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for the support of the poor upon the householders of the parish.
In 1601, the date of the first great poor law of Eng. land, the parish or township began to revive as the machinery of local government and highways, bridges, drainage, police, education, and other local matters became parochial, and the old powers of the town meeting were resumed. *
It was upon this foundation of English affairs that the settlers of New England constructed their town or local governments.
Inhabitancy and “warning out” in the New England States were so connected that neither can be intelligently considered without examination of the other.
The theory of the early settlers with regard to inhabitancy was thus stated in the beginning:
If we here be a corporation, established by free consent, if the place of our co-habitation be our own, then no man hath right to come in to us without our consent.
Inhabitancy, or the right to live in a town as one of its inhabitants, did not necessarily include the right to vote in town affairs, nor was it always dependent upon the ownership of land. For instance, in the Massachusetts Colony the right to vote was confined by colony ordinance in 1631 to those inhabitants who were in full church communion, which put the government into the hands of a minority of the male inhabitants. †
In Plymouth and in Connecticut the franchise was given by vote of the freemen of the towns, but the candidate was required to be “of sober and peaceable
* Jenks, English Local Government, pp. 11, 19, 23, 28.
conversation, orthodox in the fundamentals of religion and to have at least twenty pounds of rateable estate.” *
It is true the word “inhabitants” was sometimes used as though it meant persons entitled to vote, as where the record speaks of a town meeting as a general meeting of the inhabitants, but I use it here as meaning simply persons who had been, by some general law or by the action of the town itself, admitted to be permanent residents in the town. This right of inhabitancy included by the common law of England the right to be supported by the town, if the inhabitant became unable to support himself. In other words, a legal inhabitancy comprehended a legal settlement, which in England could be acquired by residence in a place for a required period, originally forty days.t
This responsibility of municipalities for the proper conduct and for the support of their inhabitants, when they were unable to support themselves, properly implied the right to exclude from inhabitancy persons for whose conduct or support they did not desire to become responsible. In this is found the effective meaning of “giving the freedom of the city”; that is, the right to inhabit or dwell in the city. This also is the origin of the liability of municipalities for property destroyed in riots, which still exists by statute in many cases. I
It is probably also the origin of the common law of the New England States, derived from immemorial usage, that the estate of any inhabitant of a town is liable to be taken in execution on a judgment against the town.
* Plymouth Colony Laws (Brigham edition), 1671, p. 258; Connecticut Colony Records, Vol. I, pp. 290, 297, 331, 389, 417.
† Blackstone, Commentaries, Vol. I, p. 362.
General Laws of Rhode Island, 1909, Chap. 344, Sect. 10; Massachusetts Laws, 1839, Chap. 54, Sects. 2, 3; Revised Laws of Massachusetts, Chap. 211, Sect. 8.
$ Hill v. Boston, 122 Mass. 349; Beardsley v. Smith, 16 Conn. 368.
This right of the towns to exclude from inhabitancy within their limits was undoubtedly exercised in the New England Colonies of New Plymouth, Massachusetts Bay, Connecticut, and even in Rhode Island, for the purpose of keeping out persons whose religious or political opinions were unsatisfactory to the towns. But the reason for the existence of this right was that inhabitancy, or the right to live in a place, always imposed upon the inhabitants of the place responsibility for the good conduct and support of the inhabitant.
The right to live in a town was then understood to imply a right to have land upon which to live, and therefore, when towns admitted persons to be inhabitants, they impliedly agreed to allot to them land upon which they could live as inhabitants from the town lands, and to give them the right of commonage in the common lands of the town. This also carried with it the right of free fishing and fowling in the great ponds and in the rivers and tidal-waters within the limits of the town.* In some cases, however, this right of commonage was restricted by the town in case of new-comers. In Boston it was ordered on May 18, 1648, at a town meeting that all inhabitants who had been admitted by the townsmen should have equal “Rights of Commonage in the towne,” but that no one who should thereafter come to be an inhabitant in the town should have “right of Commonage” “unlese he hier it of them that are Commoners.”+ In Dorchester on January 18, 1635, it was ordered that all the hoame lots within Dorchester Plantation which have bene granted before this p’sent day shall have right to the
* Body of Liberties, 1641; Massachusetts Laws, 1660–1672 (Whitmore edition),
† Boston Town Records, 1634–1660, p. 88.
Commons and no other lotts that are graunted hereafter to be commoners: Also that Two men shall not Common for one hoame lott.*
At first it was not the practice to admit persons as inhabitants to whom the town could not allot lands upon which they could live. But it soon became the practice to admit them, provided they could, with the consent of the town, purchase land of other inhabitants to whom land had previously been allotted. The New England colonists not only had the Saxon attoritie greed for land, but their government was based upon . . the ownership of land, so far as possible, by all the inhabitants. They believed, and rightly, that nothing was so sure to give people an interest in sound and stable government as the ownership of their homes. They sought therefore to secure in some way. to all the inhabitants of the towns an ownership in land, either by giving them lands owned by the towns or by requiring them to purchase lands in the towns before they became inhabitants. It will be seen therefore that a knowledge of inhabitancy in the early New England towns, and of the obligation of the inhabitants for the good conduct and support of each other, requires some reference to the origin of land titles in New England.
The basis of these titles was a grant from the English Crown. It is true that deeds of land were taken from the Indians, and that they were upheld by the Colonial Courts in some cases.f
It is also the fact that the original title taken by the settlers or planters of Rhode Island was by Indian grants, and that the early settlers of Connecticut also purchased their lands from the Indians in the
* Dorchester Town Records, p. 14. † Sullivan, Land Titles, p. 43.
first instance. But in all these cases crown grants were afterwards obtained, and the colonies also passed acts with regard to the purchase of land from the natives without license from the colonies themselves, declaring all Indian deeds taken without such license to be
It should be remembered, however, that the crown grant was not a grant by the English government, but solely by the King.
It has always been the theory of the English law that discovery and possession of a new country gave a valid title to its land, subject to the natural right of the natives to protection, but with no right in the natives to dispose of the land to anybody else. Under this theory the Crown was the absolute owner of the land, and could dispose of it and provide for the government of it at its discretion. For instance, grants could be made by the Crown without regard to the law of England, as was done when Charles I. authorized the grantees of land in Maryland to erect manors, anything in the statutes of quia emptores to the contrary notwithstanding. †
It was upon this theory of the right of the Crown, based upon the discovery by the Cabots in 1497, and the subsequent taking formal possession by Sir Humphrey Gilbert in 1583, that the land titles of the New England Colonies were founded. The crown grants of land carried with them the right to extinguish the Indian title as a matter of course, but that title was recognized as a right of occupancy. For instance, when in 1662 the town of Dedham and
* Connecticut Colony Records, Vol. I, pp. 214, 364, 402; Massachusetts Records, Vol. I, p. 112; Plymouth Colony Records, 1634.
† Hazard, State Papers, Vol. I, p. 335; Kent, Commentaries, Vol. III, p. 379 et seq.