England appeared the house-lots or village mark, the common fields for cultivation, the common meadows and pastures, and the undivided mark or waste.1 And, as in ancient times, when a new tract was taken possession of by a community, a portion of it, to be held in severalty, was apportioned by lot among its members, usually according to the "proportion of estate" and the "number of heads" in each family.2 Several other interesting features of primitive Teutonic life were reproduced in the New World. Such, for instance, was the jealous watchfulness with which the community sought to control its own membership and the disposal of communal rights. Restraint was put upon the alienation of the "house lots," particularly to strangers, though these lots were theoretically granted in severalty. This was entirely consistent, since all common rights in the outlands were usually conveyed with the individual holdings within the town.3 This right of control, generally exercised by the New England towns, was practically equivalent to the Vorkaufsrecht or right of preemption prevailing in the European Mark-societies.* The town records contain many orders relating to the sale of private holdings; and fines for selling to strangers without permission were frequently imposed. For example: "It is agreed that if any man shall desire to sell his part of impaled ground, he shall first tender the sale thereof to the town inhabitants interested, who shall either give him the 'The system of common cultivation and common ownership of lands, however, was not entirely extinct in England and would there survive for a century to come: Stubbs, Const. Hist. I, 84. 2 The plan in New Haven: see Levermore, 81. This was perhaps most common, but various other methods were adopted. See Eggleston, The Land System of the New England Colonies, 42 ff., 52. This was the rule in the German Marken: Maurer, Einleitung, p. 147. See Maurer, Dorfverfassung, I, 320, cited by Eggleston, 49, who has discussed this topic. See also Maurer, Einleitung, 157: sale must be public and each Genosse had Naherrecht or right of pre-emption. Cf. Ib., 205 f. charge he hath been at, or else to have liberty to sell it to whom he can."1 In 1669 the town-meeting of Wenham decided that—" All o' Comon shall be eaqually Deuided betwixt the Settld Inhabitants in the towne viz. to the Dweling houses now inhabitants by Equall p'tons to be & Remaine to the Vse of such Habitatons alwayes p'uided that no p'son nor any after him in his right fenc in his or theire p'priety for pasture, but shall ly open to the Vse of the publique for feeding, only that which is Capeable of Breakeing Vp or makeing medowe, which may be fened in at Eury mans descreton nor shall any p'son or p'sons in o' towne have liberty or any after them in his or their right to sell or Conuey any such theire portons to any p'son without the Consent of the towne from time to time." 2 As a rule the right to control the alienation of lands belonged to the towns; but in Connecticut the principle of local pre-emption was enforced by an order of the general court.3 In many of the New England village communities arose, in the course of time, a sharp distinction between the "proprietors" or "commoners" and the "new comers" or "non-commoners." The latter were usually admitted as "inhabitants" of the town and possessed full political rights, but were denied a share in the common lands which were monopolized by the former, and this led sometimes to a protracted struggle on the part of the plebeian non-commoners to wrest from the 1 Records of Cambridge, from Paige's Hist. of Cambridge, 10. See other similar orders, Ib., 20, 40. "Town Records of Wenham in Coll. Essex Inst., XX, 142. See also Dorchester Records, 8; Boston Town Records, 1634–60, pp. 10, 11, 12, 97, etc.; and other examples in Eggleston, 49–59; and Levermore, 79, 105. 3 Conn. Col. Rec., I, 351, cited by Eggleston, p. 49. In Massachusetts the question was raised in 1637, but no action seems to have been taken: Mass. Col. Rec., I, 201. In Rhode Island alienation of land to persons of another jurisdiction was forbidden: R. I. Col. Rec., I, 126, 401. patrician land owners a share in the public domain. In these two classes we at once recognize the Märker or Genossen as opposed to the Ausmärker, Uthmanne, or Beisassen of the German mark societies.2 3 Equally interesting was the recurrence in the New World of the Mutter and Filialdörfer of which so many interesting illustrations have been given by von Maurer. Everywhere companies of pioneers were constantly separating themselves from the parent town, either to seek homes in other jurisdictions, or to plant new settlements in their own outland; the latter communities, for a time, usually occupying a subordinate position.* Finally the archaic type of New England Society is revealed by its astonishing publicity. The majority in town-meeting assembled, or through their representatives in the general court, exercised a supervision over personal conduct and many of the transactions of private business, almost painfully minute; witness the marvelous subdivision of public duties and the incredible number of local functionaries. Though this social Notably in Salem: see Dr. Adams' Village Communities, 63–79. Cf. Eggleston, 40. See also an order of the Boston town-meeting, 1646, granting all inhabitants at that time equal rights of commonage, but denying such rights to those admitted as inhabitants thereafter: Boston Records, 1634-60, p. 88. 2 Also styled Ausleute, Uthmarkesche, Buterleute, Ausholzer, Unholte, etc. See Maurer, Markenverfassung, 115-24; Einleitung, 1; Dorfverfassung, I, 135-88; II, 43-44; Laveleye, Prim. Prop., 120. 3 Markenverfassung, 16-19; Einleitung, 174-81. Thoroughly illustrated in the case of New Haven by Dr. Levermore. *Thus Boston long elected constables for Muddy River (Brookline) and Rumney Marsh: see Boston Town Records at minutes of annual elections, and an interesting sketch of Muddy River and its incorporation as an independent town--a "peculiar or village"-by name of Brookline, in 2 Mass. Hist. Coll., II, 145. The general court of Massachusetts often appointed the constables for new townships: Mass. Col. Rec., I, 76, 79, 96, 101. Plymouth chose constables for her daughter plantations: Plym, Col. Rec., I, 21, 36, 48, 54, etc.; cf. Dr. Adams' Norman Constables, 21 ff. The same right was exercised by New Haven: Levermore, 87-90. 'See below on the "Town officers and their functions." feature may have been intensified by the patriarchal or theocratic sentiments of the Puritans, still it was a remarkable reproduction of one of the most curious phases of old English life. For, "in the simple state of society which existed in the time of our Saxon forefathers, transactions between man and man were conducted with a publicity and openness of which we have no conception."1 II. RELATION OF THE TOWN TO THE GENERAL COURT. (a).—The Court was the Source of Authority. The tendency of legislation at present both in England and the United States seems to be toward a more careful and detailed definition of the functions of all local bodies. In our Western States, at least, it may be laid down as a general rule, that the powers of municipal corporations are exhaustively enumerated in the statutes. It becomes therefore a question of interest and importance to determine, if possible, to what extent the New England towns during the colonial era were the creatures of and dependent upon the general court. In the first place the grant of the territorial domain of the township was the act of the colonial authority. In Massachusetts, during the early period, committees were usually appointed by the court to "set out the bounds" of a new town; and similar committees were chosen to determine all questions of boundaries between different towns, or to locate grants of land made to individuals. Under the Province 1 Forsyth, Trial by Jury, 71-72. 5 2 In Plymouth such grants were made by the governor and assistants. See Plym. Rec., XI, 34–5. 3 For examples, see Mass. Col. Rec., I, 133, 102 (Dorchester), 157 (Concord), 168 (Charlestown), 173 (Newton); II, 4–5, 128. Cf. Paige, Hist. of Cambridge, 1 ff. * Mass. Col. Rec., I, 138, 149, 101, etc. See Mass. Col. Rec., I, 206, 217, 235, 278. In Plymouth all this business was usually transacted in the court of assistants. Countless examples in Plym. Rec., I. laws, however, townships were regularly incorporated by special acts assigning their names and defining their boun daries.1 2 At an early day the general court sought also to enforce the proper registration of deeds. Thus, in 1639, the towns of Massachusetts were granted a "respit" until the next court to bring in a transcript of their lands. In 1641 they were ordered to "set out their bounds wthin a twelue month after their bounds are granted." And in 1647 it was ordered that town boundaries should be determined by perambulation once in three years. Similar laws for the preservation of titles and boundaries were also enacted in Plymouth.5 The record of the creation of the township of Dedham furnishes an interesting case of special favors granted to a community. It was "ordered that the plantation to be settled above the falls of Charles Ryver, shall have three yeares immunity from publike charges, as Concord had, to bee accounted from the first of May next, & the name of the said plantation is to bee Deddam."6 The supervision of public ways was also exercised by the general court; and it seems to have caused a great deal of trouble in the early period. Peremptory orders requiring particular towns "to mend their wayes' were frequent, and fines were often imposed for neglect. In like spirit general police laws were enacted; such, for example, as those forbidding towns to entertain strangers or to sell them "any lot or habitation," without license; or 8 'Acts and Resolves, I, 174, 181, 184, 642, etc.; II, Index at "Towns." So also in Rhode Island: Arnold, I, 337, 364, 368, etc. 2 Muss. Col. Rec., I, 266. 'Mass. Col. Rec., I, 319. *Mass. Col. Rec., II, 210. Plym. Col. Rec., XI, 52, 63, 182, 187, 188, 216, 259. Mass. Col. Rec., I, 179. For the case of Concord see Ib., 157, 167. Rec., XI, 7, 18, 59, 106. * Mass. Col. Rec., I, 196; also 279-80; Plym. Rec., XI, 40–41, 110, 118. |