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 [or 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.‡

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.

† Pike, History of Crime in England, Vol. I, p. 58.

Stephen, Criminal Law of England, p. 10.

§ "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.

† Blackstone, Commentaries, Vol. I, p. 115.

for the support of the poor upon the householders of the parish.

In 1601, the date of the first great poor law of England, 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.

† Massachusetts Colony Records, Vol. I, p. 87.

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.†

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.‡

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

p. 37.

*

Body of Liberties, 1641; Massachusetts Laws, 1660-1672 (Whitmore edition),

† Boston Town Records, 1634-1660, p. 88.