The func could not easily exercise as a body,—the laying out of lands which had been granted and some minor duties. tions of these officers were enlarged and continued under the government of 1647. Besides these offices other minor duties had been performed by men chosen by the town before the union of the settlements in 1647. The adoption of the "Code of 1647" served to formulate and render stable the forms of government already existing, while it rendered necessary still greater delegation of power. The offices of moderator, clerk, treasurer and town deputies might be said to be a continuation of those which were in 1647, in a measure, established though under different titles. Further delegation of power had not so clear a precedent to recommend it as had been found for the above. There had been a certain kind of police organization in the town before 1647. There was a regulation for raising a "hubbub." The "arbitrators" and "disposers" appointed under the agreement of 1640 were to exercise their authority to secure the public peace. The election of a constable is a long step in the direction of delegated power, yet the town seems to have taken this step soon after it became a chartered community. The constable seems to have been the especial police authority of the town. He had a general oversight of the order in the town. When an objectionable person is known to be within the limits of the town the constable usually brings such person before the court and if he is sentenced to be removed, the constable escorts the objectionable one to the borders of the next township where he entrusts him to the constable of that town. The authority of the constable does not seem to have been respected as the town desired at first, for in 1649 it was ordered "that the constable shall have a staff made him whereby he shall be known to have the authority of the Town's Constable." 1 While the constable was more especially the criminal officer 1 Town Records, 27 of 2 mo., 1649. of the town, the civil processes were not left unserved. These were entrusted to the town sergeant. Apparently this office was not established until after that of the constable, and it was a somewhat higher office, though their duties were not distinctly defined. The town sergeant was generally the executive officer of the meetings of the town, and at these his presence is required. A town order says, "he should be at every Towne Meeting, give his attendance upon the Towne Court." 1 He sometimes received some pay for his services. Occasionally he "warns the town meetings," and not infrequently his duties and those of the constable seem to be identical, but gradually they become more and more distinctly marked. 2 Among the other early officers appointed at Providence were the haywards, generally two in number. They were to view the fences and to settle disputes arising from neglect to keep up sufficient fences. Besides these duties strictly belonging to the haywards or hedgewards, they seem sometimes to have had the care of the woods upon the common and undivided lands, and occasionally the pound was also under their care. 3 There was a pound established at Providence as early as 1652. Doubtless the cattle had found some of the fences defective before this time. The haywards with nearly the same duties continue for many years. Under the Charter of 1643-4 and in accordance with an order of 1647 each town of "Providence Plantations" was to elect a Town Council to consist of six men, also to appoint surveyors of the highways and military officers and "to provide carefully for the relief of the poor, to maintain the impotent and to employ the able." Of this Town Council Callender says: “Each town chose a Council of six to manage town affairs, having trial of small cases but but with appeal to court of the President and Assistants." 4 Lechford says 1 Town Records, Book No. ii. Oct. 8, 1659. 2 Town Records, June 2, 1656; Oct. 27, 1656. 3 Town Records, 1652; Town Meeting Rec., No. 3, July 27, 1687. 4 Historical Discourse. 2 of New England in general, "every towne almost hath a petie court for small debts and trespasses under twenty shillings."1 The Town Court at Providence seems to have followed the New England model thus far, for in June, 1656, it is ordered that the Town Court "try cases under 408." Lechford also says that "Probates of Testaments and granting of Letters of Administration are made and granted in the generall or great quarter Courts." 3 The power of probate resided for a time in the head officer, who, together with the two town deputies and three men chosen by the town, made up the Council. Unlike those towns where the powers of probate resided in the "general or great quarter Courts," at Providence the Town Council itself was a kind of court of probate in which the assistant was judge. Chief Justice Durfee says, "The town councils of the several towns were from the first courts of probate." 4 The "Code of 1647" infers that it is the duty of a property-holder to dispose by will of his possessions, and if he fails to do this, the Town Council is to draw up a form of will in accordance with which it is to be divided. This function of the Town Council of Providence seems to have been exceptional. An entry in the town records shows that still other judicial powers were entrusted to the Council. It declares, "First, all actions, all cases shall be tried by six Townsmen as in the Nature of a Jury, yet with the Liberty of not being put on swearing.' Оссаsionally appeals are taken from the Council's decision, and the question is brought before the town meeting. The decisions were sometimes submitted to the town for confirmation." Ignorance of the law, in some instances, seems to have been 1 Plaine Dealing, p. 25. 2 Town Records, June 2, 1656. 3 Plaine Dealing, p. 39. 4 Gleanings from Judicial History of R. I., p. 32. 5 Town Rec., Oct. 8, 1655. 6 Town Rec., Oct. 1, 1657. a sufficient ground for acquittal in cases brought before this court. 1 Besides its judicial powers the Town Council seems, previous to 1563, to have had a general oversight in the care of the poor, to have regulated such military arrangements as the town undertook and to have granted licenses. Through the town deputies the Council was brought into a kind of advisory board for the laying out of lands and highways, and sometimes they considered the advisability of admitting to inhabitation such as had taken up their residence within the town limits. Through the assistant who represented the town in the General Assembly and was ex officio a member of the Town Council, this body was brought into closer relation to the general government and obtained a better knowledge of state affairs. Many matters requiring official action and not of sufficient importance to warrant the calling of a town meeting were left to the Council. The Town Council of Providence previous to the Charter of 1663, seems in a large measure to give the town interests a representation proportional to their importance. Although all the members of the Council were in the last analysis chosen by the inhabitants of the town, yet as members of the Council the assistant especially represented the interests of the state, the two deputies the interests of the proprietors, and the remaining three members the general town interests. The relative importance of state, landholders and people of the town would be, as shown in the Town Council, as one, two and three. It would be difficult to conceive how the settlers could have obtained a better system than this which they naturally evolved. TOWN GOVERNMENT UNDER THE CHARTER OF 1663. After the adoption of the Charter of 1663 the Town Council undergoes a change both in the interests represented and in its 1 Town Rec., July 4, 1655. functions. By the General Assembly it is ordered "That each towne is impowered to appoynt a day for election of ther towne officers and to elect as to chouse Towne Counsell men, so many as to make up sixe with the Assistants." The number of assistants which Providence was to send to the General Assembly was changed from one to three. Therefore the Town Council of Providence was to be made up of three state officers and three men chosen by the town to fill up the number to six. The two town deputies, who had been ex officio members of the Council, are no longer members of this body and cease to be elected. Until 1681 six was the usual number of councilmen. It was then increased to nine, thus giving the town interests twice as great a representation as those of the state. About this time the Council seems to have fixed upon a "sett time" for its meetings which were to be "upon Every first wensday in Each month for this ensueing yeare." While the Town Council retained the jurisdiction which it had before 1663, it gradually assumed new functions. Some of the power that had previously been exercised by the town deputies passed over to the Town Council. It now became the one probate authority, where questions were not referred to the town meetings. With an increase of population came an increase of public business which was more and more left to the Council. It now looks to the character of such as take up their residence in the town, and if necessary orders the constable or sheriff to present such persons. 2 The Council sometimes makes a form of will in cases where men die intestate.3 It interferes with matters before considered merely personal, though it is not suffered to extend its powers far in this direction. 4 By the act of March 1, 1664, the towns were empowered to choose in addition to this important department of town 1 Municipal Court Rec., Jan. 25, 1680, Mar. 25, 1678. 2 Municipal Court Records, June 17, 1682. 3 Municipal Court Records, May 27, 1680. Town Rec. June 18, 1698. • Town Meeting Records, No. 1, Feb. 20, 1700. |