of three registrars, appointed by the mayor and alder- 
 men, who could not properly attend to such things. In 1871 a superin- 
 tendent of printing was appointed, whose duties, however, are minis- 
 terial. In 1875 the collecting department was separated from the 
 treasury. But, on the whole, the city government prefers not to mul- 
 tiply administrative departments, and in 1891 an interesting consolida- 
 tion of the bridge, sewer, and sanitary-police departments with the 
 street department was effected. Still there are some thirty-five coor- 
 dinate departments directly amenable to the mayor, not counting the 
 schools, the county officers, the police, and numerous officers paid by 
 fees. The number of appointments made annually by the mayor and 
 aldermen is nearly three thousand, and the number of persons in the 
 service of the city about three times that number. 
 
 It is due to the city government to state that most of the city depart- 
 ments are created by the General Court. When a public want arises, 
 and the General Court acts at all, it usually creates a new municipal 
 department, as far as Boston is concerned ; for some new duty of town 
 officers in the nature of things means a new department in the city of 
 Boston. In addition, the city has many wants that do not arise else- 
 where. The result is an administrative machinery of vast extent and 
 extremely complicated, but with this element of unity that the expense 
 is assessed upon the Boston tax payers. County expenses are pre- 
 scribed almost wholly by the General Court, and defrayed by the city. 
 
CONSTITUTIONAL HISTORY. 159 
 
 For years past they have exceeded a million dollars annually. The 
 school expense averages above two millions a year, and is appropriated 
 by the city council in bulk, to be expended by the school committee. 
 In the appointment of the police force, the city has no voice, but it 
 bears the expense, which exceeds a million dollars a year. The ex- 
 penditures of the departments under the control of the city govern- 
 ment are mostly fixed charges. Yet nearly every administrative de- 
 partment, and nearly every expenditure, have been created at the re- 
 quest of the tax payers. They have demanded the best, and they have 
 borne the cost with astonishing ease. With the exception of the nomi- 
 nal poll tax, the city collects nearly every tax it assesses ; and the pay- 
 ments are prompt. Yet owing to the fact that the people of Boston de- 
 mand more and receive more, their taxes are the highest in the coun- 
 try. Since the charter of 1854 our population has trebled; our tax has 
 sextupled ; yet the community bears the burden without apparent dif- 
 ficulty. . But it dislikes special assessments. It prefers that the munici- 
 pality shall do as much as possible, and that the cost shall be de- 
 frayed from the general tax levy. 
 
 Under the law of 1890 all subordinates hold their places during good 
 behavior, and since the charter of 1854 the rule of annually appointing 
 all heads of departments has been in part abandoned. A slight begin- 
 ning has been made in reducing departments to divisions of a depart- 
 ment, the advantage being, not economy, but better supervision, 
 greater stability, and less contact with political appointments. For in 
 an important sense appointments made by the mayor are more or less 
 political appointments. Perhaps the administrative machinery of the 
 city could be reduced to a few departments, the political heads of which 
 might come and go with every mayor, while all division heads and 
 their subordinates would serve during good behavior. The United- 
 States Treasury shows that all financial departments of the city might 
 be safely united under one head. Such a department of finance should 
 include the assessors of taxes as bureau officers, and might include the 
 registration of voters, because the assessing and collecting departments 
 have the best knowledge of persons in the city. A great health de- 
 partment might include the city hospital, the inspection of food for 
 man and beast, all cemeteries, and the entire registry of births, mar- 
 riages and deaths. The public library, the publication of early records, 
 and printing naturally go together, and have very much in common 
 with our system of schools. The great departments of police, fire, in- 
 
160 BOSTON. 
 
 spection o£ buildings, weigliers, and medical examiners could be joined. 
 The departments of relief, correction and prisons should be consoli- 
 dated. Finally there would be, or could be, a department of public 
 works, comprising streets, sewers, bridges, parks, lighting, public 
 buildings, the city engineer and surveyor, the architect, the water 
 division, and the ferries, together with the board of survey, and all 
 administrative work now assigned to the street commissioners. 
 
 It is not unreasonable that with a new mayor there should be six or 
 eight, but not exceeding ten, new heads of departments. It is contrary 
 to reason that such officers as the city architect, assessors of taxes, the 
 engineer and surveyor, the water registrar, the superintendent of 
 printing, or the city registrar should be quasi-political officers. An 
 officer elected by the people, or appointed by the mayor and aldermen, 
 is almost inevitably a political officer. When the people elect a new 
 mayor, they practically declare that he may select all officers for whose 
 conduct he is responsible. In order to eliminate party politics from the 
 service, therefore, it is important that as few offices as possible should 
 be elective, or subject to the pleasure of the appointing power, and that 
 as many offices as possible, including all ministerial offices, should be 
 taken out of party politics. It is important, also, that the adminis- 
 trative machinery of the municipal service be simplified. The admin- 
 istrative branch of a government should resemble a pyramid. To 
 command popular interest, the system of administration must be in- 
 telligible. The laws that govern Boston are more complicated than 
 the laws that govern the United States; our executive departments are 
 more numerous ; supervision is more difficult. The reason is apparent. 
 We have but one national legislature; the city has three or four. 
 There is but one national administration ; the administrative officers of 
 Boston carry into effect the Regulations of the Board of Aldermen, the 
 Ordinances of the City Council, the statutes of the General Court, the 
 laws of Congress, and the directions of the mayor. No wonder, the 
 reformers despair when they undertake to deal with municipal govern- 
 ment. 
 
 The Balance of Municipal Power. 
 
 This fact, that the spending officers of the city are the servants of so 
 many masters, and that the supreme master, the voter and tax payer, 
 is so exacting, is the chief reason why taxes in Boston are high, and 
 why the municipality does many things that are elsewhere left to 
 
CONSTITUTIONAL HISTORY. 161 
 
 private enterprise, and for that reason do not appear in the tax levy. 
 The tax payer and the municipal government stand, to some extent, in 
 the relation of principal and agent, or master and servant. Accord- 
 ingly the municipal government cannot be judged justly without some 
 attention to the public that clamors for improvements and is willing to 
 pay the cost ; though some persons demand generous expenses and low 
 taxes. To reduce the general tax levy, the betterment law was passed 
 in 1866 (St. 174). It was to let abutters bear a part of public improve- 
 ments; but has not worked well. In theory common sewers were to 
 be paid for by the abutting estates ; but collections have been light. 
 Even the parks were to be paid for, in part, by abutters; the object 
 has not been obtained. When municipal expenses became enormous, 
 under the joint influence of inflation, annexation, and the fire of 1873, 
 the General Court limited municipal indebtedness by statute (St. 1875, 
 ch. 309), ordaining that Massachusetts cities and towns should not owe 
 above three per centum of their taxable property as valued by the 
 assessors, though communities owing between two and three per 
 centum of the assessed valuation might incur another one per centum 
 of debt. The same law required sinking funds to be established. 
 
 Ten years later, the debts as well as the taxes of Boston were re- 
 stricted by a law of Spartan rigor (St. 1885, ch. 178); but the General 
 Court itself forced numerous exceptions upon the city. The net debt 
 of the city in 1893 (gross funded debt, less cash available for redemp- 
 tion) is not far from four per cent, of the assessed valuation, and the 
 amount required in 1893-3 for interest and sinking funds exceeded four 
 million dollars. The city government is not alone responsible for this; 
 neither is a stringent law a protection against lavish expenditures. 
 Indeed the city government has been carefully protected. The city 
 charters of 1831 and 1854 made members of the city council ineligible 
 for salaried city offices. In 1884 members of the city council were made 
 ineligible for such offices during the term for which they were elected. 
 In 1850 they passed an ordinance making void all sales and contracts, 
 purchases and agreements in which a member of the city council or an 
 officer of the city had any private interest, director indirect (Ordin. of 
 Dec. 33, 1850). The civil-service law (St. 1884, ch. 330,' sec. 13) made 
 it impossible for the members of the city council to charge wine or 
 tobacco to the city, or more than a dollar a day for meals. The legis- 
 lators appear to have felt that personal economy in members of the 
 city government might promote municipal frugality. But a few 
 
 21 
 
162 BOSTON. 
 
 thousand dollars saved on municipal dinners or carriages are a small 
 item in municipal expenditures that exceeded twenty-one million dol- 
 lars in 1892-3. The real expenditures are demanded by the city gov- 
 ernment, by the General Court, and by the public, though it is 
 customary to chide aldermen and common councilmen, when economy, 
 retrenchment, and reform are in demand. 
 
 Up to 1885 the annual city councils controlled municipal expendi- 
 tures, and are responsible for much that happened, though both the 
 General Court and the public demanded much. Under a feeling that 
 the city must be protected, as though it could not protect itself, the 
 power of the city council, and especially the board of aldermen, was 
 gradually curtailed. The establishment of the board of street commis- 
 sioners, in 1870, is a good illustration. It transferred the right of 
 laying out and widening streets from the aldermen to the street com- 
 missioners. Other executive departments were created at the expense 
 of power which the charters of 1822 and 1854 had vested in the city 
 council. The last favor shown by the General Court to the city council 
 was in 1864, when the election of overseers of the poor was transferred 
 from the people to the city council. The aldermen enjoyed the highest 
 degree of power from 1847 to about 1876, and vast power up to 1885. 
 But they gradually lost ground. Misled by a foolish charter they 
 undertook too much ; the result was inevitable distrust. In 1884 the 
 law requiring the election of aldermen by districts was passed. It has 
 not proved specially beneficial, nor at all injurious, for the reason that 
 it cannot make any material difference whether an alderman is chosen 
 by one-twelfth of the city or by the whole. The smaller States send 
 at least as good men to Washington as do the large States, and a limited 
 district is as apt to choose well as is a much larger district. But before 
 the law of 1884 could produce results of importance, the storm that had 
 gathered over the board of aldermen and its despised brethren of the 
 common council, burst forth. It was to be a hurricane. The great 
 wrong of the charters of 1822 and 1854 was to be redressed at last. 
 The power of the aldermen was to be placed between the upper and 
 the nether millstone. 
 
 The Balance of Power Recast. 
 
 In 1883 Benjamin F. Butler had been Governor of Massachusetts, to 
 the sorrow of all conservatives in a State that thought well of the past. 
 In 1884 and 1885, therefore, the General Court undertook to repair all 
 
CONSTITUTIONAL HISTORY. 163 
 
 the mischief that had brought the political aspirant to the head of 
 affairs for a twelvemonth. In those two years the constitution of Bos- 
 ton was revolutionised. Boston had supported Butler ; in 1884 it had 
 occasioned a tax rate of 17 per mille, against 14.50 in 1883. This led 
 the tax payer to demand reform. In addition, the city was Democratic ; 
 the State was not ; the General Court was overwhelmingly Republican. 
 The time was favorable to radical measures. The civil-service law of 
 
 1884 destroyed the favorite patronage of the Boston city council, by 
 placing the clerical and labor force of the city under the rules of the 
 Commonwealth. The law made it illegal for members of the city 
 council to recommend the appointment of policemen, firemen, laborers 
 in the street or clerks in offices, on any political or personal ground. 
 Most of the sections in this good law showed the temper of the General 
 Court by beginning with the word "No." In 1886 the law limiting 
 the debt and the tax of Boston was passed (ch. 178), leaving the city 
 council no latitude in making appropriations, the tax available under 
 the limit (nine per thousand of the average assessed valuation for cur- 
 rent expenses, exclusive of the debt and the State tax) being impera- 
 tively required for the fixed expenditures of the city. Indeed, under 
 the new law the appropriatijig power could only decide whether the 
 reduction in the income of the city should reduce the outlay for paving, 
 for sewers, for the salary of teachers or something similar. It was a 
 cast-iron law ; but cast iron is not as enduring as a watch-spring, nor so 
 useful. 
 
 In 1885 (St. 323) the appointment of the police board was transferred 
 from the city to the Commonwealth, and the famous act of May 27 (St. 
 266) drew the line between executive and legislative work of the city 
 government, as prescribed in the Massachusetts declaration of rights, 
 in the Constitution of the United States, and in the very phrases that 
 school children use when they speak of their government. The act of 
 
 1885 repeated the language of the charters, and then vested all execu- 
 tive and administrative power of the city government in the mayor, to 
 be exercised through the many executive and administrative depart- 
 ments which the past had brought forth. By a stroke of the pen, the 
 executive power exercised by the city council, but especially by the 
 aldermen, who would not concede equal rights to the common council, 
 was transferred to the mayor. For more than sixty years he had been 
 very little else than head alderman, or the presiding officer of the cor- 
 poration ; on June 26, 1885, when the new law took effect, he became 
 
164 BOSTON. 
 
 an officer of very great power. He was made the appointing power, 
 though the board of aldermen was wisely given the power of confirma- 
 tion ; he might veto separate items in appropriation bills ; he was made 
 supreme in all administrative duties, the heads of departments being 
 his servants, whom he could remove at pleasure, and the members of 
 the city council expressly debarred from participation in the executive 
 work of the city, such as the employment of labor, the making of con- 
 tracts, the purchase of supplies, the repair of a sidewalk, the care of 
 public property, or the expenditure of public money. Neither an alder- 
 derman, nor the whole city council, could issue binding orders or in- 
 structions to an administrative department, which thenceforth took its 
 directions from the mayor alone. 
 
 Government by committee thus came to an end in Boston sooner than 
 in the Commonwealth, and more radically than in the government of 
 the United States. The General Court acted on the theory, carefully 
 expressed' in the Boston charters (St. 1821, ch. 110, sec. '30; 1854, ch. 
 448, sec. 62), that municipalities are the creatures of the State, and that 
 the will of the General Court is the real charter of the proud city. 
 Fortunately, the nature of things sets a limit to theories. In theory the 
 General Court creates cities; in fact cities grow; and the best legis- 
 lature can but recognise and try to regulate. In theory Boston was 
 made a constitutional monarchy, with the General Court for its legis- 
 lative branch ; in fact the General Court cannot legislate for everything 
 in Boston, because in the nature of things the General Court cannot be 
 familiar with all the interests of the city government, and prudent men 
 hesitate to regulate what they do not understand. In theory the mayor 
 of Boston is the master of the many millions the household of the city 
 requires ; in fact he has less than his households wants. In theory he 
 holds " the executive powers of the city " (St. 1885, ch. 266, ch. 6); in 
 fact, many powers of a purely executive nature, as to schools, police, 
 county affairs, parks, great public buildings, and even the erection 
 of petty monuments, are past his control. But he is not the Servant 
 of the city council ; neither can the city council act independently of 
 the mayor. Indeed, real action and execution rest with the mayor; 
 and his authority is derived from the General Court, rather than from 
 the city council. Like so many of his appointees he executes stat- 
 utes rather than ordinances, and he is not required to give an ac- 
 count of his stewardship to the powers that have created his preroga- 
 tive. 
 
CONSTITUTIONAL HISTORY. 165 
 
 As neither jurisprudence nor political philosophy has drawn the ex- 
 act line between executive and legislative functions, the city council of 
 Boston should not be censured for neither understanding nor admiring 
 the law of, 1885. Surveyors of highways appear to be executive of- 
 ficers ; the law of 1885 vests the executive powers of the surveyors in 
 the mayor, and appears to leave their legislative power m the board of 
 aldermen. But what is the power of a surveyor of highways that is 
 not executive ? A similar question applies to the whole charter amend- 
 ment of 1885. The charter of 1822 had vested in the city "the admin- 
 istration of all the fiscal, prudential, and municipal concerns of said 
 city, with the conduct and government thereof" (sec. 1). In 1885 the 
 administration was clearly transferred to the mayor; what, then, was 
 left to the city council ? The inaugural message of Mayor Matthews, 
 in 1892, gives this answer: " The chief function of the city council, as 
 the legislative branch of the city government, is to determine the 
 amounts of money which the executive departments shall be authorized 
 to expend during the year, and the manner in which the money shall 
 be raised. " That is, under sharp limitations the city council has a voice 
 as to appropriations and loans (for since 1885 the tax always goes up to 
 the limit then prescribed). No doubt, the city council has other pow- 
 ers ; but it has not yet recovered from the hurricane of 1886. Nor is 
 this strange. Chapter 266 of 1885 destroyed the traditions that began 
 with Boston itself; it destroyed the belief that towns were the true 
 model for city government ; it destroyed the very theory of munici- 
 pal government on which all New England was brought up. For after 
 all had been said about the General Court being a creator of municipal 
 government, the fact remained that towns had some rights, that they 
 were the organs and the constituents of the Commonwealth, and that the 
 town delegates of 1779 had made the Constitution of the State. The 
 city council suddenly found itself deprived of the only power it valued, 
 and that was the administrative power of the charter. The legislative 
 power the city council knew to be slight. Hence its sorrow, unrelieved 
 by public pity. But since 1888 the aldermen receive an annual salary 
 of $1,500 each; the common councilmen do not. 
 
 Conclusion. 
 
 After two centuries of town governnient, the power of which was 
 felt by the British crown, and after more than sixty years under a city 
 charter that was thought to preserve what was best in town govern- 
 
166 BOSTON. 
 
 ment, — for the charter of 1854 was merely an amplification of the first 
 charter, — the city of Boston has virtually a government in which the 
 powers are divided as the theories of Locke and Montesquieu, of John 
 Adams and Alexander Hamilton require. The city has an executive 
 head with ample powers. The judiciary, of course, is reserved to the 
 Commonwealth, because the judicial power cannot be municipal, and 
 for that reason should not be vested in a municipal government. The 
 legislative power is nominally vested in the city council ; in fact it is 
 chiefly exercised by the General Court, in a long and bewildering set 
 of general and special laws. Where the General Court has left the 
 requisite power, the city council may act. But the General Court does 
 not acknowledge any inherent or natural rights of the great corporation 
 which we call the city of Boston. Jurisprudence sustains the position 
 of the General Court. History teaches a different lesson. It shows 
 clearly and impressively that there is a line to be drawn between munici- 
 pal and State interests, and that municipal concerns should be left to 
 the municipalities that pay the cost, and must share in their honor or 
 their shame. The political history of all great states shows also that 
 free municipalities, free to flourish, and free to suffer, are the nursery 
 of citizens and statesmen fit to govern a free Commonwealth and a free 
 people. 
 
 CHRONOLOGY OF THE BOSTON GOVERNMENT. 
 
 1628-9, March 4-14. — Massachusetts Colony charter. 
 1630, Sept. 7-17. — " Trimontaine shalbe called Boston." 
 
 " -1634. — Earliest officers appointed: Constables, watchmen, sur- 
 veyors of highways(?) 
 
 " — Municipal and calendar years begin in March. 
 1634. — Breed's and Long islands annexed to Boston. 
 
 " — Wharfinger chosen. 
 1635-6, March 3. — Quarter courts established. 
 
 " " — General charter of towns. 
 
 1636, Aug. 15. — Water bailiffs chosen (shore police). 
 
 " Nov. 15. — Hogreeve chosen. 
 1636-7, March 9-19.— East Boston annexed. 
 
 1641. — Town recorder (called town clerk in 1692-3, imder 1 Prov. L. , 
 65). 
 
 ' ' — Town treasurer. 
 1643. — -Selectmen first called by that name in the town records. 
 
CONSTITUTIONAL HISTORY. 167 
 
 1645. — First annual election of selectmen. 
 
 1647-8. — Sealers of leather chosen. 
 
 1649-50.— Clerks of the market chosen. 
 
 1650. — Sealer of weights and measures appointed, 
 
 1653-3. — Packer of flesh and fish chosen, 
 
 1655. — Corders of wood chosen, 
 
 " — General Court authorizes appointment of sworn measurers of 
 corn, wood, and boards. 
 1659. — -Moderator for town meeting. 
 1660. — ^Almshouse ordered by town. Built north of Common. 
 
 " — Fence viewers authorized by Massachusetts, code. 
 1668-4. — Cullers of fish chosen; also, of staves. 
 1665-6. — Measurer of salt chosen, 
 1667-8. — Scavengers chosen. 
 1677. — Tithingmen to be appointed (police). 
 1690-1, March 9. — Overseers of poor chosen. 
 1691, October 7. — Massachusetts Province charter. 
 1693, November 16. — General town charter from the Province. 
 1694. — Assessors first chosen. 
 1699-1781. — Superior Court of Judicature. 
 
 " -1783. — Province Court of Common Pleas. 
 
 " -1833. — Court of sessions. 
 1705. — Brookline set off from Boston. 
 1710. — Appointment of hay weighers required. 
 1711. — Appointment of firewards authorized. 
 1713, February 1. — Firewards appointed. 
 1713 and 1715. — First division of town into eight wards. 
 1718. — Quarantine transferred to selectmen. Hospital at Spectacle 
 
 island. 
 1733-1857 (?)— Assay masters (for distilleries). 
 1734-5-1850. — Surveyor of hemp and flax. 
 1735. — Establishment of twelve wards. 
 1737-1849. — Quarantine hospital at Rainsford island. 
 1738. — Hay weigher appointed. 
 1739. — Hay scales built at South End. 
 
 " — Chelsea set off. 
 1743, December 37. — First town meeting in Faneuil Hall. 
 1745-1834. — Firewards elected by the people. 
 1763-1775. — Wardens (Sunday police). 
 
168 BOSTON. 
 
 1764. — Deer reeves (to enforce close season). 
 1772. — Overseers of the poor incorporated. 
 
 " — Lamp department authorized. 
 1776, March 5. — Boston town meeting at Watertown. 
 
 " July 4. — Declaration of Independence. 
 1780. — Massachusetts State Constitution. 
 1781. — Superior Court of Judicature changed to Supreme Judicial Court 
 
 of the Commonwealth. 
 1782-1821.— Court of Common Pleas (not for Suffolk County 1814-21). 
 1786, March 23. — General State charter for towns. 
 
 " June 17. — Charles-river bridge dedicated. 
 
 " — Inspectors of the policfe authorized by town code. Four police 
 officers appointed. 
 1789, October 20. — First School Committee chosen. School Committee 
 of 21 members 1789-1835. 
 
 " — Constitution of the United States. 
 1793.— Norfolk county set off from Suffolk. 
 
 " November 23. — West-Boston bridge dedicated. 
 1799-1821. — Board of health, chosen in wards. 
 
 ' ' — Quarantine transferred from selectmen to board of health. Port 
 physician (or resident physician) appointed. 
 
 " — Ward clerks first chosen. • 
 1800-1859,— Municipal court (with jury). 
 
 " — Town attorney. 
 1801. — Inspection of lighters, or boats carrying stone and gravel. 
 1802. — Almshouse, including bridewell and workhouse, removed to 
 Leverett street. 
 
 " — Assistant assessors first chosen, in wards. 
 1804. — South Boston annexed. 
 
 1806. — Second establishment of twelve wards (see 1735 and 1822). 
 1810. — Inspectors of stone lime. 
 1814-21. — Town court for stimmary trial of petty causes. 
 
 " " — Boston Court of Common Pleas. 
 1816. — Weighers of beef. 
 1818-1855. — Primary-school committee. 
 1821-59. — ^Massachusetts Court of Common Pleas. 
 1822, February 23. — The city charter signed. 
 
 " — Third division into twelve wards (see 1806 and 1838). 
 
 " April 8. — First city election. 
 
CONSTITUTIONAL HISTORY. 169 
 
 1822, May 1. — Inauguration of the city government: Mayor, eight 
 aldermen, forty-eight common councilmen. 
 
 " May 1. — The city assumes county rights and duties. 
 
 " — Wardens, to preside at ward meetings. City elections to be 
 held on second Monday in April. 
 
 " — Police court established. Court of sessions abolished. 
 
 " -1875. — Office of the city and county treasurer and collector 
 united. 
 1823-25. — Fiscal years end on May 31. 
 
 " -51. — Jail in Leverett street. 
 
 " -28. Josiah Quincy mayor. 
 
 " — House of industry at South Boston; occupied in 1825. 
 
 " — City marshal appointed (chief of police). 
 
 " July 31. — Mayor Quincy recommends the extension of Faneuil 
 Hall Market. 
 1824. — House of correction, nine directors. 
 
 " — Board of health superseded by city government. 
 
 " -49. — Superintendent of burial grounds. 
 
 " August 2. — Office of auditor established.. 
 1825. — House of reformation at South Boston, nine directors. 
 
 " — City elections to be held on second Monday in December. 
 
 " May 23. — Office of superintendent of streets established. 
 1826. — Municipal year begins on first Monday in January. 
 
 " — Firewards abolished. Chief engineer of fire department. 
 
 " -1891. — Fiscal years begin on May 1. 
 1827. — City solicitor. 
 
 " Quincy market dedicated. 
 
 " -1870. — Committee for the reduction of the city debt. 
 1828, November 3. — First superintendent of bridge. 
 1830, September 17. — Old State House occupied as City Hall. 
 1831. — Property of Suffolk County vested in Boston. 
 1833. — Surveyor-general of lumber. 
 1834-1880.— Superintendent of public lands. 
 
 1835. — Railroads to Providence, Worcester, and Lowell completed, 
 1836-1854. — School Committee of twenty-six members, 
 1837-1839. — Mayor Eliot in office. 
 
 " -1891. — Superintendent of sewerS. 
 
 " -1848. — Superintendent df alien passengers, 
 ?3 ■ 
 
170 BOSTON. 
 
 1838. — Appointment of Boston police officers authorized, by General 
 Court. 
 
 " — Fourth division of Boston into twelve wards (see 1822 and 1850). 
 1839-1844.— City attorney. 
 1839. — Lunatic-hospital established. 
 1840. — Superintendent of public buildings. 
 
 " July 19. — Arrival of the first Cunard S.S., the " Britannia." 
 1841. — Superintendent of Common (see 1870). 
 
 " — Railroad to Albany completed. 
 
 ' ' — Measurer of upper leather. 
 
 " — County Court House, School street, changed to City Hall. 
 1844-5. — Eight trials to elect Thomas A. Davis mayor. 
 1847. — Mayor and aldermen authorized to make penal orders. 
 
 ' ' — Harbor master. 
 
 ' ' — Inspector of hay. 
 1848, October 25. — Introduction of Cochituate water celebrated. 
 1849. — Registry department. 
 
 " — City physician. 
 
 " — Coal weighers. 
 
 " -1866. — Quarantine hospital at Deer Island. 
 
 " — Cochituate water board and water registrar (see 1876). 
 1850. — City engineer. 
 
 " — Truant officers. 
 
 " — Second assistant assessors. 
 
 " — Fifth division into twelve wards (see 1838 and 1865). 
 1851. — Surveyor of marble. 
 
 ' ' — Superintendent of schools. 
 
 " — Jail in Charles street. 
 
 " — Electric fire alarm introduced. 
 
 " — Railroad to Montreal completed. 
 1852. — Library department. 
 
 " — Superintendent of markets. 
 
 " — City messenger department. 
 1853-1891. — Superintendent of health (of street cleaning or sanitary 
 
 police). 
 1854. — Plurality to decide in municipal elections, 
 
 ' ' — Roxbury police court established. 
 
 ;' —Police and watch departments tmited. 
 
CONSTITUTIONAL HISTOrV. lU 
 
 1854. — Amended city charter. Mayor receives veto power. Number 
 
 of aldermen increased from eight to twelve. 
 1855. — -Chelsea police court established. 
 
 " -1856. — County physician. 
 
 " -1859. — Sviperior Court for Suffolk county. 
 
 " -1875. — School committee of seventy-four members. 
 
 " — Half the cost of new sidewalks borne by the city. 
 1856. — Clerks of the Supreme and Superior Courts, district attorney, 
 sheriff, register of probate, and commissioners of insolvency 
 elected by the county voters. 
 1857. — Five trustees of Mount-Hope cemetery. 
 
 " — Reformatory and charitable institutions at South Boston and 
 Deer island united under twelve directors. 
 1858. — Clerk of committees. 
 1859. — Superior Court established. 
 
 " — Inspector of milk. 
 186'^. — Hospital department. 
 
 " — Charlestown police court established. 
 1863-1865. — City oflfices at Mechanic building, Bedford and Chauncy 
 streets. 
 
 ' ' — Weighers of boilers and heavy machinery. 
 1865. — Sixth division of Boston into twelve wards (see 1850 and 1876). 
 
 " — September 17. — New City Hall in School street dedicated. 
 1866. — Municipal Court established ; police court abolished. 
 
 ' ' — Betterment law passed. 
 
 " — Quarantine hospital at Gallop's island. 
 1868.— Roxbury annexed. 
 
 " — Surveying department. 
 1869. — Inspection of petroleum. 
 1870.— Dorchester annexed. Municipal court of Dorchester district. 
 
 " — Board of street commissioners. 
 
 " — Ferry department. 
 
 " — Superintendent of Common and public grounds (see 1841). 
 
 " — Department of sinking funds. 
 
 " -1887. — Cedar-Grove cemetery. 
 1871. — Inspector of buildings. 
 
 " — Commissioners of Charles bridges. 
 
 ' ' —Superintendent of printing. 
 1872.— Board of health. 
 
172 BOSTON. 
 
 1873. — City elections held on Tuesday after second Monday in Decem- 
 ber. 
 
 ' ' — Inspector of provisions. 
 1873. — Board of fire commissioners. 
 
 " — Appointment of truant officers by School Committee. 
 1874. — Charlestown, West Roxbury, and Brighton annexed. 
 
 " — Municipal (district) courts established at East Boston, South 
 Boston, West Roxbury, and Brighton. 
 
 " — Board of registrars of voters. 
 
 " -76.— (Fiscal year). The city received $12,176,436.08 in taxes. 
 1875-1878. — Liquor license commissioners. 
 
 " -1892. — Department of record commissioners. 
 
 " — Municipal debt limited by law to 3 p. c. of property taxed. 
 
 " — A new charter proposed by Mayor Pierce's commission, 
 
 " — School Committee reorganized. Supervisors. 
 
 " — Three common councilman elected from each ward. 
 
 " — Collecting department. 
 
 " — Park department. 
 
 " — City architect. 
 1876. — Boston water board, in place of Cochituate and Mystic water 
 boards. 
 
 " -1893. — Boston has twenty-five wards, unchanged. 
 
 " -1885. — School Committee of twenty-five members. 
 1878. — Precincts established for voting purposes. 
 
 " — Probation officers. 
 
 " -1886. — Police commissionersj appointed by the city. 
 1879. — Women receive the right to vote for School Committee. 
 1880. — Inspector of vinegar. 
 1881. — Corporation counsel. 
 1884. — Civil-service law for State and cities. 
 
 " -1892. — Aldermen elected by districts. 
 
 " — Mayor Martin's commission recommends charter amendments; 
 three reports. 
 1886. — Boston board of police, appointed by the State. 
 
 ' ' — Charter powers recast ; city council deprived of executive func- 
 tions ; mayor's power increased. School Committee of twenty- 
 four members. 
 
 " ■ — Debt and tax limit for Boston. 
 1886-1891. — General superintendent of bridges. 
 
CONSTITUTIONAL HISTORY. 173 
 
 1886. — Fire marshal, appointed by the State. 
 1888. — Weigher of salt water fish. 
 1890-1891. — Inspector of wires. 
 1890. — Art commission. 
 1891.— Board of Survey. 
 
 ' ' — Superintendent of ferries replaces commissioners. 
 
 " — Sewer, bridge and sanitary police departments placed under 
 superintendent of streets. 
 
 " April 30.— Net debt of city $31,34:2,638.47. 
 1892. — Fiscal year begins on February 1. 
 
 " — Common council has seventy-five members, three from each 
 ward. 
 
 " -93 (fiscal year).— Municipal expenditures, $21,300,66-5.04. 
 
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