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ingham, in the County of Middlesex, Esq., Edmund Heard, late of Worcester, in the County of Worcester, Esq., Ebenezer Torrey, late of Boston, in the County of Suffolk, gentleman; William Stedman, late of Cambridge, in the County of Middlesex, Esq., Merrick Rice, late of Brookfield, in the County of Worcester, gentleman, Joseph Wales, late of Braintree, in the County of Suffolk, gentleman, who have lately come into this town for the purpose of abiding therein, not having obtained the town's consent therefor, that they respectively depart the limits thereof, with their children and all under their care within 15 days.
Upon reading these records, we are naturally led to inquire why these persons were thus summarily notified to leave their homes and depart out of the towns in which they lived. The notices themselves give no reason, and there was no reason in the character of the persons, why they should be thus treated. My greatgrandfather was a good soldier, a devout Christian, and a peaceable citizen. Joseph Bellows was a distinguished soldier, a charming man, and an excellent citizen. He had moved from Walpole, New Hampshire, across the Connecticut River, to Rockingham, Vermont, to a new farm, and was a desirable addition to the population of the town. Henry A. Bellows, one of the persons named among his children, and warned out, was Henry Adams Bellows, who became an eminent lawyer, and was for many years the chief justice of the State of New Hampshire. The persons named in the Lancaster warrant were all desirable and excellent citizens. Obviously, none of these were persons whom the citizens desired to have depart out of their towns. Why, therefore, were they thus summarily warned to depart? What was the reason of this apparently extraordinary and unjust treatment of these persons? The treatment was, of course, authorized by law; but why was there such a law? What was the reason for it?
To answer that question intelligently requires an examination of the principles of law and custom underlying the establishment of towns in New England, and of the rights and obligations of their inhabitants. This requires us also to ascertain the law and the custom with regard to municipalities in England, from which the early New England settlers came. They brought with them the customs and the laws of their forbears in England as a part of themselves, and they necessarily developed the government of their towns on the principles of the municipal English common law. No people can break from their past. Bands of custom and heredity, invisible as they may be at times to all but close students of history, bind every generation of men to their historic past. The fundamental principles of the laws and the customs of the people of New England can be traced step by step to the laws and customs of ancient England and Germany, and even to the remote villages of the Aryan East. As has been finely said by an eminent scholar and jurist of our own day,
When we touch to-day, even in our frontier settlements, the electric chain wherewith Providence hath bound the ages and the generations of men together, we discover that we are in historic communion with rude and remote ancestors although separated from us by seas, mountains and centuries.*
History is like a stream in which every particle affects the condition and the flow of every other particle. It is this historic continuity that gives the study of history its chief charm to the philosophic mind. The early settlers of New England did not, as has sometimes been said, break with their past. They could not have done so. They necessarily brought with them the ancient and fundamental prin
* Dillon, Municipal Corporations, Vol. I, p. 23.
ciples of the English law, one of which was that the inhabitants of a municipality were responsible for the conduct and support of each other, each for all and all for each.
The right of inhabitancy, sometimes called the freedom of the community, existed in the Teutonic townships. Palgrave says:
The earliest notices respecting the Teutonic Townships are to be collected from the laws of the Salic Franks. A “Villa” was entirely the property of the inhabitants, and no stranger could settle within its boundaries, unless with the consent of the whole incorporation. Any one individual Townsman could forbid the entrance of the new colonist upon the common fields of the Sept. If, after three warnings had been given, and thirty nights had elapsed, the intruder continued contumacious, he was summoned to the “Mallum" or Court; and in default of appearance, the “Gravio” (Mayor) proceeded to the spot, and by force expelled the occupant from the purpresture which he had made. But it is important to remark, that the freedom of the community might be legally acquired by an uncontradicted residence; for if the stranger remained in the Township, without challenge, during twelve months, he was from thenceforth allowed to dwell in peace and security, like the other neighbours of the community.*
From this custom came the fundamental principle of the ancient law of England, that every place where people lived must be a free community or settlement, every member of which was answerable for the good conduct of, or the damage done by, any one of the other members. This obligation was termed "frankpledge,” later “peacepledge." Bracton says:
Every man, whether free or a serf, either is or ought to be in frankpledge or in somebody's household unless he be somebody itinerant from place to place, who does not keep himself to one more than to another, or who has something which suffices for a frankpledge, as a dignity or an order or a free tenement or real
* Francis Palgrave, Rise and Progress of the English Commonwealth, London, 1832, Part I, p. 83.
property in a city. . . . Every person who has land and house, who are called “householders,” ought to be in frankpledge, and also others who serve them, who are called "followers.” He is of the household and family of any one who has food and clothing from him, or who has food only with wages such as are the domestics or servitors and hirelings of the house.
Likewise according to ancient custom he may be said to be of any one's family who has dwelt in the house of another person for three nights, because on the first night he may be termed uncuth (unknown] but on the second gust (i.e., guest] on the third night hoghenehgue for his own hind.)*
Upon this obligation to be in frankpledge, all freemen below a certain rank in England were, after the Danish conquest, required to be numbered in groups of ten, called tithings, and each member of a tithing made responsible for the good behavior of every other member. †
This responsibility was at first, by custom only, for a payment in money to the persons injured by crime, or to his relatives in case he was killed, and for a fine to be paid to the king as a punishment for the crime. I
From this communal responsibility, and from the division of land under the feudal system, as perfected and extended throughout England after the Norman conquest, the civil institutions and the law of England were developed.
The local and municipal development of government in England was: first, from the hundred; second, from the tithings; third, from the parish, or ville, or town. The parish was originally intended for secular purposes
* Bracton, De Legibus Angliæ, edition 1879, Vol. II, p. 307.
§ “Of all the feudal services enforced by the Normans, there is not perhaps one of which some obscure trace may not be discovered among the Anglo-Saxons.” Lingard, History of England, Vol. I, p. 488 (5th edition).
only, and was responsible for the maintenance of the public peace and for the support of the poor.*
In 1628 Lord Coke defined a town as follows:
It cannot be a town in law, unless it hath, or in past time hath had, a church, and celebration of divine services, sacraments and burial.
Blackstone in 1765 said,
Tithings, towns or villes, are of the same signification in law; and are said to have had each of them, originally, a church and celebration of divine service, sacraments and burials, though that seems to be rather an ecclesiastical than a civil distinction. A later English writer says,
The township is now known by its ecclesiastical name of parish, and the shire by its Norman name of county, but the old identity is still preserved, and the institutions themselves are as much alive today as they were a thousand years ago.
Again the same writer says:
The original unit of settlement among the Saxons in England was the tun, now town. This meant simply an enclosure surrounded by a wall or hedge, and the township was merely the area claimed by the town.
In the process of the English civil wars responsible local government practically disappeared, and in the general break-up of local conditions a question of very great magnitude arose, which was the relief of the poor. There was no local machinery available for this and it was taken up by the parish, which became the poor-law unit; that is, the church assumed the duty of looking after the poor, which had always been one of its primary duties, and hence the poor-law officials were elected by the parish vestry, which levied taxes
* Toulmin Smith, The Parish, pp. 16, 44, 45.