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(Reprinted from the Massachusetts Law Quarterly for February, 1919)

THE REPRESENTATIVE TOWN MEETING

IN MASSACHUSETTS

Discussions reprinted from the "Massachusetts Law Quarterly,"

Volume IV., Number 3, for February, 1919, together with the advisory

opinion of the Supreme Judicial Court given on May 13, 1918, in

answer to questions submitted to it by the Massachusetts Senate (reported

in 229 Massachusetts Reports, page 601).

CONTENTS

PAGE

THE PRESIDENT'S ADDRESS AT THE ANNUAL MEETING OF THE MASSACHUSETTS

BAR ASSOCIATION, DECEMBER 7, 1918, ON "THE REPRESENTATIVE TOWN

MEETING IN MASSACHUSETTS"

Arthur Lord,

49

NOTE ON THE EFFECT OF THE ADVISORY OPINION OF THE JUSTICES

DISCUSSION OF THE SUBJECT OF THE ADDRESS BY ALFRED D. CHANDLER

COMPARATIVE TABLE OF BONDED NET DEBTS OF STATES AND TERRITORIES

DISCUSSION OF THE PLAN AS APPLIED TO CITIES, Етс.

75

77

92

93

APPENDIX

QUESTIONS SUBMITTED BY THE MASSACHUSETTS SENATE TO THE JUSTICES OF

THE SUPREME JUDICIAL COURT

OPINIONS OF THE JUSTICES OF THE SUPREME JUDICIAL COURT IN ANSWER TO

THE QUESTIONS

I

VIII

INTRODUCTORY STATEMENT

The address of the President of the Massachusetts Bar Association

at the annual meeting, on December 7, 1918, on the subject of "The

Representative Town Meeting in Massachusetts" and the discussion

which followed it as printed in Volume IV., Number 3, of the "Massa-

chusetts Law Quarterly " for February, 1919, has attracted so much

interest in different parts of the state that the discussion is reprinted for

distribution to libraries and to persons interested in the practical prob-

lems of town government.

For the purposes of convenience, an appendix has been added contain-

ing the questions submitted by the Massachusetts Senate to the justices

of the Supreme Judicial Court, and the answers of the justices to those

questions in the spring of 1918.

The effect of this advisory opinion of the justices is explained in the

note on page 75.

Copies of the pamphlet may be obtained without charge from the

undersigned.

F. W. GRINNELL, Secretary,

At the annual meeting of the Massachusetts Bar Association in Boston on December 7th, 1918, the following address was delivered by Arthur Lord, Esq., President of the association.

THE PRESIDENT'S ADDRESS.

THE REPRESENTATIVE TOWN MEETING IN MASSACHUSETTS.

I have selected as the subject of my address "The Representative Town Meeting in Massachusetts under the Constitution and the Recent Advisory Opinion of the Supreme Judicial Court, Reported in 229 Mass. 601."

I advisedly used the term "Representative Town Meeting" rather than "Limited Town Meeting," as it is sometimes called, for its distinctive feature is that of representation.. In its operation it slightly limits, if at all, the number of persons who usually take part in the deliberations of the town meeting. In practise it will be found that the entire community is better represented by a town meeting whose members are elected by the qualified voters, representing all sections and occupations in the town, than by the relatively few who by reason of interest or because of leisure attend the deliberative meetings of the town.

A word at the outset as to the origin of these New England towns, a subject which has attracted so much intelligent and learned discussion and which the limits of this address make it impracticable for me to consider in detail. Briefly stated (49)

the three theories in respect to the origin of the New England town are as follows:

First, That it was native to the soil, planted by English emigrants, with the instincts, traditions, and methods of their race, but controlled nevertheless by charters, patents, or royal commissions under conditions of situation and environment utterly unlike those which surrounded the emigrant in his English home.

Second, That they were copies of English prototypes, as those were of German, and they of those remote regions inhabited by the Aryan race, and that certain resemblances common to all are specific and conscious imitations rather than those forms and modes of actions which have arisen spontaneously in all ages and everywhere when men gather in bodies as village communities or as organized municipalities; and

Third, The theory that the New England towns are essentially reproductions of the English parish and their procedure that of the English vestry.1

After such consideration of the question and examination of authorities as I have been able to give it, I find myself led to adopt the first theory, namely, that these New England towns are in a fair sense of the word native to the soil, adapted from the beginning to the conditions and limitations which surrounded the English emigrant, and on the whole, meeting or anticipating every present and changing need, containing within themselves the possibilities of expansion, marked by numerous changes in officials, methods and purposes, dealing with great questions of public policy, matters of defence, relations to the outside world, and gradually narrowing till, as we find them at present, mainly devoted to questions purely local.

The beginning and development of a Massachusetts town is clearly stated in the Opinion of Gray, C.J., in Hill v. Boston, 122 Mass., pp. 344-349:

"At the first settlement of the Colony, towns consisted of clusters of inhabitants dwelling near each other, which, by the effect of legislative act, designating them by name and conferring upon them the powers of managing their own prudential affairs, electing representatives and town officers, making by-laws, and disposing, subject to the paramount control of the Legislature, of unoccupied lands within their territory, became in effect municipal or quasi corporations, without any formal act of incorporation."

The earlier towns in the Commonwealth appear not to have been originally incorporated. There were no distinctive town records in Plymouth until 1636, and the first reference to the Town of Plymouth was in that Court Order of 1633 which ordered the "Chief government tied to the Town of Plymouth." So in the Colony of the Massachusetts Bay, we find the first reference to the town in the Order of the Court of Assistants, held on the 22d of March, 1630, at Boston, which declared that

"Every town within this patent shall, before the fifth of April next, take especial care that every person within their town (except ministers and magistrates) as well as servants, shall be furnished with good and sufficient arms."

But it is a mistake to assume that these towns were never incorporated by law. In a letter of Governor Hutchinson to Colonel Williams, dated April 7, 1773,2 Gov. Hutchinson says:

"By a law made soon after our own charter and unfortunately allowed by the Crown, every town is a distinct corporation, and although their powers are limited to matters of public concernment to the town yet when the inhabitants are once assembled they take upon themselves all matters of government."

The act passed in 1694 (1 Province Laws 182) which made the town a corporation in law as well as in fact is probably here referred to by Governor Hutchinson. But "Soon after the adoption of the constitution of the commonwealth it was for