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JOHNS HOPKINS UNIVERSITY STDDIBS

IN

Historical and Political Science

HERBERT B. ADAMS, Editor.

History is past Politics and Politics present History — /r««na»

VOLUME Vll

SOCIAL SCIENCE,

MUNICIPAL AND FEDERAL

GOVERNMENT

PUBUtHEO imOKR TMK AVtPICW OV THK JoHKl UOPKOIl UMIVKBUTV

N. Murray, Publication Aoknt

BALTIMORE

1889

COPTRIOHT, 1889, BT N. MURRAY.

JOmC MDRPHT A 00., PRINTERS.
/ /BALTIMORE.

n

TABLE OF CONTENTS.

PAOK.

I. Arnold Toynbee. By F. C. Montague, Fellow of
Oriel College. With an Account of the Work of
Toynbee Hall in East London, by Philip Lyttel-
ton Gell, M. A., Chairman of the Council. Also
an Account of the Neighborhood Guild in New
York, by Charles B. Stover, A. B., . . . 1

U-III. The Establishment of Municipal Government in San
Francisco. By Bernard Moses, Ph. D., Professor
of History and Politics in the University of Cali-
fornia, 71

• rV. Municipal History of New Orleans. By William

W.Howe, 156

V-VI. English Culture in Virginia. A Study of the Gilmer
Letters, and an Account of the English Professors
obtained by Jefferson for the University of Vir-
ginia. By William P. Trent, M. A., Professor
of History and English in the University of the
South, 189

VII-VIII-IX. The River Towns of Connecticut. Wethersfield,
Hartford and Windsor. By Charles M. Andrews,
Fellow in History, J. H. U., . . . .331

X-XI-XII. Federal Government in Canada. By John G.
Bourinot, Hon. LL. D., D. C. L., Clerk of the
House of Commons of Canada, .... 457

ARNOLD TOYNBEE

ARNOLD TOYNBEE
1852-1883

JOHNS HOPKINS UNIVERSITY STUDIES

IN

Historical and Political Science

HERBERT B. ADAMS, Editor

History ia past Politics and Politics present History— ^reenum

SEVENTH SERIES
I

ARNOLD TOYNBEE

By F. C. MONTAGUE

Fellov qf Oriel College, Oj/ord

With as Acxx)Unt op the Work op Toynbee Hall in East London,

BY Philip Lyttelton Gell, M. A., Chairman of the Council.

Also an Account of the Neighborhood Guild in

New York, by Charles B. Stover, A. B.

BALTIMORE

PUDUCATION AOK5CY OF TIIK JOItVS IlOPXIira UlflVKBArrT

JAMUART, IStO

T(oMt

COPYBIOHT, 1888, BY N. MURRAT.

IX MURPHY A CO.. PRIXTKKS, C^
BALTIMORE.

ARNOLD TOYNBEE.

I.

Arnold Toynbee, the second son of Joseph Toynbee, the
distinguished aurist, was born on the 23rd of August, 1852,
in Savile Row, London. Whilst he was yet an infant, his
family removed to a house at Wimbledon in Surrey, where he
spent the greater part of his childhood. Mr. Toynbee is
remembered by friends to have taken the keenest interest in
Arnold of whom, when only four years old, he spoke as his
child of promise, and on whose development he exercised a
very powerful influence. He was always anxious to improve
the condition of the poor, and assisted in the erection of model
cottages and the establishment of a lecture hall at Wimbledon.
He employed Arnold whilst yet very young in the lectures
u|)on elementary science which he used to give to the working-
men of the neighborhood. Nor was it only by setting an
example of public spirit that Mr. Toynbee did much to form
the character of his son. He was a lover of art, a discerning
collector of pictures, who knew how to communicate to others
his enthusiasm for the works of great masters, and like all who
sincerely love art, he took an especial delight in natural beauty.
Wimbledon was then a pretty village situated in a fresh rural
landscape, the fairest to be found in the imme<liate vicinity of
London. In later years Arnold Toynbee would look back as
to the happiest hours of childhood to those rambles over
\Viml)le<lon Common on which his father would take out a
volume of poetry and as they rested in pUutsant s|)ot8 here

6

6 Arnold Toynbee,

and there read aloud such passages as a child could feel at
least, if not understand.

Whilst yet very young Arnold Toynbee delighted in
reading history, especially military history, and his favorite
pastime was to construct mimic fortifications, which he built
with more than childish precision and armed with the heaviest
ordnance procurable. Always delicate and exquisitely sensi-
tive to pain, he had not the animal courage common to strong,
healthy boys; yet, by the unanimous testimony of brothers
and of schoolfellows, he was singularly fearless, throwing
himself into everything which he attempted with an impetu-
osity which made him forgetful of consequences and even of
actual suffering. With this high-strung vehemence he united
a very resolute will. From first to last, he was one of those
who would sooner be dashed to pieces than fail to climb any
height which they have once determined to surmount. In
later life these qualities were tempered by scrupulous anxiety
to be just and fair, by a beautiful kindliness and delicacy ;
but in early youth they were accompanied with a violent
temper, and an excess of self-confidence. He was but eight
years old when he went to his first school, a private establish-
ment at Blackheath, where he became the leader in amusement
and mischief of boys much older than himself. Having once
planned with many of his schoolfellows a joke to be executed
when the master's back was turned, he failed to notice the
entrance by an opposite door of another master and the hasty
retreat of all his accomplices who left him alone in the middle
of the floor, absorbed in the execution of a caricature for which
he alone suffered, although all were guilty.

As a schoolboy and ever after he was slow in acquiring a
knowledge of any subject distasteful to him, such as languages
or mathematics, but showed great power in grasping any sub-
ject which, like history, fired his imagination. Rapidity of
acquisition was never the distinguishing quality of his intelli-
gence. A fastidious taste and eager passion for truth made
half knowledge distasteful to him; and whole knowledge

Ai-noUl Toynbce. 7

comes readily to no man. At school he grew so decided in
his preference for a military life that, when he was fourteen
years of age, his father sent him to a college which prepared
candidates for army examinations. Here he held his own
among comrades who were not very congenial. He had a
boy^s instinct for games and his swiftness of foot and high
spirit made him an excellent football player; but he played
football, as he did everything else, with an eagerness which
overstrained his delicate nervous system, and in consequence
he suffered from illness and sleepless nights. Here too he
enlarged his reading in history and surprised his tutors by the
force and originality of his essays. He began to feel an
impulse towards purely intellectual pursuits and an unfitness
for the career of a soldier. His father was no longer living,
and, at his own request, he left the college when he was about
sixteen years of age. He had not made many friends among
his fellow students, but he had impressed the masters as a
youth of singular talent and singular elevation of character;
so much so, that one of them, making him a present on his
departure, asked him to accept it as a token ** of real respect
and esteem."

Having abandoned all thoughts of entering the army,
Toynbee next thought of preparing himself to enter the
Civil Service; and with this view spent the two following
years in reading at home and in attending lectures at King's
College, London. Subsequently he resolved to be called to
the Bar; a resolution which he only abandoned after a pain-
ful struggle and in ol)edience to circumstances. These were
to him years of paiuful uncertainty. Although he had many
who were very dear to him, none fully understood, certainly
he did not himself understand the tendency of that inward
restlessness which he seems to have experienced at this })eriod.
It is the fashion to say that youth is the happiest season of
life, and, in one sense, this is true, but in another sense it is
equally true, that the youth of thoughtful persons is often
racked with pains which they cannot express and which arc

8 Arnold Toifubcc.

not tlic lo.cs real, because their elders can prescribe nothing
better than platitudes. The suffering of" middle and of latter
life bear no more analogy to these pains than does the anguish
of a toothache to the torture of cutting one's teeth. Whilst
the surface-current of Toynbee's mind set now towards this,
now towards that profession, the undercurrent set more and
more steadily towards the pursuit of truth. At length that
current swept him right away and he deliberately resolved to
devote his life to the study of history and of the philosophy
of hit^tory. In order to secure quiet for his meditations,
Toynbee took lodgings, first, in the village of Bracknell in
Berks, and afterwards in the village of East Lulworth on the
Dorsetshire coast; in these retreats he spent many months.
For the first time he began to see what he really wished
to do, and, still more important, what it was that he really
could do.

Toynbee's aspirations and plans of study of this period may
best be gathered from a letter which he wrote to the late Mr.
Hinton, a warm friend of his father and a spirit in many
ways congenial to his own. It will be necessary to refer
hereafter to the correspondence in which this letter occurs.
It is dated the 18th of September, 1871, when the writer had
just completed his nineteenth year and was written from East
Lulworth. The passage relevant in this context is as fol-
lows : —

" For myself, I have, since the beginning of April, with
the exception of a short interval in July, been reading alone
at this quiet little village near the seacoast, ostensibly with a
view to a University career; but determined to devote my
life and such power as I possess to the study of the philosophy
of history. With this object in view, I have no inclination to
enter any profession ; nor do I think it probable that I shall
compete for a scholarship at the University. To these pur-
suits I wish to give my whole life. The small means at my
disposal, and those which without the expenditure of much
time 1 hope to be able to add to them, will be sufficient for

Arnold Toynbee, 9

my maintenance. I do not care to spend my life in acquiring
material benefits which might have an evil, and at any rate
could not have a good effect upon me. These ideas may appear
ridiculous in one so young and of powers so immature, but
they are not the result of mere ambition, or of an empty desire
for fame in itself, or for the rewards with which it is accom-
panied. My sole, and so far as it can be so, unalloyed motive
is the pursuit of truth ; and for truth I feel I would willingly
sacrifice prospects of the most dazzling renown. I do not
even think myself capable of accomplishing any work of
importance. If my labors merely serve to assist another in
the great cause, I shall be satisfied."

As time went on Toynbee found reason to vary the pro-
gramme of work laid down in this letter, but he never swerved
from the spirit expressed therein. Few men have combined so
much self-confidence with so much modesty, or have been so
entirely absorbe<^l in their work, so totally free from motives of
vanity or of egotism. Yet a solitary life was neither natural
nor wholesome for one so young. At this time he was an
absolute recluse in his habits, and even when at home shut
himself up with his books, disdaining, like so many clever
boys, to mix with ordinary society. Happily, this stage of
his life was not to continue much longer. When he had
reached the age of twenty-one years, he found himself master
of a small capital, and trusting to this for maintenance during
a university career, he became a member of Pembroke College,
Oxford, in the January of 1873. In the autumn of that year
he resolved to oonn)ete for a scholarship in Modern History
at Balliol College. Here he wius unsuccessful. He had
brought up to the University a considerable knowledge of
history and of general literature. But he had awumulated
knowledge in order to satisfy his own cravings, not the curi-
osity of examiners. He had accumulated it without advice or
assistance, and had never gone through that singular prooess
whereby a lad who knows little and cares nothing for knowl-
edge is enabled to turn out dozens of tolerably oorrect essays

10 Arnold Toynbee,

upon dozens of great subjects. In short, he had not read for
examination, and, when examined, could not do himself
justice.

From this repulse, however, Toynbee derived a benefit impos-
sible to estimate too highly. As he had read and reflected
by himself, and had honestly worked out his own opinions,
he imagined himself to have gone deeper and further than was
really the case. Extreme, therefore, was his disgust when
one of his examiners, in explaining to him the reasons of his
ill-success, said : " You have picked up your ideas from hear-
ing the clever talk of London society, and you have written
your papers just as you would talk." He used afterwards
to say that this criticism, baseless as it was, had done him the
greatest good imaginable. It is true that the incisive way of
putting ideas which struck his examiners derived itself from
an incisive way of thinking, and continued with him througli-
out life. But it is also true that, in the present stage of
learning, the student who does not avail himself of the recog-
nized methods is like a traveller who prefers his own legs to an
express train. With all their faults, the universities supply
to the scholar that which he cannot dispense with and cannot
get so well anywhere else — the methods elaborated by thous-
ands of his predecessors ; the correction supplied by contem-
poraries equal or superior to himself; the powerful current of
spiritual electricity set up in the assemblapje of so many eager
wits. Had Toynbee never gone to the University, he might
have remained all his life groping towards results long since
attained by men far inferior in force of character and of intel-
ligent. His new exi)erience taught him his defects and how
to amend thorn.

Hut the immediate result of the scholarship examination
was one of those tedious illnesses which consumed so much of
the short time allotted to him upon earth. He was forced to
leave Oxfoixl, to susjxind all his work, to go down into the
country and try slowly and painfully to rally his exhausted
powers. From this and many other such intervals of mourn-

Arnold Toynbee, 11

ful leisure he, Indeed, drew profit, as such a nature draws profit
from every experience. For his friends they were an unmixed
sadness. It was not until a year had passed away that he was
able to return to Oxford. In the January of 1875 he became
a commoner of Balliol College. His real undergraduate life
commences from this date ; and here the narrative of his early
years may best conclude,

II.

Toynl)ee*s health continued to be so delicate that he could
not read for honors in any school, much less compete for any
university prizes or distinctions. As he was unable to study
hard for more than an average of two or three hours a day,
he was obliged to content himself with a pass degree. Yet
few men have derived more profit from a university course.
He continued to read widely and judiciously. The Master
and the tutors of Balliol College fully comprehended his
great gifts and great embarrassments, and gave him sym-
pathy, guidance and frank, discerning criticism. He always
gratefully acknowledged much he owed especially to the
Master and to the late Professor Thomas Hill Green. As
regards his merely academic studies, it is here enough to
say that he took a pass degree in the summer of 1878.

Every one who knows Oxford will allow that, valuable as
is the teaching supplied by the university and the colleges, it
is hardly more valuable than the genial intercourse between
the young inquisitive spirits there assembled.

Although Toynbee had hitherto lived in seclusion, he fell
very readily into this intercourse and gave even more good
than he received. He was in truth formed for society and
friendship. At this time he was very comely and attractive
in appearance. An oval face, a high forehead crowned wnth
masses of soft brown hair, features very clearly cut, a straight
nose and a rather large, full-lipped mouth, only needed more
color to produce the impression of beauty ; and even the color

12 Arnold Toynbec.

wanting to his gray eyes and brown complexion was supplied
when he grew warm in conversation by a lighting up of his
whole countenance, a brilliant yet soft irradiation, which
charmed the beholder and can never be forgotten by those
who knew him well. Together with this winning countenance
he had a manner singularly frank, open and animated. A
student and an invalid, he was free from the vexatious oddi-
ties of either ; was neither shy nor slow nor abstracted nor
languid, but always prompt and lively. He talked extremely
well, without exactly conversing. For that delightful pastime
which the French call a causerie he was not altogether adapted.
For that the mind must be habitually at ease — not unemployed,
but never taxed up to its utmost strength, not strained by
crowding ideas on vehement feelings. Toynbee, as time went
on, came to concentrate more and more upon a few momentous
subjects which were ever present to him, concerning which he
spoke with wonderful eloquence and enthusiasm. The faces
of listeners supplied him with the stimulus which his sensitive
temperament and weak body required. He never was quite
happy in writing out his thoughts. He complained that they
came upon his mind faster than he could set them down on
paper. That he had real literary talent, many passages in the
volume of fragments published after his death show ; but
nothing which he has written gives any idea of his power of
expreasing himself by word of mouth. Although he spoke
rapidly and copiously, he never was betrayed into a vulgar
phrase or slovenly construction ; he spoke as one to whom
idiomatic utterance is natural, correctly and forcibly, without
the cant phrases of the undergraduate or the studied negli-
gence of the college tutor. Nor did he, like so many other
exuberant speakers, suggest to those who heard him that he
Bpoke out of a passion for display. If he talked much it was
because he forgot himself in his subject. No man ever was
more willing to hear all that others had to say, or sought with
more kind and courteous attention to encourage criticism, even
opposition. Naturally combative and fond of controversy, he

Arnold Toynbee, 13

was never betrayed into those little breaches of amenity so
common even among men of good temper and good breeding
when heated by argument. Naturally somewhat intolerant,
he had schooled himself into genuine tolerance. Naturally
sensitive and excitable, he had, whilst retaining all his original
warmth, subdued in a surprising degree the impulse to exag-
gerate. Everything he said bore the impress of an exquisitely
fine nature. One could not listen to him without admiring,
or argue against him without loving. One could no more
say a brutal or profane thing to him than to the most delicate
lady. Not that he was finical, or censorious, or assumed the
right to check others in an impertinent or condescending tone,
but that no man of good feeling could, without a cutting pang
of remorse, shock such an exquisite sensibility.

Good looks, talent, information and social gifts are more
than enough to gain friends at the University ; but Toynbee
had many other attractions. He was in all senses of the word,
sympathetic. He had sympathy for men's suiferings, for their
interests and pursuits, even for their failings and misdeeils.
No matter what the troubles of an acquaintance — ill health,
ill success, disappointment or poverty, they always seemed to
raise his value in Toynbee's eyes. Nor was compassion with
Toynbee a mere sentiment. He was always eager to assist in
any useful way, studied his friend's affairs as if they were his
own, gave the warmest, sincerest encouragement to the de-
8i>onding, the kindest, tenderest criticism to the erring, yet
seemed never to expect any thanks and to take gratitude as a
free gift. Out of his small store of life and strength he
bestowed freely upon all. With this evangelical charity he
joined the widest sympathy of another kind. All fellow stu-
dents were his brethren. Their labors, their acquisitions, their
suooesses were his. He admired talent of all sorts, and rejoiced
in all achievements which enriched the life of the individual
or of the race.

For a man of this temj)oramcnt the years spent at oollejije
are his happiest. The ycai*s that come after may bring the

14 Arnold Toynbee,

philosophic mind; but thej' cannot add the joy and the fulness
of life. Toynbee had not hitherto felt how much he was alive ;
he felt it now, and was charmed with a new sense of expansion.
"The garden quadrangle at Balliol," he writes to a friend, "is
where one walks at night, and listens to the wind in the trees,
and weaves thest;u*s into the webof one^s thoughts; where one
gazes from the pale inhuman moon to the ruddy light of the
windows, and hears broken notes of music and laughter and
the complaining murmur of the railroad in the distance. . . .
The life here is very sweet and full of joy ; at Oxford, after all,
one's ideal of happy life is nearer being realized than anywhere
else — I mean the ideal of gentle, equable, intellectual inter-
course, with something of a prophetic glow about it, glancing
brightly into the future, yet always embalming itself in the
memory as a resting-place for the soul in a future that may
be dark and troubled after all, with little in it but disastrous
failure."

Soon after Arnold Toynbee came up to Oxford, Mr.
Rusk in, then Professor of Fine Arts in the University,
made a characteristic endeavor to illustrate the dignity and
good effects of even the coarsest bodily toil. He persuaded
many undergraduates to work under him at the repair of a
road in the village of Hinksey near Oxford. Among thase
undergraduates was Toynl)ee, who rose by his zeal to the rank
of a foreman. He was thus entitled to appear frequently at
those breakfasts which Mr. Ruskin gave to his young friends
and enlivened with quaint, eloquent conversation. Upon men
like Toynbee, intercourse with Mr. Ruskin had a stimulating
effect more durable than the actual improvement of the road
near Hinksey. Toynl)ee came to think very differently from
Mr. Ruskin upon many subjects, and especially upon democ-
racy; but always regarded him with reverence and affection.
About the same time Toynbee joined the Oxford University
Rifles, bei'ause he thought that every man should qualify
himself to take part in the defence of his country; he was
unable, however, long to fulfil the duties of a volunteer.

Arnold Toynbee, 16

His bodily weakness, which also forbade him to study long
or with strict regularity, constrained him, as it were, to enjoy
Oxfoni and its society more than he might otherwi.se have
allowed himself to do. It brought another indirect advantage
of even more consequence. It saved him from tlie bad effects
of our fashionable method of intellectual instruction, which
tends to make the student read as much and as widely as
possible without any reference to the effect which reading
may have upon the mind. Toynbee was naturally exact in
his intelligence, and gained in accuracy and thoroughness as
time went on. He derived nothing but good from his
studies as an undergraduate. Older than most under-
graduates, he felt the genial influence of Oxford, without
being overpowered by it. Without ceasing to be original he
appropriated, more freely than he had ever done before, the
ideas of his time. Soon after coming into residence at Balliol
College, he had decided to take political economy for his prov-
ince and to study it upon historical methods. Politiciil econ-
omy attracted him chiefly as affording instruction respeciting
the conditions of social life, and his interest in that science
was singularly intertwined with interest in other subjects, in
popular prejudice the most remote from it of any.

Religion daily came to occupy his thoughts more and more.
In his boyhood it had no very important place. He had
received the usual instruction in religious subjects and this had,
as usual, made very little impression. His father, although,
full of religious feeling, had perhaps wisely abstained from
indoctrinating his children with any rigid creed or drilling
them in any strict forms of worship. When Arnold Toynbee
had reached the age at which life first becomes serious, his
first aspirations were, as we have s<»en, purely intellectual.
He wished to live for others and resolved to live for them as
a student. An increase of knowledge was the blessing which
he wished to confer u|><)n his raa*. Rut his early ideal was
not to give him full satisfaction. Even at the age of nineteen
yearS; as is shown by the correspondence with Mr. Hinton

16 Arnold Toynbee,

above quoted, he had begun to ponder the most vexino:
problems which offer themselves to the devout mind. Thf
tx)rresjx)ndence turned chiefly upon Mr. Hinton's book "The
Mysterj' of Pain." Mr. Hinton's speculative enthusiasm, his
real elevation of mind and sympathy with religious cravings
were such as might well fascinate an eager clever lad arrived
at the age when the very few who are not absorbed in careless
gaiety are so frequently devoured by ascetic earnestness. As
time went on the spell which Mr. Hinton exercised over
Arnold Toynbee lost much of its force. The young man
came to see that Mr. Hinton's remarkable book leaves the
mystery as mysterious as it was before, and felt perhaps a
growing sense of discord between his own nature and that
of his early teacher. Their exchange of ideas nevertheless
marked an epoch in Toynbee's life.

His religious development was not checked but accelerated
by his residence at Oxford. " Most men/' he said, " seem to
throw off their beliefs as they pass through a University
career; I made mine." Just before becoming an undergradu-
ate he had, of his own accord, turned to the classics of religion
and read them with the eagerness of one who is quenching a
real and painful thirst. He read the Bible so earnestly as to
draw from one of his friends the deliciously naive remark
"Toynbee reads his Bible like any other book — as if he liked
it." In the course of his first year at Balliol he writes to a
friend : " The two things the Bible speaks to our hearts most
unmistakably are the unfathomable longing for God, and the
forgiveness of sins ; and these are the utterances that fill up
an aching void in my secular religion — a religion which is
slowly breaking to pieces under me. It is astonishing to
think that in the Bible itself we find the most eloquent heart-
rending expression of that doubt and utter darkness and
disbelief which noisy rhetoricians and calm sceptics would
almost persuade us were never before adequately expressed —
they would tell us we must look for it all in their bald lan-
guage." And a little later, " A speechless thrill of spiritual

Arnold Toyiibee. 17

desire sometimes nms through me and makes me hope even
when most weary." "As to position in life," he wrote about
the same time, " the position I wish to attain to is that of a
man consumed with the thirst after righteousness."

As Toynbee^s religion had not come to him through the
medium of customary religious forms, or in association with
accepted religious dogmas, these dogmas and forms never
were to him so momentous as they are to many devout souls.
Not indeed that he was hostile to either. He knew that the
practice of simple religious observances was beneficial to the
spiritual life of the individual and necessary to the spiritual
life of the nation ; he joined in them and, as time went on,
valued them more highly than he had done in youth. He
would earnestly seek out the truth contained in accepted
dogmas; but he could not help seeing how mischievous to
religion and to civilization some of them have proved, and
how inadequate all must necessarily be. His incisive intelli-
gence and historical feeling forbade him to dress his faith in
the worn out garb of medisBval devotion, or to try the spiritual
discipline of believing what he knew to be untrue. Yet the
same intelligence and feeling forbade him to set up an infin-
itesimal church of his own or to worship assiduously an ideal
existing only in his own imagination. He thou^^ht that any
follower of Christ might live in the Church of England. He
always strove to find some definite intellectual conceptions to
support his faith, for he saw that without such conceptions
piety must degenerate into sentiment. It seemed to him that,
whilst every age and country, nay every serious believer, must
more or less differ in religious doctrine from every other, since
religious doctrine is related to the whole spiritual, moral and
intellectual life, which is infinitely various, yet doctrine of
some kind or another is necessary in every instance, and peace
and freedom are to be found, not in luxurious dreamy fiction,
but in the humble acknowledgment that the best and highest
utterances of man concerning God are inevitably im|)erfect,
iuooherent and transitory. Thus eagerly searching to har-
2

18 AimoUl loynbee,

monize the piety which lie Imd learned from the Bible, and
the Imitation of Thomas A Kempis, with those modern ideas
to which he was equally loyal, he found especial help in the
teaching and convei*8ation of the late Professor Green, whose
lay sermons delivered in Balliol College made a memorable
impression upon many who heard them. Professor Green
united the critical temper of a German philosopher with the
fervor of a Puritan saint. Between him and Toynbee there
was an entire confidence and an intimate intellectual and
spiritual communion which only death interrupted.

It would not be right here to set out a body of doctrine
with Toynbee's name attached to it. He was ever feeling his
way, seriving after truth, without arrogance, but with the
honest resolution not to accept propositions merely because
they flattered his higher sentiments. His nearest friends
caught from his conversation, and still more from his daily
life, a bright reflection of his inward fire ; but none probably
would venture to catalogue his beliefs. It will be better to
try to gather from his own words what he really thought,
always remembering that he was very young and oppressed
by the immensity of religious conceptions. The following
passage occurs in a letter written to an old schoolfellow who
had become an officer and was then serving in the Indian
Array. The letter is dated the 2nd of October, 1875, the first
year of his residence at Balliol College :

" * To love God ' — those words gather amazing force as life
gets more difficult, mysterious and unfathomable ; one's soul
in itfl loneliness at last finds religion the only clue. And yet
how weary is the search for God among the superstitions,
antiquities, contradictions and grossness of popular religion ;
but gleams of divinity are everywhere, and slowly in the end
comes divine })eace. ... It seems to me that the primary
element of all religion is the faith that the end for which the
whole universe of sense and thought from the Milky Way to
the lowest form of animal life, the end for which everything
came into existence, is that the dim idea of perfect holiness

Aimold Toynbee, 19

which is found in the mind of man might be realized ; that
this idea is God Eternal and the only reality; that the relation
between this idea which is God and each individual is religion,
the consciousness of the relation creating the duty of perfect
purity of inner life or being, and the duty of living for others,
that they too may be perfectly pure in thought and action ;
and, lastly, that the world is so ordered that the triumph of
righteousness is not impossible through the efforts of the indi-
vidual will in relation to eternal existence. I speak of God
as an idea and not as personal ; I think you will understand
what 1 mean if you ask yourself if the pure love and thoughts
of a man are not all that makes his jxirsonality clear to you —
whether you would care that anything else of him should be
immortal ; whether you do not think of all else of him as the
mere expression and symbol of his eternal, invisible existence.
My dear fellow, don't think it strange that I send you these
bare, abstract thoughts all those dizzy leagues to India. I
only want to tell you what I am thinking of; do not take
heed of them except in so far as they chime harmoniously with
your own belief; I think they are the truth, but truth comes
to every mind so differently that very few can find the longed-
for unity except in love.*'

From the passage just quoted the reader might draw an
inference which it does not justify. Toynbee was perfectly
well aware that a Divinity who is nothing more than an
abstraction has never been and never can l)e the object of a
real, living religion. Concerning the creed of the Positiv-
ists, whose virtues he honored, he wrote some years later.
"Humanity is really an abstraction nianufactui-ed by the intel-
lect; it can never be an object of religion, for religion in every
form demands something that lives and is not made. It is
the vision of a living thing that makes the Psalmist cry * As
the hart panteth after the water-brooks, so longelh my soul
after thee, the living God.* ** The following words quoted
from an addi-css upon the ideal relations of Church and State,
may remove some doubts as to his own position :

20 Arnold Toynbee,

" God is a person — how else could man love and worship
Got! ? What jKirsonality is, we only faintly apprehend — who
has withdrawn the inii)enetrable veil which hides our own
jK^rsonality from us? God is a father — but who has explained
a father's love? There is limitation to man's knowledge, and
he is disposed to cry out, Why this impassable barrier? He
knows he is limited — why he is limited he knows not. Only
by some image does he strive to approach the mystery. The
sea, he may say, had no voice until it ceased to be supreme on
the globe. There, where its dominion ended and its limits
began, on the edge of the land, it broke silence. Man would
liave had no tongue had he been merely infinite. Where he
feels his limits, where the infinite spirit within him touches
tiie shore of his finite life, there he, too, breaks silence."

On the other hand, all notions of a special Providence
fjivoring this or that race, this or that individual, were shock-
ing to Toynbee's moral and religious feelings. Nothing
scandalized him more than the self-congratulation so often
uttered by serious people on the occasion of their escape from
the plagues and miseries which visit others. Miracles do not
seem to have been felt by him as aids to the belief in God.
The strangest of these supposed irregularities appeared to him
less divine than the order and harmony of the universe. He
might have chosen to express his feeling of the presence of
God in the words of one of his favorite poets :

" A sense
Of something, far more deeply interfused,
V/hose ilwelling is the light of setting suns,
And the round ocean, and the living air,
And the blue sky, and in the mind of man
A motion and a spirit that impels
All thinking things, all objects of all thought,
And rolls through all things."

Not that his creed was pantheism, if by pantheism we mean
merely a vague awe or admiration inspired by the mighty sum
of existence. To him, as we have seen, God was a spirit, a

Arnold Toyiibce. 21

person in the fullest sense of the word. For him religion was
insejmrably bound up with conduct and with righteousness.
"If I did not believe that the moral law was eternal," he
once said, " I should die." But he felt irresistibly impelled
to struggle out of the dualism which contents the multitude.

From weakness of imagination most religious people r^ard
the visible world as something external to God, and related to
Him only as a picture is related to the painter or as a king-
dom is related to its sovereign. They find something reassur-
ing and comforting in direct exertions of the Divine preroga-
tive. As the inexplicable is for them the sacred, every
expansion of their knowledge is a contraction of their faith.
Most touching it is to hear them say. Ah ! there are many
things for which the men of science cannot account, many
things which show that there must be a God. Most strange
is their reluctant conviction that, in so far as the universe can
be shown to be rational, it is proved to have no soul. Their
frame of mind was quite im[X)ssible to Toynbee, who believed
in science as he believed in God. He saw that the so-called
conflict of religion and science really grows out of two intel-
lectual infirmities common — the one among the devout multi-
tude, the other among students of particular physical sciences.
On the one hand, religious exjxjriences have been almost
inseparably associated in the popular mind with the belief
in certain historical statements, which, whether true or false,
must be tried by the critical canons applicable to all state-
ments of that kind. On the other hand, absorption in the
pursuit of physical science often leads men to forget that such
science can give no ultimate explanation of anything, because
it always postulates certain conceptions which it does not
criticise. For facts of geology or biology we must always
have recourse to geologists or to biologists, not because they
know everything but because they alone can know anything
relating to these sciences. On the other hand, neither the
g(X)logist nor the biologist, as such, can give the ultimate
interpretation to be put upon all facta whatsoever. Free from

22 Arnold Ihynbee.

these oontendinpj projiuHces, Toynbee always felt sure that the
progress of criticism must end, not in destroying religion, but
in purifying religion from all that is not essential. Of the
great Christian ideas he wrote : " They are not the creations
of a particular hour and place, they are universal, but they
became a compelling power owing to the inspiration of one
teacher in a particular corner of the earth. What the real
character of Christ was, what is the truth about certain inci-
dents of his life, we may never ascertain, but the ideal Christ,
the creation of centuries of Christian suifering and devotion,
will be as little affected by historical scepticism as the charac-
ter of Shakespeare's Hamlet by researches into the Danish
chronicles. Prove to-morrow that the Scripture records and
the Christian tradition are inventions and you would no more
destroy their influence as a delineation of the spiritual life
than the critics destroyed the spell of the Homeric poems by
proving that Hector and Achilles never fought on the plains
of Troy. This may seem a paradox, but the time will come
when we shall no more think it necessary to agree with those
who assert that Christianity must stand or fall with the
resurrection of Christ than we now dream of saying with St.
Bernard that it must stand or fall with belief in the Virgin
Mary. The Christian records and the lives of the saints will
be indispensable instruments for the cleansing of the spiritual
vision, and the power which they exercise will be increased as
their true value as evidence is understood. The Christian
religion itself will in future rest upon a correct interpretation
of man's spiritual character.'^

Toynbee was well aware of the spiritual languor which has
been among the immediate results of the extraordinary growth
of physical science in our own age. He had none the less a
steadfast assurance that religion must in the end gain strength
from the increase of knowledge. The following passage from
an unpublished essay shows with what confidence he awaited
the issue of that revolution in thought which has terrified so
many good people : —

Ai-nold. Toynbec. 23

" Most terrible is the effect of the Reign of Law on the
belief in immortality. Fever and despair come upon action,
and the assertion that this world is all in all, narrows and
perverts the world of ethical science. And, indeed, it is veiy
awful, that great contrast of the Divine Fate of the world
pacing on resistless and merciless, and our passionate indi-
viduality with its hopes and loves, and fears ; that vision of
our warm throbbing personal life quenched for ever in the
stern sweep of Time. But it is but a passing picture of tlie
mind ; soon the great thought dawns upon the soul, * It is
I, this living, feeling man, that thinks of fate and oblivion ;
I cannot reach the stars with my hands, but I pierce beyond
them with my thoughts, and if things go on in the illimitable
depth of the skies which would shrivel up the imagination
like a dead leaf, I am greater than they, for I ask " why *'
and look before and after, and draw all things into the tumult
of my personal life — the stars in their courses, and the whole
past and future of the universe, all things as they move in
their eternal paths, even as the tiniest pool reflects the sun
and the everlasting hills.'

"Like all great intellectual revolutions, the effect of the
Reign of Law upon ethical temper has been harassing and
disturbing ; but as every great intellectual movement has in
the end raised and ennobled the moral character of man
through the purification of his beliefs, so will this great con-
ception leave us the belief in God and the belief in immor-
tality purified and elevated, strengthening through them the
spirit of unselfishness which it is already beginning to inten-
sify, and which makes us turn our faces to the future with
an ever-growing hope."

Religion was the inspiring force of Toynbee's later years
and his efforts to understand and contribute to the cure of
social evils were prompted al)ove all by the hojXJ of raising
the people to that degree of civilization in which a pure and
rational religion would l)e possible to them. Sensitive to
their physical sufferings he was in a degree which at times

24 Arnold Toynbcc»

almost overpowered his judgnient ; but he never imagined
that the franchise, regular enij)loyment at fair wages and
cheap necessaries were in themselves capable of appeasing
the tremendous cravings of human nature, of quieting the
animal appetites or of satisfying the nobler aspirations. He
did perceive, however, that a great number of our people live
in such a manner as to make materialism and fanaticism
almost unavoidable alternatives for them. Having found
religion for himself and being eager to help others to find it
he did not immediately become a missionary. He would
speak frankly of religion to those who appeared to him really
concerned about it ; and he hoped that at some future time
he might find a way of preaching to the people. But it was
not in his nature to be loquacious about spiritual matters and
he was fond of quoting Bacon's saying : " The greatest of
itheists are the hypocrites; for they handle sacred things
without feeling them.^'

Toynbee's desire to understand and help the poor led him to
spend part of the vacations of 1 875 in .Whitechapel. Already
he had arrived at the conclusion that mere pecuniary assist-
ance unaccompanied by knowledge and sympathy is not
enough to bring about any lasting change for the better in
their condition. But such knowledge and sympathy, he saw,
can only grow out of long and familiar intercourse, in which
both parties meet as nearly on an equality as the facts of the
case will allow. Acting upon these beliefs he took rooms in
a common lodging house in the Commercial Road, White-
cha|)el, and furnished them in the barest possible manner.
He cordially enlisted himself in the endeavors made by the
good people there to assist their neighbors. He always was
well aware of the value of existing organizations, of the fact
that the worst use which can be made of an institution is to
destroy it. He would have endorsed that fine saying of
Burke: "Wisdom cannot create materials; her pride is in
their use." He put himself at the disposal of the Reverend
Mr. Barnett, the Vicar of St. Jude's, and entered with zest

Arnold Toynbee, 25

into all the little feasts and amusements of the school children
and their teachers. He also worked under the Charity Or-
ganization Society, and particularly valued this employment
as giving an incomparable insight into the real condition of
those who are so much talked about and so little known. He
also joined the Tower Hamlets Radical Club and spent many
an evening there, trying to appreciate the ideas of East End
politicians. Finding that many members of the club enter-
tained especially strong prejudices upon the subjects of religion
and of political economy, he chose these for his subjects when
asked to address the club. In giving the address upon reli-
gion he discovered in himself a new power. Although he had
not had any previous experience and had not elaborated his
discourse beforehand, he spoke eagerly, clearly and contin-
uously for nearly three-quarters of an hour and succeeded in
fixing the attention of his hearers. He was thus led to the
conclusion that speaking rather than writing would be the
best medium for his ideas, and resolved to repeat the exjieri-
ment as often as time and strength would allow. In sub-
stance, this address was an attempt to express, freed from
accretions, the essence of religion, the thoughts and feelings
common to the saints of all creeds and of all ages. When he
sat down there followed a debate, more lively than orthodox
in tone. One orator in particular derided the common con-
ception of heaven as a place where the angels have nothing
to do but to let their hair go on growing and growing for
ever. His indefatigable industry, the noisy situation of his
lodgings, the extreme dullness and dreariness of the east end
of London, and, most of all, the constant sjKH^tacle of so much
evil, so difficult, I will not say of cure, but of mitigation,
made residence in Whitechapel too exhausting for Toynbee*8
delicate constitution. He never found fault with anything,
and stuck to his post as long as he could. But he was at
length foixxxl to give up his ex|KTiment. Although he was
never able to rciKjat it, it confirmed him in the belief that
tlic prospcHiUs must know Ix'forc they can really assu^t the

26 Aimold Toyixbee,

poor ; and he was fond of insisting that thought and knowl-
edge must now in philanthropy take the place of feeling.
His example and teaching in this matter have resulted in the
foundation of Toynbee Hall in Whitechapel, the inmates of
which are enabled, without forsaking their own friends or
pursuits, to live among those whom they wish to benefit.
' Whilst thus busied with many things, Toynbee contrived to
find delicious intervals of rest. He was a keen lover of the
country. His naturally high spirits became almost boisterous
in its pure air. Once or twice every year he escaped to some
charming place, where with one or two friends and a few
favorite books he revelled in pleasures that needed not to bor-
row from luxury. He preferred to all other beautiful districts
that of the I^kes, endeared to him by memories of rambles
enjoyed there in boyhood and by association with Words-
worth's poems. He was peculiarly sensitive to all charms of
association. Beauty was to him rather suggestive than satis-
fying. He looked out upon the world with the eyes of a
philosopher rather than that of an artist. In the National
Galler)', one of his favorite haunts, he was fascinated less by
revelations of perfect form and color than by the austere grace
and pathos of such a painter as Francia. He was esjxjcially
fascinated by the face of one of the angels in Francia's picture
of the Entombment. " Shall I tell you to what I liken it ? "
he writes in a letter. " Have you on a still summer evening
ever heard far-off happy human voices, and yet felt them to
be sad because far-off? In this angePs face there is that
happy tone, but so distant that you feel it is also sad. Have
you ever, when the raindrops are pattering softly on the leaves,
heard the sweet, low song of birds? In that angel's face are
joy and sadness thus mingled." His travels in Italy in the
year 1877 were to him full of interest and enjoyment; but
Italy does not seem to have become dear to him ; her art and
her climate were perhaps felt by him as oppressively splendid ;
her sunny magnificence was not congenial to a temperament in
its depths so full of seriousness.

Arnold Toynbee, 27

He was a very accurate observer of outward things, and in
his lettei's or conversation would reproduce with a fine touch
the features of a remarkable landscape. He had leai-nt much
from Mr. Ruskin's extraordinary descriptions of nature, but
both by reading and by experiments of his own, had become
convinced that the pictorial powers of language are narrowly
limited. He saw that the mania for word-painting has for
the most part resulted in verbosity, confusion and weakness.
Writing to a friend, he observes :

" The best pieces of description are little bits of incidental
observation. The worst are those interminable pages of mere
word-daubing, which even Ruskin is not guiltless of. When
you look for tojx)graphical accuracy, you are utterly disap-
pointed. Since my interest in surface geology and physical
geography has been sharpened by the study of political econ-
omy, I have looked out for |)lain facts in these fine rhapsodies,
and have found them as useless as the purple mountains and
luxuriant foregrounds of a conventional landscape. The fact
is, a man must do one of two things. Either give a strict
topographical account of a place, noting down relative heights
and distances, conformation of the rocks, character of the veg-
etation, in such a way that you can piece the details together
into an accurate outline ; or he must generalize his description,
carefully eliminating all local details and retaining only the
general effect of the scene on his mind at the time. The great-
est poets do the last ; if you turn to the Allegro and Penseroso
of Milton, you will Ik* struck by the vividness of every touch
and the absence of any attempt to picture an actual scene. In
most modern descriptions there is a mixture of lx)th kinds.
You will find plenty of vague, often exaggerated expressions,
confused by little pieces of irrelevant local detail which tease
the imagination ; they tell you a rose tree grew on the right
side of the door, yet never give the slightest chance of placing
yourself in the scene."

Unlike most travellers who, if they care for anything, care
only for the picturesque, Toynbee was insatiable of informa-

28 Af^old Toynbee.

tion respecting the condition and way of thinking of the
jXK)ple amongst whom he travelleih So frank and cordial
was he in his conversation with all sorts of men that all readily
opened tlieir minds to him. It is true that they took pains to
show him as little as they could of their meanness or trivi-
ality, and it is probable that he, quick and eager as he was,
sometimes read into their words thoughts which were not
clearly there. Yet from this j)ersonal intercourse Toynbee
derived knowledge which he could not have so well acquired
in any other way. Young as he was, and almost overpowered
by his feelings of benevolence and sympathy, he yet knew a
great deal concerning the classes for whom he labored. In
this respect he differed much from many good men of our
own generation.

Indeed, notwithstanding his warm and enthusiastic devo-
tion to the ideal and his indifferenpe to the honors and rewards
80 hij.;hly valued by most of us, Arnold Toynbee had a great
deal of common sense. He understood that if we cannot live
by bread alone, neither can we subsist solely on nectar and
ambrosia. One example of the prudence which he exercised,
at least in counselling others if not always for himself, may
be quoted here. A younger brother, having gone into busi-
ness in the City, was oppressed with a growing distaste for
his work and for his companions. He began to think
seriously of choosing another walk in life, and took counsel
with Arnold. Arnold, in reply, wrote as follows :

" I am ver}' sorry you are so disappointed with your work.
What you say about the habits and tastes of business men is,
no doubt, true ; but don't imagine that other classes are very
different. If you came here and went to a small college, you
would find tjjat the tastes and habits of the majority of under-
graduates were iniivh the same as the tiistes and habits of
clerks in the City. I say a small college, because in large
collegia, where yon have greater numbers to choose from, you
would find a certain number like yourself, who c«ire for refine-

Arnold Toynbee, 29

raent and dislike coarseness : but you would have to pick
them out. Remember, refinement is not common. In no
occupation which you wished to adopt would you find the
ways and opinions of your fellows, or most of them, those
which you have been brought up to seek and approve. Don't
misunderstand me. All I mean to say is, human nature in
the City is much like human nature in the University. The
passions of men who cast up accounts and buy and sell tea are
not very unlike the passions of men who study Plato and
struggle for University distinctions. Whatever work you
undertake, you must expect to have to do with coarse men
who pursue low aims. You will, perhaps, answer : * But in
this case there is literally not a single person I care for or can
make my friend. In another occupation there would, at least,
be one or two men I could like.'

"Granting this, let me advise you on one point — don't think
of throwing up your present work, until you see quite clearly
what other work there is you can do which will suit you bet-
ter and enable you to make a livelihood. Look about, make
enquiries, but don't allow yourself to change until you have
fixed on some new line and fixed it after fullest consideration
of all you will have to face.

" People who have no decided bent for any one thing,
naturally think that whatever tiiey undertake is not the work
they are best fitted for ; this is true of a great many people.
If you can point to anything you would like to do l^etter than
anything else — I should say, do it at once, if you can get a
livelihood by it. As it is, I say, wait, l)e patient, make the
best of your work, and be glad you have the refinement you
miss in other people.

"There — I hope you don't think I am harsh. I know
your position is difficult, is unpleasant — but I don't see how
it ctan be altered yet, and therefore I advise you to do what I
am sure you cau do— make the best of it.

" Ever your loving brother,

"A. Toynbee."

30 Arnold Toynbce,

The author of this wise and sententious letter had said in
one written some time before, "As a rule we find our friends
and counsellors anywhere but in our own family." The say-
ing, although a hanl one, is true ; and the explanation given
is ingenious. " We are so near and so alike in many things,
we brothers and sisters, that in certain details we have a more
intimate knowledge of each other^s characters than our dearest
friends. We know the secret of every little harsh accent or
selfish gesture; words that seem harmless to others are to us
full of painful meaning because we know too well in our-
selves the innermost folds of the faults they exprsss. There
is nothing we hate more than our own faults in others; that
is the reason why so many brothers are in perpetual feud, why
so many sistere are nothing to each other, why whole families
live estranged. And yet it is equally obvious that a chance
acquaintance often judges us more fairly than our own nearest
relations, because these details worked into prominence by the
trying friction of everyday life, are after all only a very small
part of us which our relations rarely see in perspective. That
is the reason. Though near in some ways, we are never far
enough otf. We never see each other's characters in propor-
tion, as wholes."

III.

Having taken his degree, Toynbee had next to consider
liow he should secure a livelihood. He had come up to
Oxford without definite prospects and during his stay there
had become more and more unwilling to adopt any of the
ordinary professicms. He had not gained those distinctions
or accumulated that sort of knowledge which may he said to
ensure election to a fellowship. He had, however, impressed
the authorities of Balliol College with his rare gifts of talent
and character ; and by them he was appointed tutor to the
students at that college who were qualifying themselves for
the Indian Civil Service. The performance of the duties

AiTiold Toyiibce, 31

attached to his ]>ost left him a gocxl deal of leisure in which
to prosecute his favorite studies. The sti|>end was not large,
but he was a man of few wants and always held simplicity of
life to be a sacred duty. He was not without desires, but
they were impersonal, and besides were under the control of a
strong will. Always delicate and often suffering from severe
illness, he had never acquired the habit of petting himself.
He had retained all the manliness which we usually fancy
inseparable from robust health. Yet, whilst thus severe
towards himself, he was indulgent to others, generous, spirited
and quite free from those boorish or cynical oddities which
have so often deformed the appearance and conversation of
men distinguished by unworldliness. In his countenance, in
his words, in his tastes, in his actions, there was a distinction
and an elegance which preserved his simplicity from plain-
ness. There was something in his presence which checked
impertinence and frightened vulgarity.

Had Arnold Toynbee lived in the thirteenth century, he
would probably have entered or founded a religious order,
unless he had been first burnt for a heretic. In the nineteenth
century, he lived to show how much may be done, ^ay, how
much may be enjoyed by a man whom society would think
poor. When about to address audiences of workingmen,
mostly artisans and mechanics, he used to say that he
liked to think he was not himself much richer than they
were. True, there was just the least tou(;h of exaggera-
tion in his scorn of superfluities. His ideas respecting the
income sufficient for keeping a house and rearing a family
sometimes forced a smile from those more verse<l in the sordid
struggles of the world and in the sad defacement of human
nature which those struggles cause. These ideas, however,
influenced his political creed. He always believed in the pos-
sibility of a democratic society, whose meml)er8 should l)c
intellectual, refined, nay spiritual ; and, believing in this pos-
sibility, lie joyfully hailed the spread of democratic institu-
tions. Perhai>8 he did not fully retdize the enormous cost and

32 Arnold Toynbce,

trouble required in most instances for the full development of
luinmn faculties. Perhaps he did not quite understand how
deep-rooted in the necessity of things is the frantic eagerness
of all men of all classes and parties to seize the means of life
and expansion. Carlyle^s comparison of mankind to a pot of
t;iineil Egyptian vipers, each trying to get its head above the
others, was foreign to his way of thinking. Men's generous
instincts and high aspirations he shared and therefore under-
stood ; but their imperious appetites and sluggish consciences
he had only studied from without; he had not learnt by
communing with his own soul. Like Milton, Shelley or
Mazziui, totally dissociated from the vulgar wants of the
upper, the lower or any other class, he was a democrat, be-
cause he contemned the riches and honors of this world, not
l>ecause he was anxious to secure for himself as much thereof
as fell to the lot of any other man.

In June of the year 1879 Toynbee married a lady who
had for several years been his close friend. She survives* to
mourn an irreparable loss, and it would not be fitting to say
of their married life more than this that it was singularly
happy and beautiful. During the few months immediately
following upon his marriage Toynbee seemed to regain much
of the healtli and elasticity proper to his time of life. The
pleasure of finding himself understood by the person whom of
all others he most valued and the calming influence of a regu-
lar occupation had a most wholesome effect upon his highly
strung and over-taxed nerves. His constitution seemed to
recruit itself daily in the genial atmosphere of a home. His
spirits became higher and more equable than they had been
for many years. His thoughts grew clearer and clearer to
him. It seemed, alas ! it only seemed that he was about to
rise out of the pain and weakness of youth, and to enter upon
a long career of beneficent industry. Too soon this fair pros-
pect was clouded. He plunged with redoubled ardor into end-
less and multifarious labors. He found so much to do, he was
so eager to d6 it all, that he would never seek rest and so at

Arnold Toynbee. 33

length rest would not corae to him. He felt his intellectual
power grow day by day and could not or would not own that
day by day its working frayed more and more the thread of
the thin-spun life.

He had never lost his early preference for quiet study.
Although he had relinquished history and the philosophy of
history in favor of political economy, he remained by the
bent of his mind an historian. He had learnt much from
the economic writings of Cliffe Leslie which are distinguished
by the constant use of the historical method ; but he saw that
without the help of deduction, this method can serve only to
accumulate a mass of unconnected and unserviceable facts.
He did full justice to the logical power displayed in the
economic writings of John Stuart Mill and Cairnes. It is
the more necessary to bear this in mind because in his essay
upon " Ricardo and the Old Political Economy " he assailed
their spiritual father with somewhat of youthful vehemence
and even styled the Ricardian system an intellectual impos-
ture. He felt very strongly that our English economists had
made, not too much use of logic, but too little use of history,
and, by constructing their theories upon too narrow a basis of
fact, had lessened as well the value as the popularity of their
science. He saw that these theories needed correction and
re-statcment. He would not have denied their partial truth
nor would he have echoed the newspa|>er nonsense about
political economy having been banished to the planet Saturn.
Here as in so many other instances his intellectual fairness
and love of truth checked a sensibility as keen as that of
Owen or Rusk in.

He was anxious to make some worthy contribution to
economic literature, and finally chose for his subject the in-
dustrial revolution in England. Considering the magnitude
of that revolution, which turned feudal and agricultural into
democratic and commercial England, it is somewhat surpris-
ing that its history should have remained unwritten to this
day. For Toyubee it had a peculiar fasciiiatiou. During the
3

34 Arnold Ihynbee,

last two years of his life he accumulatetl a great deal of
material for the work and made original investigations upon
several points, especially upon the decline of the yeomanry.
Part of the knowlalge thus amassed he gave out in a course
of lectures delivered in Balliol College; and from the notes
of these lectures the fragments which have been published
were collected. Few and broken, indeed, they are; yet full
of unavailing promise. Other economists have shown greater
dialectical power; but none have made a happier use of his-
torical illustration. He had the faculty of picking out from
whole shelves of dusty literature the few relevant facts.
These facts he could make interesting because he never lost
sight of their relation to life. Political economy was always
for him a branch of politics, in the nobler sense of that term ;
the industrial revolution but a phase of a vaster and more
momentous revolution, touching all the dearest interests of
man.

The problems suggested by a competitive system of society
were always present to his mind. He felt as deeply as any
socialist could feel the evils incidental to such a system, the
suffering which it often brings upon the weak, the degradation
which it often brings about in the strong. For the cure of
these evils, however, he looked further than most socialists
do. Owning that competition was a mighty and, in some
respects, a beneficent power, he wrote that "of old it was
hindered and controlled by custom ; in the future, like the
other great physiral forces of society, it will be controlled by
morality." To the same effect is the following passage : " In
the past all associations had their origin in unconscious physi-
cal motives; in the future all associations will have their
origin in conscious ethical motives. Here, as in so many
other things, the latest and most perfect development of
society seems to be anticipated in its outward form by the
most primitive ; only the inner life of the form has changed."
In the meantime, he held with John Stuart Mill that the
problem of distribution was the true problem of political

Arnold Ibynbee, 36

economy at the present day. Certainly it was the problem
which most interested him, and his way of handling it was
characteristic. With the habit of forming somewhat startling
ideals, he had the instinct of scientific investigation. Con-
vinced that feeling, however pure or intense, is not alone
equal to the improvement of society, he was always toiling to
find in the study of that which is, the key to that which ought
to be. He would bury himself in the dry details of an actual
economic process, and emerge only to suggest in the soberest
terms some modest but practicable amelioration. This singu-
larly positive side of his enthusiastic nature is illustrated by
the letter to Mr. Thomas lllingworth of Bradford, which is
printed at the end of this memoir.

Toynbee's interest in tlie welfare of mankind was too eager
and impatient to be satisfied solely by the pursuit of truth.
Pie was zealous for that diffusion of i)olitical knowleilge
which halts so immeasurably behind the diffusion of political
power. He felt that even now, in spite of better education
and greater opportunities of reading, the bulk of the nation
scarcely partakes in the progress of science. The growing
wealth of recorded experience, the enlargement and correction
of thought are real only to a few students who exercise almost
no direct influence upon the course of public affairs, whilst
public men who do exercise this influence are so enslaved to
the exigencies of each passing day that they have little time
or strength to spare for the educration of their followers.
Toynbee was anxious to utilize for political reform the fer-
ment of thought at the Universities. With this pur|x)se he
drew together into an informal society several of the most
studious among his younger contem|X)raries. Each meml)er
was to select for his special study some princi|)al department
of politics, but all were to work in concert, and to maintain,
by meeting from time to time for discussion, a general level
of sympathy and information. When they had matured their
views they were to tiike part in forming public opinion by
writing or by speaking as be^t suited each man's talent and

36 Aimold Toynbee,

opportunities. The conception of such a society had long
been familiar to him and this was not his first attempt to
carry it out. He would dwell mournfully on that practical
impotence of clever and earnest University men which has
alfortled so much matter for exultation to the enemies of polite
letters. " Every one is organized," he wrote, " from licensed
victuallers to priests of the Roman Catholic Church. The
men of wide thought and sympathies alone are scattered and
helpless."

The society held its first meeting in the June of 1879 and
continued for three years to meet once a term, sometimes in
London, but oftener in Oxford. As time went on it was
joined by one or two younger men who shared the studies
and aims of the original members. Toynbee was throughout
the guiding and animating spirit. Deep differences of opinion
necessarily came to light, but those who differed most from
Toynbee would be the first to confess how much they have
learnt from discussion with him. So penetrating was his
earnestness, so thorough his dialectic, that the faculties of all
who listened to him were strained to the utmost. All were
forced to ask themselves what they really believed and why
they believed it. Toynbee was anxious that these debates
should not prove merely academic; and he and his friends
SfKjnt some time in considering how they could best preach
their doctrines. He himself had a gift of addressing large
audiences; but this gift is rare, and it is hard to find any
other mode of communicating new ideas to the people. A
volume of essays can only be published at a considerable cost;
pamphlets are scarcely read at all ; and a newspaper can be
floated only by those who have considerable capital or are
totally subservient to a political party. In this as in all other
efforts to diffuse enlightenment we have to shift as best we
can ; put forth our opinions when we get a chance and not
expect any one else to mind them.

Toynlxje had not forgotten his own success in addressing
the Tower Hamlets Radical Club. He was resolved to use

Arnold Toynbee, 27

the power which he had then found himself to possess in
communicating to the artisans of our great towns the ideas
which he had matured in the quiet of Oxford. It was his
design to give every year a certain number of lectures upon
such economic problems as were of the most pressing practical
importance to workingmen. These lectures were not to be
merely academic or merely partisan. They were to combine
the directness and liveliness of a party harangue with the pre-
cision and fairness of a philosophical discourse. He knew
how prejudiced against political economy are the poor; but
he knew that mistakes made by economists have helped to
strengthen that prejudice, and he believed that it would yield
to frankness and sympathy. He believed that the masses
were eager for illumination — that they would be delighted to
follow any intelligent man of whose sincerity and disinterested-
ness they felt assured. He used to refer to the success which
bad attended Mr. Bradlaugh's lectures and to the influenpe
which they had exerted, and would urge that other preachers
with equal courage and faith might gain a greater success and
wield a far better influence.

It was in the January of 1880 that Toynbee began his
series of popular addresses by giving at Bradford three lec-
tures upon Free Trade, the Law of Wages and England's
Industrial Supremacy. He did not write out his lectures
beforehand nor did he speak from notes ; but having mas-
tered his subject by intense thought, trusted for fitting words
to the inspiration of the moment. This practice, whilst it
increased the fatal strain u|K)n his nervous system, added
much to the grace and naturalness of his delivery. From the
faces of expectant listeners he drew the needful stimulus to
his |)ower of expression. He 8|X)ke rapidly and continuously,
yet with clearness and accuracy. He carried away his
audience, and their momentum carried him swiftly and
smoothly to the close. At Bradfoi-d his lectures were well
attended and well receivetl by l)oth cin])loyer8 and workmen.
He was always anxious to address both classes together and

38 Arnold Toynbee,

not separately, for with him it was a prime object to soften
the antagonism between capital and labor, to show that the
true, the permanent, interests of both are identical. The
address ujx)n Wages and Natural Law he subsequently deliv-
ered again at Firth College, Sheffield, and it has been reprinted
from the shorthand writer^s reports. Such an address cannot
be exj^ected to contain much abstruse or recondite speculation.
It illustrates very happily, however, the constant drift of his
economic teaching. It enforces Mill's distinction between the
laws of production, which are laws of nature uncontrollable
by our will, and the laws of distribution, which are, to a con-
siderable extent, the result of human contrivance, and may be
amended with the growth of intelligence and fairness. Thus,
it points out that the earlier economists arrived at their con-
ception of a wages fund by leaving out of account many of
the causes which affect the rate of wages, by forgetting that it
is not competition alone that determines the rate of wages;
that trades unions, that custom, that law, that public opinion,
that the character of employers all influence wages — that their
rate is not governed by an inexorable law, nor determined
alone by what a great writer once termed " the brute law of
supply and demand." This address is also remarkable for a
candor uncommon in those who profess themselves friends
and advocates of the working classes. Such persons seldom
address their clients without slipping into a style of flattery.
Toynbee, who loved the people with all his heart and was,
perhaps, prejudiced in their favor, avoided this pernicious
cant. He reminded his hearers that a rise in wages was
desirable in the interests of the whole community only in so
far as it led to a rise in the civilization of the wage-earners.
" You know only too well," he said, " that too many working-
men do not know how to use the wages which they have at
the present time. You know, too, that an increase of wages
often means an increase of crime. If workingmen are to
ex])ect their employers to act with larger notions of equity in
their dealings in the labor market, it is, at least, rational that

Arnold Toynbee, 39

employers should expect that workingmen shall set al)out
reforming their own domestic life. It is, at least, reasonable
that they should demand that workingmen shall combine to
put down drunkenness and brutal sports." Coming from a
speaker whose affection was unquestionable, sentences such as
the above were taken in good part by the workmen who
heard them. Toynbee never found that he lessened his popu-
larity by abstaining from adulation of the people.

In the course of January and February, 1881, he delivered
twice, once at Newcastle and once at Bradford, the lecture
entitled "Industry and Democracy." This lecture was a
study of one aspect of that great industrial revolution which
was ever present to his thoughts. Its central idea may be
roughly stated as follows. A series of extraordinary mechan-
ical inventions extending over the latter half of the eighteenth
centur}' shattered the old industrial organization of England
and in particular broke the bond of protection and dependence
which formerly united the employer and the employed. But
some time elaj>sed before the revolution in the industrial was
followed by the revolution in the political system. Some
time elapsed before the workman^s economic isolation was fol-
lowed by his political enfranchisement. He had lost his
patron and he was slow in learning to help himself This
interval was for him a period of suffering and for the whole
body politic a period of danger. But this epoch of dissolu-
tion has been followed by an epoch of new combinations.
The workmen have organized themselvas for their economic
and social advancement; and they have acquired the fullest
jK)litical status. They are now independent citizens with
ampler rights and duties than could have been theirs in the
old-fashioned industrial and political order; and thus in Eng-
land, at least, the acutest crisis of the double revolution,
)x)litical and economical, has been surmounted, and an age of
tranquil development has Ixjcome possible. Such is the bare
outline of an address abounding in knowledge and in thought,
which fixed the attention of very large audiences.

40 Arnold Toynbee,

A year later he gave at Newcastle, Bradford and Bolton an
address upon the question — " Are Radicals Socialists ?" This
was one of the many attempts that have been made to settle
the true line of 8ej)aration between the functions which must
be discharged by the state and the functions which may be
discharged by the individual. It proposed three tests where-
by to try the wisdom of interference in any particular instance
by the state : " first, the matter must be one of primary social
importance ; next, it must be proved to be practicable ; thirdly,
the state interference must not diminish self-reliance." It
will probably occur to all who have pursued inquiries of this
nature that the hardest thing is, not to lay down good rules,
but to insure their observance. In our age, at least, it is not
so much want of knowledge as the zeal of narrow enthusiasts
or the interested ambition of political intriguers which leads
to an excessive or injudicious interference by the state with
the individual.

These were not the only addresses which Toynbee gave in
pursuance of his favorite plan ; but they have been singled
out here, because they have been reprinted among his literary
remains and are characteristic both in thought and expression.
They are all pervaded by a hopefulness heightened, perhaps,
by youth, yet innate in the man. Toynbee thought that the
conditions for solving the question of the relation between
capital and labor were to be found, if in any country, in Eng-
land. The old habit of joint action for public ends by men
of every class ; the ennobling traditions of freedom and order ;
the strong sense and energetic moderation often displayed by
the workmen, particularly in the north, their experience
aajuired in organizing and administering trades unions and
co-operative societies ; and the large mass of property already
held by them ; all these circumstances convinced him that, in
England at least, an even and steady progress was possible, if
men of culture and public spirit would offer themselves to
lead the way. He saw that the laboring classes have political
power sufficient to insure the most serious and respectful con-

Arnold Toynbee. 41

sideration of their demands and he trusted that the conscious-
ness of this power and tlie spread of education would awaken
in them something of that national feeling, that devotion to
the interests of the state which has never yet been wanting in
any age of our history. If in all this he was tooBanguine,
yet w^as his illusion a noble one which tended to verify itself.
Could politicians or journalists ever address workingmen with-
out trying either to bribe or to flatter them, we may be assured
that workingmen would respond to something else beside
bribes or flattery. It should be added that for these lec-
tures he never took any remuneration beyond his travelling
expenses, and not always this.

Of all the means employed by the poor to better their
condition, the co-operative system appeared to him the most
effectual. This system, we know, has proved more successful
in distribution than in production ; but it is capable of indefi-
nite expansion in the hands of intelligent and honest men.
Toynbee hoped that it might come to include a teaching
organization. In the winters of 1880 and the following
years, he used to lecture on political economy to a class of
workingmen, which met at the Oxford Co-operative Stores.
Sometimes he would have his hearers at his house on Sunday
evenings and engage them in genei-al conversation on economic
subjects. In the course of his work with this class he formed
many friendships with individual workmen, who regarded him
with real devotion. They may still be heard to say, " We
thought he would have done so much for us and for the town."
" He understood us," they would say, *' he took up things and
led us in a way there seems no one else to do." Toynbee
used also to contribute to the Oxford Co-operative Record.
In a pa|)er written for that periodical, entitled "Cheap Clothes
and Nasty," he urged the workingmen to remember what hard
and ill-requited labor, the labor, too, of their own class and
their own kindred, was required to prcxluce their cheap cloth-
ing. "The great maxim we have all to follow," he wrote,
** is that the welfare of the producer is as much a matter of

42 Aitiold Toynbee,

interest to the consumer as the price of the product ; '' wise
and true words, how seldom borne in mind. At the Whit-
suntide of 1882, when the cx)-operdtive societies held at Oxford
their annual congress, he read a more elaborate paper upon
" The Education of Co-operators." He showed how needful
and how mucli neglected at the present time is the etluca-
tion of men as citizens, and suggested that the co-operative
societies might well provide for the civic education of their
own members. He then sketched a programme of political
and economical instruction. This programme may be thought
ambitious ; yet the address as a whole is singularly balanced
and judicial. He was well aware that there were many
obstacles in the way of carrying out that which he proposed,
and that the greatest of these obstacles is not the difficulty
of finding competent teaciiers, nor the expense of employing
tliem, but the apathy of those who were to be instructed.
Such apathy he recognized as natural in men tired out with
toil; but although natural, not the less baneful. "Languor,"
he truly said, "can only be conquered by enthusiasm, and
enthusiasm can only be kindled by two things : an ideal
which takes the imagination by storm, and a definite intelligi-
ble plan for carrying out that ideal into practice." In this
sentence he unconsciously summed up his own career. His
own enthusiasm was not of the heart only, but of the whole
man ; it was a reflective enthusiasm with definite aims and
definite means ; and for this reason it did not pass away like
the sentimental enthusiasms of so many generous young men ;
on the contrary, as he grew older, it deepened until it became
a consuming fire.

The duties of a Balliol College tutor, the study of a com-
plicated science, the labors of a public lecturer upon political
and social questions ; these might surely have been enough to
task the energies of a delicate man who at his best could only
work a few hours a day and was liable to frequent intervals
of forced inaction. Yet there was another task from which
Toynbee could not withhold his hand, a task which for him

Arnold Toynbee, 43

comprised all others. Religion, it has been said, was the
supreme interest of his life. His mode of thinking about
religion has l>een hinted at above. He had too real a devo-
tion to find repose in the worship of an abstract noun or an
abstract sentiment. He felt that the religious emotion, like
all other emotions, must have a real and an adequate object.
He saw distinctly the weakness which has so often paralyzed
the spiritual influence of the Broad Church. " Had liberal
theologians in England combined more often with their un-
doubted courage and warmth, definite philosophic views, reli-
gious liberalism would not now be condemned as offering
nothing more than a mere sentiment of vague benevolence.
Earnest and thoughtful people are willing to encounter the
difficulty of mastering some unfamiliar phrases of technical
language, when they find they are in possession of a sharply
defined intellectual position upon which their religious faith
may rest."

Thus Toynbee, whilst in full sympathy with the modern
critical spirit which regards as provisional all dogmas, even
those which it may itself accept, was equally in sympathy
with the instinct of devotion which in all ages has tried to
find for itself a suitable dogmatic expression. The intellec-
tual conceptions which support our spiritual life must always
be inadequate and therefore variable ; indeed they vary from
land to land, from generation to generation, from class to
class of a nation, from year to year in the life of the indi-
vidual. But imperfect as these conceptions must be at any
given time or place, they cannot be summarily remodelled ;
for they are the outcome of a vast experience, of an almost
interminable intellectual history. They are improved some-
times by direct and severe criticism ; oftener by the general
growth of civilization and increase of knowledge. What is
true of doctrine is likewise true of discipline and of cere-
monies. All three have had a long development. The
various Churches now existing in our own country are full
of faults ; but they cannot be swept away at a stroke, nor, if

44 Arnold Toynbee.

they could, would there be anything better to take their
place. To Toynboe a Church, like a State, was a mighty
historical institution, the result of desires, hopes, beliefs which
only in building it up could have found their satisfaction.
Like a State, a Church had grown to be what it was and
might grow to be something much better. How, he asked
himself, could a devout man, totally without sectarian preju-
dice, assist even by a little that almost imperceptible growth ?
Certainly the survey of the state of religion in England at
the present time does not readily suggest an answer to this
question. Confusion is everywhere. We see many men of
strong and cultivated intelligence, no longer obliged to fight
for spiritual freedom, lapsing into an epicurean indifference,
the more profound because it is so thoroughly goodnatured.
This indifference is no longer confined to a few polished scep-
tics. It is ««hared by possibly the greater part of those who
live by manual labor. It is not rare among women, always
slower than men to part from the creed of their forefathers.
A sincere piety is still common among us, but this piety, too
often unenlightened, is frequently a principle of discord.
Many zealous priests and laymen of the Established Church
seem intent upon developing everything that is least rational
in her doctrine, least sober and manly in her ritual. The
Nonconformists, earnest as they are, seem condemned by their
passionate spirit of division to everlasting pettiness and ster-
ility. The Church of Rome, now as heretofore, invites, often
with success, the timid and devout to abjure all the truths and
all the liberties won in the battle of the last six centuries and
to immure their souls in her dogmatic cloister. Look where
we may, we nowhere behold realized the complete ideal of a
national church. Religion, ceasing to be national, has lost
half its life and power. Any reformation which is to restore
its vigor muHt render it national once more.

For such a reformation the Church of England as by law
e8tal)lislKHl offers more facilities than any other. National it
is, not only as the largest religious community in the kingdom.

Arnold Toynbee, 46

but also as acknowledging in every Englishman a right to its
ministrations, in having for its head the head of the state, and
in admitting of regulation by the Imperial Parliament. Its
history has always been linked with the history of the nation.
If in former times it abused its power, it is at the present day
tolerant and open to ideas to an extent unparalleled in the
history of religion. It embraces members of the most various,
not to say, contradictory opinions; and this fact, so often cited
as its disgrace, is really its glory, since in a free and critical
age no two thinking men can word for word subscribe the
same creed. The only church jK)Ssible in modern times is
a church whose members, whilst several in thought, yet
remain united in piety. The Catholics are not mistaken
when they insist upon the power which springs from unity ;
the Nonconformists are in the right when they insist upon the
freedom and the responsibility of the individual soul. The
Church of England has endeavored, weakly indeed and inter-
mittently, to reconcile unity with freedom. It has been able
to do so because it has been a state church. The service of
the state is perfect freedom as compared with the yoke of the
priest or the yoke of the coterie. All that was best in tiie
Church of England appeared to Toynbee indissolubly linkeil
with her alliance with the state. Viewing the state as some-
thing more than a mechanical contrivance for material ends,
as a union of men for the highest purposes of human nature,
he did not regard it as inferior to the church or think the
church degraded by connection with the state. The church
and the state were to him but different aspects of the same
society. Like his friend Thomas Hill Green he felt an
intense antipathy to the pretensions of the sacerdotal party
who understand by the freedom of the church the domina-
tion of the clergy. He felt an equally strong antipathy for
the tyranny over thought and action exercised by the petty
majorities in what are known as the free churches. He
Mieved that real religious freedom was only possible in a
national church, and that there could be no national church

46 Arnold Toynbee,

without the assistance of the state. But he acknowledged that
the Church of England cannot be truly national until she
gives self-government to her congregations and releases her
ministers from subscription.

To effect these changes had been the object of the Church
Reform Union, formerly organized by Mr. Thomas Hughes
and the Reverend Mr. Llewelyn Davies, but then in a rather
sleepy condition. Toynl)ee tried to give it fresh life and
induced these gentlemen to reopen the discussion of church
reform. He persuaded several of his friends to join the
Union and organized an Oxford branch, besides writing leaf-
lets to enlist the sympathy of the laboring classes. He went
so far as to appear at the Church Congress held at Leicester
in the year 1880, and to deliver an address upon the subject
of Church Reform. Had his life been prolonged, he might
have achieved much for the cause. The eloquent enthusiasm
with which he used to dwell upon the ideal relations of Church
and State made a deep impression upon men of very different
religious beliefs. The impression cannot be reproduced in
words, because it was originally due to something unspoken
and indefinable in the man. Something of the spirit in which
he approached the question may be caught from the following
passage : —

"To teach the people, the ministers of religion must be
indejxindent of the people, to lead the people, they must be in
advance of the people. Individual interests are not always
public interests. It is the public interest that a country should
be taught a pure and spiritual religion ; it is the interest of
religious teachers to teach that which will be acceptable at the
moment. It is for the public interest that religion should be
universal, that it should be a bond of union, that it should be
progressive. The State, and not the individual, is best calcu-
lated to provide such a religion. We saw before that freedom
l>eing obtained, it was religion that was to weld free but
isolated beings into a loving interdependent whole. Which is
the more likely to do this — a religion wise and rational, com-

Arnold Tuynbce, 47

prehensive and universal* recognizing a progressive revelation
of God, such as the State may provide, or a religion provided
by individual interests which is liable to become what is |>op-
ular at the moment, which accentuates and multiplies divisions,
which perpetuates obsolete forms, and has no assurance of uni-
versality of teaching? It is scarcely too much to say that as
an independent producer can only live by satisfying physical
wants in the best way, the independent sect or independent
minister can only live by satisfying spiritual wants in the
worst way. If I thought that disestablishment were best for
the spiritual interests of the people, I would advocate it, but
only on such a principle can it be justified, and my argument
is, that spiritual evil, not good, would attend it.

" What is really required is a body of independent ministers
in contact at once with the continuous revelation of God in
man, and in nature, and with the religious life of the people.
The State alone can establish such a church organization as
shall insure the independence of the minister, by securing him
his livelihood and protecting hira from the spiritual despotism
of the people. I believe the argument holds good for religion
as for education, that it is of such importance to the State
itself, to the whole comnuniity collectively, that it l)ehoves the
State not to leave it to individual effort, which, as in the case
of education, either does not satisfy spiritual wants at all, or
does not satisfy them in the best way. If I chose to particu-
larize, I might here add that the connection of religion with
the State is the most effective check to sacerdotalism in all its
different forms, and sacerdotalism is the form of religion which
can become fundamentally dangerous to the State. It injures
the State spiritually by alienating thegresitest number and the
most intellectual of the memlx?rs (►f the State from religion
altogether; it injures the State temporally by creating an antag-
onism between Church and Stilts. — a great national calamity
from which we are now entirely free."

It must not be concluded from the above quotation that
Toynl)ee regarded as just or exjKxiient the present ini{M>tenoe

48 Arnold Toyiibee.

of the laity of the Church of England. He would have been
in favor of investing each congregation with almost any power
short of the j)ower to dismiss its minister at discretion ; but
he thought that the ultimate control of the Church was more
safely vested in a democratic Parliament than in the inhabi-
tants of each parish. In the same spirit of compromise he
would have abolished "clerical subscription," the formal
declaration of assent to the Articles and the teaching of the
English Book of Common Prayer, which is demanded from
every minister of the Established Church. It might have
been objected to him that, by abolishing " subscription," the
clerical profession is thrown open to men of every religion
and of no religion. He might have replied that the only
practical consequence of enforcing "subscription" is to exclude
from the ministry a few delicately spiritual natures, who
honor it too much to begin their professional life with
solemnly assenting to a series of obscure propositions drawn
up by the statesmen of the sixteenth century. Nevertheless,
we must allow that Toynbee failed fully to comprehend the
difficulty of his undertaking. He had found his religion for
himself, and it was all the more real to him because freed
from everything which was not spiritual. He could not,
therefore, realize the extravagant value which most of the
memlxjrs of every Church attach to the accidents of their
spiritual life, especially to all modes of doctrine, ritual or
government which serve to distinguish them from other
Churches. Men are most partial to that which is distinct-
ively their own. Let it be trivial, unmeaning, mischievous,
still it is theirs, and, as such, sacred. The smallest conces-
sions upon the part of the Established Church would often
have hindered the rise of new sects. The differences which
divide most sects from one another and from the Established
Church are, in many cases, too small for the naked eye, and
intelligible only when subjected to the historic microscope.
It does not follow that these concessions would have been
easy — that those differences can now be healed.

Arnold Toyr\bee, 40

'VMiilst brooding over ideals of Church and State, Toynbee
was always ready to lavish time and thought in furthering
the welfare of his immediate neighbors. In devotion to the
welfare of the city of Oxford, he rivalled his friend Professor
Green. In the year 1881 he was appointed to the board of
"Guardians of the Poor." The granting of relief, except
within the walls of the workhouse, he had always condemned
on the ground that it tended to lower wages and to relax
industry ; and when he became a guardian he uniformly
acted upon this opinion. At the same time he felt the cru-
elty of compelling the deserving poor to take refuge in the
workhouse, and the necessity of replacing "outdoor" relief by
organized charity, which should assist them in the most effect-
ual manner and make between the givers and receivers a bond
of kindness and of gratitude. He therefore joined the com-
mittee of the Oxford Branch of the Charity Organization
Society, thus helping to establish a concert between the public
and the private relief of distress. He took extraordinary
trouble in the investigation of cases of poverty and in securing
uniformity and thoroughness in the operations of the Society.
Nothing more enhanced the regard felt for him by the working
men of Oxford than did these labors. They were indeed too
much for one so weak in body and so heavily burthened with
other employments. But he felt the necessity of not merely
conceiving and uttering, but also in some small degree execut-
ing fine ideas. As a Christian and a citizen he thought him-
self in conscience bound to take his share of social drudgery,
and to this austere sense of duty he sacrificed the few hours
of rest which he so much needed, the scanty remains of
strength which might have been employed in so many other
ways more likely to bring fame and jK)wer. It was the rewanl
of Toynbee's thoroughly sincere and practical spirit that he was
always learning. His imagination was ever prone to pass be-
yond the bounds of possibility ; but his habit of action con-
stantly checked the dis|)osition to reverie.

In spite of all the public labors which he had imposed upon
4

50 Arnold Toynbee,

liimself he took the utmost pains with his pupils, the selected
candidates for the Indian Civil Service. He chiefly taught
them political economy and could not go very deeply into that
subject, because with them it was one of a multitude in which
they had to be examined. But feeling how enormous a respon-
sibility would hereafter rest upon these lads he diligently studied
the recent history and present condition of our Indian Empire.
He did what he could to quicken their sense of the great
interests committed to their charge. Nor did he fail to culti-
vate those kindly personal relations between tutor and pupil
which are so precious an element in the life of the University.
Besides his tutorship he held for some time before his death
the office of senior bursar to Balliol College. In this charac-
ter he made the acquaintance of the tenants of the College
estates, with whom he speedily became popular. The work
interested him as affording a practtical knowledge of the state
of agriculture. So highly did the College value his services
in this and in every other capacity that it was resolved to
elect him a Fellow, and tlie resolution was defeated only by
his untimely death.

With such a variety of occupations Toynbee was not able
to take many holidays in the years following his marriage.
In the summer of 1880 he had spent five delightful weeks
in Switzerland, and on his return journey had stopped at
Mulhausen to inspect its cotton factories and cite ouvri^re —
a town of model houses for the operatives, which they
might acquire in perpetuity by gradual payments. Part of
the summer of 1882 he spent in Ireland, but this was not
for him a time of rest. He used his utmost endeavors to
become acquainted with the true state of the peasantry, would
stop them by the wayside or sit for hours in their cabins
listening to endless talk. Eager and excitable as he was, he
could not use his intelligence without agitating his feelings.
On his way home he made the acquaintance of Mr. Michael
Davitt, who seems to have been deeply impressed with Toyn-
bee's conversation. ^Mr. Davitt subsequently wrote wlien
sending a contribution to the Memorial Fund :

Aimold Toynhee, 51

" I had the pleasure of making the acquaintance of the late
Mr. A. Toynbee during his Irish tour, as well as the advan-
tage of a subsequent correspondence, and few men have ever
impressed me so much with being possessed of so passionate a
desire to mitigate the lot of human misery. In his death this
unfortunate country has lost one thoroughly sincere English
friend and able advocate, who, had he lived, would have
devoted some of his great talents to the task of lessening his
countrymen's prejudice against Ireland."

During the three terms from October, 1881, to June, 1882,
Toynbee gave a course of lectures on the industrial revolution
to students reading for Honors in the School of Modem History.
These lectures were extremely well received. In the autumn
of 1882 he offered himself in the North Ward of Oxford as a
Liberal candidate for the Town Council, and made three
sjieeches chiefly upon those aspects of municipal government
which concern social reform, such as the administration of
poor relief and the construction of artizans' and laborers'
dwellings. He also threw out the idea of volunteer sanitary
committees for the enforcement of the laws relating to public
health. He himself took some steps towards the organization
of such a committee, and many have since been established
elsewhere. In the December of the same year he attended a
Lil>eral meeting at Newbury, in Berkshire, and made a speech
upon the Land Question and the Agricultural Laborer.

He had for some time been familiar with a book then little
known and since famous — Henry George's " Progress and
Poverty." In this year he wrote in one of his letters to a
sister: "I have known Greorge's l)ook for a very long time.
I always thought it, while full of fallacies and crude concoj>
tions, very remarkable for its style and vigor, and while no
economist would be likely for a moment to l)e staggered by its
theories, it is very likely to seem convincing to the general
reader. I remember last year at the Master's (/. e. Profi»s8or
Jowett), Mr. Fawc^ett asking me to toll him al)<)ut it — he had
not read it even then." So much was he struck by tlie book

52 Arnold Toynhee,

that he gave two lectures upon it at Oxford in the Michaelmas
term of 1882. At the conclusion of the second lecture he
made an earnest appeal to his younger hearers not to let the
lawful ambitions of life, nor its domestic joys, make them
forgetful of the lolly ideals or of the generous resolutions to
ameliorate the condition of the poor and neglected which they
might have cherished at the University. Many were deeply
moved by this appeal, and he afterwards expressed the thought
that he might have spoken with too much solemnity, but
added, as if by way of excuse, " I could not help it." These
lectures were the last which he ever gave in Oxford.

Indeed the end of all things earthly was now very near.
For many months past he had been growing pale and haggard.
He was wasted almost to a skeleton. His old gaiety had
almost forsaken him. The death of his friend and teacher,
Professor Green, had deepened his depression. Yet he sought
rto rest. He faced his growing labors with a stubborn
resolution which concealed from his friends and possibly from
himself an approaching failure of strength. In the Jan-
uary of 1883, he repeated at St. Andrew's Hall, Newman
Street, London, his lectures on "Progress and Poverty.'' His
audience was large and representative. At the first lecture
it listened with attention. At the second, a small but noisy
minority made a considerable disturbance. His strength had
declined in the interval, and from the second lecture he went
back to Wimbledon a dying man. In early childhood he had
suffered concussion of the brain in consequence of a fall from
a f)ony ; and ever since then exhaustion with him was apt to
bring on sleeplessness. So worn and excited was he now, that
even with the help of the strongest opiates he could get no
sleep. His mind, wandering and unstrung, turned again and
again to the one preoccupation of his life ; to the thought of
all the sin and misery in the world. At times a strange
unearthly cheerfulness broke through his gloom. He con-
stantly asked to lie in the sun — to let the light stream in upon
him; murmuring,'" Light purifies — the sun burns up evil — let

Arnold Toynbee. 53

in the light." He did not ex}wrience much bodily suffering ;
bat sleeplessness brought on inflammation of the brain ; and
after seven weeks of illness he died on the 9th of March, 1883,
in the thirty-first year of his age.

He lies beside his father in the churchyard of Wimbledon.
It is a beautiful spot, overshadowed with the everlasting ver-
dure of the ilex and cedar. There many generations have
found rest from hope and desire; but few or none among them
all have been mourned so widely and so sincerely as Arnold
Toynbee. It is easy to make a catalogue of the opinions,
writings and actions of any man ; to enumerate in order the
events of his life; to sum up his virtues and his failings:
and, this done, we have what they call a life. Yet life is the
only thing wanting to such a performance. In every man of
fine gifts, there is something, and that the finest element of all,
which eludes so rough a procedure. There is something which
those who have known him have felt without being able to
express ; something which |)ervaded everything he said or did,
something unique; irreparable, not to be stated, not to be
forgotten. Most indescribable, most exquisite is this charm
blending with the freshness of early youth, like the scent of
innumerable flowers floating upon a gentle breeze from the
ocean. Length of added years would have brought the
achievement of tasks hardly begun, the maturity of thoughts
freshly conceived, and the just rewards of widely extended
fame and reputation ; but it could not have added anything
to the personal fascination of Arnold Toynbee, or enhanced
the sacred regard with which all who had the great happiness
to know and the great sorrow to lose him will chejrish his
memory whilst life endures.

APPENDIX

LETTER TO THOMAS ILLINGWORTH, Esq., OF BRADFORD.

Oxford, January 21, 1880.

Dear Sir : 1 have read your very clear account of the credit system as
you have seen it in operation with great interest. The facts you give will
he of much value as an addition to those usually found in the textbooks on
Political Economy. If I undersUmd you rightly, you advocate, as a remedy
for the evils we both discern, the adoption of a cash system of trading.
But I do not quite see how such a system is to be adopted, as long as it is
the interest — the immediate interest of firms to give the long credit you
speak of in order to obtain custom. That is (as you point out), excessive
competition is at the bottom of a reckless credit system, and the probleu.
is, how can we restrain this competition, and make it the interest of meu to
adopt a cash system. Take the analogous case of adulteration. This also
is the result of excessive competition. The problem is — How cari we make
it the interest of manufacturers to sell pure goods? It is a well-known fact
that honest manufacturers have reluctantly given in to the practice of
adulteration because they found that if they refused to execute the orders
offered them by merchants, other manufacturers accepted them, and they
were driven out of the market. Of course, where a great firm with an
established reputation have possession of a market, it may hf for their
interest to sell unadulterated goods — they may lose their market if their
goods deteriorate. But when manufacturers are seeking to make a rapid
fortune on borrowed capital, it is often for their interest to sell as much as
they can in as short a time as possible. They do not want to build up a
trade reputation, but to make money and to leave the trade.

Now I tried to show in my lecture the various restrictions which have
made it the interest of men to be honest and humane. You ainnot expect
the great ma«8 of men to be moral unless it is their interest to be moral.
That is, if the average man finds that honesty, instead of being the best
IK)licy, is the high road to ruin, he will certainly l»c dishonest, and the
whole comnnmity suffers. It is obvious that a man will not sell pure milk
if he finds that lie h being undersold by coui|)Ctitor8 who sell adulterated

65

66 Arnold Toynbee,

milk to careless and ignorant customers — a man will not sell pure goods of
any kind if he finds that he is being undersold by those who sell adulter-
ated goods. But why is it possible for the manufacturer to sell adulterated
goods? Because of the ignorance, apathy and helplessness of the isolated
consumer. If he is not apathetic, he is ignorant and helpless. What does
the ordinary consumer know about the quality of goods? Nothing at all.

Now I wished to show that owing to recognized causes consumers were
forming unions to buy goods — the organization of consumption was taking
place. And further I tried to hint the possible effects of this organization
of consumption on (1) adulteration, (2) fluctuation of prices due to abuse of
the credit system and the factory system. I think the cash system you
advocate might be possible, where consumers are organized in unions,
because it would there become the interest of both buyers and sellers to
adopt it.

I agree with you that it is quite possible that retail distribution in the
future will take place through enormous stores in the hands of companies
or private persons — that there is nothing magical in co-operative stores.
But whatever system prevails, there is no doubt that the excessive compe-
tition and waste in retail distribution will gradually diminish and that we
shall have, instead of innumerable shops, groups of large stores with thou-
sands of permanent customers. That is the first point — the organization of
consumption. Next it is an admitted fact that the producers and consumers
are drawing together owing to the telegraph and improved means of com-
munication. Intermediate agents are being eliminated. One result is
that long credits are not so necessary as before.

Now in these two points — the organization of consumption and the
eKmination of the distance between producers and consumers — I think,
lies our hope.

(1) For (throwing aside the idea of contracts for terms of years) it will
now be possible for the consumer through these stores to buy directly of
the producer. The intermediate dealers whose interest it was to "dare
forward," etc., are eliminated — the consumer buys, say, at the ordinary
trade credit. I need not attempt a more detailed explanation. The only
difficulty 1 see is that different manufacturers in competing for custom
might try and outbid each other, offering long credit ; but it is more prob-
able that the competition would affect price.

(2) As education and the taste for better goods grows stronger, the con-
sumer will be able through the stores to employ skilful buyers to select
unadulterated commodities which he individually could not do. The
lionest manufacturer would be protected from the competition of dishonest
rivals.

(3) Speculation being minimized owing to the elimination of the inter-
mediate agents, it would be possible for manufacturers to anticipate the
demand for goods — sud this would be facilitated by the concentration of
consumers.

The Work of Toynhee Hall 57

But I have said enough. I should like to have drawn out this idea in
greater detail, but I am pressed for time. I hope what I have written is
intelligible. The question I should like answered is — how would it be
possible to procure the adoption of a cash system as things are at present.
I do not wish to draw you into a correspondence, but I should like to have
an answer on that point. As I said in my last letter, I hope I may some
day have the pleasure of talking to you on this subject. I am,

Yours very truly,

Arnold TorNBEE.

P. S. — (1) Is it in the least probable that merchants would associate in
order to put an end to the abuse of the credit system ? Is not competition
too keen and are not interests too much at variance ?

(2) L^islation on this point would be impossible — would it not?

THE WORK OF TOYNBEE HALL.
By Philip Lyttelton Gell, Chairman of the Oouneil

I have been asked to add to this brief account of Arnold Toynbee an
equally brief description of the somewhat complex undertaking now widely
known as "Toynbee Hall." Without having been founded by Arnold
Toynbee, as is often imagined, without even aiming consciously at the em-
bodiment of his views, nothing could better prove the wide acceptance and
stability of those principles of social responsibility upon which Arnold
Toynbee in his short life insisted.

Those who have read the preceding pages will have gathered how
emphatic an answer Arnold Toynbee gave to the cynical or hopeless appeal
of the apostles of laissez-faire^ "Am I my brother's keeper!" In his own
aspirations, in his conversation, in his theories of politics and economics,
in the practical activity of his own life, this responsibility was the under-
lying and undyipg factor. The results of economical laws were to him not
forces to l>e noted and then accepted, but forces to be wrestled with and
controlled by the still 8U|>erlor ascendetiry of human character. His sense
of responsibility made him no Utopian philanthropist, his sense of human
injustice and human suffering never made him revolutionary, but only inten-
sified his civic earnestness. He was a good citizen who instinctively seized
upon each and everjr civic institution, seeking to increase its special effect-
iveness and to ennoble ita working for the benefit of his fellow citizens.
His views as regards the National Church system and Education, as regards
the Poor Law, the Volunteers or the Co-operativo movement, the teaching
of the Universities or the projects for their Extension in other cities, were
all referable to one drift of his character — a natural value for an institution

5

68 The Work of Toyiibee Hall

or an organization wherever it had grown up, a far seeing intuition as to
the ideal wliich it ought to serve in the interests of the common weal, and
an instinctive tendency to take his own share as a good citizen in its work.
I doubt whether this was conscious with him, but it was the same turn of
feeling that took him into his lodging in the East End, into workmen's
Clubs, or to the Board of Guardians and the Committee of the Charity
Organization Society, which enlisted him in the Volunteers, which made
him compete for a seat in his Town Council.

This appreciation of the influence and the duties of practical citizenship
was far from being limited to Arnold Toynbee. It was at Oxford a time of
reaction against the facile theories of the Radicals, of irritation against the
cheap philanthropy of "advanced"' views ending in no sacrifice of self; of
scepticism as to the value of political and social programmes which took no
account of the actual complexities of human life and character. At the
enggestion of Rev. S. A, Barnett, a liberal London clergyman in an East End
parish, who had many friends amongst us, a little University Colony had
already been formed in Whitechapel to do something for the poor, and
when we came to discuss tlie nature of our memorial to Arnold Toynbee, it
was natural with many of us to urge that a *' University Settlement in East
London" would be the most fitting monument to his memory.

At the time, however, the majority of his friends dwelt rather upon his
brief career as an economist, and it was decided to apply the fund placed at
our disposal, "The Toynbee Trust," to the investigation of practical points
of Political Economy. It was arranged that in each year a young econo-
mist should be appointed to spend the winter in some selected industrial
centre, giving lectures to the workmen, and simultaneously investigating
bome important local feature of the industrial organization.*

But in that first winter the whole heart of the nation was stirred by the
revelations of the Pall Mall Gazette as to the lives of the inhabitants of the
metropolis, the " Bitter Cry of Outcast London." The facts set forth were
neither new nor unknown. They were just those with which the clergy and
other workers in East London were most familiar as the daily burden of
their lives. But for once they were driven home into the hearts of the
well-to-do, and for a space a great deal of emotion was expressed. The
newspapers were full of East London. The air was alive with schemes for
wild legislation. High officials visited the slums in person. The fashion-
able world followed in their footsteps. "Sanitary Aid Committees" were
formed in every district to enforce upon landlords and parochial officials a
stricter oWrvance of the laws which should protect the homes of the poor.
For the first time the actual condition of the peo|)le flashed upon the gen-
erous feelings of the Universities. There were stirring debates at Oxford

1 The subject upon which reports have been thus prepared so far are " Industrial Arbi-
tration in the Northumberland Mining Industries;" "Economic Eflfects of Mining Roy-
allien;" "Morements of Population umougst Trades."

The W(yrk of Toynhee HaH, 59

and Cambridge. For the first time men were Btartled into a feeling of their
responsibilit/ towards the toiling millions whose labors make possible the
academic life. Mr. Darnett t-eized the moment to urge his project of a
University Colony in East London, where young men who had been touched
with sympathy for the lives of their poorer fellow citizens might live face
to face with the actual conditions of crowded city life, study on the spot the
evils and their remedies, and if possible ennoble the lives and improve the
material condition of the people.

The tinder took fire, and in a burst of general enthusiasm the " Univer-
sities Settlement Association " wjis formed to erect the necessary build-
ings— Lecture Rooms and Residential Chambers — and to provide funds to
support the undertakings of the Residents. The motives of the founders
cannot be better stated than in the words of the Appeal which we then
issued.

" For some years past the momentous spiritual and social questions in-
volved in the condition of the poor have awakened an increasing interest
in our Universities; and the conviction has grown deej)er that the prob-
lems of the future can only be solved through a more practical experience,
and a closer intinjacy and sympathy with the poor themselves.

"The main difliculty of poor city neighborhood, where the toilers who
create our national prosperity are massed apart, is that they have few
friends and helpers wiio can study and relieve their difficulties, few points
of contact with the best thoughts and aspirations of their age, few edumted
public-spirited residents, such as elsewhere in England uphold the tone of
Ijocal Life and enforce the eflHciency of Local Self -Government. In the
relays of men coming year by year from the Universities into London to
study for professions or to pursue their independent interests, there are
many, free from the ties of later life, who might fitly choose themselves to
live amongst the poor, to give up to them a portion of their lives, and
endeavor to fill this social void. The universal testimony of those best
acquainted with the squalor and degradation to which attention has been
lately directetl, afiirnis that there is less need of new legislation than of
citizens who will maintain the existing law and create a public opinion
amongst the |KK)r themselves. Upon the Vestries, upon the Boards of
Guardians, U[)on the Coumiittees of Schools and of every public undertak-
ing, eduaited men may find the opportunity of serving the interests of
their neighUirs: or even if such direct reH{)onsibilities cannot be assumed,
they may help to create amongst their fellow-citizens the public opinion
which insists on gtMid administration. University men have already
approached the Higiier Education of the working classes in the Univer-
sity Extension Scheme and institutions with similar aims. The results
have been most encouraging. The time has come for a far wider develop-
ment. Art and Industrial Exhibitions have to be organized at the doors
of the poor, and, what is more im|>ortant, explained sympathetically to the
throngs ready to vii»il them. Co-opcrutivo Societies have to be formed,

60 The W<yrk of Toynbee Hall,

their principles established, and their wider issues developed. Other
helpers are wanted for the work of the Charity Organization and Sanitary
Aid Committees, for the organization of Clubs, Excursions, Childrens'
Country Holidays, Concerts, and for every kind of Entertainment in which
the culture bom of ease may be shared with the toiling population.

" It is the object of the ' Universities' Settlement ' to link the Univer-
Bties with East London, and to direct the human sympathies, the ener-
gies, and the public spirit of Oxford and Cambridge to the actual conditions
of town life. During the last few years many University men, following in
the steps of Denison and Arnold Toynbee, have, on leaving the Univer-
sities for London, energetically responded to the varied calls for their aid.
Such isolated efforts are capable of infinite expansion were the way once
laid open, and it is now proposed to offer to those who are ready a channel
of immediate and useful activity and a centre of right living. In a coranion
life united by a common devotion to the welfare of the poor, those fellow-
workers who are able to give either their whole time or the leisure which
they can spare from their occupations, will find, it is believed, a support in
the pursuit of their own highest aims as well as a practicjil guidance which
isolated and inexperienced philanthropists must lack."

The residents (who live at their own charges)* have, by this time, under
the general direction of Mr. Barnett, turned into fact many of the projects
thus set before them. Upwards of 50 men have made their home for a
time at Toynbee Hall, many having now gone on to their life work, richer
in social experience and wider in human sympathy. The places of thase
who have left have been filled again and again, and the Chambers are
generally occupied. Around the Residents a body of about 100 "Associ-
ates" have gathered whose homes lie elsewhere, but who co-operate with
the residents in their undertakings, while the Guest rooms have afforded
a temporary hospitality to constant relays of friends. Graduates and Under-
graduates, who come to help or to learn for a few days at a time. Indeed
the "Settlement" tends more and more to become a house of call for earnest
men of all classes, drawn thither by their work, their enquiries, their friend-
ships, or invited for the particular discussion of some social problem.

One object at least of the founders of the Association has been thus
attained in the intercourse established between the life of our Universities
and the life of our East End citizens. Meanwhile Toynbee Hall has
already succeeded in making its influence widely felt among the crowded
population in whose midst it is placed. By the working classes of East
London it is rapidly being accepted as the visible embodiment of the
almost legendary life and culture of the old Universities.

It would take too long to enumerate in detail all the educational and

• The Bentals paid by them vary accordinfj to accommodation. They average about £1
weekly. The arranKemenUt for Itoanl and .Service are managed by a Committee of the
IteaideDta and antouni to about 26 ahiUiagii s week more.

The Work of Toynbee Hall. 61

social work in which the residents are engaged. They themselves possihly
would feel they had won Buccess in the degree to which they had kindled
local opinion and enlisted in every kind of public undertaking the inde-
pendent co-operation of their neighbors. The residents would judge them-
selves not so much by what they do, as by what they establish ; not by the
results which they could report, as by the spirit they have engendered. It
is not, we believe, through external interference, but through the develop-
ment of individual character, through the kindling of local opinion, through
the education of civic spirit, and the direction of local energies, that ground
can be permanently gained. In a democratic country nothing can be firmly
achieved except through the masses of the people. Legislation may strike
off the shackles of evil custom, and may supply methods of action, but when
the people is enthroned, it is impossible to establish permanently a higher
political life, or a more perfect social organization than the people crave
for. Every social question has thus a moral question behind. Apathy, iso-
lation, ignorance, selfishness in the masses — these are the powers of resist-
ance to be vanquished before, by any chance, a self-governed people can
possibly come to be a well-governed people.

It is not therefore so much by what they have done that the residents
would coimt their days, as by what they may have led others to do. Has
any one, coming to Toynbee Hall whether as boy or man, as a student, as
a guest, or as a coadjutor in some social undertaking, gained an idea or a
method, a belief, a sympathy or a principle which will take its own root in
him and bring forth fruit for others' service? Has any one coming from
East London or West become inspired with a higher sense of personal and
civic duty, with a fuller faith of what can be attained by the fellow-service
of fellow-citizens, and by an insight into the possibilities and the methods
of social CO operation? Above all, has any one coming to Toynbee Hall,
whether rich or poor, found there new sympathies, interests, and friend-
ships, and left it with his old sense of class distinctions, class prejudices,
and class antagonisms effaced, in a deeper conviction of human brotherhood
and in the acknowledgment of a common responsibility for the common
goixi?

Such at least would be our hope. How far realized we cannot judge.
We can only indicate a few of the tangible undertakings which have begun
to take root at Toynbee Hall.

Not only has the Hall lKH?ome the centre of educational effort and social
life in Whitechai)el, but its nieml>ers have gone out to take their share in
the local government of the district and in all the various forms of public
work, to which the manifold neecis of a poor, populous, and neglected neigh-
borhood give occasion.

The public rooms of the Hall have become an arena for the diHCiission of
every kind of view, and a meeting place for every class. They have also
been made a social centre for every branch of East End life and work, where
our hospitalities have been extended to co-operatore, workmen's clubs of all

62 The Work of Toynhee Hall

kinds, students of every degree, elementary teachers and the representatives
of every social movement amongst the people around. It is no exaggeration
to say that many thous;inds of our poorer fellow-citizens, to whom Toynbee
Hall was dediraled by the Universities four years ago, have found recreation
and benefit in the rooms established for their use and entertainment.

On the educational side Toynbee Hall has been made the most prominent
centre of " University Extension " in East London. A free students' library
has been built auvl tilled with books and readers, lectures and reading clubs
ranging over the most varied subjects of moral, literary and scientific inter-
est have been instituted. Technical classes have been established, nmsical
societies have been formed, and above all the elementary schoolmasters and
pupil teachers of the neighborhood, upon whom depends the future of the
rising generation of citizens, have been welcomed to the society and the
educational advantages of the Hall.

The educational associations which have gathered around us, besides
promoting knowledge and developing intellectual interest, have created a
spirit of comradeship among the students, inspiring them with a healthy
sense of being fellow laborers in a great cause. Some of the most zealous
local studenta, who are already more or less at home in Toynbee Hall, have
taken up residence under academic discipline in " Wadham House," an
adjacent building provided for the purpose by residents and their friends.
Earning their living during the day, in the evening they pursue their
studies in connection with our varied educational classes, and also take their
part in its social work. The home thus offered to men who have to make
their own fight for each step in self-improvement, introduces into the heart
of East London the elements of an intellectual society, and it promises to
form an independent centre of energetic practical citizenship.

It may afford some insight into the magnitude and variety of the claims
made upon the time and energy of the inmates of Toynbee Hall, to give a
summary of the work done by one of their number, though most of them
have their own employments which limit their energies within bounds
somewhat more circumscribed. Besides conducting a class of University
Extension Students in popular Ethics, another of Pupil-teachers in English
Literature, a class of workingmen in lolilical Economy, and a Sunday Bible
Class of members of the St. Jude's Juvenile Association, the resident in
question acted as Secretary to one of the Local Committees of the Charily
Organization Society, as Secretary to a Ward Sanitary Aid Committee, as
a School Board Manager, and finally as a member of the Board of Guardi-
ans. In each of these capacities he foimd new fields of work opening out
before him. The Political Economy Class served as the nucleus of a body
of workmen, who, as members of relief committees and as managers of the
newly-started Recreative Evening Classes in Board Schools, have begun to
do excellent service in charitable and educational administration, and have
thus given practical evidence of the possibility of developing among the
artisans of East London that spirit of citizenship— a very different thing

The Wo)'k of Toipibee HaU, 63

from political partizanship— which it should be the object of all true
reformers to call into existence among the body of the i>eople. In addition
to these numerous undertakings, in all of which his eflbrts have been
directed to evoking the co-operation of the people themselves, the resident
in question has found time to devoJe many evenings to a boys' club, where
boxing and single-stick have been substituted for mere horse-play with
excellent effect upon the conduct and l>earing of the lads. He has also
takt-n a part in organizing foot-ball among the Board Schools of the district.

Records of similar, though in each case individual and distinctive, activity
might be given with respect to other residents, but it is only possible to
notice some of the principal results. The " Whittington," a club and home
for street boys, was opened in 1885 by Prince Edward of Wales. It has
<lone much useful work, and a cadet corps of Volunteers has been formed
there. An effort has been made to unite the boy pupil-teachers of all the
London Elementary Schools into one community, and by the agencies of
cricket, rowing, and debating clubs, to kindle amongst them that egprit de
corps which so strengthens the morale of our higher public schools. Numer-
ous classes for pupil-teachers are conducted by members of the Hall, in all
of which the object kept in view is not so much to increase the information
of the already over-crammed, as to quicken their intellectual interest and
widen their sympathies.

The Sanitary Aid Committee, which has its head-quarters at Toynbee
Hall, has resulted not only in the renioval of a number of specific nuisances,
but in greater vigilance both on the part of the landlords and of the local
authorities with regard to the condition of tenement houses. The oppor-
tunity which the visitors gain of becoming acqnninted with the lives of the
people and of entering into friendly relations with them is a secondary but
valuable result.

Such are some of the undertakings whicli now centre round Toynbee
Hall. It is an enterprise which if patiently and loyally maintained and
effectively developed cannot but beget experience v.hich will react most
practically upon the thought of the educated classes on whom in a demo-
cratic country falls so deep a responsibility for local and central good gov-
ernment. The present residents at Toynbee Hall are we hoi)e the pioneen*
of a permanent movement re-establishing amongst the leisured classes the
sense of their civic obligations. In the meetings which are held in the
various Colleges in support of the work, the interest of the undergraduates
is attracted to the social questions which confront their representatives in
Wliitcchapel, and seed is sown which will bear fruit in years to come, when
the undergraduates of to-day become the administrators, the landlords, the
journalists, the law makers, the public opinion of their time. Later as
these tmdergraduates leave the university, Toynbee Hall offers to all an
opportunity of dire<t personal experience of social problems, and a channel
for the expression of every social sympathy. These are among the advan-
tages with which the movement has endowed the Uaiversities. Yet on the

64 The Work of Toynhee HaU.

other side we are glad to realize how much tangible good our fellow citizens
have reaped in education, in enlightenment, in social stimulus, in the
development of local life and the reform of local evils. The principle of
personal service, personal knowledge and personal sympathy remains the
key-note of every endeavor. On each side men have learnt to appreciate
each other better, and many a link of cordial and deep-rooted friendship,
ba'^ed on common tastes, common associations and common work for others'
good, now binds together classes which had otherwise been strangers, and
possibly antagonists.

Philip Lyttelton Gell, M. A.,
Chairman of the Council.
Clarendon Press and Balliol College, Oxford.

THE NEIGHBORHOOD GUILD IN NEW YORK.
By Charles B. Stover, A. B.

An apology for appending to the foregoing narrative of the splendid
achievements of Toynbee Hall an account of the small doings of the
Neighborhood Guild is supplied first, by the fact, that in some measure
the desc-ent of the Neighborhood Guild is traceable to Toynbee Hall, and
secondly, by the endeavors of the Guild to become the To3rnbee Hall of
New York City.

The Neighborhood Gaild was founded by Mr. Stanton Coit early in 1887,
at 146 Forsyth St., New York. After a residence of several weeks among
the tenement-house people, face to face with the great problems presented
by their lives, Mr. Coit began his work of reform in a tentative manner, by
inviting to his own cheerful apartments a club of half a dozen boys, who
had been meeting in the dismal room of a poor old blind woman. These
boys brought in others, and soon Mr. Coit felt encouraged to rent the base-
ment of the tenement, in which he lived, for a club-room. Here the boys,
or young men, their average age being eighteen years, were organized into
a club. And afterwards, as the necessary volunteer workers were secured,
three other clubs were formed, one consisting of young women, another of
little boys, and the last, of little girls. A kindergarten also was established
at an early date. These various organized bodies of young people together
form the Neighborhood Guild. Its motto is: " Order is our Basis; Improve-
ment our A im ; and Friendship our Principle.**

In the second year of the Guild's history, the formation of a similar set
of clubs was undertaken in Cherry St., and now is being carried on with
Buch ease that our caustics in the air become less insubstantial, and our
hope grows firmer that the Guild may multiply its clubs on all sides, until,
let us say, they shall be found in every election-district of our city ward.
Then, when the whole people shall be organized for reform, when all the
latent love of the beautiful and the right which the coarseness of tenement-
house life and the cares of poverty blast and make unfruitful, shall be
stirred up and develoi)ed by extensive cooperation for individual and social
progress, then shall the workers for righteousness strive to some purpose.
But now the workers of iniquity flourish. The poor people of our district
are represented in the State A»^mbly by one of the most notorious scamps
in the history of New York politics, — a saloon-keeper, a gambler, a friend
of "crooks" and a tool of lobbyists. Four times in sucoession this law-
breaker has been elected a law-maker of the Sute of New York. "He
6 66

66 The Neighborhood Guild in New York,

knows every man, woman, and child in the ward." There is the secret of
his i>ower. So says one of his *' heelers." Verily the children of this world
are wiser in their methods of work than the children of light.

Thus to organize the young i)eople into numerous cluhs is to take advan-
tage of their social instinct which, in our tenement-house district, is already
finding its gratification in countless " Pleasure Clubs," the height of whose
ambition is a chowder-party in summer and a ball in winter. These
Pleasure Clubs encourage lavish expenditure of small earnings, vulgarize
the tastes, and readily become centres of political jobbery. The Neighbor-
hood Guild Clubs are designed to encourage thrift and fellow-helpfulness,
to purify and exalt the tastes, to excite opposition to all forms of injustice,
and to kindle devotion to the common weal.

I shall write but briefly of the Guild's forms of entertainment and educa-
tion, which for the most part are those employed at Toynbee Hall and in
the "Annexes" of modern churches; and then more fully of the Guild as
a College or University Settlement. Kach club meets twice a week. In the
older clubs one-fourth of the income from the weekly fee of ten cents is
spent for the relief of the sick and the poor. It is our endeavor also to
have the clubs bear a portion of the expense of practical reforms. They
bore one-third of the exijcnse of keeping our street clean during the summer
The Kindergarten, in charge of two well-trained teachers, gleams like a
fairy-land amid the gloomy and depressing tenements. Of the fifty children
in attendance at the close of last session, but three are in this year's class.
This may be largely ascribed to the removal of families, which among the
poor of the city so often interrupts good influences. The untamed small
boys, though long su! jected to our strongest subduing forces, are still sadly
l)rone to remind us, that for them, to be noisy is to be happy. They tire of
every game but base-ball. The piano and song are great aids to composing
their wild spirits. The chief instruction given tiie two girls' clubs is in
housewifely duties. The lari^er girls have been carefully trained in hand-
sewing, including the art of fine embroidery. Several times they have
cooperated with the young nien's chib in getting up musical, literary, and
theatrical entertainments. The young men have received the most varied
instruction, embracing clay-modelling, wood-carving, debating, public decla-
mation, parliamentary practice, singing, drawing, gymnastic and military
drilling. Numerous desidtory lectures have been delivered. At present a
somewhat systematic efl<)rt is being made to give them a grasp of the lead-
ing phases of the world's history. Several classes in elementary studies
have been formed.

Our *' Dancing Evening," for a while weekly, then, as our more serious
work increased, semi-monthly, is to be reckoned among the educational, as
well as among the entertaining, meetings of the Guild. Only an ignorant
fanatic could say that by permitting the young men and the young women
to dance together, we are training them for the Bowery dance-halls. People
of common sense, with no slight disapproval of dancing, have come here

The Neighborhood Guild in New York. 67

and for a long while observed its effects upon these yonng people, and now
unhesitatingly declare that these social meetings, always under the super-
vision of some of the Guild's workers, have proved a school of graceful,
modest, and chivalrous manners, all the corrupting influences of dance-hall
and fashionable ball to the contrary notwithstanding.

In the summer-time, to a limited extent the clubg leave the city for a
breath of fresh air. The little girls, in several parties, spent a week at the
country home of their teacher. Very generous invitations were extended
to the young women's club to spend a week or more at the sea-shore, and to
the young men's club to summer in the Cat«kills ; but not one of the young
men could leave the city, and only three of the young women could go away,
chiefly because their employers would not grant them leave of absence.
Several excursions of a day have been made by two or more of the clubs to
the shores of Staten Island, where bathing, boating, and athletic sports
afforded grateful recreation.

The work of the Guild, as thus outlined, is carried on in the main by
volunteer worker:*, who in this second year of the Guild's history numbered
twenty-two, one-half ladies and one-half gentlemen. Of these workers the
great majority are up-town residents, wiio come to the Guild an evening or
two every week. They bring with them gentleness, kindness, culture,
knowledge, a rich store of human sympathy, and open eyes to discern the
signs of the times. These are some of the strands which help to bridge
over that angry flood of passions which is ever tending to sweep the social
classes farther apart. The Guild is not tainted with fashionable "slum-
ming." A little of its work has been done up town. One lady in her own
liome instructed a young man in piano-playing and singing; another in her
own home instructed a girl in embroidering; and still another gave lessons
in wood-carving to three young men. Would there were more such inter-
course between up-town people ami tenement-house people! The Guild
aims to be a mediator between the cultured and the uncultured, between
the gifted and the ungifted. Yc that have talent**, why not impart to
him that has none? What a university might be established in this city,
its curriculum perhaps not as varied as that of a regular university, but
possessing an unrivalled endowment of saving social forces, if a thousand
young men and women from the tenement-houses were welcomed weekly
into as many different homes of the up-town people, there to receive some
acquirement from more gifted fellow-creatures I

The Guild's most distinctive feature is found in ita College men, resident
together in a tenement-liouse. Of these there have been five, — Mr. Stanton
Coit, Ph. D. (Berlin Univ.), Mr. E. 8. Forbes, and Mr. W. B. Thorp, all
Amherst graduates; Mr. M. I. Swift, Ph. D. (Johns Hopkins University),
a Williams graduate, and the writer, a I.4ifayette graduate. Three of these
men have been Htudents at the University of Berlin. Mr. Coit, during his
student life abroad, became well ncr|uainted with Toynl)ee Hall, where he
was enriched with new ideas and impulses. HoweTer, his prime endeavor

6^ The Neighborhood Guild in New York.

here seems to have been not to model the Guild after Toynbee Hall, viewed
as a University Settlement, but rather, in accordance with his own ethical
system, so to organize the people around the family, as the unit, as to origi-
nate forces of social regeneration. This organization has not extended to
the parents. In describing his work among the young, Mr. Coit has said
that he resolved to do for them, what parents of wealth and leisure would
do for their children. Also another Guild resident came in contact with
Toynbee Hall while abroad, and, at the first moment of his acquaintance
with the Guild, became attached to it by the expectation of its becoming
another Toynbee Hall. I well remember when in May, 1887, I asked
Mr. Coit whether such might not be the development of the Guild, he
replied, " Will you help to make it a Toynbee Hall." He made special
trips to Amherst and Johns Hopkins to enlist men in the movement. Mr.
Swift, for whom the idea of a People's University had great attractions,
helped along the Toynbee Hall movement here by his successful manage-
ment of a Social Science Club, in which, to a limited extent, workingmen
were brought in contact with University men.

Let us notice some of the reasons for developing the Neighborhood Guild
into a Toynbee Hall. First. There is a numerous class of educated young
men, who are deeply interested in the social problems of to-day, their sympa-
thies for human suffering the warmest, who yet would be hampered, if put
in ecclesiastical leading-strings. Such would find a field of labor in a
Toynbee Hall. Let it not be thought, that I presume to speak to the dis-
credit of the Church. I am regarding her conservatism in methods of work
simply as a matter of fact, which exercises a decided influence over the
career of many a young man. I know that one, inspired by the love of Christ
and his fellowmen, applied for work to a person in authority in city evan-
gelization, and was dismissed with the rash words: "The Lord God has no
work for you to do ; " because, forsooth, his theology seemed "wishy-washy"
to the rigid dogmatist. Such a young man is welcome here. Not because
the Guild has a liking for vague theology, but because it believes that this
world is too badly off to afford to let a single spark of enthusiasm for
humanity be quenched.

Further, a Toynbee Hall could easil^j approach the workingman, who is
now estranged from the Church. Ex-Pres. McCosh has lately said that
when he first visited our country, he was often asked, " What do you think
of our congregations?" and he answered, "I think much of them, but
where are your lal)oring classes?" and he adds, "Where is the laboring
man in our Churches? is the question I am still putting, seeking an answer."
It should also be noticed that the Church is much estranged from the tene-
ment-house districts. As the Churgh is doing very little for the down-town
people, a University Settlement would here find a large field of labor. These
people should not be utterly forsaken. According to the New York "City
Mission Monthly," in our ward, the 10th, the population is 47,554, and the
number of churches and chapels, five. And according to Dr. Josiah Strong,

The Neif/hborhood Guild in New YorL 69

while the increase in the population of New York City, since 1880, was
300,000, the increase in the number of churches, during the same period,
was only four. I do not wish to imply that a Toynbee Hall would be a
complete substitute for the vanislied churches; but would anyone deter
another from pouring balm upon a cut finger, because there is no surgeon
at hand to remove some internal cancer? So I believe in this Univei*sity
movement, because it does benefit men. How far it falls short of blessing
and regenerating the entire man does not enter into consideration now.
Tnis is the Guild's relation to the Christian Church. Never, not even when
Mr. Coit was here, was the Guild antagonistic to the Church. I say, not
even when Mr. Coit was here; for his late position, as Assistant Lecturer
to the New York Society for Ethical Culture, seems to have created, in some
minds, the impression that this Guild is a work of that Society, and that the
spirit of Ethical Culture, with its pronounced repudiation of all theology,
rules in the Guild. These notions are utterly false. The personal help of
Christians in the Clubs was always welcomed by Mr. Coit; and we have
even been scrupulous enough to hold all our meetings on week-days, that
on Sunday no member of the Clubs might be withdrawn from attendance
on Sunday School or Church.

Further, various educational, sanitary, social, and political reforms could bo
undertaken by a Toynbee Hall with fewer restraints than they could by the
Church. Certainly in political action it could engage with a freedom to
which the Church is a stranger. From a Toynbee Hall might proceed a
thorough purification of this sink of political corruption. Persons resident
here would acquire that familiarity with the men and the affairs of the
district which is so necessary for a successful reform movement. Our local
"boss" says: "We will not allow the residents of Murray Hill to dictate
to us." May the time come when a large band of intelligent, fearless, and
public-spirited young men, residents here, shall labor perseveringly for the
purity of the ballot and the dethronement of the corrupt " bosses 1 "

Something may be said also in favor of such a University Settlement
from a purely intellectual point of view. That the University-bred mind
would itself be profited by frequent contact with the masses of a great city
no one doubts. But very generally it is supposed that the University-bred
mind is altogether unsuited to instruct and inspire the masses. I remember
that once in a Social Science Club, made up, according to the Club's par-
lance, of proletaires and professor.^, a University man, having alluded to the
difficulty, which a person like himself has in reaching the understanding
of the people, a workingman remarked, — "I once heard Huxley lecture
and had no difficulty in understanding him." Does the multitude have
any difficulty in understanding the political addresses of our leading
lawyers and statesmen? Is the popular mind capable of grasping only
the platitudes of pettifoggers? Why h it that in New York City the ablest
ami most attractive preachers are in the pulpits of the rich? If Christ and St.
Paul were here, would they confine their preaching to wealthy churches, and

70 The Neighborhood Guild in New York.

think the poor of the tenements quite incapable of appreciating their ser-
mons? I dare say that the most powerful and popular of the preachers to
men of wealth and culture could, with little effort, render themselves both
powerful and popular in the slums. Let not the University men be misled
by the foibles of the Church. A great work can be done by them right in
the heart of the tenements. That the intellectual barriers to their success
can be overcome, the story of Toynbee Hall amply testifies.

May this monograph concerning Arnold Toynbee and the accompanying
sketch of the work of Toynbee Hall incite many an American student to a
similar work in his own land t

II-III

The EstaWistmieQt of Miinicipal Government

IN

SAN FRANCISCO

JOHNS HOPKINS UNIVERSITY STDDIES

IN

Historical and Political Science

HERBERT B. ADAMS, Editor

Hist 017 is past Politics and Politics present History — ^eewMm

SEVENTH SERIES
II-III

The EstalilisliDieflt of Municipal Goveromeot

IN

SAN FRANCISCO

By BERNARD MOSES, Ph. D.

Pn^f—or <^f Hiatory and PolUiet in ttu UnivertUy qf Cal%^omia

BALTIMORE

PUBLIOATIOir AOBMCT OF THE JoiIHS H0PKIW8 UXIVKBSITr

February And M»roh, 1880

Copyright, 1888, by N. Murray.

JOHN MURPHY A CO., PRINTERS,
BALTIMORE.

THE ESTABLISHMENT

OF

MUNICIPAL GOVERNMENT IN SAN FRANCISCO.

The events associated with the establishment of a municipal
government in San Francisco extend over three quarters of a
century, from the foundation of the Spanish pueblo, in 1776,
to the adoption of the city charter passed by the first legisla-
ture of the State of California, in 1851. Within this time it
is possible to observe three somewhat clearly defined periods.
The first is the period of Spanish settlement and stagnation ;
the second is the period of transition, extending from the
Conquest to the adoption of the charter of 1850; the third
period ends with the adoption of the charter of 1851.

I.

The site of San Francisco was first trodden by Europeans
in the autumn of 1769. At the same time, the bay of San
Francisco was discovered. About three years later, in the
spring of 1772, Pedro Fages and his followers looked out
through the Golden Gate from the foot-hills of Berkeley.
Towards the end of 1774, Bucareli, the viceroy of Mexico,
wrote to Rivera and Serra that he intended to establish a
presidio at San Francisco, and by an order dated November
12, 1775, he gave directions for the foundation of a fort,
presidio, and mission on the bay of San Francisco. On the
12th of June, 1776, an overland expedition left Monterey to

6

6 The Establishment of Municipal Government [76

carry out the order of the viceroy. It was composed of the
lieutenant commanding, Don Jos6 Moraga, one sergeant, six-
teen soldiers, seven settlers — all married men with their fam-
ilies— and a number of other persons, as servants, herdsmen,
and drovers, who drove the two hundred head of neat cattle
for the presidio, and the pack train with provisions and neces-
sary equipage for the road.^ They arrived on the 27th of
June. The rest of the equipment was sent from Monterey
by sea in the vessel "San Carlos," which arrived on the 18th
of August. The site of the presidio having been determined,
several rude buildings were erected. These were a storehouse,
a chapel, the commandants dwelling, and dwellings for the
soldiers and their families. The ceremony of taking formal
possession followed on the 17th of September. Father Palou,
one of the two priests who had been sent with the expedition
to establish a mission at San Francisco, thus records the event
in which he was a principal actor : " We took formal posses-
sion of the presidio on the seventeenth day of September, the
anniversary of the impressions of the wounds of our Father
San Francisco, the patron of the presidio and mission. I said
the first mass, and after blessing the site, the elevation and
adoration of the Holy Cross, and the conclusion of the service
with the Te Deum, the officers took formal possession in the
name of our sovereign, with many discharges of cannon, both
on sea and land, and the musketry of the soldiers." ^ The
seventeenth of September, 1776, may therefore be set down
as the date of the foundation of San Francisco. The cere-
monies attending the foundation of the mission at San Fran-
cisco were held on the 9th of the following October.

From this beginning grew the town or pueblo of San Fran-
cisco, which, like the pueblo of San Diego, Santa Barbara,
or Monterey, was an off-shoot of a presidio. It is to be dis-

* Palou, " Vida de Junipero serra," cap. xlv ; also, Palou, " Noticias de
la Nueva California," Parte Cuarta, cap. xviii.
' Palou, " Vida de Junipero Serra," cap. xlv.

77] In San Francisco, 7

tinguished from two other classes of pueblos, namely, those
pueblos which were founded as such, and those which grew
out of mission establishments. Vancouver has given a de-
scription of the presidio as it appeared in 1792, sixteen years
after its foundation. " Its wall, which fronted the harbor, was
visible from the ships ; but instead of the city or town, whose
lights we had so anxiously looked for on the night of our
arrival, we were conducted into a spacious verdant plain, sur-
rounded by hills on every side, excepting that which fronted
the fort. The only object of human industry which presented
itself was a square area, whose sides were about two hundred
yards in length, inclosed by a mud wall, and resembling a
pound for cattle. Above this wall the thatched roofs of their
low, small houses just made their appearance. Their houses
were all along the wall, within the square, and their fronts
uniformly extended the same distance into the area, which is
a clear, open space, without building, or other interruptions.
The only entrance into it is by a large gateway ; facing which,
and against the center of the opposite wall or side, is the
church ; which, though small, was neat in comparison to the
rest of the buildings. This projects further into the square
than the houses, and is distinguishable from the other edifices
by being white-washed with lime made from seashells; lime-
stone or calcareous earth not having yet been discovered in the
neighborhood. On the left of the church is the command-
ant's house, consisting, I believe, of two rooms and a closet,
which are divided by massy walls, similar to that which incloses
the square, and communicating with each other by very small
doors. Between these apartments and the outward wall was
an excellent poultry house and yard, which seemed pretty well
stocked ; and between the roof and the ceilings of the rooms
was a kind of lumber garret : these were all the conveniences
the habitation seemed calculated to afford. The rest of the
houses, though smaller, were fashioned exactly after the same
manner, and in the winter or rainy seasons must, at the best,
be very uncomfortable dwellings. For, though the walls are

8 The Establishment of Municipal Govemmerd [78

a sufficient security against the inclemency of the weather, yet
the windows, which are cut in the front wall, and look into
the square, are destitute of glass, or any other defense that
does not at the same time exclude the light.

" The apartment in the commandant's house into which we
were ushered was about thirty feet long, fourteen feet broad,
and twelve feet high ; and the other room or chamber I judged
to be of the same dimensions, excepting in its length, which
appeared to be somewhat less. The floor was of the native
soil, raised about three feet from its original level, without
being boarded, paved, or even reduced to an even surface ; the
roof was covered with flags and rushes, the walls on the inside
had once been white- washed ; the furniture consisted of a very
sparing assortment of the most indispensable articles, of the
rudest fashion, and of the meanest kind, and ill accorded with
the ideas one had conceived of the sumptuous manner in which
the Spaniards live on this side of the globe." ^

The presidio was directly under military rule, and repre-
sented the military element in Spanish colonization : while
the pueblo and the mission represented the civil and religious
elements respectively. In the beginning, the officers of the
presidio of San Francisco were a lieutenant and a sergeant,
assisted by a corporal or corporals.^ Lieutenant Jos4 Moraga
was commandant until his death, in 1785, and Pablo Grijalva
was sergeant until 1787. In the presidial settlements of
Spanish America we observe the carrying out of the Roman,
rather than of the British, system of colonization. The main

' Vancouver, "A Voyage of Discovery to the North Pacific Ocean, and
Round the World," III, 9-12; Hittell, 1, 551, 583.

^ De Mofras, writing of California between 1840 and 1842, sets down the
annual cost of maintaining each presidio as about $55,000. Out of this a
lieutenant is paid $550, a health officer, $450, an ensign, $400, a sergeant,
$265, a corporal, $225, and seventy soldiers, $217 each. Each soldier had
seven horses and a mule, kept on the king's farm. Artillery men were
furnished from the marine department of San Bias. "Exploration de
rOregon et dea Californies," I, 287.

79] In San Francisco, 9

fanction of the presidio was to furnish military protection to
the missions, and to such pueblos as were established within
the limits of its jurisdiction, either as independent settlements,
or as an outgrowth of the presidio itself. The abolition of the
presidios as military posts was not thought of, because no time
was foreseen when the country would no longer need an armed
force. »

The missions, on the other hand, were designed as tempo-
rary establishments. " It was contemplated," says Judge
Felch, " that in ten years from their first foundation they
should cease. It was supposed that within that period of time
the Indians would be sufficiently instructed in Christianity
and the arts of civilized life, to assume the position and char-
acter of citizens ; that these mission settlements would then
become pueblos, and that the mission churches would become
parish churches, organized like the other establishments of an
ecclesiastical character, in other portions of the nation where
no missions had ever existed. The whole missionary estab-
lishment was widely different from the ordinary ecclesiastical
organizations of the nation. In it, the superintendence and
charge was committed to priests, who were devoted to the
special work of missions, and not to the ordinary clergy.
The monks of the College of San Fernando and Zacatecas, in
whose charge they were, were to be succeeded by the secular
clergy of the National Church ; the missionary field was to
become a diocese, the president of the missions to give place
to a bishop, the mission churches to become curacies, and the
faithful in the vicinity of each parish to become the parish
worshippers."* "The Spanish government," says Hittell,
" had from the very l>eginning contemplated secularization by
finally transforming the missions into pueblos ; but the plan
was based upon the idea of first educating the neophytes up
to self-sustaining industry and citizenship."* The essentially

* Opinion in the California Board of Land Commlnionera, in the
the Biithop of California's petition for the churches.
'"Hiatory of California," I, 607.

10 The Establishment of Municipal Government [80

temporary character of the missions rendered it impossible
for them to acquire full ownership in the lands which they
used. These lands " were occupied by them only by permis-
sion, but were the property of the nation, and at all times
subject to grant under the colonization laws."^

The towns or pueblos, however, were looked upon as
permanent institutions. The earliest towns of California
were organized under the laws of Philip II., which specified
two forms of settlements that might participate in the rights
of a pueblo : 1, that made by a person under a contract with
the government ; 2, that made by a number of private per-
sons acting under a mutual agreement among themselves.
The conditions of the contract between the founder of the
settlement and the government were : " That within the
period of time which may be assigned to him, he must have
at least thirty settlers, each one provided with a house, ten
breeding cows, four oxen, or two oxen and two steers, one
brood mare, one breeding sow, twenty breeding ewes of the
Castilian breed, and six hens and one cock.'^ The contractor
was, moreover, required to appoint a priest to administer the
holy sacrament, and to provide the church with ornaments,
and things necessary for divine worship. After the first
appointment, the church was to be subject to royal patronage.
Failure on the part of the contractor to comply with his
obligation, would subject him to a loss of whatever he had
"constructed, wrought, or governed,^' which would be applied
to the royal patrimony, and he would, furthermore, incur the
penalty of one thousand pounds of gold ; but compliance
with the terms of his obligation, would entitle him to four
leagues of extent and territory in a square or prolonged form,
according to the character of the land, in such manner that
if surveyed there would be four leagues in a square. A final
condition of this general grant was, that the limits of this
territory should be distant at least five leagues from any

» Howard, U. 8. S. C. Rep., p. 640.

81] In San Francisco, 11

city, town, or village of Spaniards previously founded, and
that there should be no prejudice to any Indian town or
private person.* Regarding the second form of settlement,
the law provided that when at least ten married men should
agree to form a new settlement, there would be given them
the amount of land before specified, and also " power to elect
among themselves alcaldes, with the usual jurisdiction, and
annual officers of the council." ^ And " when a pueblo was
once established, no matter how or by whom composed, and
officially and legally recognized as such, it came immediately
within the provisions of the general laws relating to pueblos,
and was entitled to all the rights and privileges, whether
political, municipal, or of property, which the laws conferred
upon such organizations or corporations;"* and "among
these rights was the right to four square leagues of land, in
the form of a square, or in such other form as might be per-
mitted by the nature of the situation." * The possession of
this land, however, was not dependent on a " formal written
grant." * The situation of San Francisco made it impossible
for the town to obtain four square leagues in a square. Its
territory was " bounded upon three sides by water, and the
fourth line was drawn for quantity, east and west, straight
across the peninsula, from the ocean to the bay. The four
square leagues (exclusive of the military reserve, church
buildings, etc.) north of this line, constitute the municipal
lands of the pueblo of San Francisco," •

After the secularization of the mission at San Francisco,

' " Recopilacion de Leyes de laa Begnos de las Indias," Libro iv, Titulo
▼, Ley vi.

' " Recopilacion de Leyes de las Kegnos de las Indias," Libro iy, Titulo
T, Ley V.

•Hart v$. Burnett, Cal. Rep., 16, 641.

* Stevenson w. Burnett, Cal. Rep., 36, 432.

^Hart ra. Burnett, Cal. Rep., 15, 542; Stevenson m. Burnett, CaL Rep.,
86,433.

* Payne A Dewey m. Treedwell, Cal. Rep., 16, 230.

12 The EstablishTnerd of Municipal Government [82

it was known sometimes as the "Pueblo de Dolores," but
it had no separate municipal organization, and occupied the
same legal position as some of the smaller "pueblos" of
Mexico at the present time ; it was embraced within a muni-
cipality of another name, to whose organization it was sub-
ordinated.^

Many of the fundamental provisions regarding the local
government of California under the old regime are derived
immediately from the Spanish constitution of 1812, and a
decree of the Spanish Cortes of the same year. These laws
provided for town governments, composed of alcaldes, coun-
cilmen, and syndics, to be elected by a system of indirect
election. Towns having less than one thousand inhabitants
were required, on some holiday in the month of December,
to elect nine electors ; those having more than one thousand
and less than five thousand, to elect sixteen ; and those hav-
ing more than five thousand inhabitants, to elect twenty-
five electors. The constitution specifies with respect to this
primary election, simply, that the citizens of the city or town
shall assemble annually in the month of December, and elect
a certain number of electors. But the Spanish Cortes of
May 23, 1812, in order to avoid difficulties that might arise
in a large town, or where the population subject to the gov-
ernment was scattered over an extensive area, decreed that
each parish might constitute an electoral district, and elect
the number of electors to which its proportion of the total
population would entitle it. Where several small towns
were united under a single government, no collection of less
than fifty inhabitants would have the privilege of nominating
an elector; but if the number of parishes happened to be
greater than the number of electors to be appointed, still, in
spite of all other provisions, each parish would be entitled to
one elector. These provisions were made to apply not only
to towns whose inhabitants were in the enjoyment of the

^ " Derecho Politico de los Estados Unidos Mexicanos," II., 108.

83] In San Francisco, 13

rights of citizens, but also to those provincial towns whose
inhabitants, owing to peculiar circumstances, might not pos-
sess these rights.

The electors having been elected, either by parishes or by
the citizens, met in a common assembly ; they were required
to meet on some other holiday in the month of December,
" to deliberate on the persons most suitable for the govern-
ment of the town,'' and they were not allowed to adjourn
without having completed the election : the number of officers
to be elected varied with the populations of the towns. There
were required for each town not exceeding two hundred
inhabitants, one alcalde, two regidores or councilmen, and
one sindico procurador or prosecuting attorney ; for each
town having more than two hundred and less than five
hundred inhabitants, one alcalde, four regidores, and one
sindico; for each town having between five hundred and
one thousand inhabitants, one alcalde, six regidores, and
one sindico ; for each town having between one thousand
and four thousand inhabitants, two alcaldes, eight regidores,
and two sindicos; and twelve regidores for each town of
more than four thousand inhabitants. In the capitals of the
provinces twelve regidores at least were required, and, in
case the town had more than ten thousand inhabitants, sixteen.

It was provided, moreover, that these officers should super-
sede all the municipal officers existing at the time of the
adoption of the Constitution. The term of office for the
alcaldes was one year ; for the regidores or councilmen, two
years, one-half going out of office each year ; for the syndicos,
one year, except in case there were two, when only one would
be replaced each year. Qualifications for any of these offices
were, that the person should be a citizen in the enjoyment of
his rights, twenty-five years old, and a resident of the place
for which he was elected for at least five years ; also, that he
should hold no public office by appointment of the king.

The duties of these officers are indicated in the Constitution,
Articles 321-323, and are, in general, those which belong to

14 The Establishment of Municipal GovemmerU [84

municipal governmenta everywhere. Under this Constitution,
and the decree of the Spanish Cortes of May 23, 1812, there
might be an ayuntamiento for a single town or pueblo, for a
combination of several groups of inhabitants, each too small
to have an ayuntamiento of its own, or for a pueblo to which
were joined other such small groups of inhabitants. This
law decreed by the Cortes survived the political revolution by
which Mexico was severed from the mother country, and in
many of its essential features it was continued as a law of
Mexico till after California had fallen into the hands of the
United States.

The Mexican Revolution of 1821 left the laws respecting
private property within the ancient dominions of Spain in full
force ; and all titles to land that had been acquired before the
revolution, whether by individuals, by a pueblo, or by any
other corporation, remained valid under the Mexican republic.
By the Mexican Colonization Laws of 1824 and 1828, such
lands were expressly indicated as no longer within the field
open to colonization.^ Important changes, however, in the
provisions for local government, were effected by the constitu-
tional law of 1836, and the law of March 20, 1837, for the
regulation of the interior government of the departments.^
The Mexican Constitution of 1824 was a close copy of the
Federal Constitution of the United States, and under it the
several States enjoyed a large degree of independence. But
in 1836 the political power of the nation became more
thoroughly centralized, and the States and territories were
reduced to departments, and made immediately subject to the
supreme central government. Under this system Upper and
Lower California became one department, which was divided
into districts, and the districts into partidos. Over each dis-
trict there was a prefect, and over each partido a subprefect ;
the former nominated by the governor of the department, and

* Dwindle, " The Colonial History of the City of San Francisco," 41.
"Dublan y Lozano, "Legislacion Mexicana," III, 230, 258, 323.

86] In San Francisco. 16

confirmed by the general government, the latter nominated by
the prefect and approved by the governor. In so far as the
Constitution of 1836 varied from the Spanish Constitution
of 1812, regarding town governments, the change was a res-
triction of local authority. It provided ayuntamientos only
for capitals of departments, for places where they had existed
in the year 1808, for seaports of four thousand and pueblos
of eight thousand inhabitants : and besides the previously
existing qualifications for office, there was required an annual
income of at least five hundred dollars. The number of
alcaldes, regidores, and syndicos had previously been fixed by
law with reference to the number of the inhabitants ; it was
now left to the determination of the departmental councils
with the concurrence of the governor; with, however, the
provision that the first should not exceed six, the second,
twelve, and the last, two. Vacancies, through death or ina-
bility to serve, were filled by a meeting of the electoral college
called for that purpose ; but vacancies which occurred within
three months of the end of the year were filled at the annual
election. If the ayuntamiento, or any part of it, were sus-
pended, that of the preceding year, or the corresponding part
of it, was required to act. Among those excluded from
membership in the ayuntamiento were officers appointed by
the congress, by the general government, or by the government
of the department ; the magistrates of the supreme tribunals
of the departments; judges of first instance; ecclesiastics;
persons in charge of hospitals, houses of refuge, or other
establishments of public charity. These excluded classes,
however, did not embrace appointees of the general or depart-
mental government not domiciled in the place of official
destination, nor retired soldiers resident in the territory of the
respective ayuntamiento, and not supported exclusively by
means of pensions.

Under these laws the ayuntamiento was subordinated to
the sub-prefect of the partido in which its pueblo lay, and
through the sub-prefect to the prefect of the district and to

16 The EstahUshment of Municipal Government [86

the governor of the department. Its functions were the care
of the public heahh and accommodation, to watch over
prisons, hospitals, and benevolent institutions that were not
of private foundation, primary schools sustained by public
funds, the construction and repair of bridges, highways, and
roads, the raising and expenditure of public moneys from
taxes, licenses, and the rents of municipal property ; to pro-
mote the advancement of agriculture, industry, and commerce,
and to assist the alcaldes in the preservation of peace and
public order among the inhabitants.^

The alcaldes were required to maintain good order and
public tranquillity ; to watch over the execution and fulfil-
ment of the police regulations, and of the laws, decrees, and
orders communicated to them by the sub-prefects, or by the
prefects in want of the sub-prefects ; to ask from the military
commanders the armed force which they might need, or to
organize the citizens for their own defense ; to secure the arrest
and trial of the oifenders; to see that the citizens subsist by
useful occupations, and to reprehend idlers, vagrants, persons
without any fixed place of abode, or any known employment;
to impose executively a fine to the amount of twenty-five
dollars on all disturbers of the peace, or to condemn them
for four days to the public works, or to cause them to be
arrested for double that period ; governing themselves accord-
ing to the circumstances of the individuals, and giving them
a hearing summarily and verbally if they demanded it ; but
with respect to offenses which have a penalty affixed to them
by law, the legal dispositions remaining in force were to be
observed. The alcaldes, moreover, assisted and voted at the
sessions of the ayuntamiento, and presided over them in the
order of their appointment, when neither the prefect nor sub-
prefect was present, the presiding alcalde deciding in the case
of a tie vote. Temporary vacancies in the office of alcalde
were filled by the regidores in the order of their election.^

» Constitution of 1836, Part VT, Art. 25.
•Law of March 20, 1837, Arts. 166-176.

87] In San Francisco, 17

The immediate government of towns deprived of ayunta-
mientos by the legislation of 1836 and 1837 was to be in the
hands of justices of the peace, the number for each town
being fixed by the departmental council, with the concurrence
of the governor. They were to be appointed by the prefect
of the district, on the recommendation of the respective sub-
prefect. It was required that they should be Mexican citi-
zens over twenty-five years of age, and residents of the towns
for which they were appointed. In every place of at least a
thousand inhabitants, the justices of the peace, in subjection
to the sub-prefect, and through him to the superior authori-
ties, had essentially the same powers and obligations as the
ayuntamientos ; and these justices of the peace, as well as
those of places with less than a thousand inhabitants, had,
moreover, the powers and obligations conferred by this law
upon the alcaldes.^

Prior to 1834, there had been no ayuntamiento or common
council at San Francisco. Captain Benjamin Morell, who
visited the town in 1825, described it as "built in the same
manner as Monterey, but much smaller, comprising only about
one hundred and twenty houses and a church, with perhaps
five hundred inhabitants.'* This estimate was probably largely
in excess of the real number at that time ;^ for the census made
in 1842 gives one hundred and ninety-six as the total popula-
tion of the town at this date, seventeen years after Captain
MorelPs visit; and in June, 1847, it amounted to only four
hundred and fifty-nine, three hundred and twenty-one of whom
were males, and one hundred and thirty-eight females.

The government of this town or pueblo, before 1834, was
in the hands of the territorial governor and the military com-
mandant of the presidio. The former imposed license fees,
and taxes, and the latter acted as a judge of first instance.
Finally, in November of this year, the territorial governor,

»Law of March 20, 1837, ArU. 177-191.
•Dwinelle's "Colonial History," 41.
2

18 The Establishment of Municipal Government [8S

Jos6 Figueroa, wrote to the military commandant of San
Francisco, stating that the territorial council had ordered the
partido of San Francisco, which " embraced all Contra Costa,
Sonoma, San Rafael, and, on this side of the bay, the whole
of the present county of San Francisco," ^ to proceed to the
election of a constitutional ayuntamiento, which should reside
in the presidio of that name, and be composed of an alcalde,
two r^idores, and a syndico, in accordance with the existing
laws. It was ordered, moreover, that an account of the elec-*
tion should " be given by the proper way to the supreme gov-
ernment for the due approbation." By the same communica-
tion the commandant was informed that the ayuntamiento,
when installed, would exercise the political functions with
which he had been charged; and the alcalde, the judicial
functions which the laws, in lieu of a proper judge, had con-
ferred upon him. The commandant was to be confined
strictly to the functions of his military command.^ It was
proposed by this order to separate the military and civil
power, and to bestow the latter upon a local organization.
It "\tas a "change of the former military government, which
the commandant of the presidio had exercised, into a civil
government for the same district."^ This local government
was what has been called an ayuntamiento aggregate, and
was formed " for the purpose of giving a municipal govern-
ment to those small populations of the partido which would
not otherwise have an ayuntamiento." * It embraced under
its jurisdiction, as already suggested, not only the inhabitants
of the peninsula, but also those of the other side of the bay.*

* " Documents, Depositions, and Brief of Law Points raised thereon on
behalf of the United States, before the U. S. Board of Land Commissioners."
San Francisco, 1854, p. 67.

'Figueroa to the Military Commandant of San Francisco, Monterey,
November 4, 1834. See Dwindle, Addenda, No. xxi.

• " Documents, Depositions, and Brief," p. 67.

* Dwinelle's " Colonial History," 48.

'Governor Jos^ Figueroa wrote from Monterey, January 31, 1835, to
the alcalde of San Francisco, as follows: "The appointment you have

89] In San Francisco, 19

As to the significance of this change, the opinion of the
majority of the United States Land Commission for California
is unequivocal : "After a careful examination of the whole
testimony on this point, and the law applicable to the sub-
ject, we are brought to the conclusion that the effect of the
proceedings of the territorial authorities in 1834, as shown by
the official records and documents for the establishment of
the ayuntamiento at the presidio of San Francisco, and the
subsequent organization of that body in conformity therewith,
was to erect the presidio into a pueblo or town, with all the
civil and territorial rights which attached to such corporations
under the Mexican laws then in force." ^

The meeting for the election of electors, the junta primaria,
was held on the first Sunday in December, 1834. On the
third Sunday of the same month the electors chose the mem-
bers of the ayuntamiento, which was installed January 1,
1835. The election was held at the house of the commandant
of the presidio, and the voters came from the several places
already indicated as embraced within the jurisdiction of the
partido. Their eagerness to participate in the election is
explained by their anxiety to get rid of the military authority.
After the organization of the ayuntamiento, the records or
archives were kept in a desk in one of the rooms at the
presidio, where the meetings were held. But the place of
meeting, whether at the presidio, the mission, or the village
of Yerba Buena, is not a matter of importance, since all were
within the limits of a common jurisdiction.

Not long after this organization of the partido was effected,
the government concluded, from a census of the town, that,
under the law of May 23, 1812, which was still considered
to be in force, San Francisco itself was entitled to an ayunta-

made in favor of the citizen Gregorio Briones, as auxiliary alcalde in Con-
tra Coeta, seems to be very well, and consequently has my approval. I say
thb to you in answer to your official note on the matter, of the 22d ultimo."
^ City of San Francisco t». The United States.

20 The Establishment of Municipal Government [90

miento, and therefore ordered the commandant to cause to be
elected one alcalde, two regidores, and one syndico ; in other
words, the officers prescribed by law for towns of more than
fifty, and less than two hundred inhabitants. The census
which was the basis of this conclusion probably included not
only the population at the Presidio^ and the Mission, but also
that at other points on the northern part of the peninsula.
San Francisco appears not to have been specifically the Pre-
sidio, the Mission, or Yerba Buena, but to have comprehended
them all ; for during seven years after the establishment of
the government of San Francisco, the offices of this govern-
ment were at diffisrent times indiffijrently at the Presidio, at
the Mission, and at Yerba Buena, and still it remained
throughout the government of San Francisco.

In accordance with the governor's order, addressed to the
commandant, a primary election of nine electors was held
December 13, 1835. This election, like the first, was held
at the house of the commandant. On the 27th of the same
month, the electors met for the purpose of electing one alcalde
and" the other officers ; and thus was constituted the first ayun-
tamiento of the pueblo of San Francisco, which superseded
the ayuntamiento of the partido. Of this government, Dwi-
nelle says : " Instead of being an aggregated ayuntamiento,
composed of small populations in the partido, it was an ayun-
tamiento of the pueblo, to which various small populations of
the partido were aggregated ; "^ or, as he has elsewhere styled
it, a composite ayuntamiento. The town government thus
established was endowed with those powers which, under
the Spanish laws of 1812, belonged to the fully organized

* According to Francisco Sanchez, who was the commandant at the Pre-
sidio in 1838, the only persons residing here at this time were Candelario
Miranda, Joaquin Pina, and Eusebio Soto. Pina was a corporal of artillery,
and Soto was a private. Antonio Soto and Apolonario Miranda lived on
lots near the Presidio, at the left of the road going from Yerba Buena to
the Presidio.

»"Col. Hi8t.,"51.

91] In San Francisco, 21

pueblo, and it was continued in existence by virtue of these
laws.

When, however, the Constitution of 1836 came into opera-
tion in California, it led to important changes in municipal
affairs. Exce|)t capitals of departments and places which
were regarded as pueblos before 1808, no town of less than
four thousand inhabitants was permitted to have an ayunta-
miento. Under this law, the government which had been
set up at San Francisco in 1835 was abolished. The ayunta-
miento elected January 8, 1838, appears to have been the last
one constituted in this town before the Constitution of 1836,
as supplemented by the law of March 20, 1837, came into full
operation. In his message of February 16, 1840, the gov-
ernor announced that " there is no ayuntamiento whatever in
the department; for, there being no competent number of
inhabitants in any of the towns, as provided by the constitu-
tion, those then existing had to be dissolved ; and only in the
capital there ought to be one of such bodies." ^ Having, then,
documentary evidence of the election of an ayuntamiento, on
January 8, 1838, and the statement of the governor that no
ayuntamiento existed here in February, 1840, it is clear that
it must have ceased to exist at some point between these two
dates. The government then passed into the hands of justices
of the peace, who were provided, in towns of less than four
thousand inhabitants, with the powers and functions of alcaldes
and ayuntamientos.

It is not to be supposed that the people of San Francisco,
in electing an ayuntamiento, in January, 1838, were acting in
conscious violation of a law which deprive<l them of this
privilege. Their action is rather to be explained by the fact
that, although the constitution was promulgated at the end of
1836, and the supplementary law regarding the internal gov-
ernment of the departments was passed the following March,
no information of these events had reached San Francisco

> DwineUe, " Col. Hiat.," Addenda, No. I, p. 70. •

22 The Establishment of Municipal Government [92

prior to the date of this last election. That delay like this
was not unusual, may be seen from the fact that certain elec-
tion laws, passed by the supreme government November 30,
1836, were not received and proclaimed in California till
January, 1839, and also from the statement of De Mofras,
that "official despatches were often a year in the passage
between California and Mexico."^

Although San Francisco was, at this time, deprived of its
council, it did not relinquish its character as a pueblo.
" Accordingly, we find that when the pueblo of San Fran-
cisco, after the American conquest of California, attained the
requisite population, it again elected its ayuntamiento, not
under any provisions of the laws of the conquerors, but under
these very provisions of the Mexican constitution of 1836,
under which the ayuntamiento of the pueblo was suspended
in 1839.''^

In 1839, San Francisco had been founded more than sixty
years; still it was without a jail, from which it is to be
inferred that but little progress had been made in civilization.
Finding the criminal Galindo on their hands, the inhabitants
of San Francisco, through Justice De Haro, asked of the
governor that he might be sent to San Jos^, which was
already provided with a prison. Besides the lack of a jail,
another reason for the request was that the inhabitants of the
place were scattered, each having his agricultural and stock
interests at a great distance from the town, so that there were
very few remaining to guard the criminal, and these could
not spare the time from their personal business.

The law under which the governmental power of San
Francisco was transferred to justices of the peace, made no
provision in towns not entitled to have ayuntamientos for a
syndico, or an officer known as sindico procurador ; yet, on
July 20, 1839, Francisco Guerrero, justice of the peace at San

1 Vol. I, p. 222. See Hittell, I, 542.
» Dwindle, " Col. Hist.," 64.

93] In San Francisco, 23

Francisco, proposed to the prefect of the first district to
appoint Don Juan Fuller as a sindico procurador for this
place, " for the better management of the municipal rents."
Fuller appears to have been appointed, for there exists an
account made out by Don Juan Fuller as sindico of the
municipality of San Francisco, embracing the period between
August, 1839, and January, 1842. This office was continued
to the last year of Mexican dominion. In order to relieve the
justices of the peace, and to enable them to devote themselves
to the duties peculiar to their office, Governor Micheltorena,
on November 14, 1843, ordered the election of two alcaldes
in San Francisco, and in each of several other towns of the
department. By this order it was required that the election
should be indirect; that seven electors should be chosen on
the second Sunday of December, who should meet on the
following Friday to elect the alcaldes. The newly elected
officers were required to go into office on the 1st day of Janu-
ary, 1844, the first alcaldes to perform the duties of judges of
first instance, and to take charge of the prefectures of the
respective districts. The first alcalde appointed by this elec-
tion was Guillermo Hinckley. The election of the following
December resulted in the appointment of Juan N. Padilla,
who took the customary oath, and entered upon the duties of
his office January 1, 1846. On July 7, 1846, that portion of
California which embraces San Francisco passed under the
dominion of the United States.

Foreseeing the outbreak of hostilities between Mexico and
the United States, George Bancroft, Secretary of the Navy,
under date of June 24, 1845, sent a secret and confidential
communication to Commodore John D. Sloat, then in com-
mand of the United States naval forces in the Pacific, and
called his attention particularly to the existing relations
between this country and Mexico. " It is the earnest desire
of the President," he wrote, " to pursue the policy of peace ;
and he is anxious that you, and every part of your squadron,
should be assiduously careful to avoid any act which could be

24 The Establishment of Municipal Government [94

construed as an act of aggression. Should Mexico, however,
be resolutely bent on hostilities, you will be mindful to pro-
tect the persons and interests of citizens of the United States
near your station ; and should you ascertain, beyond a doubt,.
that the Mexican government has declared war against us,
you will at once employ the force under your command to
the best advantage. The Mexican ports on the Pacific are
said to be open and defenseless. If you ascertain with cer-
tainty that Mexico has declared war against the United
States, you will at once possess yourself of the port of San
Francisco, and blockade or occupy such other ports as your
force may permit. Yet, even if you should find yourself
called upon, by the certainty of an express declaration of war
against the United States, to occupy San Francisco and other
Mexican ports, you will be careful to preserve, if possible,
the most friendly relations with the inhabitants, and where
you can do so, you will encourage them to adopt a course of
neutrality." In a subsequent order to Commodore Sloat,
issued after the beginning of hostilities, the Secretary wrote r
" You will consider the most important object to be, to take
and to hold possession of San Francisco ; and this you will
do without fail."^ The occasion for acting under these orders
came in 1846. Having received at Mazatlan the information
that the Mexican troops had, by order of the Mexican gov-
ernment, invaded the territory of the United States, and
attacked the forces under General Taylor, Commodore Sloat
sailed on the 8th of June, in the " Savannah," for the coast
of California, to execute the order of June 24, 1845. They
arrived at Monterey July 2, 1846, and on the 7th of the same
month took possession of the town, raised the standard of the
Union, and issued to the inhabitants of California a procla-
mation announcing the designs of the government of the
United States, at the same time pointing out the grounds of
hope for the people under the new rule. In order that the

^ Geo. Bancroft to Com. John D. Sloat, May 15, 1846.

95] In San Francisco, 26

public tranquillity might not be disturbed, the judges, alcaldes
and other civil officers were invited to execute their functions
as heretofore ; at least, until more definite arrangements could
be made for the government of the territory. Assurance was,
moreover, given that "all persons holding titles to real estate,
or in quiet possession of land under color of right," should
have those titles guaranteed to them ; and that " all churches
and the property they contain, in possession of the clergy of
California," should continue in their existing rights and pos-
sessions.

In the meantime, the " Portsmouth " was at San Francisco
awaiting orders, which were received by Commodore Mont-
gomery on the evening of July 8. At 7 o'clock the following
morning, he hoisted the American flag at San Francisco,
issued Commodore Sloat's proclamation, and took possession
of the region in the name of the United States.

The result of these events, when confirmed by the peace
between Mexico and the United States, was to transfer the
sovereign power over this region from the Mexican gov-
ernment to the government of the United States; but the
existing laws and machinery of local government were
temporarily maintained, and Lieutenant Washington A.
Bartlett was appointed by Montgomery as the first alcalde
of San Francisco under the new regime.

II.

The law of 1836, by which San Francisco was deprived of
its ayuntamiento in 1889, left the governmental power of the
municipality in the hands of justices of the peace. But when
California passed under the dominion of the United States,
the rooet important officer in the municipal government of
San Francisco was the alcalde. This change had been effected
by the order of Governor Micheltorena, in 1843, acting "with
the extraordinary jwwers conferred on him by the President

26 The Establishment of Municipal Goveimment [96

under the Basis of Tacubaya.'* ^ Monterey and Los Angeles
were required to elect ayuntamientos, each composed of two
alcaldes, four regidores, and one sindico. The other towns
were required to elect " two alcaldes of first and second nomi-
nation." " They were to enter upon their duties the first of
the following January, and in addition to the judicial powers
of the ordinary alcaldes and the political powers of the pre-
fects, they were to exercise the powers and obligations which
the ayuntamientos have." *

Under the Mexican regime alcaldes possessed the powers
and jurisdiction of judges of first instance, and it is believed
that no other judges of first instance were appointed or held
office in California at this time.^ The alcaldes, to a great
extent, both made and enforced the law ; " at least, they paid
but little regard either to American or Mexican law further
than suited their own convenience, and conduced to their own
profit."* The alcalde, as well as the justice of the peace, usu-
ally exercised judicial, but sometimes political, functions.*
His judicial functions were relatively prominent when his
office existed in union with an ayuntamiento. The writers of
the "Annals of San Francisco," speaking evidently from the
experience of their own city, assign to the alcalde the entire

» Cal. Rep., iii, 449.

»Cal. Rep., 15, 558.

' " By the articles 26, 27, and 28 of a decree made on the second day of
March, 1843, alcaldes and justices of the peace in the departments of Cali-
fornia, New Mexico, and Tabasco, were empowered to perform the func-
tions of Judges of First Instance in those districts in which there were no
judges of tirst instance." "There was no Judge of First Instance in the
district of San Francisco." Cal. Rep., i, 220, 508.

* Cal. Rep., i, Pref. vii.

* Dwindle, v. Bondelier, in his " Tour in Mexico," speaks of a military
function which the alcalde also exercised : " Still there existed, as late as
1587, a war-captain (capitan de la guerra) of Cholula. That officer was at
the same time Alcalde (Justice). It is probable that, under the influence
of two centuries of constant peace, the latter office prevailed, and the war-
captain completely disappears." p. 154.

97] In San Francisco, 27

control of the municipal affairs, and an administration of jus-
tice " pretty much according to his own ideas of the subject ;
without being tied down to precedents and formal principles
of law."^ A contemporary account of the functions of the
alcalde, published in The California Star, April 17, 1847,
agrees essentially with the foregoing. " There being no law
defining the powers and duties of the alcaldes, it is impossible
for them to know of what subjects they have cognizance, or
over what extent of country they have jurisdiction. By
some, who pretend to be well versed in the invisible laws of
California, it is insisted that the jurisdiction of the alcaldes
extends to no matters of difference where the amount in con-
troversy exceeds one hundred dollars, and that each is con-
fined to his particular district, in his judicial acts. Others
urge, that as to amount their jurisdiction is unlimited, and
that the alcaldes who resided at the principal towns, have
both appellate and original jurisdiction throughout the entire
department in which they reside." A specific limitation,
however, was set to the alcalde's power by Mason's circular,
dated at Monterey, August 23, 1847. By this the alcalde
was forbidden to perform the marriage ceremony where either
of the parties was a member of the Catholic Church in Cali-
fornia, the object of this limitation being "to secure to the
Californians the full enjoyment of their religion and religious
privileges." But in spite of such limitations, there remained
abundant ground of dissatisfaction. The grievances fre-
quently found expression in The Chlifomia Star, "When
California was taken possession of," it was said editorially on
June 19, 1847, " it was the duty of our rulers to have con-
tinued in existence the laws of Mexico ; this was proclaimed

*"The Annals of San Francisco." By Frank Soul^, John H. Qihon,
and James Nisbet. 179. In a conversation between Wilkes and Don
Pedro, alcalde of San Jos^, Wilkes asked the alcalde " by which law he
administered justice ; his answer was — by what he thought right." Wilkes,
"Expedition," v. 208.

28 The Establishment of Municipal Government [98

by Commodore Stockton, but never put in operation. For
example, one of the laws of the Republic is, that there shall
be an alcalde's court established in each particular neighbor-
hood, a district court in each of the three districts, to which
api)eals may be taken from the alcaldes, and a court of appeals
at Monterey, to which appeals may be taken from the district
courts. This law has been annulled, and instead of this
organization, we have alcaldes all over the country, who
claim original and ultimate jurisdiction over all matters of
difference between citizens, of whatever amount, and if either
party feels dissatisfied with their decisions, he goes in person
to the governor, makes an ex parte statement of the case, and
obtains a stay of proceedings, or reversal of the judgment, as
the will of the military commandant may dictate. Or, if a
culprit be sentenced to hard labor, or imprisonment, and is
sent to Monterey for punishment, to the Rev. Puissant-Coke,
alcalde of that renowned burg, he dismisses him to the field
of his former crimes, with the godly admonition, * Go, and
sin no more.' The thief pays bis fee and re-enters upon the
duties of his profession."

Under Spanish and Mexican laws, it was provided that the
alcalde, in all cases of a civil nature, which might be termin-
ated by an agreement of the parties, should " require concilia-
tory measures to be tried until they should result either in a
satisfactory arrangement or in the entire failure to accomplish
a reconciliation."^ One of the alcalde's most important func-
tions is, therefore, to act as mediator between parties in dis-
pute. Cases which may come under the jurisdiction of the
judge of the district shall be presented to the competent
alcalde, who, with two good men, one nominated by each
party, shall hear them both, take account of their affirma-
tions, and, having heard the opinions of the two associates,
shall within eight days at the most announce the terms of
conciliation which appear to him proper to terminate the

» Cal. Rep., i, 60, 61.

99] In San Francisco, 29

litigation without further progress. If the parties acquiesce
in this judgment, the case is thereby ended, and the result is
noted in a book.

The four years between the appointment of Lieutenant
Bartlett to be the first alcalde of San Francisco, under the
authority of the United States, and the adoption of the first
charter under the constitution of California, constitute a period
of transition, a period in which the city was seeking a foun-
dation for its government. Mr. Bartlett held the office of
alcalde from July 9, 1846, to February 22, 1847, but during
about a month of this time, subsequent to the 20th of Decem-
ber, he was a prisoner in the hands of the Mexican Califor-
nians ; and during his absence George Hyde, by the appoint-
ment of Captain J. B. Hull, performed the duties of the office.
Mr. Bartlett resigned in order to return to his naval duties,
and after his resignation General Kearney appointed Edwin
Bryant as his successor.

A short time before he resigned, Mr. Bartlett was publicly
charged by C. E. Pickett with misappropriating funds belong-
ing to the town. In reply to this charge, he demanded of
Capt. J. B. Hull, then commanding the Northern District of
California, that a commission of inquiry should examine into
the state of the accounts of his office.^ In accordance with
this request. Captain Hull appointed W. D. M. Howard,
William A. Leidesdorff, and Francisco Guerrero a committee
to make the investigation, " with a view to ascertain, whether
any of the funds of the office have been applied to any object,
other than the proper expenses belonging to it, and if so,
what amount, and by whose authority, and also, whether
there is a deficiency in the funds, not properly accounted for."*
The result of this examination was embodied in the com-

» Wwhington A. Bartlett to Joseph B. Hall, July 12, 1847. See Th«
Oadifomia Star, January 23, 1847.

Joseph B. Hull to Howard, Leidesdorff, and Guerrero, January 16, 1847.
See The Chlifomia SUw, January 23, 1847.

30 The Establishment of Municipal Government [100

mittee's report completely exonerating the alcalde from the
charge of misapplying the funds of his office. Mr. Bartlett
was, therefore, directed by Captain Hull to resume the duties
of alcalde, which in the meantime had been performed by Mr.
Hyde.^ The report of this commission is also important
as showing the actual receipts of the municipal funds from
the 15th of August to the 11th of December, 1846, which
amounted to five hundred dollars and twenty-five cents
($500.25), besides a port fund of two hundred and forty-six
dollars and seventy-five cents ($246.75). The principal
source of this revenue was the business transacted in the
alcalde's office. Another source was an annual license fee
of ten dollars for the sale of liquors, and a small amount was
also " received on account of lots unoccupied or taken up in
YerbaBuena."^

Mr. Bryant remained in office only till the first of June,
1847, when he resigned; but he appears to have remained
long enough to gain the good opinion of his fellow-citizens.
George Hyde was appointed by General Kearney to succeed
Mr. Bryant. During his period of office, Mr. Hyde found
that the business of the local government had increased to
such an extent that its proper management was beyond his
unaided ability ; he therefore, on the 28th of July, selected
six gentlemen to assist him. These were William A. Leides-
dorff, Robert A. Parker, Jos6 P. Thompson, Pedro T. Sher-
reback, John Rose, and Benjamin R. Buckalew. They were
called the ayuntamiento, or town council, although not con-
stituted in the manner provided by law for establishing that
body. They were to remain in office until superseded by
members elected under an order by the governor. An ordi-
nance providing for such an election was issued by Governor

' J. B. Hull to W. A. Bartlett, January 18, 1847. See The California Star,
January 23, 1847.

* The report was dated January 16, 1847, and was printed in The Cali-
fornia Star, January 30, 1847.

101] In San Francisco, 31

Mason on the 15th of August. It cites the need of a more
efficient government, and indicates the principal features of
that about to be established. "There is wanted/' he says,
"in San Francisco^ an efficient town government, more so
than is in the power of an alcalde to put in force. There
may be soon expected a large number of whalers in your bay,
and a large increase of your population by the arrival of
immigrants. It is therefore highly necessary that you should
at an early day have an efficient town police, proper town
laws, town officers, etc., for enforcement of the laws, for the
preservation of order, and for the proper protection of persons
and property.

" I therefore desire that you call a town meeting for the
election of six persons, who, when elected, shall constitute the
town council, and who, in conjunction with the alcalde, shall
constitute the town authorities until the end of the year 1848.

" All the municipal laws and regulations will be framed by
the council, but executed by the alcalde in his judicial capacity
as at present.

" The first alcalde will preside at all meetings of the council,
but shall have no vote, except in cases where the votes are
equally divided.

" The town council (not less than four of whom shall con-
stitute a quorum for the transaction of business) shall appoint
all the town officers, such as treasurer, constables, watchmen,
etc., and determine their pay, fees, etc.

" The treasurer shall enter into ample and sufficient bonds,
conditioned for the faithful j>erformance of his duties; the
bonds to be fully executed to the satisfaction of the council
before the treasurer enters upon his duties.

" The second alcalde shall, in case of the absence of the first
alcalde, take his place and preside at the council, and tliere
perform all the proper functions of the first alcalde.

' This name Bupereedes that of Yerba Buena in accordance with Bart-

32 The Establishment of Municipal Govemmefrd [102

" No soldier, sailor or marine, nor any person who is not a
hmd fide resident of the town shall be allowed to vote for a
member of the town council/'

Under this order, the alcalde, Mr. Hyde gave notice on the
30th of August, 1847, that there would be an election for six
members of a town council for San Francisco, and that this
election would be held at the alcalde's office on Monday, the
13th of September. In this notice it was ordered that the
polls should be open from 12 to 2 o'clock, but later the time
was extended so that the polls might remain open from 10
A. M. to 4 P. M. According to the governor's order, voting
was to be confined to ^^ bond fide residents of the town" ; but
it was found to be somewhat difficult to determine the exact
limits of this definition. Of the population of the town at
the time there exists no accurate account. In June, however,
it was set down at four hundred and fifty-nine, of whom three
hundred and twenty-one were males, and one hundred and
thirty-eight females. But more than one hundred of the
males were under twenty-one years of age, leaving somewhat
over two hundred persons entitled by age and sex to vote.
When the vote had been taken, it was found that precisely
two hundred ballots had been cast for more than thirty dif-
ferent candidates. There appears to have been no efficient
system of nomination, and in counting the vote the six per-
sons who had received the highest numbers were declared
elected. These were: William Glover, with 126 votes; W.
D. M. Howard, with 114 votes; W. A. Leidesdorff, with 109
votes ; E. P. Jones, with 88 votes ; Robt. A. Parker, with
74 votes ; and W. S. Clark, with 72 votes.

At the first meeting of this council, held September 16,
1847, W. A. Leidesdorff was elected town treasurer, and it
was agreed that the clerk of the alcalde's office should act as
secretary of the council, and for his services receive a suitable
compensation. Messrs. Howard, Jones, and Clark were con-
stituted a committee "to form a code of laws for the regulation
of the affairs of the town." The result of their work was

103] In San Francisco, 38

presented at the next meeting, held September 21, in the form
of a body of rules for the government of the council. These
rules being adopted, provided that the regular meetings of the
council should be held on Monday evening, at seven o'clock,
of each week until a different time should be agreed upon
by a majority of all the members. Every motion, resolution,
or other proposition was required to be put in writing and
distinctly read, before any discussion on it would be allowed.
After sufficient deliberation, the vote should be taken by the
alcalde viva voce. The alcalde should decide all questions of
order, from whose decision an appeal might be taken to the
members present, in which case a majority deciding against
the alcalde, his decision should be reversed. The alcalde's
connection with the council was merely that of a presiding
officer empowered to give "a casting vote in case of a tie."
He could " not participate in the discussion of any subject, or
give an opinion thereon." Any two members might call a
meeting of the council at any time, provided that at least
twelve hours previous notice were given by the secretary in
writing.

At this meeting there was also adopted an ordinance making
each member of the council a " conservator of the peace within
the limits of the town." He might issue any process necessary
to preserve the peace and morals of the place, upon application
or when he might deem it proper to do so. Such process was
made returnable to the alcalde, and was to " be charged and
regarded by the alcalde as if it had been issued by himself."

Not long after its organization, the council resolved itself
into a "committee of the whole to wait upon the governor to
learn his views upon the duties of the council." * In reply to
this request. Governor Mason wrote " that the jurisdiction of
the present town council of San Francisco is confined to the
limits of the town survey, the boundaries of which I have
instructed the alcalde to have marked as soon as convenient."

1 The Califomianf September 29, 1847.

3

34 The Establishment of Municipal Government [104

On a second point, he informs them that the duties of the
council were prospective, not retrospective, that they could
" not impair the obligation of contracts entered into by the
previous town authorities, nor take jurisdiction of the actions
or conduct of such authorities, further than to modify or repeal
any law or ordinance created by the previous government and
now in force which they might deem inconsistent with the
interest of the community."^ In this communication the
governor strongly recommended that whatever expenses might
be contemplated, " the town be kept perfectly free of debt."

Mr. Hyde had never been a popular magistrate. Frequent
charges against him found their way to the public, and the
governor had been several times petitioned to remove him.
Finally, in this letter to the council, he authorizes that body
to make a thorough investigation of these charges, and report
to him the facts, together with their opinion. This action of
the governor gave general satisfaction, but of the nine charges
made against the alcalde, the investigation resulted in estab-
lishing only two, and these were not deemed by the governor
adequate ground for removal from office. But the indignant
populace demanded their victim, and Mr. Hyde saw fit to
resign April 3, 1848. During the administration of Mr. Hyde
Governor Mason had appointed T. M. Leavenworth to the
otece of second alcalde of San Francisco, and now on the res-
ignation of the first alcalde, Mr. John Townsend was appointed
to fill the vacancy.

By an ordinance passed September 28, 1847, the chief police
force of the town was made to consist of two elected constables,
who should " perform all duties required of other ministerial
officers within the town, who should faithfully execute all
processes directed to them in accordance with law, and make
due returns thereof," and who should " strictly enforce and
obey every law, ordinance and resolution passed by the coun-

* R. B. Mason to the Town Council, Elect, of San Francisco, October 1,
1847. See The Cali/omian, October 6, 1847.

105] In San Francisco, 35

oil." The constables were to " receive for the service of any
writ or other process, one dollar, to be paid out of the fines
imposed upon cases, one dollar for the service of any writ or
other process, to be paid by the defeated party, also ten cents
per mile for every mile which they might travel to serve any
writ or other process beyond the limits of the town." *

While San Francisco was thus making progress towards a
well-ordered local government, it was suddenly stricken as
with a plague.* On the 19th of January, 1848, gold was dis-
covered on the north fork of the American river. It required
several weeks to spread the news of the discovery, and still
longer to convince the unsuspecting inhabitants that a vast
treasure had been revealed. But when the real significance of
the revelation dawned on the public mind, it produced a wild
frenzy of desire to participate in the harvest of gold. San
Francisco, which had already become the leading town of the
territory, was a scene of sudden desolation. Its houses were
left unoccupied and unprotected ; its former trade ceased ; its
lots fell to a small part of their earlier value ; its two news-
papers, The Californian and The California Star,^ were sus-
pended in May and June ; and the town, deserted by the bulk
of its inhabitants, was at one time without a single oflficer
clothed with civil authority. It is asserted, moreover, that at
one time only five men were left in the town. But when the
news had spread to the other side of the country, and to other
lands, and the Argonauts began to find their way through the
Golden Gate, the opportunities of trade at San Francisco
brought the town once more into active existence.

In the beginning of October, 1848, the town had so far
revived as to be able to hold an election. Dr. T. M. Leaven-

* See The Oadifomian, October 6, 1847.

' " Master and man alike hurried to the plaeeret, leaving San Francisoo,
like a place where the plague reigns, forsaken bj its old inhabitants, a
melancholy solitude." Annals, 204.

• The CkUi/omian was suspended May 29, 1848, and The Oalifomia Star
June 14, 1848. The Chiifomian was revived on the 15th of July.

36 The Establishynent of Municipal Government [10&

worth was a second time chosen first alcalde, and B. R.
Buckalew and Barton Mowrey were elected town councillors^
At this election one hundred and fifty-eight votes were polled.
On the 9th of October, the town council met for the first time
since May, and adjourned to the 11th, when the limits of the
town for the administration of justice were defined. The
boundary as given in the resolution was: "That the line
shall commence at the mouth of Creek Guadalupe, where it
empties into the Bay of San Francisco, following the course
of said stream to its head waters ; from thence a due west
line to the Pacific Ocean ; thence northwards along the coast
to the inlet to the harbor of the bay; thence eastwardly,.
through the middle of the said inlet into the Bay of San
Francisco, and embracing the entire anchorage ground from
the inlet to the mouth of the Creek Guadalupe."^

In accordance with Mason^s order the first elected town
council was to remain in power until the end of the year
1848. On the 27th of December, the town council for 184^
was elected, the number of votes cast being three hundred
and forty-seven. The members elected were Stephen C.
Harris, W. D. M. Howard, George C. Hubbard, Robert
A. Parker, Thomas J. Roach, John Sirrine, and John Town-
send. The old town council of 1848 was opposed to the
continuance of the new one, because a certain number of
unqualified persons had voted at the election, and therefore
ordered a new election. On the 15th of January, 1849,
another town council was consequently elected, composed of
Stephen C. Harris, Lazarus Everhart, Stephen A. Wright,
Daniel Storks, Isaac Montgomery, John Sirrine, and C. E.
Wetmore, two of the members being common to this and the
council elected in December. There were thus three town
councils claiming an authoritative existence. That elected in
December denied entirely the right of the old council to
further power, while that in turn acknowledged the town

i"Amial8,"207.

107] In San Francisco, 37

council elected in January, and proposed to transfer to it
the municipal records.

The confusion which was here manifest in the local affairs
of San Francisco, was only an index of the attitude into which
the inhabitants of California had everywhere fallen. They
appeared to be without any recognized political status. They
believed that they could not safely wait for Congress to give
them a government, and therefore determined to form one for
themselves. "Accordingly, attempts were soon severally made
by the people of San Francisco, Sonoma, and Sacramento, to
form legislatures for themselves, which they invested with
supreme authority. Other portions of the country prepared
to follow the example of the places named." ^ At San Fran-
cisco, in answer to a previous call, the citizens of the town and
district held a meeting in the public square, February 12,
1849.* Myron Norton presided, and T. W. Perkins acted as
secretary. The object of the meeting having been stated by
the chairman, Mr. Hyde introduced a plan of organization or
government for the district of San Francisco, which grew out
of the "necessity of having some better defined and more per-
manent civil regulations for our general security than the
vague, unlimited, and irresponsible authority" which then
existed. It provided for a legislative assembly for the district
of San Francisco, consisting of fifteen members, citizens of the
district, eight of whom should constitute a quorum for the
transaction of business. The assembly was empowered to
make such laws as it might deem essential to promote the
happiness of the people, provided they should not conflict with

* Annals, 135.

'The confusion was greatly increased by the incoming tide of population.
Between January 1 and June 30, 1849, 15,000 persons are said to have been
added to the population of the country, 10,000 of whom came by sea and
landed at San Francisco. There were among these only 200 females. The
second half of the year the arrivals averaged 4,000 a month, and only 500
females in the whole 24,000. At the close of 1849 the population of San
Frandsoo was between 20,000 and 25,000.

38 The Establishment of Municipal Government [108

the Constitution of the United States, nor be repugnant to the
common law. To become a law a bill had to be passed by the
legislative assembly and to be signed by the speaker and the
recording clerk. It was required, moreover, that the legisla-
tive assembly should determine its own rules, and keep a
journal of its proceedings, and that the members should enter
upon the duties of their office on the first Monday of March.

In addition to the legislative assembly, the plan proposed
by Mr. Hyde provided that for the purpose of securing to
the people a more efficient administration of law and justice,
there should be elected by ballot three justices of the peace, of
equal though separate jurisdiction, who should be empowered
by their commission of office to hear and adjudicate all civil
and criminal issues in the district, according to the common
law ; that an election of members of the legislative assembly
and of justices of the peace should be held on Wednesday^
February 21, 1849; and that all should hold office "for the
term of one year from the date of their commissions, unless
sooner superseded by the competent authorities from the
United States government, or by the action of a provisional
government now invoked by the people of this territory, or
by the action of the people of this district.'^ In the several
articles as well as in the oath to be required of officers, the
supremacy of the Federal government was fully recognized. ^

Considering the importance of the matters in hand, the
action of the meeting appears startlingly sudden. It is diffi-
cult to find a briefer history of the establishment of a govern-
ment than that contained in the records of this meeting.
" Mr. Harris moved the adoption of the plan entire," so runs
the record, " which was seconded ; when Mr. Buckalew moved
to supersede the plan of government presented, by submitting
the subject to a committee to be appointed by the meetings
and whose duty it should be to report to an adjourned meet-

^ Executive Document No. 17, House of Rep., Ist Session, Slst Congress,,
p. 728.

109] In San Francisco, 39

ing. Thereupon an animated discussion ensued. Mr. Bucka-
lew's motion having been seconded, was lost by vote ; when
the question recurred on the original motion of Mr. Harris,
which was carried almost unanimously." * By further action
of the meeting, it was determined that every male resident of
the age of twenty-one years or upwards, should be entitled to
vote, and that the members of the town councils claiming
authority should be requested to resign, and a committee was
appointed to receive their resignations.

In accordance with the provisions of this fundamental law,
an election was held on the 21st of February, when Myron
Norton, Heron R. Per Lee, and William M. Stewart were
elected justices of the peace. The members of the legislative
assembly elected at the same time were Stephen A. Wright,
Alfred J. Ellis, Henry A. Harrison, Greorge C. Hubbard,
Greorge Hyde, Isaac Montgomery, William M. Smith, Andrew
J. Grayson, James Creighton, Robert A. Parker, Thomas J.
Roach, William F. Swasey, Talbot H. Green, Francis J.
Lippitt, and George Hawk Lemon. They took the prescribed
oath, which was administered by Justice Per Lee, and held
their first meeting on the evening of March 5. At this meet-
ing the legislative assembly elected Francis J. Lippitt speaker
and J. Howard Ackerman clerk. In the second and third
meetings, it completed its organization by adopting rules for
conducting business, and by appointing a list of standing
committees.

These rules embodied the ordinary provisions for conduct-
ing business in a parliamentary assembly. The speaker had
no vote, except in cases of tie, and in cases of ballot. Special
meetings might be called at any time by the speaker on the
written application of three members. Every petition or other
paj)er presented to the assembly was referred to its appro-
priate standing committ^ as a matter of course, without a
vote, unless such reference was objected to by some member.

» Dwindle, " Colonial History."

40 The Establishment of Municipal Govenvmeni [110

All resolutions and reports of committees were required to lie
on the table for consideration till the next meeting. Bills
were introduced either on the report of a committee or by
motion for leave, and in the latter case a day's notice of the
motion was required. Before becoming a law a bill was
required to be read three times, and after the second read-
ing it could not be amended by the assembly, except on
the recommendation of a committee to which at any stage of
its progress it might be committed. The enacting clause was
in these words : " The people of the district of San Francisco,
California, represented in Assembly, do enact as follows : "
Having passed the assembly a bill required the signatures of
the speaker and of the recording clerk before it could obtain
the validity of a law.

There were five standing committees provided for : a com-
mittee on ways and means; a committee on the judiciary ; a
committee on expenditure ; a committee on public health and
police; a committee on public buildings and improvements.
These committees were appointed by ballot, one vote being
taken for the chairman of each committee, and one vote for
the other members in a body. All other committees were
appointed by acclamation and a plurality of votes was neces-
sary for a choice, whereas in the election of a chairman of a
standing committee, a majority of the whole number of votes
given was required.

The meetings of the assembly were held in the school-
house, generally known at this time as the "Public Insti-
tute," which appears to have been devoted to various public
uses. On the 17th of March, the assembly resolved by vote
" that the Public Institute, by order of this House, be appro-
priated as a court room temporarily, until suitable accommo-
dations can be had, unless the same should be wanted for a
public school ; " and on the 19th a committee of the assembly
was appointed to inform the Rev. Mr. Hunt that it was at
his disposal for religious services on Wednesday and Satur-
day evenings. Prior to the first of November, 1848, there

Ill] In San Francisco, 41

had been no regularly established Protestant church at San
Francisco. Only occasional Protestant services had been held
there. At this time, however, " the Rev. T. D. Hunt who
had been invited from Honolulu was chosen Protestant chap-
lain to the citizens." ^ He was given a salary of twenty-five
hundred dollars a year to be paid out of subscriptions by the
people of the town.

On this evening, moreover, March 19, 1849, Mr. Hubbard
introduced a bill into the legislative assembly to abolish the
office of alcalde, which, as amended, came up for a third read-
ing March 22, and was passed unanimously. It enacted that
all powers vested in the office of alcalde should cease to be in
force in the town and district of San Francisco, and the office
be abolished; and "that Myron Norton, Esq., having received
the highest number of votes at the election of justices, held on
the twenty-first of February of the present year, shall be and
he is hereby appointed, authorized and empowered to act as,
exercise and execute the power, duty and office of, police mag-
istrate of the town and district of San Francisco, for the time
being, and to receive from the alcalde all books, records, papers
and documents whatsoever relating to his office and belonging
to the said town and district, in his possession, who shall safely
keep the same until otherwise directed by this legislative
assembly." The police magistrate was required by the terms
of the act to begin the exercise of his duties on the 25th of
March, 1849, and he was empowered to appoint two or more
policemen, who might arrest any person upon a warrant issued
by the magistrate. The police department thus created sup-
planted the constables, sheriffs, and other officers established
under the alcalde who, by this act, were declared dismissed.
Any person "assuming to serve any writ or process" within
the district, except by order and under the authority of the
police magistrate and justices, became liable to a fine of one
hundred dollars ; and any one except the police magistrate and

>Anoal8,207.

42 The Establishment of Municipal Government [112

the justice of the district assuming to issue any writ or process
within the district, after the 25th of March, would become
liable to a fine of not less than one hundred nor more than five
hundred dollars — one-half of the fine going to the informer,
and the remainder to the use of the district. To make the
transfer of power from the alcalde's government to that of the
legislative assembly complete, it was voted, March 26, that
the committee of expenditures should " be constituted a select
committee to audit the accounts of T. M. Leavenworth, the
late alcalde of this district, and the said district and town of
San Francisco.'' At the same meeting a bill was passed estab-
lishing the office of district attorney, and C. T. Botts was
elected by ballot to fill the office thus created. Mr. Botts,
however, declined the office, and at the meeting of the legisla-
tive assembly, held March 29, George Hyde was unanimously
elected. Mr. Hyde was willing to accept the office, but
thought he should first resign his seat in the assembly. This
body, however, resolved that there would " be no impropriety
in the district attorney continuing to be a member of the legis-
lative assembly."

Although during the three months of its existence, the leg-
islative assembly met no less than thirty-five times, yet on
many of these occasions it was not possible to transact busi-
ness because of the lack of a quorum. This was the case on
the evening of March 23, and on the evening of April 2.
On April 3, a quorum was finally secured, and a bill was
then passed establishing the office of Harbor Master, which
was filled on the same evening by the election of Capt. E. A.
King. The absence of members finally became so serious an
evil that, on the 9th of April, Mr. Swasey offered a resolu-
tion to the effect " that in the opinion of this Assembly, the
continued absence of some of its members shows a lack of
duty towards the people and a disrespect to this body." This
resolution, although adopted unanimously at the meeting on
the 10th of April, did not remove the evil, and near the end
of April it was determined to increase the number of repre-

113] In San Francisco. 43

sentatives in the legislative assembly to twenty-five, with
the expectation "that if ten new members were added, a
quorum might be obtained for the transaction of business/'
The ten additional members, having been duly elected, ap-
peared May 14, and took the oath of office.^

Almost from the beginning of its history the legislative
assembly had agitated the project of forming a general code
of laws for the town and district of San Francisco. Such a
code was finally passed on the 10th of April, 1849. Among
other effects, it established a Justice's Court for the trial of
causes; it regulated the practice in the Courts of law; it consti-
tuted a Criminal Court for the district of San Francisco; it also
established a Court of Appeals for the same district ; it estab-
lished the office of Register in the district of San Francisco,
fixed the rates of salaries, and determined certain regulations
touching the descent and distribution of intestate estates.

Besides the Police Court, there existed, therefore, under the
authority of the legislative assembly, after the adoption of

^ The manner in which the number of members was increased may be
seen from the following resolutions taken from the minutes of the meeting
of May 3 :

" Whereas, The necessary business of this Legislative Assembly has been
frequently delayed, to the detriment of the good people of this District, by
reason of the absence and non-attendance of its members; and whereas, it
is believed that if ten new members be added, a quorum may be obtained
for the transaction of business, therefore,

" Resolved, That the people of the District of San Francisco be requested,
at the next election to be held in this district, to vote for ten new members
to said body, who shall be qualified to their office at the next meeting of
the Assembly succeeding the close of the election.

"Resolved, That the people be requested to signify on their respective
votes at the said election, by the words 'Aye' or * No,' their consent or
dissent that the ten new members be added, and if it be found that a
majority has expressed in favor thereof, the members elect to be qualified
and take their seats, and not otherwise." This last provinion ap[>enr8 to
have been somewhat modified by a later resolution of the Assembly, "that
the words in favor of an addition of ten to the nu7n6«r of the Aaaembly, or
against the addition of ten to the number of the Assembly, be the form to be
printed on the votes at the next election."

44 The Establishment of Municipal GovemmeTii [114

the Code, a Court of Appeals, the Orphans' Court, and the
Criminal Court. The judges of these three Courts were
William M. Stewart, of the first, Theron R. Perley, of the
second, and Myron Norton, of the third. But in spite of the
great legislative activity of the Assembly, the affairs of the
revenue and the expenditure remained throughout the three
months of its existence in an unsettled and unsatisfactory
condition.^

About six weeks after the organization of the legislative
assembly, April 13, 1849, General Bennet Riley became mili-
tary governor of California. On the fourth of the following
June, he issued a proclamation to the people of the district of
San Francisco, stating that proof had been laid before him
that a body of men styling themselves "the Legislative
Assembly of the District of San Francisco," had " usurped
powers which are vested only in the Congress of the United
States by making laws, creating and filling offices, imposing
and collecting taxes without the authority of law, and in
violation of the Constitution of the United States, and of the
late treaty with Mexico ; " and warning all persons " not to
countenance said illegal and unauthorized body, either by
paying taxes or by supporting or abetting their officers." He
had, moreover, received due proof " that a person assuming
the title of sheriff, under the authority of one claiming to be
a justice of the peace in the town of San Francisco, did, on
the 31st of May last, with an armed party, violently enter
the office of the 1st Alcalde of the District of San Francisco,
and there forcibly take and carry away the public records of

* For a record of the organization and acts of the Legislative Assembly,
Bee " Executive Documents," No. 17, House of Representatives, 1st Session,
3l8t Congress, p. 728; Dwinelle, "Colonial History of San Francisco,"
Addenda, No. LXXIII; "Minutes of the Proceedings of the Legislative
Assembly of the District of San Francisco, from March 12, 1849, to June
4, 1849, and a Record of the Proceedings of the Ayuntamiento or Town
Council of San Francisco, from August 6, 1849, until May 3, 1850," San
Francisco, 1860, pp. 5-46.

115] In San Francisco. 45

said district from the l^al custody and keeping of said 1st
Alcalde." In view of this unlawful act, he called upon all
good citizens to assist in restoring the records to their lawful
keeper, and in sustaining the legally-constituted authorities of
the land.

" The office of justice of the peace in California," the proc-
lamation continues, "even where regularly constituted and
legally filled, is subordinate to that of alcalde; and for one
holding such office to assume the control of, and authority
over, a superior tribunal, argues an utter ignorance of the
laws, or a wilful desire to violate them, and to disturb the
public tranquillity. It is believed, however, that such per-
sons have been led into the commission of this rash act
through the impulse of the moment, rather than any wilful
and settled design to transgress the law ; and it is hoped that
on due reflection they will be convinced of their error, and
unite with all good citizens in repairing the violence they
have done to the laws. It can hardly be possible that intel-
ligent and thinking men should be so blinded by passion,
and so unmindful of their own interests and the security of
their property, after the salutary and disinterested advice
and warnings which have been given them by the Pres-
ident of the United States, by the Secretaries of State and
of War, and by men of high integrity and disinterested
motives, as to countenance and support any illegally consti-
tuted body in their open violation of the laws, and assump-
tion of authority which in no possible event could ever belong
to them.

" The office of alcalde is one established by law, and all
officers of the United States have been ordered by the Presi-
dent to recognize and support the legal authority of the per-
son holding such office; and whatever feelings of prejudice or
personal dislike may exist against the individual holding
such office, the office itself should be sacred. For any incom-
petency or mal-administration, the law affi^rds abundant
means of remedy and punishment — means which the Exeou-

46 The Establishment of Municipal Government [116

live will always be found ready and willing to employ, to the
full extent of the powers vested in him."^

This proclamation denouncing as an illegal body the legis-
lative assembly which for three months had performed all the
functions of a town government, was followed the next day,
June 5, by an order from Governor Riley, restoring the ayun-
taraiento to power. This order was based on the well grounded
opinion that all the laws of California existing at the time the
country was annexed to the United States, which were not in
conflict with the constitution, laws, and treaties of the United
States, were still in force and must continue in force till
changed by competent authority. The powers and duties of
all civil officers remained as they had been before the conquest,
except so far as they might have been modified by the act
of annexation. This order by which the legislative assem-
bly was set aside and power was restored to the council or
ayuntamiento, affirmed the traditional power of the council
over the lands of the pueblo.

The last meeting of the legislative assembly was held on
the 4th of June, and the election ordered by Governor Riley
took place on the 1st of August. At this election there were
1,516 votes cast, of which John W. Geary, candidate for the
office of first alcalde, received the whole number. Frank
Turk, who was elected second alcalde, received 1,055 votes.
The ayuntamiento or town council elected at this time con-
sisted of twelve members, namely: Talbot H. Green, Henry
A. Harrison, Alfred J. Ellis, Stephen C. Harris, Thomas B.
Winton, John Townsend, Rodman M. Price, William H.
Davis, Bezer Simmons, Samuel Brannan, William M. Stewart
and Gabriel B. Post. Horace Hawes was elected prefect, and
Francis Guerrero and Joseph R. Curtis were elected sub-pre-
fects. Peter H. Burrett was elected judge of the Supreme
Court.

* Executive Document No. 17, House of Rep., First Session, Slst Con-
gress, p. 773.

117] In San Francisco, 47

At the second meeting of the newly elected council, Mr.
Greary, the first alcalde, spoke at length on the affairs of the
town, and asked the co-operation of the council *' in making
it, in point of order and security, what it must shortly be in
wealth and imj)ortance, the first city, and great commercial
and moneyed emporium of the Pacific." ^

" Economy in the expenditure of public money," he said,
" is at all times desirable and necessary ; but situated as we
are here, without any superior body to legislate for us, the
people of the city will, of necessity, be called upon to assume
a responsibility in the enactment of laws, and in the expendi-
ture of money for public purposes, not usual under ordinary
circumstances." The city was, at this time, without a dollar
in the public treasury ; there was neither an office for the
magistrate, nor any other public edifice. " You are," continued
the alcalde, " without a single police officer or watchman, and
have not the means of confining a prisoner for an hour; neither
have you a place to shelter, while living, sick and unfortunate
strangers who may be cast upon our shores, or to bury them
when dead. Public improvements are unknown in San Fran-
cisco. In short, you are without a single requisite necessary
for the promotion of prosperity, for the protection of property,
or for the maintenance of order."

In view of this condition of things, it was clear that the
most important question to be considered by the new govern-
ment was the question of taxation, and to this the alcalde
directed a large part of his address. " There is perhaps no
city upon the earth," he said, " where a tax for the support
of its municipal government can be more justly im|)osed than
here. Real estate, both improved and unimproved, within a
short space of time, has increased in value in many instances
a thousand-fold, and even at its present high rates, will pro-
dace in the shape of rents the largest average income upon

^ Minutes of the Ayuntamiento, August 8, 1849. The address is printed
in the ''Annals," but it is there set down as delivered at the first meeting.

48 The Establishment of Municipal Government [118

record. Yet notwithstanding this unprecedented increased
value of real estate, the burdens of government should not be
borne by a tax upon that species of property alone ; each and
every kind of business carried on within the limits of the
district should bear its just and proper share of taxation.

" The charters of most cities in the United States, granted
by the l^islature, give the corporation the right to levy and
collect a tax, as well to defray the expenses of its municipal
government as for public improvements; and it is usual to
submit a tax bill to the legislature for its confirmation. This
is done to prevent abuses. Yet I do not know of an instance
where the tax imposed has been reduced by the legislature.
In towns not incorporated there is no resort to be had to the
l^islature for a confirmation of the tax laws. The town offi-
cers, chosen by the people, impose the taxes, and collect a
sufficient revenue by common consent ; and their right to do
so is never questioned. That you have a right to levy and
collect a reasonable and proper tax, for the support of your
municipal government, cannot, in my judgment, for a moment
be questioned. In the absence of State legislative authority
you, as the representatives of the people, are supreme in this
district, and your acts, so long as you confine them strictly to
the legitimate sphere of your duty, will not only be sanctioned
and approved by the present worthy executive of our govern-
ment in California, but will be most promptly confirmed by
the legislature, whenever one shall be assembled either for the
Territory or State.

" I would, therefore, recommend that with all convenient
despatch, you ascertain, as near as possible, the amount of
funds deemed necessary for the support of a proper and efficient
municipal government for one year ; that when you shall have
determined this, you shall proceed to collect a just, equitable
tax upon real estate and upon sales at auction ; and that you
require all merchants, traders, storekeepers, etc., to take out a
license for the transaction of their business, paying therefor an
amount proportionate to the quantity of merchandise vended

119] In San Francisco, 49

by them. Also, that all drays, lighters, and boats, used in
the transportation of merchandise, and of passengers, to or
from vessels in the harbor, be licensed.

" There is also another class of business proper to be taxed,
which although sometimes prohibited by law, yet in many
countries is regulate^l by law. I recommend you to adopt the
latter course. The passion for gambling is universal, even
where the severest penalties are imposed to prevent its indul-
gence. And it is a fact well known and understood, whenever
gaming tables are licensed and subject to proper police regula-
tions, they are less injurious to the interests and morals of the
community than when conducted in defiance of law. In the
one case the proprietors are amenable to the law which author-
izes them, and are subject to proper control, while on the other
hand, if prohibited, the evasion of the law by such means as
are usually resorted to, does but increase the evil, and the
community is in no way benefited. I would, therefore, recom-
mend, under present circumstances, and until State legislation
can be had on the subject, that you license gaming and billiard
tables."

In this address, the alcalde, moreover, urged the council to
adopt measures for the promotion of popular education, in
order that California, when erected into a State, might show
the older States of the Union " that she fully appreciates edu-
cation as the only safeguard of our republican institutions."
He also called attention to the fact that ** the public documents
containing all the muniments of title, etc., for real estate,"
were not to be found in official but in private hands, and
asked for " authority to appoint a committee of three resi)ect-
able and intelligent citizens, who, under oath, shall make an
inventory of the said documents, and a schedule of any muti-
lation, erasures, or interlineations which may be found on
their pages."

But the council had already anticipated this suggestion of
the alcalde's address, for at the first meeting on the 6th of
August, two days before the address was read, the president
4

50 The Establishment of Municipal Government [120

of the council had been authorized to appoint three commis-
sioners to take an inventory of all public documents which
might be turned over to them by the late alcalde, or any
other persons. The resolution conveying this authority pro-
vided further that the commissioners should not be members
of the council.^ These commissioners were subsequently ap-
pointed, and by a resolution of the council, passed August 20,
the pay of one of them, Mr. Toler, was fixed at sixteen dol-
lars a day, and that of the other at ten dollars a day.

At an adjourned meeting, the third held by the newly
elected town council, the oath of office was administered to
Mr. Horace Hawes as prefect, who took the occasion to
address the council on the powers and duties of the govern-
ment which had just been organized.

"Under the peculiar circumstances of this district," he said,
"with a population composed of recent immigrants, who,
owing to that fact, must necessarily be unacquainted, to a
great extent, with the existing laws, it may not be inappro-
priate for me to allude briefly to those provisions which define
our respective functions; and I would remark in passing,
that the laws now in force in this country, when well under-
stood, may not be found so inadequate to the purposes of
good government as has generally been supposed. It is, per-
haps, the abuses and mal-administration which may have
existed under the former government, rather than any defect
in the laws themselves, which have brought them into dis-
repute.

"The duties of prefects, though enumerated in twenty-
nine separate articles of the code, which will shortly be placed
in your hands, may be briefly expressed. They are ^ to take
care of public order and tranquillity ; to publish and circulate,
without delay, observe, enforce, and cause to be observed and
enforced, the laws throughout their respective districts ; and
for the execution of these duties, they are clothed with certain

* Minutes of the Ayuntamiento from August 6, 1849, to May 3, 1860.

121] In San Francisco. 61

powers which are clearly specified and defined. They are
particularly enjoined to attend to the subject of public instruc-
tion, and see that common schools be not wanting in any of
the towns of their respective districts ; they are also required
to propose measures for the encouragement of agriculture and
all branches of industry, instruction, and public l)eneficence,
and for the execution of new works of public utility and the
repair of old ones ; they constitute the ordinary channel of
communication between the governor and the authorities of
the district, and are to communicate all representations com-
ing from the latter, accompanied with the necessary infor-
mation.'

*' The general subjects of your charge, gentlemen, are the
police, health, comfort, ornament, order and security of your
jurisdiction, and you will perceive from an examination of
the laws on the subject, that you are invested with extensive
powers as respects the various matters upon which you are to
act ; and when we consider the probable destiny of the infant
city, for which you have accepteil the office of guardians, in
respect to population, wealth and commercial greatness, the
prudent exercise of those powers becomes a subject of incal-
culable importance. In all arrangements and improvements
that are to be permanent, it will be well to take into view
the interests, not only of the present, but of future ages ; to
regard San Francisco, not merely in its present condition, but
in its progress and the maturity of its greatness. By a pros-
pective view, behold it not only the commercial metropolis of
the west, but for beauty and ornament, and the beneficence of
its arrangements and institutions, the model city.

"Although the lapse of time and the posseasion of public
resources, not now at your disposal, will be indispensable to
fulfil these expectations, and it will be for posterity to enjoy
and to realize what you have contemplated, you will have it
ID your power, at least, to prevent any ol)stacles being inter-
posed that might retard or effectually hinder your city from
attaining a destiny so happy and so glorious. From this single

62 The Establishment of Municipal Government [122

view you will perceive the importance of the functions which
you have to fulfil. You act as Town Council only, it is true^
but the subject of your charge is to be regarded in its important
relations to the State, to the republic, and to the commercial
world. Every American citizen will feel that he has an inter-
est in it, and will look to the results of your prudent councils
with pride and satisfaction. Your being the first Town Coun-
cil regularly organized under the American Government, your
proceedings will be reviewed by succeeding ones in all future
time, and regarded with satisfaction, or with regret, as they
may have facilitated or retarded the prosperity of the place." ^

At the same meeting in which Mr. Hawes addressed the
council, a number of standing committees were named by the
chair : on judiciary, on finance, on streets and public improve-
ments, on police and health, and on expenditures. On the
13th the council appointed a number of municipal officers,
Frank Turk was made secretary; William M. Eddy, city
surveyor ; P. C. Landers, collector of taxes ; Jonathan Code^
sergeant-at-arms ; Malachi Fallon, captain of police ; A. C,
Peachy, city attorney. Subsequently, on the 20th, Benjamin
Burgoyne was elected city treasurer ; Dr. J. R. Palmer, city
physician ; and at the same time the alcalde announced that,
in compliance with the instructions of the council, he had
appointed John E. Townes sheriff, who had given the required
bond in the sum of twenty-five thousand dollars.

The report made by the committee on finance as to the most
expedient means for raising a revenue, was adopted on the
27th of August, and, after various modifications, became the
basis of a financial policy for the city. It established "a per-
centage duty on the sales of merchandise and real estate, and
imposed heavy license duties on those engaged in different
kinds of business." ^ This ordinance having been brought to

* " Minutes of the Proceedings of the Legislative Assembly and of the
Ayuntamiento or Town Council," pp. 221-^223.
=* Annals, 234.

123] In San Francisco. 63

the notice of the prefect, Mr. Hawes, he returned it to the
council with his objections fully stated. In the prefect's view
it was in conflict with the laws ; it imposed taxes which were
unequal and disproportioned to the circumstances and abilities
of those having to pay them ; it was calculated to weigh most
heavily and injuriously upon those of limited capital and re-
sources, who ought to receive encouragement and protection ;
the amount of revenue it would produce was far beyond the
needs of the town. In the ordinance imposing the tax there
was no specification of the objects to which the revenue was to
be applied, and the tax-payers should know for what purpose
their money is required. Two main objections are thus raised
against the proposed taxes. In the first place, they were
excessive. In the second place, they would fall unequally on
the tax-payers, and disproportionately to their ability to pay,
** Revenue laws," says the prefect, " should be so adjusted as
to foster industry and encourage labor, by freeing it from all
unnecessary burdens. But this ordinance does precisely the
reverse. It makes the drayman pay a tax of eighty dollars a
year — probably as much as his cart and mule will be worth at
the end of that period — that is, it taxes him to the full amount
of his capital. The boatman is taxed upon precisely the same
scale. The ordinance takes the whole capital of both, and
gives them only the use of it for one year, worth, according to
the customary rate of interest here, twelve per cent. The tax
upon auction sales, being proportioned to the amount, is more
just and equal, but much too high for the wants of the treasury.
That imposed upon merchants and traders, however, is glar-
ingly unequal and disproportioned. The wholesale dealer, with
a capital of $150,000, will have to pay $400 a year, or about
two and two-thirds mills on a dollar, while the small trader,
who occupies a tent or shed, with a capital of no more than
one thousand dollars, will pay three hundred dollars a year,
or thirty-three and one-third dollars on a hundred — that is,
the latter will pay a little over one hundred and twenty times
as much in proportion to his ability as the former. The ped-

64' The Establishinent of Municipal Government [124

lar, who is not able to invest above one hundred dollars at
once, perhaps, will pay six hundred dollars, or about twenty-
four hundred times as much as the first mentioned. Supposing
a monte bank, which pays a tax of six hundred dollars a year,
by this ordinance, to have ten thousand dollars employed;
then, as between the itinerant trader and the gambler, the pat-
ronage of the council is in favor of the gambler by one hun-
dred to one — that is, the former has to pay, relatively, one
hundred times as much as the latter/' Besides these funda-
mental objections, the prefect finds still others, the most note-
worthy of which is the severity of the punishment inflicted on
hawkers and pedlars who ply their trade without a license.
The ordinance, he observes, " makes the act of peddling with-
out a license, whether from ignorance of the ordinance or a
design to violate it, a misdemeanor, but subjects the offender
to a total forfeiture of all his goods and chattels ; ' for all the
goods, wares, merchandise, provisions, or clothing found in his
possession at the time of his arrest,' will, in most cases, include
all the property he has in the world."

The message containing these objections was received and
read before the council at the meeting on the 10th of Sep-
tember, 1849, and at an adjourned meeting two days later,
the ordinance for revenue was taken up and amended. A
committee was then appointed to wait on Governor Riley and
ask for his approval of the bill. The amended articles from
1 to 8 inclusive were, in the governor's opinion, " in strict
accordance with the laws and customs of the country." In
the same communication the governor also expressed the
opinion that the prefect had no power to veto ordinances
passed by the town council, it being the duty of the prefect,
to use the governor's words, " to exercise, in the administra-
tion and expenditure of municipal funds, such supervision as
may be granted to him by the ordinances of the ayunta-
miento; and in case they exceed their authority, he must
report the fact to the governor."

Much of the confusion which appeared in the local affairs

125] In San Francisco. • 55

of San Francisco, and of the uncertainty as to the powers
and functions of the officers was due to the fact that Cali-
fornia remained without a strictly and clearly defined legal
status under the dominion of the United States. At the
time of the election of the town council which succeeded the
legislative assembly, there were also elected at San Francisco
five delegates to the convention called to frame a constitution
for California. These were Edward Gilbert, Myron Norton,
Wm. M. Gwin, Joseph Hobson, and Wm. M. Stewart. The
convention met in Monterey on the 1st of Septeml)er, com-
pleted its work on the 13th of October, and the constitution
was adopted by popular vote on the 13th of November. It
was not until late in the following year, however, the 9th of
September, 1 850, that California was admitted to the Union
as a State. But at the time of the adoption of the constitu-
tion a full list of State officers had been elected, and a poli-
tical organization was formed long before the Congress had
finished wrangling over the question of admission. It was the
l^islative department of this unauthorized organization that,
on April 15, 1850, passed the first city charter of San Francisco.
The last ayuutamiento under the old order of things was
elected on the 8th of January, in which John W. Geary was
re-elected first alcalde, and Frank Turk second alcalde. A
number of the members of the previous council were also
re-elected. The new council met on the 11th of January.
The prefect administered the oath of office to Mr. Geary as
first alcalde, who in turn administered it to the members of
the council. The former secretary, Henry L. Dodge, was
unanimously elected to the same position, and after he had
taken the oath of office, the council was declared organized.
The business devolving on the council was executed through
a number of standing committees: on the judiciary, on hcaltli
and ix)lioe, on finance, on expenditures, and on streets, and
public buildings, and public improvements. There was also
appointed a committee on education, to whom were referred
all matters relating to common schools and public education.

56 The Estahllshment of Municipal Government [126

Aside from the details of the current business of a rapidly
increasing community, two questions of special importance
occupied the attention of the municipal officers, between the
time of the organization of the council and the 3d of May,
the time of its last meeting. These were the question of the
land grants and the question relative to the formation of a
charter for the city.

On the 21st of December, 1849, the ayuntamiento having
learned "that J. Q. Col ton, a justice of the peace for the town
of San Francisco, had assumed the authority and pretended to
exercise the right of selling, granting and disposing of lots
within the limits of the town/' resolved, therefore, to institute
l^al proceedings against him in order "to restrain him in
such illegal and unwarrantable practices, and to make him
amenable, by due process of law, for a misdemeanor and
malfeasance in office." A similar charge was also brought
against Mr. Leavenworth, sometime alcalde of San Francisco.
In the meeting of the council, held December 24, it was
resolved to declare " all grants of town lots made and signed
by J. Q. Colton, void and of no effect." On the 19th of
February, 1850, Horace Hawes, the prefect of San Fran-
cisco, addressed a note to the ayuntamiento enclosing a com-
munication from Peter H. Burnett, who had been elected
governor of California at the time of the adoption of the
constitution, and who had then assumed the authority hitherto
held by Governor Riley. This communication ordered that
no further sales of the municipal lands be made until the
further order of the executive, or until the Legislature should
have passed some Act in reference to them. In this order
Burnett defines himself as "Governor of the State of Cali-
fornia," and yet California was not within six months of
admission to the Union. In opposition to this view of the
prefect and the governor stands the conclusion reached by the
city attorney, A. C. Peachy, in a report made to the ayunta-
miento on the 25th of February. After a somewhat minute
examination of Mexican law on the point in question, he

127] In San Francisco, 57

reached the conclusion " that all lands in the vicinity of the
old mission of San Francisco de Asia, and the landing of
Yerba Buena, not included in the legal grants to private
individuals, or in reserves made by the government, belong
to the municipality of San Francisco, and are subject to be
sold at public aution, or granted in solares or building lots,
in the manner directed by law."

The town council regarded with great disfavor the inter-
ference of the governor in the sale of town lots, and on the
25th of February, 1850, resolved "that in our opinion the
governor of California has no right to interfere in the sale
of town lots." The sale which had been fixed for the 4th of
March was postponed until the 4th of April. The council,
however, wished to have it understood that in postponing the
sale they were not actuated by any fear of the governor of
the State interfering in the sale, but that they did it because
they wished that those who were anxious to purchase lots
might have time to enquire into the powers of the council in
the matter. They wished, moreover, to have it understood that
they considered the interference of the governor "to be a high-
handed act of usuqmtion on his part, and one in which neither
the law nor the opinion of the public sustains him." The
original resolutions from which this quotation is derived were
finally set aside by the following substitutes, which were passed :

^^ Resolved J That the Constitution of the Stat€ of California
prescribes the duties, and limits the powers, of the governor ;
and therefore this council recognize no power in the executive
to interfere in their municipal affairs.

** Resolvedj That any attempt so to interfere, under the
pretense that such right is the prerogative of the governor,
ex qfficiOy or belongs to him as the executive of Mexican law,
is inconsistent with the provisions of the constitution, and is
an assumption of power dangerous to the rights and liberties
of the people." *

* Proceedings of the Ayuntamiento or town coandl, March 2, 1850.

58 The Lstahlishment of Municipal Government [128

Through a oommunication read before the ayuntamiento at
the meeting of February 25, the prefect demanded information
on certain points :

" Firsty How many, and what water and town lots have been
sold by the ayuntamiento since the 1st of August last, the
date of the sale, price paid for each lot, and the name of the
purchaser, with the terms of payment.

*^ Second, How many of the said town lots, if any, have been
originally purchased by members of the ayuntamiento, at sales,
public or private, ordered by that body.

" Third, Whether, by the resolutions ordering the public
sale made on the 3d of January, or any other public sale of
said lots, it was provided that a credit should be given for the
purchase-money, and if so, whether notice that such credit
would be allowed was given to the public in the printed
advertisements of such sale.

" Fourth, Whether on the night of the 7th January last, the
night preceding the election for members of the ayuntamiento,
several of the old members met and resolved to appropriate
$200,000 for building a wharf at the foot of California street,
and if so, who of such members were present at such meeting,
and who presided thereat.

^^ Fifth, Whether the water lots adjoining the line of the
proposed wharf were purchased by the same members who
made the appropriation, and when."

The prefect had informed the ayuntamiento that on the 1st
of March a full and complete account, as required by law
must be rendered by them, of their administration of the
municipal funds, in order that it might be forwarded to the
governor and published for the information of the people.
It does not, however, appear that the account was rendered
in accordance with this request or that satisfactory reply was
made to the prefect's list of questions. The communication
containing them was read before the council and laid on the
table.

The required account not having been received, and the

129] In San Francisco. 59

advertised sales of municipal lands not having been postponed,
the prefect appeared in a somewhat excited state of mind:
" Your Excellency," he wrote, " will therefore perceive that
an issue is clearly presented between the ayuntamiento of San
Francisco and the constituted executive authorities of the
State. The question to be decided before this community,
and before the people of the State is, whether the arbitrary
will of the members of the town council or the laws of the
land, supported by the executive authorities, shall be the rule
in the administration of public afiPairs." At the same time
he demanded definite instructions for his " governance in this
crisis," and stated, moreover, that in his view the general
sentiment of the citizens of San Francisco was opposed to a
further sale of town lots, and that in the "depressed state
of monetary affairs, a forced sale would be attended with
immense sacrifice of present and future values to the town."

Two days after this writing. Governor Burnett directed the
attorney-general of California to aid the prefect and sub-pre-
fect in an examination of the law", with the view : " first,
to file a bill in chancery against the ayuntamiento for such
accounts as the law requires them to make out and transmit
to the sub-prefect; second, to file a bill in chancery to restrain
the town council from completing the sales of lots made after
the issuing of my order suspending the sales, and from col-
lecting any of the money due upon obligations given for the
purchase of such lots; third, to file a bill in chancery to set
aside all the purchases of town lots made by any member of
the town council before or since the issuing of my orders."
In this communication, the governor left the prefect, after
consultation with the attorney-general, to take what steps he
might deem requisite, and confessed that he had no |K)wer
to 8U8[)end the ayuntamiento except by the consent of the
Legislature.

The conflict of authorities which threatened to be serious
was finally averted by the retirement of the ayuntamiento.
On the 16th of March, 1860, E. J. C. Kewen, the attorney-

60 The EstahlUhment of Municipal Government [130

general, wrote to Governor Burnett in a somewhat exultant
tone of victory : " The enemy have fled, and we are the sole
occupants of the field. The sale is indefinitely postponed.
I advised Hawes to exert the authority of his office to the
utmost extent that law would justify, and in the event of
foiling to accomplish the desired end, I should have proceeded
without further delay upon a writ of quo warranto. They are
evidently fearful of any action that will cause an investigation
into the extent of their authority, and catching some hint of
ulterior proceedings in contemplation, in case of disobedience
to executive behests, they have exposed the character of the
beast that paraded so ostentatiously in the lion's skin."^

The prefect, by this victory, did not achieve lasting glory.
On the 29th of March, 1850, he was suspended by Governor
Burnett on charges preferred by the ayuntamiento of San
Francisco. The Alta California of April 1, commenting on
the governor's action, stated it as a matter of notoriety that
Prefect Hawes had " been continually annulling the acts of
the ayuntamiento, and sending forth complaints and pro-
nunciamentos against them," and "that he had it in con-
templation to assume the entire control of the town affairs."

Further investigation of the supposed frauds in connection
with the sale of land within the limits of the town were
deferred to a later time.

At a meeting of the ayuntamiento, December 1, 1849,
Samuel Brannan moved to authorize the alcalde to appoint
a day for the election of eleven delegates to draft a city
charter to be presented to the State Legislature for adoption.
This motion was lost; but on the 12th of the same month
he offered a resolution of a somewhat similar purport, which
was adopted. This second resolution, however, provided that
the committee of five to draft the charter should be appointed
by the chair. Messrs. Brannan, Davis, Turk, Harrison and
Price were appointed, and by a subsequent resolution they

» " Minutes of the Ayuntamiento, 1849-1850," p. 237.

131] In San Francisco. 61

were authorized to examine and define the extent of territory
to be embraced within the limits of the city. This committee
failed to perform the work required of it, and at a meeting
of the ayuntamiento, January 16, 1850, the committee on
judiciary was instructed to submit a charter to the council
on the 28th of the month, which, if approved, would be
presented to the citizens on the first Monday of February.
This committee was authorized to procure such legal advice
and assistance as they might deem advisable, to aid them in
drafting the charter in accordance with their instructions.
The charter as formed by the judiciary committee was sub-
mitted to the council on the 30th of January, 1860. It was
read by sections, amended and adopted. It was then referred
back to the committee to be engrossed, and the committee was
instructeil to have five hundred copies of it printed and dis-
tributed among the citizens of San Francisco. On the 13th
of February a special meeting of the ayuntamiento or council
was called for the reconsideration of the charter. As amended
at this meetiug, in a committee of the whole, it was finally
adopted by a vote of four to three. Messrs. Hagan and
(ireen were then requested to present it to the San Francisco
representatives in the Legislature that it might be adopted by
that body.

A few weeks later, March 11, the Legislature passed a
general Act providing for the incorporation of cities. Under
this Act any city in the State, of at least two thousand inhabi-
tants, might be incorporated, either by the Legislature or by
the County Court, upon application. The outline of a charter
embrace<l in this Act provided for a government by a mayor,
recorder and common council, who should possess the power
usually belonging to a municipal government. Before the
passage of this general law, an Act had been passed, February
27, to incorporate Sacramento City. Benicia, San Diego and
San Jo66 were incorporated on March 27. Three days later,
March 30, an Act was passed incorporating Monterey, and on
the 4th of April Sonoma and Los Angeles were added to the

62 The Establishment of Municipal Government [132

list. The incorporation of Santa Barbara followed, April 9,
and that of San Francisco on April 15. San Francisco was
thus the ninth city of California incorporated after the adoption
of the Constitution.

III.

The territory embraced within the boundaries fixed by the
charter of 1850, was only a small part of that to which the
city was entitled, according to later judicial decisions. The
southern boundary of this territory was a line parallel to Clay
street and two miles distant, in a southerly direction, from
the centre of Portsmouth Square. The western boundary was
a line one mile and a half distant, in a westerly direction,
from the centre of Portsmouth Square, running parallel to
Kearney street. The northern and eastern boundaries were
the same as those of the county of San Francisco. This was
a limitation for the purposes of municipal administration, but
it was provided that it should not be " construed to divest or
in any manner prejudice any right or privilege to which the
city of San Francisco may be entitled beyond the limits above
described." Provision was made for dividing the city into
eight wards, which could not be altered, increased, or dimin-
ished in number except by the action of the Legislature. The
division was to be made by the first council elected under the
charter, and was to be so made that there should be in each
ward, as near as might be, the same number of white male
inhabitants. The government of the city was vested in a
mayor, recorder, and common council, the council consisting
of a board of aldermen and a board of assistant aldermen.
Each board was composed of one member from each ward,
had the right to* elect its president, and was in the enjoyment
of all those privileges and prerogatives which usually pertain
to a legislative assembly. Under the charter, moreover,
provision was made for a treasurer, comptroller, street com-
missioner, collector of city taxes, city marshal, city attorney,

133] In San Francisco. 63

and from each ward two assessors. These offices were all
elective, and the time fixed for the election was the fourth
Monday of April in each year. The elections were ordered
by the common council, whose duty it was to designate the
place of holding them ; to give at least ten days' notice of the
same ; and to appoint inspectors of election at each place of
voting. Returns of all elections were made to the common
council, who issued certificates of election to the persons
chosen. A plurality of votes was required for election. The
elections were not to be held in a " grog-shop or other place
where intoxicating liquors were vended," and the polls were
to be open one day " from sunrise till sunset.''

The duties of the mayor were " to communicate to the com-
mon council at least once in each year" a general statement
of the condition of the city with reference to its governmental
affairs ; to recommend to the common council the adoption of
such measures as he should deem expedient ; " to be vigilant
and active in causing the laws and ordinances of the city
government to be duly executed and enforced ; to exercise a
constant supervision and control over the conduct and acts
of all subordinate officers; to receive and examine into all
such complaints as may be preferred against any of them for
violation or neglect of duty, and certify the same to the
common council " for their action. The common council
had power to declare the office of any person so complained
against vacant if the complaint were found to be true.

The recorder was a judicial officer having, within the limits
of the city, essentially the same power as a justice of the peace.
He had, moreover, jurisdiction over all violations of the city
ordinances. The city marshal was a regular attendant upon
the Recorder's Court, and under obligation " to execute and
return all processes issued by the recorder, or divested to him
by any legal authority." The marshal might appoint one or
more deputies who should have equal |X)wer with himself; he
should arrest all persons guilty of a breach of the j)eaoe and
of violation of the city ordinances, and bring them before the

64 The Establishment of Municipal Government [134

recorder for trial. He should possess, finally, superintending
control of the city police.

The treasurer was required to make out and present to the
mayor quarterly "a full and complete statement of the receipts
and expenditures of the preceding three months," to be pub-
lished in a manner to be prescribed by ordinance. The usual
oath and bond were required of all city officers before entering
upon the duties of their offices, and the mayor, recorder, alder-
men and assistant aldermen were required to qualify within
three days of their election. The duties of the comptroller,
street commissioner, collectors and all other officers whose
functions were not laid down in the charter, were to be
defined by the common council.

The legislative power was vested in the mayor and the two
bodies of the common council. Conspicuous limitations on
this power were: 1. That the taxes levied and collected
should not exceed one per cent, per annum, upon all property
made taxable by law for State purposes; 2. That money
borrowed on the faith of the city should " never exceed three
times its annual estimated revenues." With respect to all
ordinances passed by the common council, the mayor pos-
sessed a limited veto which was defined in terms similar to
those employed in describing the veto power of the President
of the United States. In case of a vacancy in the office of
mayor, or in case of the absence or the inability of the mayor,
the president of the board of aldermen should exercise the
mayor's duties and receive his salary. The mayor might
call special sessions of the common council at any time by
prolamation, and should state to the members when assem-
bled the purpose for which they had been convened.

In the case of bills appropriating money, imposing taxes,
increasing, lessening, or abolishing licenses, or for borrowing
money, it was required that the "yeas" and "nays" should
be entered on the journals. For the passage of any appro-
priation bill involving the sum of five hundred dollars or
more, and of any bill increasing or diminishing the city

135] In San Francisco, 66

revenue, the vote of a majority of all the members elected
was required. All resolutions and ordinances, moreover,
calli^^ for the appropriation of any sum of money exceeding
fifteen thousand dollars, were required to lie over for ten days
and be published for one week in at least one public daily paper.
It was unlawful for any member of the common council to be
interested in any contract, the expenses of which were to be paid
out of the city treasury ; and the city itself was not permitted
to become the subscriber for stock in any corporation.

In case it should become necessary for the city to use
private property for laying out, changing, or improving
streets, and no agreement between the owners and the cor-
poration should be possible, the property might be taken
on the payment by the city of a sum fixed by a board of
^ve commissioners appointed by the County Court. In any
proposition to pave, grade, light, water, or otherwise improve
a street, one-third of the owners of the land opposite the
proposed improvements making objection, the improvements
should not be made. But if the number of the objectors
was less than one-third of the owners, the improvements
should be made. The initiative in improvements might also
be taken by the owners of property opposite which they were
desired. They should be made if three-fourths of the owners
required them and applied therefor to the common council,
provided there were funds in the treasury not otherwise appro-
priated that might be used for this purpose.

That there might be no conflict of powers, it was provided
by a final section of the charter, that all the powers and
functions of all officers whatsoever who had hitherto exer-
cised authority in the municipal government of San Francisco
should cease and be determined from and after the day on
which the officers prescribed by the charter should be duly
elected and qualified.

The first election under this charter was held May 1, 1850,
at the time the vote was taken for its adoption by the citizens
of San Francisco. The following officers were elected :
5

66

The Establishment of Municipal Government [136

Mayor. — John W. Geary.
iJ€cord<T.— Frank Til ford.
Marshal. — Malachi Fallon.
City Attorney.— Thos. H. Holt.

Treasurer. — Charles G. Scott.
Coviptroller. — Benj. L. Berry.
Tax Collector. — Wm. M. Irvin.
Street Commissioner. — Dennis McGJpirthy.

Charles Minturn,
F. W. Macondray,
D. Gillespie,

A. Bartol,
C. T. Botts,
Wm. Sharron,

Kobert B. Hampton,
Holsey Brower,
John Garvey,

Aldermen.
A. A. Selover,
Wm. Greene,

Assistant Aldermen.
John Maynard,
John P. Van Ness,

Assessors.
John H. Gibson,
Francis C. Bennett,

C. W. Stuart,
Wm. M. Burgoyne,
M. L. Mott.

L. T. Wilson,
A. Morris,
Wm. Corbett.

John P. Haff,
Beverly Miller,
Lewis B. Coffin.

Before the end of the following January several changes
occurred in the common council. Mr. Burgoyne was never
qualified and Mr. Macondray resigned. Their places were
filled on the 27th of June by the election of Moses G. Leonard
and John Middleton. Of the assistant aldermen, Mr. May-
nard and Mr. Botts resigned, and their places were filled by
George W. Green and James Grant. Later changes were
effected in the board of aldermen by the retirement of Mr.
Gillespie and Mr. Leonard, whose places were filled on the
20th of January, 1851, by the election of W. H. V. Cronise
and D. G. Robinson. At the time of this last election, George
W. Gibbs was chosen to fill a vacancy in the board of assistant
aldermen caused by the resignation of Mr. Morris.

The two boards met to organize and appoint committees on
the 9th of May, in the City Hall, at the corner of Kearney
and Pacific streets. At these meetings a message from the
mayor was received and read. The reports of the treasurer
and comptroller submitted at this time show the liabilities
of the city to have been $199,174.19, while the assets were
$238,253.00, being an excess of $39,078.81 over the liabilities.

The new government having been put into operation shortly
after the conflagration of May 4, its attention was directed to

137] In San Francisco. 67

the necessity of providing more efficient means for extinguish-
ing fires. To this end an ordinance was passed declaring "that
if any person, during a conflagration, should refuse to assist in
extinguishing the flames, or in removing goods endangered by
fire to a place of safety, he should be fined in a sum not less
than five, and not exceeding one hundred dollars." The mayor
was authorized "to enter into contracts for digging artesian
wells and for the immediate construction of water reservoirs
in various parts of the city.'* Another ordinance passed at
an early meeting of the council ordained that every house-
holder should " furnish six water buckets, to be kept always
in readiness for use during the occurrence of future fires.''

At its first meeting held May 9, 1850, the common council
entered upon a scheme for plundering the city treasury in be-
half of the members of the government. A bill to fix the
salaries of the several city officers was brought forward, dis-
cussed, and laid over for subsequent consideration. It was
proposed that the mayor, the recorder, the marshal, and the
city attorney should receive ten thousand dollars each per
annum. The comptroller, the aldermen, and the assistant
aldermen were to have six thousand dollars each, while the
treasurer was to receive one per cent, of all receipts, and the
tax collector three per cent, of all sums collected. This propo-
sition, coupled with an extravagant and unwise license law,
awakened a spirit of indignation in the citizens, and "came
very near overthrowing the entire city government."^ Num-
erous public meetings were held to devise means for putting
an end to the disgraceful conduct of the legally constituted
authorities. Such a meeting was held in Portsmouth Square,
on the evening of June 6, and was attended by several thou-
sand persons. At a previous meeting a committee had been
appointed to take into consideration " the acts of the common
oouncil upon the subject of taxation and salaries." The
committee having canvassed the subject, submitted to the

' Daily AUa Calif omia, August 14, 1850.

68 The Establishment of Municipal Government [13S

meeting of June 6, the following resolutions which were
adopted :

" Whereas, It is customary and proper for the people at all times
to assemble and deliberate together upon the acts of their public
servants, — and to instruct them when they shall have exceeded
their just powers, or imposed unnecessary burdens on the com-
munity,— and whereas, the system of oppressive taxation, of high
salaries and other impolitic measures, proposed by our present
city council, have a sure and certain tendency to retard the
growth, to obstruct the commerce, to cripple the industry, and to
overload the people of our city, — we, the citizens of San Fran-
cisco, in public meeting assembled, do hereby resolve and declare —

" Resolved, That Avhile we duly respect the lawfully constituted
authorities of our city, and are willing to pay all proper taxes, to
meet the necessary public expenses and improvements, we most
earnestly protest against the great and unequal pressure of the
present scheme of taxation, — against the high salaries proposed^
especially for offices considered in other cities offices of trust and
honor, and not of profit, — and against the expenditure of the
public funds for purposes never contemplated by the votes of
this city.

" Resolved, That in view of the grievance of which we com-
plain, should the scheme of high salaries be carried out by the
common council, we shall view their position as antagonistical ;
and we believe that such an act will call forth a popular dissatis-
faction, which will render all taxation difficult, depriving our
city of necessary revenue, and still further embarrass our already
bankrupt treasury.

" Resolved, That in the opinion of this meeting, the salaries of
all the officers of the city should be limited to the least remu-
nerating rates, and that the common council should receive no
salary, except, perhaps, a reasonable joer dieni allowance for extra
labors in committees, so long as the corporation is unable to supply
its pressing wants and pay its honest debts.

*' Resolved, That we consider the scale of taxation as proposed
and in part established by our city council, not only unjust to all
classes, but especially oppressive to the interests of the laboring
and poorer classes, and that as hundreds of good citizens are daily

139] In San Francisco. 69

arriving in embarrassed circumstances, a heavy tax upon their
limited means of honest livelihood is unjust and wrong.

" Resolved J That we instruct our mayor and common council to
abandon the scheme of high salaries, and to remodel the schedule
of oppressive taxation as shadowed forth by their recent actions ;
and unless they are willing to do so, to resign and give place to
more patriotic and efficient men.

"Resolved, That a committee of twenty-five be appointed by
this meeting to wait upon the common council, with a copy of
these resolutions, and request an answer thereto."

These resolutions were presented to the common council
at a meeting of that body, held June 7, by J. L. Fulsom,
chairman of the committee of twenty-five. They were read,
and, by a vote of the council, laid on the table. Alderman
Selover, the mover of this action, contended " that they were
insulting and not couched in terms which should entitle them
to respect and consideration." The vote that the resolutions
lie indefinitely on the table was not considered such an answer
as was due to the great popular assembly represented by the
committee of twenty-five. When, therefore, this committee
reported to a subsequent meeting in the public square, on the
evening of June 12, they were empowered to increase their
number to five hundred, and authorized to present the same
resolutions to the council in such form as they might think
proper. They were instructed, moreover, to report to a meet-
ing of the people to be held on the 17th of June, and at that
time to recommend such course of action as they might deem
necessary. "The committee thus fortified, afterwards chose
the additional members, and fixed the evening of the 14th,
when they should all march in procession to the place of
meeting of the common council, and there again submit the
* sovereign will' of the people to the aldermen, and require
their prompt obedience to the same. On that day the great
conflagration took place ; and further action on the subject
of the high salaries and obnoxious taxation ordinances was
indefinitely postponed. Popular excitement took a new direc-

70 The Establishment of Municipal Government [140

tion in consequence of the fire ; and, excepting in the columns
of the Hei'ald newspaper, and among a few testy individuals,
little more was said on the matter till some months afterwards,
when the question was revived. The previous meetings, how-
ever, had the effect of causing the obnoxious license ordinance
to be withdrawn for a time. In the end, the salaries of both
the municipal officers and the common council were reduced,
the latter being ultimately fixed at four thousand dollars."^
The salaries of the other municipal officers ranged from eight
thousand to ten thousand dollars.

A charter having been adopted, the city proceeded to take

^The action of the mayor, John W. Geary, in vetoing the ordinance which
fixed the salaries of the members of the council at four thousand dollars,
"was universally and heartily applauded by the people." In returning the
ordinance to the council, unapproved, he called the attention of members
to the inexpediency of their action. " With great unanimity," he said,
among other things, "a financial measure has been adopted to provide for
the immediate payment of the city's indebtedness by means of a loan of
half a million of dollars. It is of the greatest importance to the interests
of the city that that measure should be made to succeed at the earliest pos-
sible moment. In my deliberate judgment its success would be injuriously
impeded, if not entirely defeated, by associating with the proposition for
a loan, an ordinance to appropriate so large a proportion of the amount
demanded as sixty-four thousand dollars, to the payment of a class of
officers whose services are usually rendered without any other remunera-
tion than the honor conferred by their fellow-citizens, and their partici-
pation in the general good which it is their province and duty to promote.
It could not fail to weaken our public credit to show a purpose to use it for
the payment of salaries never contemplated by the people, especially in
view of the admitted necessity for the practice of the most rigid economy,
in order to complete by means of all the resources and credit Ave possess
the public works in progress or in contemplation. With scarcely a dollar
in the public treasury — without the means of discharging even the interest
falling due for the script already issued — the city credit impaired, and
general bankruptcy staring us in the face, retrenchment should be the
order of the day, rather than the opening up of new modes of making
enormous and heretofore unknown expenditures." "Annals," 280-281.
The efforts of the citizens to compel economy in the government did not
cease with their opposition to the proposed salaries. On the 24th of June
D. R. Smith and others petitioned the council " to investigate the conduct
of the street commissioner in hiring a mule at twenty-five dollars per day."

141] In San Francisco, 71

an inventory of its goods. A commission was, therefore,
appointed by the common council, consisting of one alderman,
one assistant alderman, and one citizen of San Francisco, to
ascertain and report to the common council, the extent, de-
scription, and condition of all the property belonging to this
city, or to the municipality, or pueblo of Yerba Buena, or
San Francisco, on the 29th day of April last ; and all claims,
rights, titles, and interests of said city or pueblo to or in any
lands, funds, or property within the corporate limits ; and also
to ascertain and report upon any right or privilege to which
the citizens of San Francisco, or the citizens or inhabitants
thereof in common, may be entitled beyond the limits de-
scribed by the act to incorporate the city of San Francisco.^

During its brief and inglorious career, the common council
was so completely absorbed in the question of the members'
salaries, that the work of organizing the government made
only slow progress. It was provided, however, by a joint
resolution of the two bodies of the council, that at the begin-
ning of every municipal year certain joint standing committees
should be appointed by the council, each board appointing
three members of each committee. The committees specified
were: 1. on finance; 2. on fire and water; 3. on police,
prisons, and health; 4. on streets, wharves, and public build-
ings ; 5. on ordinances ; 6. on education ; 7. on engrossing ;
8. on the judiciary. Each committee was empowered to
choose its own chairman by ballot. By another j6int reso-
lution of the same date, June 19, 1850, the following method
of legislative procedure was established for the council :

" Every ordinance shall have as many readings in each
board as the rules of each board may require ; after which
the question shall be on passing the same to be engrossed,
and when the same shall have been passed to be engrossed, it
shall be sent to the other board for concurrence ; and when
such ordinance shall have so passed to be engrossed in each

1 Ordinance dated May 30, 1850.

72 The Establishment of Municipal Government [142

board, the same shall be engrossed by the clerk of that body-
in which it originated, and examined by the joint engrossing
committee, and upon their report the question shall be in each
board, upon its final passage ; upon its final passage in the
concurring board it shall be signed by the president thereof
and returned to the board in which it originated. Upon its
final passage in the originating board, it shall be signed by
the president thereof and transmitted to the mayor, by whom
it shall be returned with his signature or objections to the
board from whence it came/'

During the last half of the year several departments were
organized, particularly those for whose efforts there was the
most imperative need. The fire department was established
by an ordinance passed on the first of July. Companies of at
least twenty members having adopted and signed a constitu-
tion, might petition the common council for apparatus, house
and other articles required. The rules of the department were
made by an association composed of two delegates from each
company, elected on the first Monday of August each year.
The rules thus made were regarded as binding by all com-
panies in the department. It was provided there should be a
chief engineer and two assistant engineers. They were elected
by the members of the several companies. The chief engineer
was president of the board of delegates. It was the duty of
the chief engineer, moreover, " to superintend the organization
of all fire companies in San Francisco ; to examine all engines,
hose and apparatus belonging thereto, which the city may wish
to purchase ; to superintend the erection of engine houses and
cisterns ; to exercise a general supervision and control over all
branches of the fire department of this city ; to act in con-
junction with the fire committee, on all subjects which may
be referred to them ; and to protect the engines and apparatus
of the city which shall be placed in the houses of private
companies.'*

The chief engineer was required also " to superintend and
direct the operations of all companies at fires or conflagra-

143] In San Francisco. 73

tioDS ; he was given authority, with the consent of the mayor
and two members of the common council, to blow up any
building or buildings with gunpowder," which he might
deem necessary for the suppression of the fire, or to perform
such other acts as might be demanded by the emergency.
He was required to report the condition of his department
at least once in three months, or oflener if demanded. A bond
in the sum of ten thousand dollars was required of him, and
his salary was to be six thousand dollars per year, payable
monthly.

The police department, as organized under the charter of
1850, consisted of a night and a day police "not to exceed
seventy-five men, including captains, assistant captains, ser-
geants of police, and policemen." They were nominated by
the city marshal and confirmed by the mayor. Of this
department, the marshal was the chief executive officer, and
he was held responsible to the common council "for the
efficiency, general conduct and good order of the officers and
men."

The city was divided into three police districts, in each of
which provision was made for one deputy marshal, or police
captain, and one assistant captain, and two police sergeants.
Each district was divided into as many beats or stations as
were deemed necessary and might be approved by the city
marshal. The salaries fixed were ten dollars a day for each
captain of police ; eight dollars a day for each assistant cap-
tain, each sergeant, and each policeman. The salaries were
paid semi-monthly by the comptroller through warrants.

The ordinance organizing the street department was approved
September 20, 1850, and the department when organized was
charged with "o|)ening, regulating, and improving streets,
constructing and repairing wharves and piers, digging and
building wells and sewers, and the making of public roads,
when done by assessment, and all other matters relating to
public lands and places, and the assessing and collecting of
the amounts required for such expenditures." The work of

74 The Establishment of Municipal Government [144

the department was distributed among three bureaux: 1. The
bureau of assessment and collection; 2. The bureau of sur-
veying and engineering ; 3. The bureau of wharves and piers.
The chief officer of the department was the street commis-
sioner, who by virtue of his office was one of the surveyors
of the city. He was required to execute a bond to the cor-
poration in the sum of ten thousand dollars for the faithful
performance of his official duties. He made all contracts for
work, and all pecuniary obligations of the city under these
contracts were met by warrants of the comptroller, drawn
upon the requisition of the commissioner. He was required
to indicate to the common council, from time to time, the
improvements needed, and present plans for making them ;
in a word, he was to be the manager of the department. The
second general officer was called the clerk to the street com-
missioner, by whom he was appointed and whom he assisted
in all matters pertaining to the street department. He kept
accounts in relation to all contracts made, prepared the requi-
sitions upon the comptroller for the amounts due the several
contract£>rs, examined all claims against the corporation, and
kept a record of assessments. In case of vacancy in the office
of street commissioner, the clerk was empowered to act in that
capacity until the appointment of a new commissioner.

The officers of the bureau of assessment and .collection
received their appointment "by nomination of the street
commissioner, and election by the common council." They
w^ere " charged with the duties of making the estimates and
assessments required for all public alterations and improve-
ments ordered by the common council," and of collecting all
assessments that had been confirmed by the same body. The
collector of assessments, in order to insure the faithful per-
formance of his official duties, was required to "execute a
bond to the corporation, with at least two sureties, to be
approved by the comptroller, in the final sum of twenty-five
thousand dollars."

It was provided that the city and county surveyor should

145] In San Francisco, 75

be the chief officer of the bureau of surveying and engineer-
ing. The main functions of this bureau were to assist the
street commissioner " in laying out and regulating the streets,
roads, wharves and slips of the city.'' It was, moreover,
required to lay out and survey ground for the purpose of
building, and to advise and direct all relative matters. No
person, in fact, was permitted to build on his own land unless
the land had previously been " viewed and laid out by the city
or county surveyor, with the advice and consent of the street
commissioner," and for these services the city surveyor might
demand and receive the fees allowed by the legislature to
county surveyors, but whenever he was employed by the
street commissioner to make a survey, he was to receive com-
pensation at the rate of sixteen dollars a day. For making a
survey for the purpose of regulating and improving a street,
he was to " receive at the rate of twenty-five dollars for each
hundred feet running measure to be thus improved." For
other special surveys, as for building a sewer, specific charges
were fixed by the ordinance through which the department
was organized.

At the head of the bureau of wharves and piers was the
superintendent of wharves, whose duty it was to inspect the
condition of the public wharves and piers, to repair those
existing,. and to superintend the erection of new ones. He
was nominated by the street commissioner and appointed by
the common council, and his bond to the corporation was in
the sum of five thousand dollars. Besides sui>erintending the
wharves and piers, he was required to advise with the street
commissioner in relation to such improvements as might
appear necessary, which, being approved, should be reported
to the common council with the commissioner's recommenda-
tion. In case, however, the proposed improvements should
not involve an expense exceeding four hundred dollars, they
might be undertaken by the authority of the street commis-
sioner, by whom alone, as in other cases, all requisitions upon
the comptroller for payments should be made.

76 The Establishment of Municipal Government [146

The office of wharfinger was created December 20, 1850.
The incumbent was " to have a general superintendence and
control of the wharves belonging to the city." He was sub-
ordinated to the street commissioner by whom he was nomi-
natetl. It was his duty to collect all tolls and money accruing
from the use of the wharves ; and his compensation was to be
twenty per cent, of the gross receipts. He was required to
give a bond in the amount of three thousand dollars.

According to the provisions of the charter the city was
to be divided by the common council into eight wards. This
was done by an ordinance dated November 5, 1850. The
first ward embraced that portion of the city east of Stockton
and north of Jackson street ; the second, that portion west of
Stockton and north of Jackson ; the third, that portion east
of Kearney, between Jackson and Sacramento; the fourth,
that portion west of Kearney, between Sacramento and Jack-
son ; the fifth, that portion bounded by Sacramento, Market
and Kearney streets; the sixth, all that portion west of
Kearney, between Sacramento and Market ; the seventh, all
that portion south and east of Market, and east of Fourth
street ; and the eighth, all that portion west of Fourth street
and south and east of Market.

The municipal government thus created and organized
under the charter of 1850, and the whole political organiza-
tion to which it belonged, occupied a peculiar and anomalous
position. California at that time was simply a conquered
region which had not been organized by Congress into either
a territory or a State. In this position the people, impelled
by the necessities of their circumstances, had adopted a con-
stitution and set up a government which had much likeness
to the government of a State in the Union. This goverment,
however, had not been adopted or recognized by the power
which alone held the sovereign authority over this region, and
whose cooperation with the inhabitants was necessary to the
organization of legitimate political institutions. The city
charter was, therefore, an act of an unauthorized body, and it

147] In San Francisco. 77

was within the power of the government at Washington to
set aside both the charter and the legislative body from which
it had proceeded.

The uncertainties of their position led the people of San
Francisco to look with eagerness for favorable news from
Congress during the months in which the proposition to make
California a State was before that body. When the expected
tidings finally arrived, on the 18th of October, the inhabitants,
to use the language of a contemporary writer, were "half wild
with excitement." " Business of almost every description was
instantly suspended, the Courts adjourned in the midst of their
work, and men rushed from every house into the streets and
towards the wharves, to hail the harbinger of the welcome
news. When the steamer rounded Clark's Point and came
in front of the city, her masts literally covered with flags and
signals, a universal shout arose from ten thousand voices on
the wharves, in the streets, upon the hills, house-tops, and the
world of shipping in the bay. Again and again were huzzas
repeated, adding more and more every moment to the intense
excitement and unprecedented enthusiasm. Every public place
was soon crowded with eager seekers after the particulars of the
news, and the first papers issued an hour after the appearance
of the Oregon were sold by the newsboys at from one to five
dollars each. The enthusiasm increased as the day advanced.
Flags of every nation were run up on a thousand masts and
peaks and staffs, and a couple of large guns placed upon the
plaza were constantly discharged. At night every public thor-
oughfare was crowded with the rejoicing populace. Almost
every large building, all the public saloons and places of
amusement were brilliantly illuminated — music from a hun-
dred bands assisted the excitement — numerous balls and parties
were hastily got up — bonfires blazed upon the hills, and rockets
were incessantly thrown into the air, until the dawn of the
following day."*

IM

Annals," 293.

78 The Establishment of Municipal Government [148

In what manner the common council had contributed to
the cause of this public rejoicing does not appear; measures
were taken, however, through which each member was to
receive, nominally as a present from the city, a gold medal,
of the value of one hundred and fifty dollars, commemorative
of the admission of California to the Union. This scheme,
the responsibility for which it was difficult to fix, following
as it did on the heels of other manifestations of inordinate
greed displayed by the city government, aroused public in-
quiries as to what services had been rendered by the council
that were not adequately covered by their enormous salaries.
The outcry that was raised against the project prevented its
execution, and the councilmen who received the medals be-
came willing to pay for them, in order that they might hide
them as quickly as possible in the melting pot. But even
this action did not free them from the imputation of having
planned to award themselves costly decorations to be pro-
vided from the funds of the city treasury.

That the municipal government was in disreputable hands
become apparent very early, and every succeeding month
brought forth new evidence of the lamentable fact. During
the year 1850, San Francisco had unquestionably improved
in appearance. It had grown from a " mass of low wooden
huts and tents '^ to be a city " in great part built of brick
houses, with pretty stores ; and the streets — formerly covered
with mud and water — floored throughout with thick and dry
planks."^ But honesty and efficiency were wanting in the
administration of its affairs. The courts were corrupt, and
already there were manifestations of that sentiment which
found expression in the vigilance committee of the following
year. The government appeared to have brought the muni-
cipality a long way on the road to financial ruin. On the
25th of March, the editor of the Daily Alta California wrote :

" If any other city has had the singular fortune to run in

* Gerstaecker, " Journey," 243.

149] In San Francisco, 79

debt so deeply in so short a period as San Francisco, we have
never heard of it. If any other city has incurred debt so
wantonly, without ever considering the means of payment, or
making any provision for sustaining its credit, it has not been
in our day. Here is a city not three years old, with a popu-
lation of perhaps 25,000 people owing already one million of
dollars, and looking forward with the intensest satisfaction to
an accumulating interest of 36 per cent, per annum.'*

A remedy for the serious ills that had fallen upon the city
appeared to lie in the adoption of a new charter, and in the
election of a new list of municipal officers. A new charter
was clearly needed, not merely because the existing one was a
carelessly constructed instrument, but also because it lacked
the requisite authority. In order, therefore, to supply the
evident deficiencies, the first legislature convened after the
admission of California to the Union re-incorporated the city
of San Francisco by an act passed on the 15th of April, 1851.

The charter of 1851 retainetl all the essential forms of the
pre-existing government; it differed from that of the pre-
vious year in its more careful definition of the functions of
the several departments, particularly in its specifications as to
financial management. The southern and western boundaries
of the city alone were changed. The former was kept parallel
to Clay street, but was placed two miles and a half instead of,
as formerly, two miles from the centre of Portsmouth square.
The western line was placed at a distance of two miles, instead
of a mile and a half from the same point, and remained, as
formerly, parallel to Kearney street. The existing division
of the city into eight wards was adopted, but it was provided
that the common council should, " at least three months be-
fore the general election of 1852, and also during the second
year thereafter redistrict the city, so that each ward " should
contain approximately the same number of inhabitants. In-
stead of the two assessors from each ward provided for by the
previous charter, it was here determined that there should be
elected annually three for the whole city by a general ticket.

80 The Estahlishment of Municipal Government [150

In the charter of 1850, it was provided that of the whole
number of sixteen assessors only eight should be elected for
the first year, while in that of 1851, it was specified that for
the first year only two should be elected.

On the transaction of business by the council, the second
charter imposed restrictions unknown to the first. Under the
first charter a majority of the members elected constituted a
quorum, and an ordinance might be passed by a majority of
the members present, which might mean by a majority of a
simple quorum. The ayes and nays were taken and entered
on the journal only as they might be called for by one or
more members; whereas under the second charter no ordi-
nance or resolution could " be passed unless by a majority of
all the members elected to each board. On the final passage
of every ordinance or resolution ayes and nays shall be taken
and entered upon the journal." But in its financial dealings,
the council was most completely hedged about, as may be
seen from several sections of the third article :

" Every ordinance providing for any specific improvement,
the creation of any office, or the granting of any privilege, or
involving the sale, lease, or other appropriation of public
property, or the expenditure of public moneys (except for
sums less than five hundred dollars), or laying any tax or
assessment, and every ordinance imposing a new duty or
penalty shall, after its passage by either board, and before
being sent to the other, be published with the ayes and nays
in some city newspaper, and no ordinance or resolution,
which shall have passed one board shall be acted upon by the
other on the same day, unless by unanimous consent" (Art.
Ill, sec. 4).

With reference to municipal debts, the first charter authorized
the common council "to borrow money and pledge the faith of
the city therefor, provided the aggregate amount of the debts
of the city shall never exceed three times its annual estimated
revenues." Notwithstanding the unequivocal limitations of
this provision, it was not observed. The debts created by the

161] In San Fi'ancUco, 81

council of 1850 were more than three times the amount of the
annual revenues. In the second charter the line of restriction
was more closely drawn. The council could not " create, nor
permit to accrue, any debts or liabilities which, in the aggregate
with all former debts or liabilities, shall exceed the sum of fifty
thousand dollars over and above the annual revenue of the
city, unless the same shall be authorized by ordinance for
some specific object, which ordinance shall provide ways and
means, exclusive of loans, for the payment of the interest
thereon as it falls due, and also to pay and discharge the
principal within twelve years." To make the security still
greater, the principle of referendum was here applied, it being
determined that this ordinance should not take effect until it
had been submitted to the people and received a majority of
all the votes cast; and the money thus raised could be used
only for the object mentioned in the ordinance, or for the
payment of the debt thereby created. It was, however, pro-
vided that the existing city debt, with the interest accruing
thereon, should make no part of the fifly thousand dollars
specified. The council, furthermore, had no power to borrow
money unless it should "by ordinance direct the same in
anticipation of the revenue for the current year, and should
provide in the ordinance for repaying the same out of such
revenue ; " nor in such case could the sum borrowed exceed
fifty thousand dollars. A larger sum might, however, be
raised by loan for the purpose of extinguishing the existing
liabilities of the city, whenever the ordinance providing for
the same should have first been approved by the electors of
the city at a general election. On such a loan the yearly rate
of interest should not exceed ten per cent., and the whole
should be payable within twenty years.

The financial activity of the council was further circum-
scribed by the prohibition " to emit bills of cretlit or to issue
or put in circulation any pajMir or device as a representative
of value or evidence of indebtedness, to award damage for the
non-performance or failure on their part of any contract, to
6

82 The Establishment of Municipal Government [152

loan the credit of the city, to subscribe to the stock of any
association or corporation, or to increase the funded debt of
the city unless the ordinance for that purpose were first
approved by the people at a general election." With respect
to tiixation, both charters contained the same provision, limit-
ing the amount Ihat might be imposed by the council to one
per cent, a year of the assessed value of the property. This
was not an absolute limitation, for the council had power
to raise, by tax, any amount of money that it might deem
exj)edient, whenever the ordinance for that purpose had been
approved by the people. That there would be occasion for
exercising this extraordinary power appeared probable in view
of the enormous debt that had been thrust upon the city, and
of the rapidly increasing need of public improvements. Yet
in spite of the pressing demand for money for current uses,
the second charter definitely set aside certain revenues to con-
stitute a sinking fund for the payment of the city debt. As
long as the debt remained uncancelled, the funds accruing
from these revenues could be used for no other purpose.
These revenues were: 1. The net proceeds of all sales of real
estate belonging, or that may hereafter belong, to the city ;
2. The net proceeds of all bonds and mortgages payable to
the city; 3. Receipts "for occupation of private wharves,
basins, and piers ; " 4. Receipts for wharfage, rents, and tolls.
To prevent the common council from voting such extravagant
salaries as had been paid to the city officers under the first
charter, it was provided that the several officers under this
charter should "receive for their services out of the city
treasury, a compensation to be fixed by ordinance, not to
exceed four thousand dollars a year." The treasurer, how-
ever, might " receive in lieu of salary not to exceed one half
of one per cent, on all moneys received, paid out, and accounted
for by him, and the collector not to exceed one per cent, on all
moneys collected and paid over." The mayor's and recorder's
clerks should receive not over two thousand dollars a year, the
clerk of the board of aldermen not over twelve hundred dollars,

153] In San Francisco. 83

and the assessor not over fifteen hundred dollars. The mem-
bers of the common council were prohibited from receiving
any comjiensation for their services.

These provisions regarding the management of the muni-
cipal finances are here set forth prominently, because, as
already suggested, they constitute the main points of differ-
ence between the two charters. The adoption of the second
charter and the election of the officers provided for in it, were
the last steps in the establishment, under the authority of the
United States, of a legitimate municipal government in San
F'rancisco. The election occurred on Monday, the 28th of
April, 1851. On the evening of May 3, the two boards of
the common council met in joint convention to examine the
returns, and report to the mayor the result of the election.
The examination having been made, the mayor was instructed
by vote to notify the gentlemen named of their election, and
they were requested to meet in the City Hall and take the
oath of office. On the same evening the common council
adjourned sine die, and thus ended its disgraceful career.

IV

MUNICIPAL HISTORY

OP

NEW ORLEANS

JOHNS HOPKINS UNIVERSITY STUDIES

I N

Historical and Political Science

HERBERT B. ADAMS, Editor

History is past Politics and Politics present History— /VioetnAn

SEVENTH SERIES
IV

MUNICIPAL HISTORY

OF

NEW ORLEANS

By WILLIAM W. HOWE

BALTIMORE

K. MOBftAT, PCBLICATION AOBMT, JOHKS HOPKtNll UKIVKMITr

APRIL, 18S9

COPYKIGHT, 1888, BY N. MUREAY,

JOHN MURPHY & CO., PRINTERS.
BALTIMORE.

MUNICIPAL HISTORY OF NEW ORLEANS.

For nearly two centuries after the discovery of America, the
Mississippi River remained almost unknown ; and it was not
until the year 1682 that LaSalle picked his perilous path from
Canada by the way of Lake Michigan and the Illinois, and
descended the great stream to its mouth. He was exploring
under the patronage of Louis Fourteenth, and gave the name
of Louisiana to the vast valley.

The first permanent settlement made by the French in this
new domain was established at Biloxi, now in the State of
Mississippi, which was founded by Iberville in 1699, and was
the chief town of the colony until 1702, when Bienville moved
headquarters to the Mobile River. The soil in the neighbor-
hood of Biloxi is sandy and sterile and the settlers depended
mainly on supplies from France and St. Domingo. The French
Government, distant and necessarily ignorant of the details of
pioneer life, sent instructions to search for gold and pearls.
The wool of buffaloes was also pointed out to the colonial
officials as the future staple commodity of the country, and
they were directed to have a number of these animals penned
and tamed. ^ It is hardly necessary to say that but little profit
was ever realized from the search for gold and pearls, or from
the shearing of buffiiloes.

* Martin's History of Ixmislana, chap. 7.

6 Municipal History of New Orleans, [160

In 1712 the entire commerce of Louisiana, with a consider-
able control in its government, was granted by charter to
Anthony Crozat, an eminent French merchant. The terri-
tory is described in this charter as that posessed by the Crown
between Old and New Mexico, and Carolina, and all the
settlements, ports, roads and rivers therein, principally the
port and road of Dauphine Island, formerly called Massacre
Island, the river St. Louis, previously called the Mississippi,
from the Sea to the Illinois, the river St. Philip, previously
called the Missouri, the river St. Jerome, previously called the
Wabash, with all the lands, lakes and rivers mediately or
immediately draining into any part of the river St. Louis or
Mississippi. The territory thus described was to be and re-
main included under the style of the government of Louisiana,
and to be a dependency of the government of New France to
which it was subordinated. By another provision of this
charter, the laws, edicts and ordinances of the realm and the
Custom of Paris were extended to Louisiana.

The grant to Crozat, which seemed so magnificent on paper,
extending as it did from the Alleghenies to the Rocky Moun-
tains, and from the Rio Grande and the Gulf to the far North-
west, proved of little use or value to him, and of little benefit
to the colony; and in 1718 he surrendered the privilege. In
the same year the charter of the Western or Mississippi Com-
pany was registered in the Parliament of Paris. The history
of this scheme, with which John Law was connected, is well
known. The exclusive commerce of Louisiana was granted
to the Company for twenty-five years, and a monopoly of the
beaver trade of Canada, together with other extraordinary
privileges ; and it entered at once on its new domain. Bien-
ville was again appointed Governor. He had become satis-
fied that the chief city of the colony ought to be established
on the Mississippi, and so in 1718 the site of New Orleans
was selected. Its location was plainly determined by the fact
that it lies between the River and Lake Ponchartrain, with
the Bayou St. John and the Bayou Sauvage or Gentilly

161] Municipal History of New Orleans, 7

affording navigation for a large part of the distance from the
lake towards the river. And even at this early day there was
a plan of constructing jetties at the mouth of the Mississippi
and so making New Orleans the deep water port of the Gulf.
Pauger, the engineer, reported a plan for removing the bar at
the entrance of one of the passes, by the same system in prin-
ciple as the one recently and successfully adopted by Mr.
James B. Eads under the Act of Congress of 1875.^

Le Page du Pratz visited the place during the same year,
and took up a plantation on the Bayou St. John, " a short
half league from the site of the Capital," which he says was
" then marked only by a shed covered with leaves of latanier,"
the building, such as it was, being occupied by the Commandant
of the Post.2

The seat of government was finally removed to New Orleans
in August, 1722, and when Charlevoix visited the place, in
December, 1723, it contained about one hundred houses, mostly
cabins. The well-known map of 1728 shows the town pro-
tected by a levee and laid off in rectangular form, having
eleven squares front on the river by a depth of six squares.

In 1732 the Western Company surrendered its grant. In
1763 a secret treaty was signed at Paris by which France
ceded to Spain all that portion of Louisiana which lay west
of the Mississippi together with the City of New Orleans,
"and the Island on which it stands." The war between
England, France and Spain was terminated by the treaty of
Paris in February, 1764. By the terms of this treaty the
boundary between the French and British possessions in
North America was fixed by a line drawn along the middle
of the River Mississippi from its source to the River Iberville
and thence by a line in the middle of that stream and of lakes
Maurepas and Ponchartrain to the Sea. France ceded to
Great Britain the River and Port of Mobile and everytliing

^SUtutefl at large, Vol. 18, p. 463.
' Hitt. de la Louis., torn. 1, p. 83.

8 Municipal History of New Orleans. [162

she had possessed on the left bank of the Mississippi except
the town of New Orleans and the Island on which it stood.
As all that part of Louisiana not thus ceded to Great Britain
had been already transferred to Spain, it followed that France
had now parted with the last inch of soil she had owned on
the Continent of North America.

From its foundation up to this date New Orleans was
governed by the Superior Council, a body which had general
control of the colony, but at the same time took special charge
of the administration and police of the Capital. This council
had been first established under Crozat, in 1712, by royal edict
with powers equivalent to those of similar bodies in St. Domingo
and Martinique, and consisted of the governor and commissary
ordonnateur ; its existence being limited to three years from the
day of its first meeting. In September, 1 71 6, it was reorganized
by a perpetual edict and composed of the governor general and
intendant of New France, the governor of Louisiana, a senior
counsellor, the King's lieutenant, two puisn§ counsellors, an
attorney general and a clerk. The edict gave to the council
all the powers exercised by similar bodies in the other colonies.
Its sessions were directed to be held monthly. One of its
most important functions was judicial, for it determined all
cases, civil and criminal, in the last resort. In civil cases
three members constituted a quorum, in criminal cases five.
There was a possibility of popular representation in the pro-
vision that, in the absence and lawful excuse of members, a
quorum might be completed by calling in notables.

The transfer of the colony to the Western Company called
for another change in the organization of the Council ; and by
an edict of September 1719 it was made to consist of such
directors of that Company as might be in the provinces,
together with the commandant general, a senior counsellor,
the two King's lieutenants, three other counsellors, an attorney
general and a clerk.

On the surrender of the charter of the Western Company
in 1732, the Council was again remodeled by royal letters

163] Municipal History of New Orleans. 9

patent of May 7th. The members were declared to be the
governor general of New France, the governor and commis-
sary of Louisiana, the King's lieutenant, the town mayor of
New Orleans, six counsellors, an attorney general and a clerk.
In August, 1742, the increase of trade had caused such an
increase of litigation that it was deemed necessary to add to
the judicial force ; and accordingly by royal letters patent the
commissary ordonnateur was directed to appoint four assessors
to serve for a period of four years, — their duties being to report
in cases referred to them, or to sit when they were required to
complete a quorum or to break the dead-lock of a tie vote.

Under such a regime New Orleans was hardly a municipal
corporation in any English or American sense. It certainly
had at that time no municipal charter. It resembled in some
respects a commune, and has been alluded to by the Supreme
Court of Louisiana as having been at that time a city.^

II.

The French inhabitants of the colony were astonished and
shocked when they found themselves suddenly transferred to
Spanish domination, and a majority of the Superior Council
undertook in their official capacity to organize an opposition
to the Cession and to order away the Spanish Governor,
Antonio de Ulloa. But the power of Spain, though moving
with proverbial slowness, was roused at last; and in 1769
Alexander O'Reilly, the commandant of a large Spanish force,
arrived and reduced the province to actual possession. The
leaders in the movement against Ulloa, to the number of five,
were tried, convicted and shot. Another was killed in a
struggle with his guards. Six others were sentenced to
imprisonment, and the seditious documents of the Su[)erior
Council were burned on the Place d'Arraes.

*3 Annual Rep., 305.

10 Municipal History of New Orleans, [164

On the 21st of November, 1769, a proclamation from
O'Reilly announced that, inasmuch as the Superior Council
had encouraged this insurrection, it had become necessary to
abolish the body, and to establish in Louisiana that form of
government and mode of administering justice prescribed hy
those laws which had so long maintained peace and content-
ment in the American colonies of the Catholic King. In the
place, therefore, of the Council, a Cabildo was established,
over which the governor himself would preside in person,
and which was composed of six perpetual regidors, two ordi-
nary alcaldes, an attorney general syndic and a clerk.

The offices of Perpetual Regidor and Clerk were acquired
by purchase and were in the first instance offered at auction.
The purchaser had the right to transfer his office by resigna-
tion in favor of a known and capable person. One half of
the price of the first transfer and one third of each successive
one went to the royal treasury. Of these regidors or rulers,
the first was Alfarez Real, or royal standard bearer; the second
was Alcalde Mayor Provincial, a magistrate with jurisdiction
over offences in the rural districts; the third was Alguazil
Mayor, a civil and criminal sheriff; the fourth was Depositario
General, or government store-keeper ; the fifth was Recibedor
de Penas de Camara, or receiver of fines, while the sixth merely
held his seat in the Cabildo without special official duties.

The ordinary Alcaldes and Attorney General Syndic were
chosen by the Cabildo itself on the first day of every year,
and were required to be residents and householders of the
town. In^the absence of the unanimous vote they could not
be re-elected until they had been out of office for the space of
two years respectively.

The ordinary Alcaldes were individually judges within the
city in civil and criminal cases where the defendant did not
possess and plead the right to be tried by a military judge,
Juero militar, or by an ecclesiastical court, fuero ecdesiastico.
In cases^where the matter in dispute did not exceed twenty
dollars, they proceeded summarily at chambers, and without

165] Municipal History of New Orleans. 11

written record. In other cases a record was made up by a
notary, the case was heard in open court, and where the matter
in dispute exceeded ninety thousand maravedis ($330.88), an
appeal lay to the Cabildo itself. That body did not undertake
as such, to examine the case but selected two regidors, who,
with the Alcaldes who had heard the cause below, reviewed
the proceedings.

The Attorney General Syndic was not, as his title might seem
to indicate, the public prosecutor. He appears to have been,
in his way, a tribune of the people, though not chosen by
them. It was his duty to propose to the Cabildo such meas-
ures as the popular interest required and to defend the popular
rights.

O'Reilly presided over the first session of the Cabildo in
December, 1 769, and then yielded the chair to Unzaga, who
had been commissioned as governor, with the understanding
that he should not assume the duties of the position until the
captain-general should request him to do so.

Beyond the limits of the town, in each rural parish, an
officer of the army or of the militia was stationed, and acted
both as military commandant and chief civil officer. But the
city was governed by the Cabildo, and such continued to be
its municipal administration during the Spanish rule.

By a proclamation of February 22, 1770, the captain-
general created and assigned to the City of New Orleans a
special revenue. It consisted of an annual tax of forty dollars
on every tavern, billiard table and coffee house, and of twenty
dollars on every boarding house; an impost of one dollar on
every barrel of brandy brought to the city, and a tax of three
hundred and seventy dollars on the butchers of the place. To
enable the city to keep up the levee, an anchorage duty was
also established in its favor, of six dollars ujMm every vessel
of two hundred tons and upwards, and three dollars on smaller
craft. These exactions were not exorbitant, but they were the
seed of a system which has since become extensive and vicious.
New Orleans to-day is exacting large suras in tlie way of

12 Municipal Histoiy of New Orleans. [166

license taxes on pursuits which require no police regulation,
and in the guise of wharf dues which are really a tax on
commerce. The germs thus sown in Spanish times have
grown like the mustard tree of Scripture, and require vigorous
uprooting. In connection with the subject of revenue it may
be noted that New Orleans suffered greatly during the Spanish
domination from restrictions on the freedom of trade. The
colonial theories of Spain with respect to commerce were of
the most benighted character, and it may be stated as a general
rule that it was only by evasions of law that the trade of New
Orleans was permitted to grow.

In 1779 war was declared by Spain against Great Britain
and New Orleans was thus called upon to assist the American
colonies in their struggle for independence. The youthful and
brilliant Galvez received a commission of governor and inten-
dant, and took the field at once with an army of about fourteen
hundred men, made up of his regular troops, the militia, a
number of Americans of the city who volunteered their
services, and " many of the people of color." ^ By the last of
September he had captured Fort Bute on Manchac, and Baton
Rouge, Fort Panmure at Natchez, and small posts on the
Amite and Thompson's Creek. The campaign seems to have
had a literary as well as a military result. Julien Poydras,
afterwards a member of the Congress of the United States,
celebrated its successes in a small French poem which was
printed at the royal charge. In May, 1781, Galvez captured
Pensacola and the province of West Florida was surrendered
to Spain.

On October 1, 1800, a treaty was concluded between
France and Spain by which the latter promised to restore
the province of Louisiana. France, however, did not receive
formal possession until November 30th, 1803, when, in the
presence of the officers of both nations the Spanish flag was
lowered, the tri-color hoisted and delivery made to France.

» Martin : Vol. 2, p. 48.

167] Municipal History of New Orleans. 13

The French commissioner, Laussat, had come as colonial
prefect, and issued a very rhetorical proclamation congratula-
ting the people upon their return to the bosom of France, and
had received in reply an address from the prominent citizens
declaring that no spectacle could be more affecting than such
return. The joy, however, was of brief duration. The cession
to France had been procured by Napoleon, and he did not
deem it politic to retain such a distant and exposed domain ;
and already in April 1803, Louisiana had been ceded to the
United States. On the 20th of December 1803, Governor
Claiborne took formal posession for the United States, and
"the tri-color made room for the striped banner under repeated
peals of artillery and musketry." ^

In the meantime, however, Laussat had by proclamation
established a municipal government for New Orleans, in place
of the Cabildo.* It was composed of a Mayor, and two
Adjuncts, and ten members of the Council. The names are
familiar in our earlier history. Bor6 was mayor; his asso-
ciates were Destrehan and Sauv6 ; the members were Livaudais,
Cavelier, Viller^, Jones, Fortier, Donaldson, Fauri6, Allard,
Tureaud, and Watkins. Derbigny was secretary and Labatut
treasurer.

III.

As stated by the Supreme Court of Louisiana,' New Orleans,
which had been "a city under the royal governments of
France and Spain was created a municipality under the ephem-
eral dominion of the Consulate." Under the American domi-
nation the new territorial Legislature deemed it proper to
establish its political organization by a charter of the American
type, and this was done in February, 1805. The Court finds
in the decision above referred to, that " the act to incorporate

» Martin: Vol. 2, p. 199.

•Id., p. 197.

'Loimiana Stole Bank m. Orleani Nay. Co., 8rd Annual Bep., 305.

14 Municipal History of New Orleans, [168

the City of New Orleans of the 17th of February of that
year, like all the statutes passed at the commencement of the
American government of Louisiana — to the honor of their
authors be it said — is a model of legislative style and exhibits
its intendment with a clearness and precision which renders it
impossible to be misunderstood. It provides for the civil
government of the city and in general terms confers powers
of administration ; and in the various special delegations of
authority it contains thereby excludes the idea of any other
powers being granted than such as the police and the pres-
ervation of good order of the population require. * * *= It
prescribes the duties of the principal officers and designates
specially the objects for which money may be raised by taxa-
tion, as well as the objects of taxation. The whole tenor of
the act is a delegation of power for purposes of municipal
administration, guarded by limitations, and accompanied by
such checks as experience had shown to be wise, expedient and
even necessary for the interest of those who were to be affected
by it."

The officers under this charter were a Mayor, a Recorder,
a Treasurer, and a number of subordinate officers, and the
Council was composed of fourteen Aldermen. Two from each
of the seven wards into which the city was divided. The
Mayor and Recorder were at first appointed by the Governor
of the territory but the officers were afterward made elective.
The Aldermen were required to be " discreet '^ inhabitants of
and free holders in their respective wards, and were elected in
each ward by voters who, to be qualified, were required to be
free white male inhabitants who should have resided in the
city for at least one year, and should have been for at least
six months free-holders possessing and owning a real estate
worth at least five hundred dollars, or renting a household
tenement of the yearly value of one hundred dollars. By an
amendment of 1812, the Aldermen were required to be "of
good fame and possessed of property in their respective wards,''
and the Mayor, thenceforth to be elected, to have had a resi-

169] Municipal History of New Orleans, 15

dence in the city for the four years preceding his election, and
to possess in his own name for the last year in the city a real
estate of three thousand dollars, agreeably to the tax list. The
voters under this amendment were required to have paid a
State, parish or corporation tax, or to have possessed for six
months a real estate of the value of five hundred dollars con-
formably to the tax list. By an amendment of 1818, the right
to vote for municipal officers was extended to all free white
male citizens of the United States of the age of twenty-one
years who had resided in the city and in the ward for six
months next preceding the election and who had paid a State
tax within the year preceding the election.

By this charter of 1805 all rights and property which had
belonged to the City of New Orleans, or had been held for its
use by the Cabildo under the Spanish government, or by the
municipality after the transfer of the province in the year
1803 to France, or to the municipality at the moment, and
which had not been legally alienated, lost or barred, were
vested in the Mayor, Aldermen and inhabitants.^

In 1836 another charter was imposed by the State Legis-
lature. It was undoubtedly procured as a result of differences
of opinion as to municipal methods between the Creoles of the
old regime and the rapidly increasing American population of
Anglo-Saxon origin. It was a curious experiment in city
affairs. The territory of New Orleans was divided into three
separate municipalities, each having a distinct government
with many independent powers ; yet with a Mayor and Gen-
eral Council with a certain superior authority.^ It was the
idea of local self-government pushed to an extreme. It
existed for sixteen years, and during its existence many
important public ihaprovements were made. At the same
time the system afforded many opportunities for corruption
and extravagance. Large floating debts were contracted and

>Actoofl806, p.64.
'Acts of 1886, p. 28.

16 Municipal History of New Orleans, [170

it appeared to all that some reform must be effected. In
1852, by legislation of that session, the three municipalities,
together with the City of Lafayette, lying next above New
Orleans, were consolidated by a new charter ; and stringent
provisions made for the funding of the debt. An interesting
discussion of this charter, with respect to the bonded debt, is
found in a decision of the Supreme Court of the United
States rendered in 1881.^ By this charter, and its supple-
mental act,^ the legislative power of the new corporation was
vested in two bodies, a Board of Aldermen and a Board of
Assistant Aldermen, and its executive power in a Mayor, four
Recorders, a Treasurer, a Comptroller, a Surveyor, a Street
Commissioner, and such subordinate officers as the Council
might deem necessary. The debt was funded, and in 1855 it
was reported that obligations of $7,700,000 had been reduced
to but little more than $3,000,000.

In 1856 the charter was amended and re-enacted, and
elaborate provisions made in regard to assessment and taxa-
tion, and under this legislation the corporation continued
until the year 1870.

ly.

In the meantime the Civil War came on; and upon the
capture of New Orleans by the forces of the United States, in
May, 1862, the administration of the affairs of the city became
the subject of military action. No change could be made at
the time in existing legislation. A military Mayor was de-
tailed to perform the duties of that office ; and such affairs of
the city as required attention during a complete military
occupation were entrusted to the Finance Committee and the
Committee of Streets and Landings of the Council. As a
matter of course the administration of a large city under such
circumstances and by such means, under military control, gave

* Louisiana vs. Pilsbury, 105 U. S. Eeports, 278.
'Act8ofl852, pp. 42-57.

171] Municipal History of New Orleans. 17

rise to many singular questions. For an investigation of some
of them the reader is referred to the decisions of the Supreme
Court of the United States which are cited in the subjoined
note.*

The discussion, however, of such controversies cannot throw
much light on the problem of municipal government in times
of peace. But it may be suggested that the promptness and
efficiency of military action in matters of police and sanitation
in New Orleans, during the late war, were a valuable object
lesson, and furnish some of those compensations which, Mr.
Emerson declared, always accompany calamity.

The year 1870 witnessed an experiment in municipal govern-
ment in New Orleans which deserves special mention. The
charter enacted in that year by the Legislature,^ adopted what
was generally known as the Administration system. The
limits of the city were considerably enlarged by including what
is now known as the sixth district, and was formerly Jefferson
City, and the government of the municipality thus established
was vested in a Mayor and seven Administrators; namely,
one of Finance, one of Commerce, one of Improvements, one
of Assessments, one of Police, who was ex-officio a member of
the Police Board ; one of Public Accounts, and one of Water-
works and Public Buildings. These officials in the first place
possessed administrative and executive functions corresponding
to their names ; and each of the seven was accordingly at the
head of a bureau or department created for him by the statute
as follows: a Department of Finance, which was the city
treasury; a Department of Commerce which had general
superintendence of all matters relating to markets, railroads,
canals, weights and measures, the fire department and manu-
factories ; a Department of Assessment, with general 8ui)erin-
tendence of all matters of taxation and license ; a Department

' New Orleans w. The Steamship Co., 20 Wallace, 387 ; The Venice, 2
Id., 269; Grapeshot, 9 Id., 129; Mechanics, etc. t». Union Bank, 22 Id., 276.
* Acts of 1870, extra session. No. 7.

2

18 Municipal History of New Orleans, [172

of Improvements charged with the construction, cleansing and
repair of streets, sidewalks, wharves, bridges and drains ; a
Department of Police having charge of public order, houses of
refuge and correction, and the lighting of the city ; a Depart-
ment of Public Accounts which comprised all the duties of
an Auditor and Comptroller; and, finally, a Department of
Water-works and Public Buildings, with supervision of water-
works, school-houses, hospitals and asylums.

But in the second place it was provided that the same Mayor
and Administrators should form the Council and in a collective
capacity should have extensive legislative power for local
purposes. In this capacity it resembles the Spanish Cabildo.
Such a Council possessed naturally many valuable qualities.
Its members were elected on a general ticket and were not
supposed to represent any local clique. In the exercise of their
administrative duties they became familiar with the need of
their respective departments and could advocate, explain or
defend on the floor of the City Legislature what was desired
or had been done in the bureau. A small and compact body,
its meetings were as business-like as those of a bank directory.
Its custom was to assemble in the Mayor^s parlor, generally
on the day before the regular weekly meeting ; and sitting in
committee of the whole, to discuss with any citizens who chose
to attend, such subjects of public interest as might be brought
up. Reporters from the daily press were present, and the
journals of the next morning gave full particulars of the
interchange of ideas. If the subject seemed very important
and difficult, leading citizens were invited by letter or adver-
tisement to attend and give their views. As an example of
thorough discussion it may be mentioned that an ordinance in
relation to sewerage and drainage which was proposed in
1881, was debated for upwards of one year, and a hearing
given to every friend or opponent who desired to express his
views.

No system of government can pretend to be perfect ; and
the charter of 1870 could not satisfy every one. It was

173] Municipal History of New Orleans, 19

claimed that the Council under the charter was too small and
could be too easily controlled in the interests of private or
corporate gain. No preponderant evidence, however, of this
assertion ever appeared. The administrators as a rule, were
citizens prominent either in business or politics, and as such
were far more amenable to public opinion than the ordinary
councilman of the average American city. Their methods
were essentially business-like and their l^islation as a whole
was characterized by public spirit and progress.

It is a matter of regret that the administration system
could not have been continued longer than it was, but after
the adoption of a new State constitution in 1879 a powerful
pressure for a complete change was established by local
politicians. The Legislature accordingly, in June, 1882,
adopted the present charter of New Orleans.* The City of
Carrollton had already, in 1874, been annexed,^ and the limits
of the existing municipality are therefore very extensive.

By this charter the legislative power of the corporation
is vested in one Council composed of thirty membei-s elected
by the qualified voters of their respective districts. They
must be citizens of the State not less than twenty-five years
of age ; must be residents of the districts they represent ; and
must have been residents of the city for five years next pre-
ceding their election.

The executive power is vested in a Mayor, a Treasurer, a
Comptroller, a Commissioner of Public Works, and a Com-
missioner of Police and Public Buildings, who are elected on
a general ticket. These officers must be at least twenty-five
years of age, except the Mayor, who must be at least thirty,
citizens of the State and residents of New Orleans for five
years next preceding their election. The Mayor presides at
the meeting of the Council ; and the other executive officers
of the city mentioned above have a right to seats on the floor

*Actaofl882, No. 20.
«Act8ofl874,No. 71.

20 Municipal History of New Orleans. [174

of the Council during its sessions, witli a right to debate and
discuss all matters having reference to their respective depart-
ments, but without a vot€. This is a valuable provision^
and if executed in good faith cannot but produce a beneficial
effect.

The executive officers above named may be impeached and
removed by the Council for malfeasance or gross neglect of
duty, or disability affecting fitness to hold office. Articles of
impeachment may be preferred by the Committee of Public
Order (who in this case on the trial will be recused), or by
six members of the Council, or by twenty citizens.

Some check on hasty legislation is imposed, firstly, by the
usual veto pow^er in the Mayor, and secondly, by the provision
that '^ no ordinance or resolution shall pass the Council at the
same session at which it is first offered, but any ordinance or
resolution shall at its first offering be read in full and shall
lie over one week before being finally considered by the
Council."

The Fire Department of New Orleans is still of a volunteer
character. It is organized as a charitable association, and
naturally retains many of the sentiments and traditions which
have become obsolete in other American cities, where the paid
system has been introduced as a part of municipal government.
It has an existing contract with the city for the extinguish-
ment of fires which has yet some two years to run. It is
not likely that this contract will be renewed. The city has
become so large that while the Firemen's Charitable Associa-
tion is theoretically composed of volunteers, it is obliged to
pay a large number of regular employes in the care of the
engine houses and horses, and the use of the steam engines and
other apparatus which have superseded the simple appliances
of earlier years. The press is agitating for a paid, govern-
mental system. It is alleged that the voluntary system has
been used as a political machine in local and even in State
politics, that it is cumbrous and costly, and that the time for
its usefulness has past. The paid members of the association

175] Municipal History of New Orleans. 21

will make no objection to being transferred to municipal con-
trol, and such transfer will probably be made as soon as it
can be done without impairing contract rights.

The topography of New Orleans gives constant and pressing
importance to questions of levees, drainage and paving. Large
expenditures have been made in this direction during the last
half century. The trouble in these matters, as in most of our
American cities, has been to secure some system that should
be continuous, consistent, and rightly administered. The soil
of the entire city is alluvial, and the fall, such as it is, is from
the Mississippi towards Lakes Ponchartrain and Borgne. To
pave such a soil in such a way as to form a surface that will
sustain heavy traffic, during winter rains, is a problem of
difficulty. For business streets, square blocks of granite are
found to last longer than any other material. Some of the
principal avenues have been asphalted on a foundation of con-
crete. Others have been laid with from nine to twelve inches
of gravel which is claimed to possess concreting qualities, and
is in some instances laid on a foundation of cypress planks
which are expected to resist decay until the needful arch is
formed above them.

What is specially needed now is a system by which the
work on the levees, the drainage and the paving of the city
shall be harmonized, and continued without interruption until
it shall be completed in a manner worthy of the place. The
legislative committee of the Council has within the last week*
prepared an act on this subject which the Council has ap-
proved and requested the State Legislature to adopt. It
establishes a Commission of Public Works in the City of
New Orleans, composed of the Mayor and Commissioner of
Public Works, of the chairmen of five standing committees
of the Council on such subjects, and of six citizens to be
selected from different districts of the city. The matter of
levees, paving and drainage is to be entrusted to this Commis-

> Jane, 1888.

22 Municipal History of New Orleans, [176

sion, certain funds of the city are to be turned over to it, and
it is empowered to submit to a vote of property taxpayers the
question of a special tax for its further revenue under a con-
stitutional provision which will be presently referred to. If
this let^islation be adopted it may lay a foundation of perma-
nent and consistent improvements.

The water supply of New Orleans is drawn from the Mis-
sissippi River and is in the hands of a Company, in which^
however, the city has some stock and a representation on the
board of direction. The first company was incorporated in
1833, as the Commercial Bank, at a time when it was the
fashion to charter banks with a power to do something quite
irrelevant to the operations of finance. By a provision of the
charter the city had the right to purchase the works at any
time after the lapse of thirty-five years. This right was
exercised in 1869, and bonds issued for the amount of the
appraisement. The city operated the system until 1 877, when,
being in default in the interest on the bonds as well as on the
rest of her funded debt, it was deemed wise to put the concern
in the hands of a business corporation. This change was
effected under the Act of March 31, 1877, the bonds given in
1869 being mostly exchanged for stock in the new company.
Under this Act, as interpreted by the Courts, the Water-works
Company has a monopoly of the supply of water for sale,
which is to last for fifty years from the date of the act of
1877.^ Some improvements have been made of late in the
service by the introduction of a stand-pipe, with a head of
sixty feet, and by some extension of the mains. The problem
of filtering the water, however, remains unsolved. It is, as a
rule, very muddy and unattractive for any purpose. The use
of cistern water, stored in cypress tanks, above ground, is
almost universal in New Orleans. Such water, exposed to
light and air and renewed by frequent showers, is clear and
white, makes a charming bath and when filtered through

» 116 U. S., 674; 120 Id., 64; 125 Id., 18.

177] Municipal History of New Orleans, 23

porous stone as it may easily be, is agreeable and wholesome
for drinking.

The gas supply of the city on the left bank, except in the
Sixth and Seventh Districts, is furnished by a business corpora-
tion, which, after a considerable amount of contest in the
Courts has by consolidation acquired an exclusive right for
fifty years from 1875. The details of the legislation and of
the discussions in regard to it will be found, like many other
fects of the history of New Orleans, in the decisions of the
Supreme Court of the United States.^ The contest, however,
with the new methods of electrical lighting has taken the
place of litigation in the Courts. Already the arc light has
driven gas entirely from the streets, and the incandescent
lights are beginning to be numerous in shops and even in
dwellings. One of the newest and largest churches is thus
illuminated. With wire doors and windows, electric lights
and electric fans, a library in New Orleans may be made as
comfortable in August as in January. What may be the out-
come of the struggle between cheap water-gas and electricity,
it is not the province of this paper to predict. At the moment,
electricity dominates in public places, and a system of iron
towers for carrying the wires has already been begun.

V.

The City of New Orleans has been at different times the
recipient of donations for charitable purposes, which may be
briefly referred to as part of her municipal history, and as
throwing perhaps some light upon the question whether such
gifts should be made to municipal corporations or placed in
the hands of private trustees.

In 1838 by the will of Alexander Milne, a native of Soot-
land, property of apparently large value was left to four

> N. O. Oas Co. M. Lft. Light Co., 116 U. S., 650 and cases there cited.

24 Municipal History of New Orleans, [178

asylums. The trust, so far as the Asylum for Destitute Boys
is concerned, is now managed by the Mayor and the assets
comprise a large amount of real estate of little present value,
and some city bonds worth about $3,000.

The will of Joseph Claude Mary, in 1840, left $5,000 to
the orphans of the First Municipality of New Orleans. After
some litigation this bequest was declared by the Court ^ to
vest in the Municipality, and should therefore be administered
by the present City. At last accounts it had been turned over
to a Boys' Asylum which is a private corporation. The reasons
for this diversion of funds are not apparent, and, until some
excuse be forthcoming, may be treated as inexcusable.

About the same time Stephen Henderson, a native of Scot-
land, bequeathed the sum of $2,000 per annum for the poor of
the Parish of Orleans, a territory now co-terminus with and
controlled by the City of New Orleans. By an act of com-
promise with the heirs, the parish then, and the city now, has
acquired sundry cotton-press lots, the rents of which are dis-
pensed in small sums in charity to the poor. The bequest in
this form can hardly be considered of much practical value.
At least, from the hard-hearted view of modern political
economy, such gratuities can produce little eifect except to
destroy the self-respect and will-power of the recipients.

The Girod Fund was left by the will of Nicholas Girod,
who died in 1840. Its administration has not been felicitous.
The principal, which in 1866, had reached a sum of about
$80,000, was expended in the erection of an asylum for the
charitable purposes contemplated by the will. The building
for some reason, never made public, was erected on the margin
of a swamp in the rear of the city, in the most unwhole-
some locality that could have been selected, and is entirely
useless.

The Touro Alms House bequest was made by the will of
Judah Touro, a well known philanthropist, who died in 1854.

* 2 Robinson, 438.

179] Municipal History of New Orleans. 25

The sum of §80,000 was left " to prevent mendicity in New
Orleans." The trust was administered by the city. The Alms
House was completed in 1860 at great expense on a site donated
by Mr. R. D. Shepherd. In 1864 while occupied by United
States troops it was destroyed by fire, and nothing tangible
now remains of the charity except the land and a fund of
about §5,000. It is believed thai the United States ought in
equity to restore the value of the building.

The Fink Asylum Fund results from dispositions in the
will of John B. Fink, of November, 1855, and has assets
reported at about $290,000. The bequest was for an asylum
" for Protestant Widows and Orphans '' ; and the Court after
some litigation decided ^ that it should be administered by the
city. The income is used for the support of an asylum for the
object named.

The Sickles Legacy was left, in 1864, by S. V. Sickles, an
apothecary, for the purpose of establishing a ** dispensary for
indigent sick persons." It is administered by the Mayor and
the financial oflScers of the city, by arrangement with drug-
gists, who agree to dispense medicines to the poor at certain
localities. Its fund now amounts to about S 36,000.

The McDonogh donation was the most important of those
under consideration ; was the one most peculiar in its char-
acter; and was a matter which concerned also the City of
Baltimore. John McDonogh, a native of Baltimore, came to
the City of New Orleans about the year 1800, lived the life
of a somewhat eccentric bachelor, and died in 1850. The
principal feature of his will was an attempt to establish an
estate which was to be perpetual in its existence and was to
grow into something prodigious in its proportions. As stated
by the learned Mr. Hennen, in his summary of the litigation
in the Supreme Court of Louisiana,* the decision in which was
concurred in, substantially, by the Supreme Court of the

* 12 Annual Rep., 301.

*Hennen'8 Dig., p. 443; 8 Annual Rep., p. 171.

26 Municipal Histm^y of New Orleans. [180

United States/ McDonogh, after certain special legacies in apt
terms, bequciithed all the rest of his estate to the cities of
Baltimore and New Orleans, for certain purposes afterward
mentioned, and especially the establishment and support of
free schools for the poor only, of all colors in both cities. He
directed his executors to invest his personal property in real
estate to constitute a fund, never to be alienated, but to exist
for all time, a perpetual entity, christened "My General
Estate." Commissioners annually appointed by the cities,
and subject to their visitation, were to have forever the seizin
and exclusive management of this estate, the annual revenues
of which were to be applied as follows : one-fourth to two
designated institutions of pious character, to the former for a
certain number of years, to the latter until a certain sum had
been received, when both annuities were to cease; another
fourth to the cities, to be handed over to their appointed
directors to found certain charities, and when each city had
received a certain sum these annuities in like manner were to
cease; while the remaining two-fourths were to be divided
between commissioners appointed by the cities, to whom, on
termination of the other annuities, the whole revenues were to
be paid to support the free schools in both cities.

No part of the estate or its revenues was ever to go into the
hands of the corporate authorities, the testator declaring his
great object to be "the gradual augmentation of the real
estate to belong to and be owned by the General Estate for
centuries to come." And this estate, and the several funds
and institutions created, he recommended, should be incorpo-
rated. No partition was ever to be made by the cities, nor
any change by agreement or compromise in their relations to
each other or the estate ; and if they violated any of the con-
ditions, their rights were to be forfeited, and the estate, still
inalienable, was limited over equally to the States of Louisiana
and Maryland, to educate their poor as they might direct. If

* 15 Howard, p. 367.

181] Municipal History of New Orleans, 27

the legacies lapsed from any cause whatever, they were to
enure to the States, to carry out the testator's intentions as far
as they thought proper. The ultimate design was to educate
the poor of the two cities, and disinherit the legal heirs. It
was held by the Court, after great discussion, that the cities
iiad the capacity to take the legacies, which were not void for
uncertainty in the recipients of the charities; that there were
no prohibit^ substitutions or Jidei commissa in the bequests, of
the conditions of which, so far as impossible or against public
policy, the will was to be eviscerated ; that the States could
not take instead of the cities, which, as residuary legatees
under a universal title, were entitled to the legacies ; and that
in any contingency the heirs at law could claim nothing.

The net result of the McDonogh will cases was to give the
property to Baltimore and New Orleans, subject to sundry
legacies and charges which were paid or compromised. The
extraordinary plan which the imagination of the testator had
formed in his lonely hours of celibacy was never realized; but
the object was to some practical extent attained. The net
proceeds of the estate were divided between the cities, to be
applied to educational purposes. The popular belief has been
that the trust has not been well administered by New Orleans.
This belief, however, is not well founded. The amount of
the estate was much exaggerated ; portions of it were depre-
ciated in the lapse of time, and the expenses of defending it
were heavy. The city received in round numbers about
$750,000. With the proceeds she has erected and furnished
eighteen school houses. At an early period of the late war
some of the assets were diverted for the purpose of fortifying
the city, but were afterwards restored. The present value of
the property, including the school houses, is estimated at about
$800,000.

These various trust funds have gone through so many perils,
and especially in times of civil war, that it is not believed such
bequests will ever be again made in the future as in the past.
From one point of view the city, by the contiimity of its life

28 Municipal History of New Orleans. [182

and the publicity of its methods, offers assurances of safety and
care. The general verdict, however, would be that it is better
for a testator to vest his benefactions in a private corporation,
or, better yet, if possible, to establish them in full operation
before his death.

VI.

It may be proper to refer to the history of the elective
franchise under the successive constitutions of Louisiana, in
connection with the history of the city government of New
Orleans. By the Constitution of 1812, the qualified elector
is declared to be the " free white male citizen of the United
States who at the time being hath attained the age of twenty-
one years, and resided in the country in which he offers to
vote one year next preceding the election, and who in the last
six months prior to said election shall have paid a state tax ;
provided, that every free white male citizen of the United
States who shall have purchased land from the United States
shall have the right of voting whenever he shall have the
other qualifications of age and residence above described."

By the Constitution of 1845 it was provided that "in all
elections by the people every free white male, who has been
two years a citizen of the United States, who had attained the
age of twenty-one years, and resided in the State two consecu-
tive years next preceding the election, and the last year thereof
in the parish in which he offers to vote, shall have the right
to vote."

By the Constitution of 1852 the qualified elector is declared
to be the " free white male who has attained the age of twenty-
one years and who has been a resident of the State twelve
months next preceding the election, and the last six months
thereof in the parish in which he offers to vote, and who shall
be a citizen of the United States."

The Constitution of 1864 declared that every white male
who had attained the age of twenty-one years, and who had

183] Municipal History of New Orleans, 29

been a resident of the State twelve months next preceding the
election and the last three months thereof in the parish in
which he offers to vote, and who was a citizen of the United
States should have the right of voting.

By the Constitution of 1868 the right of suffrage, except in
certain cases of disfranchisement, was further extended to
include every male person of the age of twenty-one years or
upwards, born or naturalized in the United States, and subject
to the jurisdiction thereof, and a resident of the State one year
next preceding an election and the last ten days within the
parish in which he should offer to vote.

Finally, by the Constitution of 1879, a further step was
taken, and the right of suffrage, whether in State or municipal
elections, now belongs to every male citizen of the United
States, and every male person of foreign birth who has been
naturalized or who may have legally declared his intention to
become a citizen of the United States before he offers to vote,
who is twenty-one years of age, and who has resided in the
State one year, in the parish six months and in the ward or
precinct thirty days, next preceding the election.

It will thus appear that the personal right of suffrage in
New Orleans has been gradually extended until its latitude is
extreme. Another provision, however, of the present Consti-
tution alluded to above, establishes a safe-guard against the
extravagance which might result from a misuse of the elective
franchise as it affects the use of the taxing power. The City
Council is prohibited from levying an annual ad valorem tax
for general purposes exceeding one per centum on the assessed
value of pro|>erty, real and personal. Of course there are
other taxes for the interest on city bonds, which must continue
until the bonds are paid, but the tax for general purposes, or
alimony of the city, is limited to the ten mills. At the same
time, for the purpose of constructing " works of public improve-
ment," the rate of taxation " may be increased when the rate
of such increase and the purpose for which it is intended shall
have been submitted to a vote of the property tax-payers'* of

30 Municipal History of New Orleans. [184

the " Municipality entitled to vote under the election laws of
the State and a majority of same voting at such election shall
have voted therefor." ^ By this plan a certain control is vested
in the property tax-payers, in a manner which promises to be
beneficial.

Referring again to the successive constitutions of the State,
attention may be directed to the protection they have sought
to afford to the right of the citizens of New Orleans to deal
directly as voters with the question of its police. The pro-
vision in the fundamental law of 1812 was as follows :

" The citizens of the town of New Orleans shall have the
right of appointing the several public officers necessary for the
administration and the police of said city, pursuant to the
mode of election which shall be prescribed by the legislature;
provided that the Mayor and Recorder be ineligible to a seat
in the general assembly."

By the constitutions of 1845 and 1852 the right was limited
to the appointment, by the same methods, of the "officers
necessary for the administration of the police of the city," and
it was held by the Supreme Court that these provisions,
whether in 1812, 1845, or 1852, did not impair the power of
the legislature to deal with the drainage of the city, either
directly or through the agency of a company.^

In the constitution of 1864 the provision was repeated as
to the administration of the police, while the Governor, how-
ever, was empowered to appoint five commissioners, who, with
the Mayor, should constitute a board to try and remove delin-
quent policemen.

The entire provision was omitted from the constitution of
1868, and under this the legislature introduced a metropolitan
police system, imitated from that then existing in New York,
and including a considerable territory outside the city limits ;
and it was held to be lawful because the provision in question

1 Constitution of 1879, art. 209.

^In re Draining Co., 11 La., Art. 338.

185] Municipal History of New Orleans, 31

had been so omitted.^ The commissioners were appointed by
the Governor.

In the constitution of 1879 the right was restored by the
following language :

" The citizens of the City of New Orleans, or of any politi-
cal corporation which may be created within its limits, shall
have the right of appointing the several public officers neces-
sary for the administration of the police of said city, pursuant
to the mode of election which shall be provided by the general
assembly." ^

Under the present charter of the city — of 1882 — the Mayor
appoints police officers, policemen, and watchmen, by and with
the consent of a majority of the Council, under the ordinances
of the Council organizing the force, and may suspend such
officers, reporting the fact and the cause to the Council for its
action. He is empowered to control and make regulations for
the force, the Council, however, having the right by a two-
thirds vote to repeal such regulations.*

VII.

The full history of a city government is not to be found in
the statute books or the ordinances of its Common Council ;
and this sketch would be incomplete without some notice of
those voluntary associations on the part of citizens of New
Orleans which during the last decade have attempted to assist
or influence the city government in corporate matters.

The Auxiliary Sanitary Association was organized after the
epidemic of 1878 for the purpose of promoting public health.
It was felt that, in the condition of the finances of the City, it
was necessary to invoke private subscription. The appeals of
the Association met with a liberal response ; and the Associa-
tion has continued to carry on its work, not only by a constant

. . 309.
"Art. 253.
* Acts of 1882, p. 23.

32 Municipal History of New Orleans. [186

criticism of imperfect methods, but by some positive works of
public improvement. The most important of these is the
system of appliances for flushing the gutters during the summer
months with water from the Mississippi River. New Orleans
is so situated that it is considered impracticable to construct
the large subterranean sewers which are necessary to carry
off storm waters. Such storm waters are therefore conveyed
by gutters and draining canals to low points in the rear of the
city and thence lifted by draining wheels into the lake. To
flush these gutters and canals in hot weather, the Association
has erected on the levee two steam pumps with a daily capacity
of about 8,000,000 gallons each, and arranged a system of
pipes by which the principal streets at right angles to the
river are supplied with flushing water. It is said that such
appliances if constructed by the city would have cost $200,000.
The Association, by its closer and more skilful business
methods procured them for about $75,000.

Without assuming any partisan attitude, mention may be
made in this connection of two other associated efforts which
have recently exercised much influence in the municipal history
of New Orleans. One is called the Committee of One Hun-
dred, the other the Young Men's Democratic Association.

The Committee of One Hundred was organized in the spring
of 1885. It has taken no part in partisan politics, and none
of its members can be a candidate for office. Its chief object
is municipal reform. Its labors during its first year were
chiefly performed in a scrutiny of official malfeasance or neg-
lect, and in appeal to the Courts to enjoin and annul such acts
of the Council as were considered illegal and injurious. Its
first success in this direction was an injunction of an appro-
priation of $5,000 for a purpose decided to be beyond the
power of the Council to make. The amount was not great,
but the example was impressive.^ In the latter part of 1887
and the early days of 1888 its most important work has been
in purifying the registration of voters. This registration,

1 The Liberty Bell, 23 Federal Keporter, 843.

187] Municipal History of New Orlearis, 33

intended to be a protection against illegal voting, was being
used, as such devices often are, to facilitate fraud. The com-
mittee availed itself of serious disputes between the local polit-
ical factions to intervene between them in this matter, and
succeeded in making an examination of the books and a quite
thorough house-to-house canvass of the city. The result was
that not less than twelve thousand names were erased from the
registration and the poll books. Many of these were fraudu-
lent ; many, however, were names of persons who were dead,
or who had lefl the city, or moved their residences. In any
event, such lists and papers might be used for purposes of
fraud, and it was felt that this feat alone justified the existence
of the committee.

The Young Men's Democratic Association was organized in
October, 1887. It was said that the Holy Roman Empire
was so called because it was neither Holy, nor Roman, nor an
Empire. The association in question is not composed entirely
of young men, nor of members of what is called the Demo-
cratic party. It takes no part in State politics. It has
declined to participate in the primaries. Its object is declared
to be " to promote the election of men of integrity and ability,
irrespective of creed or calling, to fill the municipal offices of
the City of New Orleans." It is provided by its constitution
that "no member of this organization shall hold or be a can-
didate for any office, nor shall the organization enter into any
combination or trade with any political faction." It freely
assisted the Committee of One Hundred in the tedious work
of purging the registration, and then waited to see what nomi-
nations would be made by the regular party organizations for
the election of April 17, 1888. Dissatisfied with such nom-
inations as were made, it put forth a ticket of its own, and
then stood guard at the polls for nearly four days while the
vote was being cast and counted. The unexj>ected happened,
and the Young Men's ticket was elected amid much enthu-
siasm ; and the hope is now freely indulged that the present
executive officers and Council of the city will introduce many
important reforms.

V-VI

English Culture in Virginia

" Alaa ! how little from the grave we claim !
Thou but preservest a face, aud I a name."

— ^POPE, BpisUe to Jervas.

JOHNS HOPKINS UNIVERSITY STUDIES

IN

Historical and Political Science

HERBERT B. ADAMS, Editor

History is past Politics and Politicii present History— firemaH

SEVENTH SERIES
V-VI

English Culture in Virginia

A Study of the Gii.mek J.kitkrs and an Account of the

English Professors obtained by Jefferson

FOR THE University of Virginia

By WILLIAM P. TRENT, M. A.

PrqfwoT q/" Bittory in the Univcr$iti/ of the SoiUh

BALTIMORE

W. MuBRAT, PusLiCATioK AoKirr, JoBKi HoncTin UKITKMmr

Mmj mad Jane, 1889

COPYKIGHT, 1889, BY N. MUHRAT.

JOHN MUBPHY A 00., PBINTBBS.
BALTIMORE.

TABLE OF CONTENTS.

Page.

Introduction 7

Chapter I. The Development op the University Idea 9

II. Francis Walker Gilmer 27

III. The Law Professorship 48

IV. The Mission 56

V. Conclusion 115

INTRODUCTION.

About a year ago the Editor of these Studies honored me by
desiriug my cooperation in the work he had undertaken with
regard to the history of education in Virginia. I accordingly
furnished two chapters for his monograph on " Thomas Jefferson
and the University of Virginia," published by the United States
Bureau of Education, Circular of Information, No. 1, 1888. But
one seldom begins a line of investigation without being led to
deeper research than he had at first intended ; and so it was in
the present case.

This new and independent study has been mainly developed
from the correspondence of Francis Walker Gilmer. Who Mr.
Gilmer was and what he did — things worth knowing but known
to very few — will appear fully hereafter, for even the author of a
" study " may occasionally borrow a device from the novelist and
keep his readers in suspense ; but it will be necessary to explain
at the outset how the aforesaid correspondence came into my
hands. The facts of the case are briefly these. Dr. Adams was
informed by a gentlemen whom he had consulted about the work
previously mentioned, that a vplume of letters relating to the
early history of the University of Virginia was in the hands of
John Gilmer, Esquire, of Chatham, Virginia. A letter to that
gentleman brought a courteous reply and the desired volume.
Being much pressed by his professional and other duties, Dr.
Adams handed me this voluminous correspondence with the re-
quest that I would examine it and express an opinion as to its
value with regard to that period of the University's history on
which he was specially engaged. I did examine it with great
care, and found that, although it did not bear directly on the
field of investigation Dr. Adams had chosen, it nevertheless

7

8 Introdicdion. [196

opened up a new field of hardly inferior interest. Upon this
report Dr. Adams and Mr. Gilmer were kind enough to intrust
the letters to me that I might complete a study, the outlines of
which were already developing themselves in my own mind. In
a letter to my mother I alluded to the fact that this task had
been confided to me. She at once wrote me that she was certain
another volume of a similar character was in existence, and that
she would endeavor to obtain it for me.

Her statement proved true and the companion volume is now
in my hands through the kindness of Mrs. Emma Breckinridge,
of " Grove Hill," Botetourt County, Virginia. Mrs. Breckin-
ridge is a sister of Mr. John Gilmer and a daughter of Peachy
Gilmer, the eldest brother of the subject of this sketch. This
second volume is even more invaluable than the first as it con-
tains all of Gilmer's own letters to Mr. Jefferson, &c., and also
throws many valuable side lights upon the internal history of
Virginia for the period from 1815 to 1825. How and why these
letters, nearly 700 in number, were bound and preserved will
appear in the sequel. It will be suflficient here to ask indulgence
for the mistakes which have doubtless crept into my work, and
to return my hearty thanks to the friends who have assisted me
in an investigation not wanting in complexity and minute details.

William P. Trent.

The University of the South,
December 1, 1888.

ENGLISH CULTURE IN VIRGINIA.

CHAPTER I.

THE DEVELOPMENT OF THE UNIVERSITY

IDEA.

At the beginning of this century what culture Virginia had
was not Virginian. This is not a Virginia bull, but a deplor-
able fact. There was no lack of great men or of highly culti-
vated men. A Virginian occupied the Presidential chair, and
three others had it in reversion. Patrick Henry was dead,
but John Randolph, by his eloquence and wit and sarcasm,
was making Congress doubt whether it loved him or hated
him. At the Richmond bar were Marshall and Wickham
and Wirt, while at Norfolk men were beginning to prophesy
great things of an eloquent young lawyer, — Littleton Waller
Tazewell. There were hundreds of well educated men riding
over their plantations or congregating on court day either to
hear or to make speeches — and even the bar of as small a place
as Winchester could boast of speakers whom these educated
men would willingly hear. Although there was a servile,
ignorant mass beneath them, this could not then be helped,
nor had the habits of inaction, thereby necessarily engendered,
extended as fully as they afterwards did, to the affairs of mind.
Travel was not uncommon. One old gentleman was " gigo-
maniac'' enough to drive to Boston in his gig every other
summer, the return visit of his New England friends being
2 9

10 English Culture in Virginia. [198

made, it is supposed, during the summers his gig was mend-
ing. Although Mr. Jefferson and his colleagues had swept
away every vestige they could of the feudal system, primo-
geniture in education was an every day fact — unjust as primo-
geniture generally is, but still a bright spot in the history of
education in Virginia. Not a few families managed to send
one representative at least to Europe for study and travel, and
that representative was usually the eldest son. If England
seemed too far, one or more of the sons went to Princeton or
to William and Mary — many shutting their eyes to the fact
that the latter historic place was even then slowly dying.
Edinburgh, of course, was the goal of a young medical stu-
dent's desires; but if he could not "compass this golden
hope," Philadelphia was willing to receive him hospitably
and to give him the benefit of her lectures and museums for a
good round price. Books and libraries were not abundant ;
but the books were at least good, however exorbitant their
cost — a serious item in the culture of a state fast ruining itself
financially by an extravagant hospitality.

In some families it had been a custom to direct the factor
in London to send back with the proceeds of the tobacco, a
pipe of Madeira and a fixed amount of current literature —
and hence it is that one occasionally comes across a rare first
edition when rummaging the library of an old country house.
Now if a boy had a taste for reading, he needed not to grow
up an ignoramus even if he were not sent to college ; but if
he preferred his gun and horse, there were few to thwart him,
his father having to look after the estate, tutors and school-
masters being rarae aves, and the mother having enough on
her hands in the housekeeping and the bringing up of her
daughters, who, though they knew nothing of moral philos-
sophy and aesthetics, had, nevertheless read Pope and the
Spectator, and kept in their memories household receipts of
considerable claim to genealogical pride.

But I said that the culture in Virginia was not Virginian,
and I have not sufficiently explained my meaning. I do not

199] English Culture in Virginia. 11

mean to imply the same reproach as is implied in the hack-
neyed invocation for " the great American novel." The cul-
ture in Virginia was naturally English modified by circum-
stances peculiar to a slaveholding, sparsely settled society. It
was modified, too, by the birth of the feeling of independence
and by the desire to try wings not fully fledged. All this
was natural and is certainly not reprehensible. But there is
another sense in which culture in Virginia was not Virginian,
which if it does not imply reproach, must certainly cause a
feeling of regret even to us of this late day. I refer to the
almost universal lack of any primary and secondary instruc-
tion worthy of the name, and to the comparative lack of
university instruction. William and Mary College had for
many years done a great work in Virginia, but though buoyed
up for a time by the wisdom of Mr. Jefferson as a visitor, and
of Bishop Madison as president, its influence was fast waning
and, before the first quarter of the century had gone by, was
practically null. Hampden Sidney seems to have been little
more than a high-school, and it has at all times been sectarian.
Washington College (since Washington and Lee University)
did not exert a large influence,* and hence it was that Princeton
drew away sons from nearly every Virginia family of import-
ance. When the foundation of a state university was being
urged upon the legislature, a prominent Presbyterian clergy-
man of Richmond, Dr. Rice, made a calculation and found
that over $250,000 were annually sent out of Virginia to sup-
port youths at the various foreign schools and colleges. This
does not look as if many Virginians patronized the three insti-
tutions above mentioned ; but at any rate, it shows that a
university of high grade was one of the needs of the people.'

Un one of the early volumes of Dr. Rice's "Virginia Evangelical and
Literary Magazine" (I think the sixth) a short account of the studies pur-
sued at this college and a list of the instructors will be found. From this
the truth of the above statement will be apparent.

* See Dr. Adams' "Jefferson and the Univ. of Va./' p. 98.

12 English Culture in Virginia, [200

With r^ard to secondary and primary instruction the out-
look was decidedly worse. Towns like Richmond had, of
course, fair schools; but the country districts were almost
entirely unprovided with even the rudest village schools.
From a letter of John Taylor of Caroline, found among the
Gilmer papers, I learned that there was a fairly prosperous
boarding school in that county in 1817 — but this was the
exception, not the rule. It is true that just before the begin-
ning of the century the legislature had passed a law with
•regard to the establishment of primary schools; but this law
had been a dead letter because it was left to the county judges
to decide whether such schools were necessary or not, and
because the judges were, as might have been expected, either
too conservative or too lazy to attend to such an innovation
or such a small matter as a primary school. Education in
Virginia, then, may be said to have been at a stand still, or
rather on the decline, when Mr. Jefferson gave up his federal
honors and betook himself to Monticello.^

The short annals of our country, however little they are
attended to, are even in times of peace by no means destitute
of " moving incidents ; '' and, though for the reader's sake
I forbear the usual quotation from Milton, I cannot refrain
from dwelling upon one of them. Although one may doubt
whether Jefferson's mind was of the highest order, it can
hardly be denied that he has impressed his personality and
his doctrines more strongly upon posterity than has any
other American. Although his brilliant rival's influence is
still to be felt in our federal finances, and although Andrew
Jackson is the representative of many distinctively American
political ideas, it would still seem that a larger number of
our countrymen look to Jefferson as the leader of their Nov-
ember choral song than to any other of our statesmen, living

*The laudable efforts of the Scotch Irish settlers to provide education for
their families ought not to be overlooked ; but these men were poor and
unable to accomplish great things.

201] English Culture in Virginia. 13

or dead — and I know not of a better test of creative genius
in politics. It was this man who left the sphere of national
affairs to impress himself upon Virginia education ; and I
cannot but contradict myself and say that his victory should
be " no less renowned."

It is a glorious picture — to see a man who has tasted
the sweetness of power, a man who could reasonably look
forward to the ease and comfort of a dignified retirement, a
man who, if he must work, might at least turn his talents
to account in building up a fortune already shattered by an
extravagant generosity, becoming the foremost in a move-
ment, properly devolving on younger men, an arduous task
well nigh impossible of success — the task of raising Virginia
from the slough of ignorance and inaction. This he accom-
plished, and although it seems necessary for the authorities of
the University of Virginia to state in their annual announce-
ments that their institution was founded by Thomas Jef-
ferson, there are a few men living who know the last work
of the old patriot was as great and glorious as any of the
successes of his vigorous manhood.^ A short sketch of this
work seems necessary as an introduction to the task I have
undertaken of giving to the world some account of the labors

' This cannot be said of his latest biographer, Mr. John T. Morse, Jr., who
devotes only thirteen very general lines to what Mr. Jefferson deemed worthy
to form one of the three services to his country for which posterity were
to thank him when looking upon his tomb. Even a professedly poli-
tical biography should have said more than this, for assuredly a statesman's
attitude toward popular education must count for much when we come
to estimate his statesmanship. Mr. James Parton devoted over eight
pages to the subject and was thoughtful and painstaking enough to write
to the chairman of the faculty (Col. C. S. Venable) for information about
the University. In this connection it may not be amiss to quote Mr.
Madison. "The University of Virginia, as a temple dedicated to science
and liberty, was, after his retirement from the political sphere, the object
nearest his heart and so continued to the close of his life. His devotion
to it was intease and his exertions untiring. It bean the stamp of his
genius and will be a noble monument of his fame." Madison's Writings,
Cong. £d. 1865, III, 533.

14 English OuMure in Virginia. [202

of one who was not the least of Mr. Jefferson's coadjutors in
this work of Virginia's redemption.

About the year 1814 certain monies found themselves in
the hands of the trustees of an institution still in embryo —
the Albemarle Academy. These trustees were the leading
men of the county and among them Mr. Jefferson towered —
physically as well as intellectually. How to spend the money
most profitably was, of course, the paramount question. In
a letter to his nephew, Peter Carr, one of the trustees, Jeffer-
son sketched a plan of what Virginia education ought to be —
a plan legitimately evolved from his bill of 1779 for the
more general diffusion of knowledge. This letter was pub-
lished in the Richmond Enquirer of September 7, 1814,
and of course attracted great attention not only on account
of the fame of its writer, but also on account of the wisdom
and boldness of the scheme which it proposed. So compre-
hensive was this scheme that many a conservative head was
shaken, some going so far as to say that the old philosopher
was in his dotage. But no chemist has ever been more
familiar with the properties of common substances, than was
Mr. Jefferson with the characteristics of his fellow citizens.
He knew the pulse of Virginia public opinion to a beat, and
he felt that he would succeed through the very boldness of
his plans. It was easy enough to persuade the trustees of
Albemarle Academy to petition the legislature that a col-
lege might be substituted for a school — Central College also
destined to remain in the embryo state. It was not difficult
to obtain the consent of the legislature that Albermarle
Academy should cease to be and Central College begin to
be — for as yet that very sensitive nerve of the body politic,
the financial nerve, had not been bunglingly touched. And
so during the session of 1815-16 Central College in the
County of Albermarle was duly established and given a
board of trustees. Three members of this board have some
claim to remembrance on the part of posterity — they were
Thomas Jefferson, James Madison, and James Monroe. There

203] English Culture in Virginia, 15

were others, too, who shall not go unnoticed. Possibly many
thought that the establishment of this new college near his
favorite town of Charlottesville, which he would fain have
had the capital of the state, would satisfy Mr. Jefferson and
enable him to die in peace. But the shrewd old gentleman
was by no means satisfied ; he bided his time, however, for
now he saw light ahead, having a fellow workman whom his
heart loved.

If Mr. Jefferson was the father of the University of Vir-
ginia Joseph Carrington Cabell certainly took infinite pains
in teaching the child to walk. Born in 1778 of a distin-
guished and patriotic father, Colonel Nicholas Cabell, he was
now (1817) in the prime of manhood. After graduating at
William and Mary he had gone to Europe for his health,
and, having recruite^l that, had studied in more than one
of the leading universities. While in Switzerland, he had
visited and conversed with Pestalozzi, and thus began that
subtle connection of the University of Virginia with great
men, which I hope to bring out strongly in the following
pages. Meeting with President Jefferson on his return to
this country, he began an intimacy which only ceased twenty
years afterward at the death of the venerable statesman — an
intimacy by which Mr. Jefferson was finally enabled to see
his glorious idea realized in very fact.

Declining all offers of diplomatic position under the gen-
eral government, Mr. Cabell plunged into the politics of his
state, actuated by the idea so prevalent at the time that more
distinction awaited the statesman in this circumscribed sphere
than could possibly be obtained in the larger one of federal
affairs. He was now an influential member of the state senate
when Mr. Jefferson enlisted his aid in behalf of his pet
schemes. That aid was willingly and efficiently vouchsafed,
and has been commemorated by the publication of the Jef-
ferson-Cabell Correspondence, a work containing valuable
information but not so sided and arranged as to be of much

16 English OaUure in Virginia, [204

use to the general reader.^ The rest of this chapter will,
however, be mainly derived from it.

On July 28, 1817, a called meeting of the trustees of the
Central College was held at Mr. Madison's seat, Montpelier,
in Orange County. There were present Thomas Jefferson,
James Madison, Joseph C. Cabell, and John H. Cocke. The
latter gentleman (1780-1866) was, from the beginning, a great
friend to the university. He had attained some distinction in
the war of 1812 as an efficient general,. though inclining to the
martinet. He was also known far and wide for his temper-
ance proclivities. But we have more especially to notice the
first steps taken toward importing culture into Virginia in the
shape of efficient teachers. We find the following record spread
upon the minutes of this meeting :

"It is agreed that application be made to Dr. Knox, of
Baltimore, to accept the Professorship of Languages, Belles-
Lettres, Rhetoric, History and Geography ; and that an inde-
pendent salary of five hundred dollars, with a perquisite of
twenty-five dollars for each pupil, together with chambers for
his accommodation, be allowed him as a compensation for his
services, he finding the necessary assistant ushers."

If the reader be curious to know what kind of a Doctor this
gentleman was, I take pleasure in informing him that he was
a clergyman, and that, although the second man called to a
chair in Mr. Jefferson's college was an undoubted liberal, the
first was highly orthodox. I leave this fact to those who,
after sixty years, have not ceased from the hue and cry raised
when Dr. Cooper was elected a professor in Central College.

But although two deists voted for the Rev. Dr. Knox as
the first professor in their new college, I would not have it
supposed that Mr. Jefferson was not disappointed. The fol-
lowing extract from a letter to Mr. Cabell, of January 6,

*" Early History of the University of Virginia as contained in the
letters of Thomas Jefferson and Joseph C. Cabell, &c." Richmond, J. W.
Randolph, 1856.

205] English Culture in Virginia. 17

1815, will give the reader some idea of what that disappoint-
ment must have been :

" I think I have it now in my power to obtain three of the
ablest characters in the world to fill the higher professorships
of what in the plan is called the second, or general grade of
education ; [he refers here to his letter to Petes Carr, which
the reader can find in the Jefferson-Cabell correspondence,
page 384] three such characters as are not in a single univer-
sity of Europe ; and for those of languages and mathematics,
a part of the same grade, able professors doubtless could also
be readily obtained. With these characters, I should not be
afraid to say that the circle of the sciences composing that
second, or general grade, would be more profoundly taught
here than in any institution in the United States, and I might
go farther." * The three characters alluded to were Say, the
great economist, who had recently written to Mr. Jefferson,
proposing to come and settle near Monticello, a design which
he never carried out; Dr. Thomas Cooper, of whom more
anon ; and possibly, nay probably, the Abb6 Corrda, a pro-
found natural historian then lecturing in Philadelphia, and
likely to be often introduced into these pages. ^ What wonder
that Mr. Jefferson felt disappointed in having no one to vote
for but Dr. Knox, of Baltimore !

The next meeting of the trustees was held at Charlottesville
on the 7th of October, 1817, and we find the following entry,
which is of importance to us :

* Jefferson -Cabell Correspondence, p. 37.

' Dr. AdaniH suggests, p. 65, that Destutt Tracy was the third character,
because of his attainments as an " ideologist." This is by no means improb-
able ; but Corr^ was omniscient and the dale of the above letter tallies so
well with his visit to Monticello that I still hold to the above opinion.
Besides the whole subject of moral philosophy would thus have been in-
trcwted to a man not identified with our people — a thing which Jefferson
was always opposed to. Thb objection would not have applied to Cooper,
who could have taught Ideology, Law, and almost everything else —
while Corrda could have taught the rest I Betides Say and Tracy would
have clashed, both being economists.

18 English Culture in Virginia, [206

" On information that the Rev. Mr. Knox, formerly thought
of for a professor of languages, is withdrawn from business,
the order of July the 28th is rescinded, and it is resolved
to offer, in the first place, the professorship of Chemistry, &c.,
to Doct. Thomas Cooper of Pennsylvania, adding to it that of
law, with a fixed salary of $1,000, and tuition fees of $20 from
each of his students, to be paid by them, &cJ^ ^

Here it seems proper to say a word or two with regard to
this remarkable man. Doctor Thomas Cooper was born in
London in 1759 and died in Columbia, S. C, in 1840. He
practiced law in England, and was one of the representatives
sent by the English democratic clubs to France during the
Revolution. I find his different vocations summed up in an
amusing way by a half mad philosopher and schoolmaster,
James Ogilvie, of whom I shall have more to say hereafter.
In a letter to Francis Walker Gilmer, Ogilvie says of Cooper :
" He has undergone as many metamorphoses as Proteus. Ovid
would certainly have immortalized him. In the course of the
last twenty years he has been Farmer, Lawyer, Patriot, Judge,
Belles-lettres cognoscenti and Professor of Chemistry, to
which will shortly be added Doctor in Medicine and Professor
of Law. As farmer he spent all his money, as lawyer he
made some — as patriot the Federalists imprisoned him — as
Judge the Democrats became enraged at him. Then the Fed-
eralists made him professor of Chemistry, at which he remains
— .... He became weary of living single and married
about twenty months ago, the consequence is he has a young
daughter." The best part of this amusing catalogue is that it
is every word true. To this list of callings I can add that of
calico printing in Manchester, at which he failed, and of
statute-revising in South Carolina — at which he died. He
came to this country in 1795 and settled with Priestley at Lan-
caster, Pennsylvania, in which state most of the exploits cele-
brated by Ogilvie were performed. After being compelled by

* Jefferson and Cabell Correspondence, p. 397.

207] English Culture in Virginia. 19

the clamor raised about his reh'gious opinions to give up all
idea of entering Mr. Jefferson's new institution, he went to
South Carolina and became connected with the college at
Columbia. He was a truly remarkable man, and published
treatises on almost every known subject, beginning with Jus-
tinian's Institutes.

But returning from this digression, we find Mr. Jefferson
more hopeful, now that it looks as if he were going to get
at least one of his three " characters." Why not take advan-
tage of the annual report that must be made by the trustees
to the legislature and suggest that instead of Central College
(good in itself, but still a mere college) the state herself found
an University to be the top stone of a noble edifice to be
known to posterity, as the Virginia system of education? No
sooner had this thought attained to fair proportions in his
brain than the thing was done. To influence the other trus-
tees was easy, and, with Cabell and his friends in the legis-
lature, even that august body was brought to look upon the
plan with favor, little foreseeing how soon the financial nerve
was to be shocked. Accordingly on the sixth day of Janu-
ary in the year 1818, it was proposed that the property of
Central College should become a nucleus for funds to be
applied to the establishment of a true state university upon
a respectable scale.

It would be useless to describe the wagging of conserva-
tive beards, more than useless to describe the tortures gone
through by timid legislators speculating how their constituents
would construe their votes. There was then in existence a
Literary Fund, how formed matters not, which Mr. Jeffer-
son's eyes had fastened upon. The financial nerve must be
shocked, but delicately, and here was a way to do it. Accord-
ingly an act appropriating part of the revenue of the Literary
Fund, &c., passed on the 21st of February, 1818. So far,
so good — but an all important question arises. Where shall
the new University be? Now the lobbying and wireworking
begin. There are several parts of the state which would not

20 English Culture in Virginia. [208

object to becoming the seat of the Muses. Staunton, for
instance, does not see at all why Charlottesville should carry
off the prize. Wherefore a Commission is appointed to sit at
Rockfish Gap, in the Blue Ridge, to determine a site for Vir-
ginia's University which all parties are now agreed must be
something good of its kind.

This Commission sat on the first day of August, 1818, and
was largely attended ; the two ex-presidents heading the list
of names.^ Here Mr. Jefferson produced a map of the state
and showed that Charlottesville was the centre of every-
thing— certainly of his own desires. Who could refuse to
gratify such a man as he stood there crowned with age and
honors, and flushed w^ith enthusiasm for an object both need-
ful and glorious ? Sectional jealousies were stifled, and Char-
lottesville was chosen as the site of the future University.'^
But the Commission did not dissolve before it had presented
a report as to what ought to be taught in the new institu-
tion— a report in which Mr. Jefferson's hand is, of course, to
be seen.^ They recommended that ten professorships should
be established as follows : (1) Ancient Languages, (2) Modern
Languages, (3) Mathematics, pure, (4) Physico-Mathematics,
(5) Physics or Natural Philosophy, (6) Botany and Zoology,
(7) Anatomy and Medicine, (8) Government, Political Econ-
omy, &c., (9) Law Municipal, (10) Ideology, Ethics, &c.
This was as comprehensive a scheme as even Mr. Jefferson
could have wished, for did it not include his favorite Anglo-
Saxon under the head of Modern Languages ? But further
the Commission advised that buildings be furnished wherein
gymnastics might be taught, but did not advance to the modern

^It is generally stated that President Monroe attended this meeting.
This I am inclined to doubt, if the list of the signers of the Report be
correct, and I afterwards discovered that Mr. Randall had noted the same
error (Life of Jefferson, III, 463), if error it be.

* Jefferson-Cabell Correspondence, page 432.

• Jeflerson had consulted John Adams as to a scheme of professorships
two years before. Adams' Works, X, 213.

209] English Culture in Virginia, 21

idea (or is it modern ?) of having a special professor to teach
them.* Thus the Rockfish Gap Commission set in glory.

The legislature receiving its report passed an act on the
25th of January, 1819, establishing the University of Virginia
upon pretty much the same plan as that recommended by the
Commission, leaving the visitors of Central College to fulfil
their functions until relieved by the first Board of Visitors
for the University of Virginia.

The first meeting of these latter took place on the 29th of
March, 1819. There were present Thomas Jefferson, who was
elected Rector, James Madison, Joseph C. Cabell, Chapman
Johnson, James Breckinridge, Robert Taylor and John H,
Cocke. After having elected a proctor and a bursar, and
having chosen a common seal, they enacted sundry provisions
as to the salaries of the professors which need not occupy
us here ; but one entry on the minutes is important enough
to quote :

" That Dr. Thomas Cooper, of Philadelphia, heretofore
appointed professor of chemistry and of law for the Central
College, be confirmed and appointed for the University as
professor of chemistry, mineralogy and natural philosophy,
and as professor of law also until the advance of the insti-
tution and the increase of the number of students shall
render necessary a separate appointment to the professor-
ship of law. . . ."

Then follows a statement that it is both important and
difficult to get American citizens as professors, and Thomas
Jefferson and John H. Cocke are appointed a Committee
of Superintendence to secure such provisionally — all actual
engagements being deferred until the Board shall meet.

The report of Cooper's election being now noised abroad
through the state, the sectional feeling before alluded to not

*For a labfleqaent scheme of establishing a chair of agriculture, the
duties of which were finally assigned to the professor of chemistry, see
Madison's Writings, III, 284-7.

22 English Culture in Virginia. [210

having been allayed, and the politicians fearing that Jefferson
had entrapped them into a new way to spend money for which
they would be held responsible, a terrific outcry arose that
Atheism was to be publicly taught, that the state would become
bankrupt, that the good old times were gone forever, and that
war was being waged against the manhood and virtue of Vir-
ginia by the arch-scoifer of Monticello, seconded by his deisti-
cal follower of Montpellier. The hue and cry was as loud as
it was silly. As is often the case, " base political tricksters "
joined with really honest and well-minded clergymen in this
war of words and pamphlets. The result will be seen in the
record of the meeting of the Visitors on October 4, 1819,
where the duties of Dr. Cooper's professorship are deferred and
the Committee of Superintendence directed to arrange with
him the terms on which such postponement may be made
conformable to honor and without inconveniencing him. The
non-completion of the buildings and Cooper's own offer to
resign furnished a plausible plea for this treatment ; and we
see from the Rector'^ report for November 29th, 1821, that
Cooper, who in the meantime had been made president of the
Columbia, S. C, College, compromised for |1, 500. So ended
the Cooper episode, not very pleasantly for any of the parties
concerned.^ I have paid attention to it because it is of con-
siderable importance to ray main theme, which might be called
not inaptly " The evolution of the University of Virginia's
professorships.'^ ^

^But even as late as January, 1824, Jeflferson had not wholly given up
the idea of getting Cooper, nor had that gentleman himself lost hope. See
Madison's Writings, III, 360.

* It may be remarked here once for all that no questions were asked as
to the religious opinions of any of those who first filled chairs in the
University. The agent who was sent to England did not mention the sub-
ject until it was broached to him. All of the first faculty seem to have
been Episcopalians except Dr. Blaetterman, who was a Lutheran. See
Randall, III, 467-8. It is curious that John Adams opposed the selection
of foreign professors because they would teach Christianity. See his works,
X, 415.

211] English Culture in Virginia. 23

I have not the space, even if I had the inclination, to
describe the woes and tribulations which the friends of the
university underwent for the next four years. Every fresh
demand for money was received with a groan by the legisla-
ture. Men forgot that not one private house in a hundred is
built for anything like the first estimate, and they accused Mr.
Jefferson of everything a scurrilous politician knows himself
to be guilty of. But the philosopher stood it all, though
sorely tried at times. He was out of the thick of the fight,
as a general should be, but his lieutenant, Cabell, was doing
manful work in Richmond, a city opposed to Mr. Jefferson on
principle, and hence inveterately hostile to the new university.
Even those who were not hostile despaired of its success, and
the majority Cabell could count on in the legislature showed
signs of becoming a minority. Finally one great move was
made by the foe — this was no less than to remove William
and Mary to Richmond and give the old college another
chanoe in connection with a medical school which would have
clinical advantages Charlottesville could not give. This was
a side blow to the University, and an almost deadly one.
" What ! '' its advocates would say, " Here you have had
oceans of money given you by the state, and you begrudge
setting this historic college on its feet again ! " And so the
columns of the Enquirer for 1824 were filled with contribu-
tions signed by "Friends of the State," "Friends of learning,"
"Constant Readers," and other representatives of a class
that unfortunately still survives. But Cabell and his
stout phalanx, among whom was Dr. Rice, reconciled now
that Cooper was put out of the way, won the day in spite
of the opposing odds. The president of William and Mary
had to wend his sad way homeward, and the college which
had partially revived under his management drooped finally
forever.*

*Thi8 was written before the scheme for the rehabilitation of the noble
old college appeared to have any ch&uce of success. Under its present

24 English OuUure in Virginia, [212

But in the meantime something was doing which concerns
us more nearly, something as important as anything which
Jefferson had planned or Cabell executed.

Reference has been made to the fact that the Board had
seen the wisdom of conciliating public opinion by securing
native professors. But they were determined to have none
but good ones. All their outlay would have been to little
purpose if the professors chosen were but ordinary men ; and
so the selection of professors was by far the most difficult task
that lay before them. They were prompt in their action. On
the 3d of October, 1820, they resolved that negotiations should
be entered into with "the following persons with the view
of engaging them as professors of the University, viz., Mr.
Bowditch, of Salem,^ and Mr. Ticknor, of Boston.'' ^ rpj^g
compensation to be given them was ample, considering the
data of the offer; it consisted of apartments, of a regular
salary of $2,000 per annum, of a fee of $10 from each student
in their classes, and an engagement on the part of the Uni-
versity to see that the sum total of $2,500 should be secured
to them for the first three years.^ For reasons best known
to themselves these gentlemen declined and, as Mr. Jefferson

efficient management there seems to be no reason why William and Mary
should not live forever to connect modern generations with those old times
of which we are so proud. Certainly the friends of the University of Vir-
ginia can afford not to be jealous and to lend all their help to the meri-
torious enterprise, and certainly the thanks of all Virginians are due to the
Bureau of Education for the monograph which turned the light of modern
educational science upon the time-honored institution.

^Nathaniel Bowditch (1773-1838), the well-known mathematician and
navigator, and translator of Laplace's " M^chanique Celeste," refused pro-
fessorships in Harvard and West Point as well.

•Ticknor's visit to Monticello in 1815 had made a deep impression on
Mr. Jefferson, and is more than once mentioned in the Gilmer letters. See
Ticknor's Life and Letters, I, 34, 300, 302. Both these nominations seem
to have excited the displeasure of the religious opponents of Cooper. See
Adams' Thomas Jefferson on p. 71.

'Jefferson-Cabell Correspondence, page 460.

213] English Culture in Virginia. 25

had probably foreseen from the start, the University was
forced to look abroad for a majority of its first professors.
This naturally brought up two questions, how many profes-
sors were to be gotten, and who was to choose them. The
Board some time before had determined that only eight pro-
fessors could be employed at first, for the fund at their
disposal had not proved too ample for the buildings, and
economy was necessary on all sides. Mr. Jefferson and Mr.
Madison, with him, thought that two of these professorships
could not well be intrusted to foreign hands — those of ethics
and law — but that the other six had better be filled from
England. This was proposed to the members of the Board
by letter and elicited the following response from Mr. Cabell.

Bremo,^ April 16, 1824.

♦ * ♦

I was very much pleased at the limitation of the foreign
professors to a moiety of the whole number. I thought I
could see advantages in this limitation, which I attempted to
explain to the Board of Visitors. I need not repeat what I
said upon this subject. The Professor of Anatomy is not
like the Professor of Law and Politics, and the Professor of
Ethics, connected with a science calculated to give tone and
direction to the public mind, on the most important subjects
that can occupy the human understanding. It is of the class
rff Professorships which may be prudently filled by foreigners.
For this reason, and because the difference between five and
six is but one ; and above all, because you are an infinitely
better judge of the subject than I am, and it is my greatest
happiness to give you pleasure upon any and upon all occa-
sions, you may consider me as yielding my assent to your

* Bremo was Gen. Cocke's county seat in Fluvanna. For this letter
the Jeflerson-Cabell Correspondence, page 303.

3

26 English Oidture in Virginia, [214

proposition to instruct the agent to engage the Anatomical
Professor in Europe. . . . Yours,

Joseph C. Cabell.

I concur with Mr. Cabell in the above.

John H. C(k;ke.

The first question having been satisfactorily answered, the
second pressed for solution. Mr. Jefferson's first choice of a
commissioner who should proceed to England to procure the
necessary professors, naturally fell upon the man who had
stood by him so nobly and so faithfully — Joseph C. Cabell.
But Mr. CabelPs affairs were embarrassed, for he had pur-
chased a large portion of his brother's property which would
be a dead loss unless it received his immediate personal atten-
tion ; besides he needed rest, aud moreover had another
scheme on his hands — a canal to connect the eastern and
western waters. So he was forced to decline this commission,
honorable and confidential as it was. Then Mr. Jefferson
rode over to Mr. Madison's and they consulted long aud
earnestly about the matter. This was in November, 1823.
Finally Mr. Cabell was consulted and doubtless others of the
Board, and then Mr. Jeffierson wrote to a young lawyer in
Richmond requesting his presence at Monticello on urgent
business. The antecedents of that young lawyer must now
engage our attention. ^

* Much of the preceding chapter is necessarily a recapitulation of what
Dr. Adams has so well and so fully presented in his recent monograph. I
must add, however, in justice to myself, that the chapter was written sev-
eral months before I was enabled to consult Dr. Adams' work. I have,
therefore, travelled over the same ground independently, and can testify,
were testimony needed, to the thoroughness and accuracy of his researches
and conclusions.

CHAPTER II.
FRANCIS WALKER GILMER.

Francis Walker Gilmer was the youngest child of Dr.
George Gilmer, of Pen Park, Albemarle County, Virginia.
He was born on the ninth day of October in the year seven-
teen hundred and ninety, or rather Francis Thornton Gilmer
was born on that day, for so the young child was christened.
He did not assume the name Francis Walker until after the
death of an uncle of that name — an event which happened
somewhere about the year 1808.^ The Gilmers are of Scotch
extraction, and settled in this country in 1731.^ They have
always held a high and honorable position, and many mem-
bers of the family have been distinguished for more than
usual intellect. They have given Virginia a Governor and
the United States a Cabinet Minister in the person of Thomas
Walker Gilmer, Governor of Virginia (1840-41) and member
of Congress, who was killed just after his appointment as
Secretary of the Navy, by the bursting of a gun on board the
" Princeton " in February, 1844. The victim of this tragedy,
which deprived Virginia of two of her most eminent men,
was the nephew of the subject of my sketch.

* This may have been the Francis Walker who was a repreeentatiye in
Congress 1793-1796; but the point is uncertain.

* For a good account of the Gilmers see "Sketches of some of the First
Settlers of Upper Georgia," by Gov. George R Qilmer (New York, Apple-
ton, 1855). The Gilmers settled in Georgia after the Revolution, and the
author of the above-mentioned book was one of the most noted members
of the family.

27

28 English Culture in Virginia. [216

I do not think that the genealogy of the family with a
long string of names and dates is essential to my purpose, but
a few words descriptive of Mr. Gilmer's father will not be
out of place — for the son was said to have inherited, in no
small degree, his father's temperament and talents. Now, for
such a description, I can go to no better person than William
Wirt, Dr. Gilmer's son-in-law. In a letter to Francis, written
from Richmond on the 9th of October, 1806, Mr. Wirt speaks
as follows : — " You, I understand, propose to follow your
father's profession. The science of medicine is, I believe,
said to be progressive and to be daily receiving new improve-
ments— ^you will, therefore, have a wider field to cultivate,
and will take the profession on a grander scale — it will be
your own fault, therefore, if you do not, as a physician, ^ fill a
larger space in the public eye.' But the space which your
father occupied was not filled merely by his eminence as a
physician (although he was certainly among the most emi-
nent), he was moreover a very good linguist — a master of
botany and the chemistry of his day — had a store of very
correct general science — was a man of superior taste in the
fine arts — and to crown the whole, had an elevated and a
noble spirit, and was in his manners and conversation a most
accomplished gentleman — easy and graceful in his movements,
eloquent in speech, a temper gay and animated, and inspiring
every company with its own tone — wit pure, sparkling and
perennial — and when the occasion called for it, sentiments of
the highest dignity and utmost force. Such was your father
before disease had sapped his mind and constitution — and such
the model which, as your brother, I would wish you to adopt.
It will be a model much more easy for you to form yourself
on than any other, because it will be natural to you — for I
well remember to have remarked, when you were scarcely four
years old, how strongly nature had given you the cast of your
father's character." ^

* This letter is one of the many from Wirt to Gilmer, given in Kennedy's
Life of Wirt. I had intended to append a special dissertation, showing

217] English Culture in Virginia. ' 29

Mr. Wirt spoke warmly, and he had reason so to do. He
had come poor and friendless into a strange state, and the
Gilmers had taken him by the hand. His humble birth was
forgotten and, in 1795, he married Mildred, the eldest daugh-
ter of the house. Pen Park, the Doctor's country seat, was
near Monticello, and the master of the house, having himself
served the Revolution well, was the intimate friend of Thomas
Jefferson.* Living at this hospitable home with his young
bride, Wirt was thrown with Jefferson and Madison and
Monroe, with the Barbours and the Carrs. The youngest
Carr, Dabney, son of Dabney, was ever after his dearest friend.
Of him we shall have to speak many times.

But troubles came upon the house. Dr. Gilmer died shortly
after the marriage of his daughter, and the latter did not long
survive him. Wirt, cast adrift upon the world after many
wanderings, settled down in Richmond to achieve a well-
earned fame. Pen Park passed out of the family, and the
brothers were scattered. Peachy, the eldest of the surviving

how Kennedy wilfully altered these letters; but I find that I can only
allude to the fact briefly. Allowing for mistakes that might have been
made in copying, I find abundant proof that Kennedy took it upon himself
to improve the style of Wirt's letters, although he did not tamper much with
the matter. He did not succeed in this gratuitous task. The original letters
are far less tame than the epistles which have been substituted for them.
Frequently whole sentences are omitted, with no asterisks to mark that the
text is not continuous. Two of the letters are misdated, phrases are often
transposed or dropped, and in one letter, of which only half the original is
given, I count upwards of twenty-three variations. It is needless to say
that Wirt was not the man to use strong terms unless he meant them. Mr.
Kennedy has not thought fit to leave any of the few expressions which show
that Wirt was after all a man like ourselves. He does, however, leave the
letter in which Wirt made the curious mistake of attributing to Beattie or
Dryden the majestic passage from Gray's " Progress of Poesy," beginning
" Now the rich stream of music winds along." This mistake is rendered
all the more curious by the fact that Wirt was fond of repeating " The
Bard."

' Dr. Gilmer left certain manuscripts relating to the Revolution. These
have been edited by R. A. Brock, and published in one of the late yolumes
of the Virginia Historical Society Papers.

30 English Culture in Virginia. [218

children, settled far away in Henry County to the great dis-
gust of his friends who thought that his many talents deserved
a wider field. James, another promising son, died just as
he was about to build up a law practice at Charlottesville.
Harraer and Francis, the two younger, were left to get what
education they could in a county where good schools flourished
not. The guardian of Francis (and I presume Harmer's also)
acted an ignoble part by them and, if I chose to present the
pitiful letters of the former, written in his sixteenth year, I
could give this chapter a very mournful cast. The boy's
training was almost entirely neglected, and though he had
property of his own, he got little good from it during his
minority. But he had a few warm friends. The family at
Monticello offered all the help a proud nature was willing to
accept. Mrs. Randolph taught him French and he grew up
and played with her children, and even then Mr. Jefferson
noted the brilliancy of his mind and prophesied great things
of him.

His letters of this period (1806) are interesting, for they
give us glimpses of a fine character gradually moulding itself
under circumstances as adverse as possible. Now he describes
his forlorn position ; now he gives us his opinion of the books
he has been reading ; now he tells how kind the Monticello
people are. He does not like Pope's Homer for the time-
honored reason that Pope is not Homer ; but he nearly cried
over the episode of Nisus and Euryalus. Anacreon is not
much to his fancy, but he delights in Csesar's Commentaries
and thinks they are " very easy."

But in 1807 a brighter tone appears. A Mr. Ogilvie is
going to have a fine classical school at Milton (a small hamlet
near Charlottesville), and he will at last have a chance to
make a man of himself. Alas ! this hope fails him, for the
aspiring Ogilvie cannot content himself with two scholars.

I fear my readers will accuse me of being a man of many
digressions, but I cannot refrain from a passing notice of
this eccentric character who became a correspondent of Gil-

219] English Culture in Virginia. 31

mer^s. He was a Scotchman of good family and was born
about 1775.^ Emigrating to this country he taught a school
in Richmond where he was very successful in stimulating his
pupils with a love for study, although his own mind was too
unbalanced to have imparted much solid information. Some
of his pupils were afterwards distinguished — a writer in the
Southern Literary Messenger (Vol. XIV, p. 534), enumerat-
ing Gen. Winfield Scott, Hon. W. S. Archer, Gov. Duvall,
of Florida Territory, and possibly Thomas Ritchie, the editor
of the Richmond Enquirer, Whether this Richmond success
came before or after the Milton failure, I am unable to say,
as the dates are rather mixed. But Ogilvie was not destined
to be a " drudge of a schoolmaster ; " he conceived the laud-
able and lofty design of enlightening the American people
ujx)n the principles of "true oratoiy'' and of "philosophical
criiicism.^^ But such a task required arduous preparation,
and he accordingly retired from South Carolina where he had
been on some wild goose chase, to the backwoods of Kentucky,
there to meditate and woo the Muse of Eloquence. Whether
it was for this latter end that he joined a volunteer expedition
against the Indians, I know not ; but the account he gives of
that expedition, in a letter to Gilmer, is worthy of preserva-
tion. It must, however, be condemned to lie among its com-
panion MSS. until I can find a fitter opportunity to give it to
the world. Having encountered no Indians, the philan-
thropist retired to a lonely log house, stipulating with his
landlady that he was to see no company — a rather unneces-
sary precaution it would seem. Here in the winter of 1812-13
was composed a series of orations which were shortly after-
wards delivered in Philadelphia, New York and Boston. In
spite of his erratic religious opinions his success was remark-
able. The American people were evidently willing to be

* The biogpraphical dictionaries give the date of his birth variously. I
ascertained from one of his letters that the date I have given is the
right one.

32 English Culture in Virginia, [220

instructed in the principles of oratory and of philosophical
criticism, whether the instruction profited much or little.
The letter in which he describes his success is worthy of this
peripatetic from the Athens of Scotland to the Athens of
America. Among his auditors in New York was Francis
Jeffrey. In Boston young George Ticknor thought him a
wonderful elocutionist.^ But the use of narcotics was gradu-
ally destroying his mind. A volume of his essays was received
with derision ; and having heard of the death of his relative,
the Earl of Finlater and Airy, without near heirs, he deter-
mined to go to Scotland and put in his own claim for the title.
He failed and died at Aberdeen in 1820, presumably by his
own hand. He is said to have done much harm to the cause
of religion and morality in Virginia ; of this I have no evi-
dence. His pupils spoke of him with affection, and his influ-
ence on young Gilmer was probably confined to stimulating
him in the study of the classics and to giving him a bent
toward public life ; for, as we have seen above, the latter had
at one time proposed to become a physician.

But although Francis was thus disappointed in his expecta-
tion of becoming a pupil of this curious man, something bet-
ter was in store for him. Through the efforts and advice of
Mr. William A. Burwell, long a member of Congress from
the Bedford district, and a firm friend of the Gilmers, the boy,
now in his eighteenth year and the possessor of a vast amount
of ill-sorted information, was placed at a school in Georgetown
where he would be under Mr. BurwelFs eye. This was in the
winter of 1808-9. In the fall of 1809 he entered William
and Mary College and remained there for a session. Mr. Wirt
says that he met him there for the first time since his child-
hood, and that " in point of learning he was already a prodigy."
He adds : ^ '* His learning, indeed, was of a curious cast : for

^ Ticknor's Life, &c., T, 8.

•This is taken from Wirt's preface to the Baltimore edition of Gilmer's
Sketcjies, to be mentioned hereafter.

221] English Oulture in Virginia, 33

haviug had no one to direct his studies, he seems to have
devoured indiscriminately everything that came in his way.
He had been removed from school to school, in different parts
of the country — had met at all these places with different col-
lections of old books, of which he was always fond, and seemed
also to have had command of his father's medical library,
which he had read in the original Latin. It was curious to
hear a boy of seventeen years of age [he was over nineteen]
speaking with fluency and even with manly eloquence, and
quoting such names as Boerhaave, Van Hclmont, Van Swei-
ten, together with Descartes, Gassendi, Newton, Locke, and
descanting on the system of Linnaeus with the familiarity of
a veteran professor. He lived, however, to reduce this chaos
to order, and was, before he died, as remarkable for the digested
method as the extent and accuracy of his attainments.'*

Such was the impression made by this remarkable youth
that Bishop Madison, then president of the college, offered him
the ushership of the grammar school connected with the insti-
tution, but the offer was declined ; for the young man was
bent upon public life. Among Gilmer's classmates was George
Croghan, of Kentucky (1791-1849), destined to become a hero
in the war of 1812 ; they seem to have had some correspond-
ence after the termination of hostilities, but only one letter of
Croghan's has been preserved.

In 1811 we find that Mr. Wirt had invited Gilmer to read
law with him in Richmond ; and now follow some of the
pleasantest years of his life. Wirt was at that time at the
head of the Richmond bar, and his " Letters of a British Spy "
had given him a national renown. He had married into a
distinguished family (the Gambles), and was able to introduce
his proteg6 to a large and cultivated circle of friends — to
Wickham and Hay and Call * and Dr. McClurg,' to Tazewell

* All leading lawyers, the latter was reporter for the Court of Appeals.

* A finely educated physician, and a member of the Philadelphia Conren-
Uonof 1787.

34 English OuUure in Virginia, [222

whenever he came to practice in the Court of Appeals, to
ex-Grov. now Judge Wm. H. Cabell, who entertained most of
the strangers of distinction that visited Richmond, to Dr. Rice,
of whom we have heard before ; to Dr. Brokenborough, the
life-long friend of John Randolph, and last but not least, to
William Pope, the prince of good fellows, who lived about
twenty miles from Richmond, but whose jokes were known
from one end of the state to the other. Pope was the man
who, whenever he came to Richmond, went to Wirt's office to
hear select passages read from the " Life of Patrick Henry,"
and did nothing but weep during the performance.

Here, then, was some compensation for the dreariness of his
early life. We catch glimpses of his progress through Black-
stone, on to Mansfield and Erskine, and finally, O dreary task !
to the Virginia Reporters. We hear his opinions of different
reigning belles and of the last doings of Napoleon; we find
him rejoicing at his providential escape from the burning of
the Richmond Theatre ; and finally we come full upon vivid
descriptions of the horror felt in Richmond at the reports of
Cockburn's raid.

In the militia movements of the state during this trouble-
some time Gilmer took his share. In the camp below Rich-
mond^ near Warrenigh Church, he drilled daily with his
friends the Carrs and young Jefferson Randolph. His fellow
student in the law, Abel P. Upshur, was also there, not des-
tined to be shot by the British, but to rise to be Secretary of
the Navy and of State, and to perish in the accident on board
the Princeton. But the British would not come in spite of
the fact that brave and irascible Colonel Thomas Mann Ran-
dolph (Jefferson's son-in-law) was waiting for them ; and the
passage from Tyrtaeus, which he had copied out in the Greek
and given to Gilmer, did no good at all. What wonder then
that the warlike Colonel, afterwards Governor, knocked a
gentleman down for alluding to this abortive campaign !

Flesh and blood could not stand a camp before which no
enemy was to be seen, and so we find Gilmer and Upshur

223] English Qdture in Virginia. 35

tossing away their guns and sallying homeward, leaving Cap-
tain Wirt, with his flying company of artillery, to write
soothing letters to Mrs. W. and to curse his own position.

In the meantime young Harmer Gilmer, who had taken
his medical degree at Philadelphia, and was looking forward
to following in his father^s footsteps, was taken ill at Char-
lottesville and died. Francis was with him and nursed him
faithfully, although his own health was far from good. He
had always been slight and frail, and the air of Richmond did
not agree with him. And now that his companion brother
had been taken away from him, the clouds that lowered over
the whole country seemed to be blackest over his own devoted
head.

But with him, as with all of us, time and change of scene
wrought a cure. We pass over his snubbing Wirt's attempts
at Comedy (Kennedy, I, 351), and the gay days spent at
Montevideo, Judge Cabell's residence in Buckingham, and
find him at last fully determined to begin the practice of the
law in Winchester. He had previously thought of settling
in Lexington, Kentucky; but, as with subsequent schemes,
the thought of leaving his mother state, now that she seemed
in a precarious condition, unnerved him and he resolved to
stay. Not the least interesting part of these letters is the
constant reference to the financial afiairs of Virginia* from
1815 to 1830. They show an utter despair of improvement,
from the complete relapse, suffered after the war of 1812, and
from the load of debt then sorely pressing upon the older
families. The troubles that came upon Mr. Jefferson have
become historic, but I could mention other cases to show that
the current opinion that Virginia was ruined by the late war
is utterly erroneous. Virginia was ruined long before, ruined
by an extravagant system of labor, by a lavish hospitality, by
inattention to onlinary business principles. The war only has-
tened the crisis a few years.

Gilmer's plan of settlement was made in April, 1814 ; but
in September of that year his schemes had not been matured.

36 English Culture in Virginia, [224

owing to the unsettled state of the country. In the meantime
he had been exercising his pen in the production of certain
essays — having now locked up among his treasures a manu-
script volume of " Physical and Moral Essays," some of
which afterwards saw the light. As a few of his literary
productions are of consequence in themselves, and as all are
of consequence in enabling us to inform ourselves of his
character, I shall in this chapter simply note the date and
title of such as were published, and shall defer all discussion
of their merits until a subsequent chapter in which I hope to
examine the character of the man and his work in some detail.
It was during this summer that he became acquainted,
or at least developed an intimacy with that wonderful old
philosopher, the Abb6 Corr^a. With the exception of Mr.
Jefferson this man did more to form Gilmer's character than
did any other of his distinguished friends. Joseph Francisco
Corr^ de Serra was born in Portugal in 1750. He studied
at Rome and Naples, was admitted to holy orders, and returned
to Portugal in 1777. Here he took great interest in the foun-
dation of the Lisbon Academy, and in 1779 was made its
perpetual secretary. He did an excellent work while con-
nected with this institution in collecting cabinets of speci-
mens— chiefly botanical, and in editing numerous unpub-
lished documents relative to early Portuguese history. But
he did not escape the suspicions of the Inquisition, and in
1786 it became necessary for him to seek refuge in Paris.
There he continued his studies and contracted an intimacy
with the naturalist Broussonnet. After the death of Pedro
III, Corr^a returned to his native country, and to him Brous-
sonnet fled on the outbreak of the Reign of Terror. Rendered
an object of suspicion by his hospitality to the exile, Corr^
found it necessary to go into hiding himself; for the authori-
ties, under the direction of a tyrannical intendant-general of
police, were busily engaged in crushing out all democratic
tendencies. After a retreat to London, about 1796, Corr5a
was employed in a diplomatic relation at Paris, where he

225] English Culture in Virginia, 37

remained from 1802 to 1813. In the latter year he embarked
for the United States and, coming to Philadelphia, was engaged
to deliver lectures on botany in the University of that city.
He was subsequently appointed Portuguese minister to this
country. Like all foreigners he was attracted to Mr. Jefferson
and became a frequent inmate at Monticello where, in all prob-
ability, Francis Gilmer first met him. The Abb4 was drawn
toward the young Virginian by the latter's enthusiasm for
all science — especially for botany. We have heard how Mr.
Wirt found him discoursing on Linnaeus at Williamsburg,
and it appears from his letters that he had since gone deeper
into the subject. He was familiar with the flora of most of
the sections of his native state, and he was now destined under
the guidance of Mr. Corr^ to make vast acquisitions to his
knowledge. But I shall let him describe his new friend in
his own words, which are taken from a letter written by him
to his brother Peachy Gilmer on the 3d of November, 1814 :
" I am so far [Richmond] on my way to Philadelphia with
Mr. Corr^, of whom, I dare say, you heard me speak of last
summer. He is the most extraordinary man now living, or
who, perhaps, ever lived. None of the ancient or modem
languages ; none of the sciences, physical or moral ; none of
the appearances of earth, air, or ocean, stand him any more
chance than the Pojie of Rome, as old Jonett^ used to say. I
have never heard him asked a question which he could not
answer ; never seen him in company with a man who did not
appear to be a fool to him ; never heard him make a remark
which ought not to be remembered. He has read, seen, under-
stands and remembers everything contained in books, or to be
learned by travel, observation, and the conversation of learned
men. He is a meml)er of every philosophical society in the
world, and knows every distinguished man living, &c." Mak-
ing all due allowances, we must, nevertheless, admit that the

* I do not know who is referred to.

38 Eagliah Culture in Virginia, [226

man who could so impress a young man rather given to cyni-
cism than otherwise, was no ordinary personage.

The journey to Philadelphia was taken, and Gilmer pro-
nounced the months spent there the happiest of his life.
He contracted intimacies with John Vaughan, Secretary of
the Philosophical Society, with Dr. Caspar Wistar, afterwards
president of that society, and connected with the abolition
movement, with Robert Walsh, the litterateur, and with young
George Tick nor, then opening his eyes at the magnificence of
Philadelphia dinner parties. He was probably present at the
very dinner where John Randolph, in defending the gentle-
men of Virginia from an imaginary insult from Mr. Corr^a,
forgot, as he so often did, to be a gentleman himself.* But he
had to tear himself away at last, even from the fascinations of
a certain belle who is not infrequently mentioned in the letters
written about this time. The visit not only left pleasant
memories but led to various correspondences which will be
mentioned in due course, but which cannot be enlarged upon.
It also led to a great scheme, mysterious and all engrossing,
the particulars of which I have not been able to make out,
but which shows that the young man of twenty-four was still
enthusiastic. It is a scheme of travel in Europe with Mr.
Corr^a, from which large revenues are in some way to flow —
but the aforesaid revenues would not begin flowing out until
a thousand dollars were poured in, which thousand dollars
Peachy Gilmer was conjured to bring with him to Albemarle.
But luckily or unluckily for our schemers. Napoleon came
back from Elba and set Europe in a blaze, which the philo-
sophic Corr^a, now aged 65, did not care to pass through, and
so this mysterious quest of El Dorado in the old world was
abandoned, and Mr. Gilmer settled down in Winchester about
the first of August, 1815. But he had not begun to practice
before the old Abb6 was on him again, this time come to per-

*Ticknor'8 Life and Letters, I, 16.

227] English Culture in Virginia. 39

suade him to take an expedition through the Carolinas for
botanizing purposes. The temptation was too strong ; the
young lawyer was so highly flattered by the evident fondness
of the great man for him, and his scientific ardor was so
kindled, that the shingle freshly hung out was taken down
and the two enthusiasts started off. I leave the reader to
imagine the pleasure Gilmer found in seeing new places and
new faces, and in learning a favorite science under such a
teacher ; I must myself hurry on in my narrative.

Winchester now became Gilmer's abode for the next two
years. There he found a respectable bar, and what was better,
three staunch friends — Dabney Carr, Henry St. George Tucker,
and Judge Holmes. Dabney Carr was, as we have already
seen, the great friend of William Wirt, and the favorite
nephew of Thomas Jefferson. He was now in his forty-fourth
year, and was Chancellor for the Winchester district. He
was an amiable and intelligent man, and did much to direct
the young practitioner in his studies. Tucker was then mem-
ber of Congress for his district, and his letters written to
Gilmer from Washington are not the least interesting in this
correspondence. These two, together with Judge Holmes and
Mr. Wirt, helped to make Gilmer the most learned lawyer
for his age in Virginia.

It is interesting to read of his successful defence of a horse-
thief who was notoriously guilty ; of the six cases which this
one success brought him ; of his schemes for future glory, and
of his endeavors to overcome certain natural impediments to
fluent speaking ; but I am reminded of the more important
work to be done, and regretfully pass over much of more than
usual interest. It must, however, be mentioned that just
about this time (1816) a Baltimore printer gave to the world
a pamphlet containing sketches of certain American orators,
which was much talked about in Washington, and was attrib-
uted to Mr. Wirt. But a few weeks later the rumor spread
abroad, greatly to Gilmer's disgust, that Mr. Wirt's favorite
pupil, and not Mr. Wirt himself, was the author. The guilty

40 English (Mture in llrginia. [228

young critic could not deny the charge, and gained an enviable
reputation in Virginia as a coming man of letters.

In the meantime Gilmer was corresponding with Ticknor,
who was now in Gottingen writing warm letters about the
progress of German science, and sage letters as to his friend's
keeping up his health ; with Hugh S. Legar6, whom he had
met on his southern trip, and who gives us glimpses of the
methods of study which were to lead to his future distinction —
with Corr^a, the omniscient, whose careful handwriting it is a
pleasure to read ; with Mr. Wirt, in answer to that gentle-
man's elegant epistles of advice ; with Tucker in Congress ;
and with Mr. Jefferson, on subjects of political economy, also
on the subject of the boundaries of Lousiana, on which he was
writing an article. Jefferson replied that although soon after
the acquisition of that country, he had minutely investigated
its history and ^* formed a memoir establishing its boundaries
from Perdido to the Rio Bravo " (which papers were sent to
the American Commissioner at Madrid, copies remaining,
however, in the Secretary of State's office), he had now no
documents by him that could help Gilmer. He, however,
referred him to an article in the " Virginia Argus," of some
time in January, 1816, which was so free from errors that he
suspected that some one in the Secretary of State's office must
have written it. Gilmer corresponded also with the celebrated
Du Pont de Nemours (1739-1817), who, after a varied and
brilliant life at the French court, had come to New Jersey in
1802 and, disdaining all Napoleon's offers, had resolved to
turn his talents to account among a fresh young people —
neglecting, however, to learn their language, though he lived
among them for fifteen years. Respecting this last corres-
pondence, we will quote a few words from a letter to Mr. Wirt :

" Mr. Corr^a has put me to corresponding with the celebrated
Du Pont (de Nemours), who writes the longest letters in
French and in the worst hand I ever saw ; he writes often, and
the correspondence occupies a good deal of my leisure. I shall
transcribe his letters in a book, and when we live to quit the

229] English Culture in Virginia. 41

bars and courts and study the history of the strange things
whicli have passed before us, we will read them together."

It will always be one of the regrets of my life that Gilmer
did not transcribe the aforesaid letters, for many a weary hour
did I spend deciphering them — to find nothing after all very
worthy of my pains. They are filled with reflections upon
our government not particularly profound — unless the fact
that ray eyes were nearly blinded by the strain to which they
were subjected, l)linded my critical powei*s — with panegyrics
on Quesnay and Turgot, whom by the way he induced Gilmer
to read, and thus deserves our thanks,^ with compliments to
Gilmer and invitations to him to undertake a translation of a
certain treatise on Education, which he had written for the
benefit of this uneducated country ; with lamentations over the
state of France, where the clerical party were beginning that
reaction which cost the Bourbons their throne; and with enco-
miums upon Mr. Jeiferson in spite of the fact that that philos-
opher had allowed the distinguished Frenchman to visit him
for a week without once seeing him ; ^ from all of which I
excerpt one passage and hasten on :

* In this connection 1 must quote the following from a letter to Wirt:
" In economy the French have opened one window and the English another
on the opposite side (as the Chevalier Corr6a says), but nobody haa seen
more than an apartment of the great edifice."

•Extract from a letter written by Gilmer to Wirt dated Winchester,
January, 1816.

•' By the way, this puts me in mind to ask you if the worthy St. Thomas
of Canterbury has ever written to you concerning the clari orcUorea. 1 have
always forgotten to mention to you in my letters that I made the applica-
tion to him, and he treated it as Pope [William Pope, before mentioned]
says, in a ' particular manner.' That I might leave a kind of lasting me-
mento to jog his memory, I wrote him a yery polite note, mentioning the
subject in the best way I could, to which he did me the honor to return no
answer, and the matter ended, as I did not think it proper considering the
anti-duelling laws to challenge him, as J. Randolph would probably haye
done. If he has not written to you on the subject, you need take it as no
particular n^ligenoe towards yourself, as he lately suffered the celebrated
4

42 English Culture in Virginia. [230

" Such is the system of your elections, imitated from those
of England, whose central point is the tavern where Madame
Intrigue solicits, pays for and obtains the protection of My
Lord Whiskey. You haven't yet got to giving one another
blows over the head with great sticks, or to detaching the

shoulders from the body with (?) as is done at London and

Westminster; but already blows of the fist are not spared,
and the chiefs of opinion have themselves accompanied by
two body-guards — vigorous Boxers. This evil may be less
great in your Virginia, and it is less i^reat because you have
there another evil graver still — all manual labor is done by
slaves who have not and who ought not to have a voice in
elections. It is to this same evil that you owe, with some
justice, what is called ' the Virginian Dynasty.'"

These letters from Du Pont occasioned considerable cor-
respondence between Gilmer and Mr. Jefferson, for the old
courtier's French was beyond the dictionaries at Winchester.
The treatise on Education was translated, but, for various
reasons, was not given to the world.^

But the young lawyer was longing for a wider field. He
was doing well at Winchester, had in fact made his expenses
the first year; but this by no means satisfied him. So Attor-
ney-General Wirt and Chancellor Carr were consulted as to

Du Pont de Nemours, a grave senator of France, near 80 years of age to
visit him at Monticello, stay a week and not see him."

Gilmer refers above to the fact that Wirt found some difficulty in getting
Jefferson's opinion as to his life of Patrick Henry. There is another char-
acteristic sentence of Gilmer's on this subject which I take from a letter to
Wirt, written on the 16th of December, 1816: "The old citizen of Monti-
cello is such a diplomatist that he has quite baffled our schemes to obtain
his opinion ; and when we ask him one thing he tells us he ' has reason to
believe' something about another. A plague upon all diplomacy, I say."

^ The French version was published in Paris and had gone through a
second edition by 1812. It is to be hoped that Gilmer had the printed
book to translate from. For a synopsis of this treatise which is said to
have influenced Jefferson's ideas on higher education, see Adams' Thomas
Jefferson, &c., pp. 49, 50, 51.

231] English Oulture in Virginia. 43

his future location. Wirt decidedly favored Baltimore, but it
was found that a rule of court required a three years residence
in Maryland, and this unfair protection of native intellect
forced the aspirant for legal fame to make a Napoleonic dash,
as Wirt called it, to Richmond. This was in the winter of
1817-18.

His first impressions of Richmond were not favorable, and
he, therefore, made a flying trip to Baltimore to see whether
the rule could not be broken down. Some of his friends there
were convinced that an exception would be made in his case ;
and as Pinckney was likely to be out of the way, either in
Russia or in Washington, under the government, there seemed
to be a fine opening. But these things were uncertain, and
Gilmer returnetl to Richmond, where, after an abortive attempt
to induce some of his friends to go with him to Florida, he
finally settled with something like content. It may be noted
that he made some endeavors, through Mr. Wirt, to obtain the
secretaryship of state for the new territory of Florida ; but
Mr. Monroe decidedly discouraged the application on the
ground that Gilmer ought not to think of thus burying him-
self— a fact which served to increase the young man's dislike
to the " most popular president."

Not long after his return to Richmond, he was appointed
by the court to defend one Gibson, who had committed a most
atrocious and open murder. The man was convicted, but
Gilmer got him a new trial on two nice legal points, and so,
in the opinion of his friends, obtained a great victory. We
also hear incidentally of a thousand dollar fee for recovering
some land in Orange County, of a trip to Georgia for a similar
purpose, and of sundry claims given him by Robert Walsh —
all of which tends to show that he was by no means idle. Nor
was there any lack of appreciation of his work on the part of
his friends and a^iuaintances. There were rumore that Presi-
dent Smith of William and Mary was to be called to Phila-
delphia in Dr. Wistar^s place, and a lettxT to Jefferson, of
March 18th, 1818, hints that Gilmer might be asked to

44 English Culture in J^rginia, [232

become the liead of his alma mater. Jefferson replied on
April 10th: "I trust you did not for a moment seriously
think of shutting yourself behind the door of William and
Mary College. A more complete cul de sae could not be pro-
posed to you."^ We also see from a letter to his brother
Peachy, written about a year later, that he stood some chance
of being made Attorney General of Virginia.

During this time also (1819-20) he had a correspondence
with Benjamin Vaughan (brother to John, of Philadelphia),
the antiquarian of Hallowell, Maine, who after many years of
good works in England, continued the same in this country
until his death in 1835. Vaughan lent him a copy of Smith's
General History of Virginia (London Edition, 1 629), and the
result was that Gilmer induced Dr. Rice to publish the first
American edition of this valuable work in 1819. Nor was
he idle in the law. He was appointed by the Court of Appeals
to report their decisions, and published a thin volume of
reports in 1821 ; but the legislature did not make the office
of Reporter profitable enough, and he only served one year.

In the meantime George Hay, a distinguished Richmond
lawyer, Monroe's son-in-law, and the prosecutor of Aaron
Burr, had published a work against usury laws. Gilmer had
read Bentham and the Edinburgh Reviewers on the subject,
and disagreeing, published a reply to them, disdaining to notice
Mr. Hay's performance. This production of his thirtieth year
gained many high commendations from such men as Mr. Jeffer-
son, John Randolph of Roanoke. Mr. Wirt, and Rufus King.

From a letter of June 26th, 1820, we find that he was not
unknown abroad. A young friend, Dabney Carr Terrell, who
had been studying in Geneva, brought him a letter from De
Caudolle, the celebrated professor of botany at that Univer-
sity, in which the savan solicited specimens from America, and
promised that any observations Gilmer might make should be

^This letter is given entire in Dr. Adams' Monograph on Thomas
Jefferson, page 110.

233] English OiUture in Virginia, 45

inserted and acknowledged in the great work to which he was
devoting his life. The postscript to this letter is as follows :

" It is worth while to mention, too, as an honor done me
abroad for what was hardly understood at home — that Pictet,
the head of the University at Geneva, translated my theory
of the Natural Bridge into French, maintaining it to be the
only scientific solution. Terrell said all the learned there
spoke in recommendation of it. . . ."

. From the above we see that the man was being recognized
as successful. His library on general jurisprudence was the
best in the state, if not in the whole country, for Ticknor
and Terrell had purchased many rare books for him abroad.
Strangers as they passed through Baltimore and Washington
saw Mr. Wirt and brought letters of introduction from him
to Gilmer. Even in Winchester we catch sight of distin-
guished visitors, such as General Bernard,^ Napoleon's aide,
who gave them vivid descriptions of Waterloo, Dr. Wistar
of Philadelphia, and the Abb6. From this last companion
Gilmer had now to part, and from the letter I am about to
give we see how dear his Virginia friends had been to the i*are
old man.

Frank W. Gilmer, Esq.
New York, 9th November, 1820.
Dear Sir and Friend,

Tomorrow in the Albion packet i sail for England, and
from thence in January i will sail for Brazil, where i will be
in the beginning of March. It is impoSvsible to me to leave
this continent without once more turning my eyes to Virginia,
to you and Montioello. I leave you my representative in that
State, and near the persons who attach me to it, and i doubt
not of your acceptance of this charge. Mr. Jefferson, Col.
Randolph and his excellent Lady and family, the family i am

'General Simon Bernard (1779-1839) — he seems to hare revisited
America with Lafayette in 1824.

46 English Culture in Virginia. [234

the most attached to in all America, will receive my adieus
from you. Do not forget also that pure and virtuous soul at
Monti)ellier and his Lady. You will i hope live long, my
dear friend, and you will every day more and more see with
your eyes what difference exists between the two philosophical
Presidents, and the whole future contingent series of chiefs of
your notion} You know the rest of my acquaintances in your
noble State, and the degrees of consideration i have for each,

and you will distribute my souvenirs in proportion

[He next mentions his election to the Albemarle Agricultural
Society and requests Gilmer to return his thanks.]

Glory yourself in being a Virginian, and remember all my
discourses about them. It is the lot i would have wished for
me if i was a North American, being a South American i am
glad to be a Brazilian and you shall hear of w^hat i do for my
country if i live.

Cras ingens iterahimus aquor — but every where, you will
find me constantly and steadily

Your faithful and sincere friend

Joseph CorrI:a de Serra.

Corr^a did not go to Brazil. The altered condition of
Portugal, due to the uprising of 1820, drew him back to his
native country, and he became minister of finance under the
constitutional government. He died in 1823, after as useful
and as varied a life as it is given a man to lead.

But this chapter has already exceeded the limits intended
for it, so I shall only mention one other incident and then
bring it to a close. On the 25th of October, 1823, Gilmer
sent Mr. Jefferson, with his compliments, the six books of
Cicero's De Re Publica, which had been discovered by the
celebrated Italian philologist, Angelo Mai, and published by
him in 1822. I had known from his letters that Gilmer was

* It is proper to say that the italics are my own.

235] English Culture in Virginia. 47

fond of the classics and especially of Cicero ; but I was some-
what surprised to find that he kept up with European learning
as assiduously as this fact would indicate.

In answer to this very letter, it would seem, came the im-
portant communication from Mr. Jefferson referred to at the
close of the first chapter.

CHAPTER III.

THE LAW PROFESSORSHIP.

The letter of November 23d, 1823, in which Mr. Jefferson
asked his young friend to act as commissioner for procuring
professors from England has not been preserved ; but we have
Gilmer's answer of December 3d, which lets us see that some-*
thing beside the new commission had been offered him. It
has already been shown how important the professorship of
law was in Mr. Jefferson's eyes ; and we can form some idea
of his estimate of Mr. Gilmer's abilities, when we learn that
it was now proposed to entrust the chair to him. It would be
useless to attempt to describe the young man's gratification :
he knew full well what store the philosopher set by this par-
ticular chair, and to be so honored at the early age of thirty-
three proved even to his naturally despondent nature that his
life had not been in vain. But soon the flush of pride passed
off, and serious questions began to propose themselves. He
had an aptitude for speaking and for public life. He might
reasonably look forward to Congress, and Virginians had
been known to mount higher. Then the University was as
yet in posse merely. The men who were to be his colleagues
had not been secured ; and, though he himself was to choose
them, he did not know whether good men were available at
the salaries offered. He had succeeded well at the bar and
had long formed plans of retirement with moderate wealth and
of devotion to some single theme that should give him an
acknowledged position among men of letters. At a new
university he would have a constant round of lectures to give,
48

237] English Ouiture in Virginia, 49

which would leave little time for outside literary work ; and
the prospect of retirement with a fortune would be forever
banished from his view. Then, too, he would be bound to
continuous duty, with a constitution far from strong and liable
to give way at any time. All these considerations weighed
well with him, and we accordingly find him requesting time
for his decision. But the commission was quite another thing,
which he could take in place of his usual trip to the Springs.
He had long desired to visit England and now he could go
under the best auspices. And so we find him gladly accept-
ing the charge and making some practical suggestions which
seem to have been acted on. One of these was that the powers
of the agent should not be limited to Great Britain and Ire-
land, but should be extended to the continent where English
letters were beginning to be studied.^ Mr. Jefferson seems to
have removed all absolute restrictions on his agent's move-
ments; but his preference remained decidedly for England,
on account of the difficulties a European would have in
thoroughly mastering our language and in appreciating our
customs.

The proposal that Gilmer should accept the office of agent
to England seems to have been made him by three of the
board of visitors without Mr. Jefferson's knowledge. Per-
haps the law chair was held up before his eyes by his great
friend. Chapman Johnson, although it was well known that
Mr. Jefferson would have the deciding voice in that matter.
Even as late as January, 1824, Cabell and Cocke seemed to
have had no notion that Gilmer was in Mr. Jefferson's mind,
as may be seen from the following extract taken from a lotter
of Cabell's, bearing date the 29th of January, 1824 :

" Gen. Cocke and myself have long l)een thinking of C'lian-
cellor Carr as the Law Professor ; and we would be happy if
there could be no commitment on that question. Mr. Carres
happy temper and manners, and dignified character, to say

* Madison's Writings, III, 353.

60 English Culture in Virginia. [238

nothing of his talents and acquirements, induced us to think
of him as the head of the institution." ^

Although the request that no commitment should be made,
might at first blush indicate a suspicion that Mr. Jefferson
had some one else in his mind, I do not think that such a
suspicion existed, for all of the board regarded Mr. Jefferson
as the father of the University, and their own votes as merely
marlcs of honorable confidence in him. I can discover no
trace of any self-seeking spirit, certainly not in Cabell or
Cocke.^

To this letter of Mr. CabelPs, Jefferson made the following
answer :

MoNTiCELLO, February 23, 1824.

* * ♦

I remark what you say on the subject of committing our-
selves to any one for the Law appointment. Your caution is
perfectly just. I hope, and am certain, that this will be the
standing law of discretion and duty with every member of
our Board in this and all cases. You know that we have all,
from the beginning, considered the high qualifications of our
professors as the only means by which we could give to our
institution splendor and pre-eminence over all its sister semi-
naries. The only question, therefore, we can ever ask our-
selves, as to any candidate, will be, is he the most highly

qualified? The College of has lost its character of

primacy by indulging motives of favoritism and nepotism,
and by conferring appointments as if the professorships were
intrtisted to them as provisions for their friends. And even
that of Edinburgh, you know, is also much lowered from the
same cause. We are next to observe, that a man is not quali-

^ Jefferson -Cabell Correspondence, page 289.

* But Mr. Madison was acquainted with Mr. Jefferson's purpose, and had
from the beginning preferred Gilmer to any of the learned lawyers pro-
posed for the chair, as appears from a letter of his to Jefferson, Nov. 11,
1823. See Madison's Writings, III, 343.

239] English Culture in Virginia. 51

fied for a professor, knowing nothing but merely his own
profession. He should be otherwise well educated as to the
sciences generally ; able to converse understandingly with the
scientific raen with whom he is associated, and to assist in the
councils of the Faculty on any subject of science on which
they may have occasion to deliberate. Without this, he will
incur their contempt and bring disreputation on the institu-
tion. With respect to the professorship you mention, I scarcely
know any of our judges personally ; but I will name, for

example, the late Judge who, I believe, was generally

admitted to be among the ablest of them. His knowledge
was confined to the common law merely, which does not con-
stitute one-half the qualification of a really learned lawyer,
much less that of a Professor of Law for an University. And
as to any other branches of science, he must have stood mute
in the presence of his literary associates, or of any learned
strangers or others visiting the University. Would this con-
stitute the splendid stand we propose to take ? ^

The individual named in your letter is one of the best, and
to me the dearest of living men. From the death of his
father, my most cherished friend, leaving him an infant in
the arms of my sister, I have ever looked on him as a son.
Yet these are considerations which can never enter into the
question of his qualifications as a Professor of the University.
Suppose all the chairs filled in similar degree, would that
present the object which we have proposed to ourselves, and
promised to the liberalities and expectations of our country ?
In the course of the trusts which I have exercised through
life, with powers of appointment, I can say with truth, and
unspeakable comfort, that I never did appoint a relation to
office, and that merely because I never saw the case in which
some one did not offer or occur, letter qualified ; and I have
the most unlimited confidence that in the appointment of

* What woald JeflTenon any to the specialists now forming our modern
faculties ?

62 English Ouliure in Virginia, [240

Professors to our nui-sling institution, every individual of my
associates will look with a single eye to the sublimation of
its character, and adopt as our sacred motto, 'detur digniori.'
In this way it will honor us, and bless our country. . . ." ^

It is evident, I think, from the stress laid upon general
scientific and literary attainments, that the old diplomat
was trying to suggest Gilmer's appointment without being
obliged to mention his name or the fact that he had long ago
made up his own mind and consulted Gilmer about it.

Be this as it may, Carr's name was taken out of the list of
possible appointees by his being elected a judge of the Court
of Appeals — a position which his friends had long desired for
him, and which he had, doubtless, dreamed about himself.
There is a good deal of correspondence about this matter con-
tained in the two volumes before me, and I subjoin a letter
from Francis Gilmer to Carr announcing the latter's election.
This letter will give a fair sample of the familiar intercourse
between Wirt and Carr, and the two Gilmers — Peachy and
Francis. 1 may remark that the office had long been depend-
ing upon the death of a once respectable but now super-
annuated judge, and that some of the letters on the subject
remind one strikingly of the magnificent chapter with which
" Barchester Towers " begins.

Conference room Ct. Appeals
24th Fehy. 1824

To the honorable Dabney Carr Puisne Judge of the Court
of Appeals. It grieveth my heart most noble judge, that in
the five years I have lived here, I have been able to do no
more for thee, than sound thy praises, for this office, which
long due has come at last — Thy merit hath won it, & not
the feeble efforts of thy friends. The ballot was thus to-day
J pas[t] 2 o'clock.

^Jefferson-Cabell Correspondence, page 391. Quoted also by Randall,
III, 497.

241] English Culture in Virginia. 53

1st Ballot Carr . 90. Barl)our^ 66. Brock°=^ 39.

2nd Carr 1 14. Barbour 87

Come down as soon as you can.

Your friend,

F. W. Gilmer.

It was equally a matter of gratification to Gilmer that
Henry St. G. Tucker was chosen to succeed Carr as chancellor
of the Winchester district. Thus was fulfilled that remark-
able prophecy mentioned by Kennedy in his life of Wirt.
Wirt had long ago been made Attorney General, James Bar-
bour had been sent to the Senate and was soon to be Secretary
of War, and Dabney Carr was judge of the Court of Appeals.'

It had been resolved to keep Gilmer's mission a secret, for
fear that American patriotism would howl down the newly-
built walls of the University as soon as it was known that
British voices would be heard therein. Few letters were written
about it, but they show incidentally that the young agent went
up to Albemarle early in the spring of 1824 and there held
many consultations with his chief, in which Mr. Madison of
course shared. But even then the newspapers got some ink-
ling of what was going on, and we find in tlie Richmond
Enquirer for May 18th, 1824, the following item in very
small type : " Mr. F. W. Gilmer of this city has sailed for
England, it is said, to make arrangements (for library, appa-
ratus, <fec.) to put the University of Virginia into immediate
operation." It was then deemed best to put a bold face on

* P. P. Barbour of Orange County, previously Speaker of the House of
Representatives, afterwards Associate Justice of the Supreme Court of the
United States.

* VVni. Brockenl)orough, then a judge of the General Court. In ten yearg
he took his seat beside Carr as a judge of the Court of Appeals.

' In one of their trips to the Fluvanna court, James liarbour began taking
off the peculiarities of his companions and wound up by predicting that
they would rise to the offices mentioned in the text. See Kennedy's Life
of Wirt, I, 71.

54 English Culture in Virginia. [242

the matter and to enter into explanations. Accordingly in
the same newspaper for May 25th, Gen. Cocke gave a notice
of the progress of the University, in which he stated that an
agent had gone to England for professors, but laid great stress
on the fact that the chairs of government and morals had been
reserved for native Americans.

In the meantime, however, Mr. Gilmer had hurried through
Washington " incog," as he expressed it to Mr. Wirt, and,
arriving in New York, had sailed early on the morning of
May the 8th on the packet Cortes, bound for Liverpool.

I shall end this chapter by requesting the reader to imagine
him pacing the deck and laughing at sea-sickness, longing to
catch sight of the English shore and wondering whether the
reality would equal his dreams — also perhaps glancing over
his papers, among which lay letters of introduction from both
Madison and Jefferson^ to Richard Rush, our Minister at
London.^

* These letters are to be found in Madison's Writings, III, 437, and Ran-
dall's Life of Jefferson, III, 497.

In Jefferson's letter Gilmer is mentioned as "the best educated subject
we have raised since the Revolution ; highly qualified in all the important
branches of science, professing particularly that of the Law, which he has
practised some years at our Supreme Court with good success and flattering
prospects." Jefferson goes on to say that he does not expect to get such
men as Cullen and Robertson and Porson, but he hopes to get the men who
are treading on their heels, and who may prefer certain success in America
to uncertain success in England.

*This gentleman (1780-1859) was a son of the well known Dr. Benja-
min Rush and filled the oflices of Attorney General of the United States,
of temporary Secretary of State, of Minister to England (1817-25), of Sec-
retary of the Treasury under John Quincy Adams, and Minister to France.
He was also the author of " Memoranda of a Resident at the Court of St.
James," &c. The edition of 1845 does not mention Gilmer's visit.

CHAPTER IV.
THE MISSION.

On Sunday, the 6th of June, 1824, Mr. Gilmer found him-
self in Liverpool. His first task was to write to Mr. Jefferson
of his safe arrival. We may imagine the pleasure it gave the
old gentleman to receive this short epistle on the 29th of July,
and to sit in his library with the precious missive in his hands
indulging pleasant day-dreams about the child of his old age.
Professors and a library were now all he wanted and for these
he depended on Gilmer alone ; for his own life was evidently
drawing to a close, and if anything happened to this agent,
he might not live to see his University opened and to say his
" nunc dimittisJ^ The letter was, as I have said, a short one.
The ship had been twenty-six days making from New York
to Holyhead. For six days they had been driven about by
adverse gales in St. George's channel, and Gilmer had in
despair disembarked at Holyhead and gone through Wales to
Liverpool. He went to Liver[x>pl instead of London for
business purposes which the letter does not explain.

The next communication with Mr. Jefferson is from London
and bears the date of 'June 21st. I shall now let Mr. Gilmer
tell his own story, only adding such facta and explanations as
seem to be important.*

* In the letters which follow I have not consciouitly made any alterations
except occasionally in punctuation and in mibstituting full for abbreviated
forms.

65

56 English Culture in Virginia. [244

London, 2\8t June, 1824.
Dear Sir,

I wrote to you at Liverpool informing you of my arrival
on the sixth. Hatton lying immediately in my way to
London, I determined to call on Dr. Parr ; unluckily for
me, he had gone to Shrewsbury, and I shall be obliged to
visit Hatton again, before I go to Oxford.

Since my arrival in London eight days ago, Mr. Rush (who
is soon to return to the U. S.) has been so constantly engaged,
that he could do nothing for me till yesterday. Indeed, the
persons with whom he was to act, have been equally occupied
in Parliament, the session being near its close, and as with us,
the business of weeks is crowded into the few last days. Yes-
terday (Sunday) I received the necessary letters to Cambridge,
Oxford, and Edinburgh, from Lord Teignmouth ^ and Mr.
Brougham, Sir James Mackintosh being so occupied with the
London and Manchester petitions for the recognition of the
Independence of S. America that he has done nothing for us.
I have conversed both with Lord T. and Mr. Brougham, who
have both taken a lively interest in the object of my mission ;
the latter especially is very ardent for our success.

Finding no specific objection, nor indeed any objection, to
Dr. Blaetterman[n], I have closed the engagement with him,
as I considered myself instructed to do. He will sustain a
considerable loss by his removal, having recently taken and
furnished a large house. I did not therefore hesitate to offer
him in the outset $1500 for the first year, with an intimation
that he would probably be reduced to $1000 in the second,
but leaving that entirely to the Visitor^, preferring to make
positive stipulations for the shortest possible time. Nor did
I hint even anything of the guarantee of $2500.

Having thus concluded my arrangements in London, I shall
set out to-morrow for Cambridge, where my real difficulties

^ John Shore — Lord Teignmouth (1751-1834) — was an Indian official of
some distinction, but is best known as the Editor of Sir Wm. Jones' works.

245] English Culture in Virginia. 57

will begin, and where they will be greatest. I have antici-
pated all along that it would be most difficult to procure a fit
mathematician and experimental philosopher ; for both are in
great demand in Europe. Mr. Brougham intimated that it
was by no means improbable, that Ivory ^ (the first mathema-
tician without rival in G. B.) might be induced to engage for
us : and I should certainly have gone at once to Woolwich to
see him; but he accompanied the statement by remarking that
he had recently been a good deal disordered in his mind and
unable to attend to his studies. He had recovered, but there
is always danger of a recurrence of these maladies. Say noth-
ing of this, however ; for I may find this account exaggerated,
or wholly untrue, and may hereafter confer with Ivory, and
possibly contract with him.

I can do nothing about the books and apparatus till I have
engaged professors ; all that part of my undertaking is there-
fore deferred until my return to London. I have seen Lack-
ington^s* successors, and endeavoured to impress upon them
the importance of attention and moderate charges in their
dealings with us.

You will hear from me again from Cambridge; accept
therefore I pray you my best wishes.

P. S. Blaetterman[n] is in the prime of life — has a wife
and two small children, and they appear amiable and domes-
tic :* he speaks English well, tho' not without a foreign accent;

^ James Ivory (1765-1842) was educated at the University of St.
Andrews, and, after studying theology and drifting from teaciiing to super-
intending a flax spinning factory, was, in consequence of his remarkable
memoirs on mathematicaf subjects, appointed professor of that study in
the Royal Military Academy at Marlow. This Gilmer mistook for Wool-
wich, and consequently he never found Ivory, who had resigned his pro-
feworahip in 1819. Brougham continued to be Ivory's friend, for in 1831
he got him a pension of £300. See Gentleman's Mag., May, 1843, p. 537.

* Ik>oksellerH recommended by Mr. Jefferson.

' I could not help smiling on reading this ingenuous remark, for I
remembered to have heard that Dr. B. was afterwards dismissed from the
University for beating his wife. I do not know whether this reiwrt waa

6

58 English Ouliure in Virginia, [246

that we are obliged to encounter every way, as there are no
profound English professors of modern language[s].

It appears from this letter, and from the letter of intro-
duction to Rush, that Mr. Jefferson already knew of Dr.
George Blaettermann, and that Gilmer went prepared to
engage him, if possible, as professor of modern languages.
Of Dr. Blaettermann's antecedents I have been unable to pro-
cure any information. Recommendations of the man appear
to have been sent to Jefferson by George Ticknor as early as
1819.

Although Mr. Rush was very busy, he managed to find time
to write Gilmer a long letter on the 16th of June in which he
states that he had written to the three distinguished men men-
tioned in the letter just given, and that although Mr. Jefferson
had overrated his ability to be of use to Mr. Gilmer, his dis-
position to be so used could not be overrated. Lord Teign-
mouth in replying to Mr. Rush on the date last mentioned
enclosed four letters of recommendation, to two representative
men at Oxford and Cambridge respectively. Three of these
letters were written by his son in their joint names, the fourth
was addressed by Lord Teignmouth himself to Dr. Coplestone
(whose name he misspells) at Oxford. His lordship's courte-
ous note hardly needs to be inserted. Dr. Edward Coplestone
(1776-1849), afterwards Bishop of Llandaff and one of the
first English clergymen to learn Welsh that his congregation
might understand him, was at this time Provost of Oriel.
Gilmer could not have been referred to a better man ; but as
the letter in which he describes his visit to Oxford, does not
mention Dr. Coplestone, it is possible that the two did not
meet. Coplestone could have given him excellent advice as
to his selection of a classical professor ; for he had himself

true, but it bears a curious relation to the story told about his successor,
another foreigner, who was forced to leave because his wife beat him.

247] English Culture in Virginia. 59

defended elegant classical scholarship against the Edinburgh
reviewers.^

Brougham's note to Mr. Rush I give in full.

Hill St., Saturday.
My dear Sir —

I ana extremely sorry that I have not been able sooner to
answer your very interesting letter — inclosing one from your
truly venerable friend — I feel the liveliest interest in the suc-
cess of Mr. G's mission — which is of great importance to both
countries — but the difficulty is not small which Mr. Jefferson
most sagaciously points out. I have inclosed three letters to
the fittest persons at Cambridge & Edinburgh. At the latter
place I am quite sure, he ought to say nothing to any one — but
quietly go to Mr. Murray^ — who intimately knows all the
learned men there — & in whose judgement and honour he may
safely trust. As for Cambridge, Dr. Davy^ — the master of
Caius College to whom I give him a letter, is now in London
& will be here for two days longer — I shall see him to-morrow
& consult him generally upon the subject — & if Mr. G. could
be kind enough to call here to-morrow morning soon after
eleven, I could take him to the Dr. — and I should beside, be

* I must once for all acknowledge my indebtedness to Mr. Leslie Stephen's
wonderful Dictionary of National Biography. I have drawn from it when-
ever I could. Appleton's Cyclopaedia of American Biography and Drake's
American Biography have also been of service to me. I have indicated
other sources of information where they seemed important.

• Undoubtedly Mr. John A. Murray, the eminent Whig lawyer, co-editor
at one time of the Edinburgh Review, Clerk of the Pipe (a sinecure which
got him a slap from Christopher North in the Noetea) and afterwards a
Scotch Justice. Lord Murray's hospitality is amply testified to. It will be
seen that he was very kind to Gilmer. (See Mrs. Qordon's " Christopher
North," New York, 1875, page 387.)

' Dr. Martin Davy (1763-1839) was a saooessful physician who was made
Master of Caius in 1803. In spite of some questionable proceedings, he is
considered to have been a good master upon the whole. He was a strong
Whig and a great friend of Dr. Parr's*

60 English OvUture in Virginia, [248

desirous of seeing liira & putting him on his guard against
the various deceptions or rather exaggerations which will be
practised upon him — if he lets the object of his mission be
known to any but a very few.

Believe me to be,

Wt. great respect
and esteem

Your faithful Serv't

H. Brougham.

From the execrable hand and the constant abbreviations to
be seen in this note one might infer, even if one did not know
it already, that Mr. Brougham was then the busiest man in
London.

In the meantime Mr. Jefferson had written Gilmer a letter,
which though not received until later, may as well be inserted
here.

MoNTiCELLO, June 5, '24.
Dear Sir,

The printer having disappointed me in getting ready, in
time to send to you before your departure, the original report
of the plan of the University, I now inclose you half a dozen
copies, one for Dr. Stuart [he meant Dugald Stewart], the
others to be disposed of as you please. I am sorry to inform
you that we fail in getting the contingent donation of 50 M. D.
[$50,000] made to us by our last legislature, so we have
nothing more to buy books or apparatus. I cannot help
hoping however that the next session will feel an incumbency
on themselves to make it good otherwise, an easy mode may
occur. W" and Mary college, reduced to 11 students, and to
the determination to shut their doors on the opening of ours,
are disposed to petition the next legislature to remove them to
Richmond, it is more reasonable to expect they will consoli-
date them with the University, this would add about 6 M. D.
a year to our revenue.

249] English Culiure in Virginia, 61

Soon after you left us, I received from Maj' Cartwright, a
well-known character in England, a letter, and a volume on
the English constitution, having to answer his letter, I put
it under your cover, with a wish you could deliver it in person,
it will probably be acceptable to yourself to have some per-
sonal acquaintance with this veteran and virtuous patriot; and
it is possible he may be useful to you, as the favorable senti-
ments he expresses towards our University assure me he would
willingly be. perhaps he would accept a copy of the Report,
which I would ask you to present him in my name, ever &
affectionately yours

Th: Jefferson.

On the back of this is endorsed, " Received Cambridge,
14th July, 1824 — without the pamphlets, so could not take
one to D. Stewart." But the reports seem to have come later.

Gilmer now left London for Cambridge from which place
he wrote the following letter to Mr. Jefferson :

Cambridge, 7th July, 1824.
Dear Sir,

I left London for this place on the 22d of June, immedi-
ately I had procured from Mr. Rush the necessary letters. I
found on my arrival here the same evening that the long
vacation at the University had virtually commenced three
weeks before, that is while I was at sea. Of the three persons
to whom I had letters, he, on whom Mr. Brougham princi-
pally relied, was absent on a visit of a week.' I employed
the time as well as I could, in enquiring into the state of
learning here, and what in this dilemma would be my best
method of proceeding. I found natural history very little
attended to, and should therefore be content to procure a
Mathematician and Natural Philosopher from this University,
indeed from what I can learn, there arc no particular reasons
for preferring the Professor of experimental philosophy from

» Dr. Davy.

62 English Culture in Virginia, [250

Cambridge. But they from whom I should have had some
chance of selecting fit persons, had, in all the departments of
learning, gone to their various homes in different parts of the
kingdom. This puts me in some respects to great disadvan-
tage, for I shall have to travel a vast deal to see them. As
yet I have learned but of one, whom I should probably
choose, that is a Mr. Atkinson,^ formerly "Wrangler" in
Trinity College, Cambridge, now teaching a school in Scotland.
He is spoken of as a first rate mathematician, and I shall
endeavor to see him in my visit to Scotland.

For the teacher of ancient languages two have been sug-
gested, both residing in London. I defer acting on that
branch, until I visit Oxford and see Dr. Parr. Sir James
Eilw. Smith is at the head of natural history in England, and
he was in Norfolk when I was in London — as he is now.
Being nearer him than I shall be again in my regular route,
I shall spend part of a day with him, proceed to Oxford, and
then to Edinburgh. It seemed to be thought most probable
that our Professor of natural history will be best found in
Scotland, or at London, tho' we shall any where find it diffi-
cult to procure one learned both in botany and zoology. From
what I hear our Professor of medicine shall probably come
also from London, but I shall form no opinion of this, until
I see Edinburgh. After remaining sometime at Oxford and
Edinburgh, I shall return to London, as a central point, and
make short excursions as I may find necessary, in order to
complete the important object of my mission. I shall forbear
to give any general opinion until I have seen Oxford and
Edinburgh.

The manner of ray reception at Cambridge has softened
my profound respect and veneration for the most renowned

^ Henry Atkinson (1781-1829) of Newcastle on Tyne is the only Atkinson
of mathematical celebrity that I can discover. He did teach in Scotland ;
but he does not appear ever to have been at Cambridge ; for at the age of
thirteen he was principal of a school !

251] English Culture in Virginia. 63

University in the world into a warm esteem for all connected
with it. From the Bishop of Bristol ^ and Dr. Davy down
to the undergjraduates, all have vied with each other in the
profusion and delicacy of their civilities. I have dined more
than half the days in the Hall of Trinity College, the most
famous of all, and was delighted with the urbanity and good
breeding of the fellows, students and of every one who
appeared. The tone of feeling in England is undoubtedly
favorable to us of the U. S. I have heard every where the
warmest expressions of friendship for us, and have certainly
received every civility possible. At the great festival at the
College yesterday, every one with whom I conversed enquired
with the utmost earnestness into the different departments of
our affairs ; the Lawyers are beginning to read our reports,
the courts and even the Parliament have in seveml things fol-
lowed, and somewhat boastfully, I may say, our example. I
am very glad of all this ; for now we have grown beyond the
reach of this enormous creature, at once a Leviathan and a
Lion, there is no good in keeping alive angry feelings.

Mr. Brougham enquired about you with the greatest inter-
est. I shall write you again from Oxford, &c.

I do not know whether the proposed visit was made to Sir
James Edward Smith. If Gilmer did not see the latter gen-
tleman, then within four years of his death, we may be sure
that he relinquished the visit with disappointment, for Sir
James was the most distinguished botanist in England, having
been the founder of the Linnaean Society, and botany had
always been Gilmer\s favorite study. We shall see hereafter
that this trip to Cambridge was successful in more than a
social sense, for by it Gilmer was enabled to secure two of the
best of the first professors.

* Dr. J. Kaye (1783-1853) had become Bishop of Bristol on the death of
Dr. Matisel in 1820. He had been Master of Christ's College and Regius
ProfesBor of Divinity. I inny remark that Dr. Christopher Wordsworth
WM at this time Master uf Trinity.

64 English Oulture in Virginia. [252

The promised letter from Oxford does not seem to have
been written, but in the meantime we have two letters of a
more- personal nature which seem worthy of presentation and
require no comments.

The first is to his brother, Peachy Gilmer, and I deem it
proper to say that I have not had time to verify any of Gil-
mer's statements, except such as are germane to the subject of
this essay.

Boston, 2 July, 1824.
My dear brother, (Lincolnshire.)

This is the place our Boston of Massachusetts was called
after. The daughter has outgrown the mother. This is a
very small town, on a very small stream, what we would call
a creek, here dignified with the name of river, with very small
trade, and in short with nothing large about it, except a most
enormous tower to the church, which I came here principally
to see. For when I got to Cambridge, I found one of the
principal persons I was to consult with, absent for some days,
and not to lose the time, I took a small circuit to Peterbor-
ough, Lincoln, and Boston, passing in my way thro' Stilton,
famous for chesees, a village not as large as Liberty.^

Lincoln is of great antiquity, and has one of the finest
Cathedrals in England. The site of it (the Cathedral) too is
beautiful — it stands on an eminence higher and more abrupt
than the capitol hill of Richmond — all around is one vast
plain, till lately a fen, reclaimed and now a lovely meadow.
The town of Lincoln is no great matter; here, too, is a tower
of W™. the Conqueror, — a palace of John of Gaunt, a Roman
court, with chequered pavement, &c. From Lincoln I de-
scended the Witham to this place. The Witham is about as
large as the canal near the basin ; it flows thro' an unbroken
meadow, not of great fertility, nor at all beautiful, or pictur-

' Peachy Gilmer lived for some years at Liberty, a small town in Bedford
county, Va.

263] English Culture in Virginia, 65

esque, tho' you see steeples and towers on all sides. The
country of Lincoln is richer in old buildings than any part
of England, but the country was by nature, I think, not
generally fertile, something like those cold, iron-ore bogs we
sometimes have, black and of rich appearance, but of no life
or strength.

My reception at Cambridge was what has given me most

pleasure I have been really domesticated (<fe was

invited to take rooms) in Trinity College, the most renowned
without doubt in the world. It is the favorite College of the
nobility and gentry of England — here were educated Bacon,
Coke, Harvey, Newton, Cotes, Cowley, Dryden, Ac. &q.
They shewed MS. letters of Newton, and several of the inter-
lined originals of Milton's smaller Poems, part of his original
Paradise Lost, <^'c. &c., and at Christ's College (which was
Milton's) the Bishop of Bristol shewed me the mulberry tree
Milton planted ; a fine bust of him, and many curious things
else. I walked moreover to Granchester, (2 miles from Cam-
bridge) supposed to be the country church yard. Gray had in
mind, in his immortal elegy. It was ever a favorite walk
with Gray, lying thro' hedges, covered with wild roses and
briars, a meadow on the margin of the Cam — I heard " the
Curfew toll the knell of parting day " at 9 o'clock. But all
this did not give one-half the pleasure I have derived a
thousand times from re{)eating the elegy, in hours of " lonely
contemplation," which heaven has given me in kindness or in
wrath, God knows which. I go to-morrow to Cambridge,
thence to Oxford, thence to Edinburgh.

The eastern side of England is not beautiful, and with all
those noble steeples and towers, but for Cambridge, I should
have found small pleasure since I left London. The country
west of London was every where (except StalTbrdshire) most
enchanting ; tho' by nature rather less fertile, I think, than I
have heard it represented. I was at the House of Commons,
the Courts, Westminster Abbey, (which has nothing but Henry
VII's Chapel and its awful history to interest me) and every

66 English Culture in Virginia. [254

where, but I hate descriptive writing and descriptive reading,
but not descriptive talking, so I will give you the whole when
we meet.

I saw J. Randolph in London — looking badly. You will
think it strange, fondly treated as I was at Cambridge, that
I should think of returning. I assure you I already begin to
languish for Virginia. I never liked being jostled from plao^
to place — crowds or strangers — here are all. Since I left
London, I have not seen a single person. I have found John
Bull far more civil every where than he is represented to be.
The tone of manners in the higher walks, is exactly what I
have seen in Virginia. McClurg, John Walker, old Mr.
Fleming^ <fec. were fully as elegant as Lord Teignmouth or
Lord Bishop of Bristol &c. but not more so, for the manners
of all were unexceptionable. There is less dashing than you
suppose, less pretension than with the new-bom gentility of the
Eastern States.

I do not know when I may have leisure to write again. I
am detained a day here for a coach, and calling you all to
mind & heart, I could not resist the temptation of addressing
a few words to you

The next is to Mr. Wirt and has been taken from Ken-
nedy's Life (Vol. II, 187.)

July 16, 1824.
My dear Mr. Wirt,

I write you my first letter from England, not from War-
wick Castle or Guy's Cliff, — which are both near at hand —
nor from Stratford generally, but from the identical room in
which the immortal bard first came "into this breathing

* Fleming was, possibly, the judge whom Dabnej Carr succeeded. Walker
I do not know of — unless he was the John Walker who was appointed to
succeed Grayson in the Senate in 1790. As I cannot ascertain the date of
this Walker's death, the point must remain in doubt, but from an expres-
sion used in another letter I am inclined to think that he was the man.

265] English OuJture in Virginia. 67

world." Here day first dawned upon his infant eyes — a mis-
erable hovel. Imagine in that hovel a small room, with a low
roof; but one window, — that looking to the setting sun; a
fire-place advanced into the room, by the naked chimney
coming through the floor. The house is neither wood nor
brick, but a wooden frame with the intervals filled up with
brick. The wooden beams are shrunk and warped by weather
and time. On the lower floor is a butcher's stall. Nowhere
is there a single vestige of Shakespeare. His chair is gone.
His mulberry tree, which was in the garden, is attached to
another house; it is reduced to the last fibre. Except his
will, and the walls and beams of this lowly mansion, I know
of no object in existence which he touched. Here the wise
and the great repair to worship him. In the register before
me is the name of Sir Walter Scott among other less illus-
trious. The walls were once scribbled ov^er by men of genius
and fame — Fox, Pitt, and othei*s, — but a mischievous tenant
lately whitewashed them, and you see only what have been
recently written.

His body lies near the altar in the church, and neither name,
nor date, nor arms appear upon the stone ; conclusive circum-
stances, I think, to show that he wrote the epitaph which is
sculptured upon the stone. This has been doubted. What
but the modesty of his own great mind could limit the epitaph
of Shakespeare to the expression of the simple wish that his
bones might rest undisturl>ed in their last repository? We
have seen the lines in Johnson's life of him, but here is a fac
simile:^

I inquired of half a dozen persons in Stratford for the tomb
of Shakespeare l)efore I could find it. I should not have
been surprised if this had occurred in a search for the tomb
of Newton or Milton. But I wa.s amazed at its happening in
the case of the poet of all ages and conditions.

Here follow the well-known linet.

68 English Culture in Virginia. [266

I begin to be impatient to see Virginia once more. It is
more like England than any other part of the United States —
slavery non obstante. Remove that stain, blacker than the
Ethiopian's skin, and annihilate our political schemers, and
it would be the fairest realm on which the sun ever shone.
I like the elbow room we have, where the wild deer cross the
untrodden grass, and the original forest never heard the echo
of the woodman's axe. There is nothing in England so
beautiful as the scenery of Albemarle, or the view from
Montevideo — the window from which you used to gaze on
the deep blue depth of these [those?] silent and boundless
mountains.

Peace to them ! — and a blessing warm, though from afar,
on you and all your house !

Yours affectionately,

F. W. Gilmer.

Having tarried some days in Oxford, Gilmer went to pay
his respects to Dr. Parr, to whom Mr. Jefferson had given
him a letter and from whom he expected much assistance in
his choice of a classical professor. Nearly everyone has
heard of Dr. Parr, scarcely anyone has read a line of what
he wrote. He was now in his seventy-seventh year, and, we
may not doubt, wore his wig as of old, smoked shag tobacco,
and talked about how narrowly he escaped being made a
bishop. But to the reader of De Quincey and of the Nodes
Amhrosianae any description I can give of this quaint old
scholar, who certainly knew more Latin than any man living,
will seem lame and borrowed ; so, presuming that my readers
have read the Nodes, I shall merely remark that Gilmer
called upon him on the 17th of July, but found him setting
out " on his travels," which proved not extensive as he sent
Gilmer a note inviting him to come back the next morning.
The handwriting in this note is only equalled by that of the
celebrated Du Pont. Our next letter is to Mr. Jefferson,
written from Dr. Parr's :

257] * English Culture in Vtrginia. 69

Hatton, July 20th. 1824.
Dear Sir,

Doctor Parr (Samuel) was delighted with your letter, and
received me with the greatest kindness: I have now been two
days with him. Tho' not above 76 years of age, I soon
discovered that he was too infirm, to be of much service to
us in the selection of professors. Tho' he is our decided and
warm friend, my interview with him has been the mast discour-
aging. He has however been of great service, by assisting me
in forming a catalogue of classical Books for the university.

I found at Oxford as at Cambridge, that Professors and
students, had all gone to their summer residence, and I could
consequently make no inquiries at all there. I have now
however, seen enough of England, and learned enough of the
two universities, to see, that the difficulties we have to
encounter, are greater even than we supposed ; not so much
from the variety of applications, as from the difficulty of
inducing men of real abilities to accept our offer. By far the
greater portion of any assembly so numerous as that which
fills the walls of Oxford and Cambridge, must of course be
composed of j^ei-sons of very moderate capacity. Education
at the Universities has become so expensive, that it is almost
exclusively confined to the nobility and the opulent gentry,
no one of whom could we expect to engage. Of the few
persons at Oxford, or Cambridge, who have any extraordi-
nary talent, I believe 99 out of 100, are designed for the
profession of law, the gown, or aspire to political distinction ;
and it would be difficult to persuade one of these, even if
poor, to repress so far the impulse of youthful ambition as to
accept a professorship in a college in an unknown country.
They who are less aspirinjr, who have learning, are caught
up at an early jjeriod in their several colleges ; soon become
fellows, & hope to be masters, which with the apartments,
ganlcn, and 4. 6. or 600 £ sterling a year, comprises all they
can imagine of comfort or happiness. Just at this time too,
there are building at Cambridge, two very large collies

70 English Culture in Virginia^ * [258

attached to Trinity, and King's, which will be the most
splendid of all. This creates a new demand for professors,
and raises new hopes in the graduates.

All these difficulties are multiplied by the system we have
been compelled to adopt in accumulation [accumulating] so
many burthens on one professor. To all the branches of
natural pliilosophy, to add chemistry and astronomy, each
of very great compass, strikes them here with amazement.

The unprece(^lented length of the session you propose, is
also a dismaying circumstance. As this will probably be
altered in time, it is, I think, to be regretted that we had not
begun with longer vacations. At Cambridge and Oxford
there are three vacations. The longest is from about the 1st
July to the 10th October, altogether there is a holiday of near
5 months. I inquired at Cambridge if there was any good
reason for this long recess. They answered, " It is indispen-
sable : no one could study in such hot weather." .... "It
is necessary to refresh the constitution, oppressed by the con-
tinued application of many months,'' &c. If the heat be
insufferable in England, what must it be in our July, August,
&G when there is to be no vacation ?

I see distinctly that it will be wholly impossible to procure
professors from either University , by the time you wished.
Whether I can find them elsewhere in England, is most doubt-
ful ; in time I fear not. I shall not return without engaging
them, if they are to be had, in G. B. or Germany. I have
serious thoughts of trying Gottingen, where the late political
persecutions of men of letters will naturally incline them to
us and where classical literature, at least, is highly cultivated.
Dr. Parr seems to prefer this course, but I shall not be hasty
in adopting it, as I fear the want of our language will prove
a great obstacle. [Here he makes some remarks about his
personal expenses being greater than he had supposed and
requests that the Board of Visitors forward another bill.]

I set out for Edinburgh to-morrow, shall remain there as
long as I find any advantage to our object, in doing so, and

259] English Culture in Virginia. 71

shall return to London. There I shall be able to learn whether
I had best go to Germany, seek English scholars in the
country, or quietly wait till the Universities open in October
which would delay any final contract till December or January.
I am not disheartened — at least we must keep things well, to
present a good front to the next legislature. That I shall do,
if possible.

I received your letter to Maj! Cartwright while at Cam-
bridge. I have not been to London since. <fec.

Leaving Hatton on the 21st of July, Gilmer was in Edin-
burgh by the 25th, on which day he received a letter, in answer
to one of his own, from a young man he had met and taken a
fancy to in Cambridge. This was no other than Thomas
Hewett Key, first professor of mathematics in the University
of Virginia. Mr. Key was at this time in his 26th year and
a master of arts of Trinity College, Cambridge. For two
years past he had been applying himself to the study of
medicine, but Gilmer, having met him at the rooms of Mr.
Praed at Cambridge [evidently the exquisite society poet —
Winthrop Mackworth Praed] perceived his fine scientific
gifts and invited him by letter to become a member of the
faculty. Key's answer (written from London on the 23rd
of July) is now before me and runs as follows :

Friday, July 23, 1824,

39 Lombard St., London.^
Dear 6'ir,

Ijet me first apologize to you for any delay I may appear
to have been guilty of in not sending a more early answer to

* The two letters from Key and Ix)nK which I have inserted may vary
slightly from the originals because they were intruKted to a stupid copyist
whoHe Htupidity was not ditoovered until the MS8. volumes had passed out
of my possession. The variations are, I am certain, unim|)ortant. All the
other letters were either copied directly by myself or bad my personal

72 English Culture in Virginia. [260

the letter I had the pleasure of receiving from you. Not
finding me at Cambridge which I had left the same morning
with yourself, it was forwarded to my residence in town; and
as I took rather a circuitous route homewards, it was not till
two days after its arrival that it first came to my hands.

The first opportunity I had after the receipt of it, I com-
municated the contents to my Father under whose roof I am
living; and lost no time in consulting with him on the pro-
priety of accepting your proposal. And before I say a word
more, you must allow me to thank you for the very handsome
and indeed too flattering manner in which that proposal has
been made to me. And, while 1 express myself proud of the
favourable light in which you are pleased to view me, I assure
vou that the feeling is at least reciprocal. I had always the
utmost respect for your country ; and, believe me, that it has
been highly gratifying to me to find that opinion more than
justified by the first of her sons whom I have ever had the
pleasure to meet. I have been now for two years applying
the greater part of my time to the study of medicine ; and
had, reluctantly indeed, made the determination to Avithdraw
myself almost wholly from the pursuit of pure science and
literature. Indeed nothing but your liberal proposition would
have induced me once more to turn my thoughts to that
quarter. You will allow then that it is natural, for one, who
has devoted so much of his time and no inconsiderable expense
to the study of an arduous profession, to pause ; and weigh
well every part of a proposal, which calls on him at once to
sacrifice all the progress he has made, and to embark again in
a perfectly new course. And this caution is the more requisite
on the present occasion, since the mere distance would render
it difficult for me, in the case of disappointment, to retrace my
steps. Of course in the short limits of a letter it is impossible
for either of us to say much ; and consequently in my present
imperfect acquaintance with the detail of your offer it must be
out of my power to come to any final arrangement till the
time when we meet in town, I will in the mean while state

261] English Culture in Vtrginia, 73

generally what my feelings on the question are and leave you
to judge how far we are likely ultimately to coincide. I own
I have ray share of ambition ; and every one who is not to be
numbered in the class of fools or rogues will confess as much ;
at the same time that ambition is of a character which is far
from inconsistent with promoting the happiness of others. I
have already said that I am fondly attached to the sciences ;
and the strength of that attachment is proportional to each, as
it appears to me calculated to advance the interests of man-
kind. In the university of Cambridge I have often thought
that this object is too much lost sight of; and that the great
body of talent in that seat of knowledge is frequently directed
to points of comparatively minor importance, and thus in a
great measure thrown away whilst it might be employed in a
manner so highly beneficial both for England and the whole
world. It was a strong feeling of this kind, which, on the
last night I had the pleasure of meeting you, led me perhaps
to be too warm in the observations I made; but I know not
whether such warmth was not justifiable. At any rate I had
the pleasure of knowing that what I then said had the effect
of directing the thoughts of one gentleman who was present
to my favorite subject of Political Economy ; and that gen-
tlemen (I mean Mr. Drinkwater^) one whose talents I have
the highest respect for. Having these views of the real
objects of science, and actuated by an ambition which seeks,
as far as my poor means are able, to add to the sum total
of human happiness not merely in my own country but
generally, I shall be most happy, should I find it in my
power finally to agree to your offer. The manners, habits,
and sentiments of the country will of course be congenial
with my own ; and there can l)e little fear of my finding

* Mr. John Eliot Drinkwater-Bethune (1801-1851), son of the historian
of the Siege of Gibraltar, was afterwards counsel to the Home Office and
an Indian official of high standing. He ia chiefly remembered in connec>
tion with his labors for the education of native girls of the higher castes.

6

74 English CuUure in Virginia. [262

myself unhappy in the society I am likely to meet with, con-
sidering the favourable specimen I have already seen. Nor
would it at all grieve me in a Political point of view to
become, if I may be allowed that honour, a Citizen of the
United States. With all these prepossessions in favour of
your proposal, it remains for me only to enquire into the
particular nature of the appointment you have so kindly
offered me. I would wait till you return to town for the
explanations you have there promised ; but of course it must
be unpleasant to both of us to remain in suspense, and you
will look on it as not impertinent, but rather as a proof
how eager I am to arrive at a final determination, if I put
the following queries. 1^*- What branch or branches of sci-
ence you would wish me to devote my services to. 2'^'^- What
duties I should have to perform; How far I should be at
liberty to form my own plan of promoting that science ; How
far I should be under the direction of others and of whom ;
How far I should have the control of my own time. And
if to this you could add an account of the existing state of
the University, of its government, the average number, age,
and pursuits of the students &c., you would do much to
enable me to come to a decisive conclusion. It will of course
be impossible to reply fully to these questions ; and perhaps
you can refer me to some person in town, to whom I may
apply for immediate information ; which would be far prefer-
able to the slow and necessarily confined channel of the Post
Office. I trust too you will not think me guilty of any
indelicacy if I ask how far the University has given you
authority to make any private arrangement and whether any
agreement between us will not require some form of ratifica-
tion in Virginia. On reference to the maps I find that Char-
lottesville is the Capital of Albemarle county and that it is
situated a considerable distance up the country. This of
course must add much to the expense of my removal from
this place to the University of Virginia and as this expense
at the outset is a consideration of some importance to my

263] English Culture in Virginia. 75

empty purse I should be obliged to you if you could fur-
nish me with an idea of it; and whether the University
would be willing to diminish the weight of it. There are
of course many other questions which on a little more reflec-
tion would suggest themselves to me; but I fear I have
already drawn too largely on your time and patience. I will
therefore conclude with assuring you that

I am, with the greatest consideration, your obliged ser-
vant,

Thomas Hewett Key.

On the evening we met at Mr. Praed's, I remember to have
offered you a letter to Mr. McCulloh,* who lately lectured in
town on Political Economy. It did not then occur to me that
Mr. M. is at this moment repeating his course at Liverpool,
and that consequently you are not likely to meet with him at
Edinburgh. I shall, of course, obey your wish that the com-
munications between us should be held secret ; and in consult-
ing with my Father, you will perceive tliat I have violated
only the letter of your request.

Gilmer answered this letter on the 26th, as follows :

Edinburgh, 2Qth July, 1824.
Dear Sir,

I have this morning received your letter of the 23d. and am
gratified to find the tem[>er of it just what I expected from
yoa. I was aware that my proposition would require both
time and examination into detail, and I therefore limited it to
the general question in my former letter. I now take great
pleasure in answering the enquiries you make, so far as the
compass of a letter allows me ; I shall with equal satisfaction
enter into fuller explanations when I see you in London,
which I hope will be about the middle of August.

>Mr. MacCulloch published his "Principles of Political Economy''
about a year a/ter this was written.

76 English Culture in Virginia, [264

The Professorshij) which I supposed you would most
willingly accept, as that for which your studies and predelec-
tions most eminently fitted you, is the chair of mathematics.
We should require in the professor a competent knowledge of
this science to teach it in all its branches to the full extent to
which they have been explored and demonstrated in Europe —
the differential calculus — its application to physics, the prob-
lem of the three bodies, &c., &g.

As to piiblic utility. How can one be so useful in Europe,
where the theatre in every department of science is more
crowded with actors than with spectators, (if I may use the
expression) as in the United States, where the mind of a great
and rising nation is to be formed and enlightened in the
more difficult departments of learning ? But to answer your
interrogatories seriatim^ I will first observe that I am armed
with complete and full powers to make the contract final and
obligatory at once, by a power of attorney, which you shall see.

Duties. Your office would be to teach the mathematical
sciences by lessons, or lectures, whichever way you thought
best, by a lecture on alternate days of an hour or hour and a
half. And you will have nearly an absolute power as to the
method of instruction. The only interference being by way
of public examination, and the only thing required will be to
find that the students make good progress.

Direction. The University of Virginia, by the statute of
incorporation, (which I will show you) is under the man-
agement of seven visitors chosen by the Governor and
Council of the State. The professors can be removed only
by the concurring vote of f of the whole number, i. e.,
of 5 out of 7. These visitors are the most distinguished
men, not of Virginia only, but of America, Mr. Jeffer-
son, Mr. Madison, &c.

Time. Your time would be entirely at your own dis-
posal, except that it would be expected you should derive
no emolument from any other office, the duties of which
were to be discharged by yourself personally.

265] English Qulture in Virginia, 77

Existing state of the University. The whole is now com-
plete, ready for the reception of professors and of students.
The houses for the professors are most beautiful ; the great
building for lectures, &c., is magnificent — being on the plan
of the Pantheon in Rome.

Laws. The code of laws was not finished when I left
Virginia; indeed, I believe it was purposely deferred, that
my observations and those of the several professors might
assist in the compilation. You may he assured they will
be most liberal toward the professors.

Probable number of students. Mr. Jeiferson told me he
had inquiries almost every post from various parts of the
United States, to know when they would open their doors.
He thought the first year there would certainly be 500
pupils. Say that of these only 200 enter your course, and
I should think nearly the whole would, and setting them
down at 30 dolls, each, as the medium price, you would then
receive from the students $6,000, from the university,
$1,500 = to $7,500, or to £1,689 sterling. But if you
received only £1,200 or £1,000, you would soon amass
wealth enough to do as you pleased, for your expenses
will not exceed £300 a year after the first year. You pay
no rent for your house.

The University visitors are very desirous to open in Feb-
ruary next. To assist you out, I shall be quite at liberty
to pay you in advance enough to bear your expenses to
Charlottesville, and your salary will do the business after
your arrival. The passage is 30 guineas to Richmond, and
it will not cost you 5 to reach Charlottesville, with all your
impedimenta,

1. Now to another point. I wish to engage a first-rate
scholar to teach the Latin and Greek languages profoundly —
if he understand Hebrew, all the better.

2. A person capable of teaching anatomy and physiology
thoroughly, with the history of the various theories of medi-
cine, from Hippocrates down.

78 English Culture in Virginia. [266

3. A person capable of demonstrating the modern system of
physics, including astronomy.

4. A person capable of teaching natural history, including
botany, zoology, mineralogy, chemistry, and geology.

You may probably be able to assist me in procuring
fit persons for some of these departments, and you would do
me a great favor. Could men of real learning and congenial
habits be selected, it would make it one of the most pleasant
situations that exist.

I should not omit to mention that Charlottesville is 80
miles above Richmond, the metropolis of the State, on navi-
gable water, and already connected by the James River with
Richmond.

Yours with great respect and consideration, &c.,

F. W. Gilmer.

Five years will make you a citizen of the tl. S., with
a compliance with certain forms, about which I will direct
you. Birth will make your posterity so — I wish them in
anticipation, as I wish you most sincerely, a career of utility
and of glory in our flourishing country.^

The next letter we have is one of August 1st, from Profes-

^ This letter is taken from a first copy made by Mr. Gilmer. Through
the kindness of Mr. Key's eldest daughter I was enabled to compare it with
the final letter that was sent. The formal variations were considerable ;
but as the matter was practically the same, the differences are not noted.
I wrote to George Long, Esquire, of Lincoln's Inn, to discover whether
his father had left any papers or memoranda that bore upon the present
study ; but that gentleman was unable to furnish me with any data. In his
courtesy, however, he communicated with Mr. Key's daughter, who was
considerate enough to make the copy alluded to, for which I desire publicly
to return my thanks. She recollects having heard her father speak of Gil-
mer in very pleasant terms. It will interest American readers to know that
the two friends. Key and Long, whose intimacy began at Cambridge and
continued through university life of fully fifty years, left families which,
through intermarriage and friendship, seem likely to perpetuate the same
pleasant relationship.

267] English Oulture in Virginia, 79

sor (afterwards Sir John) Leslie to Gilmer, at the Gibbs
Hotel. Mr. Jefferson had thought that the great scientist,
now Playfair's successor in the chair of natural philosophy,
would be inimical to his pet institution. I suppose this was
due to some misunderstanding that must have arisen when
Leslie was in Virginia (1788-9) teaching in the Randolph
family. It will be seen later that Mr. Jefferson labored under
a misapprehension.

Queen Street, Sunday Evening,
Dear Sir,

I stated to you that it appeared to me that even the tempo-
rary superintendence of a person of name from Europe might
contribute to give eclat and consistency to your infant univer-
sity. On reflecting since on this matter, I feel not averse,
under certain circumstances, to offer my own services. I am
prompted to engage in such a scheme partly from a wish to
revisit some old friends, and partly from an ardent desire to
promote the interests of learning and liberality. I could con-
sent to leave Edinburgh for half a year. I could sail from
Liverpool by the middle of April, visit the colleges in the
New England States, New York and Philadelphia, spend
a month or six weeks at Charlottesville. I should then
bestow my whole thoughts in digesting the best plans of edu-
cation, &c., give all the preliminary lectures in Mathematics,
Natural Philosophy, and Chemistry, and besides, go through
a course comprising all my original views and discoveries in
Meteorology, Heat, and Electricity. Having put the great
machine in motion, I should then take my leave to visit other
parts of the Continent. But I should continue to exercise a
parental care over the fortunes of our University, and urge
forward the business by my correspondence, &c. To make
such a sacrifice as this, however, I should expect a donation of
at least one thousand pounds, whicli would include all my
expenses on the voyage, &c. If you should think well of
this proposition, you may consult your constituents. Were it

80 English Ouliure in Virginia, [268

acceded to, I should probably in the autumn visit both France
and Germany, with the view of procuring aid and instruments
to further our plans. But at all events, I trust you will
not ment[ion] this c[onfi]dential communication w[hich] I
send you on the spur of the moment. Whatever may be
the decision, I shall at all times be ready to give you my
sincere and impartial advice.

I ever am, Dear Sir,

Most truly yours,

John Leslie.

On the 7th of August, Gilmer wrote a letter to his friend,
Chapman Johnson, a well-known lawyer in Richmond, and
one of the Board of Visitors ; but for some reason the letter
was not sent. It touches on several interesting matters, and is
therefore given here :

Edinbukgh, 7 August J 1825.
Dear Johnson,

I satisfied myself at the English Universities that it was
idle to seek at either a professor in natural philosophy. They
have no general lecturer on this important branch ; but each
college (where it is taught at all) has its own professor : none of
them, I believe, equal to our old master, the bishop [Bishop
Madison]. This department T found far more successfully cul-
tivated in Scotland, and I looked to it or London as our only
chance. Here I could learn of but one individual eminently
qualified, and he being already engaged in a good business,
I had no great hope of seducing him from Edinburgh.
I have been a fortnight making inquiries and besetting him ;
he is to give a final answer this evening, [He did not for
nearly a week] but I am impatient to be off to London, where
as from a central point I can carry on two or three nego-
tiations at once. If Buchanan (that is his name) accept my
offer, I shall be well pleased. He is both practical and
theoretical. He has written some learned articles in the

269] English Culture in Virginia. 81

supplement to the Encyclopedia Britannica, and is a matter-
of-fact man, and equally qualified both for natural philos-
ophy, properly [speaking], and for chemistry. And I now
know by the fullest inquiry that what I told you is true —
chemistry must be attached to natural philosophy, and
astronomy to mathematics. You will hardly in all Europe
find a good naturalist deep in chemistry, while every nat-
ural philosopher is pretty well acquainted with chemistry ;
and few natural philosophers are deep in astronomy, while
almost every mathematician is. So whether Buchanan and
I agree or not, I have nearly given up the hope of uniting
natural history and chemistry. [He then alludes to Leslie
and Mr. Jefferson's fear that he would be hostile — accident
had thrown them together, and they had become friends —
Leslie having done more for him than anyone except Dr.
Parr. He then cites Leslie's offer, and adds — ] It seems to
me, that as Leslie's name would give us immense renown, we
should do a good deal to procure it. We might agree to give
him so much and take the fees to ourselves, so as to get him
there probably for less money than we will give another. The
trustees should think of this, and if you come to any conclu-
sion as to his offer, or as to getting him with us permanently,
Mr. Jefferson may write to him, as if in a highly confidential
manner. I know his letter will, at any rate, be well received,
which Mr. J. does not believe.^

I think it a great pity your agent is so fettered by instruc-
tions. Your short vacation (6 weeks) has done immense mis-
chief, and it cannot last a year. Think of 200 l)oys festering
in one of those little rooms in August or July : the very idea
is suffocating. You should have begun with three months,
and gradually shortened it to two. If Buchanan and I disa-
gree, it will be on this point only.

' Whether Leslie's offer was considered, or whether he withdrew it, I do
not know. Gilmer's subsequent success would hayc ended the negotiation
al any rate, had it been started ; but the fact that Leslie made such an offer
if surprising.

82 English Culture in Virginia, [270

It is time I should say something of the honor you designed
me. Long as I have delayed it, I yet want the materials for
a final judgment, but think it proper to say that considering
the immense labors thrown on me, the very short vacation and
my prospects at the bar, a salary of $2,000 is the least I could
accept. With that beginning in October to enable me to pre-
pare my course in the winter, I believe I should accept it.
But not knowing that you will grant it on these terms, I think
it best to give you notice, that you may look elsewhere in
time. If you would make me President or something, with
the privilege of residing anywhere within 3 miles of the Ro-
tunda, it would be a great inducement. But to put me down
in one of those pavilions is to serve me as an apothecary
would a lizard or beetle in a phial of whiskey, set in a window
and corked tight. I could not for $1,500 endure this, even if
I had no labor.

I have one of the finest men I saw at Cambridge in my eye
for mathematics. I find him well disposed to us. We are to
go into details when I return to London.

We shall find that the difficulties of combination here
alluded to were finally overcome, at least in the main. Of the
correspondence between Gilmer and George Buchanan, only
two short notes from the latter have been preserved, one of
August 12th, the other of prior but uncertain date. From
the second we learn that Buchanan wished a long vacation,
that he might revisit Great Britain at least every other year;
from that of August 12th we learn that he called upon Gil-
mer in Glasgow, but found him gone on an excursion.* In
this note the situation of professor of natural philosophy was
politely declined. Buchanan (1790?-1852), we cannot doubt,
had been recommended by Leslie, whose favorite pupil he
was. He had already, at the time Gilmer's offer was made,
won a considerable local reputation as a civil engineer, and
had also delivered lectures (1822) in Edinburgh on mechanical
philosophy. His scientific reports on various government

271] English Oidture in Virginia, 83

enterprises and his success as an engineer, gave him sub-
sequently a wide reputation — which was increased, among
special students, by several well executed scientific treatises.

I must now go backwards, to give a letter written to Peachy
Gilmer on the 31st of July, which, though mainly personal,
seems worthy of presentation :

Edinburgh, 31«^ July, 1824.
My dear Brothery

I have now been five days in the Metropolis of Scotland,
one of the most beautiful cities of Europe, both in its natural

scenery and admirable buildings, As I entered the

town, and often since, I have had strange and melancholy
reveries ; here fifty years ago, our father was at College, sport-
ing with more than the usual gaiety of youth, here thirty-four
years ago, our poor brother Walker caught his death like my
ever beloved Harmer, by an assiduity, which there was no
kind friend to temper — both their lives might have been saved,
had those about them in their studies, possessed a spark of
feeling or judgment — two lines in the poem which took the
prize at Cambridge (which I heard recited) were equally
applicable to H.

" In learning's pure embrace he sank to rest
Like a tired child, upon its mother's breast." ^

But these reflections draw tears to my eyes for the millionth
time, and each I resolve shall be the last, for they are vain. —

» Winthrop Mackworth Praed (1802-1839) of Trinity gained the Chan-
cellor's medal in 1823 by his "Australasia," and in 1824 by his "Athens."
In the latter poem the lines quoted occur. They commemorate the death
of John Tweddel, a brilliant young Cantab, who died at Athens in 1799.
It is sad to think that an early death cut off both the poet and his first
American admirer from brilliant careers both in literature and in politics;
and it is interesting to reflect that this is the first quotation from Praed that
found its way to America — the country wliich had the honor of putting
forth the first collection of his poems.

84 English OuUure in Virginia, [272

they no more than " honor's voice '' can " provoke the silent
dust," or than " flattery soothe the dull, cold ear of death "
— when a few more heart strings are cut, I shall seem, to belong
rather to the next world than to this, and without the saint like
purity of either of our brothers I shall be glad to lay my head
beside theirs — I write all this in no bitterness of heart nor in
any desponding mood, the place, the occasion and addressing
you from Edinburgh all conspire to elicit fruitless sighs.

My visit has so far been very pleasant, I told you what a
delightful time I had at Cambridge. I have since spent two
days with the celebrated Dr. Parr, the greatest scholar, now
in existence. He is old, decrepid, and with the manners of a
pedagogue, but withal, exceedingly agreeable. He is a decided
and warm champion of our country, took great interest in my
mission, and has already been of service in furnishing me a
catalogue of books. He spoke right out and said several very
flattering things to me, which it is not worth while to repeat
even to you. He went with me to Guy's Cliff (one of the
most romantic establishments in G. B.) and to Kenil worth,
where we dined with a friend of his.

The people of Edinburgh are very hospitable and kind,
but less like ourselves, than the Cambridge lads. Here every
man seems engaged in letters or science. I breakfasted with
the famous professor Leslie, and he was surrounded by his
meteorological machines.

Mr. Jefferson imagined he would be hostile to us. I have
turned him to good account, by having heard something (it

was very little) of his discoveries Jeffrey is out of

town, but I shall see him. Mr. Murray a distinguished advo-
cate, connected with the great Lord Mansfield, has shown me
many civilities and I this morning received a written invita-
tion to visit Lord Forbes,^ which I shall not have time to do.

*Lord Forbes (1765-1843)— the seventeenth of the title and Premier
Baron of Scotland — had been somewhat distinguished as a soldier in his early
life. See a notice of him in the Gentleman's Magazine for 1843 (Part I).

273] English Culture in Virginia. 86

He dined with us at Murray's yesterday, and is genteel and
well disposed towards our country. I go from this place to
London, and shall endeavour as soon as I can to draw matters
to a close & return. I shall be able to turn the acquaintances
I have made here to good account to our country. Even to
procure a good library and apparatus is a great matter, for we
then have at least the materials for working which we now
want. They seem astonished to find I have been in G. B.
only 6 or 7 weeks, and speak English quite as well as they,
to say the least. I believe many of them on both sides the
Tweed would give a good deal for my accent and articulation,
which, I assure you, are nothing improved by this raw climate,
which makes every one hoarse ; they are generally less easy
and fluent in conversation than we

Gilmer did see Jeffrey — for we have a note from the latter
making proposals for a trip to Inverary and telling Gilmer
to meet him in Glasgow. Putting this fact with the state-
ment made in Buchanan's note, we are warranted in believing
that the pleasant excursion was made. Besides we have a
statement in one of the numerous letters before us that Mrs.
Jeffrey wrote to her father in New York that Gilmer was
the most popular and attractive American that had ever been
seen in Edinburgh. I mentioned many pages back that
Jeffrey was one of Ogilvie's auditors in New York; he was
there in pursuit of this very Mrs. Jeffrey — then a Miss
Wilkes — related, as De Quinoey somewhere shows, to the
celebrated Wilkes.

Although Gilmer does not seem to have visited Lord
Forbes that gentleman was kind enough to send him three
letters of introduction to literary friends in Dublin — whither
Gilmer proposed to go if he did not succeed in Great Britain.
His lordship's hand is not the best and I shall not risk pro>
Douncing who his distinguished friends were.

Among the many invitations received by Gilmer while in
Edinburgh was one from a Mr. Horner whom I take to hafe

86 English Culture in Virginia. [274

been Leonard Horner the brother and biographer of Francis
Horner — the political economist and joint founder of the
Edinburgh Review. If one only knew a few more facts
quite a pretty picture might be drawn of a pleasant evening *
spent by this clever young stranger in the presence of one
of the beauties of Great Britain. But I do not know whether
Gilmer accepted the invitation or whether Leonard Horner
gave it or whether Mr. Horner was then married. All that I
do know is that whenever he got Miss Lloyd ^ to marry him,
he got a beautiful woman.

I now give the next letter written to Mr. Jefferson, in
which the professorship of law is finally declined.

Edinburgh, Aug. ISth, 1884.
Dear Sir.

It is now more than a fortnight since I arrived at the
Ancient Capitol of Scotland. The first four or five days were
spent in making inquiries for persons fit for any of our pur-
poses, but especially for anatomy, natural history, and natural
Philosophy ; for I had well satisfied myself in England that
we could not except by chance, procure either of the latter there.
In all Scotland, from all the men of letters or science at
Edinburgh, I could hear of but two, fit for any department, at
all likely to accept our proposals. These were Mr. Buchanan
for natural philosophy, & Dr. Craigie^ for anatomy &c. I

^See Mrs. Gordon's "Christopher North," page 25. Leonard Horner
(1785-1864) was a F. K. S. and a geologist of some note. He was promi-
nent in promoting the scheme for a university in London, and in 1827 was
made Warden of the new institution.

2 David Craigie, M. D. (1793-1866) was a graduate of the University of
Edinburgh and (1832) fellow of the Edinburgh College of Physicians. He
had not a large practice, nor was he famous as a teacher, but his "Elements
of General and Pathological Anatomy" (1828) is said to have shown great
reading and to be still valuable. He was owner and editor of the Edin-
burgh Medical and Surgical Journal. His health was continuously failing
for many years.

275] English Culture in Virginia. 87

made to them both, and every where that I went, the most
favourable representations I could with truth, of our Uni-
versity. They required time to consider of our offer. — and
to day I have received the answers of both. They decline to
accept it. You would be less astonished at this, if you knew
what a change had taken place since you were in Europe.
The professorships have become lucrative, beyond everything.
Even the Greek professor at Glasgow, Leslie tells me, receives
1500 guineas a year. Some of the lecturers here, receive
above £4000 sterling. Besides this we have united branches
which seem never to be combined in the same person in

Europe I have moreover well satisfied myself,

that taking all the departments of natural history, we shall
at Philadelphia, New York <fec procure persons more fit for
our purpose than any where in G. B. The same may be said
of Anatomy &c. I shall however set out for Loudon to mor-
row, and try what can be done there by corresponding with
the places I have visited. A mathematician and professor
of ancient Languages we should, if possible, find in Europe,
for they I am sure will be better than our own. Even here
the difficulty is greater than you can conceive. Proficiency
in Latin & Greek are still the sure passports to preferment
both in Church & State ; nor is the supply of men of the first
eminence, or such as we must have, at all in proportion to the
demand. When I came I thought it the easiest place to fill ;
I assure you it is far the most difficult. This Dr. Parr told
me, but I thought he exaggerated the obstacles. I now
believe he has not. You apprehended Leslie would be at
best indifferent to us. He has however taken more interest
in our success, than any one I have seen and been of more
service to me. [Here he mentions Leslie's offer.]

• . • . . • ••• . .

I think it well to mention this, for the visitors may make
something of it, and I Ijelieve if you were once to get him
there, it would not be difficult to keep him.

It is time I should say something of the honor the visitors

88 English Culture in Virginia. [276

have done me, though I have no more materials for deciding
now, than when I left you. I make my decision, only to pre-
vent delay in your looking elsewhere. I find it so doubtful,
whether we can procure such persons as I should choose to be
associated with ; and thinking myself bound to make my
election as early as possible, that I must say as the case now
stands, T cannot accept the honor which has been conferred
upon me, in a manner the most flattering, accompanied by a
great mark of confidence in appointing me this most im-
portant mission. I shall discharge my undertaking to you
and my duty to my country, perilous as it is, to satisfy my
own conscience. I will, if it be possible in Europe, procure
fit men ; but I will rather return home, mortifying as it
would be, without a single professor, than with mere impost-
ors. As at present advised, I cannot say positively, that
I may not be condemned to the humiliation of going back
with Dr. Blaetterman only. All this is very discouraging to
you, but I present to you the exact case, without any
diplomacy to recommend myself or deceive you and my em-
ployers. Should they find fault with the address of their
agent, they shall at least never condemn his honesty, or doubt
his fidelity. My address (such as I possess) I shall reserve
for my negotiations here.

This condition of affairs, requires all and much more than
my fortitude — it mars all the pleasures of visiting Great Bri-
tain, tho' in my letters generally I preserve the appearance
of good spirits and success, because I always look to the
Legislature — I shall be happy if we can succeed and miser-
able to return without fulfilling all that you desired.

P. S. I assure you, Leslie will receive any communication
from you as an honor, he is by no means hostile to Virginia.
He speaks often of Col. R[andolph] with the utmost interest.

Having thus spent three pleasant weeks in Edinburgh,
where he received attention from the distinguished men
already named, as well as from Professor Jameson, the great

277] English Culture in Virginia, 89

geologist, Gilmer seems to have gone straight to London,
where we find him on the 21st of August beginning a cor-
respondence destined to be of great service to the University,
Mr. Key, with whom Gilmer seems to have been staying, had
recommended as classical professor a young college mate
of his own — Mr. George Long. This gentleman was a year
younger than Key, having been born in 1800. He was a fel-
low of Trinity, and already favorably known. I present
a synopsis of Gilmer's letter to him as a specimen of the
offer which the agent was authorized to make. He states
that his powers are absolute, and that any engagement made
with him would be binding without further ratification.
Long is to have (1) a commodious house, garden, &c., en-
tirely to himself, free of rent, (2) a salary of $1,500 and
" tuition fees of from $50 to $25 from each pupil, accord-
ing to the number of professors he attends." He can be
removed only by the concurrent votes of five out of seven
of the board of visitors. He is to be allowed to return to
Cambridge in July, 1825, a concession necessary to his
holding his fellowship. He is not to teach a grammar
school, but advanced classes — Hebrew being included in his
professorship, but with little chance of being required. The
professors must be ready to sail by November. The letter
oonclndes by explaining the site of the University, and is, as
a whole, courteous and businesslike.^ On the same day an
almost exact counterpart of this letter was sent to the Rev.
Henry Drury, assistant master of Harrow, who had been
recommended by Dr. Parr, himself long connected with Har-
row, as a fit person to advise in the matter of the classical
professorship.

On the 24th of August, Gilmer wrote to Leslie an important
letter of which I give the substance. Professor Jameson had
advised that the object of the mission should be published in
the leading newspapers. Gilmer thought that might do in

* It is given in Dr. Adanw' monograph on Thomas Jefierson, page 114.

7

90 Ernglish Culture in Virginia. [278

Scotland, but, remembering Brougham's admonitions, did not
feel certain that it would work well in England, and so he
felt compelled to decline Professor Jameson's offer to write up
the matter. Jameson had also recommended Dr. Knox of
Edinburgh for the anatomical chair ; and as Gilmer did not
know the latter's address, he requests Jameson to sound him
on the subject. Leslie seems to have seconded Brougham's
recommendation of Ivory, but Gilmer has not been able to
find him and thinks he will secure Key's services instead.
The letter closes by making a suggestion to Leslie about a
physical experiment the latter had shown him in Edinburgh.
On the same day this letter was written, Mr. Long in
Liverpool was writing a reply to Gilmer's offer of the 21st
instant. His manly letter is given at length : —

Liverpool, August 24.

The subject of your letter renders an apology for writing
to me quite unnecessary ; I am pleased with the plain & open
manner in which you express yourself and encouraged by this
I shall freely state to you all my thoughts on the subject, and
make such enquiries as the case seems to me to admit. The
nature of the powers with which you are vested gives me full
confidence in your proposals, and from Mr. Key's letter I am
led to expect that all information you give me will bear the
same marks as the communication I have already received.
The peculiar circumstances of my situation induce me to throw
off all reserve, and to trouble you with more words than
otherwise would be necessary. About two years since I lost
my remaining parent, a mother whose care and attention
amply compensated for the loss of a father & no inconsider-
able property in the West India Islands. By this unfortunate
occurrence I have the guardianship of a younger brother, and
two younger sisters thrown upon me — with numerous diffi-
culties, which it is useless to mention because no body but my-
self can properly judge of them, — and with an income for their

279] English Culture in Virginia, 91

support which is rapidly diminishing in value. I have for
some time past been directing my attention to the study of the
law with the hopes of improving my fortune, and the ambition,
which I hope is a laudable one, of rising in my profession.
In truth the latter is almost my only motive for entering into
the profession, as I am well acquainted with the insupportable
tedium & vexation of the practical part. But the obstacles in
my way, tho I should consider them trifling if I were solely
concerned for myself, become formidable when I reflect on the
situation of my family. I wish then to know if that part of
America would afford an asylum for a family that has been
accustomed to live in a respectable manner, and an opportunity
for laying out a little property to advantage.

From your account of that part of Virginia, and from what
I have learned from books and other sources of information,
I conclude that new comers are not liable to be carried off by
any dangerous epidemic disorder.

The salary attached to the professorship seems adequate ....
but I wish to know what proportion it bears to the expense of
living — many of the common articles of food I can imagine
to be as cheap as in England — but other articles such as
wearing apparel, furniture & I should conceive to be dearer
than they are here. Your information on this subject will
supply the defects in mine.

Is the University placed on such a footing as to ensure a
permanent and durable existence, or is the sclieme so far an
exj)eriment that there is a possibility of its failing?

Is there any probability of the first Professor being enabled
to double the 1500 dollars, when the University is fairly set at
work, by his tuition fees? You will perhaps be surprise*! at
this question ; I am not at all mercenary or addicted to the
love of money — I have reasons for asking which I could
better explain in a personal interview.

Is there in the county of Albemarle, or town of Charlottes-
ville, tolerably agreeable society, such as would in some degree
oom{)ensate for almost the only comfort an Englishman would
hesitate [to] leave behind him ?

92 Efiiglish OuUure in Virginia, [280

What vacations would the Professor have — and at what
seasons of the year — of what nature, with respect to the time
to be left for literary pursuits, and the studies connected with
his profession, by which as much might be effected as by the
employment more immediately attached to the situation ?

With respect to my coming to England in 1825, that would
be absolutely necessary. Unless I take the degree of Master
of Arts next July, I forfeit my Fellowship which is at present
the only means of subsistence I have, except the occupation in
which I am at present engaged of taking private pupils.
Should the expectation that I am induced to form be realized,
my Fellowship of course would be a small consideration : but
as I just observed the settlement of my affairs here would
render my presence necessary in 1825.

The Professors, you tell me, can only be removed by the
concurring voice of 5 out of the 7 directors : I presume that
inability to perform the duties of the office, or misconduct
would be the only points on which such a removal would be
attempted.

I have no attachment to England as a country : it is a
delightful place for a man of rank and property to live in,
but I was not born in that enviable station . , . ' If com-
fortably settled therefore in America I should never wish to
leave it.

I wish to know what may be the expenses of the voyage &
if they are to be defrayed by the persons engaged — also what
kind of an outfit would be necessary, I mean merely for a
person's own convenience.

Mr. Key knows nothing of me but from college acquain-
tance : he therefore could not know that he was directing you
to a person who would raise so many difficulties, and make so
many enquiries some of which you may judge impertinent.
For the last 6 years I have struggled with pecuniary diffi-
culties, & I am not yet quite free from them : I have thus
learned at an early age to calculate expenses, <fe consider
probabilities : when I know the whole of a case, I can come
to a determination & abide by it.

281] English Ouiture in Virginia, 93

If you will favor me with an answer as soon as you find it
convenient, I shall consider it a great favor — I must again
apologize for the freedom with which I have expressed myself:
when I have received your letter, I will inform you of my
determination.

I will thank you to inform Mr. Key that he will receive a
letter from me by the next post after that which brings yours.

I remain with the greatest respect

Yours G. Long.

Please to direct " George Long, No. 1 King St., Soho,
Liverpool.

In the meantime Gilmer, on the advice of Dr. Parr, had
written on the subject of the classical professorship to Samuel
Butler (1774-1839), the well-known head master of Shrews-
bury school. Dr. Butler was one of the leading English edu-
cators, and a great friend of Dr. Parr's, whose funeral sermon
he preached. After a brilliant career at Cambridge, where he
was elected Craven scholar over Coleridge, he had taken
charge of the Shrewsbury school in 1798, and made it one of
the best in the country. He was a noted classical scholar, and
was at this very time finishing his edition of Aeschylus. He
was subsequently made Bishop of Lichfield and Coventry.

Dr. Butler answered Gilmer on the 26th of August, and
recommended in high terms a clergyman whose name he did
not give. He also assured Gilmer that he would be glad to
show him the school* and give him further information, adding
that although he could not offer him a bed, he should be
happy to see him at breakfast, dinner, and supper.

* A gUnoe through the Kev. J. Pycrofi't " Oxford Memories " will show
how high the Shrewsbury boys stood in the daauos. In athletics they were
backward ; for it was to them that Eton sent the famous message when
challenged for a cricket (or football) match: "Harrow we know, and
Winchester we know, but who are ye?"

94 English OuUure in Virginia, [282

On the next day (the 27th) Gilmer wrote two letters, one to
Mr. Long, the other to Mr. Jefferson. That to Long
answered his queries seriatim^ and, as its writer observed, dealt
with him not as a merchant, but rather as a scholar. He was
to teach Latin, Greek, Hebrew, Rhetoric, and Belles-Lettres ;
but little stress was to be laid on the three last.

The letter to Jefferson runs as follows :

London, 21th Aug., 1824.
Dear Sir,

My last letter from Edinburgh gave so gloomy an account
of our prospects, that I hasten to relieve the picture. When
I saw needy young men living miserably up 10 or 12 stories
in the wretched climate of Edinburgh, reluctant to join us, I
did not know where we could expect to raise recruits. While
at Cambridge I became acquainted in Trinity College with an
intelligent and fine young man, distinguished even at Cam-
bridge for his mathamatical genius and attainments, and M.
A. of that University. He is the son of an eminent phy-
sician of London, and I hardly hoped we should induce him
to go with us. I have, however, done so, and am delighted
to find him a great enthusiast for the United States, and
exactly fitted to our purposes in every respect. Securing him
is a great matter, for he has a high character with the young
men who were with him at Cambridge, and he will assist in
procuring others. Already he has suggested the most fit
person for the classics, and I am enquiring of others about
him. The departments of anatomy, natural history and nat-
ural philosophy will then only remain. I have had more
persons recommended for anatomy than for any other place,
but immediately they find they will not be allowed to practice
medicine, &c., abroad, they decline proceeding further. That
I fear will prove an insurmountable obstacle to us in this
department. In the other two, I shall have great diffi-
culties, and far from being harassed by applications, I
cannot hear of any one at all likely to answer our purpose.

283] English Culture in Virginia, 95

With a good classic, an able master of experimental science,
and Key for our mathematician, we shall be strong whatever
the rest may be.

The books and apparatus now occupy me very much — at
the same time, I am corresponding with all parts of the
kingdom, about professors. On returning to London, I re-
ceived two letters from my venerable friend Dr. Parr, and
another from his grand-son (who will be his executor) propos-
ing to sell us the Doctor's Library entire at his death. It is
a rich and rare and most valuable collection of the classics.
But I wrote to them that the amount would be greater
than I could apply to this single department. I promised
however to suggest it to the Visitors, and if they please

they can enter into correspondence on the subject

It would give some eclat perhaps to our Institution to have
the Doctor's Library. I am not without hope of opening
the campaign in February with some splendors. I know the
importance of complete success with the next legislature
and shall consider that in every thing I do.

I have been seeking Ivor}'^ all over London, but such
is the state of science among alderman and " freemen," that
no one can tell me where he is or ever even heard of him, and
in Edinburgh, I found a splendid monument to Lord
Melville and none to Napier or Burns. In Westminster
Abbey, there is none to Bacon or Blake, but a great many
to state and ecclesiastical impostors.

I shall write more at length as soon as I have done
more. I wrote this only to allay your apprehensions ex-
cited by my last.

I have seen Major Cartwright, who is old and infirm.
Dugald Stewart has lost the musick of his eloquent tongue
by paralysis; he lives near Linlithgow about 20 miles from
Edinburgh, is averse to company, and I therefore enclosed
your letter with a card, expressing my regret that the state
of his health should deprive rae of the honor of his ac-
quaintance.

96 English Culture in Virginia, [284

Dr. Parr was delighted with your letter and will no
doubt give me one for you, &c.

The visit to Major Cartwright brought Gilmer an invita-
tion to dinner which bears the date of August 30th. Some
description of this remarkable character might not be out of
place, as the name of his brother, the inventor, is much more
familiar to the majority of readers than his own. But space
is wanting, and after all he intended far more good than he
accomplished. Nevertheless as naval officer, losing the chance
of promotion by his sympathy with America, as an agitator
for the reform of parliament, as a colleague of Clarkson's, as
a distinguished agriculturist, and as a sympathizer with the
Spanish patriots, he deserves to be remembered, and was, as
Mr. Jefferson said, a most worthy character for. Gilmer
to meet. Although the veteran (1740-1824) was within
a month of his death, he busied himself greatly in behalf of
Gilmer's mission. He got Mr. Harris, the former secretary to
the Royal Institution, to make out a list of such editions as
should be chosen for the University library, and he wrote to
Bentham for a catalogue of the latter's works and bespoke his
interest in Gilmer. Whether the philosopher knew that the
young American had four years ago confuted him, is a matter
of uncertainty — certain it is, however, that the desired cata-
logue was forthcoming. The Major also sent Gilmer a copy
of his "English Constitution Produced and Illustrated,^'
which, if it be as dry, as it is represented to be, I hope
the young man did not feel bound to read.

In the meantime Gilmer had been introduced to a person
destined to be of the greatest assistance to him. This was
no other than Dr. George Birkbeck (1776-1841), the cel-
ebrated founder of the Glasgow Mechanics' Institute, said
to have been the first of its kind in the world. Dr. Birk-
beck's interest in popular education began in 1800, when
he delivered a course of lectures to workingmen in Glas-
gow. He had left Glasgow for London in 1804, and had

285] English OuUure in Virginia. 97

practised medicine for many years ; but he had taken up the
cause of education again, and was in this very year (1824)
elected the first president of the London Mechanics' Institute,
afterwards called in his honor the Birkbeck Institute. He
was one of the founders of the University of London, — a
fact which we shall have occasion to remember.

Dr. Birkbeck's first letter to Gilmer was dated the 29th of
August, and addressed to him at 3, Warwick St., Charing
Cross. In it attention was drawn to a gentleman destined to
form the third member of the new faculty — Dr. Robley Dun-
glison, a prominent physician of Scotch extraction, residing
in London. Dr. Dunglison, then about 26 years of age, was
already favorably known as a medical writer, a reputation
which, it is almost needless to say, was widely extended
after he settled in this country. Gilmer was not long in fol-
lowing up Dr. Birkbeck's suggestion ; for on September 5th
Dr. Dunglison finally accepted the anatomical professorship.

The first of September brought a note from Major Cart-
wright, together with four of his political tracts which, the
writer declared, were with no small satisfaction put into the
hands of a gentleman then occupied in collecting materials for
perpetuating and adorning Republican Freedom. From the
same note we see that Gilmer was to dine with him on the
morrow. I may remark that Mr. Jefferson's letter to Cart-
wright was delivered by Gilmer, and is to be found in the
second volume of Francis Dorothy Cartwright's life of her
uncle (London, 1826, page 265). This letter is very interest-
ing, and contains a complimentary notice of Gilmer.

On the 2iid of September the assistant master of Harrow
(Rev. Henry Drury) answered Gilmer's letter of August 21st
in a very formal note. He stated that he had been in the
south of France, hence his delay, and that he had no one as
yet to propose. He promised, however, to write to Dr. Parr,
and hoped to answer more 8ati8fact^)rily in a few days. He
also mentioned that a similar application had been mjidc to
him some years ago oonoemiDg Boston — by Mr. Rufus King,

98 English Culture in Virginia, [286

whose sons were his pupils. At that time he had had no one
in view.

On the same day Mr. Long wrote from Liverpool, grate-
fully accepting Gilmer's offer. He had conversed with Adam
Hodgson, a Liverpool merchant, who had written some let-
ters on America, and his report of Charlottesville had settled
the matter. Like all of Long's letters, this one was straight-
forward and manly.

Leslie also wrote on the 2nd of September regretting that
no public announcement of the mission had been made and
throwing a slight damper upon the whole scheme. He prom-
ised to speak to Dr. Knox^ and seemed to favor him. Gilmer's
suggestion as to the experiment was received with some little
contempt, but the philosopher promised to do his best in help-
ing him to get good instruments. He cited the case of the
University of Christiania which, in so poor a country as Nor-
way, "had £1000 at first furnished for instruments and £200
per annum since."

It has already been mentioned that on September 5th Dr.
Dunglison definitely accepted. He desired to add chemistry
to his chair of anatomy, but this request was afterwards
refused. On the 6th Gilmer answered Long's letter of accept-

^ Dr. Robert Knox, then about 35 years old, was one of the best known
of the Edinburgh physicians and owned one of the finest private anatomi-
cal collections in Europe. He did not come to America; but it would have
been better for him if he had. Readers of the Nodes Ambrosiance will
surely remember the account of the famous Burke and Hare murder trial
given in the number for March, 1829. Burke and Hare had committed
several shocking murders in 1828, for the sole purpose of furnishing this
Dr. Knox with subjects. It was claimed that the bodies were brought to
Knox in such a fresh condition that he must have had suspicions of foul
play. Burke was hanged, Hare having turned state's evidence. The
excitement was immense, Knox's house was sacked by the mob and at
Burke's execution thousands were heard crying : " Where are Knox and
Hare?" Knox betook himself to London where he became an itinerant
lecturer on ethnology. See Dr. McKenzie's edition of the Noctea, III, 239,
Ac. (New York, 1875).

287] English Oulture in Virginia. 99

ance and assured him that the University would not be sectarian
— a thing which Long had feared. On the day before (the
6th) which was Sunday, Gilmer had been to Woolwich to see
Peter Barlow, the celebrated professor at the Royal Military
Academy ; but not finding him returned at once to London.

On the 7th Barlow wrote regretting that he had missed his.
visit and answering a letter which Gilmer had left. This
letter concerned one of the professorships which had been very
difficult to fill — that of natural philosophy. Mr. Barlow was
certainly the person to apply to. Born in 1776 of obscure
parents, he had worked his way through many difficulties and
was now among the foremost scientists of his day. His valu-
able tables, his essay on the strength of materials, and his
magnetical discoveries had gained him great applause and con-
siderable emoluments. He had just (1823) been elected a
fellow of the Royal Society and was about to get the Copley
medal (1825) for his magnetic discoveries. From 1827 he
was destined to do valuable work as an optician and the Bar-
low lens has perpetuated his name. He died in 1862 having
long since resigned his professorship. In the present letter
Barlow proposed to write to a gentleman, whose name he
withheld, and sound him on the subject of the required pro-
fessorship. His nominee was stated to be the son of a late
distinguished mathematical professor known both in England
and America. This seems to point to Charles Bonnycastle,
son of John Bonnycastle, the great mathematical professor at
Woolwich, whose books were certainly used at that time in
America, and who had been dead about three years. But
Barlow's note of September 22nd shows that he had been
corresponding with Mr. George Harvey, of Plymouth, about
the same place. The only explanation is that Professor Bar-
low found that Mr. Bonnycastle was abroad on some business
for the government, and as Gilmer was in a hurry, suggested
Mr. Harvey as the next best choice. It will be seen Uiat sub-
sequently Mr. Bonnycastle obtained the place.

On the 9tR, Dr. Butler wrote from Shrewsbury asking

100 English Chdture in Virginia. [288

many questions in behalf of his clerical friend. Some of these
questions show considerable acquaintance with matters purely
secular, but I have not time to dilate upon them. The letter,
of course, did no good, as Long liad already accepted.

Mr. Drury, of Harrow, also wrote on the same day about
the same professorship — this time he did recommend some-
body, viz., his brother^ — in highly eulogistic terms. To the
credit of the gentleman it must, however, be said that he did
not attempt to conceal the fact that his brother was in pecuni-
ary embarrassments and hence anxious to get away. This
letter, too, must be added to the futile correspondence of which
the volumes before me are full.

In the meantime Dr. Birkbeck had recommended for the
chair of natural history, the hardest of all to fill, Dr. John
Harwood, who was a lecturer before the Royal Institution
and who was then giving a course of lectures before a scientific
society in Manchester. This recommendation led to a long
correspondence, the discussion of which I shall put off for a
time, as it was mixed enough to involve Gilmer in some per-
plexity and his biographer in more.

On September 11th Mr. Barlow wrote that he was quite at
a loss to know why he had not heard from his friend Mr.
Bonnycastle (?). He proposed to wait on Gilmer in London,
on the following Monday (13th), unless that gentleman could
take a family dinner with him on the next day — Sunday —
when they would have an opportunity of discussing matters

^ The Rev. Benjamin Heath Drury (namesake of a former distinguished
head master), then at Eton, subsequently Vicar of Tugby, Lincolnshire.
He died Feb. 20, 1835, and was a son of the Rev. Joseph Drury, long head
master of Harrow and the friend of Lord Byron.

The Rev. Henry Joseph Thomas Drury (M.A., F.R.S., F.S.A.) had
been a fellow of King's, Cambridge, was greatly interested in the Roxburghe
Club, and possessed one of the finest libraries of the Greek classics in Eng-
land. This library he was compelled to sell by auction at different times.
He died March 5th, 1841, in his 63rd year. See Gentleman's Magazine
for that year, also the chapter on Harrow in T. A. Trpllope's " What I
Remember."

289] English, CuUure in Virginia. 101

more freely than by letter. Whether this invitation was
accepted does not appear ; but it would seem that some com-
munication was had which led to the Harvey correspondence.
Between the eleventh and the eighteenth of September we
find only one letter received by Gilmer. This was a pleasant
one from Dugald Stewart, written from his retreat at Kinneil
House, Linlithgowshire. It is such a perfect specimen of its
kind that I must make room for it. Stewart, the reader will
remember, had been paralyzed in 1822. His retreat in Lin-
lithgowshire had been due to the generosity of a friend, and
he was enjoying an ample pension, which John Wilson, who
in 1820 had taken Dr. Brown's place in the Edinburgh Uni-
versity, and hence was Stewart's co-joint professor, was mean
enough to criticize. The death of his son in 1809 had greatly
prostrated him, and left him with an only daughter, in whose
handwriting the following letter is :

Kinneil House by Bo-ness, N. B., Sept 14<A, 1824.

Sir,

It was with much regret I learnt from your note, that you
had left Scotland without giving me an opportunity of meet-
ing with you ; and altho' I feel very grateful for the kind
motive which deprived me of that pleasure, I cannot help ex-
pressing to yourself how very seriously I felt the disappoint-
ment. My indisposition would indeed have made my share
of the conversation next to nothing, but I would have
listened with great eagerness and interest to your information
about America and in particular about Mr. Jefferson, who I
am happy to find from his letter has not forgotten me after so
long and so eventful an interval. I need not add that I
should have enjoyed a real satisfaction in being |)ersonally
known to a Gentleman of whom Mr. Jefferson speaks in
sucli Battering terms, and to whose sole discernment has been
committed the im{>ortant trust of selecting tlie Professors for
the new University.

102 English Culture in Virginia, [290

I was truly sorry to learn that you had not succeeded in
finding any recruits at Edinburgh for your new College. The
field I should have thought, a very ample one, more espec-
ially in the medical department. I hope you have been more
fortunate in the English Universities and should be extremely
happy to hear from you on the subject. It is impossible for
Mr. Jefferson himself to take a more anxious concern than I
do, in everything connected with the prosperity of the United
States, and particularly in every scheme which aims at im-
proving the System of Education in that part of the world.
May I beg to be informed about your own plans and when
you propose to recross the Atlantic. Is there no chance
of your taking your departure from a Scotch Port ? If you
should, I might still indulge the hope of seeing you here. At
all events I shall write to Mr. Jefferson. I am sorry to think
that my good wishes are all I have to offer for his infant es-
tablishment.

With much regard I am, dear sir.

Your most obedient servant,

DuGALD Stewart.

Frances Walker Gilmer, Esq.

The interval before mentioned was probably employed by
Gilmer in visiting distinguished men, among whom was
Campbell, whom he greatly admired, and certainly in writing
the following letters — the first to Mr. Jefferson, the second to
Dabney Carr :

London, 15th Sept.^ 1824.
My Dear Sir

I have given you so much bad news, that I determined to
delay writing a few days that I might communicate something
more agreeable.

When I returned from Edinburgh, where my ill success is
in part to be ascribed (I am well assured) to the ill will of
some of our eastern Brethren, who had just before me been

291] English Culture in Virginia. 103

in Scotland, I determined to remain at London as the most
convenient point for correspondence. Here assisted by Key
our mathematician (with whom I am more pleaseil the more
I see of him) and several men of character and learning, I
have been busily engaged since I last wrote. I have had the
good fortune to enlist with us for the ancient languages a
learned and highly respectable Cantab., but there have been
two obstacles that have made me pause long before I conclude
with him. He has no knowledge of Hebrew, which is to be
taught at the University. This I easily reconciled to my duty,
from the absolute necessity of the case. Oriental literature is
very little esteemed in England, and we might seek a whole
year and perhaps, not at last find a real Scholar in Latin and
Greek who understands Hebrew. The other difficulty is more
serious. Mr. Long, the person I mean, is an alumnus of
Trinity College, Cambridge, he is entitled to his fellowship
only on condition of his presenting himself at the meeting in
the first week in July next. Failure to do this, no matter
under what circumstances, will deprive him of about £300
per annum. That would be a great sacrifice. Still he seemed
to me so decidedly superior to his competitors, who do not lie
under the incapacity of being of clerical character, that I believe
I shall not be faithful to my trust if I do not engage him
with a reservation of the privilege of being at Cambridge for
a week only in July; that is my present impression and very
strongly fixed, tho' there was another most competent professor
I could have, but for his being a clergyman. The Professor
of Anatomy &c is a very intelligent and laborious gentleman,
a Dr. Dunglison, now of London, and a writer of considerable
eminence on various medical and anatomical subjects.

The Professors of natural philosophy and of natural history,
still remain to be procured Another week will in-
form me what can be done about the two vacant chairs.

The library and apparatus have given me great difficulty
and trouble. I delayed as long as possible speaking for them,
to have the assistance of the professors. But the time for

104 English QuUure in Virginia. [292

shipping them now presses so close, I have made out a cata-
logue of such as we must have, and have ordered the books
and instruments to be shipped as soon as possible. The present
aspect of affairs assures me, we shall be able to open the Uni-
versity on the 1st of February as you desired. The professors
vary in age from about 26 to 43 or 4. Blaettermann is already
married and by a very singular coincidence wholly unknown
to me at the time, each of the others tho' now unmarried, will
take out a young English wife,^ tho* if they would take my
advice they would prefer Virginians notwithstanding.

Dr. Parr has engaged to marry me in England without his
fee which here is often considerable.

Having already declined the honor so flatteringly conferred
upon me, I no longer feel at liberty to express any wish upon
the subject. But really every thing promises to make a Pro-
fessorship at the University one of the most pleasant things
imaginable.

I have had no assistance (I wish I could say that were all)
from a single American, now in England. Leslie in Scotland
and Dr. Birkbeck (cousin to the Illinois Birkbeck) of London
have taken most interest in the matter.

Mackintosh is too lazy for anything and Brougham's letters
introduced me to eminent men, but they never took the right
way, or to the right means for us, they talk of plate, furniture
&c for the pavilions, while we want men for work.

I have had but a single letter from America — that gave me
the very agreeable news, that you were all well in Alber-
marle, &c.

London, Wth Sept., 1824.
My dear friend,

Many accidents have conspired to delay my embarcation
for Virginia longer than I wished ; at this season of the year
no man in England is where he ought to be, except perhaps

* It does not appear that either Long or Bonnycastle carried out wives.

293] English Culture in J^rginia, 105

those of the Fleet & of Newgate. Every little country school
master, who never saw a town, is gone, as they say, to the
country, that is to Scotland to shoot grouse, to Doncaster to
see a race, or to Cheltenham to dose himself with that vile
water. With all these difficulties and not only without assist-
ance but with numerous enemies to one's success (as every
Yankee in England is) I have done wonders. I have em-
ployed four Professors of the most respectable families, of real
talent, learning &c <fec a fellow of Trinity Col. Camb. and
a M. A. of the same University. Then they are Gentlemen,
and what should not be overlooked they all go to Virginia
with the most favourable prepossessions towards our Country.
If learning does not raise its drooping head it shall not be my
fault. For myself I shall return to the bar with recruited
health and redoubled vigour. I shall study and work &
speak & do something at last that shall reilound to the honor
of my country. My intercourse with professional and Liter-
ary men here has fired again all my boyish enthusiasm, and I
pant to be back and at work. The library of the University
and my intimacy with the professors, will now make even my
summer holidays a period of study. Virginia must still be
the great nation; she has genious enough, she wants only
method in her application. I have seen several of the most
eminent Scotch & English lawyers, and you may rely upon
it, our first men have nothing to fear from a comparison with
the best of them. The only decided advantage any of them
hav^ over us, is in Brougham. He has more science <fe accu-
rate information (not letters mark you) than any one who
ever figured at the English bar or in Parliament. In the
mathematics, physical sciences, and political economy, few
even of their exclusive profeasors are so learned ; his lal)or is
endless, his memory retentive, his faculties quick. I have
not seen him at full stretch, but I think his mind is more
like that of Calhoun, than any of our men. Mackintosh
passes for very little here; he is lazy to excess, always vacil-
lating and undecided, is allowed to have a great memory,
8

106 English OuUurc in Virginia, [294

much curious learning &c but is without the promptness and
tact necessary to business ; then no one can rely on his opin-
ions, principles or exertions. He is either not present or
takes exactly the opposite course from what every one sup-
poses he will. His declamatory way of talking about the
" extraordinary eccentricities of the human mind ^' &c seems
after such endless repetitions, monotonous & cold, while his
manner is nearly as bad as any manner can be — swaggering
vociferations and ear-splitting violence from beginning to end.^
The University will open in February and I shall be with
you in time to give you a greeting at the Court of Appeals.

Another way in which Gilmer employed his time was in
examining the library at Lambeth. Having wished to have
a MS. relating to the life of John Smith copied, he entered
into correspondence with one of the librarians and was suc-
cessful in his object. This copy ought to be in the library of
the University of Virginia, but I can learn nothing of it.^

On the 1 9th a sad little note was received from Miss Frances
Dorothy Cartwright whom Gilmer had met at her uncle's
house. Major Cartwright, who had now only four days to
live, had directed that a package of his writings should be
made up, and carried to Mr. Jeiferson by Gilmer. In send-
ing this his niece took occasion to write a loving and pathetic
note about her uncle's condition and to express herself as glad
that Gilmer would be able to speak of him as he deserved,
in a country he had always loved. The note is touching and
bespoke the true feminine heart which had burst forth into
song over the woes of the Spaniards. For the lady was not
only a devoted niece and faithful biographer but a poetess,

*C!ompare with his friend Ticknor's impression (Ticknor's Life, Ac,
1, 289).

' At the end of George Long's biographical sketch of Marcus Aurelius
there is an eloquent tribute to Smith. It is highly probable that Gilmer
introduced the great Captain to Long's notice.

295] English Culture in Virginia, 107

albeit her works have not given her fame. She was the
daughter of the distinguished inventor and lived to a ripe old
age — dying in 1863.

On the 20th of September Mr. George Harvey wrote
from Plymouth, asking many questions about the Univer-
sity. On the 22nd Peter Barlow wrote a short and unim-
portant note about Mr. Harvey, and on the 25th that
gentleman himself wrote from Plymouth declining, on fam-
ily considerations, gratefully, but positively, the chair of
natural philosophy.^ In the meantime the correspondence
with Harwood about the professorship of natural history
had been going on vigorously.

On the 27th Mr. Rush wrote proposing a visit to the dock-
yard at Portsmouth during the first week in October ; and as
Gilmer >vrote to his brother Peachy from that port on October
4th, the visit was probably made.

Dr. Parr also wrote, on the same day, a characteristic letter,
which is here inserted :

Hatton, 3rd Oct,, 1824.

Dear & much respected Mr, Gillmar,

I have been very ill, but I hope to be better. I will give
myself the sweet satisfaction of writing to you a few lines
before you leave England. I rejoice to hear that you have
fixed upon proper teachers and I beg at your leisure that you
will inform me of your names, the schools where they have
been educated & the persons who have recommended them.
When I get more strength & have the aid of a scribe I sliall

' Among the obituary notices in the Oentleman's Magazine I came across
one which seems to point to this gentleman. It was to the effect that od
October 29th, 1834, George Harvey, Esq., one of the mathematical mas-
ters at Woolwich, committed suicide in Plymouth by hanging himself by
a silk handkerchief from a hook in his cellar — " verdict, mental derange-
ment." Mr. Harvey contributed studies to rarious philosophical maga-
nnee, and two of his contributions may be found in the 10th volume of the
Proceedings of the Royal Society of Edinburgh.

108 English Culiure in Virginia, [296

write to you and to Mr. Jefferson, and I shall correspond with
both of yoii unreservedly. Through an active life and [of]
nearly seventy eight [years] I have experienced the precious
advantages of steadiness & sincerity. This you would have
seen clearly if you had known me raore closely. Mr. Gilmar,
there is now a safe & open path for mutual communication
thro' the American Ambassador & you will prepare occasion-
ally for forwarding our letters. To Mr. Jefferson present not
only my good wishes but the tribute of ray respect & my con-
fidence. I shall write of him [what] Dr. Young said of
Johnson's Rasselas — ^^ It was a globe of sense.'' I use the
same words with the same approbation of Mr. Jefferson's let-
ter to me. I have corresponded with many scholars, many
philosophers, & many eminent politicians upon many subjects,
but never, and I repeat the word, never did I see a more
wise letter than that with which I was honored by Mr.
Jefferson. I shall preserve it as [here the letter is torn]
I heartily wish you a good voyage and have the honour to
subscribe myself.

Dear Sir, your faithful friend &

Respectful obedient servant,

Samuel Parr.

By a letter from Key received on September 27th, we learn
that the contracts with the four professors already engaged
were being signed. There were, of course, some hitches with
all, but both sides were anxious to be fair, and the difficulties
were soon removed. A copy of the covenant with Dr. Dun-
glison is before me, but I am not certain that it was not
altered, for it was made before any signatures had been
affixed. The first year's salary was fixed at $1,500; for the
next four years it might vary from $1,000 to $1,500, accord-
ing to the amount realized by tuition fees ; the other provis-
ions need not be cited. From Key's letter we find that both
Dr. Dunglison and himself had engaged passage from Liver-
pool on the 16th of October.

297] English Culture in Virginia. 109

On the same day, September 27th, a short note from
Dugald Stewart was received, with a letter for Mr. Jefferson,
and wishes for Gilmer's pleasant voyage.

In the meantime Dr. John Harwood, although his own
plans with regard to the University were undecided, had sug-
gested Mr. Frederick Norton, of Bristol, as a proper person
for the chair of natural philosophy ; and Gilmer had written
to him accordingly. On October 3rd, Mr. Norton wrote
to Gilmer asking for further information. I have been unable
to get any information a.s to Mr. Norton's antecedents.

About this time Mr. Gilmer received the following letter,
which requires some comment :

10 Seymour Street West.
My dear Sir

I thought I could let you go back to America without
troubling you with a letter for my brother. I could not well
dwell at length on the painful subject of my boy's state but I
have alluded to it. In case it should give pain to his affec-
tionate heart too much on my account, you may tell him that
habit & fortitude are beginning to reconcile me even to this
most terrible blow that ever befell my existence. You can
tell him how cheerful you saw me & I am habitually so — for
I think it folly to grieve at fate.

He is to be removed [to] an asylum very soon. At
present he is in so strange a state that it is painful to see
company in my own House. This circumstance has de-
barred me from the pleasure of shewing you many atten-
tions that were due to you as a mark of my sense of your
kindness. I have been much gratified however by making
your acquaintance & with best wishes for your safety &
happiness remain,

Dear Sir,

Yours very truly,

T. Campbell.

110 English Oulture in Virginia. [298

The son whose misfortune is alluded to was Thomas
Telford, named after Campbell's friend, the distinguished
engineer. The poet's grief was great, and besides his work
upon " Theodoric,'* which was published in November of
this year, he threw himself heart and soul into another
piece of work, to drive away his cares. This was the agi-
tation of a scheme for establishing a university in London.
Some such project had been in his mind since his visit to
Germany in 1820; but it was not brought prominently
forward until January 31st, 1825, at a dinner given by
Brougham.^ The matter was then pressed warmly by
Brougham, Joseph Hume, Dr. Birkbeck, and others, and
was brought to a successful issue in 1827. Now, as Camp-
bell had allowed the idea to rest for five years, I do not think
it at all improbable that Gilmer's visit, connected as it was
with a similar movement in a kindred country, had a great
deal to do with giving a fresh impetus to the scheme. Then,
too, Gilmer had been thrown into intimate relations with
Brougham and Dr. Birkbeck, and probably with Leonard
Horner, and had doubtless by his enthusiasm kindled afresh
their own natural impulses toward educational work — and
these three were prominent among the founders of the London
University. Besides there is a striking parallel in the un-
theological basis of both colleges. It is well known that this
latter institution drew back two of the professors whom Eng-
land had lent to America ; but it is more than probable that
the connection between the two universities began with Gil-
mer's visit.

But to return to our main theme. Only four professors
have so far been secured — those of natural philosophy and of
natural history remain. The latter professorship was not
filled at all in England, and the correspondence about it will
occupy us soon. The former was filled before Gilmer left

^ See the article on Campbell in the Dictionary of National Biography,
and also Beattie's Life of Campbell.

299] English Culture in Virginia. Ill

England, by the selection of Mr. Charles Bonnycastle, who
has been mentioned before. Mr. Bonnycastle was then in his
33rd year, and was engaged abroad on some government busi-
ness, the nature of which I have not learned. No letters to
or from him are preserved, although some were written ; the
whole matter seems to have been arranged between Gilmer
and Peter Barlow, after the 25th of September, when Mr.
Harvey definitely declined. Gilmer, however, seems to have
had a conversation with Bonnycastle just before he left Lon-
don. This hasty arrangement by proxy led to a slight mis-
understanding, as will be seen in the next chapter. A short
account of the Harwood correspondence will close our sketch
of Mr. Gilmer's important mission.

On the 20th of September, Dr. John Harwood, then
lecturing in Manchester, answered a letter which Gilmer had
been advised to write by Dr. Birkbeck. In this answer he
expatiates on the advantages such a new field as America
would offer a natural historian, but regrets that an engagement
to lecture before the Royal Institution will leave him un-
decided as to his plans until the following May. But he
offers a suggestion that may obviate the difficulty. He has a
brother now studying medicine in Edinburgh, who has been
a fellow lecturer with him in natural history, and who is
zealous in the cause. Why not let him keep the place warm?
He can have copies of any lectures the Doctor himself would
deliver; and if the latter decide to remain in England,
no fitter person than the brother can be found to keep the
chair, and in two countries two Harwoods can work their
way to fame. Gilmer's answer to this really well-worded
letter, has not been preserved ; but from a letter written by
Harwood on September 20th, I judge that it was not unfavor-
able. The Doctor talks of forming a nucleus for a museum
at once, and promises to look out for a professor of natural
philosophy. Then oomes a long and manly letter from Wil-
liam Harwood, the brother, offering his services. He owns to
no very extensive knowledge of mineralogy, but has a good

112 English Culture in Virginia. [300

training in chemistry, and is especially fond of zoology. He
asks sensible questions, and writes throughout in a modest
tone.

In the meantime (September 26th) John Harwood wrote,
mentioning Norton by residence but not by name, and giving
valuable information with regard to the purchase of a
museum. He also recommends his brother in warm terms.
Gilmer wrote, complaining that Harwood was not explicit
enough, although to my mind he very explicitly wished his
brother to get the place, either permanently or temporarily.
Then Dr. Harwood wrote a letter on September 30th, " re-
spectfully observing " that he could not enter into any foreign
engagement for the present, but that his brother was at liberty
to made arrangements either permanent or temporary. On
October 1st, Dr. Harwood wrote another letter, this time
concerning Norton, who would like the place, and whom he
recommended highly, observing, however, that he was by no
means a man of the world. Then on October 24th the Doc-
tor wrote to his friend, Birkbeck, and stated that William
Harwood had undertaken, at Gilmer's request, a visit to
the Isle of Wight, to see that gentleman on his way out. On
his arrival there, Gilmer informed him that so much time had
elapsed that he should prefer to leave the matter to the
Board of Visitors, unless Harwood would go out at his own
risk. Dr. Harwood himself went over to Liverpool, in
hopes of seeing Gilmer, but saw only Mr. Long. We learn
also that Mr. Norton went to the Isle of Wight to see Gilmer,
but arrived four hours too late — a sad commentary on un-
worldliness. This letter was forwarded by Dr. Birkbeck to
Gilmer, in Virginia. Next in series comes a letter dated and
endorsed November 16th, which can only mean September 16,
but which is unimportant. It may here be remarked, inci-
dentally, that in forwarding Harwood's letter. Dr. Birkbeck
spoke highly of Bonny castle, and stated that had he had any
idea that the young man was within Gilmer's reach, he would
have been his first recommendation.

301] English CuUure in Virginia. 113

Now it is not well to offer opinions when one has read only
one side of the case, and I know Mr. Gilmer to have been a
fair, honorable man who succeeded admirably in his other
negotiations, but I cannot help thinking that he did not act
in this affair of the Harwoods with his accustomed caution.
He should not have made the young man come to the Isle of
Wight and then put him off with an excuse that could not
hold. He had engaged Bonnycastle within a week and that
too without seeing him but once ; he had absolute powers,
and if he did not like young Harwood on personal acquain-
tance he should, I think, have found some other way of dis-
missing him than such an excuse. Besides if he had not
liked the young man he should not have even hinted at his
going to the United States at his own risk. But, I repeat, it
is not well to judge too hastily in such matters. Gilmer was
probably in a hurry to get back and had possibly been wearied
by the elder Har wood's importunities. If one can judge by a
letter, however, William Harwood was not the man to be
treated so summarily. The Harwood letters it should be
observed do not breathe a suspicion of any questionable treat-
ment. I alone am responsible for these criticisms and they
are the only ones I have to make on Mr. Gilmer's manage-
ment of a tedious and difficult commission.*

I have 80 far said nothing about his purchases for the
library ; and now I can only mention that he bought most of
the books from Bohn, and was much assisted by his banker,
Mr. Marx.'

* John Harwood, Esq., M. D., F. R. S., &c., died at St. Leonards on the
Sea, September 7th, 1854. I can find no obituary notice of him either in
the Gentleman's Magazine or the Athenaeum for this year.

A Wm. Harwood, M. D., was the author of a book on the "Curative
influence of the Southern Coast of England," which was both praised and
abused (O.'s M., 1828, Part 2, Supplement). I do not know whether this
was our friend or not.

' Mr. Madison will hardly seem to some a fit person to apply to for a
catalogue of theological books ; but he did make out such a list for the
University. See his writings, III, 460.

114 English OuMure in Virginia, [302

On the 5th day of October he sailed from Cowes in the
packet Crisis, bound for New York.

Thus three quarters of a century after Bishop Berkeley
had discouraged Dr. Johnson from trying to obtain English
teachers for the new King's College in New York, Mr. Jef-
ferson and Mr. Gilmer succeeded admirably in their trying
and important task.^ ,

1 Berkeley's Works (Fraser), IV, 322. Letter from Berkeley to Johnson,
Aug. 23d, 1749.

CHAPTER V.

CONCLUSION.

Thirty-five days after sailing from Cowes the packet Crisis
arrived in New York. How Gilmer fared on the voyage
will be seen from an almost too realistic letter written to
Judge Carr on the 14th of November. This letter will be
given presently. In the meantime on the 12th and 13th of
the same month two letters were sent to Mr. Jefferson. In
the first of these a list of the five professors was given and it
was stated that they would arrive in ten days from the date
of the letter. As will be seen later the hopes thus ratised in
Mr. Jefferson's breast were to be cruelly deferred. Gilmer
also states that he could not hear of a single man in England
fit for the chair of Natural History. In the second letter
Campbell is said to have been the best friend Virginia had
among all the writers of Great Britain. The letter also
suggests John Torrey of West Point as the best person in
America for the chair of Natural History. It may be men-
tioned here that President Monroe had some months since
suggested Torrey and Percival, the poet and geologist, for
chairs in the new University. We also find that Gilmer had
been a)mpelled to promise all the professors a fixed salary of
$1,500 except Dr. Blaetterraann, who, he thinks, should be
placed on the same footing with the rest. I now give por-
tions of the letter to Dabney Carr.

115

116 English Culture in Virginia. [304

New York, Nov' 14, 1824.
Most dear Friend,

Having concluded all my arrangements in England much
to my satisfaction, I thought to return with triumph to the
light & bosom of my friends. Fatal reverse of all my hopes !
here am I chained like Prometheus, after 35 days of anguish
at sea, such as man never endured. I hold sea sickness
nothing, I laughed at it, as I went over — but to have added
to it a raging & devouring fever aggravated by want of
medicine, of food, of rest, of attendance, & the continued tossing
of the " rude imperious surge," form a combination of miseries
not easily imagined, & never before, I believe, exhibited. I
am reduced to a shadow, and disordered throughout my whole
system. My liver chiefly it is thought. Among other symp-
toms, while I was in mid ocean, a horrible impostumation,
such as I supposed only accompanied the plague, in the form
of anthrax or carbuncle, appeared on my left side, low as I
was. I neglected it till it was frightful — it required lancing
— but not a man could I get to do it — some were sea sick —
others indifferent, I called one who said he was a Doctor, &
desired him to cut it open — we had no lancet, no scalpel, no
knife that was fit, & finding him a timid booby, whose hand
shook, I took with my own hand a pair of scissors I happened

to have, and laid open my own flesh We had no

caustic, & I had to apply blue stone, which was nearly the
same sort of dressing, as the burning pitch to the bare nerves
of Ravaillac — yet I am no assassin — all the way I repeated,

" Sweet are the uses of adversity, &c."

I must turn this to some account — in this world I cannot,
but I " lay the flattering unction to my soul " that he who
suffers well never suffers in vain. Such is the martyrdom I
have endured for the Old Dominion — she will never thank
me for it — but I will love & cherish her as if she did

305] English Culture in Virginia. 117

For over a month the poor fellow was confined at New
York, but he was not idle. Mr. Jefferson answered his letters
on Nov. 21st, giving an account of the University buildings
and of his endeavors to get the books and baggage of the pro-
fessors through without duty. In a note of November 22nd
he implores Gilmer not to desert them by refusing the profes-
sorship of law — this being the only thing he has to complain
of in all his agent's conduct.

On the 29th of November John Torrey ^ wrote from West
Point declining the professorship of natural history on the
ground that he was well satisfied with his present position,
but recommending Dr. John Patton Emmet, of New York,
in these words : "His talents as chemist and scholar, and
standing as a gentleman are of the first rank. I know him
well and know none before him." This recommendation
brought about an interview between Dr. Emmet and jNIr.
Gilmer, the result of which was the election of the former to
the chair which had given so much trouble. Dr. Emmet was
a son of the Irish patriot and distinguished lawyer, Thomas
Addis Emmet. Both father and son contributed to Gilmer's
comfort during his confinement, as did also John Randolph
of Roanoke, whom Gilmer had seen in England and who
passed through New York during the latter's sickness. Gil-
mer's relations with this eccentric man were always of the
pleasantest kind — a circumstance somewhat remarkable.^

At this time the young man had fully determined not to
accept the law professorship as there seemed too much likeli-
hood that, if he did accept, his health would render the position
a practical sinecure ; for he would have to have an assistant

* Torrey left We«t Point shortly after (1827) and became profeasor of
botany and chemistry in the College of Physicians and Surgeons. He
wrc3te many valuable works on lH)tany and deserves to be remembered M
haying been the instructor of Asa Gray.

' Wni. Pope, the eccentric character Injfore alluded to, once wrote Gilmer
that John Randolph had decUred him "the most intelligent and best in-
formed man of his age in Virginia '' (letter of Nov. 2nd, 1826).

118 English Culture in Virginia, [306

and he knew that the Visitors would neyer give him up after
his valuable services and the consequent injury to his consti-
tution. He therefore endeavored to sound as to the situation
that distinguished jurist, Chancellor Kent, who had accepted
a position in Columbia College, where he was to deliver the
lectures which subsequently formed the basis of his Com-
mentaries. The politics of the Chancellor were an objection,
but his reputation as a jurist would make him a desirable
acquisition. The negotiation did not go far, however, and
Gilmer had to content himself with proposing the name of
Dr. Emmet to the Visitors, cordially endorsing all that Torrey
had said about him.

In the meantime Messrs. Long and Blaettermann arrived
at New York, and after calling upon Gilmer, hastened to
Richmond, proceeding from the latter place to the University,
where they found their pavilions in readiness. It was also
ascertained that Key, Dunglison, and Bonnycastle would sail
in the Competitor direct to Norfolk.

By the 22nd of December we find Gilmer in Norfolk, stay-
ing with his friend Tazewell. On the same day Mr. Jefferson
wrote two letters to Cabell in Richmond, from the first of
which I take this extract :

" Mr. Long, professor of ancient languages, is located in his
apartments at the University. He drew, by lot, Pavilion No.
V. He appears to be a most amiable man, of fine under-
standing, well qualified for his department, and acquiring
esteem as fast as he becomes known. Indeed I have great
hopes that the whole selection will fulfill our wishes."

The second letter was of a more private nature and is given
almost entire :

MoNTiCELLO, Dec, 22, 1824.

Dear Sir, — Let the contents of this letter be known to you
and myself only. We want a professor of Ethics. Mr. Madi-
son and myself think with predilection, of George Tucker,
our member of Congress. You know him, however, better

307] English Culture in Virginia. 119

than we do. Can we get abetter? Will he serve? You
know the emoluments, and that the tenure is in fact for life,
the lodgings comfortable, the society select, <fec. If you ap-
prove of him, you may venture to propose it to him, and ask
him if he will accept. I say "you may venture,'' because
three of us could then be counted on, and we should surely
get one, if not more, or all, of the other four gentlemen.^ . . .

Mr. Cabell did sound Mr. Tucker, and after some delibera-
tions that gentleman consented to be a candidate for the chair
of ethics, to which position he was elected by the Visitors in
March, 1825. At the same time Dr. Emmet was elected to
the chair of natural history, and only the chair of law
remained unfilled. Of Mr. Tucker's acquirements much
might be said were not my space nearly exhausted. He had
already acquired a reputation as a good lawyer and a faithful
congressman, and had published some essays of value and
a novel. He subsequently did twenty years of excellent
work in his professorship, and greatly increased his reputation
as an author by his Life of Jefferson and his History of the
United States.

But my reader must not imagine that the Evil Grenius
of Protection did not croak and flap its bat-like wings when
five British subjects were imported to ruin the mind of the
American youth ; or, as the Boston Gazette put it, to disgust
them with anecdotes of "My Ijord This" and "His Grace
That." No — the following choice specimens of the journal-
ism of the day will dis|>el any such comfortable idea — they
are taken from the Richmond Enquirer of December 11th,
1824:

"Importation op Professors.

" [From the Boeton Cburier.]

" * The Richmond Enquirer informs the public, that Mr. Gil-
mer of that city who went to England in May to procure profew"

* JeffenoD-Oabell CorreqwDdenoe, piig«t 323, 324.

120 English Culture in Virginia. [308

ors for the University of Virginia has returned and that he has
been very successful in obtaining Professors, who were to sail from
London in the Trident, about the 16th of October. On this the
editor of the Connecticut Journal very properly remarks :

" ' What American can read the above notice without indigna-
tion. ^Ir. Jeflerson might as well have said that his taverns and
dormitories should not be built with American bricks and have
sent to Europe for them, as to import a group of Professors. We
wish well to his College, but must think it a pity, that an agent
should be dispatched to Europe for a suite of Professors. Mr.
Gilmer could have fully discharged his mission, with half the
trouble and expense, by a short trip to New England.'

" [From the Philadelphia Oazette.']

" ' Or, we may be permitted to add, by a still shorter trip
to Philadelphia. But because Pennsylvania does not produce
Stump-Orators and Presidents, the Virginians conclude that it
produces nothing else of value, forgetful that the first physicians,
philosophers, historians, astronomers, and printers, known in
American Annals have been citizens of our State. This sending
of a Commission to Europe, to engage professors for a new Uni-
versity, is we think one of the greatest insults the American peo-
ple have received.'

" We excuse the wit of our Boston and Philadelphia Editors,
wishing them next time a better subject on which to employ it.
It is by no means our desire to disparage the wise men of the
East or the philosophers of Philadelphia, past, present or to come.
We have had the misfortune, it is true, of producing two or three
Presidents, and some fair stump orators (not to speak of Patrick
Henry, R. H. Lee, John Randolph, or Littleton Waller Tazewell),
but we do not see the mighty sin we commit either against good
morals or good manners in looking out for the best Professors we
can obtain for our rising University — nay of sending to G. Britain
for Professors of the languages, mathematics and physics, if from
any cause whatever it was not easy to obtain them in N. England
or Pennsylvania. S. Carolina employs Dr. Cooper, has she been
censured for her judicious selection ? But no man can as well ex-
plain the motives of this visit as Mr. Jefferson himself, who in the

309] English Culture in Virginia. 121

late report to the Legislature of Virginia has anticipated and
answered, in the most appropriate manner, every exception that
has been taken to the North "»

I may remark that the case of Dr. Cooper does not at all
apply, for he had been in this country nearly 30 years, and
was not specially imported. In the same paper, however, I
find an extract from the New York American^ which repre-
sents a more liberal class of our population.

•* We have heard with pleasure of the arrival of Messrs. Long
and Blaettermann, the professors of ancient and modem lan-
guages in the University of Virginia. They are well known and
highly esteemed in England. Their talents and acquirements
will doubtless be highly advantageous to the cause of Public In-
struction in the country. The other Professors of this Institution,
Messrs. Key, Bonnycastle and Dunglison are daily expected."

In the meantime the Competitor had not put in an appear-
ance, and great was the consternation on all sides. The news-
pa|)ers gave accounts of terrific gales on the coast of England
at the very time Key and his friends were to sail. Gilmer
and Cabell were busy writing to Mr. Jefferson trying to allay
the old gentleman's fear, but greatly alarmed themselves.
Day after day passed and the date fixed upon for opening the
University (February 1st) drew near. Lying stories were set
in circulation and many predicted that the University would
never succeed after all the delay. But on January 30th a
gleam of hope came. Cabell had seen in a Norfolk paper that
the Competitor was still in Plymouth on the 6th of December,
and so had escaped the October gale. To his letter announcing
this fact Jefferson made the following reply which is interest-
ing enough to quote.

* If the New England editors had known that two of the first professor-
ships had been offered to Bowditch and Ticknor, their language would
probably have been milder ; and what are we to think of the application of
Rufus King to Mr. Drury ?
8

122 English Culture in Virginia. [310

MoNTiCELLO, February 3, 1825.

Dear Sir, — Although our professors were on the 5th of
December still in an English port, that they were safe raises
me from the dead ; for I was almost ready to give up the ship.
That was eight weeks ago, and they may therefore be daily
expected.

In most public seminaries, text books are prescribed to e^ch
of the several schools, as the norma docendi in that school ;
and this is generally done by authority of the trustees. I
should not propose this generally in our University, because,
I believe none of us are so much at the heights of science in
the several branches as to undertake this, and therefore that it
will be better left to the professors, until occasion of inter-
ference shall be given. But there is one branch in which we
are the best judges, in which heresies may be taught, of so
interesting a character to our own State, and to the United
States, as to make it a duty in us to lay down the principles
which shall be taught. It is that of government. Mr. Gilmer
being withdrawn, we know not who his successor may be.
He may be a Richmond lawyer, or one of that school of
quondam federalism, now consolidation. It is our duty to
guard against the dissemination of such principles among our
youth, and the diffusion of that poison, by a previous prescrip-
tion of the texts to be followed in their discourses ^

These books were actually chosen by Jefferson and Madison
as we learn from a letter of the latter's dated February 8th,
1825 (Writings, III, 481); but, although it would seem that
the progressive statesman had receded from his own excellent
doctrine that the present generation should not hamper pos-
terity, and although a greater than the Andover Controversy
would seem to be here in germ, when we read the list of texts
prescribed our apprehensions are abated. They consisted of

^ Jefferson-Cabell Correspondence, page 339.

311] English Culture in Virginia, 123

(1) The Declaration of Independence, (2) The Federalist, (3)
The Virginia Resolutions of '98 against the Alien and Sedi-
tion Laws " which appeared to accord with the predominating
sense of the people of the United States " ; and (4) The In-
augural Speech and Farewell Address of President Washing-
ton " as conveying political lessons of peculiar value."

On the same day that this letter was written Cabell wrote
that as Gilmer had three times declined the law chair, it might
be offered advantageously to Chancellor Tucker of Winchester.
He also proposed a very impracticable scheme which I was
surprised at so sensible a man's making, viz., to attach to the
professorship a small chancery district consisting of Albemarle
and four contiguous counties.^ N^otiations were accordingly
opened with Tucker but in vain. He was destined, however,
to fill the chair from 1840 to 1844.

In the meantime the long wished for " Competitor " arrived
at Norfolk and on Thursday evening, February 10th, Key
wrote the welcome intelligence to Gilmer, who lost no time in
informing Mr. Jefferson. Key and his companions passed
through Richmond and attracted the most favorable notice.
The battle had been won, even the capital city of the enemy
had been completely disarmed.

On the seventh day of March, 1825, the University of
Virginia was formally opened with the five foreign professors
and forty students. Professors Tucker and Emmet arrived
shortly after, and students kept coming in until on September
30th they numbered 116. The first term closed on December
15th, 1825. The professorship of law had in the meantime,
after having been refused by Mr. P. P. Barl)our and Judge
Carr, been offered to Judge Wm. A. C. Dade, of the general
court. Judge Dade seems to have been a fine lawyer and a
man of some classical attainments; but the situation did not
charm him. Accordingly Mr. Jefferson fell back upon his first
choice and wrote him an urgent letter. Gilmer's health now

> Same, page 888.

124 English Culture in Virginia. [312

seemed sufficiently restored to enable him to undertake the
work, and as he felt that the strain of public life would
not suit him in the future, he answered Mr. Jefferson's
more than flattering appeal by accepting the position. The
visitors, therefore, unanimously elected him and he looked
forward to delivering his first lecture at the beginning of the
second term. But fate decided it otherwise, his health again
broke down and he realized that this time he was disabled
forever.

Then the visitors turned to Wirt, who had been thought
of long before, but whose high position under the government
had seemed to preclude all chance of his acceptance. To
make the offer more attractive, it was resolved to create a
new office of "President of the University of Virginia'' which
should be held by Mr. Wirt, but, if he declined, should not
go into effect. This was in April, 1826. Wirt preferred to
settle in Baltimore and so the ill-fated chair was offered to
John Taylor Lomax — a lawyer of some distinction, residing
near Fredericksburg. Mr. Lomax accepted and Mr. Jeffer-
son's agony was at last over. On the 21st of April he wrote
to Cabell that Lomax had paid them a visit and charmed
them all.^

It would seem at first thought that my work is now accom-
plished and that that agreeable word "finis" is all that
remains to be written. But we have not yet taken leave of
the man whose labor this study was written to commemorate ;
and a few words as to the fortunes of those whom he brought
over, would not appear amiss.

And now briefly of the latter point.^

Mr. Key finding that the climate of Virginia did not agree

* Jefferson-Cabell Correspondence, page 377.

'My chapters in Dr. Adams' work, before referred to, are a proper sup-
plement to this study, and to them the reader is referred. Volumes III
and IV of Madison's Writings are the best original source I know of f(wr
the period from 1826-36.

313] English Culture in Virginia. 125

with him was compelled to resign in 1827 and to return to
England. There his high abilities were recognized by a
position in the newly established University of London, and
we marvel at the versatility of the man when we find that
the remainder of his long and useful life was devoted to
philology. He died in 1875, and his recently published Latin
dictionary is the latest monument to his labor.

On Mr. Key's resignation, Mr. Bonnycastle was transferred
to the chair of mathematics. This gentleman at first had
some trouble as to a bond which he was under to the British
government, and which was forfeited by his coming to Amer-
ica. A slight misunderstanding arose between Gilmer and
himself owing to this fact and to the hasty drawing up of the
contract between them. But mutual explanations happily
settled the matter. Mr. Bonnycastle held the chair of mathe-
matics until his death in 1840, and was, I believe, the first in
this country to introduce the use of the ratio method of the
trigonometrical functions.

Mr. Long received a call to the London University in 1828,
but he left a worthy representative behind him. In my chap-
ter in Dr. Adams' work, I give a sketch of the work of Dr.
Gressner Harrison, whom Long nominated as his successor.
That sketch, taken mainly from an address by the Rev. John
A. Broadus, cannot be repeated here. It is sufficient to say
that Long kept Dr. Harrison posted on all the latest German
discoveries in philology, and that the students of the Univer-
sity of Virginia were familiar with the labors of Bopp before
that great man was fully recognized in Germany itself. Of
Mr. I^)ng'8 subsequent labors for English education, I surely
need not speak.

With respect to Dr. Blaettermann, I have been singularly
unfortunate in collecting information. The few notices I have
Been of him, speak highly of his attainments, but are not so
pleasant in other respects. Gilmer seems to have seen what
he calls a "puff" about him in one of tlie English pa|)crs,

126 English Culture in Virginia. [314

and Dr. Gessner Harrison wrote in a kindly way of him in
Duyckinck's Cyclopaedia.^

Dri Robley Dunglison's name is so well known in this
country that J need only say that he remained eight years at
the University, and laid the foundation of what has proved to
be a remarkably successful medical school. Mr. Jefferson, in
his last illness, trusted entirely to his skill. His work in
medical literature is known even to general readers. The
subsequent careers of the native professors are foreign to my
purpose, and it only remains for us to take our leave of the
man we have learnt to know so well, Francis Walker Gilmer.

The tale is soon told ; and being sad, this is surely best.
After returning from New York, he was thrown back by the
carelessness of a servant, who left a window open by his bed
all night. As he was naturally delicate, his health was
rapidly undermined. He could attend to little business, and
left Richmond for Albemarle, from whence he went to one of
the Virginia Springs. The little business he could attend to
was of a painful nature, being connected with the ruined
fortunes of his old friend, ex-governor Thomas Mann Ran-
dolph. The trip to the Springs buoyed him up, and he
accepted the law professorship, as we have seen. But his
disorders becoming worse, he was compelled to resign, and
after a lingering illness of many weeks, he died at the resi-
dence of one of his relatives in Albemarle, on the 25th
of February, 1826. One of his last acts was to leave a sum
of money for the purchase of a communion service for the
Episcopal Church in Charlottesville. He passed away in the
arms of his brother Peachy, who has recorded in the volume
before me that ** he died in the faith of Jesus Christ." Upon
the last letter which he received from his dear friend, Wm.
Wirt, Gilmer wrote these few lines in pencil — the last writing
he ever did : " Dear & beloved Mr. W. — Nothing but a last

^ Dr. Adams cites an article in the Southern Literary Messenger for Janu-
ary, 1842, which throws light on the characters of the early professors.

316] English Culture in Virginia. 127

hope could have induced me to take such a liberty with you.*
I have scarcely any hope of recovering & was but a day or
two ago leaving you my last souvenir. I have not written to
you because I love & admire you & am too low to use
my own hand with convenience. Farewell to you & to all a
family I have esteemed so well."

I promised to give a detailed account of Mr. Gilmer's lite-
rary work, but I now find that from want of space I cannot
keep that promise. Perhaps it is as well that I should not;
the world has forgotten what he wrote — I would fain hope
that it will not forget what he did. There are MS. essays
extant on "The causes of the ascent of vapour" and "Certain
phenomena of vision," which it will be best to leave undis-
turbed, although they certainly show an original and inquir-
ing mind. In the Atialedic Magazine for July, 1818, will be
found an interesting account of a visit paid to the Cherokees
in Tennessee, probably in company with Mr. Corr^, but the
modern reader would be apt to think that the article dealt
more with the Greeks and Romans than was necessary. The
essay on the Natural Bridge, which was translated by Pic-
tet, appeared, I believe, in the XVth volume of the same
magazine. This I have not seen. In January, 1828, Field-
ing Lucas, Jun., of Baltimore, issued a small volume of
"Sketches, Essays and Translations, by the late Francis
Walker Gilmer, of Virginia," Mr. Wirt contributing a
preface. This contained the revised " Sketches of American
Orators," by far, it seems to me, his best performance, and
containing some good criticism, " A vindication of the laws
limiting the rate of interest on loans," an answer to Bentliam,
which, though it shows a great deal of legal learning, inclines
too much to reasoning by analogy, and hardly settles the mat-
ter ; and certain translations from the French economists lent
him by Du Pont de Nemours. These, with the volume of

'That is — using Wirt's own letter for his reply.

128 JEnglish Culture in Virginia. [316

reports previously mentioned, constitute all of Gilmer's
writings with which I am acquainted.^

His learning was certainly curious and enormous. He
seems to have been a fine lawyer, perhaps the most learned
of his day in Virginia ; it can hardly be said that he was a
philosophic jurist. He was also a good classical scholar and
botanist — something of a philologian and physical experi-
menter— and personally one of the most agreeable of com-
panions. There are many things in these letters which show
a delicate wit and some of the turns of his mind are as
original as they are entertaining. This may serve as a sam-
ple. Speaking of Wirt's success he says that he has heard
that Wirt created as much astonishment in Washington as
the Duke of Buckingham did in Madrid, "there having been
no such comet in that hemisphere." ^

How Mr. Gilmer was regarded by his contemporaries may
be seen from the following letter :

Washington, Dec. 27, 1827.
My dear Sir,

I am extremely sensible to your kind attention & highly
obliged by it. Everything connected with my late friend,
your dear brother, is dear to me. I am now probably as near
my journey's end as he was on his return from that ill fated
voyage to England, from which I date the disease that so

^I have seen it stated that he wrote some of the numbers of the "Old
Bachelor," and several articles in the Virginia Evangelical and Literary
Magazine, of which his friend. Dr. Rice, was editor. Both of these statements
are probably true ; but no mention is made of the matter in the Gilmer
letters ; nor is he stated to have been a contributor in the obituary notice
of him in the ninth volume of the aforesaid magazine.

^ I also find a characteristic sentence d propos of the strained relations
between Wirt and Pinckney (relations more strained than Mr. Kennedy's
tender heart would allow him to tell us). " You may never again have a
chance of shivering his spear, which is not of mountain ash like that of
Achilles, but, as Randolph said of his own, rather of the tobacco stick order,
though pointed up like a small sword."

317] English Ouliure in Virginia. 129

cruelly robbed us of him. Whether we shall be permitted
to recognize our friends in a future world is beyond our ken
— but the belief is so consonant with the goodness of our
Creator & so consolatory to the heart of man that I would
fain indulge in it.

Accept, my dear Sir, my best wishes and respects —
Your obliged
To J. R. of Roanoke.

Peachy R. Gilmer Esq.

Both Mr. Randolph and Mr. Wirt were applied to for an
epitaph ; but neither felt equal to the task. The letters from
which the foregoing was taken and which have been the basis
of this study were collected by Mr. Peachy Gilmer in 1833
and bound in two large volumes for the use of his descend-
ants. Mr. Wirt was very loth to part with Gilmer^s letter
to him, reserving at the last the letter written from Shake-
speare's house and the leaf of Kenil worth ivy which accom-
panied it.

Francis Walker Gilmer, Virginia's benefactor, lies buried
at his old family seat. Pen Park, in Albemarle County. Over
his remains is a plain stone recording the dates of his birth
and death and preserving the following epitaph, written by
himself, and almost as sad as Swift's —

" Pray, stranger, allow one who never had peaee while he lived,

The sad Immunities of the (irave,

Silence and Repose."

Erratum.

For ** gigomaniae" on page 9 reatl gig-maniae. The quotation marks are
dropped because the writer is doubtful whether Carlyle ever used the
word — ** gigmaniiiff" which oocars in the eesay on fioewell's Life, probably
occasioned the misapprehension. Hut reviewing bis work, after the lapse
of nearly a year, the writer finds himself wondering how Carlyle and so
many extraneous subjects got mixed up with what he intended to make the
simple record of a good man's life.

APPENDIX.

It seems well to preserve here three of the letters which
Gilmer received from Greorge Ticknor. In a few respects
they appear to supplement those, relating to the same period,
which have already delighted the world in that charming
book — "The Life and Letters of George Ticknor." Good
letters are too rare to be carelessly put aside, and I feel
convinced that my readers will thank me for acting upon
this conviction and presenting these.

GoTTiNGEN King" of Hanover.
May 31 8<, 1816.

I am rejoiced to find my Dear Gilmer by the letter you
sent by Mr. TerrelP that you have not forgotten me, though
you have not heard from me. That this has been the case,
however is no fault of mine. Immediately after receiving
your letter of last May, I wrote to America to know where I
should address to you, and since then I have made the same
inquiry of Mr. Jefferson and in Paris but could learn nothing
of you, until day before yesterday, when your very welcome
letter came to tell me all I hoped to hear except that you had
renounced your intention of coming to Europe. In this
respect you have changed your plans ; and as you intend to
be a lawyer, I rather think you have done wisely. I too

The joong Virginian preriouBly referred ta

131

132 Appendix. [320

have changed my plans, I have renounced the law altogether,
and determined to prolong my stay in Europe, that I may
do something towards making myself a scholar, and perhaps
you will smile, when I add that my determining motive to
this decision, of which I have long thought, was the admirable
means and facilities and inducements to study offered by a
German University. But however you may smile on the
other side of the Atlantic, you would if you were on this, do
just as I have done. My inclination is entirely & exclusively
to literature — the only question with me, therefore, was, where
I could best fit myself to pursue haud passibus acquis its
future progress & improvement. In England I found that
the vigorous spirit of youth was already fled though to be
sure in its place I found a green and honourable old age — in
France — where literature, its progress & success was always
much more intimately connected with the court than it ever
was in any other age or country if Rome under Augustus be
excepted, — in France it has long been the sport of political
revolutions & seems at last to be buried amidst the ruins of
national independence — and in the S{outh) of Europe, in
Portugal, Spain, and Italy centuries have passed over its
grave. — In Germany, however, where the spirit of letters first
began to be felt a little more than half a century ago, all is
still new & young, and the workings of this untried spirit
starting forth in fresh strength, & with all the advantages
which the labour and experience of other nations can give it
are truly astonishing. In America, indeed, we have but little
of these things, for our knowledge of all Europe is either
derived from the French, whose totally different manners, &
language & character prevents them from even conceiving
those of Germany, or from England, whose ancient prejudices
against every thing continental as yet prevent them from
receiving as it deserves a kindred literature. Still, however,
the English scholars have found out that the Germans are far
before them in the knowledge of antiquity, so that if you
look into an English Treatise on Bibliography you will find

321] Appendix, 133

nine tenths of the best editions of the classics to be Grerman ;
— and Mad. de Stael has told the world, tho' to be sure, very
imperfectly and unworthily, what a genial & original litera-
ture has sprung up in Germany within the last 50 years like
a volcano from the wastes & depths of the ocean. — But it is
not what they have already done, oY* what they are at this
moment doing, astonishing as both are, which makes me hope
so much from these Germans. It is the free, & philosphical
spirit with which they do it — the contempt of all ancient
forms considered as such, and the exemption from all preju-
dice— above all, the unwearied activity with which they push
forward, and the high objects they propose to themselves — it
is this, that makes me feel sure, Germany is soon to leave all
the rest of the world very far behind in the course of improve-
ment— and it was this that determined me to remain here
rather than to pursue my studies in countries where this high
spirit has faded away. —

You may perhaps smile at all this, my dear Gilmer, and
think that my reasons for spending above a year and a half
in Gottingen are as bad as the revolution itself. If we live
twenty years, however, <fe then meet one another, you will be
prepared to tell me I have done right, for though the political
machine may at last grind Germany to powder, yet I am
satisfied that the spirit which was not extinguished or even
repressed by the French Usurpation will not be stopj>ed in its
career by any revolution that is likely to happen before that
time, and in twenty years German literature, & science, and
learning will stand higher than those of any other modern
nation. Mr. Terrel, of course, I have not yet seen, but in a
little more than a year I shall, I suppose, find him in Ger-
many ; <fe if I can there do him any service, you may be
certain, that I shall not be found unfaitliful to the remem-
brance of the many pleasant hours passed with you <fe owed
to you in Philadelphia and Washington. Farewell. I will
write to you soon again <& you must write soon to me. Send
your letters to Bodon care of E. Ticknor & they will certainly

134 Appendix, [322

reach me. Where is Winchester? Tell me all about it & about
your situation. If it is near Monticello, remember me when
you are there, & tell Mr. Jefferson that my only regret in
determining to stay here is that I cannot have the pleasure of
purchasing his books in Paris. I hope, however, as I have
told him, still to find some way of being useful to him in
Europe.

Yrs truly, Geoege Ticknor.

Francis W. Gilmer, Esq.,

Winchester^ Virg,
Care of John Vaughan, Esq.,

Philadelphia.

II.

GoTTiNGEN Jan. 30. 1817.

Your very welcome letter of Oct. 11. 1816. my dear
Gilmer reached me a few days since and I thank you for it
a thousand times. — It afforded me pleasure in every part
except that in which you speak of your feeble health. My
dear Gilmer, take care of yourself. I say this from an
experience, which makes my warning solemn, and which
should make it efficient. — One of the very first things that
struck me on coming to Europe was, that their men of letters
& professions here live much longer and enjoy lively & active
faculties much later than in America.^ And what is the
reason? Not because our students labour harder — not because
they exercise less — not because they smoke more or for any
other of the twenty frivolous reasons that are given by anxious
friends among us, for these are all disproved by the /ac< here,
that a man of letters works from 12 to 16 hours a day —

'Here he adds on the side of the page — I have reduced this to an
arithmetical fact by calculating the length of the lives of men of letters in
Eng.(land) France, Spain, Italy, <& Germany.

323] Appendix, 135

exercises not at all — smokes three fourths of his time <fec &c.
— The reason is, that every man must have habits suited to
his occupations, whereas our men of letters are so few that
they are obliged to adopt the habits of persons about them
whose occupations are utterly different. Thus we get up late
in the moraing because breakfast is not to be had early with
convenience to the family — we dine late because our dinner
hour must conform to that of men of business — we give the
evening to the world because it is the fashion — and thus
having passed the whole day under the constraint of others,
we steal half the solitude & silence of the night to repair our
loss. Under the influence of such habits our men of letters
in America seldom attain their fortieth year & often fall vic-
tims in the very threshold of active life. The great faults
lie in the distribution of time and of meals. — A student should
certainly rise early, not only because Sir John Sinclair's Tables
show that early risers are always (caderis paribus) the longest
livers but because anyone who has made the experiment will
tell you that the morning is the best time for labour. It has
the advantages of silence & solitude for which we use the
evening and the great additional ones that mind & body are
then refreshed & quickened for exertion. In the nature of
things therefore, the heaviest studies, whatever they may be,
shoukl be the first in the day, & as far as it is possible, I
would have their weight diminished in each portion of time
until they cease, because by the fatigue of exercise, the faculties
become continually less capable of easy <fe dexterous exertion
without being compelled to it by excitement which afterwards
produces languor. Then as to meals — I would not eat a
hearty American breakfast on first rising, for that is the very
time, when as the body is already strengthened & restored by
sleep, it needs least of all the excitement of hearty food.
Still less is the intrusion of craving hunger to be desired. —
For the first seven or eight hours, after rising therefore, I
have observed it best to keep the appetite merely still by
eating perhaps twioe some very light food — bread & butter &

136 Appendix. [324

a cup of coffee &c — By that time the strength needs assistance
& the principal meal in the day should be made, which with
light food once or at most twice afterwards is sufficient until
'' Nature's grand restorer " comes to fit mind & body for new
exertions. Observe, I pray you, that the two last hours in
the day should not as with us, be the hours chosen for the
severest labour, but should as much as possible, be hours of
very light reading, or absolute amusement & idleness for two
reasons, because the mind & body are then weary whether we
permit ourselves to feel it or not and because the excitement
of hard study just before going to bed prevents us from
enjoying " the sweet, the innocent sleep '' which is so indis-
pensable to refresh the faculties. — Now, my dear Gilmer, do
not say all this is theory & whim, foi I know it — I feel it to
be fact. In America my health faded under eight, nine &
ten hours study in a day and I have lived in Gottingen a
year & an half and grown stronger on studying more than
twelve hours a day. I rise at five o'clock in the morning
and my servant brings me immediately a cup of coffee & a
piece of bread — at IX I eat some bread and butter — at I I
dine — between VII & VIII in the evening I take some light
supper & at X go faithfully to bed & sleep the sleep that
knows no waking. — I do not beg you to do the same, for I
know not how much your health is reduced ; but when you
have applied the needful means and restored yourself to your
usual strength — then I do beseech you to adopt this or some
other system equally simple, strict and rational and do not
fear the result. — I speak on this subject with an earnestness
uncommon to me, for I have more than common reasons. —
I have lost many friends though I am still young — some
whose talents and acquirements would, in riper years, have
given a new character to letters among us, and now that I live
in the midst of men who have grown old under labour which
always seemed to me without the limits of human strength
and have compared the annals of literature in other countries
with its condition here, I can look back and see how gradually

325] Ajypefndix. 137

and surely the health and lives of nearly every one of these
friends were destroyed by their conformity to the habits of
the society in which they lived — by the inversion of their day
in study and in meals — & in short, by attempting to live at
once like students & like men whose occupations are anytliing
but intellectual — Beware, then, of this, my dear Gilmer — The
world expects a great deal from your talents and you can
easily fulfill these expectations, if you will but preserve your
health by accomodating your habits to the nature of your
occupations.

When I began, I am sure, I intended to have said but a
word on this subject. — You will not, however, mistake my
reason. If I valued your health less, I should be less anxious
to have you preserve it & if I had not placed a portion of my
happiness on the continuance of your life & did not know that
you are one who can fill so much of the chasm in our intel-
lectual state, I should not have been betrayed beyond a letter's
limit on a subject which after all hardly comes within the
rubricks of correspondence.

You inquire after works on Jurisprudence and on Political
Economy. — On the last there is very little in German Authors
& what there is of good, is founded on Adam Smith & Burke.
This is the consequence of their miserable political situation,
divided into little independent Principalities, which makes all
their political interests little & insignificant & thus prevents
liberal general discussions on great interests & questions. —
On Jurisprudence they have books to confusion & satiety;
but few, I apprehend, that would much interest an American
Lawyer, however extensive he makes his horizon, unless it be
good histories & commentaries on the Roman Law, in which,
however, the present state of its practice in Germany is, again,
the chief point kept in view. — If you would like any of these
(the best are in German not Latin) I can procure them for
you through a friend who will pass the next summer here,
though I shall not myself — while at the same time, if you
should like anything from France or Italy I will gladly serve

138 Appendix, [326

you in person as I shall divide the year that begins in May
between them. Command me I pray you without reserve,
for besides the pleasure I should feel in serving you, I feel a
gratification always in sending home good books, for I know
I can in no way so directly & efficiently serve the interests of
letters in my native country.

When you write to Monticello or visit there, I pray you
that I may be remembered, for out of my own home I know
not where I have passed a few days so pleasantly. — Remem-
ber me, too, yourself — write to me often directing your letters
as before care of E. Tinckor Boston — & in your next tell me
your health is better, if you would tell me what will most
please me. — Yrs truly Geo. Ticknor.

Addressed
Francis W. Gilmer, Esq.,

Winchester ( Virg.)
Care of

John Vaughan Esq.

Endorsed — Forwarded by J.
V. who having no letter
himself wishes to learn some-
thing of the traveller.

Philadelphia, Phil. April 26'^ 1817

III.

Rome Nov. 25. 1817.

Your letter of May 2d., my dear Gilmer, reached me in
Paris three months ago, since which I have, until lately, been
in such constant movement that I have been able to write to
nobody except to my own family. I thank you for it, how-
ever, with a gratitude as warm as if I had been able to
answer it the same week I received it, and pray you no less
earnestly to continue me the favor of your correspondence
than if T had been able to do more to merit it. What grieves
me the most, however, is the affair of your Books. You
desire me to procure for you several works on law, literature
&c but desire me first to consult with Mr. Terrel to know
whether he had not already purchased them. This letter I

327] Appendix. 139

received only six clays before I was obliged to leave Paris,
and, of course, all consultation with him was impossible. I,
however, did the next best thing, it seemed to me, I could, —
I took the letter to Geneva — added to Mr. Terrel's list the
books I did not find on it, for, on inquiry, I learned he, too,
had been able to do nothing, — and gave him the address of
the De Bures Booksellers, who, as they have twice sent Books
to Mr. Jefferson & often to other Persons in America, will no
doubt be able to send yours safely. Indeed, I trust, they
have by this time reached you ; and this is ray only consola-
tion when I think of them ; for nothing gives me so much
pleasure as to do precisely this sort of service to my friends ;
because I know how delightful and difficult it is for them to
receive good books from Europe and how much more useful
a service I render to my country by sending such than I
can ever render in any other way. You will have your books
I doubt not, but I should rather you would have had them
through me. —

In Geneva, I saw a good deal of Mr. Terrel. I wish, we
had a great many more young men like him in Europe, — for
he is improving his time, I am persuaded, remarkably well,
instead of losing it and worse than losing it, as ninety nine
out of the hundred who come here, do. He is destined, I
presume, by the course of studies he talked to me about, to be
a Politician and though that is a kind of trade for which I
have little respect in any country, I am ghul he seems to be
learning its elements with such enlarged & philosophical
views; and especially that he mingles with it no small por-
tions of physical science & literature. The old adage may be
true in Euroj^e respecting learning, — that it is better to culti-
vate a Province than to conquer an Empire — but really for an
American politician and for any one engaged in the liberal
administration of a free government, a little of that equivocal
information that we call General Knowledge is absolutely
indispensable and will prevent him from doing and saying
a thousand of the foolish things our Politicians do <& say

140 Appendix. [328

so often. Terrel, however, pursues his studies, as the pro-
fessors told me[,] in such a manner, that all his important
knowledge will really be thorough and, what it gave me no
less pleasure to remark, he has so lived among the persons,
with whom he has been intimately connected at Geneva, as to
gain not only their respect but their affection, and confidence.
Since leaving Geneva two months ago, my whole journey
has been mere Poetry ; and I have truly enjoyed myself more
in this short space than in all the time that preceded it, since
I lefl home. The Plains of Lombardy are the Garden of
Europe and the world. When this phrase is applied elsewhere,
I know very well how to interpret it and what qualifications
are to be made ; but when I recollect the waste of fertility
formed by the bed of the Po & its tributary waters — the
bright verdue of the fields — the luxuriant abundance of the
harvests — the several parcels of land marked by fanciful
copses of trees — & the whole united by the graceful festoons
of the vines, hanging with purple & heavy with the wealth
of autumn — while everywhere about me were the frolicks and
gaiety of the vintage, it seems to me as if I had been in fairy
land or amidst the unmingled beauties of the primitive cre-
ation,

"for nature here
"Wantoned as in her prime, and played at will
Her virgin fancies, pouring forth more sweet
Wild above rule or art, enormous bliss.^

And then, too, as soon as as you have passed the Apennines,
you come upon the very classical soil of Roman literature and
history and every step you take is marked by some monument
that bears witness to their glories. This continues until you
arrive, twenty five miles before you reach Rome, at the last
village and enter upon the unalleviated desolation of the Cam-
pagna. I cannot express to you the secret horror I felt while
passing over this mysterious waste, which tells such a long

^ Here a strange hand has inserted P. Le. B. V. v. 294.

329] Appendix. 141

tale to the feelings and the imagination or how glad I felt, as
if I had awaked from a dreadful dream, when turning sud-
denly round a projecting height of Monte Mario, at whose
feet the Tiber winds in sullen majesty along, Rome with its
seven hills and all its towers & turrets & Pinnacles — with the
castle of St. Angelo and the Dome of St. Peters — Rome in all
the solemnity & splendor of the Eternal City burst at once

upon my view — But, my dear G , if I begin thus to tell

you of all my (?) in my travel's history, I shall never stop.

Farewell, then ; and remember me always and write to me
often. — Remember me to Mr. JefiPerson with great respect,
when you see him or write to him and believe me yours very
sincerely

Geo. Ticknor.

My address remains always the same — E. Ticknor, Boston. —

VII-VIII-IX

THE RIVER TOWNS

OP

CONNECTICUT.

JOHNS HOPKINS UNIVERSITY STUDIES

N

Historical and Political Science

HERBERT B. ADAMS, Editor

History is past Politics and Politics present History.— Prwrnan

SEVENTH SERIES

VII-VIII-IX

THE EIVEE TOWNS

OP

CONNECTICUT

A Study of Wethersfield, Hartford, and Windsor

By CHARLES M. ANDREWS

FelUm in JTiitory, 1888-9, Jolmt Hopkint University

BALTXMOBB

PTBLICATION AORNCY OF THB ^OHMI HOPKniB VMITKinTT

PCBLIRIIBO MONTHLY

July, August, September, 1M9

COPYBIOHT, 1889, BY N. MUBBAY.

ISAAC PBIEDENWALD, PBINTEB,
BALTIMOBE.

CONTENTS.

I. EARLY SETTLEMBNTS. page

Dutch and English 5

The FoRKRUNNBRs. Oldham AND OTHER Traders 9

Uneasiness at the Bay 12

Settlement of Wethbrsfield, 1634 18

Plymouth AND Dorchester. The Lord's Waste 17

Hartford. A Hard Winter 19

Connecticut Plantation 28

The Outpouring 24

Lessening of Emigration 25

Massachusetts and Connecticut 27

The Sovereign People 29

The Historic Town (Note) 30

n. THE LAND SYSTEM.

Original Purchase 32

Grants by General Court 36

Early Town Allotments 42

Individual Grants 48

Later General Divisions 55

Proprietors' Commons 63

Common Meadow 68

Alienation of Land 71

Evolution of New Towns 75

in. THE TOWNS AND THE PEOPLE.

Freemen, Inhabitants, Householders, Proprietors 82

Growth of the Official System 92

Townsmen 104

Constables 110

Town Meetings 112

Rates and Pines lit

TowH AND Colony. .

THE RIVER TOWNS OF CONNECTICUT.

I.

EARLY SETTLEMENTS.

The Dutch and English.

The spirit of trade inherent in the Teutonic life, and given
broader and newer fields by contact with an unopened
country, led to the first and more isolated settlements in
the Connecticut valley. The English sense and mother-wit,
sharpened on the Dutch grindstone, laid the foundation for
the future Yankee shrewdness, so proverbial in all New Eng-
land, and peculiarly so in the land of steady habits. This
land, " excellently watered and liberal to the husbandman,"
was, up to 1632, chiefly conspicuous for its hemp, beaver, and
petty Indian tribes. It lay, almost unknown, fairly between
the settlements of the Dutch at New Amsterdam and Fort
Orange, and of the English at Plymouth and Massachusetts
Bay, and offered a tempting field for the first quarrel between
the kindred nations. The same causes, the occupying of the
vantage-ground, and the natural jealousy aroused by mutual
successes, were at work here, as a hundred years later with
the French in the larger territory of the Ohio ; and here, as

The writer wishes to express his indebtedness, in the preparation of this
monograph, to Judge S. W. Adams, of Hartford, whose previous labors in
the same field have been of the greatest service ; to Miss Mary K. Talcott,
of Hartford, who has pUced many valuable notes at his dis{x>sal and has
read a considerable portion of the MS., and to the town clerks of the
several towns, Mpecially Mr. Albert Qalpin, of Wethersfleld.

6 ITie River Towns of Connecticut.

there, the English displayed the greater diplomacy and covert
determination. As elsewhere, the first discoveries were made
by another nation ; but the same prowess which brought about
the greater final result in the settlement of America, led to
the final occupation of this disputed territory by English
communities and the reaping of its fruits by English hands.
It was a bloodless victory, and the issue, though long debated,
was finally decided by the weight of numbers and the
tenacity of the English nature. The Dutch were merely
traders with the Indians, while the English were wanderers
seeking a permanent home.^

Until the meeting of the forerunners of each nation upon
the banks of the Connecticut river, the relations had been
eminently peaceful, and the Dutch had congratulated by let-
ters and messengers the colonists of Plymouth on their pros-
perous and praiseworthy undertaking, and had offered to trade
with them as honored good friends and neighbors. On the
departure of De Brasieres from Plymouth, after his visit in
1627, Governor Bradford addressed a letter to Minuit, the
Dutch governor, cautioning him against allowing his people
either to settle where they had no title or to extend their trade
too near the English plantation. In the early days of their
peaceful relations the Dutch had often recommended the Fresh
Kiver, " which is known by the name of Conightecute River,"
as offering peculiar advantages for plantation and trade,
which information was treasured up for future use.

About this time the condition of Indian affairs in the valley
was bringing the question of settlement more definitely to a
head. The invading Pequots, who, after their retreat before
the Mohawks from the Hudson river, had passed along the
Connecticut coast and conquered the shore tribes, now made
war on the weakly united Indians living to the north on both
sides of the Connecticut river. A body of these conquered

'Dexter's New Netherland and New England, New Haven Hist. Coll.
Ill, pp. 443-469. Hazard, State Papers, II, containing the correspond-
ence, 1644-1654, particularly pp. 212-218 and pp. 262-267.

Early Selilements, 7

Indians, banished from their own hunting grounds, made their
way to the Plymouth colony, and endeavored to rouse the
interests of the English in their behalf by extolling the advan-
tages of the river for trade. This tale, containing two points
for themselves and one for the English, was often repeated, and
as the time was opportune for the latter — as they had on hand
a surplus of commodities and a need for greater profits to
meet their engagements — the settlers determined to explore
for themselves the region recommended by the Indians. The
expectations were not fully realized, however, for, though they
found it, as Bradford says, " a fine place," yet trade was dull.
But it might be stimulated, and the Pilgrims, with always a
keen eye, recognized the latent truth of the Indians' report,
and planned to build a trading house and to invite their
fellow-colonists at the Bay to share in the advantages. In
the meantime, the Indians, not satisfied with the conservative
policy of the Plymouth people, had appealed to the other
colonists. In 1631 a sagamore at Boston with two com-
panions had proposed to the English there to come and plant
the country, with the unexpressed but evident desire that they
should assist them to recover their lost possessions. " The
governor entertained them at dinner, but would send none
with them," and nothing was done in compliance with their
request. During this episode, the men at Plymouth had
taken action and had sent a number of men to spy out the
land. Among these was Mr. Winslow, the governor, " whoe
descouvered the fresh river when the Duch had neither trading
house nor any pretence to a foot of land there."^ In 1633,
partly in consequence of the knowledge already gained and
partly because of his standing in the colony, he, with !Mr.
Bradford, formed the commission which went to the Bay to
confer regarding a partnership in the hemp and beaver trade.
This conference was without result, for the independent men
of Boston, wanting all or nothing, refused any couperation,

> Hazard, State Papers, II, p. 219.

8 The River Towns of Connecticut

e\'idently thinking to thus discourage an enterprise the advan-
tages of which they must have foreseen. The reasons given
for this attitude are not in harmony with their spirit and
courage tlius far shown, viz. fear of warlike Indians, ice and
swift currents, shallowness of the river, and lack of trading
goods. Plymouth, however, was in earnest and prepared to
carry out what was already determined upon, and thus its
colonists were destined to be the "first English that both
discovered the place and built in the same."

By this time the Dutch had waked up. On the 8th of
June, 1633, a month before the above negotiations, they had
purchased from the Pequots, lands on the river where Hart-
ford now stands. On hearing of the plans of the Plymouth
colonists, they set about the completion on these lands of a
" slight forte,'' said to have been begun ten years before,^ and
equipped it with two small cannon and a force of men, prob-
ably few in numbers. This fort they called the " Good
Hope," and with this military foundation they threatened to
stop in their progress the stout gentry and yeomanry of
England. But the fatal day for the Dutch had arrived, and
their control in the Connecticut valley was nearing its end.
Much as we may decry the high-handed manner with which
the English treated their claims, based on a perfectly legal
grant (as grants were then made) to the West India Conipany
by the States General of Holland, we must confess it to our
liking that matters were never allowed, through a firmer
establishment of the Dutch in Connecticut, to approach a
condition such as to require a resort to arms for their settle-
ment.

The bark dispatched by the colony of Plymouth had a
double danger to contend with. Having espoused the cause
of the original Indians against the Pequots, they had gained
the enmity of that powerful tribe, which was not likely to be

'Mr. Savage doubts this (Winthrop's Journal, p. 113, note 1), and
the Dutch give the date as 1633 in their complaint.

Early Settlements, 9

appeased by the fact that, according to the understood bargain,
they bore with them in their craft Attawanott and other
banished sachems, for reinstatement. Holmes, the Pilgrim
captain, sailed up the river and passed safely the Dutch fort.
The threats of its builders were as smoke without ball, though
from behind its slender earthwork the garrison threatened
and blustered. The resolute Holmes declared he had a com-
mission from the Governor of Plymouth, and where that
commission bade him go he was going, and go he did. He
bought land of the sachems he carried with him, landed with
a picked garrison, put up the ready-made frame-house pre-
pared at Plymouth, sent the vessel home, and had his house
well surrounded with a palisade before the Dutch could take
any definite action. This was Saxon pluck ; but if herein
the Plymouth men showed themselves as wise as serpents,
they afterwards displayed the ability of being as harmless as
doves.

But there was still to follow another exhibition of Dutch
bluster. Seventy men, girt about with all the panoply of war
and with colors flying, appeared before the sturdy little trading
house at the mouth of the Farmington. They marched up,
but, fearing to shed blood, consented to a parley and withdrew.
For the second time they learned that the English were not
to be frightened away, and they apparently cared too much
for their precious lives to try the ordeal of battle.

The Forerunners, Oldham and Other Traders.

Hartford and Windsor had each now its military strong-
hold, of which we have still a survival in the names " Dutch
Point " and " Plymouth Meadow." But as yet without other
than Indian inhabitants were the wide-stretching lowlands
of Wethersfield. Here the great river flanking the plain on
the east, and bending its course at the northern extremity of
the great meadow, formed a double curve, whose upper arc
cutting deeply into the gently sloping ridge which formed the
site for the future town, again turned abruptly northward

10 The River Tonms of Connecticut.

toward the forts of the Dutch and English. Up to 1633 no
white man had set foot on these tempting fields. Adrian
Blok, when in 1614 he explored the river as far as Hartford,
saw there only Indian villages belonging to the Sequins; the
later Dutch adventurers were traders, not agriculturists, and
they sailed past the fruitful soil for a spot better capable of
defense ; Holmes had too definite a plan in his mind and too
many other things to think of to be allured from the express
commands of the Governor of Plymouth to go and settle
above the Dutch, so that it was left for a restless English
trader to first appreciate the possibilities of this quiet Indian
valley. John Oldham, for many years a thorn in the flesh
for the strait-laced colonists, came from England in the Anne
in 1623 ; he was expelled from Plymouth as an intelligencer
and creator of faction in 1624; was at Nantasket until the
following year, when he returned to Plymouth without per-
mission ; again misbehaving himself, he was deliberately
thumped on the breech out again, and went to Virginia, where
through the agency of a serious sickness he reformed, acknowl-
edged the hand of God to be upon him, and came back to
Massachusetts Bay to live a respectable life. In 1631 he
became a freeman of the colony, the privilege only of church
members, and in 1632 owned a house in Watertown. This was
the man who, early in September, 1633, started out from the
Bay with John Hall and two other companions to trade in
Connecticut. Plunging boldly into the wilderness, so soon
to be made historic by a more famous emigration, they pur-
sued a winding itinerary, in order to take advantage of Indian
villages where they might lodge at night. On reaching the
valley they were hospitably received by the sachem, possibly
the one who had already visited Boston, and on returning,
carried back to that colony beaver, hemp, and black lead.
Regarding the southernmost point reached by Oldham we
have no information. The distance to Connecticut was
reckoned by him as one hundred and sixty miles. Allowing
for the necessary windings incident to a journey through a

Early Settlements, 11

primeval wilderness, and supposing him to have reached for
greater security the river at a point due west from the Bay,
perhaps near Springfield, and then to have followed its course
southward, the above impression which he received of the
distance is easily explainable. That Oldham and his com-
panions penetrated as far south as the then unoccupied sites
of Hartford and Windsor is undoubted, and that he was the
first white explorer of the lands still farther south in the
present Wethersfield township, further evidence gives good
reason to believe.

This overland journey of Oldham was with little doubt
instigated by the desire of the colony to learn more of that
promising land which, in the presence of the Plymouth
representatives, they had so disingenuously decided not to
meddle with. It looks a little like duplicity on the part of our
Puritan fathers that, at the time of the bold, single-handed
expedition of the Pilgrims in which they had refused to take
part, they either dispatched or encouraged two private and
almost covert expeditions into the same territory. For a
month after Oldham's return, the bark Blessing, built at
Mystic in 1631, explored the coast of Connecticut and Long
Island, examined the mouth of the river, and appeared at the
Dutch settlements on the Hudson. The Massachusetts men
did nothing by halves. But if the reports of Oldham and the
sailors of the Blessing were favorable to their purpose, those
of Hall, who with a few others made a second exploration of
the valley shortly after, must have proved somewhat discour-
aging. The latter encountered all the miseries of intense cold,
loss of their way, and small-pox among the Indians, in conse-
quence of which they had no trade. The only grain of com-
fort to be derived therefrom was that the small-iK>x had
carried off most of the Indians, whose numbers had been up
to this time a serious obstacle.

12 The River Tovms of Connecticut

Uneasiness at the Bay.

No further attempts at settlement were made this year, but
in the meantime affairs at the Bay were approaching a crisis
unique as it was remarkable and momentous in its conse-
quences. The antecedent events are most important as
adding their weight in bringing about a movement whose
causes lie deep-hidden in the history of Massachusetts Bay
colony. Newtown, one of the neatest and best compacted
towns in New England, lay fairly between Watertown on the
west and Charlestown on the east, being in form, as Johnson
says in his Wonder-Working Providence, " like a list cut off
from the broadcloth of the two forenamed towns." In con-
sequence, its people were somewhat crowded. In 1633 its
population increased rapidly, and the question of removal or
enlargement began to occupy their thoughts. There were
twelve towns or churches in the colony, and the steady though
not rapid accessions from England, while certainly not suffi-
cient in quantity to cause the settlement to be overstocked,
were such in quality as to create a strong-charactered minority.
As will be seen, the mere extension of their narrow quarters
was not enough to satisfy the men of Newtown, and this fact
points to some deeper reasons for removal than those openly
given. Whatever the causes, signs of discontent are evident
from the time of the arrival of Thomas Hooker in 1633. By
1634 these discontents had gained such prominence that a
complaint was made to the first general court of delegates by
the people of Newtown, and leave was asked to remove or
to enlarge their boundaries. This was granted provided they
did not interfere with any plantation already established.
Having gained her point, Newtown at once sent certain of her
number to make explorations and select suitable places for
removal. They at first seem to have had in mind a northerly
emigration, and visited Agawam (Ipswich) and the Mer-
rimac river ; but evidently the reports of Oldham and others
had been sufficiently favorable to turn their thoughts to the
Connecticut valley, for in July, 1634, six Newtowners went

Early Settlements, 13

in the Blessing to explore the river, " intending to remove
their town thither." Whether Oldham was one of these six is
doubtful, as he lived inWatertown, though not at all improb-
able, as he was the chief authority among the neighboring
towns on all Connecticut matters. This open intention to
remove beyond the jurisdiction of Massachusetts caused a
revulsion of feeling — certainly natural enough — and in Sep-
tember the subject came up again for discussion. Newtown
wished to remove to Connecticut and prayed for leave to
carry out her purpose. The application met with strong
opposition from the deputy governor and a majority of the
assistants, but of the representatives, fifteen were in favor of
the motion to ten against, a fact which showed that the sym-
pathy of the representatives of the people lay with the people
themselves. Rather than make trouble in the present heated
state of the controversy, Mr. Hooker postponed the intended
migration until the bitter feeling should have passed away
and a more favorable opportunity should offer. A day of
humiliation was appointed and the derelicts indirectly reproved
in a sermon by Mr. Cotton. But whether it was the hum-
bleness engendered by the day of prayer or the penitence
develoi>ed by Mr. Cotton's discourse, or a politic restraint of
their feelings in view of the adage that "all things come to
him that waits," the people of Newtown accepted the grants
of meadow and river bank offered by Watertown and Boston
for an extension of their territory.

Settlement of Wethersfield, 1634.

During the interim before the next meeting of the General
Court there is some evidence of an exodus from Watertown
to Connecticut. It is based on indirect rather than on direct
evidence. There has long been a tradition that a few Water-
town people came in 1634 to Connecticut and passed a hard
winter in hastily erected log huts at Pyquag, the Indian
name of Wethersfield. Tradition is aj)t to contain a kernel
of truth, and in this case further evidence seems to substan-

14 The River Toions of Connecticut,

tiate it. In case such a movement took place from Water-
town, whether because of the decision of the Newtown people
to remain, or independent of it, it is unlikely that Oldham
would have failed of cooperation with the movers, if he was
not actually the instigator of the plan itself. Does the evi-
dence allow his absence from Massachusetts at this time ? In
1634 he was elected first representative from Watertown, and
was present at the meeting of deputies in May of that year.
His continued presence at the Bay can be traced to September
25, when he was appointed a member of two important com-
mittees. His name is not again mentioned until the next
year, when, according to the records, he was, in May, 1635,
appointed to act again as member of an investigating com-
mittee.^ After his service the previous year he was not again
elected deputy, and this may have been, as Dr. Bond sug-
gests, because of his open intention to remove to Connecticut,^
as that intention, if carried out at any time before the next
meeting, in May, 1635, would incapacitate him from serving
as deputy at that court. Thus it is quite possible for him to
have been away from Massachusetts at this time. Is there
any trace of his presence in Connecticut between September,
1634, and May, 1635? If so, which is the more probable
date? His presence in Massachusetts in 1635 can be readily
accounted for by supposing a return from Connecticut after
the traditional winter of suifering at Wethersfield. For light
on this point we must turn to the records of the Connecticut
colony. There we find the entry of the settlement of the
estate of Mr. John Oldham (he was killed by the Indians
in July, 1636) in the records of a court held at Watertown
(Wethersfield) in September, 1636. Among them is the fol-
lowing : '^ It is ordered that Thurston Rayner, as he hath
hithertoo done, shall continue to look to and preserve the
corn of Mr. Oldham, and shall inn the same in a seasonable

'Mass. Col. Rec. I, pp. 116, 125, 145.
5 Bond, Hist, of Watertown, p. 864.

Early Settlements. 16

time." ^ Two facts are noticeable in this entry : first, that
Rayner, who arrived in 1635, was given charge of Oldham's
unhar vested grain because he had performed a similar office
before ; and, secondly, that Oldham could not have been con-
tinuously present at the plantation, but seems to have been
accustomed to take occasional journeys away. The first fact
points to a harvested crop of grain the year previous, which,
if winter-sown, would argue in favor of his presence there
during the winter of 1634-5, or, if summer-sown, a later
appearance in the spring of 1635. We are then assured of
his presence there at one or the other of these two dates.
The second fact would allow his absence in 1635 in case the
settlement was made the fall previous. This is not at all
unreasonable. He left a family at Watertown ; retained
property there, an inventory of which is found in the Massa-
chusetts records after his death. These double interests
would have been more than likely to have required his pres-
ence at times in each plantation, and he was sufficiently
acquainted with either route — overland or by sea — to have
taken the journey without great inconvenience.^ The lands
held by him in Wethersfield were most favorably situated and
of a nature to warrant the presumption that he, as leader of
a party, had the first selection, while the eight adventurers
accompan^-ing him took adjoining lands farther south in a less
convenient situation. We know that in England at this time
the winter-sowing of wheat between Michaelmas and the last
of November was the rule rather than the exception, the
former date marking the beginning of the farming year.
Mr. Bradford seems to imply the same when he speaks of
those coming over in May as being obliged to wait " upward

'Conn. Col. Rm. I, p. 8.

*It is likely that Mr. Oldham mnde frequent trips back and forth
between the two colonies. See the letter of Mrs. Winthrop to her son, at
that time Governor of Connecticut, dated April 26, 1636, in which she
speaks of sending (from Massachusetts Bay) a letter by Mr. Oldham to
Connecticut. Winthrop's History, vol. I, p. 466.

16 The River Tottms of Connecticut

of 16. or 18. months before they had any harvest of their
own,"^ evidently referring to a winter-sowing of wheat, which
with barley formed the chief staple. All this we think leads
to the confirmation of an autumn settlement in 1634, but
another bit of evidence is at hand. A town vote, under date
August 30, 1711, relating to a suit brought against the town
for possession of the stated commons and sequestered lands,
has the following explanatory clause : " The town having pos-
sessed and enjoyed said lands for seventy and seven years last
past or more, viz., themselves and their predecessors of the
town of Wethersfield, and having measured and laid out the
said commons or sequestered land more than twenty-seven
years last past, and some of the land more than thirty years
last past."^ By deducting these years from the date of the
vote we find that the town in 1711 considered the date of her
own settlement to be 1634, and as in the case of the other
years mentioned the statement is absolutely correct, there is
no reason for doubting the truth of the first ; if this be tradi-
tion, it is of a very fresh and trustworthy sort, and assists
materially in forming our conclusions.

With this then as our evidence, we venture the following
historical sequence. Shortly after the September meeting
of the Massachusetts General Court in 1634, Mr. Oldham
led a party of eight adventurous men to the point reached
by him on his overland journey in 1633, where he was
impressed by the fertility and beauty of the river meadows
and the fact of a non-occupation by white men. Here
huts were erected, the ground prepared and grain sown
along the lowest eastern slope of the ridge, half a mile from
the river, out of reach of the spring freshets. In the following
spring Mr. Oldham returned to Watertown, and very likely
his presence once more among the uneasy people instigated
the petition which was presented by them to the court held in
Newtown, May 6, 1635, asking leave to remove. A favor-

. ' Bradlord's History, p. 248. ^ ^eth. Records, I, p. 292-3.

Early Settlements. 17

able answer was given to this, and Mr. Oldham accompanied
a second band of settlers, some fifteen or twenty in number,
who settled in Wethersfield, neai* the others, to the westward.
We are without doubt warranted in the statement that of the
three towns composing the Connecticut colony, Wethersfield
was the first occupie<l by settlers and planters who became an
integral part of the later community. It is interesting to
note that this fact is acknowledged in the general code of
1650^ and in the manuscripts of Mr. Mix (1693-1737).2 The
existing state of things is, then, a Dutch fort of doubtful per-
manency at Hartford; a strong, well-established palisaded
block-house at Windsor ; both of these engaged in trade with
the Indians ; and a small handful of planters — some twenty-
five or thirty — in the meadows of Wethersfield — all in the
midst of half friendly and hostile Indians.

Plymouth and Dorchester. The Lord's Waste.

But a rifl once made for the outpouring of the tide of emi-
gration and the efflux became rapid. A month after permission
was granted to the Watertown people a like leave was given
to those at Dorchester, with the same proviso regarding
jurisdiction. Within two months — by August 16, 1635 — a
settlement was made by them on the Connecticut. Their

' la the section " Bounds of Towns and Perticular Lands'' is the fol-
lowing : " It is ordered .... That every Towne shall set out their bounds
.... and that once in the year three or more persons in the Towne
appointed by the Selectmen shall appoint with the adjacent Townes and
renew their markes .... the most ancient Towne (which for the River is
determined by the courte to be Weathersfield) to give notice of the time
and place of meeting for this perambulation." Col. Ilec. 1, p. 513.

From the point of view of a habitation by white men, Hartford was flrst
occupied by the Dutch ; from the view of occupation by Englishmen,
Windsor can claim to be the earliest settled ; but from the point of view
of settlement by Massaohasetts Bay people, by agriculturists and |)orma-
nent colonists, Wethersfield has undoubted right to the title. On Wind-
sor's claim see article by J. H. Hayden in Hartford Courant for September
26, 1883.

* Trumbull, Hist, of Conn. I, p. 49, note.

18 The River Towns of Connecticut.

unfortunate selection of the lands adjoining the Plymouth
block-house led to a lengthy dispute and considerable ill
feeling between the two colonies. The one claimed priority
of possession and rights acquired by purchase, and warned
the new-comers against trespassing. The latter, disregarding
these stable claims, plead the providence of God as having
tendered the place to them "as a meete place to receive our
body, now upon removal.'^ But the Pilgrims were not
inclined to accept this somewhat illogical reasoning, thinking
the " providence of God " to be a convenient pretext, not
altogether reliable as argument. In their rejoinder they say
what was not far from the truth, though edged with a Pil-
grim bitterness : " We tell you still that our mind is otherwise,
and that you cast rather a partiall, if not a covetous eye,
upon that which is your neighbours and not yours ; and in so
doing, your w^ay could not be faire unto it. Looke that you
abuse not Gods providence in such allegations." The con-
troversy continued, with the passage of many letters back
and forth between them ; but the Pilgrims, rather than make
resistance, though they had been bold enough to have done
so, came to an agreement with the others, first compelling a
recognition of their right to the "Lord's Waste," as the
Dorchester men called the land in dispute. This recognition
proved something of a stickler to the authorities at home,
and Mr. Winslow the following year went to Dorchester to
settle the controversy. Winthrop here gives another exhi-
bition of Puritan disingenuousness. As the claim of juris-
diction was too doubtful to maintain, he falls back on the
assertion that the Plymouth traders had made their settle-
ment through leave granted by Massachusetts, after the
latter had refused to join in the undertaking. The leave
granted is certainly gratuitous on the part of the Puritans,
for Plymouth, settled ten years before the colony of Massa-
chusetts Bay, did not come into her jurisdiction until 1692.
Perhaps we may ascribe this rather peculiar sense of equity
to the workings of a manifest destiny, to which it is con-

Early Settlements, 19

venient to ascribe so much ; but if we do so, then there is
reason to believe that such destiny does not always follow
along the lines of greatest justice. The means for creating
an illustrious future are not always in accord with present
happiness and harmony. The controversy was finally ended
two years after by a compromise, in which Plymouth, to
have peace, yielded all save the trading house and a sixteenth
of the purchased land to the Dorchester people (inhabitants
of Windsor), with a reservation, however, to the southward
for the Hartford adventurers, who were Newtown people, and
about twelve in number. This disputed " Lord's Waste" is
now the town of Windsor. Of coui-se the lands surrendered
were duly paid for (price £37 10s.), but the " unkindness "
of those who brought on the controversy " was not so soon
forgotten." While this dispute was in progress — for the above
compromise advances our narrative two years — a third claim-
ant appeared. This was the Stiles party, which, sent from
England by Sir Richard Saltonstall, one of the Connecticut
patentees, had arrived in Boston, June 16, for the express
purpose of settling in Connecticut. They were sent out from
the Bay ten days later, and probably arrived some time after
the 6th of July. This party of servants numbered sixteen,
and included three women, the first of their sex in the Con-
necticut valley. They at once laid claim to a share in the
" Lord's Waste," but the claim was evidently not pushed
with vigor in the face of such opposing odds, and, with wise
discretion, they retired a little farther up the river. Their
little plantation was afterwards included in the Windsor town-
ship, and its members shared in the distribution of lands in
1640, in September of which year Francis Stiles was admitted
a freeman.

Hartford. A Hard Winter.

But our list of those who were to endure the seasoning of
a most rigorous winter is not quite complete. We have
already mentioned the reservation of a moiety of land, as one

20 The River Towns of Connecticut.

condition of ihe settlement of the controversy regarding the
" Lord's Waste," for certain emigrants from Newtown, who
had settled on what was later called the " Venturer's Field "
in Hartford. These settlers did not arrive all at once, but
evidently formed a part of the Massachusetts men whom
Brewster states, under date July 6, 1635, as coming almost
daily. Few in numbers, they took no part in the unfortu-
nate controversy between Dorchester and Plymouth. Either
because of their weakness, or because of the patient, uncon tro-
ver sial spirit which they displayed, they were kindly and gener-
ously treated by Holmes and his party, who reserved for them
in the condition of sale in 1636 — the sale took place the next
year — a portion equal to that retained by themselves. This
land the men of Newtown took gladly, desiring no more than
could be conveniently spared them, thus gaining for them-
selves the approbation of their neighbors, and making the
way easier for the later exodus of the Newtown Hookerites.
Even the first comers hallowed the ground, " the birthplace
of American democracy," with a godly spirit.

As to the question of jurisdiction the problem is simple.
All were legally trespassers.^ In the absence of a grant by
the council of Plymouth of this territory to the Earl of War-
wick, which grant is now shown to be a figment of the brain,^

^Johnston, Conn., p. 10 ; Bronson, Early Government, New Haven Hist.
Soc. Papers, III, p. 295.

2 In the record of sale of the Fort of Saybrook by Mr. Fen wick to the
colony, which has been claimed as the basis of the jurisdiction right of
Connecticut to the territory, occurs the following section : " The said
George Fenwick doth also promise that all the lands from Narragansett
River to the Fort of Sea-Brooke mentioned in a patent graunted by the
earl of Warwicke to certain Nobles and Gentlemen, shall fall in under the
Jurisdiction of Connecticut if it come into his power." This section, which
seems to promise much, is in fact a much-broken link in the chain of
so-called evidence, as it fails of connection at each end. As no patent
granted to Warwick can be found, it is evident that he could not give a
legal title to Lords Say and Sele and others, the nobles and gentlemen
named above, of whom Fenwick was the agent. Again, notwithstanding
Mr. Fenwick's agreement, no such conveyance was ever made, as Mr.
Trumbull has clearly proved on documentary evidence. — Conn. Col.
B^cords, I, Appendices III and XI.

Early Settlements. 21

no one of these various claimants could assert any legal title,
other than that obtained by the enforcement of Indian con-
tracts by force of arms. The smaller rights thus based on
occupation or purchase were all that seriously concerned the
practical colonists, and they pursued their way, generally all
unconscious of an occasionally dark cloud which threatened
to drive them from their hard-earned homes.

The story of settlement has thus far been concerned with
individual enterprise, carried out either in the personal
interest of trade, or in the interests of a larger body who
assisted and encouraged it. All such movements are legiti-
mate factors in the final issue, and the forerunners differ in
no respect as settlers from those larger bodies with which
they soon became fused, and in union with which they built
up the future towns. Nearly all became proprietors and
later inhabitants, and so are to be looked upon equally with
the others as sharers in the honor of founding a common-
wealth. Before the differences already mentioned had been
permanently settled, and while the Dorchester emigrants were
subduing the fields and forests of Windsor for habitation, in
spite of the Plymouth land claims, word was returned to their
townspeople left behind that the way was prepared. On the
fifteenth of October there started from the Bay colony a
body of sixty men, women and children, by land, with their
cows, horses, and swine. Their household furniture and
winter provisions had been sent by water, together with prob-
ably a few emigrants to whom the overland journey would
have proved too tedious. The majority of these people were
from Dorchester, but accompanying them were others from
Newtown and Watertown, who joined their townspeople on
the ground they were cultivating.^ But they had chosen a

'There is considerable difference of opinion as to when Mr. Warham,
the pastor of the church in Dorchester, of which most of these people were
members, came to Connecticut. Dr. Stiles says in 1085 at the time of
the above migration (Hist, of Windsor, p. 25). Rev. Mr. Tuttlo says in
the spring of 1686 (Mem. Uist. of ilart. County, II, p. 490), while Dr. B.

22 The River Towns of Connecticut.

most unfortunate season. Hardly had they settled when all the
ills of winter began to come upon them. The brave Puritan
heart quaked before these ominous signs of approaching dis-
tress. Frosts, snow, insufficient shelter, scarcity of food,
difficulty of caring for and preserving their cattle, and a con-
sequent heavy mortality, were but few of the horrors of that
winter of 1635-36. Many attempted a return. Six in an
open pinnace suffered shipwreck, and after days of wandering
reached Plymouth. Thirteen attempted the overland route.
After ten days, twelve reached Dorchester, having lost one of
their number through the ice, and the remainder only saved
themselves from starving by the happy discovery of an Indian
wigwam. The river was frozen over by November fifteenth,
and snow was knee-deep in Boston. At length even sturdy
Saxon blood could stand no more; death from cold and
starvation was at hand, and the new-found homes were for the
most part abandoned. Seventy men and women pushed their
way southward to the river's mouth, to meet the Rebecca
with their household goods and provisions on board; she was
found frozen into the ice, unable to proceed farther upward.
Fortunately a warm rain set her free, and all embarking

Trumbull places it as late as September, 1636 (Hist, of Conn. p. 55). The
evidence is so slight as to allow the holding of any one of these views.
Under date of April 11, 1636, Winthrop says, " Mr. Mather and others of
Dorchester, intending to begin a new church there (a great part of the
old one being gone to Connecticut), desired the approbation of the other
churches and the magistrates," but on a question of orthodoxy, "the
magistrates thought them not meet to be the foundation of a church, and
thereupon they were contenttoforbearto join until further consideration."
In the next paragraph, Wiathrop says, evidently referring to those men-
tioned above in parenthesis, '* Those of Dorchester who had removed their
cattle to Connecticut before winter, lost the greater part of them this
winter." And again Winthrop says, under date August 23, 1636, "A
new church was gathered at Dorchester, with approbation of magistrates
and elders, ' ' etc. , referring without doubt to the deferred meeting mentioned
above. In view of this it seems unlikely that the Dorchester church would
have remained all winter without a pastor, and that the gathering of a
new church took shape at once on the departure of the pastor in the spring
of 1636, some time before April 11.

Early Settlements. 23

returned to Massachusetts, arriving there on the tenth of
December. Those who remained suffered the chastening which
was to make them a great people. All were soon cut off from
retreat by land or sea. Some perished by famine ; the Windsor
people lost nearly all their cattle, £2000 worth ; and acorns,
malt, and grains formed their chief sustenance. Yet this
settling and jarring of a hard winter prepared a firm founda-
tion for the structure that was soon to follow thereon. If the
year 1633 marks the laying of the corner-stone, the year 1636
saw the completing of the foundation and the perfecting of the
ground-plan for a stately commonwealth.

Connecticut Plantation.

The plantation had already, in the autumn of 1635, attained
sufficient size to be the object of legal recognition, and a con-
stable was temporarily appointed by the Massachusetts court.
This local representative of the central authority seems to
have been the only outward and visible sign employed in the
admission to an equality in the sisterhood of towns of a
sufficiently developed candidate. If Massachusetts, with her
more artificial system of government, used any other method
of recognition in addition to the act of the Greneral Court, it
is certain that the precedent set in the case of the first Con-
necticut plantations was ever after followed. But Massachu-
setts believed in preserving the law of continuity by reserving
the power to her own magistrates of swearing in any constable
chosen by Connecticut under the decree giving that plantation
permission to make the choice for herself. It was the principle
of constabular succession. But slowly there was evolving
out of what had been, in the eyes of the Massachusetts court,
one plantation of her jKJople on Connecticut soil, three centers
of settlement, and one constable was too small a quantity
to suffer a tri-section of his powers. In March, 1636, the
as yet uncentralized spirit of law and order began to take
definite shape, in a provisional government provided by the
General Court of Massachusetts. This government was com-

24 The River Towns of Connecticvi,

posed of eight prominent men, dwellers along the river, who
were authorized to act as a court for investigation and decision,
as a council for the issuance of necessary decrees, and as an
administrative body for the carrying out of such decrees,
either directly or indirectly, through the medium of the sepa-
rate settlements. This court met eight times between the
26th of April, 1636, and the 1st of May, 1637. One of its
earliest acts was to officially declare the tri-partite plantation,
made so by the exigencies of its settlement and the triple
origin of its people, to be composed of three towns, by the
creation of three constables, one for each group of inhabitants.
While we may say that this began the official system, it prac-
tically only declared the three settlements to be independent
military centers, each with its cannon, its watch and indi-
vidual train-band; and this is a very different thing from
calling them towns fully equipped with all the paraphernalia
of town government. The further duties of the court related
to those matters which concerned the whole, with special
reference to increasing the power for self-support and per-
fecting the bounds of the half-formed towns. By the terms
of its commission, this government was to last but a year,
and in the court which succeeded it the people found repre-
sentation through committees, undoubtedly chosen at the
request or order of the provisional government, or summoned
because of the special emergency which demanded some action
to be taken against the Pequots. The proceedings of the
next four Greneral Courts relate solely to that war.

The Outpouring.

The period of unicameral government was the time of
greatest emigration, " the special going out of the children of
Israel." Those whom the rigors of winter had terrified re-
turned. With them were many others who had until this
time been unable to arrange satisfactorily the disposal of
their property and a settlement of other affiiirs before leaving.
It is worthy of note that many of the Connecticut settlers

Early Settlements. 26

continued to hold lands in the Bay colony for some time
after their withdrawal to Connecticut. At their head was
Mr. Warham, the surviving pastor/ and this accession, per-
haps occurring a few weeks before the formation of the pro-
visional government, brought about its more speedy erection.
In June of this year a majority of the Newtown Church,
under the leadership of Mr. Hooker and Mr. Stone, traveled
under summer skies through the forests over highland and
lowland for a fortnight before reaching their river home.
They drove their flocks and herds, subsisted on the milk of
their cows, bore their burdens on their backs, and thus their
journey was an after-type of those earlier and greater south-
ward and westward wanderings of their national grandparents
in the older times. It was the bodily transportation of a
living church. No reorganization took place. The unbroken
life of the transplanted churches of Hartford and Windsor
drew its nourishment from roots once set in Massachusetts
soil. New churches took the place of the old, but an ancestry
of five and six noble years belongs not to their history, but
to the history of the Connecticut churches. With Wethers-
field the case is different. The settlement was the work of
individuals; a reorganization took place on Connecticut terri-
tory, and is recorded in the proceedings of the first court held
under the provisional government. Thus, of the three river
towns, Wethersfield was the most independent of all links
connecting her with Massachusetts.

Lessening of Emigration.

Every effort was made by the home government at the
Bay to check this flow of emigration, or, at least, to turn its
current into more adjacent channels ; but the bent of the emi-
grant's spirit was toward Connecticut, and for the time being
the colonial government was helpless to prevent it. That
their efforts were not oon fined to the large grants of land
made to the Dorchester plantation and other legitimate means

' See note» p. 21.

26 Tlie River Towns of Connecticut

of quieting the uneasiness, Hooker's letter to Governor Win-
throj) incisively shows.^ He calls a series of misrepresenta-
tions by the Puritans at the Bay " the common trade that is
driven amongst multitudes with you." The emigration
grew less and less until 1638, and though large numbers
came to Massachusetts that year, very few seem to have come
to Connecticut. For this fact Mr. Hooker's remarkable
statements are certainly a partial explanation. The Pequot
war was not without its effect, but the Massachusetts men
without doubt abused Connecticut. They raised pretexts
for the effectual frightening of all who projected settlements
there. Such settlers might — if they must go from the Bay —
go any whither, anywhere, choose any place or patent, provided
they go not to Connecticut. The report was spread that all
the cows were dead, that Hooker was weary of his station,
that the upland would bear no corn, the meadows nothing
but weeds ; that the people were almost starved in conse-
quence. Such reports, spread abroad in the streets, at the
inns, on the ships before landing, and even in England before
embarkation, are a little astounding. Even the Indians,
wherever they got their notion, called them water-carriers,
tankard-bearers, runagates whipped out of the Bay. As
Hooker says, " Do these things argue brotherly love ?" It
would hardly appear so, and we must confess that in all their
relations with their brethren and neighbors in the Connecti-
cut valley, the Puritans showed little of that austere honor-
ableness for which they are famed. Harsh necessity may
have seemed to them an all-embracing excuse, but however
that may have been, we must plead that even within the dark
shadow of necessity, principles of fairness and equity should
find a place.

As before intimated, by 1637 the tide of emigration had
almost ceased. After-comers were not few, indeed, but the
movements which gave birth to a new colony had practically
reached an end. The coming of later settlers added no new

' Cona. Hist. Soc. Collections, vol. I, pp. 1-18.

Early Settlements, 27

features to the principles according to which the colony was
projected.

Massachusetts and Connecticut.

From nearly every point of view, the civil, ecclesiastical
and military life of the colony was far simpler and more nat-
ural than elsewhere on the American continent. It was the
outcome of a second sifting from the complications of govern-
ment in England. Its founders were twice purged, and in
their revolt from the already purified government in Massa-
chusetts, they evidenced how thoroughly democratic their prin-
ciples must have been to have found themselves out of harmony
with the latter's policy, that is, the policy of the central gov-
ernment; for the Massachusetts Puritans could not rid
themselves of many of the associations in which they had
been reared. Among them were' men who looked longingly
at the institutions of Old England and desired their reproduc-
tion. The equality of all was not to their taste, and they
sought to establish a privileged class, to nullify the repre-
sentation of the freemen by throwing all power into the hands
of the assistants ; they endeavored to create a life tenure for
the governor, and to make the influence of the towns always
subordinate to that of the colony, at whose head was a con-
servative aristocracy; state was linked to church, and the
influence and direct interference of the clergy was great. It
was an aristocracy, oligarchy, theocracy, but only in part a
democracy.

Thus it was that the English settlements in Massachusetts
failed to reproduce in many respects the conditions of a rational
democracy. It was a compromise between the spirit of the
past and the associations of the present. As a consequence,
the dominant class and the oommons, the central government
and the towns, were continually at variant. This led inevi-
tably to a split and the withdrawal of portions of their
number into freer fields for an exercise of their Saxon heri-
tage, the general power of all over general interests, and the

28 The River Tomna of Connecticut,

local power of each over local interests. This is self-govern-
ment, severed from the influence of special class privilege,
civil or ecclesiastical. It was the spirit of democracy given
free development on a free soil.

The Connecticut central authority began, it is true, before
the towns had fairly come into being, but it was a super-
imposed power, and when the colony erected its own General
Court and established its own Constitution, it was found that
the people held the check-reins.

To these people belonged the choice of magistrates, and the
divine right of kings found no place, except as those in
authority were chosen and upheld in office "according to the
blessed will and law of God." In the people lay the founda-
tion of authority, and therein a liberty which, as God-given,
was to be seized and made use of. As those who have power
can give and also justly take away, so the people could set
bounds and limitations to the power of their magistrates,
and of the places to which they had called them. No tenure
for life, no papal infallibility there. Those in authority were
weak creatures and liable to err, and as the burdens were
heavy, so should censure and criticism give way before honor
and respect. Popular election began at once on the assump-
tion of its own government by the colony, and the committees
to whom the people delegated their authority were no mere
figureheads. They did not toy with government, electing the
Assistants and then leaving to them all legislation, as in
Massachusetts, but they formed a powerful lower house, which
cooperated in the functions performed by the General Court.
We may be sure this to have been so of a people who, in the
Fundamental Articles, avowed their right, in case the Gov-
ernor and Assistants refused or neglected to call the two
General Courts established therein, of taking the control into
their own hands: a House of Commons without King or
House of Lords.^

' This privilege seems to have been but once exercised, and then under
very different circumstances from those mentioned in the sixth funda-

Early Settlements, 29

The Sovereign People.

Yet these same people, in whom lay the sovereign power,
gave up that power at the proper time into the hands of
the General Court, without reservation. If between 1636
and 1639 the towns were independent republics, each suf-
ficient unto itself, it was only so by virtue of a vivid imagi-
nation. It is dignifying with too sounding a title these
collections of proprietors, who, busied about the division and
cultivation of their lands, and with an as yet unformed system
of self-government, looked to their magistrates and elected
deputies in these three years for the ordering of those matters
which concerned a sovereign state. But, from the date of
the adoption of the Fundamental Articles, these towns lost
what elements of legal independence they may have had before,
and,- by the free will of the people inhabiting them, became
merely machines for the administration of local affairs, for the
apportionment of representation and taxation, and for the
carrying out of such powers as the Greneral Court committed
to them. They had no inherent or reserved rights. As far
as the wording of the tenth section is concerned, complete
power was given for the control of all that concerned the
good of the commonwealth, with but one reservation to the
whole body of freemen — the election of magistrates. The
towns never had been sovereign ; in fact, they did not become
fairly organized towns much before the adoption of the Con-
stitution, and it is not improbable that such adoption was
delayed until the colony had become well established, in work-
ing order, and its j>eople accommodated to their new environ-
ment. A sure foundation for the Constitution must have
been laid before that document could be drafted and adopted
with reason of success.

mental. In 1054» on the death of Oofrernor Hajnei and the absence of

Deputy Oovenior Hopkins in Enpland, an assembly of freemen met in
Hartford, to choose a Moderator of the General Court, who had power to
call the next General Court for the election of a Governor and to preside
over its meetings. — Col. Rec. I, p. 252.

30 The River Tovms of Connecticut,

Another most important evidence of Connecticut democracy
must be noted and briefly dismissed. The suffrage of the Con-
necticut colony was unrestricted by ecclesiastical obligation.
In Massachusetts and New Haven no one had a right to vote
unless he was a freeman, no one could be admitted a freeman
unless he was a church member ; the church was congregational,
wherein its affairs were managed by the votes of its members.
Town and church were one. But in Connecticut, for the first
twenty years, it was only necessary that each freeman have
been admitted an inhabitant in the town where he lived, by vote
of the majority of the inhabitants in town-meeting. Church
and town were theoretically dissociated, though not practi-
cally for many years, and the government of Connecticut was,
as near as possible in those days, by the people and for the
people.

Note.— The Historic Town.— In nearly all the New England settle-
ments the lay-out and organization of the towns were similar. Historically,
this institution is purely English. Among the other Germanic nations
the unit of constitutional machinery is the Hundred, corresponding to our
county. The Celts and Slavs never developed local government by them-
selves, and the Romance peoples were governed, so to speak, from above,
not from within. Yet, whatever may have been the constitutional devel-
opment of the village community as acted upon by feudalism and the
growth of centralized monarchy, there are certainly curious analogies to
be found between certain phases of early New England town life and
some of the oldest recorded customs, as seen in the extant laws of early
German tribes. Many of these can be shown to have been retained in the
English parish, and their presence can be explained by acknowledging a
previous acquaintance on the part of the Puritan settlers. But, though
other analogies, such as the laws against alienation of land, the spirit
of town exclusiveness in the fullest sense, and the peculiarly indi-
vidual and democratic nature of the town meeting, cannot be thus
accounted for, they may be shown by the unbelievers in the Germanic origin
to have arisen from reasons of economic necessity, and to be nothing more
than interesting parallels. This would be the case with those who declare
that the " town meeting is an outgrowth of New England life," and that
♦Mt had its origin with the first settlers." (S. A. Green, Records of
Groton, Introd.) However, if the views of v. Maurer and Sir H. Maine
are to be retained, who have pictured for us a system of Arcadian sim-
plicity, a kind of Eden for the historical student, and we are to talk about

Early Settlements. 31

identities and survivals, then the purity of such a condition has been
destroyed by the political development of those countries, which can trace
back, with plenty of imagination when historical data are wanting, to this
simple germ the thread of their history. For these germs, these peaceful
congregations of our Aryan forefathers, were certainly destined never to
be reproduced in the form given us by the scholarly exponents of the
village community theory. There is more that is unidentical than there
is that is identical. If we have been given correctly the original form,
then it has suffered rough usage in its intercourse with the events of
known history. The superstructure has had to undergo the changes
which centuries of political modeling have brought about, so that wherever
we And traces of the early village community life, they have to be dragged
as it were from beneath a mass of irrelevant material necessary to the
existence of a modern political unit. It is not strange that this political
cell should never have been reconstructed in its entirety on the migration
of peoples to England and later to America, for it is a much mooted point
whether it had not largely lost its identity before Tacitus wrote about the
Germans. It was fitted for only a primitive, half-civilized kind of life,
where political craftiness was unknown, and the inter-relation of man with
man and state with state still in very early infancy. But whatever form
of local life, the village community, or the manor, or both, the Angles and
Saxons carried to England, there is no doubt that within that form were
embraced many of the foundation principles according to which the
German tun is supposed to have been built ; and that many of these cus-
toms, political, legal, social, agrarian and philological, were brought by
the settlers to America, no reasonable scholar will pretend to deny.

32 The River Towns of Connecticut,

n.

THE LAND SYSTEM.
Original Purchase.

The tribes of Indians which dwelt along the Connecticut
river had little unity among themselves. They were scat-
tered bands, and on the coming of the Pequots the slender
ties which joined them were easily broken. So it was a nat-
ural result that the coming of the English, much encouraged
by the Indians themselves, was made easy and their settle-
ment on the Connecticut lands greatly assisted. We have
seen that the adventurous forerunners were kindly received,
and on one or two occasions owed their lives to the friendly
shelter of an Indian wigwam ; and during the destructive
winter of 1635-6, the snow-bound settlers were kept alive by
Indian gifts of " malt, acorns and grains." It was not an
unusual thing in the colonial settlements for colonists and
Indians to live peacefully side by side, pursuing agriculture
or trade, or both. Of the early Connecticut adventurers.
Holmes is the only one mentioned as purchasing land, and
w^ith him, as already shown, the circumstances were excep-
tional. Oldham and his companions undoubtedly made some
bargain, probably of the nature of a joint occupation, and it
is very lilvcly that the same was true of the other early
settlers before 1636, though one Phelps of Windsor appears
to have obtained a deed of Indian land some time in 1635.^
The indefinite nature of the transaction, and the later con-
firmation or repurchase of lands, would show that the Indians
failed to comprehend the nature of what they were doing ;
and it may be that what the colonists understood as sale
without any reserved rights, the Indian considered as a grant
to the whites of the privilege of joint occupancy of the terri-

» Stiles, Hist, of Windsor, p. 105.

The Land System, 33

toiy. For many years certain rights in wood and river were
conceded to the Indians, and a kind of common law of this
nature grew up in some quarters which would point to the
recognition of the Indians as possessing some rights in their
old possessions, which were sometimes expressly mentioned
in their deeds, though they very soon faded away. The land
was to the Indians worthless so long as they were in danger
of losing it altogether, and the presence of the English meant
protection. It was not sharp treatment, but a rough friend-
liness which led to the ready sale of the valley lands ;^ pos-
sibly a legitimate pressure was brought to bear in case of
unwillingness, but more probably the unsettled state of affairs
and the domination of the Pequots softened any savage obsti-
nacy. As to moral title the colonists could have no better,
and the question of original grant has hete hardly a place ;
they purchased of the ancient and original natives, and not
of the Pequots, as did the Dutch. It made no difference to
the men who watched the Indian make his rude mark of
transfer that the historian two hundred years later was to
pick flaws in his right to purchase at all, though in English
law there was no title until the confirmation of the lands by
the charter. Every acre of Wethersfield, Hartford and
M'indsor territory was honestly obtained. There was no
excess of generosity, and for colonists who struggled through
hard winters and saw their cattle die by the hundred-pounds
worth, there was no opportunity to be generous. But the
faded old deeds in the land records, with their strange signa-
ture marks, testify at least to a hardy honesty of purpose.

The first to bargain for land had been the Dutch, who, in
the name of the West India Company, purchaseil of the
Pequot sachem land whereon they constructed their fort.

' This note in the Windsor Land Records is sujrgestive : *' Coggtrj'
nasset testifies that the land on the east side of the Great Ri\<^r, between
Scantic and Namareck, was Nassacowen's, and Nassacowen was so taken
in love with the coming of the English that he gave it to them for some
small matter." Stiles, Windsor, p. 111-112.

34 The River Towns of Connecticut.

The extent of the first purchase is doubtful. Later it con-
sisted of about twenty-six acres, and was, in 1653, seized by
the English, and the Dutch driven out forever.^ After the
Dutch bargain came that of Captain Holmes, who, for a val-
uable consideration, obtained possession of a large tract a few
miles up the river, a large part of which was transferred to
the Dorchester settlers in 1637. This tract was confirmed to
the town of Windsor sixty-seven years later, for a parcel of
trucking cloth. The first formal purchase of Hartford terri-
tory was made after the arrival of the Hookerites, when a
deed was obtained for the whole of the old Hartford town-
ship, on the west side of the river. This was paid for by
subscriptions to a common fund, and each received his pro-
portion in the later division according to the amount put in.
The same year the Wethersfield tract was purchased, per-
haps by an oral agreement, and the immediate territory of
the three towns became thus firmly established in the hands
of the whites. Extensions were, however, obtained on both
sides of the river until 1680. Private purchases were made
with the consent of the court and town, and gifts from the
Indian sachems always required the sanction of the town, in
town meeting, where a vote was passed declaring that the
grantees and their heirs could enjoy such lands forever. In
1663, however, the court forbade any negotiation with the
Indians for land, except it be for the use of the colony or for
the benefit of some town.

The law of supply and demand regulated the nature of the
exchange. The Indians had at their disposal meadows and
hillsides, trees, woods, brooks and rivers, while the colonists
had money and goods. The purchase money took the form
of so many pounds sterling, so many fathoms of wampum, so
many yards of trucking or trading cloth, so many pairs of
shoes. There does not appear in Connecticut that variety
found in New Haven and elsewhere. Clothing was in great

' Hart. Book of Distrib., pp. 183, 550 ; Stuart, Hartford in the Olden
Time, ch. 24.

The Land System, 35

demand, and twenty cloth coats are recorded for payment of
lands across the river, together with fifteen fathoms of
wampum.^ Small parcels of land were obtained in AVindsor
in return for fines paid in rescuing unfortunate aborigines
from the Hartford lock-up'^ and for other services rendered.
It is likely that wampum, which was legal tender in New Eng-
land from 1627 to 1661, was often the medium of exchange;
money or wampum was more available than coats, for it was
divisible. Twenty coats could cover twenty men, but not
women and children ; but so many fathoms of shell -cylinders,
deftly pierced and strung on animal tendons, could be
diNided among the family group or a number of grantors.
The boundaries of thesfe purchases were generally undeter-
mined and their extent loosely expressed. Oftentimes natu-
ral boundaries were such that the location of the purchase can
be approximately fixed. These were stated as lying north
and south between fixed points on the river, and as running
80 many miles inland. Such a description would allow of
accurate measurement, but when the distance inland was
" one day's walk," there might be a difference of opinion as
to who should be the surveyor. Often in c4ise of small sales
the tract is described as of so many acres adjoining certain
bounds or swamps, or other well-known and fixed localities.
It was the hazy outlines of the Indian purchases which gave
80 much trouble to town and colony in the after-settlement
of township bounds. In both Hartford and Windsor there
were Indian reservations^ and villages within which the
natives were obliged to live, but they proved rather trouble-
some neighbors, and there was a constant friction between

' Stiles, Windsor, pp. 110-111.

' lb. p. 108. This was not an uncommon occurrence ; the circum-
stances attending the purchase of Massaco (Sirasbury) were siniilar
(Mem. Hist. II, pp. 841-2), and the red brethren were bought out of the
New Ilaren jail in like fashion (Levermore, Republiit of New Haven,
p. 173).

* Wind. Reo., Dec. 10, 1654 ; Hart. Rec, Ifar. 16, 1664 ; Jnne 16, 1658.

36 The River Towns of Connecticut,

the court and the Indians until their final disappearance.
The lands of the reservations came, before 16G0, into the
possession in Hartford of the town, and in Windsor of a pri-
vate individual. This reservation of land was a prototype
of our national Indian policy, and was employed in many of
the colonies.

Grants by the General Court.

Before 1639, each set of proprietors by itself purchased
land of the Indians, and agreed on the boundaries between
the plantations through their representatives. But after
1639, all unoccupied territory became public domain and
was subject to the control of the colony. This power was
granted in the Fundamental Articles, where the people gave
to the General Court the right " to dispose of lands undis-
posed of to several towns or persons." After this, the grow-
ing towns had to apply to the central authority for power
to extend their boundaries. Thus it happened in 1640 that the
towns petitioned the General Court for an increase of terri-
tory, and a committee was appointed for examining certain
lands suitable for this purpose.^ The court had already taken
measures toward the maintenance of their rights by recent
conquest of the Pequot territory, which, by the treaty of 1638,
came into their possession.^

The central authority was by no means prodigal with its
lands, nor yet were they given grudgingly. It was recog-
nized as a far better condition that the lands be in the hands
of enterprising men or communities undergoing improve-
ment than that they remain untilled. But though grants
were not made at hap-hazard, yet the colony managed to dis-
pose of about thirteen thousand acres within the first thirty
years, in amounts varying from forty to fifteen hundred
acres. Careful discrimination was made as to the nature of
the lands given, and many a grant was specially stated to

' Col. Rec. I, p. 42. « Col. Rec. I, p. 82.

TJie Land System. 37

contain only a certain proportion of meadow, usually one-
sixth or one-eighth, and at times no upland was allowed to be
taken. The islands at the disposal of the court were first
given out, and divisions of the Pequot country followed. It
was expected that the grantees would at once or within an
allotted time undertake the im])rovement of their grant, either
by cultivation or by the establishment of some industry.
Neglect to do so generally called forth a reprimand.

Grants made gratuitously were to the leading men of the
colony, although they did not at times hesitate to send in
petitions. The latter was in general the more common method,
and the petition was based on service rendered to the colony,
either in a civil or military capacity. It is not always easy
to assign causes for grants, but it is safe to say that where no
cause is assigned the grantee will be found to be of some
prominence in the colony. The pensioning of soldiers who
fought in the Pequot war was by means of land grants. After
giving out to these soldiers about fifteen hundred acres,
an order was passed in 1671 to the effect that, "being often
moved for grants of land by those who were Pequitt soldiers,
[the court] doe now see cause to resolve that the next court
they will finish the matter and afterwards give no further
audience to such motions,"^ after which summary disposal
of pension claims, about a thousand acres more were granted
and the matter finished.- Land grants were required to be so
taken up as not to injure any plantation or previous grant; as

•Col. Rec. IT, p. 160.

' This prototype of our modem pension claims is full of interest Not
only did the colony reward its soldiers for honest service, but the towns did
also. The Soldier's Field mentioned in the Hartford liecords was so called
because therein the Hartford soldiers who fought in the Pequot wnr re-
ceived grants. (See paper by F. H. Parker on "The Soldier's Field, ** in
Supplement to Hartford Weekly Coitrant, June 18, 1887.) Windsor also
gave a large plot of land to each of her soldiers serving in this war. (Stiles,
Windsor, p. 41; see also p. 201 for petition for land after King Philip's war.)
Norwalk rewarded her soldiers who fought against King Philip after this
manner ; to those who served in the '* direful swamp fight " of 1670 were

38 The River Towns of Connecticut.

one entry puts it, " provided it doe not damnify the Indian
nor the plantation of New London nor any farm now laid
out." ^ Sites which appeared suitable for new settlements were
reserved for that special purpose.

In Connecticut it was more frequently the rule that no
definite location was assigned. The grantee might take his
land wherever he could find it, or, in case of equally favored
localities, he could choose that which he preferred, always under
the conditions already named. In this particular there was
far greater freedom than in Massachusetts. As the colony
was not always sure of the extent of its territory — for its
boundaries at this time were very unsettled — there was occa-
sionally added in a grant, " so far as it is within their power
to make the aforesaid grant," ^ and in another, " where he can
find it within Connecticut liberties."^ A committee was
generally appointed to lay out the grant, which, when made to
a particular person, must be taken up in one piece, "in a
comely fornl,"^ unless it was otherwise provided by special

given twelve acres within the town bounds ; to those who served " in the
next considerable service," eight acres, and to those ** in the next consider-
able service," four acres ( Hall's Norwalk, p. 63). Saybrook also voted that
" The soldiers that went out of town in the Indian war shall have five acres
apiece of land." (Saybrook Records, 1678.) Following the system inaugu-
rated by town and colony, the Continental Congress in 1776 passed the
following resolution : '* That Congress make provision for granting lands,
in the following proportions : to the officers and soldiers who shall engage
in the service and continue therein to the close of the war or until dis-
charged by Congress, and to the representatives of such olTicers and
soldiers as shall be slain by the enemy." The proportions were as follows :
Colonel, 500 acres ; lieutenant-colonel, 450 acres ; major, 400 acres ; cap-
tain, 300 acres ; lieutenant, 200 acres ; ensign, 150 acres ; each non-com-
missioned officer and soldier, 100 acres. In 1787, for the satisfying of
claims based on this resolution. Congress set apart a million acres of land
in Ohio and another large tract covering the southern portion of Illinois,
bounded by the Ohio, Mississippi, Kankaskia, Little Wabash and Wabash
rivers. (Journals of Congress, I, p. 476 ; IV, p. 801.)

'Col. Red, p. 340.

2Col. Rec. I, p. 282.

»Col. Rec. I, p. 372.

*Col.Rec. II, p. 200.

The Land System. 39

permission of the court. The committee was usually paid by
the grantee. In case a grant conflicted with the lands of a
township, the right of the township was always maintained and
the granted land was laid out in some other quarter. ^ In
two cases lands within town boundaries were granted by the
General Court, though these are evidently irregular and
isolated instances.^ Industries were fostered and land was
granted by the colony, as was also done by the towns, for
their encouragement. John Winthrop was subsidized for
his saw-mill and his fishery at Fisher's Island, and John
Griffen for making tar and pitch.^

The General Court took care to see that not only the indi-
vidual grants were accurately bounded, but that each township
should be distinctly separated from its neighboring town-
ships. Of course in the early days there were a number of
isolated plantations, yet in these cases the length of the
boundary line was fixed in miles. The extension of the
boundary lines of a plantation was equivalent to a grant of
land to that community, and was very frequently, in fact one
may safely say invariably, made for the first fifty years. In
1673 the boundaries of Wethersfield, Hartford and Windsor
were extended five miles eastward on the east side of the river,
" for the encouragement of the people to plant there," * and in
1671 the bounds of Windsor were extended two miles north-
ward.' A few years after, eight inhabitants of Wethersfield
petitioned the court for a town grant of ten square miles, with
the usual privileges and encouragements, for the purpose of
erecting a plantation.^ This method was not so common in

'Col. Rec. I, pp. 208, 221, 230.

*Col. Rec. I, pp. 63, 303. la the Utter case the grantee paid for the
land to the court.

»Col. Rec. I, pp. 64-5, 410. There is a collection of legislative acts for
the encouragement of Connecticut industries in the Report of the Borsau
of Labor Statistics for 1887, pp. 47 ff.

*Col. liec. II, pp. 185, 187.

»Col. Rec. II, p. 155.

• Col. Rec. Ill, 99.

40 The Rivet' Towns of Connecticut.

Connecticut as in Massachusetts, where by far the greater
part of the land disposed of was granted to communities of
settlers.^ The rule was early made** in Connecticut, as also in
the other colonies, that neither town nor individual should
purchase from the Indians without the sanction of the court ;
this was enforced^ both for the protection of the Indians and
for the maintenance of the dignity of the court.

In 1666, counties were established, and four years after-
wards the General Court gave to each six hundred acres for
the support of a grammar school,"* although the school-teacher
himself does not appear to have been assisted as was the case
in Massachusetts.^ By 1 674 the colony probably felt that she
had rewarded her servants, provided for her towns and schools,
and might, herself, reap some benefits from her lands, for we
find in that year a committee appointed to examine and dis-
pose of certain public tracts at the best price ; *^ this did not
mean, however, a cessation of private grants from the public
domain.

A word must be said regarding the patent which was given
to each town in 1686 for the better securing of its lands.
This was at the time of the Andros government. Not only
were the lands actually occupied by the towns included in the
patent, but also large tracts of public lands within the juris-
diction of Connecticut, to prevent their falling into the hands
of Andros. These were granted in free and common socage.'
To Wethersfield, Middletown, and Farmington a large tract
in their immediate vicinity was given, and they were enjoined
to erect thereon plantations.^ To Hartford and Windsor was

' Egleston, Land System of N. E. Colonies, J. H. U. Studies. IV, p. 571.

2 Before 1650, Col. Rec. I, pp. 214, 403.

3 Col. Rec. I, pp. 418,420.
*Col. Rec. II, p. 176.

6 Mass. Col. Rec. I, p. 262.
«Col. Rec. II, p. 231.

■' "Not in capite nor by knight service." This is a curious retention of
a formula, for feudal tenures were abolished in England in 1661.
8 Col. Rec. Ill, p. 235.

The Land System. 41

given nearly the whole of the present Litchfield County. In
the latter case, after the downfall of the Andros rule, the
colony tried to recover the tract of patented land, but the
towns clung firmly to what they claimed as their rights, and
in 1715 took measures for the proper disposal of the land and
the laying out of one or two towns therein. These towns
claimed the right contained in the grant of the Greneral Court
to give full and ample title to any purchaser,^ and had two years
before taken possession of this tract in good old Teutonic
fashion by turf and twig.* They now appointed a committee
to act as real estate agents for the town. A compromise was
afterwards effected. The tract in which they hoped in 1715
to lay out two or three towns now contains nearly twenty-five.

'Col. Rec. Ill, p. 177-8; Hart. Town Rec, March 3, 1714-15.

'Wind. Rec, Dec. 23, 1713. This method of taking possession was
formally required by English law. Its origin antedates the use of written
documents ; a twig broken or a sod cut symbolized the transfer. The
later written deed simply took the place of the living witnesses required
by the old form ; the ceremony continued until a late date. Two quota-
tions will suffice. " Voted that two of said committee shall go and enter
upon said propriety and take possession thereof by Turf and Twigg, fence
and enclose a piece of the same, break up and sow grain thereon within the
enclosure, and that they do said service in right of all the proprietors, and
take witness of their doings in writing, under the witness hands." (East
Hart. Rec, Goodwin's East Hartford, p. 150.) The second quotation
illustrates the transfer of land. Two inhabitants on deposition testify,
**a8 we were going from Hartford to Wethersfield, Jeremy Adams over-
took us and desired that we would step aside and take notice of his giving
possession of a parcell of land to Zachary Sandford, which we did, and it
was a parcell of land ... on the road that goeth to Wethersfield, and we
did see Jeremy Adams deliver by Turf and Twigg all the right, title and
interest that he hath or ever hath of the whole parcell of land to Zachary
Sandford.'* (Hart. Book of Distrib., p. 899.) See also Col. Rec. Ill, 805.
The same custom was in use in other colonies. H. B. Adams, Village
Communities of Cape Ann and Salem, J. H. U. Studies, I, p. 308. IW.man,
Maryland, II, p. 872, note. *'QIeaner'8" Articles, Boston, Reo. Comm.,
Tol. V. p. 117.

42 The River Towns of Connecticut,

Early Town Allotments.

The system of land allotments was not essentially different
from that which was in vogue in the Massachusetts towns.
The nature of the settlement was different, and in consequence
there was probably less order and symmetry in the apportion-
ments. One can almost trace out the story of the settlement
from the nomenclature of the Town Votes and Land Records.
Wethersfield has her "adventure lands" and her town origin-
ally of two distinct parts, with the meeting house square
between, betokening an earlier and latter infusion of settlers.
Hartford has recorded the " Indian's land," " Dutch Point,"
and "Venturer's Field" as existing before the coming of
Hooker, and Windsor has references to " Plymouth Meadow,"
and to the " Servants " (Stiles party) who preceded the Dor-
chester emigrants. The lands seized by these early comers
were in advantageous positions, and their occupation was
recognized as entailing a legal right to the lands.

The adventure lands of Wethersfield ^ form one of the most
fruitful plateaus in the present township ; a triangular-shaped
plain of splendid arable, out of reach of freshets and capable
of high cultivation. This plain was closed in on each side
by the Wet Swamp and Beaver Brook, which water-drugged
courses gradually drawing closer together met at what was
called the " Damms," a division of land half spur and half
swampy meadow caused by the artificial damming of the
stream by the beavers. Parcels of ten, twenty and seventy
acres are found in the Records, adjoining each other on this
plateau, and forming the largest open tract in the immediate
eastern vicinity of the lower part of the town. As other
settlers appeared, they occupied lands taken up somewhat in
the order of their arrival. The home-lots were divided origi-
nally into two communities, the earlier of whom settled on

* The writer has made a detailed study of the system of early allotments
of one town, Wethersfield, as can only be learned from her book of Land
Records.

The Land System, 43

lands adjoining those of the Adventurers, the other farther to
the north took advantage of the neighboring water facilities
and the convenience of the harbor. The home-lots were of
nearly the same size in the majority of cases, about three acres,
nowhere less than two, and only exceptionally six, ten, thir-
teen, and eighteen.^ It is likely that in the larger homesteads
a sale had taken place, not recorded, and the accumulation of
property thus early begun. Uniformity is the rule, and shows
that whether in a general meeting of the proprietors or other-
wise, a certain system was agreed upon. The lay of the village
streets marks the double settlement, although the two parties
at once united in the division of lands. The system of the New
England colonics shows unmistakable traces of the influence
of the mother country, yet only in its general bearings and
principle of commonage does it have any direct resemblance
to the early English or early Grerraan tenure. In its direct
apportionment of small shares of all kinds of land to each
inhabitant, to his heirs and assigns forever, the system is sui
generiny though in its more general aspect of arable, common
and waste land it is similar to the older form. Every New
England village divided the lands adjacent to the town, the
arable and meadow, into large fields, according to their loca-
tion and value, and then slowly as there was need subdivided
these fields in severalty to the proprietors, according to some
basis of allotment. Means of access, or "ways," were cut into
or through the fields, answering to the headlands in the Saxon
arable, and these, with the more dignified but not necessarily
more passable " highways," formed sufficient boundaries to
and division lines between the different parts of the meadow.
Apparently every new-comer who became an inhabitant either

' In Watertown, whence so many of the settlers came, the recorded home-
lots varied in size from one acre to sixteen, with an averaf^e of five or six
acres. (Bond, Watertown, p. 1021.) Yet one is not sure that this represents
the original allotment, for in Hadlej, settled partly from Wethersfield in
1659, the size of every home-lot was eight acres, and church members and
freemen had no advantage over others in the distribution of lands, a fact
which was almost universally true. ( Judd's Hadley, p. 83. )

44 The River Towns of Oonnedicvi,

purchased or was given a share in the lands of the town ; not,
indeed, a lot in every field, for the old fields would soon be
filled up, but in the new fields, which, opened or " wayed" off
in advance, were a ready source of supply. Certain sets of
men held their lands almost exclusively in certain fields,
having no part in the division of other inferior fields, which
apj)ear to have been assigned to late comers, who evidently
came to the settlement in parties of three or four or a dozen
at a time. Human nature is much the same the world over,
and there are clear traces of an ancient and honorable class,
even in the infant community. They held the best lands and
had the largest shares undoubtedly because they contributed
the largest part of the purchase money. So far as practi-
cable, lands were held in the neighborhood of the home-lot,
from obvious reasons. This is chiefly true of early comers,
though by no means a fixed rule. Besides the artificial
bounding of the large fields by " ways," natural boundaries,
as river and mountain, were largely employed, and the names
given to these fields at once disclose their location or some
superficial or other characteristic.^ The individual plats are
simply described as bounded by highway or river, meadow,
fence or water-course, and by the adjoining lot of a neighbor.
The shape of the lots was generally that of a parallelogram,
though here again no certain rule obtained. We find the
" Triangle," " Jacob's Ladder," and a variety of other geo-
metric forms, but the rectangle is the custom. In a number
of the fields laid out^ we notice a certain regularity which
betokens design. The field was divided into two parts

'The following are some of the Wethersfield names: Great Meadow..
Wet Swamp, Dry Swamp, Long Row in Dry Swamp, Great Plain, Little
Plain, East Field, Middle Field, West Field, Little West Field, Great
West Field, Furtherest West Field, South Fields, Beaver Meadow, The
Dams, Back Lots, Pennywise, Mile Meadow, The Island, Hog Meadow,
Huckleberry Plill, Feme Hill, Fearful Swamp, Hang Dog Swamp, Sleepy
Meadow, Cow Plain.

'^ South Fields, Fields in Mile Meadow, The Island, and Middle Row in
Dry Swamp.

The Land System. 46

lengthwise, and the order of holders in one tier would be
reversed in the other, thus making the distribution more
equal. Often clusters of the same holders are found, two or
three together, holding the same relative position to each other
in different fields, which seems to show that these must have
received their allotments at about the same time, each taking
holdings in several adjacent fields. In two^ of the large divi-
sions a curious arrangement prevailed. Each field was a paral-
lelogram divided crosswise into sections. The holder of the
first section next the highway on the east also held the last sec-
tion, of exactly the same size, next the wilderness on the west.
Section-holder number two from the highway owned also the
second section from the wilderness, and so on, each holder
having two lots in this tier, symmetrically placed and of
equal size, the holder of the middle section of course owning
one large lot, because his two sections would lie adjoining
each other. The system of tiers or ranges in formal
divisions was universally employed in Massachusetts and
Connecticut, but finds no analogy on the other side of the
water, although the method of assigning these lots by chance,
in the drawing of numbers or some similar procedure, is as
old as the cultivation of the arable itself. In these early
allotments the Church comes in for its share. In fact, it was
a fixed principle in the working out of the land system to
consider the Church as a very important personage, and
assign to it lands accordingly. Its portions were consider-
ably larger than the average, and were scattered about in
nearly every one of the large fields. These allotments are
generally titled "Church lands,*' "Church lotts,'* or at the
"Churches dispose." Such lands were not taxable, and
many of them were held until a late day, not being alienable.
The terms of the grant of church or parsonage lautl are iron-
clad : " to remain an<l continue to the use of the ministry, by
way of a parsonage, forever,"' or other conditions similarly

* Little and Furtherest West Field.
« Weth. Town lice, March 28, 1066.

46 The River Toivns of Connecticut

binding. But Yankee ingenuity has eiFected a lease of many
of these lands for 999 years, thus obviating a difficulty,
though any improvements made upon them changing their
condition as church property were, by decision of the court,
taxable.

As might have been expected, a great deal of the land was
"ungiven" in the year 1640, even within the fields already
described. Amongst the hgmesteads also we find plots
reserved by the town as house lots, and the lands ungiven
within the more distant fields must have been of considerable
amount. Some of the older fields do not appear to have been
entirely divided up for forty years.^ The divided fields were
bounded by the ungiven lands, lands not laid out, and the
wilderness.

In the mind of the court, the land rights of the three towns
must have become by 1639 somewhat confused, for in that
year it ordered each town to provide for the recording of
every man's house and land, already granted and measured
out to him, with the bounds and quantity of the same.^ As
a result of this order, there exist those valuable books of dis-
tribution, upon whose records all maps of the river towns are
based. In consequence of the fact that four years elapsed
before record was made, the standard of apportionment can
only be approximately determined. The business activity of
the little colony in real estate must have been great during
this period. There were numerous withdrawals from and
occasional .accessions to the number of inhabitants, which
would occasion a considerable distortion of any original
system. It is safe to say that to each homestead there
belonged proportional rights in the upland,^ and in some cases

' Allotments were assigned in Mile Meadow as late as 1680 ; in Great
Meadow, 1G80 ; in Dry Swamp, 1654 ; Wet Swamp, 1673.

'■^Col. Rec. T, p. 37. Massachusetts in 1637 had the same trouble,
" That some course be taken to cause men to record their lands, or to fine
them for their neglect." Mass. Col. Rec. I, 301.

3 Col. Rec. I, p. 63.

The Land System. 47

the possession of a home-lot carried with it rights in every
division.^

By 1640 many of these rights had been sold to men within
the colony, and because many of the divisions were already
full we find different sets of owners in the different fields.
There are certain traces remaining of a proportion between
certain of the house lots and the meadow lots. Ratios of two
to one, three to one, are visible. In the apportioning of the
large fields there is more evidence of design, because consum-
mated at a later period, and thus subject to fewer transfers
or sales. Between the lots in the Meadow, Great "West Field,
and Naiibuc Farms we note such proportions as 14-42-84,
13-39-78,17-51-102, 19-57-195, 16-48-144, 45-135; but
we also find as many exceptions to the rule which the
above evidence might seem to offer, as there are conformities
to it. In which cases we can say that there has been a devi-
ation from an original rule through property accumulation.
The fact that in all later apportionments some basis of divi-
sion was regularly employed, points to a similar custom
before 1640. It is possible to draw the conclusion based on
slender, yet suggestive facts, that allotments in the homesteads
were made as nearly equal as possible, only varying in size
because of adventitious causes, such as size of family, wealth,
position, influence, etc. ; that allotments in the Great Meadow
were based on the right of each in the purchase land according
to his contribution ; that in the Great West Field there was
employed a three-fold allotment based on the former division ;
and in the Naubuc Farms division, there was used a two-
fold allotment based on the Great West Field.'

> Col Keo. I, p. 445. ** Rachel Brundish hath 14 acres of meadow, her
house lott 3 acres, and what upland bolonf^rs thereunto in every divysion,
saveing what her husband and she hath sold, vizt. her shaire beyond the
River and 6 acres in Pennywise."

*See below, p. 55, n. 2.

48 The River Towns of Connecticut,

Individual Grants.

Many of the grants already described were individual, but
of a somewhat different nature from those of which we have
mention in the Town Votes. Before 1640 the town was
supplying itself with land, after 1640 it began to supply new-
comers. In order to properly understand the situation we
must know something about that town oligarchy, the pro-
prietors. They were the body of men who owned the land,
who had a dual character as proprietors and as mhabitants ;
this is recognized in the phrase frequent in the records, pro-
prietors-inhabitants. Herein the three towns present decided
differences. In Hartford, while many grants were made by
the town in town meeting, yet much was done in proprietors'
meeting, and general divisions in but one or two cases were
made there also. In Windsor, on the other hand, no grants
were made in town meeting except for encouragement of
trade, and then such lands were given from the distinctly
town lands, as town commons, town farm, town orchard ;
all was apparently done by the proprietors. But in Wethers-
field the town and proprietors were practically one, and all
grants, as well as all general divisions, were made in town
meeting. The latter case is then specially worthy of exam-
ination. The earliest division of lands was between thirty-
four men, who claimed, as the number of inhabitants increased,
their original right. In 1640, after the order of the General
Court giving towns power to dispose of their own lands, and
before the recording of lands was completed, an agreement
was made between these thirty-four men and the Town and
Church, by which they were given an equal share in the lands
to be divided, whether to be held as common land or in
severalty.^ This may have given to the Wethersfield system
of grants its peculiarly town character. The proprietors'
right to the ungiven lands was generally held in abeyance,
and practically the town held the privilege of granting lands

'Col. Red, p. 63.

The Land System, 49

at her pleasure. Two facts are, however, to be noticed ; first,
that the proprietors or their descendants held — when they
cared to exercise it — the balance of power in town meeting;
and second, that in case of mismanagement, the proprietors
exercised their right and it was recognized by the town. Yet
in the granting of single lots to new-comers, the proprietors
allowed them to be given by the town in the name of the
town in town meeting.

For many years after the early allotments no general
apportionment of lands was made except in the shape of
single grants by the to^^^l to private individuals, according
to phrases in the records, " which was given by the Church
and Town," " which was given him by the Church," " which
was given him by the Town."^ The grant was either gratui-
tous or by request, more frequently the former. Often the
amount is not stated in the vote, and when given, rarely
exceeded twenty acres. House lots were given as well,^ and
in the case of gratuitous grants, the desire of the receiver
must have been in some way expressed, personally or through
his neighbors. The town as well as the State encouraged
industries and looked out carefully for all undertakings
which promised benefit or advancement. To any one of
good character and acceptable to the town, land was granted
in very liberal quantities and with considerable liberty in
the selection. The grant was almost invariably accom-
panied by conditions, as in the case of a grant to Governor
Winthrop for a mill ; " if the said hon'" Gov"" Winthrop doe
build mill or mills according to his proposition made to the
town, that then this grant to be confirmed and settled upon
the said Winthrop and his heirs forever, or else to be void
and of none effect."* Governor Winthrop failed to comply

' Wetb. Rec., Dec. 28, 1649 ; Jan. 25, 1652, and Land Records, rol. I,
passim, under date 1640-41.

* House lots were often taken directly out of the highway when the width
allowed.

* Weth. Rec., Jane 8, 1661.

50 The River Towns of Connecticvi.

with the condition, forfeited the land, and it was regranted
six years hxter.^ But grants for the support of industries
(and these and grants for recompense are the only ones found
in the Windsor Town Records) were not alone subjt^ct to con-
ditions. The principle that granted lands must be improved
or built upon was adopted by Hartford as early as 1635,
when twelve months was made the limit, the town at the
same time reserving the right of necessary highway through
any man's land.* This rule was relaxed in favor of promi-
nent individuals, sometimes by an extension of the time limit,
and sometimes by an entire freedom from the condition.^ In
case of forfeit, the grantee was generally paid the full value
of expended labor. As it was a bad policy to observe too
tenaciously conditions which would discourage inhabitancy,
the town seems to have enforced the forfeiture and then to
have avoided bad results by a technical subterfuge ; the same
piece of land was regranted, or a new lot was given in another
quarter."*

Another condition provided for in the case of freed servants
or repentant sinners was the voiding of the grant in case of
sale or alienation. This was to prevent imposition in case of
doubtful characters, whose efforts toward uprightness the town
wished to encourage. A kind of police regulation is embraced
in one condition, best explained by quotation. Thirty acres
were given to John Stedman on the town frontier next the com-
mon, " on the considerations following, viz. that the said Sjt.
John Stedman shall secure, preserve, and defend the timber,
fire-wood, and stone belonging to this town from all intruders
thereon, especially from the inhabitants of Hartford, . . .
and on his failing of the considerations mentioned, he is to

^Weth. Rec.,Nov. 4, 1667.

2 Hart. Rec. 1635, 1, p. 11.

3Hait. Rec, Jan. 14,1639.

* " Mr. Alcott's house lot being forfeited is taken into the town's hands
until the next general meeting, who will either let him have that again
or give him answer in some other kind." Hart. Rec, Jan. 10, 1639,
I, p. 115.

The Land System, 61

forfeit his said grant." ^ Indeed, conditions were by 1650
such a matter of course, that one vote, covering some half a
dozen grants, made them all conditionary in one breath.
" All these men had their lands given them by the town upon
the same conditions, which men had and was formerly tied to
and bound to."^ Failure to carry out these conditions, as
already said, rendered the grant void, and the land reverted
to the town. Often, instead of a distinct allotment of new land,
the grant took the shape of an enlargement or extension of
land already owned. Here no condition was required, as the
grantee was already well known and his reputation estab-
lished. Two other varieties of land allowance need to be
mentioned, which would not increase the number of holdings
in severalty, as would be the case with those already dis-
cussed— the grant of an equivalent elsewhere when land of
an inhabitant was taken for street or highway,^ or uninten-
tional injury had been made by a later grant ; and the giving
of a portion to some needy person, generally of only an acre
or two, to improve for a short time rent free, on condition
that the fence be maintained.* Rent, when charged, was
small — ten shillings per acre.* The laying out of all the
above grants was done by the townsmen or a committee selected
for the purpose, and it was not infrequent that questions of
amount and location were left entirely to the discretion of the
committee.^

• Weth. Rec, January 3, 1686. There is something curiously similar in
this instance to the position of the lands of the Saxon hau-ard, who was
given his lands along the border of the manor, so that, in case of damage
by loose animals, his own lands would first suiler. The town fathers evi-
dently appreciateil the fact that Sjt. Stedman, holding land where he did,
would keep a more careful lookout.

' Weth. Rec, Dec. 28, 1649.

Mlart. Ilec. .Tan. 6. 1651.

Mlart. Rec., Feb. 8, 1668.

•Wind. Rec, Feb. 4, 1684.

*The granting of a lot w&s, of course, confined to inhabitants who were
newcomers, and who are to be distinguished from the proprietors. Hart-
ford has a list of " the names of inhabitanoe as were granted lotts to

52 The River Toivns of Connecticut

Although from the absence of record we have said that the
later ^^'indso^ grants were made by the proj^rietors, yet we know
that the earliest allotments were made by the " Plantation.''^
The Hartford proprietors were an important body, but were
satisfied to let the town shoulder the burden of making indi-
vidual grants, while they kept in their own hands general divi-
sions. The Wether sfield proprietors were dormant, not dead.^
Their meetings were fused with those of the town, and troubles
arose frequently between the established few who paid the
greater part of the taxes, and the new-comers or less important
inhabitants.^ The former asserted their previous rights in the

have only at the Townes Courtesie, with liberty to fetch wood and keep
swine or cows by proportion on the common." (Book of Distr., p. 550.)
The privileges of granted lands were generally confined to the owner.
Hartford early passed a vote denying the privilege of felling trees on
granted land to any except the owner. (Hart. Rec, Dec. 23, 1639.)
In Windsor all granted lands were considered free for the inhabitants to
use for the obtaining of wood, timber and stones until they were enclosed.
(Wind. Rec, Feb. 4, 1684.) An act like this was intended to offset the
monopoly of the proprietors, and to hasten occupation and cultivation.
Two years after Windsor extended the privilege of every inhabitant for
the obtaining of timber, stone, wood, and grass to all unenclosed and
undivided lands. (Wind. Rec, Jan. 5, 1686.) On this point, however,
see the section Proprietor's Commons.

'Wind. Land Rec, vol. 1, passim.

- That the proprietors still lived is evidenced from this vote : *' That no
land shall be given away to any person by the Town, unless there be legall
notice given to all the proprietors before the meeting that is intended by
the Selectmen to give away land aforesaid." (Weth. Rec, March 18,
1678-79. ) The same factors existed in each of the towns, only differing in
the ratio of influence in town affairs. In Wethersfield the town over-
shadowed the proprietors ; in Windsor the proprietors overshadowed the
town, while in Hartford the balance was about equally preserved.

3 Much the same state of things existed among the proprietors of Windsor.
There were the historic proprietors who had primordial and inherited
rights, and the new class who had purchased rights and held their posi-
tion by virtue of their money. This led to constant disagreements and
factional disputes. The cause of this lack of harmony was the question
whether a majority vote was to be decided by counting the number of
hands held up, or by reckoning the sum total value of rights thereby
represented.

The Land System, 63

iiiidi\4ded lands, and protested against the indiscriminate
giving away of common land, particularly that which lay in
the stated commons, streets, and highways, by these less con-
spicuous taxpayers. The latter, apparently taking advantage
of an apathy toward the town meeting, and consequent
absence of many of the proprietors, gave away to persons
undeserving of the same, the lands belonging, as the protest-
ants claimed, to the proprietors and inhabitants in general.
Not only was this very caustic protest entered in the records,
but a special vote was passed providing for the proper
stirring up of sleepy farmers when town meeting was to be
held.^ The fact of this protest shows that among the towns-
people themselves, all undivided lands were considered as
belonging to the town, not in its corporate capacity, but as
composed of the proprietors and inhabitants of that town, and
that indiscriminate alienation of any portions of these lands
was a direct infringement on the rights of such inhabitants
and proprietors.

The liberal policy pursued by town and proprietor was
not sufficient to exhaust all the land in the immediate vicinity.
None of the smaller parcels granted were far from the towns,
except a few, which formed the partial basis of new villages^
three or four miles away, often across the river. Therefore a
more rajnd process was in a few cases effected, and a system
of dividing up vacant tracts established. Such tracts were
not large, and the number of men interested therein was
limited. The principle contained in the gift of such lands
was akin to that of the individual grants, while the method of
division bore a resemblance to that most prominently employed
in the larger divisions. The grantees were always inhabitants
already holding land in the township, and the existence of an
amount of ungiven land, upland or meadow, favorably situ-
ated, would lead to a petition by divers inhabitants for the

• Weth. R«c., Jan. 28, 1697-08.

•In this sense were the words town and village used in the Connecticut
colonj. The town wm a political unit, the village was not

54 The River Towns of Connecticut,

parcelling of it out to them. This petition would be acted
upon in town meeting, and a committee appointed to inter-
view the petitioners and fix the basis of allotment. The pro-
portion was usually that which existed already in some divided
field or former grant. In one of the earliest instances, seven
petitioners were given three acres, and an eighth was made
residuary legatee.^ In another, six inhabitants received all
the undivided land in Wet Swamp, and with it the care of
what remained unassigned of the common fence.^ Two years
later a large tract of upland was divided in fourfold amounts
to those holding allotments in Mile Meadow. The records
fail to state the number of partakers, or whether it was done
by request or otherwise.^ In Hartford such a division took
place when the land lying in the rear of five home-lots and
extending to the river was divided to the owners of these
lots, according to the number of acres each had therein.*

One interesting case of division is found where the land is
allotted according to proportion of meadow fence. This
fence was, by order of the town, removed from the lowlands,
extended along the top of the hill, and again turned at right
angles toward the river. A large grant was made to those
removing their fence, and it was proportioned in the following
manner : the land was divided by a path into two fields, one
126 rods wide and the other 31 rods wide. To every man
there was given in the larger tract one rod's width of land
for every three rods which he owned of fence, and in the
smaller tract for every eight rods of fence was allotted half a
rod's width of land. The allotments therefore ran in narrow
strips east and west.^ This division took place in one of
the outlying settlements which afterwards developed into a
separate town. Toward the close of the century we begin to
find steady encroachment on the generous widths allowed for

1 Weth. Rec, March 31, 1660.

2Weth. Rec, Feb. 16, 1673.

3 Weth. Rec, Jan. 1, 1674.

4 Hart. Rec, Jan. 14, 1683.

5 Weth. Rec, Nov. 4, 1672 ; Dec 25, 1707 ; April 24, 1713.

The Land System, 55

highways. This betokens a scarcity in the adjoining fields.
It had been previously done in all the towns, for convenience
in establishing certain industries near at hand ; but later we
find private grants taken directly out of the highways and
town commons.

Later General Divisions.

For many years after the settlement, grants of a nature
already described, together with the accretions and trans-
ferences through alienation or purchase, were sufficient to
satisfy the needs of the townspeople. The boundaries
between the towns became approximately though not finally
determined on, and a steady growth in all directions was
taking place; in consequence of which, general divisions
began to be called for. We know that many of the earliest
allotments had been of the nature of general divisions, and
Hartford passed a rule in 1639 voiding any such division
made by a part of the inhabitants (proprietors) without the
knowledge and consent of the whole,^ and there is afterwards
a reference made to a rule adopted for division of lands of a
still earlier date.^ The earliest division of which we have

'Hart. Rec, Jan. 7, 1039.

' Hart. Book of Distr., p. 582, referring to rule of Jan. 3, 1639. What
this rule was we cannot say. It may have been the restatement of the
rule adopted when the lands were first allotted. We have extant the list
of subscriptions to the general fund according to which the settlers were
taxed for further purchases and according to which they received land in
the early divisions. In this Mr. Ilaynes is credited with 200 and Richard
Risly with 8 shares or pounds, and others with intermediate amounts. As
these amounts are not proportionate to the wealth of the persons men-
tioned, it is likely that the principle of limitation wns applied in Hartford,
by which no one was allowed to put in more than a certain amount ; thus
all would be given a fair share in the divided lands and would bear a
proportionate share in the burden of future purchases. This principle was
probably applied in New Harea (Atwater's New Haven, p. 1C9; New
Haven Col. Rec., vol. I, p. 43), and we know that it was so in Guilford,
where the limitation was £500. (Hist, of Guilford from the AISS of
Hon. Ralph D. Smith, p. 54.) That such rule of division with possible
limitation was in force in each of the river towns we think could be
demonstrated.

56 The River Towns of Connecticut

record was in 1641, when the vote was passed,^ though its
j)rovisions were not fulfilled until 1666. The tier to be
divided was on the east side of the river, and was made up
of two parts, in the allotting of which the differences in the
quality of land were recognized. In the lower of these parts
land was given, we might say, at its par value; that is,
every one to whom land was given in the southern tier
received one acre of land for each pound of right in the
undivided lands, or, as the record says, "one hundred for
one hundred "; while in the northern half a premium of five
per cent was allowed, that is, for every hundred pounds right
the proprietor was to have one hundred and five acres. The
first allotment w^as made in a tier of a mile in width, and as
the vote provided for a tier of three miles width, the allot-
ments were all trebled.^ This was properly an extension of
the original allotments, for certainly Wethersfield, and pro-
bably Windsor, divided the three mile tract in 1640.

Practically the first general division was that of Wethers-
field in 1670. Up to this time the whole territory stretching
from the West Fields westwards into the unbroken country was
known as the Wilderness, and served as a convenient pasture
for the masting of swine. Highways had been cut through
it by energetic woodsmen and cutters of pipe-staves, by means
of which access was had to the lands soon to be laid out.
This land lying along the western boundary the inhabitants
proceeded in town meeting to lay off in the shape of a tier a
mile in breadth, and to divide it up among the "inhabitants,
that is to say, to householders, that live on the west side of
Conectecot river."^ The land was divided into seventy-six
shares, one share to each householder. The amount of the
share was fifty-two acres, and each received an equal amount,
" one man as much as another." They were lots in the good
old Saxon sense of the word, for the inhabitants cast lots for

J Hart. Rec. I, p. 52.

2 Hart. Rec, Feb. 18, 1640; Feb. 16, 1665.

3Weth. Rec, Feb. 23, 1670.

The Land System. 67

them; the method is not told us, but he or she (for there
were five women among them) who drew lot number one
took the first share on the north, number two the next, and
so on. One important distinction is at once to be noticed
between this grant by the proprietors-inhabitants of land to
themselves, and grants of single parcels "by the Towne" to
new-comers. In the latter case grants were not necessarily
made in fee, many were revoked, but in this case it was
expressly stated that the land was to be held by the inhabi-
tant as a proprietor, to be his and his heirs' forever. This
emphasizes the view held by the inhabitants regarding the
ownership of the undivided lands.

But the growth of the little community soon demanded
further division of lands, and a new principle was adopted,
much less communistic than the last, which seems to have
been based on a "social compact" theory that all men are
free and equal and all are to share alike in the distribution
of benefits. In 1695 one hundred and sixty-five inhabitants,
or their proxy, met for the drawing of lots. Five great tiers
were laid out on three sides of the wilderness, and the
sharers drew for their position therein, receiving an amount
of land proportionate to the tax assessment for 1693, at the
rate of half an acre of land for every pound in the list of
estate.

In the meantime Hartford had been making a new division,
and that, too, along its western boundary. This was done by
the proprietors in their own meeting in 1672. The same
rule was adopted as had been employed in the earliest
divisions. By this time many of the rights had changed
hands, but the proportion still remained the same. The
basis of division of this tier, which was a mile and a half in
breadth, differed so materially from that of about the same
date in Wethersfield as to be somewhat striking. Instead of
equality we have shares varying from a width of three rods
to a width of ninety-one rods, and instead of grants to house-
holders we have a division to original proprietors or their

58 The River Towns of Connecticut,

representatives.^ The Wethersfield method had a certain
advantage, in that a nearly exact division of all the tier could
be obtained. In Hartford, however, there was an overplus,
and five years later the proprietors took this in hand, and the
scheme adopted shows the proprietors in a new role which
does them credit. This overplus of nearly six hundred acres
was laid out in five tiers, running north and south, of which
the middle tier was to be divided into twenty-acre lots and
the others into ten and fifteen-acre lots, and when this was
done, the committee was authorized to " grant these lotts to
such of the town of Hartford as they shall see in need of the
same, and as they judge it maybe advantageous."^ In point
of fact, however, the tiers were divided into much larger
lots, and to only thirty-one "needy" persons. Probably the
committee put their own construction on the order.

The general division of the Windsor common and undi-
vided lands was long delayed. The first definite proposal to
that end was not made until 1720, when a scheme was dis-
cussed and voted by the town for laying out and dividing a
strip of land running entirely around the township, of a mile
in width on the east side of the river and half a mile on
the west. But this proposal was met by the protest of the
proprietors, and, though the plan continued to be discussed,
it was not until 1726 that the two bodies came to an agree-
ment. The town seems to have taken the matter into its own
hands, perhaps on account of the wranglings of the proprietors
among themselves and the complications which had arisen in
their claims. The same trouble resulted from an attempt to
divide the Equivalent, a tract of land granted to the Windsor
proprietors in 1722 by the colony, to compensate for several
thousand acres of their territory which, by the arrangement of
the boundary line, had been taken from that town and added to
the lands of the Massachusetts colony. As early as 1725 the
proprietors voted to divide these 8000 acres to each "pro-

^ Hart. Book of Distr., pp. 581-583.
«Hart. Book of Distr., p. 584.

The Land System. 69

prietor Inhabitant, according to the list of Real Estate in the
year 1723, viz., such Real Estate as the proprietors hold in
their own right." ^ It was not until 1743 that a sufficient
agreement was reached by the conflicting parties to allow the
actual division to be consummated. At that time the mile
and half-mile tiers were divided into 219 lots, and the
Equivalent into 367 lots, the basis of allotment remaining as
before, viz. the list of freehold estate. Windsor made up for
her lateness of division by her activity when once started,
and from this time on her surveyor was kept well employed.
The enactment passed by the Greneral Court establishing
the privileges of the proprietors and creating them a quasi-
corporation, brought about in the three towns a final division
of the common lands about the middle of the eighteenth
century. Windsor led oiF in 1751, giving to each proprietor
a lot according to his list, and then finding some land left

'Wind. Propr. Rec, p. 2. The directions given to the committee for
division may be of interest :

"1. You are to inspect the list of freehold estate given into the listers
in the year 1723, and all lands belonging to orphans set in said List to
other persons you are to allow divisions for such lands to the orphans only.

*'2dly. Where you have it made evident to you that any person hath
put land in that List which he hath purchased and the seller reserved in
the time of the purchase his Rights of Division for said Land, in that
case you are to allow Divisions for that land to the seller only.

" 8dly. You are to lay out the land equally as you can according to the
Rule of proportion set by the proprietors in their voat, having Respect to
Quantity and Quality.

** 4thly. You are to lay out convenient Highways in said Lands accord-
ing to your best judgment.

•*6thly. Where any person in the list of 1728 hath set to him any
Lands that he had in Improvement upon the Commons, in that case you
are to allow no division for the same.

•* 6thly. When you have found out the number of the persons that are
to receive in the Division, you are to numl)er the Lotts to them, and
then cast a lott to determine where each proprietor shall have his lot
in the Teare of Lotts in the Division." — Wind. Propr. Rec., pp. 2-3. Sim-
ilar rules were adopted in most of the divisions made in each of the towns
at this time. Regarding the history of the Equivalent, see Stiles. Hist.
of Windsor, pp. 280-268.

60 The River Tovms of Connecticut.

over, the committee proceeded to " lay to each Proprietor a
small lot " in addition.^ These small lots were from half an
acre to six acres in size. Wethersfield followed in 1752, and
there we find an unexpected show of legal formula and red-
tapeism. The proprietors sat in solemn council and decided
to divide. Strengthened by the decree of the General Court,
they passed the customary restrictions and limitations in
connection with orphans and landlords. Nine months after-
wards did the town, quite in submissive contrast to its former
votes, establish, ratify and confirm the action of the pro-
prietors.^ Hartford proprietors two years afterwards did the
same, with the same ratification from the town, with, however,
an explanatory clause which is worth quoting. " To divide
a certain large tract . . . which tract the Inhabitants have
quietly held as their own, enjoyed and improved from Time
beyond the memory of man, and whereas the Inhabitants
being now sensible of great difficulty and contention that is
likely to arise with regard to the claims and pretensions of
sundry persons claiming in opposition to the method of
division agreed upon, and the inhabitants being now very
sensible that no division can be made more for the peace and
good will of all concerned than that agreed upon, vote that
they grant and confirm unto the afores'^ Proprietors, all the
afores^ Common Lands in proportion as is stated in said list
for them and their heirs forever.^'^ The method agreed upon

^ Wind. Propr. Rec, p. 314.

^Weth. Rec, Dec. 25, 1752. Proprietors' meeting, in the same volume,
Feb. 20, 1752.

^ Hart. Rec, March 25, 1754. The Hartford division of 1754 was after
this manner. The commons hiy to the west of the town, and beginning
at the southern boundary, thirty tiers of land were laid out, separated
laterally by four principal highways and longitudinally by some twenty
smaller and shorter highways ; the length of this large tract was the
width of Hartford township from Wethersfield to Windsor bounds, and its
width about one mile. The size of the tiers was very unequal, some being
divided into as many as forty lots, while others into as few as five, four,
and two. This was partly owing to the position of the already established
highways and the coursings of a small but meandering stream. Four

The Land System,

61

was an apportionment according to the grand list of the
inhabitants, made in 1753, with the restrictions as in the
other towns.

The following diagram will help to explain what has
already been said. It represents the Hartford and Wethers-
field townships, and pictures the scheme of tiers or ranges
and the land basis of new towns.

1 i« the three-mile ti-act division of 1640 and 1606 ; 2, the equal division
of 1670 ; 3, the west division of 1672 ; 4, the overplus; 5, the division of
1695 ; 6, a division not mentioned before l)ecause consummated after East
liartford became a separate township ; it was a part of the Five Mile Pur-
chase, and shows the land basis of the town of Manchester.

With these divisions and with the carrying out of a few
matters of recompense and equivalents, that all might be

hundred and serentj-seven proprietors shared in this division, which
adjoined the west division lots, now West Hartford, on the west. (Prom
copy of a MS in possession of Mr. Iloadly, found among the Seymour
papers.)

62 The River Towns of Connecticut

content, the mission of the proprietors practically ended.
But the association still lingered and meetings were sporad-
ically held. In fact, the common and undivided lands existed
in Windsor as late as 1787, and traces of such are found in
Hartford in 1785. The last meetings of the proprietors were
chiefly for the purpose of appointing committees to search
for undivided land, if there should be any remaining, which
when found was to be divided to whomsoever had any claims.
In case all claims could be met and land still remained, the
committees were ordered to sell the residue, whether of lands
undivided or of lands left for highways which were not
needed, and after deducting from the amount arising from
such sales a sum sufficient to pay themselves for all their
trouble and expense, to give over the remainder to the eccle-
siastical society of the town, the interest of which was to be
appropriated to the support of the ministry or school, accord-
ing to the discretion of the society. Thus with the object
for its existence withdrawn, and with the resolution of the
common lands into holdings in severalty, the association of
proprietors became no longer necessary and died for lack of
a raison d^etre.

It will have been noticed that the system of general land
division which obtained in Connecticut only differed in the
different towns as regards the basis of allotment. The form
was invariably that of ranges or tiers, often one but some-
times many lying adjacent to each other and separated by
highways. These tiers were shared into sections or strips
generally designated as of so many rods width, for the length
would be uniformly the same. It is difficult to see the
economic value of the extreme length of many of the sections
thus laid out. When the length of a lot is three miles and
its width a few rods, successful agriculture must be at a dis-
advantage. In many cases these were wood lots, but by no
means in all. It is evident that many of those who received
shares in the division sometimes sold them before they took
possession, and it was to prevent such action that the Hart-

The Land System, 63

ford proprietors voted at the time of the division of the
overplus that no one should sell his lot before he had fenced
it in and improved it.^ Grenerally, however, farmers soon
removed to their sections and began improvement and culti-
vation, and it happened, as might have been expected from
the sha|)e, that great inconvenience resulted in preserving the
bounds and cultivating the narrow strips.

As yet nothing has been said of the division of the Five
Mile Purchase, the tract granted by the General Court to the
towns in 1673. For our purpose it is only interesting as
showing the origin of a proprietorship. The towns on
receiving the grant at once provided for its purchase from
the Indians, by a rating distinct from the other town rating,
"that so the just sum of every man's payment to this pur-
chase might be known for an equal division of this land
according to their payments."^ The rate was a halfpenny
upon the pound in Wethersfield, and one hundred and four-
teen inhabitants became the proprietors of this tract. The
highest amount subscribed was seventeen shillings eight
pence, and the smallest nine pence f this to pay for a tract
containing thirty square miles! For drawing up a special
rate a special committee was appointed. Stringent rules
were made regarding such as neglected to giv^e in a new list
at such a time, and in case any person falsified his statement
and put in lands not owned he was denied a share in the
common division. Special summons w^ere given to the
inhabitants at the time of drawing, as well as information
as to where it was to be done, and the town clerk was the
secretary of the meeting.

Proprietors' Commons.

For a long time the common lands above described were
in the hands of the proprietors or inhabitants-proprietors of

< Hart. Book of Dittr., p. 584.
»Weth. Ilcc.Oct. 10. 1078.
*Weth. LawdReo. Ill, p. 08.

64 The River Towns of Connecticut.

the town, but it must not be supposed that the exclusive
])rivilege of these large tracts of unimproved land was con-
fined to the limited number who claimed ownership. In
])ractice all the inhabitants made use of these commons, as
the above quoted vote of the Hartford inhabitants shows,
restricted only by self-imposed limitations, passed in town
meeting. The value of the commons before division lay in
their furnishing pasturage for horses, cattle and sheep, and
providing the town with timber, stones, earth and grass. It
is uncertain just where the earliest of these lay; there is little
doubt, however, that many of the fields mentioned in the
books of distribution were at first used as commons and
soon after divided. Traces of them are found in Hartford
in the old ox pasture, the ox pasture and the cow pasture.
But the greatest commons were set off some years later when
the cultivation of sheep assumed prominence. All the towns
had these large strips of commonage, from half to three quar-
ters of a mile wide. Wethersfield in 1674 laid off a large
tract containing a thousand, and afterward twelve hundred
acres, " to remain for the use of the Town in general for the
feeding of sheep and cattle forever."^ The Hartford tract,
divided iu 1754, retained its old name, the "Town Com-
mons," for some years after it had ceased to be such. There
was also the half-mile common next the Wethersfield west
division, and the half-mile common on the east side of the
river in Windsor township, and the larger tract in the same
township adjoining the lands divided in severalty on the
west side. All the New England towns had these fields of
common land, for the settlers had been accustomed to the
tenure in England, where it had existed from earliest times.
In fact, the principle of commonage is as old as the settled
occupation of land itself, and is not confined to any one class
of people, but can be found among nearly all in some form
or other. The large stated commons of New England were
used by the majority for pasturage for their animals, yet all

^Weth. Rec, Jan. 1,1674.

The Land System. 65

cattle were not so kept, and we find in Connecticut enclosed
pastures as well.^ The expense of pasturing cattle on the
commons was borne by the owners in proportion to the num-
bers and age of the animals. Town herders were paid in
this way. Grants had often been made out of the common
lands, which are to be distinguished from the stated commons,
and such were reckoned to the owners as so much deducted
from their share in the final division ; but as soon as
commons were established, granting from that quarter was
stopi)ed.'' The boundaries of such commons were, after the
fiishion of the time, somewhat loosely laid out, and even in
1712, seventy-two years after the allotments in the "west
field " of Wethersfield, it was found necessary to determine
the line which separated that field from the adjoining com-
mon. If this were the case with the line adjoining the lands
in severalty, much more must it have been true of the other
boundary lines.^

Communal holding of land does not seem to have been
known- Land held in common was subject to the use of a
stated number, and when the inhabitants voted that so many
acres of land were to be a settled common and " to remain for
the use of the town in general for the feeding of sheep or
cattle forever," the town was conceived of as composed of the
inhabitants, an always increasing quantity, and town land
was the property of the proprietors-inhabitants, and is so
definitely stated.*

' Weth. Rec., Dec. 81, 1083.

• Weth. Rec., Dec. 28, 1685. Encroachment on the commons as well as
on the highwajrs was a not infrequent offense. Sometimes the encroach-
ment was sustained if found " no prejudice " by the town, though quite
as often removal was ordered, and force employed if compliance did not
ensne. Hart. Rec, Sept. 2, 1601 ; April 22, 1701 ; Weth. liec, Deo. 25,
1704.

* Weth. Reo., Deo. 24, 1712. "At the same meeting ye town roated to
have these lands which are refered for sheep commons or sequestered land
layed out and bounded." Wind. Rec., Dec. 29, 1701.

*'*Forthe use of the Town, viz. the inhabitants-proprietors.** Weth.
Rec., Mar. 16, 1707-8.

QQ The River Towns of Connecticut,

The proprietors-inhabitants held the land in common, and
as they voted in new inhabitants not through their repre-
sentatives, the townsmen, but in person in town meeting, it
consequently lay in their power to admit new members to
the privilege of having rights in the common field, and thus
in theory, if they had any theory about it, neither stated
conmions nor undivided lands were town lands, though the
records often call them so, but tracts for the use of a definite
number of individuals, who called themselves the inhabitants-
proprietors, and whose share, while not stated in so many
words,^ was generally recognized as proportionate to their pur-
chased rights in the common and undivided lands. By later acts
of the General Court, the corporate nature of the proprietors
was recognized. In 1717 it was declared that all fields which
at that time were considered common and so used should be so
legally until the major part of the proprietors should vote
for their division.^ This was merely legalizing custom;
such had been the common law for many years. A legal pro-
prietors' meeting required the application of at least five
persons to the justice of the peace for a warrant for a proper
meeting, requiring proper warning six days before and a
notice on the sign-post twenty days before.^ Thus the pro-
prietors became a regularly organized body, holding meetings,
levying taxes on themselves for defraying the expenses of
fences, gates, etc., and appointing rate-makers and col-
lectors.* They also chose a clerk, who entered acts and votes,
was duly sworn,^ and held his office until another was sworn.^

One of the most troublesome matters which arose in con-

' One vote, in recording a project for division, in which the major part
of the proprietors decided the method to be employed, says " the voices to
be accounted according to the interests that said persons have. " Weth.
RecDec. 24, 1705.

2Col. Rec. VI, p. 25.

3 Col. Rec. VI, p. 424.

* Col. Rec. VII, pp. 379-380.

5 Col. Rec. VI, p. 25.

« Col. Rec. VI, p. 276.

The Land System, 67

nection with the commons was the prevention of trespass and
damage. We have already noticed a sort of frontier lot-
holder, who was granted lands on condition of his serving as
ward of the commons. This protection was mainly against
inhabitants from other towns, and intruders who had in some
way come into the town itself. Temporary votes, however,
were constantly passed, regulating even the proprietors' rights.
Timber was carefully guarded. It w^as forbidden to all to cut
down young trees, and any tree felled and left three months
became public property. Carrying wood out of the town
was almost criminal, no matter for what purpose. Yet, not-
withstanding these constant decrees, damage continued to be
done. Finally Wethersfield complained that the inhabitants-
proprietors could hardly find timber for the building of
houses and making of fences, and the lines of prohibition were
drawn still tighter. The evil, however, was not entirely done
away with until the final division of the remaining lands.^

One other matter in reference to the common fields is of
interest. Every person in the towns above fourteen years of
age, except public officers,^ was obliged to employ one day in
the year clearing brush on the commons. The townsmen
appointed the day and all had to turn out. If any neglected
to appear on that day he was fined five shillings.^ On one
occasion the undergrowth evidently got ahead of the inhabit-
ants, for they voted to work that year one more day than the

* The Qeneral Court as well passed acts forbidding the cutting, felling,
destroying and carrying away of any tree or trees, timber or underwood.
The act of 1720 recognizes the distinction between town commons, in
which case trespass was accounted as against the inhabitants of the
respective towns ; common or undivided land, in which trespass was
against the proprietors; and private lands, in which the person trespassed
against was the individual owner. Conn. Col. liec. VII, 80-81. On the
subject of trespass see Weth. Rec, May 11, 1G8G ; Dec. 25, 1(508 ; Deo.
24, 1705 ; Deo. 28, 1706 ; Wind. Ilec, Dec. 27, 1655 ; June 1, 1659 ; Nov.
11, 1661, and the volume of Wind. Prop. Ilec.

*The minister of the gospel was a public officer in 1670, as he is to-day
in Germany.

»Col. Uec. II, p. 189.

68 The River Towns of Connecticut.

law required.^ The fine of five shillings undoubtedly in
many cases became a regular money payment in lieu of per-
sonal labor. This equal responsibility of all for the well-
being of the town is one of the best evidences of its peculiarly
democratic character, an extension of the same principles
which were at work in the founding of the State. It may be
a descensus ad ridiculum to pass from the establishment of
the fundamental articles to shooting blackbirds, but it is just
as much a government by the people, a controlling of their
own affairs, when every rateable person was required to kill
a dozen blackbirds in March, April, May, and June, or else
pay one shilling to the town's use.^ And it was the same
obligation which called out the inhabitants to work on the
commons.

Common Meadow.

We have already spoken of the common or undivided land
and the stated commons, but it is necessary to distinguish
another class of common holding. This was the common
meadow, early divided in severalty, which belonged to those
proprietors who owned land therein. At first all the proprie-
tors had a share in the common meadow, and for a long time
after there remained land undivided, so that practically most
of the inhabitants had a share. But with the sale of lands,
and the consequent accumulation of many lots in single hands,
the number of proprietors decreased, and an increasing number
of the town inhabitants had no part in their meetings. These
meetings, at which all who had a lot in the meadow were
entitled to be present, are technically to be distinguished
from the proprietors' meetings already spoken of. Practically
they were composed of the same men who, as proprietors of
the common meadow, came together to discuss questions of
fencing, trespass, and rights.

These are the meadows, the regulation of which has been

1 Weth. Rec, May 11, 1686.

2 Windsor Rec. Dec. 16. 1707.

The Land System. 69

found to bear such a striking resemblance to certain forms of
old English and German land-holding. There is nothing
specially remarkable in this identity. It was the influence of
English custom which can be traced back to that interesting law
of the Anglo-Saxons, " when oeorls have an allotted meadow
to fence," which is the earliest English evidence of a common
meadow.^ These meadows became the Lammas fields of later
England, which were cultivated for six months in the year,
and were then thrown open for common use for six months.
This state of things existed until the Enclosure Acts struck
the death-blow to common tenure. But the settlers left
England before these acts were passed, and the common
meadow system has been found to have been applied by them
from Salem to Nantucket.

This common meadow was enclosed by the common fence.
In the river towns nature provided half the fence — the
Great River — and the proprietors half. It would have
been impossible to have surrounded each small plot of
meadow land with a fence, and it would have been need-
lessly expensive and wasteful, as the spring freshets would
have carried them off yearly. Even the common fence
was not always exempt, and early had to be moved to higher
ground. The lands which had been allotted within the
meadow were divided by meer-stoncs at each comer, and
hunting for meer-stones must have been a very lively pursuit
then, as it occasionally is now. These meadows were owned
by a definite number of inhabitants, who had fixed allotments
of a definite number of acres, and who cultivated these lands
for half the year. This gave to each proprietor a certain
right in the meadow, according to which his share in the
maintenanoe of the fence was determined, and the number of

* Laws of Ine, §42. Schmid, Qesetze der Angelsachsen, p. 40. By
this is not raeant the gemaene loMe or common pasture, but the gedAl landt
that which is held by a few in common. The former bears a certain
resemblance, which is the result of its own influence, to the commons, in
their capacity as the common pasture.

70 The River Towns of Connecticut.

animals he was entitled to admit on the opening of the meadow
was established. This opening took place at a given date,
quite as often fixed in town meeting as in proprietors', and
cattle and horses were allowed to enter the fields and pasture
on the stubble. Sheep and swine were not admitted ; each
had its own pasture ; sheep w^ere fed on the stated commons
and swine were turned wholesale into the wilderness. No herder
was required during this period, which lasted from November
11 to the 15th of April, through practically the cattle were
withdrawn with the opening of winter.^ Later this period
became a moveable one and sometimes began as early as
October 13. Evidently, at first, by tacit consent, it was
allowable for certain proprietors to bait their animals in the
common meadow upon their own holdings, if they so wished,
during the summer. This was afterward restricted to week
days, and finally abolished, as possibly too great a waste of
time. The breaking loose of such baited animals and the
breaking in of loose cattle to the meadow was a constant
source of trouble, for great damage was done thereby to the
corn and grass of others, and fines were frequent. Such
animals were accounted damage feasant, a legal phrase which

^ There are curious and unexpected outcroppings throughout the old
records of bits of English custom, as shown bynames, dates, and common
usage. Not only are these New England common meadows almost iden-
tical with the Lammas Fields and with the earlier Saxon meadow and arable,
but this date, November 11 (Martinmas day), was the day of opening the
Lammas Fields iu Old England, and the time when the tenant paid a
part of his rent. In other entries we find a period of time stated as
** from Michaelmass to the last of November," *' a week before Micheltid,"
and again, "fourteen night after Micheltid." The renting of the town
lands of Hartford was from Michaelmas to Michaelmas. This was a direct
following of the English custom of rents. How did the Puritans happen
to retain and actually make use of these when they knew them to be
** popish" ? In the description of Hartford lands the term messuage is
very often used, and continued to be used for many years. It sounds as
if it might have been taken out of the Hundred Rolls or Liber Niger or
Domesday Book, as signifying a cottage holding, so familiar is it to the
student of early English tenures. In this country it was used in the sense
of a homestead. The use of turf and twig has already been noted.

The Land System, 71

the old town clerks spelled in extraordinary ways. The
sowing of winter grain was continued, and this, of course,
would, if sown in the common meadow, suffer from the loose
animals, so that, for a long time, a regular keeper was em-
ployed by the proprietors to guard the sown land, and after-
wards it was required that all who wished to sow winter grain
must fence it in. The customs regarding the common meadow
are, some of them, still in existence. Permanent fencing has
in many quarters encroached on its decreasing area, which,
owing to the washings of an erratic river in the alluvial soil,
has been in some quarters reduced nearly one-half, while in
others there has been an increase. The cattle and cow rights,
which were formerly so important, and were bought and sold,
thus giving outsiders an entrance into the meadow, have been
given up within twenty years. But the practice of throwing
open the meadow about the middle of November — a date
decided by the selectmen — is still continued.

Alienation of Land.

For the first seventy years of colonial history in the Con-
necticut Valley one notices a spirit of self-sufBciency in all
matters which concern individual town interests. The com-
munities felt that a careful husbanding of their own resources
was necessary to swell their own subsistence fund. Apart
from the fact of legal subordination tq the General Court, the
valley towns were within their own boundaries as exclusive
as a feudal knight within his castle. No magic circle could
have been more impassable than the imaginary lines which
marked the extent of the town lands. This principle of town
separation; the maintenance of its privileges as against all
intruders; the jealousy with which it watched over all grants
to the individual inhabitants, taking the greatest care that not
one jot or tittle of town rights or town possessions should
be lost or given up, characterizes everywhere the New Eng-
land towns, and though a narrow, it was yet a necessary view.
It made them compact, solid foundations, and bred men who,

72 The Rive}' Towns of Connecticut,

while ever jealous for their native heath, never failed in loy-
alty to the State.

In no particular was this spirit more clearly evidenced
than in the town's attitude toward the alienation of land. It
is a subject worth elaborating. Apart from commonage, no
link connecting the present with the past stands out in bolder
relief, as if proud of its antiquity. The principle is found
everywhere, and runs back to the beginnings of community
life, that in case of sale of an allotted tract of land, the seller
must first offer it to the inhabitants of the town itself before
looking elsewhere for a purchaser. In Connecticut the need
of securing the town lands from falling into the hands of
outsiders was so strong that the General Court even went so
far as to pass a law to this effect, forbidding any inhabitant
to sell his " accomodation of house and lands until he have
first propounded the sale thereof to the town where it is
situate and they refuse to accept of the sale tendered."^

'Col. Rec. I, p. 351. This is a widely recognized principle of community
life. M. de Laveleye has shown by concrete examples that it exists in
Russia, Switzerland, France, and in Mussulman countries, as Algeria,
India and Java (Prim. Prop., pp. 11, 151-3). In those countries where
community of holding was the rule, of course a law against sale can refer
only to the house lot. It is a necessary part of primitive community life,
where it was almost a religious tenet that the lands remain in the posses-
sion of the community. It has its origin in the patriarchal family which
developed into the patriarchal community, wherein every member of the
association was considered as owning a share in the lands of the commune,
and therefore had a lawful right in the land which each cultivated. This
may look back to the time when the community was but a large family
under the patriarch, and when the principle of heirship gave to each a
share in the common property. If this be its origin, it is curious to see
that the New England towns applied this principle from economic reasons,
for the safety and development of the town seemed to depend on some such
rule. Such principles must have been known to the settlers, though only
partially in practice in the English parish (see note 3, p. 84). It cropped
out in its completeness on New England soil, though even there in some
towns there was no more elaborate application than had been known in
the mother country. To explain it it is not necessary to suppose a return
to a primitive system ; there is no missing link in the chain of direct
descent from Germany to America.

The Land System. 73

This law was passed in 1660, and is the only instance in
New England history in which the towns were unable to
settle such matters for themselves.^ The will of the court
was binding, for the towns did not consider themselves suffi-
ciently independent to interpret this law as they pleased. In
1685 they asked through their representatives whether the
court intended that all lands within the township should " be
tendered to sale to the town before any other sale be made of
them to any other than the inhabitants of the town " where
they were situated. To this the court answered in the
affirmative.^ One of the towns had already construed the
law very strictly, though the above appeal to the court seems
to show a growing uneasiness under the strictures of a
prohibitive law.

Wethersfield declared in special town meeting regarding
the division of 1670, that "no man or person whatsoever,
who either at present is or hereafter be a proprietor in the
lands mentioned shall at any time, either directly or indi-
rectly, make any alienation, gift, sale or other disposition of
his property in the said lands to any person who shall not be
for the time being an inhabitant of this town.'^^ In case
such alienation took place the proprietor's right was forfeited,
the sale void, and the land returned to the town for reallot-
ment by the proprietors. This injunction, however, had to
be twice repeated. Notwithstanding which there were sold,
some time within the next fifteen years, six of these lots, and
the attention of the town having been called to it, in order
that the former vote should not be a mere dead letter, it was
ordered that the lots be recovered aud returned to the town.
The committee of one appointed to recover was given two of

' The question was brought up in the Massaohusotts Court as to whether
the towns had the right of pre-emption or forbidding of sale. No action
was taken, and possiblj the court thought the matter a subject for town
management. Mass. Col. Reo. I, 201.

«Col. Roc. Ill, 18e-7.

» Weth. Rec, Mar. 8, 1670-71.

74 The River Towns of Connecticut.

the lots as payment, and the remainder reverted to the town.
It would be interesting to know whether this restriction upon
freedom of sale was actually carried out.^

The town passed a similarly binding law at the time of the
second division, but nothing further is heard of the matter.
Hartford having voted in 1635 that the offer of house-lots must
first be made to the town, or to some one of whom the town
approved, said nothing more about alienation, and the General
Court order was passed before it made another division.
Windsor began to divide after such laws had ceased to be
necessary, and made no restrictions on sale; but in many
other towns in the colony the principle was applied. The
object of such a law was evidently twofold : to prevent town
lands from falling into the hands of persons dwelling in other
towns or colonies, with the consequent loss to the town of all
the fruits of its own territory, and to prevent the admission
of persons likely to be obnoxious or injurious to the town's
interest ; for Hartford and Windsor each required — at least
in a few instances — that the owners of land should secure the
town against damage resulting from sale to an outsider.

There is little doubt that rules of this nature in practical
application were often relaxed. Hartford allowed in 1640
to all her original settlers the privilege of selling all the lands
that they were possessed of, and there is plenty of evidence
that sales had taken place from the earlier divisions, though
not to persons dwelling out of the colony. The increase of
inhabitants would make the enforcement of such a rule a matter
of constantly greater difficulty. In comparing the Wethersfield
order with those of other towns, we find none so strict in the
declaration of the alienation principle.^ Others allowed, as
did Hartford in one instance at least, in case no purchaser

* In 1696 an inhabitant applied to the town for liberty to sell an indi-
vidual grant, on account of necessity. The liberty was granted. Evidently
the principle against sale without permission was still enforced. Weth.
Rec, Aug. 7, 16%.

*Egleston, Land System, J. H. U. Studies IV, pp. 592-594.

The Land System, 76

was found in the town itself, the effecting of a sale elsewhere,
generally with the approval of the community. But the fact
that the inhabitants of the town practically controlled the
land divisions, while in Hartford and Windsor they were
managed by the proprietors, together with the i)re8ence of a
Greneral Court order, may account for the absence from the
records of the latter towns of as elaborate an order against
alienation as is found in Wethersfield.

Evolution of New Towns.

The river towns were prolific mothers. Ten daughters
now look to them for their origin, and the total number of
communities contained within the historic boundaries of the
early settlements now equals the number of the original
colonies. Windsor has been the mother-stock from which
four towns have been severed ; Wethersfield three, and Hart-
ford three.^ In the various allotments of lands do we see the
beginnings of new towns. The isolated settler (at first probably
with temporary summer residence which afterward became
permanent) would be joined by others to whom the town
made single grants in that quarter. The lands on the east
side of the river were early used for farming, and the site of
future towns became a source for hay and a corral for keeping
cattle. The development of such a centre was by gradual
accretion. In the event of a general division of land, many
of those who received shares withdrew to these lots, and,
erecting houses, began the nucleus of a town. The original
outlying districts were called Farms, and this nomenclature

'Windsor: Bast Windsor, South Windsor, Ellington, Windsor Locks.
Wethersfield: Glaftonbury, Rocky Hill, Newington. Hartford: East
Hartford, West Hartford, Manchester. No account is here taken of
Farmington and Simsbury, as these sections were not included within the
limits of the river towns, although by general consent they were con-
sidered as l)elonging, the former to Hartford and the latter to Windsor.
Nor are there included those portions of territory which were cut off to
form but a part of Another town, as Berlin, Bloomfleld, and Marlborough.

76 The River Towjis of Connecticut.

is generally found in the Connecticut colony.^ The dwellers
in the farms still continued to be present at the only meeting-
house in the township, and to cross the river or the belt of
dense woods for attendance at the monthly town meeting.
But it was not long before that oldest of institutions, the
village pound, which is said to be older than the kingdom,
was established and formed the first centralizing factor.
Before the community was recognized as either a religious or
a civil unit, before a thought of separation had entered the
mind of its founders, it received permission to "make and
maintain a pound "^ for the common use of the settlers, some-
times without condition, sometimes subject to the approval
of the town. The pound began the process of separation ; in
this one particular a settlement became economically inde-
pendent, and the greater privileges only awaited an increase
in the number of the inhabitants. The next step in the
separating process was generally an ecclesiastical one. Some-
times the religious and civil steps were taken at the same
time, as was the case in Glastonbury, where the difficulties
of crossing a large river hastened the process. In other cases

' In a catalogue of ministers in Massachusetts and Connecticut, by
Cotton Mather, is the following: Windsor, Mr. Samuel Mather; and
Farme, Mr. Timothy Edwards. Tlie term side, though used in Connec-
ticut, does not seem to have had so distinctive a meaning as in Massachu-
setts. Yet it is found to designate the halves of a town divided by a
rivulet, as in Windsor and Hartford. Each side had its own meetings
and its own officers in Hartford. ** To secure the said Town and Side
from damage." (Hart. Rec, p. 153.) Yet in no case did a side grow into
a separate town, though at times certain officers, as haward, were chosen
by the side,

^Weth. Rec, Feb. 24, 1673; Oct. 15, 1694; Hart. Rec, June 9, 1645.
Glastonbury claims the first recognition of that part of Wethersfield as an
independent community to be the act of the General Court in 1653, giving
the Eastsiders liberty of training by themselves. (Chapin's Glastonbury,
p. 37.) This was twenty years before that part of the town was granted a
pound. The date of the beginnings of recognition can even be put back
two years farther, when in 1651 liberty was granted to the Farms anywhere
in the colony, of reserving for their protection one able-bodied and fully
armed soldier on training days. (Col. Rec. I, p. 222.) In the case, how-
ever, of original settlements, setting up a pound was one of the first acts.

I Wothcri*nel(l.
a HariforcJ.
8 Windsor.

4 Glastonbury, IMO.

5 Bast Windsor, 17t8.

6 East Hartford. 178«.

Evolution of New Towns.

7 Elllugt<^in. 17B6, lying partly

In the Equivalent.

8 Marlborough, 1803.

9 Manohestar, 18».

10 Bloomfleld. 1886.

11 Booky Hill. 1848.

U South Windsor. 1845.

13 Berlin (1785), 1850.

14 West Hartford. 1854.

15 Windsor Looks. 1864.

16 Mewlngton, 1871.

The smallest circles represent villaffes legally a part of the towns to which thej are
attached. The arrows on the severeu towns point to the original town of which thej
were formerly a part. Towns with three arrows were forincKi from land taken from
three original townships. The above are the original boundaries of the River Towns,
but the nver course is as at present.

The Land System, 77

the difficulties of winter attendance led to the granting of
winter privileges, that is the privilege of having service
among themselves during the winter. Even the stiff-necked
Puritans did not relish the idea of travelling five, six and
seven miles to church, and foot-stoves and hot stones were
not so comfortable as the neighboring room where they would
meet to worship together. Often, however, winter privileges
were not sufficient, and " liberty of a minister " was asked
for from the first. In this case a meeting-house was generally
built and minister's rates established, and a grant of land
made. Here we notice the paternal character of the Greneral
Court, for though the petition was generally sent to the
authorities of the town of which they formed a part, yet it
invariably had to be confirmed by the central power. Some-
times the Assembly paid deference to the wishes of the town,
as in the case of South Windsor, where, finding Windsor
unwilling to consent to the separation, it requested the
petitioners to wait.^ In East Windsor the report of the
committee appointed to consider the petition was adopted,
notwithstanding some remonstrance from the Southsiders.^
Again, in the case of Ellington, the town of Windsor granted
the petition temporarily, retaining the privilege of again
demanding ministerial taxes when she pleased. But the
Assembly a little later freed them from this, and granted
them a permanent ecclesiastical separation.'* With the grant-
ing of winter preaching went the remission of a third of the
ministerial taxes, and with the granting of full j)rivi leges an
entire remission of these taxes and a grant of land to the new
ecclesiastical centre for a parsonage. Then followed the incor-
poration of the society, for the church did not become legally
established with the corporate powers of a parish until it had
received a cliarter from the Assembly.* When this act was
completed, town and parish were no longer coterminous. The
inhabitant of the township attended town meeting in the central

• Stiles, Windsor, pp. 293 ff. • lb. pp. 296 fl. • lb. pp. 267 fl.
*Col. Rec. V, p. 874.

78 The River Totma of Connecticut.

settlement when he wished, and worshiped God at the neigh-
borhood meeting. Town and parish records were now kept
distinct from each other, the society had its own committee
and collected its own rates ;^ as far as practical separation was
concerned the two settlements were already independent. The
obligation to perform religious duties was felt to be greater
than that of attendance on civil assemblies. Absence from
town meeting was not uncommon, from worship rare.

While this process was going on, a gradual political inde-
pendence was taking place. This began with the election for
the growing community of sundry officei's, such as haward,
fence-viewer, and surveyor, who were generally inhabitants of
the settlement, and served only within its borders. The
embryo town was gradually assuming shape. It had its
pound, its meeting-house, its ecclesiastical committee, its
school and special officers, and many a village in Connecticut
is in the same condition to-day, often thinking little of the
next step, which only an active desire for civil independence
brings about. In the case of Glastonbury, winter privileges,
full ecclesiastical privileges, and political independence were
consummated at one stroke; but with many of the other
towns the process was slow. Sometimes incorporation was
granted at the first petition, more often frequent petitions
were necessary.

It is difficult to defend Professor Johnston's idea of incor-
poration.^ All the towns of the Connecticut colony were either
offshoots from the original town in the way already pointed
out, or they owed their settlement either to the movements
of dissatisfied members of the older communities, or (because
of a favorable situation for a plantation) to the efforts of the
court, or of some private individual to whom land had been
granted. In the first of the latter cases, as soon as the idea of
settlement took practical shape, a petition was sent to the Gen-
eral Court praying for permission to inhabit the selected spot.

^Col. Rec, Oct. 12, 1609. « Johnston, Connecticut, pp. 76, 136.

The Land System, 79

This was generally granted with readiness, often with advice
and encouragement, if done in an orderly way, and a committee
was appointed by the court to report on its feasibility, and to
superintend the settlement and have charge of the division of
lands. In the second case a committee was directly appointed,
which was instructed to dispose of the lands " to such inhabit-
ants ... as by them shall be judged meet to make improve-
ments thereof, in such kind as may be for the good of the
commonwealth."^ Sometimes the colony purchased the land,
and the amount was to be repaid by those who took allotments
there.

Then the process of settling in the new quarter began,
under the watchful eye of the court, and under the direct
charge of the Grand Committee, as the town records call it.
This committee governed the plantation until it was incor-
porated ; it made rules for the planters, prescribed the condi-
tions of settlement, as that the lands should be dwelt upon for
at least two years, and that improvements should begin at
once by ploughing, mowing, building and fencing; it selected
the site, laid out the home-lots, disposed of them by sale or
grant, looked after highways and fences, made suitable pro-
vision for the church, minister and schools, and in fact did
all that the town authorities of an incorporated town were
accustomed to do. "They were to found a town, to organize
it, and to supply it with locomotive force until it got legs of
its own."^ After this process of nursing, the infant settle-
ment became weaned from the direct control of the court, to
which it owed its existence, and u})on which it was entirely
dej)endent through the Grand Committee, until the court
itself at length severed those ties which bound it, by tlje
decree of incorporation. This often took place within a year,
as in the case of Mattabeseck (Middletown), or within four or
five years, as in the case of Massacoe (Simsbury). The town
was now entitled to the privileges and subject to the burdens

> Col. Rec. I, p. 161. • Bronson's Waterbury, p. 8.

80 The River Towns of Connecticut.

of the other towns ; it now elected its constable, and pre-
sented him to the court for approbation and oath ; it chose
its deputies, its town officers ; began its town records, admitted
its own inhabitants ; in a word, did all that the committee had
before done. For the first time it became independent, for
the first time attained to that degree of self-government which
the river towns possessed, limited though they were by the
overshadowing of the General Court. Incorporation meant
a great deal ; besides self-organization, it meant payment of
rates, " in proportion according to the rule of rating for their
cattle and other visible estate";^ it meant a constable,
deputies and freemen ; in brief, it meant manhood. In case of
towns incorporated within the first sixty years, no objections
were made to granting them this privilege. The colony
needed new towns, and encouraged their settlement and
growth by every possible means. But after that time, when
the majority of incorporated towns were severed sections of
an old town, incorporation became a different matter. Had
it been granted to every petition, it might have been construed
as a mere form ; but it was by no means so granted. The
General Court was the power above the town, and was always
so recognized. The town was less a republic than she is now.
East Hartford petitioned for sixty years for the privileges
which incorporation carried with it. The term meant some-
thing, it was the admission into the body politic of an organ-
ized community, but the right of deciding when it was properly
qualified lay with the Assembly, and it had no rights except
what that body allowed it. It is worthy of notice that it
was as a rule the lower house which negatived the petition.
Too often the records of the colony chronicle only the birth ;
the travail attending it can only be fully understood by
searching the minutes of town and church. The word of the
court was final, and without exception was desired, waited for
and accepted.

'Col. Bed, p. 338.

The Land System, 81

The same was true of ecclesiastical incorporation. Ques-
tions regarding religious differences, the settlement of minis-
ters and the organization of churches, were interfered with or
settled either with or without the request of the town. But
with the later divisions of churches and the establishment of
separate parishes, the position of the State church gradually-
ceased for the Congregationalists. New denominations came
into the field, which received recognition, thus estopping in
such cases the Assembly from any interference in matters
of church organization or separation. The town lost even its
distinctive position as a parish, and became merely a local
administrative body.

82 The River Tovma of Connecticut.

ni.

THE TOWNS AND THE PEOPLE.

We have now examined the nature of the causes and
circumstances which led a remarkable people into this quiet
Indian valley. We have investigated their relations to the
soil which they cultivated, and the manner in which they
endeavored to so apportion it that the greatest good might
come to the greatest number. It now remains to discuss the
conditions existing among the people themselves, in their
civil and administrative capacity, to discover the real strength
of their town life, that we may perhaps the better understand
what was the home environment of those men, whose com-
bined actions as a body politic have called forth deserved
admiration for the history of a vigorous State.

Freemen, Inhabitants, Householders, Proprietors.

No one of the characteristic differences between Massachu-
setts and Connecticut is so well known and so far-reaching
as the extension of the privilege of freemanship. The errors
which must accompany a restriction of the suffrage to church
members find no place in the Connecticut fundamentals.
The platform was broad, and based on the opinion of the
majority of the people composing the commonwealth. The
theocratic limitation takes for granted a falsity : that every
church member must of necessity be the most worthy partici-
pator in civil affairs. Thus there would be admitted to the
franchise men of inferior and unworthy qualifications, while
many of sagacity and wisdom, and often greater conscientious-
ness, would find themselves debarred.^ No greater privilege
could be accorded to a town and its inhabitants than that
inserted in the first section of the constitution of 1639, that

' Ellis, Puritan Age, p. 209.

The Totem and the People, 83

choice of the governor and magistrates "shall be made by
all that are admitted freemen and have taken the oath of
Fidelity and do cohabitte within this jurisdiction (having
beene admitted Inhabitants by the major part of the Towne
wherein they live) or the major parte of such as shall be then
present."^ This, then, threw the burden on the inhabitants
of the diiferent towns, who, so far as the constitution went,
might reguhite the admission of additional inhabitants as
they pleased. That the same general rules for such admission
were operative in each of the towns is undoubted, otherwise
the equity of the law would have been destroyed.

Before going further, then, it is necessary to examine the
conditions which influenced the inhabitants of a town in
adding to their number. For the first sixty years the town-
ship and the parish were identical. There was one meeting-
house, and here met inhabitants to perform both civil and
religious duties. The aifairs of town and church were alike
passed upon at the civil meeting, and it is not surprising
that the religious atmosphere lingered in the historic edifice
to influence the words and acts of a purely civil body. The
conformity to the laws of the church would compel a recogni-
tion of its precepts in matters of government. Theoretically,
church and state were separated; practically, they were so
interwoven that separation would have meant the severance
of soul and body. Consequently, whosoever failed to meet
an approval based on the general principles of doctrine and
ethics which the church believed in, would be rejected as an
unfit inhabitant. But such unfitness must not be construed
as in any way comparable with the narrow lines laid down
in Massachusetts. For the town's own protection it was
necessary that all who would be burdensome to it, or would,
from factious or drunken conversation, be damaging to its
interests or its reputation, should be forbidden admission.

>Col. Rec. I, p. 31. The passage in parenthesis was probably ituierted
in 1G13, when an amendment to that effect was passed by the (General
Court. (Col. Rec. I, p. 90.) For the Oath of Fidelity see Col. Reo. I, p. 02.

84 The River Totvns of Connecticut

The opinion of the majority was* likely to be averse to all
positively out of harmony with their Congregational tenets/
such as " loathsome Heretickes, whether Quakers, Ranters,
Adamites or some others like them." It was not, however,
until 1656 that the General Court, following the recommenda-
tion of the Commissioners for the United Colonies, passed an
order forbidding the towns to entertain such troublesome
people.^ But no one became a permanent resident of the
town until he was admitted an inhabitant. The floating body
of transients were a political nonentity, and though from the
nature of things they formed a necessary element, one can
hardly call them, as does Dr. Bronson, a rightful element.^
Their rights were meagre in the extreme, and the towns,
paying them a scant hospitality, got rid of them as rapidly as
possible. As early as 1640 Hartford passed a vote ordering
that whosoever entertained any person or family in the town
above one month, without leave from the town, should be
liable for all costs or troubles arising therefrom, and at the
same time might be called in question for such action.^

^ Col. Rec. I, pp. 283, 303. Compare Bronson, Early Government in
Connecticut, p. 312.

•Bronson, Early Government, p. 311.

2 Hart. Rec, Jan. 14, 1639. Probably "Wethersfield and Windsor passed
similar orders, though the records are missing for the first fifteen years.
It is evident that the same economic reasons against alienation or rent of
land to strangers without giving security were at work in the English
parish, so that in this particular the colonists simply enlarged, on account
of the greater dangers of their situation, a condition with which they
were familiar. Notice this by-law of Steeple Ashton parish: "Item:
whereas there hath much poverty happened unto this parish by receiving
of strangers to inhabit there, and not first securing them against such
contingences ... It is ordered, by this Vestry, that every person or
persons whatsoever, who shall let or set any housing or dwelling to any
stranger, and who shall not first give good security for defending and
saving harmless the said Inhabitants from the future charge as may
happen by such stranger coming to inhabit within the said parish, — and
if any person shall do to the contrary, — It is agreed that such person, so
receiving such stranger shall be rated to the poor 20 sh. monthly over and
besides his monthly tax." (Toulmin Smith, The Parish, pp. 514-15;
see also p. 528 for a similar by-law in Ardley parish, Hertfordshire. )

The Towns and the People. 85

Can we not fairly say that before 1657 there was universal
sufirage in Connecticut, and approximately complete repre-
sentation? It was more universal than it is now, for free-
manship was conferred upon all above sixteen who brought
a certificate of good behavior from the town.^ This ideal
democracy is the more striking when we realize that in
Massachusetts none but freemen (chosen by the General Court)
could " have any vote in any town in any action of authority
or necessity or that which belongs to them by virtue of their
freedom, as receiving inhabitants or laying out of lotts, etc.""^
This meant that only about one-sixth of the inhabitants of a
town were allowed any voice in matters for the carrying out
of which all the inhabitants were taxed. The building of the
church, the maintenance of the same, the election and institu-
tion of the minister, were in the hands of the few, yet for all
these the many paid their proportion. No matter how many
inhabitants a town contained, unless there were ten freemen
among them, they were allowed no representation at the
General Court.^ It is by such a contrast that we appreciate
the full meaning of the liberal attitude of Connecticut for the
first twenty years of her history.

To what, then, are we to ascribe the narrowing of the
political boundaries which took place in 1657? It has been
said that there was an infusion of an inharmonious element at
this time into the colony, evidently referring to the Quakers.
These people appeared in Boston first in 1652. Their num-
bers were very small, and strenuous efforts were made to keep
them out. Their books were bunied, themselves committed
to prison, and shipmasters enjoined, on penalty of fine and
imprisonment, not to bring any into the colonies. In Con-
necticut an unfortunate controversy in the church in Hartford
caused the appearance of the Quakers to be viewe<l with
alarm. The General Court eagerly followed the recommenda-

»Col. Rec. I, p. 189.

« Maw. Col. Uec. I, p. 161.

*Ma88. Col. Keo. I, p. 178.

86 Tlie River Totons of Connecticni.

tion of the United Commissioners and passed a law against
them two weeks before the Massachusetts court convened.^
But there is not the slightest evidence that there had yet
come a Quaker into Connecticut ; the dread of them was
enough. The colonial magistrates scented Quakerism from
afar and passed laws as stringent as if this " cursed set of
haeriticks'' were already as thick as tramps in the colony.
Even in New Haven, more easily reached by Quakers
escaping from Massachusetts, there was a minimum of cases
tried under the law.^ If any Quakers reached Connecticut
they passed unnoticed by the towns, though the records
notice the presence of Jews. It does not seem possible, then, to
ascribe to this cause the passage of the law in 1657 limiting the
suffrage. This law defined admitted inhabitants, mentioned
in the seventh Fundamental, that is the freemen, as " house-
holders that are one and twenty years old or have bore office
or have 30 1. estate." This meant, interpreted, that no
unmarried man in the colony could vote for governor, mag-
istrates or deputies unless he had himself held office or was
possessed of real estate of thirty pounds value — a large sum
in those days when rateable estate averaged * about sixty
pounds to each inhabitant.^ But this law has nothing to do
with the persons to be admitted into the various towns as
inhabitants; it only declared that hereafter admission into
the various towns as inhabitants was not a sufficient qualifi-
cation for a freeman. The colony was losing faith in its
towns. As before said, in connection with the proprietors,^
the meetings were in the control of those who were admitting
such as were not of honest conversation and, in the eyes of
the court, acceptable as freemen. The cause of this is not far
to seek. The first generation were passing away ; the fathers
were giving way to the children. The narrow circle within

1 Col. Rec. I, pp. 283, 303, 308. Mass. Col. Rec. IV, Part I, pp. 277, 278.

'^Levermore, New ITaven, pp. 135-6.

'Col. Rec. I, p. 293. Broiison, Early Government, p. 315.

* Supra, pp. 52-3.

The Towns and tJie People, 87

which the former were willing to grant the exercise of pure
democratic principles was broadening under the more catholic
views of the new generation, and men of many sorts seem
to have been admitted, or to have established themselves
without the knowledge of the town authorities. If the dying
out of the old spirit ushered in an era of religious change,
as seen in the Hartford controversy, it also marks an era
of political change, as seen in the law limiting the suffrage.
It makes a small show on the statute book, but it is a
sure index to the looseness of system which had grown
up in the various towns. But if the children and those
whom they admitted controlled in the towns, the fathers
were in ascendency at the court, and the limitation law was
the result. Yet not even this law was stringent enough. In
the lists of 135 inhabitants made freemen within the ensuing
two years, are to be seen, mingled with the names familiar
to the student of the earlier period, many entirely new to the
colony. This number was too great — considerably more than
half of all admitted in twenty-three years under the constitu-
tion,^— and the court changed the thirty pounds real estate
to thirty pounds personal estate.^ On this account but three
new freemen were created during the next three years and a
half before the receipt of the charter. This action of the court
apparently aroused the towns to a realization of their position,
and Windsor passed an order regulating the admission of
inhabitants in June, 1659, and Hartford followed with a
forcible protest against intruding strangers the February
following, in which it is declared that no one was to be
admitted an inhabitant " without it be first consented to by
the orderly vote of the inhabitants." ^ The word which we

' Bronson, Early Goveniment, p. 815.

•Col. Rea I, p. 831.

* No abstract of theae votes could be so graphic as the votes theroselvM,
" The townsmen took into consideration how to prevent inconvenience and
damage that may come to the town if some order be not established alx)ut
entertainment and admitting of persons to be inhabitant in the town.

88 The River Towns of Connecticut

have italicized is the key to an explanation of what had been
the condition of the meetings before, and helps to substan-
tiate the position already taken regarding a growing looseness
in the town system. The machinery for admission had not
been successful under the constitution; it had caused much
trouble, and the cause seems to have been organic. With
church and state practically interwoven, the theory of the one
was too narrow, and of the other too broad. The throes
of the controversial period had this result. By the Half
Way Covenant the lines of church theory were extended; by
the restrictions upon the right to vote, the lines of the theory
of state were contracted ; and these two great factors, democ-
racy and church membership, no longer so unequally yoked,
and made more harmonious by that liberal guide for action,
the charter, ceased to struggle for the supremacy; neither
was destined to swallow the other.

With the narrowing of the elective franchise,^ the right was

We therefore order that no person or persons whatsoever shall be admitted
inhabitant in this town of Windsor without the approbation of the town or
townsmen that are or shall be from year to year in being. Nor shall any
man sett or sell any house or land so as to bring in any to be inhabitant into
the town without the approbation of the townsmen, or giving in such
security as may be accepted to save the town from damage. " ( Wind . Rec. ,
June 27, 1659, vol. I, p. 40.) Stiles gives the year wrongly, 1058 (p. 54).
The Hartford record is as follows: "for the preventing future evils and
inconveniences that many times are ready to break in upon us, by many
persons ushering in themselves among us who are strangers to us, through
whose poverty, evil manners or opinions, the town is subject to be much
prejudiced or endangered. It is therefore ordered at the same town meet-
ing that no person or persons in Hartford, shall give any part of his or
their house to him or them whereby he or they become an inmate, with-
out it be first consented to by the orderly vote of the inhabitants at the
same town meeting, under the forfeiture of five pounds for every month,
to be recovered by the townsmen in being by a course of law." (Hart.
Rec, Feb. 14, 1659 (1660 N. S.).

* It is not our purpose to trace further the history of popular suffrage.
With the coming of the charter a law was passed which, as it practically
remained the law till 1818, is worth quoting : ** This Assembly doth order
that for the future such as desire to be admitted freemen of this corpora-

The Toums and the People. 89

taken away from a number of inhabitants of voting for colonial
officers. Every freeman was an inhabitant, but not every
inhabitant a freeman. For the former the only qualification
was that he be of honest and peaceable conversation and
accepted by the major part of the town. In 1682 the court
passed a law forbidding persons of " ungovernable conversa-
tion," who pretended to be hired servants, or who pretended
to hire houses and lands, and who would be likely to prove
vicious, burdensome and chargeable to the town, from
remaining there. Wethersfield, acting upon this, at once
warned four men out of town. The towns frequently declared
certain persons " no inhabitants," and in general carried out
the provisions of the law with celerity.

Within the circle of inhabitants were the householders, who,
as the name implies, were probably heads of families, or
owners of a sufficient amount of real estate. A study of the
list of those who received in the division of 1670^ shows
that eight were probably not freemen, and five were women.^
Of course this gives us no positive clue to the position of a
householder, but it shows that in the Connecticut colony one
need not be a freeman and might be a woman. The simplest

tion shall present themselves with a certificate under the hands of the
major part of the Townsmen where they live, that they are persons of
civil, peaceable and honest conversation and that they have attained the
age of twenty-one years and have 20 1. estate, besides their person in the
list of estate ; and that such persons so qualified to the court's approba-
tion shall be pre^nted at October court yearly or some adjourned court
and admitted after the election at the Assembly in May. And in case any
freemnn shall walk scandalously or commit any scandalous oflfenco and be
legally convicted thereof, he shall be disfranchised by any of our civil
courts." Col. Rec. I, p. 889.

> See p. 56.

• The seventy-six names in the Wethersfield Records, compared with the
list of freemen of 1609 (Col. Rec. II, p. 518), leaves twenty names unac-
counted for. Two of these are found in the Hartford lists. Right more
were propounded in May, 1669, and accepted in October, 1669. Two others,
proiwunded in May, 1670, were accepted in October, 1670. The division
did not take place until the February following. This leaves only eight
unaccounted for, of which the recorded admission of two with similar
names makes further reduction to six possible.

90 The River Toivns of Connecticut

defiuition of a householder is the head — male or female — of a
household.

The position of the proprietors has already been practically
discussed. They probably formed a small circle of men
within the larger circle of householders and inhabitants, com-
posing, as has been well said, a land community as distinct
from the political community.^ A proprietor was not of
necessity, however, resident, though in the majority of cases
he was so. In origin they were a body of men who collec-
tively purchased lands of the natives, through grant of
the General Court or otherwise. The right of each in the
purchased land could be sold, exchanged, or left by will.
Generally on removal such rights were sold to new-comers,
who thus became proprietors, or some one of the inhabit-
ants by such purchase added to his own rights. Often
they were retained and looked upon as stock in a corpo-
ration.'^ This naturally led to the existence of proprie-

^ Egleston's Land System, p. 581.

2 We find records of the conveyances of title in the common lands of a
town from one person to anotlier. Such right and title was valued
according to the number of pounds annexed to the name of the proprietor in
a certain list at the time of division. This number of pounds right was
proportioned to the amount which the person had given in original pay-
ment for the lands. To show how such rights passed from hand to hand we
have record as follows : " Edward Ball and James Post of Saybrook convey
all their right, title and interest in the common and undivided land of Hart-
ford to Samuel Talcott, Samuel Flagg and Daniel Edwards, being the
right of Stephen Post, formerly of Hartford, deC^, whose name appears
in the list of Proprietors in 1671 with a £24 right" (Hart. Book of Distr.,
p. 149). Such a right was divisible and could be sold in parts to different
persons, and when laid out, was not so done all at once. The above
list is found in Book of Distr. p. 581, with each proportion in pounds,
highest £160, lowest £6. The division was genernlly acre for pound.
The rights are spoken of as £24 right, £10 right, etc., and half and quarter
rights are mentioned where a man purchased part of the right of another.
This quotation shows the workings of the system : " Laid out to Thomas
Sandford, one of the legal heirs of Jeremy Adams, one of the ancient pro-
prietors of the sum of £15, which is what remains of said Adams' right to
be laid out, and also £5. 6. 10. in the right of Robert Sandford under
Hale, which is all that remains to be laid out in said right." (Hart.
Land Records, 18, p. 477. )

The Tovms and the People, 91

tors holding rights in one town and living in another, or
even out of the colony, and troubles frequently arose. It
was a claim of this kind which gave rise to a vexatious suit,
lasting three years, of an inhabitant of Hartford, for one
hundred acres of land in Wether sfield, he basing his claim
on his right in the division of 1693, as received from his
father-in-law. The neglected proprietor won his case.^ The
proprietors, as such, had no political rights. It was only in
their capacity as admitted inhabitants that they voted in
town meeting.

Thus we have seen that the people composing a town in
the Connecticut colony were made up of inliabitants, house-
holders, proprietors, and freemen, no one class entirely
excluding another, while the majority of adult males could
undoubtedly lay claim to all four titles. The right to vote
in town meeting and to hold town office at first was the
privilege of any one admitted by the town. But as time
went on it is evident that the same looseness of system which
led to the limitation of the general suffirage was to have its
effect on the towns themselves. The "honest conversation "
clause had to be repeated by the court, and the votes already
recorded explain the action of two of the towns in 1659.
Wethersfield has a very caustic protest of a later date from
twenty-eight inhabitants, and possibly proprietors, which
speaks of the " cunning contrivances and insinuations which
men are studious to doe . . . voating in town meetings when
the inhabitants have many of them been withdrawn, and
because there is not enuff present to countermand their pro-
ceedings," etc.' So we may be sure that there was some
ground for the passage by the court of a law restricting the

' Mr. Hooker's suit was a matter of great concern to the town. Fearing
to lose the land, the town even empowered the selectmen, in case the suit
went against them, to ''address her Majestie by petition, praying her
Majestie take notice in this case, and do as in her wisdom her Majestie
shall see meet, whereby justice may bo done." Weth. Kec., Oct. 4, 1708 ;
July 8. 1710 ; Dec. 18, 1710 : April 34, 1711 ; August 80, 1711.

* Weth. Bee., Jan. 28, 1697.

92 The Rivei' Tovms of Connedicid.

right of voting in town meetings. In 1679 the court decreed
that because there were a "number of sourjourners or inmates
that do take it upon themselves to deal, vote or intermeddle
with public occasions of the town or place where they live,"
therefore no one except an admitted inhabitant, a householder
and a man of sober conversation, who has at least fifty shil-
lings freehold estate, could vote for town or country officers
or for grants of rates or lands. ^ The towns take no notice
of this order, and if it was carried out, as was probably the
case, it was practically the first limitation on the right of
voting in regular town meeting. The towns clung to their
democratic principles longer than did the colony.

Growth of the Official System.

There seems to be a good deal of misapprehension, par-
ticularly among those to whom the early history of the colony
in its detail is not familiar, regarding the exact nature of the
settlement. It has been conceived of as the bodily transpor-
tation of three organized towns, as if the emigrants migrated
like an army completely officered. It is true that nearly alP
the settlers came from three Massachusetts towns, but they
by no means came all at once. Two of the bodies came as
organized churches, but this was after the three centres of
settlement had been occupied by previous planters, and after
they had become towns in the eyes of the law by the act of
the provisional government, based on the decree of the Massa-
chusetts court the year before.^ Mr. Hooker did not arrive
until the June following. Mr. Warham had probably but
just arrived with the greater part of the Dorchester people,

^Col. Rec. Ill, p. 34. Although this is practically the first limitation
of town suffrage, there was, however, an early order passed to this effect,
** if any person . . . have been or shall be fined or whippen for any scan-
dalous offense he shall not be admitted after such tyme to have any voate
in Towiie or Commonwealth . . . until the court manifest their satisfac-
tion." (Col. Rec. I, p. 138.)

2** Members of Newe Towne, DorchestS Waterton and other places."
(Mass. Col. Rec. I, pp. 170, 171.)

8 Mass. Col. Rec. I, p. 160.

The Towns and the People, 93

and the Wethersfield church was organized at the same
meeting of the court. Massachusetts eWdently looked upon
the settlement as one plantation, for she appointed for it but
one constable. It was one plantation, but the conditions of
settlement allowed its ready separation into three distinct
towns, through the powers vested in the commissioners. But
it is almost misleading to call them towns even now, for
practically they were three plantations organized on a mili-
tary basis. The constable at first was a military officer. The
equipment was the drakes — one for each town — granted by
the Massachusetts court the year before.^ This step was the
beginning of recognition of the triple nature of the settlement.
First the towns had a military organization, then a religious
organization, and last of all, an act that was not completed
until the passage of the orders of 1639, an independent civil
organization. For two years and a half it is extremely pro-
bable that the only civil officers were the constable, whose
position was semi-military, the collectors, appointed by the
court to gather the rates, the commissioners, afterwards the
assistants, and the committees of the General Court who
resided in the separate towns. The inhabitants must have
met "in some Publike Assembly,"^ for their consent was
necessary in certain orders, and they elected committees to
the court of 1637. The use of this term inclines us to the
opinion that all strictly town matters were at first conducted by
committees appointed in a meeting of the whole, and that by
1638^39 one such committee, the townsmen, had become
official in its character and was annually elected. The fact that
the Hartford records for the first three years were merely notes
regarding land, precautions to prevent the s])read of fire, pro-
vision for guard at every public meeting, and the appointment
of a man to keep the bridge in repair and to do work on the
highways, would seem to show that there was hardly a settled
organLzation. These notes were undoubtedly either entered

' Mass. Col. Reo. I, p. 184. * Ck>aD. Col. Reo. I, p. 28.

94 The Rivet* Towns of Connecticut,

in the book at a later day when a recorder was appomted, or
transferred from jottings made at the time of the adoption of
these rules.

AVith the beginning of the year 1639 (January 1, 1638,
O. S.) we find the first mention of town officers. Hartford
elected at that time four townsmen, and accompanying the
record of election is an elaboration of their duties. The
careful manner in which the latter is drawn up seems to
point to a first election and to the fact that the towns were
just beginning to get into form. This properly begins the
official system, and for the present we must depend on the
Hartford records, as those of the other towns are not extant.
The principle of official limitation is present, so honestly
maintained by Hooker in his well known sermon, and every
act of these officials was watched by the people whose will
they were chosen to execute.^ The widening of this system
consisted in the extension of these duties by town or court, the
development of new powers, and the differentiation of these
powers by the creation of new officers. The duties of the
townsmen were soon extended. They were constituted into
a court for petty cases of debt and trespass (for which, how-
ever, a separate body might be chosen if the town wished) ;
they supervised estates of deceased persons ; they took inven-
tories and copies of wills, and performed additional super-
visory duties. The first probable distribution of their powers
was when a recorder was appointed. All orders previous to

' The orders of Oct. 10, 1639, first put into shape the powers that the
towns were to enjoy. That they already possessed the privileges therein
contained, as Prof. Johnston maintains (Connecticut, p. 76), is without
warrant and as a statement is indefensible. We prefer to consider the
incorporation of the town to have taken place at the time of the appointing
of a constable, and the orders to be the completion of the act by the General
Court. It is hardly probable that Prof. Johnston has examined the town
records, or he would not have been misled into making an entirely wrong
interpretation of the magisterial board, "the really new point in the
'orders,'" which, though truly a new point, was not the origin of the
"executive board of the towns, known as ' selectmen.' "

The Tovms and the People, 95

this were jotted down either by the townsmen or by the com-
mittee chosen to order the affairs of the town. This officer
was elected in Hartford shortly after the passage of the above
orders of the court, and at the same time the town voted that
a chosen committee should " also inquire what orders stand
in force which are [of] general concernment which are not
recorded.'" Undoubtedly such orders had been made without
system, were not minutes of meetings, but partook of the
nature of memoranda of matters decided upon in some public
gathering or in a sort of committee of the whole. About the
same time Hartford, following out the court order allowing
the towns to choose their own officers, elected two constables
for presentation to the court. At this meeting one finds a
very interesting differentiation of the townsmen's duties and
gradual beginning of a more extensive official system. In
December, 1639, the town gave the townsmen liberty of
appointing two men (one for each side), who were to " attend
them in such things as they appoint about the town affairs
and be paid at a publicque charge."" The townsmen do not
appear to have chosen these men, for they were elected by the
whole town at its next meeting. At that time their duties
were elaborated. These two men as assistants to the towns-
men were to perform many of those duties which afterwards,
little by little, were to fall to the lot of specially elected
officers. The record says that these men were chosen to
assist the townsmen, but their principal duties were as
follows: to view the fence about the common fields when
requested by the townsmen ; for this they were to have three
pence an hour, and four pence an hour if they were obliged
to spend time in repairing. This was to be paid by the
owners of the broken palings. They were to survey the
common fields, when appointed, with recompense of three
pence an hour. If any stray cattle or swine were taken, then
they were ^* to do their best to bring them to the pound, either

> Hart. Reo., Dec. 26, 1680. « Hart. Reo., Deo. 23, 1630.

96 The River Towns of Connecticut.

by themselves or any helj) they shall need," for which work
they were to receive pay, with so much additional for every
animal pounded. This was made a general duty to be per-
formed without command from the townsmen, whenever there
was need. In addition they were to do any other special public
service, such as " to warn men to publick employment or to
gather some particular rates or the like," for which they were
to receive the usual recompense of thi'ee pence per hour.^
Here we have in embryo the fence-viewer, pinder or haward,
the public warner, and the rate collector. Just before this
outlining of duties there had been surveyors appointed, Avho
as their first duty had supervision of the highways. Thus in
1640 the governing body of the town consisted of two con-
stables, four townsmen, two surveyors, and a committee of
two, whose duties, partially defined, embraced such as were
not performed by the others. Of these functionaries the con-
stable and townsmen were permanent and received annual
election, the surveyors were yet little more than a committee
appointed for an indefinite period, with specific duties, and the
body of two was but a temporary expedient, the resolution of
which into fixed officers was only a matter of time.

Three stages of growth were yet to take place : a greater dis-
tribution of labor, a definite period of service, and a gradual
adding of new duties such as the growth of the town demanded.
Up to 1640 the simple concerns of the town of Hartford
required no further oversight than that which could be given
by these few officers, by an occasionally appointed committee
to perform duties of a sporadic nature, and by the town as a
whole. At this time the question of highways and fences
comes into more or less prominence, and special committees
were appointed to lay out new highways and to order the
proportions of fencing. This seems to crystallize the surveyor
of highways into a regular officer, and he was from this time
annually elected. No additions were made to this list until

^ Hart. Rec, pp. 1, 7.

The Towns and the People. 97

in 1643 chimney-viewers were elected. The town had estab-
lished in 1635 the requirement that every house have its
ladder or tree for use in case of fire, and probably the watch
under the control of the constable saw that this was carried
out. The chimney-viewers were at first scarcely more than a
committee elected to serve till others superseded them, for
new chimney-viewers were not chosen for two years. After
1645, however, they became annual officers. In the year
1643 the court ordered the towns to choose seven men (after-
wards reduced to five) to give the common lands their " serious
and saddc consideration."^ Hartford in response elected five
men "to survey the Commons and fences and to appoint
according to order [i, e, of the court] in that case." The
next yejir this body was apparently elected under the title of
fence-viewers; at least five are elected who are so called,
with no mention of any other court committee. Then, again
following the order of the court, the town the next yeur, 1651,
handed over these duties to the townsmen, with the addition
of one outside member.^ This step very naturally led to the
next, which consisted in relieving the townsmen altogether of
these duties and constituting this extra member of the board
official fence-viewer. Two were hereafter elected (as required
by the two Mcsjf who served often two or three years in suc-
cession, and were paid out of the fines they gathered. After
1666 they were annually chosen and became established officials.
Ko other officers were chosen before 1651. When the records
of Wethersfield and Windsor usher the condition of those
towns into view in 1646 and 1650, respectively, we find only

'Col. Rec. I, p. 101.

' It is a little curious that the town order for the above is dated Feb. 4,
1650, while that o( the court is Feb. 5, 1050. We suspect that in a great
many cases, of which this is not the first evidence, the relation between the
town and court in Hartford was much closer than in the other towns.
Hartford sceros to have been made a kind of experimental station before
the issuance of coart orders regarding towns. This would account for the
backwardness of the official systems of Windsor and Wethersfield.

98 The River Towns of Connecticut

townsmen performing the will of the people. Though a great
deal is said about fences, highways, animals, and rates, yet no
mention is made of specially appointed officers to take charge
of these matters. All was apparently done by the townsmen,
with the committees which were occasionally appointed to
assist them. We know that early in Hartford the townsmen
were given control of all matters except land grants, the
admission of new inhabitants, and the levying of taxes, the
control of which matters was retained by the town. It is
probable that in Wethersiield and Windsor this system obtained
to 1651. But with the adoption of the code of 1650, and the
promulgation of a definite law ordering the appointment by
the towns of certain officers, the latter began to elaborate
their system. Hereafter each town elected regularly towns-
men, constables, and surveyors. Windsor added chimney-
viewers, fence-viewers, and way-wardens in 1654. These
Hartford had already elected, but Wethersfield did not elect
chimney- viewers till the next century (1708), nor fence-
viewers until 1665, and then not annually until 1669. The
Wethersfield townsmen were a very important body; they
at first chose even the surveyors, and when in 1656 the town
took the election of these officers into its own hands, they
continued to choose, when needed, the pinders — w hose duties
were later merged in those of haward — perambulators,^ and

' Permnbulaiion. — The ancient right of perambulation, or going the
bounds, was in full operation in the Connecticut colony. The custom
dates back very far in history, and was, in early Saxon times, attended
with considerable ceremonial. The bounds of manors, and later of
parishes, were fixed by trees, heaps of stones and natural marks, and the
perambulation of half the parishioners from mark to mark was made yearly
for the purpose of resetting the bounds if destroyed, or of reaffirming them
and seeing that no encroachments had taken place. The Connecticut
settlers were familiar with the old custom and early applied it, but in a
less pretentious fashion than that which existed in the mother country.
"When their bounds are once set out, once in the year three or more
persons in the town appointed by the selectmen shall appoint with the
adjacent towns to goe the bounds betwixt their said towns and renew their
marks." (Col. Rec. I, p. 513.)

The Tovma and the People. 99

wamers to town meeting, though these were not elected every
year, and they appointed many important committees. In
Windsor the town elected these men as was the case in Hart-

The boundaries of each town were very early settled at the time the
towns were named. They are rudely described, and it is no wonder that
town jealousies found opportunity to dispute them. The landmarks were
at first the mouths of three brooks, a tree and a pale, with east, west and
south measurements by miles. (Col. Rec. I, pp. 7, 8.) This gave to each
of the townships the form of a parallelogram. It is doubtful whether
anything was done in addition to establishing these bounds before the
passage of the code of 1650. In that document it was ordered that each
town was to set out its bounds within a year, in order to avoid '* jealousies
of persons, trouble in towns and incumbrances in courts"; the town records
show that this was carefully complied with. The proper maintenance of
town boundaries has been called the symbol of free institutions, as it is the
assertion on the part of the town of independence and self-respect, and
the frequency of the disputes is evidence that the river towns were no
shiftless upholders of their rights. Wethersfield at one time even threat-
ened to sue the whole town of Ilartford if the latter refused to send her
committee to settle a disputed point (Weth. Rec, Sept. 30, 1095), and
two years later actually entered on a suit ; while with her neighbor on the
west she was in dispute for forty years. It does not appear that in Eng-
land it was the custom for parishes to join in the perambulation, but each
beat its own bounds. Yet the theory of the English perambulation was
carried out in Windsor, of as many as possible joining in the bound-beating.
•* Also men desired and appointed to run the lyne between Windsor and
Hartford on the east side of the Great River from the mouth of Podang
according as it was anciently run betwixt us on the west side. !Mr. New-
bery, Matthew Grant, John Fitch to carry an axe and a spade, and others
as many as can and will" (Wind. Rec, Mar. 26, 1660), "and as many
as will besides." (Mar. 11, 1668.) Each town appointed a committee,
one of whopi was ordered to give the other towns warning. This com-
mittee, of from two to six men, to which was occasionally added the
townsmen, would meet the committee from the neighboring town on the
dividing line. The joint body then advanced from mark to mark, digging
ditches, heaping stones, or marking trees if necessary. This repeated
every year ought to have kept the matter from dispute, and in general we
may say that it did. (Weth. Rec, Mar. 8, 1658-4 ; Apr. 2, 1655 ; Mar.
24, 1658-0, etc.) Without making too much of a survival, it is interesting
to note a shadow of the old English ceremonial. In the records of Windsor,
liquors for bound-goers occurs year after year as a regular town expense
(compare this with an entry in the account book of Cheshire, England,
1670, "spent at perambalation dinner, 8.10," Toulmin Smith, p. 522).

100 The Rivet* Towns of Connecticut,

ford, and as they were not restrained by any general order,
the nature of the officers differed somewhat both as to duties
and date of first election.

Yet the perarabulaters received pay in addition. (Wind. Rec, Feb. 14,
1654 ; Feb. 16, 1665 ; Stiles, Windsor, pp. 61, 161.) From the value of
the liquor used, from two to six shillings, and from its character and the
amount needed — a quart of rum, two gallons of cider — it is likely that
another survival is to be chronicled ; the Saxon stopped at each bound
mark and performed a little ceremony, probably the Windsor fathers did
the same in a somewhat different manner. But Wethersfield was not so
lavish as her sister town, she allowed no such heathenish survival. Not
one mention is anywhere made in her records of liquor for bound-goers ;
she ordered that her bounds "be Rund" according to court order, but
that which under some circumstances would make them run more smoothly
was wanting.

There must be noticed a difference in the custom as applied here from
that known in England. There the idea was that careful perambulation
must be made by the parish, that no sharp practice on the part of a
neighbor parish should deprive it of any rightful territory. To this end
a large number of the inhabitants, old and young, passed over the bounds
until the entire parish had been circumperambulated. This was done
independently of any adjoining town. But in Connecticut a distinct
perambulation was made with each committee from the adjacent towns,
covering each time only the extent of line bounding the two towns con-
cerned. In Virginia, where the custom, under the title ** processioning "
or ** going round," was early in vogue, the method was more like the
English perambulation. Each Virginia parish was divided into precincts,
around which processioning was performed once in four years. On a
stated day between September and March, two freeholders were appointed
to lead the procession and to make return to the vestry by means of
registry books. They were accompanied by the '* neighbors" or all free-
holders in the precinct, who were obliged to be present and follow. When
the boundaries had been three times processioned they became unalterably
fixed. It was generally the custom for neighboring precincts to perform
their perambulation at the same time. (Hening's Statutes, II, p. 102;
III, pp. 32, 325-8, 529-31.) The custom did not appear in New Haven
until 1683. (Levermore, p. 170.) In Massachusetts it was established
by court order in 1647, and of that order the Connecticut law is an almost
verbatim copy. (Mass. Col. Rec. II, p. 210.) The custom as enforced
in the Plymouth colony contained the same general provisions about time,
place and manner. (Plymouth Laws, p. 259.) Rhode Island, Pennsyl-
vania, and Maryland went no further than to pass laws against the removal
or alteration of boundary marks.

The Towns and the People. 101

In nearly every case save that of townsmen, town officers
were the result of an order of the court to that effect. Hart-
ford was generally the first to respond — for it was the seat of
government — to the decree of the higher power, and the other
towns followed sometimes at once, often within reasonable
time, though again apparently they neglected it altogether.
The court had already ordered the establishment of the con-
stable, the watch, surveyors, recorder, and fence-viewer ; yet
as late as 1668 it declared that adequate provision had not
been made for the establishment of town officers, and passed
a general law enacting a penalty in case of refusal to accept
office.^ This referred only to townsmen, constables, and sur-
veyors, and had the effect of making the town service more
efficient.

With the increase in the number of inhabitants and in the
wealth of the communities, special officers to regulate the
finances were necessary, and collectors of rates were early
appointed by the court.^ There were at first three rates and
afterwards a fourth. When a plantation became a town it
first bore its share of the country rate, which was the amount
paid by each town to the colony, which was collected and
transmitted by the constable ; then there was the town rate,
established by the town at each meeting, and paid for accord-
ing to the list of estate by each inhabitant ; there was also
the minister's rate, levied and collected as was the town rate,
and aftenvard there became established a school rate. The
officers for the management of these rates were the lister, who
made up the list of estate, and his associate, who made
out the rate ; the collector or bailiff, to whom the inhabi-
tants brought their wheat, pease and '^marchantable" Indian
com; and the inspector, a short-lived officer, who was
to see that no estate was left out of the country list. Often
the minister's and the town rate were collected by the same
person, sometimes by different persons, and the townsmen
had full power to call the collectors to account every year.

' Col. Rec. II, p. 87. 'CJol. Rec. I, pp. 13, 118.

102 The Bivei' Towns of Connecticut,

In addition to these officers there were a series of others
ordered to be appointed by the court and called into being
by the commercial activity of the settlement. We find inter-
mittently elected such officers as the packer of meat, brander
of horses, with his brand book and iron, sealer of leather,
with his stamp, and examiner of yarn, each of whom took
his oath before the magistrate — the assistant or commissioner
— and received as pay the fees of his office. Then there was
also the sealer of weights and measures, the standard of which
was originally procured from England ; sometimes the court
appointed these latter officers, but more often the town elected
them. By way of special functionaries there were the public
whippers, the cattle herders, sheep masters, tithingmen,
ordinary-keepers, and, of the military organization, the ensign
of the train band. In the year 1708 the following was the
list of officers chosen in Wethersfield : town clerk, selectmen,
constables, collectors for the minister's and town rate, sur-
veyors (two for the center, one for Rocky Hill, and one for
West Farms), fence-viewers (two for the center, two for
Rocky Hill), listers, sealer of measures, leather sealer, chim-
ney-viewers, hawards, and committee for the school. The
office of town-warner and town-crier had for some time been
obsolete, for the court ordered the erection of a sign-post in
1682.

For the satisfaction of justice there was ample provision.
As early as 1639 the townsmen had been authorized to sit as
a court for the trial of cases involving less than forty
shillings. Cases of debt, of trespass, little matters of dispute
between inhabitants, with damages paid in Indian corn or
rye, are to be found in the Windsor records. It is probable
that the other towns had the same court, though there is no
record of it, for the Particular Court of the colony had no
trials for less than forty shillings. This was superseded in
1665 by the commissioner, to whom was given "magis-
tratical " power. To aid him and to preserve the number of
the former town court, Wethersfield twice, in 1666 and 1667,

The Toicns and the People. 103

elected a body which she called " selectmen," but after that
evidently the commissioner acted alone. In 1669 a court
was ordered to be erected in the towns, consisting of the
commissioner, assisted by two of the tONvnsmen ; these three
acting with the assistant formed a court of dignity, more
worthy to inspire respect and moderation on the part of
offenders. It was, however, short-lived, and though Wind-
sor has record of it in 1669, we hear nothing more of it.
The judicial duties now devolved entirely on the commis-
sioner, until he was superseded in January, 1698, by the
Justice of the Peace. Appeal to the Particular Court, and
later to the County Court, was allowed, but not encouraged.
Lawyers as we understand them were not in existence.
But many a man in the colony had the requisite qualifica-
tions, with perhaps a smattering (or more, as in the case of
Roger Ludlow) of law, and he only required to be clothed
with legal power to bring or resist a suit. This authority
was conveyed by letter of attorney, which was a document
signed by the plaintiff or defendant and duly witnessed.
Such a letter would be given to one person or more, and
when a town wished to bring suit it empowered the towns-
men to plead and manage the case themselves, or instructed
them to constitute others as attorneys acting under them, to
whom they were to give letters of attorney.^ Debts were
collected in the same way.^ Sometimes in more personal
cases arbitration was resorted to, in which case two (and if
they could not agree, three) would be chosen, and a bond of
80 many pounds put up, which was forfeited by him who
failed to abide by the judgment of the arbitrators.^ Com-
mittees were appointed for the same purpose for a limited
time to hear cases of complaint, to be reported to the town,
who reserved the right to pass judgment.*

» Hart. Rec. May 18. 1678 ; Weth. Reo., Deo. 17, 17W.

' Hart. Book of Distrib., p. 544.

» Weth. Land Rec. Ill, p. 8 ; Stiles, Windsor, p. 65.

* For a very interesting case of this kind see Woth. Reo., Mar. 4, 1701-2.

104 The River Tovms of Connecticid.

Townsmen.

After this bird^s-eye view of the town official system, an
examination into the constitution and growth of the most
important body of all, the executive board of townsmen,
will give us an idea of the practical working of the town
machinery. The first appearance of this body in the Hart-
ford records of January 1, 1638 (1639), shows it to us in
no process of development, as was the case elsewhere,^ but
full grown, with qualified powers, undoubtedly the result of
previous experimentation. At a meeting held January 1,
1638-39, two weeks before the "11 orders" were voted, it
was ordered that the townsmen for the time being should
have the power of the whole to order the common occasions
of the town, with, however, considerable limitation. They
were to receive no new inhabitant without the approbation of
the whole; could make no levies on the town except in
matters concerning the herding of cattle; could grant no
lands save in small parcels of an acre or two to a necessitous
inhabitant ; could not alter any highway already settled and
laid out; in the calling out of persons and cattle for labor
they must guarantee in the name of the whole the safe return
of the cattle and a reasonable wage to the men, and should not
raise wages above six pence per day. They were required to
meet at least once a fortnight, for the consideration of affairs,
and for arranging the proper time for the calling of a general
meeting, and for absence from such meeting they were to be
fined two shillings six pence for every offense.^ The next
year it was voted that once a month the townsmen should
hold an open meeting, to which any inhabitant might come,
if he had any business, at 9 o'clock in the morning of the
first Thursday in the month ; and that no order as passed in

' The townsmen of Dorchester, Mass., furnish a good example of such a
development. Dorchester Rec. pp. 3, 7 ; in 4th Report of Boston Record
Commission.

^Hart. Rec, Jan. 1, 1638.

The Tovma and the People. 105

the townsmen's meeting was to be valid until it had either
been published at some general meeting or reported to the
inhabitants house by house, or read after the lecture. If any-
one, on being warned, failed to stay to listen to the order, he
could not plead ignorance of the law, but was liable for its
breach.^ The type of townsmen in 1638-39 was little different
from that found in later years.^

The value of such a system would seem to be patent to
every one, but it is specially interesting to find the colonists'
own reasons, expressed a few years later, as to the principles
on which the functions of townsmen were based. In 1645
the town (Hartford) voted that persons refusing to respond
when called out by the townsmen to work on the highways
should be fined. Evidently an unrecorded protest was made
against giving the townsmen so much power, for on the next
page appears a study of principles which is worthy, in its
relation to the town, to stand beside Hooker's sermon in its
relation to the commonwealth. The " Explication " reads
thus :

" Whereas in all comunities & bodyes of people some pub-
lique workes will ocurr for the orderinge & manageing
whereof yt hath ever beene found necessary & agreeable to
the rules of prudence to make choice of p'ticular p'sons to
whome the same hath been comitted whoe both with most
advantage to the occations & least trouble & inconvenience
to the whole may oversee & transact such afiayres : And

• Hart. Rec, Jan. 7, 1639.

• The error often made regarding the origin of the Connecticut towns-
men, ascribing the beginning of the townsmen sjstem to the magisterial
board or town court instituted by the General Court in October, 1039,
seems to be due to the indexing of this board in the printed records of the
colony under the heading ♦* Townsmen." Dr. Levermore, in his Republic
of New Haven, p. 72, note, as well as Prof. Johnston {anpia, p. 94. note),
falb into the error. As we have seen, the decree of the court had nothing
to do with the establishment of even prospective townsmen, for they already
existed, with functions almost identical with those performed by the
townsmen of the later period.

106 The River Toicns of Connecticut.

accordingly yt is w^^ us iisuall (the beginnings in w*^^ we are
p''senting many things of that natuer) to make choise of some
men yearly whome we call Townesmen to attend such occa-
tions. But yt is easily obvious to evry apprehension that
unles w*^ the choise of y™ to the place power be given for
the manageing & earring on of the same their indeav'"® wilbee
fruitless & the publique nessesarily suffer ; It is therefore by
general consent ordered that in all occations that doe con-
cerne the whole and is comitted to the care & oversight of
the townesmen yt shal bee lawfull for them or anie twoe of
them to call out the teames or p^sons of anie of the inhab-
itants, the magistratts & officers of the church in their owne
persons only excepted for the mannaging & carringe on of
such occations wherin yet they are to use the best of their
descretion not to lay such burthens on anie as to destroy the
p'ticular but soe farr as the natuer of the occation under hand
will in their judgments w^'^out disadvantage p'mitt to attend
as neare as may be a p'portion according to the interest ech
hath in the whole.'' ^ In this declaration is contained the
fundamental idea of town government : the election by the
body of those who are to order its aiFairs, the investing
these when elected with power for the proper performance of
their duties, and the implied responsibility in the use of this
power. There lies in the latter factors all the difference
between good representative government and bad representa-
tive government, between the Constitutioh and the Articles
of Confederation. It is an outcropping of the spirit which
framed the Fundamental Articles. A clause which follows
the above vote declares that if any partiality be shown by
the townsmen, the aggrieved person might appeal to the
whole town, or if not then receiving satisfaction, might carry
his case to the "publique justice in the place," thus making
the law a court of higher appeal than the people.

The number of men for this purpose chosen has differed

> Hart. Rec. I, p. 37.

The Toxom and the People, 107

greatly in different colonies and towns. In Massachusetts,
bodies of twenty were elected to order affairs, of whom seven
could bind the people.^ In some towns twelve townsmen are
recorded,^ but as years went on a reduction took place, and
we find the number gradually lessening to nine, seven, five,
and three. In New Haven the number was ten, afterwards
reduced to seven. In the Connecticut colony it varied.
Hartford regularly had four ; Wethersfield in seventy years
elected twenty-six bodies of five, twenty-nine bodies of four,
and fifteen bodies of three ; the Windsor number was at first
seven, afterwards five. The object for which they were elected
has been already dwelt upon. The records generally phrase
it " to order the town^s occations for the year," " to agetat
and order the townse occasions for the present year." These
occasions were far more extensive than is now the case. Town
affairs included church affairs, and in those three little com-
munities great were the religious agitations. The more impor-
tant matters, such as building the meeting-house, settling a
minister or a controversy, were put into the hands of a special
committee, but the townsmen cared for and repaired the
meeting-house, and had charge of those chosen by town vote
for sweeping, dressing, underdaubing and clapboarding the
building, and generally saw to the construction of porch,
seats, and pulpit. At that time much was passed upon by
people in town-meeting which would now be decided by the
selectmen at their own meeting, on the strength of the power
vested in them by law. But there was then no law deter-
mining the exact nature of their office. Each town measured
the proper limitations of its own townsmen, and one may say
that the townsmen did everything for the performance of
which no one else was appointed. Often these powers varied
year by year. In carrying out their functions the townsmen
often, though by no means always, wrote out the orders

'Blake, Annals of Dorchester, pp. 18, 14.
* Watertowo and Bostoa.

108 . The River Towns of Connecticut,

already arranged in their own meeting, drawing them up in
the proj>er form. These were presented at the general meet-
ing, when they would be accepted or not as the inhabitants
pleased, for the latter had always the power of vetoing the
projects of their agents if they did not approve of them.

The modern town treasurer is an important diiferentiation
of the townsmen's powers. This is not the place to speak of
the nature of the rates or the method of raising them. Suf-
fice it to say that the control of all expenditures, whether for
church, town, or school matters, was in the hands of the
townsmen. They never collected the rates. For this pur-
pose a committee or special officer was chosen, but it was
through the townsmen that the regular expenses of the town
were met. Under such heading there seems to have been in-
cluded such items as paying the herders, watch, drum-beaters,
building and repairing bridges, setting the town mill, survey-
ing lands, repairing the minister's house, payment of minis-
ter's salary, occasionally supporting indigent persons, repair
of town property, as guns, ferry (in Windsor), town stocks,
etc., payment of bounties for wolves and blackbirds, pay-
ment of town officers, and such extra expenses as " Towns-
men dining with magistrates" and "liquor for boundgoers."
Of course this is an imperfect list, yet it gives an idea of
town expenditure in the last half of the seventeenth century.
Every year the town voted a certain amount for the past
year's expenses, and it is worthy of notice that difficulties
over financial matters were not so frequent as we might have
expected. Yet, though the townsmen were hard-headed econ-
omists, they do not always appear to have been systematic
and prompt in squaring their accounts and handing over the
surplus to the newly elected officers. There was no law, as
now, requiring that an annual statement of receipts and
expenditures be made and laid before the town at their annual
meeting. It was customary to do so, but there was at times
a curt independence about the old townsmen-treasurers which
would not brook too close supervision. Their honesty placed

The Toyms and the People, 109

them abov'e giving bonds, or obeying laws which seemed to
question their honor.^

The townsmen gradually changed into the selectmen. This
name does not appear in Hartford and Windsor before 1691,
and from that time for a period of twenty-five years there is a
curious commingling of the two terms. The title " selectmen "
was often used in recording the election, but the town clerk
still clung to the good old name, and we find "townsmen" in
the minutes of further proceedings. But there is plenty of
evidence to show that the terms were used synonymously.
Wethersfield employed the term in a very confusing fashion.
It first styled two town courts established in 1666 and 1667
"selectmen," and in 1679 and 1681 again used the term for a
distinct body; it is evident, from the nature of the latter's
duties, that they were connected with the granting and receiv-
ing of certificates of freemanship. The establishment of this
body seems to have been the following out of an order of the
court in 1678, in which selectmen giving false certificates
were fined £5.^ Wethersfield immediately elected for this
purpose an extra body — first of four members, then of three —
who performed this service, and because, from their position,
they needed to have a familiarity with the list of estate,
they were, in 1679, given the duties of listers and rate-
makers. But in a few years the term had become confused
with that of townsmen, and the fact that the name selectmen
was already in use and further established by the laws of
Andres in 1688, to which Wethersfield, at least, very duti-

' In seventy years in Wethersfield seyenty-four men held the oflBce of
townsmen, with an average of four elections to each. Of these seventy-four,
thirty held office over four times, with an average of six elections to each ;
fourteen held office over six times, with an average of eight elections to
each ; four held office over eight times, with an average of ten elections
to each ; and the most befunctionaried individual served as townsman
eleven times, while only fifteen held office but onoe. (Weth. Reo. 1646-
1710.)

«Col. Rec. Ill, p. 24.

110 The River Towns of Connecticut

fully responded/ brought it into common use, and after 1725
it was the commonly accepted term.

Constables.

The appointment of a constable in Connecticut was the
affixing of the official seal to a town, and was done without
exception, though in at least two instances (Simsbury and
Derby) the court appointed the constable before the settle-
ments petitioned for town privileges. He was the right arm
of the law, and the channel through which the court com-
municated with the towns, and frequent were the orders to
constables by the court.

The first constables appointed for the river towns were of
a decidedly military character. They rather resembled their
English prototype than the officer of later colonial days.^
The first independent organization of the towns was for
defense. The earliest act of the provisional government was
directed against a laxity of military discipline, and the next
forbade sale of arms, powder or shot to the Indians; following
which is the appointment of constables, practically as military
officers. A further extension of the armed organization is
seen in the watch, undoubtedly a kind of constabulary patrol
to guard against Indian attacks. The constable was next
required to view the ammunition, which every inhabitant
was ordered to have in readiness, and finally, before half a
year had passed, each town was put into working military
form by the institution of monthly trainings under the con-
stable, with more frequent meetings for the "unskillful."
At this time the constable was required to perform his time-
honored duty of viewing the arms to see " whether they be
serviceable or noe," which duty was later given to the clerk
of the train band. One is not surprised that the colonists

'Weth. Rec, May 21, 1688.

' For the military character of the constable see Adams, Norman Con-
stables in America. J. H. U. Studies, vol. I, pp. 8 ff.

The Towns and the People. Ill

were in readiness the next year to declare an offensive war
against the Pequots.^ After the war was over the inhabitants
were ordered to bring to the constable " any Ajmor, gones,
swords, belts, Bandilers, kittles, pottes, tooles or any thing
else that belongs to the commonwealth," and this officer was
to return them to the next court.^

But after this need of special military jurisdiction was
passed and Captain Mason was appointed general training
officer, the constable^s duties became of a purely civil char-
acter. Such were first outlined in the code of 1650. But
without reference to that code, his duties, as the records
declare them, were as follows : He was obliged to take oath
after his election by the town before a magistrate or assistant.
He collected the country rate and transmitted it to the colonial
collector, afterwards the treasurer (1708). He warned the
freemen to attend their meeting when deputies were chosen,
and, in Windsor at least, warned for one town meeting yearly.
At this meeting he read to the inhabitants the " cuntry laws"
or orders of the General Court passed during the preceding
year, and declared to them the amount of the country rate.
At this meeting his successors were chosen as well as other
town officers. He controlled the watch and executed all
commands of the court or warrants from a magistrate.
He broke up tipplers, raised the hue and cry (of ancient
lineage), and could summon other inhabitants to join in the
pursuit. He also passed on objectionable personages to the
constable of the next town, who continueil the process until
Sir Vagabond reached the town that owned him. This was
one way of disponing of intruders. He was an officer that
inspired awe. Yet notwithstanding this, the office was not
one greatly sought after ; its duties were arduous, and many
a man preferred to pay his forty shilling fine than to serve.'

1 Col. Reo. I, pp. 1, 2, 8, 4, 9.
«Col. Rec. I, p. 13.

*Dr. Stiles, quoting a Windsor record of 1661, where "after much con-
tending " constables were chosen, concludes that the office was in great

112 The River Towns of Connecticut

Besides this functionary, some of the towns had a kind of
petty constable, who guarded the commons to prevent neigh-
boring townspeople from carrying off timber, fire-wood,
stone, etc. He was, however, a town officer, and his election
does not appear to have been ordered by the court.

Town Meetings.

In comparing the records of the different towns and colo-
nies, one is struck by the bareness, the brevity and narrowness
in scope of the minutes of meetings of the Connecticut set-
tlers. There is little doubt that what we have represents
the gist of the proceedings, and not only does the subject-
matter show us that questions of necessity alone were dis-
cussed, such as related to the existence of the town and
church as a corporate body, but the record of such discussion
is embraced in the simple statement of its result as embodied
in a tow^n order. There is little flesh on the bare skeleton of
facts, little color to lighten up the sombre monotony. Here
and there an unconscious bit of phraseology or an exception-
ally lively subject naively treated by the recorder, gives a hint
of the activity which lay behind the formal phrases, and a
realistic peep into the life of the people. But any attempt
to portray the daily social and business life of the people of
the early colony would be a difficult task.

The town meeting was held at first monthly, but, with the
growth of the town, the meetings during the summer months
were held less frequently, and at times were apparently
dropped altogether, except in case of special call. The
autumn and winter meetings were of the greatest importance,
for at these officers were elected, rates proclaimed and laws
read. During the seventeenth century the different officers
were not always elected at the same meeting, though such

demand. It may have been at that time, but after 1675 it was not. Hart-
ford and Wethersfield had plenty of cases of refusal and payment of fine.
In 1691 seven men were elected one after the other, and each refused to
take the office. ( Weth. Rec, Dec. 28, 1691.)

The Tovms and the People. 113

was the case with the more important. The town-meeting
was generally called together by the beating of the drum or
blowing of the trumpet from the top of the meeting-house, in
a manner made clear by the following : " determined that
provision should be made upon the top of the meeting-
house, from the Lanthorn to the ridge of the house, to walk
conveniently to sound a trumpet or drum to give warning to
meetings."^ This was employed for all meetings, on Sundays
and lecture days as well. There were also warners, who went
from house to house in Wethersfield, giving notice to the
inhabitants. These inhabitants generally came together at 9
in the morning, and at first fines were imposed for absence,
but this seems to have fallen into disuse. When the inhab-
itants were assembled, a moderator was appointed and busi-
ness begun. The nature of the orders passed upon will have
been gathered from what has already been said, and it is
unnecessary to enlarge upon it here. There was no interfer-
ence with private concerns, no sumptuary legislation, no
votes touching on the morals or religious opinions of the
people. What little of this sort was to be done in the colony
was reserved for the Greneral Court. Town officers were gen-
erally elected by ballot, though at times, for " dispatch of
business," it would be voted to elect them by hand. General
orders were passed by majority of hands held up, and in case
of a vote for minister where a majority was certain to be in
favor, a raising of hands was all that was necessary. Such
meetings were after 1700 held quarterly, and later semi-
annually, and now annually,'^ always, however, subject to a
special call. In addition, tliere are scattered here and there
among the minutes of town-meetings, records of constable's
(freemen's) meetings and meetings of the townsmen.

» Wind. R«c.,Dec. 18, 160^

'The present law is th&t town-moeti; '1 ' '' inmiallj some

time in October, Norember, or Decern! • tinps maybe

convened when the selectmen deem it necessary, or on the applicution of
twenty inhabitants. Town-meetings may, however, be adjourned from
time to time, as the interest of the town may require.

114 The Rivei' Toicns of Connecticut,

Eates and Fines.

The financial system of the towns was of a simple order,
and few difficulties arose of a specially troublesome nature.
In the beginning there was but one rate or tax levied on all
the inhabitants by the town, which covered all the debts con-
tracted of any nature. The creditors presented their accounts
generally at the February meeting, and a rate was voted to
cover them. Before 1688 the amount of the rate was stated
as so many pounds, which was apportioned among the inhab-
itants for payment, but after that time the town voted a tax
of so much on a pound, as " one half penny and one farthing
on ye pound," " one penny farthing upon the pound." This
covered the ordinary expenses. Those of an extraordinary
nature, such as building a bridge or a meeting-house,
seem to have been met by a special rate laid by the town,
though all repairs were included among the regular town
debts. But very soon there was separated from this general
rate — and it was the first step in the separation process — the
minister's salary, which was voted in the lump — so much for
the minister and so much for his assistant, if he had one.
For the collection of this a special officer was chosen, and all
the people were taxed in proportion to their list of estate.
This list was carefully made out and published from house
to house. In addition to the rate, the minister was given on
his settlement a grant of land, a certain share of the mill
tolls, and his land was voted free from taxation. It is prob-
able that he was paid semi-annually, once in September and
again in March. Windsor tried for many years the system
of voluntary subscriptions, appointing a committee to go
from house to house to find out what each would give. This
scheme was continued many years .^ In 1680 the general
statement was made regarding the whole colony — including,
of course, New Haven — that nowhere was the minister's rate

> Wind. Rec, Nov. 11, 1663 ; Stiles, Windsor, p. 153.

The Toicna and the People, 115

less than X50, and in some towns it was as high as £90 and
£100 a year.^

As early as 1642, Hartford voted X30 to be settled upon
the school for ever,^ though we cannot say that Wethersfield
or A\'indsor made provision so early. In the latter town, in
1658, there was allowed out of the town rate <£5 for the
schoolmaster. Wethersfield the same year makes her first
recorded provision somewhat more liberally. The first
schoolmaster was to receive £25 for his teaching. A house
and land was allowed him, but of the X25 the children were
to give him eight shillings apiece and the town to make up
the rest. Three years after the town appropriation was £S
and that of Windsor reduced to X4 10s. The payment by
the scholars was at first by such as went to school, later all
boys between five and ten years were taxed, " whether they
go to school or not," and we find that all who sent children
to school in winter between September and April were each
to send a load of wood to keep them warm. Thus the pro-
^^sion for the school was at first twofold — appropriation by
the town and payment by the scholars. Later, as the teacher
received a definite amount, the town stated exactly how much
it would give, and the remainder was made up by the scholars.
This became the school rate, and every child between six and
twelve was taxed according to the length of attendance.
Servants taught were paid for by their masters. In 1 701 a
third source of supply was provided in what the records call
the " cuntry pay," that is a tax of forty shillings laid on
ever}' thousand pounds of estate, collected by the constable,
and handed over to those towns which maintainc<l their
schools according to law. This was the beginning of state
support. The townsmen controlled all school matters either
in i^erson or by appointed committees, which became a
regular official board about 1700. This system of town con-
trol lasted till the first quarter of the eighteenth century,

> Ool. Reo. in, 800. 'Hartford Reo., Deo. 6, 1649.

116 The JRiver Towns of Connecticut

when, with the separation of town and parish, the control of
school matters fell into the hands of the ecclesiastical societies.
Again a change was made with the system of dividing the
town into districts, and the control is now in the hands of
regular district committees, though there is a tendency to
centralize the management by the institution again of town
committees with general supervisory power.

In addition to these regular rates there were others of a
minor and intermittent character ; the seat rate, which corres-
ponded to the present custom of sale of pews, with this differ-
ence, that as each was assigned his seat by a committee, he
paid what he was told, and many worked off this rate by
laboring for the town; the meadow rate for building the
common fence; the watch rate, and other lesser ratings for
unusual appropriations.

Many of the town and state expenses were met by fines.
If the towns used whipping or the stocks, as did the court,
their use is not recorded.^ But fines were of regular order-
ing. There were fines for everything that the town forbade :
for elders, briars or weeds in the highway, for leaving the
meadow gates open, for neglecting fences, for having unruly
cattle or runaway swine, for carrying off timber, from out-
siders for felling trees, and from inhabitants for not working
on common or highways ; in fact for all neglects of town
orders. Officers were fined for neglect of duty and for
refusing to serve when elected.

Payment of all debts, of rates and of fines, was at first
entirely in kind. Wheat, pease and Indian corn, sound, dry
and well dressed, were employed, and rye came into use a
little later. By 1695 the inhabitants were allowed to pay
half in current money of New England, and soon this was
extended to the privilege of paying all the rates in current
money. But the depreciation of the currency was such that

* The towns certainly had stocks. The court ordered each town to have
a public whipper. But there is no record that the towns used these for
themselves. Perhaps they carried out the court orders.

The Toums and the People. 117

by 1698 money would be taken at only two thirds of its face
value. All money accounts were kept in pounds, shillings,
pence and farthings, and a regular schedule of prices was
made every few years, determining the value of the different
qualities of grain. Smaller amounts, such as mill and ferry
tolls, were probably paid in wampum at three, four and,
later, six for a penny. The nature of the commodities was
such that they were brought to the collector's house, which
served as a sort of town treasury, and the town paid its
debts from this fund.^ The accounts of these collectors were
offcen loosely kept, and the townsmen had difficulties in
squaring accounts with them, for rates were difficult to
collect, particularly in hard times, and the inhabitants were
often in arrears. It was not until the end of the century
that the collectors made annual reports and town finances
were put on a systematic basis. Even the townsmen them-
selves did not always keep accounts in good order, and their
successors in office often found afiairs very mixed, though
the towns differed in this according to the financial ability of
their officers. Windsor apparently had the most conscien-
tious officials. This town had a somewhat thorough way of
dealing with her debtors. If the rate-payer did not hand in
his due within reasonable time after the rate was published,
a committee was appointed by the townsmen and given a
note of the amount due. This committee was ordered to go
to the houses of the delinquents, and, as the record says, " if
they can find com they shall take that in the first place, but
if not, then what of any goods that come to hand (and give
the owners three days liberty after to carry in the debts and
withal 2d. in a shilling over and above the true debt or rate
which belongs to them that distrayne towards their labors
according to the order of the Court) and if they neglect to
redeem the goods distrayned, that then they shall get it

> Windsor had ft **Towil Bftm " built for this special purpose. Stiles,
Windsor, p. 135.

118 The River Towns of Conneciicid.

prized by indifferent men and sell it and pay the debt and
themselves and return what remains to the owners."^ This
is interesting as showing the way in which the towns applied
the court orders, and how faithfully they worked in harmony
with the policy laid down by the General Court in regard to
all town matters.

Town and Colony.

We have now considered in some detail the characteristic
features of the agrarian and civil life of this sturdy people.
It was not essentially different from that existent among the
other New England towns; such life was in its general
features everywhere the same. On close examination, how-
ever, we find that the machinery of town and court adminis-
tration can be classified as to whether it is pure or mixed,
simple or complicated, natural or artificial. To Connecticut
belongs the best of these conditions. Her town life was
pure, simple and natural ; the law which guided her political
relations was nearer to the law which governs to-day than
anywhere else on the American continent. We are apt to
think of her settlement as an artificial importation, as one
ready-made through the influence of pre-existent conditions.
On the contrary, it was a natural growth ; it passed through
all the stages of gestation, birth, and youth to manhood.
Beginning with the commercial stage, when trade was the
motive power, it soon entered the agricultural stage, when
the adventure lands were occupied by planters. With the
development of this phase of its growth the military stage
begins, when it became necessary to systematically arm against
the Indians, and to turn the agricultural settlements into
armed camps, with the people a body of trained soldiers. At
this stage the organized religious life begins, when systematic
church life arises with the infusion of new settlers; and last

^ Wind. Rec, Dec. 10, 1659. For " the order of the Court," see Code
of 1650, Col. Rec. I, 550.

The Towns and the People. 119

of all is reached the civil or political stage, when for the first
time the settlements may be fairly called organized towns.
Now with these five factors — commercial, agricultural, mili-
tary, religious, political — all active elements in the structural
unity of the towns, we can understand why the need of some
more exact and authoritative scheme of government was felt,
and why the constitution of 1639 was adopted. We can also
understand why such a document had not been drafted before;
it was not a constitution struck off at one blow, but was in
every article the result of experience. Two years previous
the Greneral Court had met, and without other right than that
of all men to govern themselves, began to legislate in matters
of general concern ; the state dates its birth from this date.
But not until the inhabitants composing that state had
become accommodated to the new situation, and the separate
settlements had become sufficiently developed to be used as
units for popular representation, was a general system of
government framed. We have said that every article in that
constitution was based on experience, either in Massachusetts
or Connecticut; the document as finally drafted was the
result of the trial by democracy of itself. The people were
experimenting, and as they experimented, the towns were
growing and the state was taking shape. The very title
" committees " of the first representatives is a clue to the yet
unformed condition of the towns. This committee bore no
dintinctly official character, but was probably chosen by the
people of the town — for as yet the principle of freemanship
had not been established — to represent themselves, not the
town, in the body which was to try the experiment of legisla-
ting for a self-governed community. Can we doubt that
each town was managing its own affiiirs by committees of a
not essentially different character from those sent to the
Greneral Court ? It is at least a significant fact, that within an
interval of two weeks preceding the crystallization of the
state ex))eriment in a written constitution, Hartford, the only
town of which we have record, formulated the plan for its

120 The River Towns of ConnecticxU.

permanent government, by the election of townsmen, and,
what is more significant, by setting bounds and limitations
to their power in seven prohibitive orders. Had not the
people been experimenting in town government as well as
state, and is it surprising that the permanent organization of
the one almost exactly coincided with the permanent organiza-
tion of the other? Far be it from us to take without warrant
an attitude antagonistic to an historian who has done so
much for Connecticut history, and whose political discern-
ment is so superior to our own, but the whole bearing of this
study has been to convince us that Prof. Johnston's theory
that in Connecticut it was the towns that created the common-
wealth ; that in Connecticut the towns have always been to
the commonwealth as the commonwealth to the Union, is
entirely untenable. If Hartford, in every way the most pre-
cocious in rounding out her town system, did not begin that
system till 1639 (N. S.), there is no doubt that the other
towns, which in 1650 had but the beginnings of an official
town system, were even later in development. How then
can towns with an as yet hardly formed government, receiv-
ing and obeying orders from a central authority, their
only permanent officers the appointees of that authority, be
said to have sovereignty and independence ? There were not
three sovereignties, but one sovereignty, and that lay with
the people. These people in their position as settlers in
separate localities, and through those acting for them in the
General Court, effected the erectionof these localities into legal
towns; and though these towns were used as convenient
channels of representation and taxation, they never, either
before or after the constitution, had complete local inde-
pendence. As there were no sovereign towns, there could
be no pre-existent town rights; such rights lay with the
people, and they gave them up with but one reservation, as
has been already stated in the first chapter. This constitu-
tion was not the articles of a confederation, although the
people entered into " combination and confederation," in

The Towns and the People. 121

which the peculiar nature of the settlements was recognized;
but it was a government to order the "affairs of the people/'
" gathered together," " cohabitting and dwelling in and upon
the River of Conectecotte and the Lands thereunto adjoyne-
ing," to which government was granted " the supreme power
of the commonwealth." Compare this expression with that
in the first article of the Constitution of the United States,
where the very phrase, "All legislative power herein granted,"
shows at once that the framers never considered the supreme
power as belonging to the central government they were
creating.

In turning from the historical to the legal aspect of the
question, the discussion may be brief. This act of the people
of Connecticut has been the basis of all judicial decisions.
Two quotations will show the drift of such interpretation.
In 1830 Chief Justice Daggett decided that the towns "act
not by any inherent right of legislation, like the legislation
of a State, but their authority is delegated."^ Still more
pertinent is the decision of Chief Justice Butler in 1864, who,
referring to the surrender of power, says, " That entire and
exclusive grant would not have lefl a scintilla of corporate
power remaining in themselves as inhabitants of the towns, if
any such had then existed"; and again, "And thus their
powers, instead of being inherent, have been delegated and
controlled by the supreme legislative power of the State from
its earliest organization." ^

'Williarcl vs. Killingworth, 8 Conn. Reports, p. 247.

» Webster vs. Harwington, 32 CJonn. Reports, pp. 186-139. Both of these
were quoted by Roger Welles, Esq., in the Hartford Courant^ Aug.
37, 1888, and will suflloe for the argument in the text, but enlarge-
ment in a note may not be without profit. More fully. Chief Justice
Daggett's opinion is as follows : " The borough and town are confessedly
inferior corporations. They act not by any inherent right of legislation,
like the legislature of the State, but their authority is delegated, and their
powers therefore must be strictly pursued. Within the limits of their
charter their acts are valid, m/Ao«/ it they are void." July, 1880. The
Webster vs. Harwington case was argued by Governor (now Judge)
Andrews in 1864, who took the ground *' that in a democratic govern-

122 The River Towns of Comiecticut.

So much, then, for the historical and legal side of the case.
How was it in practice? Were the towns in Connecticut
" almost as free as independency itself until near the period
of the charter," as Prof. Johnston says, or were they con-
trolled by the supreme legislative body of the state from

ment, ultimate sovereignty resides with the people ; the simplest municipal
organization, viz. the towns, being the most purely democratic and volun-
tary, possess all power with which they have not expressly parted." This
is the claim that Prof. Johnston makes of reserved rights in the towns.
Chief Justice Butler in answer says, speaking of the Constitution of 1639,
** That extraordinary instrument purports on its face to be the work of
the people — the residents and inhabitants — the free planters themselves
of the three towns. It recognizes the towns as existing municipalities,
but not as corporate or independent, and makes no reservation, expressly
or impliedly, of property or legislative power in their favor." (p. 137.)
Again, in referring to the historical authorities quoted by the plaintiffs he
says: ** These views" (that the towns gave up a part of their corporate
powers and retained the rest in absolute right) " have been expressed by
[the historians] without sufficient reflection or examination, and are not
correct in principle or sustained by our colonial records or by any adjudi-
cation of our courts " (p. 136). He also says, in speaking of the orders of
October, 1639, which Prof. Johnston refuses to accept as anything more
than a defining of privileges already possessed, and not as an incor-
poration or chartering of the towns (p. 76): '* Now that provision enacted
by the General Court in 1639 was both a grant and a limitation of vital
power, and was intended to embrace towns thereafter created (as they
were in fact) by law, and is utterly inconsisteiit with the idea of a reserved
sovereignty, or of any absolute right in the towns and constituted the
towns corporations, and the continuance of it has continued them so ; and
that provision, with the numerous special provisions then and since made,
prescribing their officers and regulating their meetings and other proceed-
ings, and imposing and prescribing their duties as subordinate municipal
corporations, constitute their charters." Then follows the second quota-
tion in the text (p. 139). For further similar judicial opinions see Higley
vs. Bunce, Conn. Rep. 10, 442 ; New London vs. Brainard, Conn. Rep. 22,
555. In these cases there was no dissenting voice against the opinion of
the Chief Justice by the associate judges of the Supreme Court. The suit
of Webster vs. Harwington had already been decided by Judge Sandford
in the Superior Court, against the theory of reserved rights. The attitude
of Massachusetts and New York toward their towns is exactly the same.
Bangs vs. Snow, Mass. Rep. I, p. 188; Stetson vs. Kempton et al., Mass.
Rep. 13, p. 278 ; Statutes of 1785, ch. 75. For New York see Hodges vs.
City of Buffalo, 2 Denio, p. 110 ; Revised Statutes I, p. 599, sees. 1, 3.

The Towns and the People. 123

their earliest organization, as has just been quoted? The
court almost at once, in the August or September following
the adoption of the constitution, took measures to complete
the organization of the towns, through the agency of a court
committee appointed for that purpose, and on the presenta-
tion of their report, in the October following, passed the
orders which they had drawn up. In these orders and those
frequently passed aftenvard — we are speaking of the period
preceding the charter — can be found all the rights that the
towns were possessed of. Every officer chosen except the
townsmen can be traced to these orders, as well as every
privilege exercised of which the town records give us
knowledge. The allowance was liberal, and the towns never
exceeded, and in some cases did not wholly exhaust, the
powers granted them. Even within these orders the court
occasionally interfered. It ordered regarding highways,
fences, and unruly animals ; decided the boundaries of the
towns, refused the right of town suffrage to such as had
been whipped or fined for scandalous oifenses ; even made
grants of town lands ; settled the ferry rates of Windsor,
gave orders to her deacons ; interposed in the ecclesiastical
alfairs of Wethersfield ; ordered the establishment of town
inns ; commanded the payment of bounties, and showed its
authority in many other similar ways. It also controlled all
the military and commercial affairs of the towns. In other
words, the Greneral Court directly controlled all matters not
expressly delegated to the towns, and even in those matters
it interfered, though rarely. That this was as true in practice
as in theory, a careful study of the town records enables us
to affirm.

What an actual reservation of rights was may be seen in
the case of Southhampton, which, settled in 1640, came under
the jurisdiction of Connecticut in 1644. As for these four
years it had been an independent church-state, it had some
right, made more drnded by its peculiar situation on Long
Island, to introduce into the agreement a distinct reservation

124 The River Tonms of Connecticut.

of power. Its inhabitants were given *' liberty to regulate
themselves according as may be most suitable to their own
comforts and conveniences in their own judgment," and power
was reserved for all time " for making of such orders as may
concerne their Towne occations."^ This, by force of con-
trast, makes clear how different the position of the river
towns actually was in the eyes of the court.

Nor did the towns themselves fail to recognize this posi-
tion of complete subordination to the General Court. It
might be sufficient to say, as substantiating this, that they
never overstepped their boundaries, but a concrete expression
of their opinion is more conclusive. Windsor was much
troubled because the people neglected their fences, from which
many complaints had resulted, and says "that we cannot but
see it the cause of many trespasses and discord among neigh-
bors, and therefore, as we should desire and endeavor the peace
and comfort of one another," it proceeds to regulate the
matter, adding almost parenthetically : " The court having
left the care and ordering of things of this nature to the care
of the townsmen in the several towns." ^ If this was the
situation up to the time of the charter, much more was it so
in the period following, when, with the growth of towns and
commonwealth, colonial organization became more compli-
cated and new conditions were constantly arising. That

' Col. Reo. I, p. 567, Appendix II. Compare the historic beginnings
of the Connecticut towns with those of Rhode Island, of which it can be
truly said, as does the historian of that State, ** In Rhode Island each
town was itself sovereign, and enjoyed a full measure of civil and religious
freedom."— Arnold's Hist, of Rhode Island, I, p. 487.

2 Wind. Rec, March 21, 1659. The only instance that the writer can
find of an unwillingness to obey a court order was when the court, appar-
ently unjustly, refused to ratify the election of Mr. Mitchell, a weighty
landholder of Wethersfield, who had been elected to the oflBce of Recorder.
The court declared the office vacant and ordered a new balloting. The
town refused compliance, and Mr. Mitchell entered upon his office. In
answer to this the court promptly fined him twenty nobles, and that part
of the town which voted for him five pounds.— Col. Rec. I, pp. 40, 51-52.

The Tovms and the People. 126

town and court relations had not changed it is almost unneces-
sary to state.^ To attempt to prove it by example would be
tedious and add little that was new. It may all be summed up
in two quotations, which bring into sharp contrast the relation
of the town to the colony, as compared with that of the State
to the American Congress. When East Hartford wished the
liberty of a minister in 1694, Hartford, though loath to part
with " their good company," yielded gracefully and said, that
" if the Greneral Court see cause to overrule in this case, we
must submit."^ But when it was rumored in 1783 that the
Congress of the Confederation was overstepping its privileges,
the town passed, among others, the following article. Address-
ing the State delegates, it said, "And first (Gentlemen) we
desire and expressly instruct you to oppose all Encroachments
of the American Congress upon the Sovereignty and Juris-
diction of the separate States, and every Assumption of Power
not expressly vested in them by the Articles of Confederation."*
Far more worthy of admiration, and nobler in its accom-
plishment, was the relation which actually did exist between the
town and the court in the colony of Connecticut. Its boasted
democracy becomes almost greater in the practice than in the
conception. This we realize when we see a body endowed
with supreme power, unrestrained by any authority on earth,
exercising that power with such moderation and remarkable
political sagacity that the town appears as almost an inde-
pendent unit. If an institution is the lengthened shadow of
one man, then here we see Thomas Hooker with the king in

1 ** The royal charter was a precious gift and came to be the object of
almost saperstitious regard. But it did not in any way affect the relations
previously established between the people and their chosen rulers. The
frame of government continued U) rest on the same broad foundation on
which the Ck)n8titution of 1689 had placed it, and ' the supreme power of
the Commonwealth ' was made to consist, as before, in the general court.'*
Trumbull's Hist. Notes on the Constitution of Connecticut, pp. 10-11.

'Hart. Rec. I, p. 178.

' Hart Rec. II, p. 801 . F*or the nature of this encroachment see Cartis.
Hist, of the Constitution, I, p. 100 ; Trumbull's Hist. Notes, p. 18.

126 The River Towns of Oonnecticut.

his pocket, and his exceeding fervor of spirit well under
control.

If the General Court of Massachusetts interfered in half
the affiiirs of its towns, as says Dr. Ellis, it is safe to say
that the Greneral Court of Connecticut interfered practically in
a proportion very much less, the exact fraction of which it
would be difficult to formulate. Once established, the towns
were left to run themselves. It was not often that the court
directly interfered; it interposed its authority in case of
disputes, instructed the towns in their duty when they seemed
to be wandering from it, and offered its advice gratuitously if
it seemed necessary. The towns were often unable to manage
their own afikirs, and then the peculiarly paternal position of
the court most prominently appears. The town petitions were
always carefully considered. In this way they came to the
court for advice and counsel, to it they presented their diffi-
culties ; Windsor with her boundaries, Wethersfield with her
minister, Simsbury in a pathetic appeal regarding her fences.
The court in all such cases, full of almost a tender interest in
its towns, appointed a committee to help them out of trouble.
In matters of grievance it was the court of last resort, and its
decision was final. Only when the towns seemed to be misus-
ing their privileges was its manner firm, and against evildoers
its tone was severe. Yet its laws were always temperate, and
never arbitrary in their nature. For this reason town and
colony grew without display, but with a political strength
unequaled ; and its people, made strong by adversity, and
unhampered by a false political friction, have developed a
state which has proved in the crises of history a bulwark to
the nation.

Addendum. — For the sake of clearness regarding a statement made in
note 2, page 15, it should be explained that in 1636 Mr. Winthrop was
Governor at Saybrook, acting under the Patentees. He was not Governor
under the Constitution until 1657.

X-XI-XII

FEDERAL GOVERNMENT

IN

CANADA

JOHNS HOPKINS DNIVERSITY STUDIES

IN

Historical and Political Science

HERBERT B. ADAMS, Editor.

History is pwt Politics and Politics present History — J^rteman.

SEVENTH SERIES
X-XI-XIl

FEDERAL GOVERNMENT

IN

CANADA

By JOHN G. BOURINOT, Hon. LL. D., D. C. L.

Clerk 9f Ok» HouBe tff Common* f\f Canada; Honorary Secretary qf the Royal Society qf Canada; Author

of ParliammUary Praetiee amd Proeedure in Canada, Manual qf the ConHituttonal Hietory

qf Canada, Local OoMmmmtt m Canada (in Johne Hupkine UnivertUy

■vi.)

BALTIMORE

V. M UMur, PuBUCATioM AaBUT, JoKn HoPKuri Umvi&urrx'

O«tob«r, NoT«inb«r» I>eo«iiib«r, 1880

Copyright, 1889, by N. Murray.

JOHN MURPHY A CO., PRINTERS.
BALTIMORB.

TABLE OF CONTENTS.

Lecture I. Historical Outline op Political Development... 7

II. General Features of the Federal System 29

III, The Government and the Parliament 77

IV, The Provincial Governments and Legislatures.. 121

FEDERAL GOVERNMENT IN CANADA.

LECTURE I.

HISTORICAL OUTLINE OF POLITICAL
DEVELOPMENT.

In the course of this and the following lectures/ I propose
to direct your attention to the Federal constitution of the
Dominion of Canada. My review of the system of govern-
ment which we now possess must necessarily be limited in its
scope. I can but give you an outline of its leading features
and a very imperfect insight into its practical operation. I do
uot pretend to do more than lay before you a mere sketch —
perhaps not more than a tracing of the architect's work — and
point out the strength and harmony of the proportions of the
national structure which Canadian statesmen are striving to
perfect on the northern half of the continent. At the same
time I shall endeavor to indicate what seem, in the opinions
of competent authorities, to be such defects and weaknesses as
must always, sooner or later, show themselves in the work of
human hands.

It is necessary that I should at the outset briefly trace the
various steps in the |X)litical development of British North
America, so that you may the more clearly understand the

' Theee four lectures were read during the month of May, 1889, lieforo
Trinity Univeraity, Toronto, Canada, and are now printed for the firet time
with some notes and additions to the text.

7

8 Federal Government in Canada. [464

origin and nature of our present system of government. Nor
can I well leave out of the consideration some references to
the political institutions that existed in Canada previous to
1759-60. Such a review will not give any evidence of polit-
ical progress, but it would be very incomplete if it did not
lay before you the characteristics of a system of government
which is not simply interesting from an antiquarian or his-
torical point of view, but also on account of the comparisons
it leads us to make between the absolutism it represented and
the political freedom which has been the issue of the fall of
Quebec in 1759, and of the supremacy of England in Canada.

But there is another important consideration which renders
it absolutely necessary that I should give more than a passing
allusion to the French period of Canadian history. Though
more than a century and a quarter has passed since those days
of the French regime, many of the institutions which were
inherited from old France have become permanently estab-
lished in the country, and we see constantly in the various
political systems formed in Canada from time to time the
impress of those institutions and the influence of the people of
French Canada.

As the most convenient method of dealing with this part of
my subject, I shall leave the consideration of the political
development of Nova Scotia and the other small provinces
until the last lecture, when I come to review the present con-
stitution of their governments and legislatures. I shall con-
fine myself for the present to the political history of the large
country generally known as Canada until 1867, and now
divided into the provinces of Ontario and Quebec. This
history may be properly divided into several Periods, varying
in the number of years from the time Champlain laid the
foundation of the French colony on the banks of the St. Law-
rence, down to the establishment of the system of federation.

First of all we have the period when France claimed do-
minion over the extensive ill-defined territories watered by the
St. Lawrence and the great Lakes and including the valleys

465] Federal Government in Canada. 9

of the Ohio and the Mississippi Rivers. During this period
which lasted from 1608 to 1759-60, — for it is not necessary
to refer to the abortive expedition of the Marquis de la Roche
or to the voyages of Jacques Cartier which did not lead to
immediate colonization, — Canada was under the control for
a number of years of proprietary governments chartered by
the king to carry on trade in the country whose furs were
already highly valued in the markets of Europe. In those
days of chartered corporations the governor was radically
supreme and exercised executive, legislative and judicial powers
with the assistance of a council which he consulted according
to his pleasure. By 1 663, however, Louis XIV. decided under
the advice of the eminent statesman Coll)ert to take the gov-
ernment of Canada into his own hands, but the measures he
proposed were for a while kept in abeyance on account of a
charter for commercial purposes being granted to a new com-
pany under the influence of courtiers anxious to use the colony
for their own selfish purposes. But Colbert was ambitious to
extend the commerce of France and establish colonies wherever
she had a foothold, and in this respect he was wise above
statesmen of his day. Accordingly we find that on the failure
of the new company to realize its exiKxitatious no fresh effort
was made in the same direction, but the plans of 1663 were
carried out in 1674 and the king and his minister took all the
measures necessary to establish beyond legal doubt a regular
system of government in accordance with the autocratic spirit
which characterized regal jK)wer in those days. It has been
well observed by the historian Parkman that the governor of
Canada as well as the intendant, the next most important if
not indeed in many ways the most iinj)()rtant functionary of
state, were to all intents and pur|)oses in iM)int of authority,
the same oflBcials who presided over the affairs of a province
of France. In Canada as in France governors-general had
only such powers as were expressly given them by the king
who, jealous of all authority in others, kept them rigidly in
check. In those days the king was suprenu* ; *' I am the state **
2

10 Federal Government in Canada, [4G6

said Louis Quatorze in the arrogance of his power. The
feudal system of France had been long since deprived of its
dangere to the monarch and the nobles of the once proud
feudal families, who in old times had even defied their feudal
chief, were now kept within the courtly precincts to pay him
homage and obey his commands. The three estates, the nobles,
clergy and tiers etaty or the " nation," still existed in name,
but while the first was stripped of real jDower and the second
exercised its usual influence on the conscience of the de-
vout the people groaned under the exactions of the king and
his courtiers. The states-general never assembled to give voice
to the complaints of the nation and provide redress. We find
there were Parliaments that assembled at stated periods at Paris,
Rouen and other important places but in no respect did they
resemble that great council of the English people which from
the earlier days of English history has been so often a check
on kingly assumptions. The Parliaments of France were
purely of a judicial character, and though at times they served
as a curb on the absolutism of the king, as a rule they were
under his control, and forced under all circumstances to reg-
ister his decrees, however objectionable they might be. In
view of such facts it is easy to understand that there could be
no such things as free government or representative institu-
tions in Canada, like those enjoyed from the very commence-
ment of their history by the old English colonies which were
founded almost contemporaneously with the settlement of
Acadia and Canada by De Poutrincourt and Champlain.

The governor had command of the militia and troops, and
was nominally superior in authority to the intendant, but in
the course of time the latter became virtually the most influ-
ential officer in the colony, and even presided at the council
board. This official, who had the right to report directly to
the king on colonial affairs, had large civil, commercial and
maritime jurisdiction, and could issue ordinances on his own
responsibility which had full legal effect in the country. Asso-
ciated witli the governor, and intendant was a council, com-

467] Federal Government in Canada. 11

prising in the first instance five, and, eventually, twelve
persons chosen from the leading people of the country. The
change of name from the " Supreme Council *' to the " Supe-
rior Council " is of itself some evidence of the determination
of the king to restrain the pretensions of all official bodies
throughout the kingdom and its dej)endencies. This body
exercised legislative and judicial powers, and was a court of
appeal from the judicial functionaries at Quebec, Montreal
and Three Rivers, the principal towns of the three districts
into which the country was divided for the administration of
justice in accordance with the Coidume de Paris. The Bishop
was a member of the council, and the history of the colony is
full of the quarrels that arose between him and the governor
on tK)ints of official etiquette, or with respect to more import-
ant matters affecting the government of the country. The
Roman Catholic Church, from the very first settlement of
Canada, was fostered by express provisions in the charters of
the incorporated commercial companies. The causes that
assisted in tlie colonization of the French colony were trade
and religion, and the priestly missionary was as frequent a
visitor in llie camp of the Indian tril)es as the Coureur de hois,
who wanderal over the Western wilderness in the days of the
French regime. When the king assumed the government, the
bishop and his clergy continued to increase their power and
wealth, and by the time of the conquest the largest landed
proprietors, and in many resj>ects the wealthiest, were the
church and its communities. The seigniory soon gave way to
the parish of tlie church, as a district for local as well as
for ecclesiastical purposes. Titlies were imposed and regulated
by the government, and as the country became more {x)pulous
the church grew in strength and riches. It held always under
its control the education of the ])eople, and was then, as now,
the dominant power in the country.

The king and the council of state in France kept a strict
supervision over the government of the colony. An ap{>eal
lay to the king in all civil and criminal matters, but the dis-

12 Federal Government in Canada, [468

tance between Paris aud Quebec, in those days of slow com-
mimication, tended to keep up many abuses under which the
people suffered, and it is easy to explain how it was that an
unscrupulous intendant like Bigot was able to cheat the Cana-
dians for so many years with impunity and amass large wealth
by the most disgraceful peculation and jobbery.

We look in vain for evidence of popular freedom or material
prosperity during those times. The government was autocratic
and illiberal, and practically for many years in the hands of
the intendant. Public meetings were steadily repressed and
even the few that were held in those early days on occasions of
public emergency could be called only at the instance of the
authorities. No system of municipal government was estab-
lished, and the efforts to elect aldermen for civic purposes in
Quebec were almost immediately rendered ineffectual by the
open or insidious hostility of the governing powers. Some
semblance of popular representation was given for a while by
the election of "syndics," a class of officials peculiar to French
local administration, though we can trace their origin to the
Greeks. The French Canadian colonists had in all probability
brought with them among their customary rights that of choos-
ing an agent for the special purpose of defending the interests
of a community whenever necessary before the authorities,
but in accordance with the principles that lay at the basis of
the Canadian government, the people soon found themselves
incapable of exercising what might have been a useful muni-
cipal office, and might have led to the extension of popular
privileges. It is not strange, then, that the habitants of the
seigniories, as well as the residents in the towns, lived for the
most part a sluggish existence without any knowledge of, or
interest in the affairs of the colony, which were managed for
them without their consent or control, even in cases of the
most insignificant matters. Even trade was in fetters. Cana-
dians could only deal with France, in conformity with the
restrictive policy of those times when colonies were considered
simply feeders for the commerce of the parent state.

46 9 J Federal Government in Canada, 13

It may bo urged witli truth that the French Canadian had
no knowledge of those free institutions which Englishmen
brought to this continent as their natural birthright. The
people of France were crushed beneath the heels of the king
and nobles, and the Norman or Breton was hardly a freeman
like an Englishman of Devon or Kent. But transplanted to
the free atmosphere of this continent, and given some oppor-
tunities for asserting his manhood, the bold courageous native
of Brittany or Normandy might have sooner or later awaked
from his political lethargy, and the conquest might have
found him possessor of some political rights and in many
respects an energetic member of the community. This was,
however, impossible in a country where the directions of the
king and his pliant ministers were always to the effect that
liberty of speech should be rigidly repressed. Even the Mar-
quis of Frontenac, when governor, was told in very emphatic
terms that he made a grievous mistake when he presumed
to advise the assembling of the Canadians on the plan of the
Hois g6n6raux of France ; a piece of presumption, indeed, when
the representative assemblies were never called together even
in the parent state.

We must now come to the Second Period in our political
history, which dates from that hour of humiliation for France
and her Canadian offspring, the capitulation of Quebec and of
Montreal in 1759-1760. This was the commencement of
that new era during which the French Canadians were grad-
ually to win for themselves the fullest political freedom under
the auspices of England. The second period may be con-
sidered for the puri)ose3 of historical convenience, to be the
transition stage from the conquest until the granting of repre-
sentative institutions in 1791. I call it a transition stage
because it illustrates the development from the state of oom-
plete {)olitical ignorance that existed at tlio time of the conquest
to the state of larger political freedom that the constitutional
act of 1791 gave to the people of Canada. During this
transition period it is interesting to notice the signs that the

14 Federal Government in Canada. [470

Freuch Canadian leaders gave from time to time of their
comprehension of self government, even within a quarter of
a century from the day they emerged from the political dark-
ness of their own country under the French regime. Several
political facts require brief mention in this connection. From
1760 to 1763 when Canada was finally ceded to Great Britain
by the Treaty of Paris there was a military government as a
necessary consequence of the unsettled condition of things,
but it docs not demand any special consideration in this review.
Then King George III issued his famous proclamation of
1763,^ and by virtue of the royal prerogative established a
system of government for Canada. The people were to have
the right to elect representatives to an assembly, but the time
was not yet ripe for so large a measure of political liberty, if
indeed it had been possible for them to do so under the in-
structions to the governor-general, which required all persons
holding office or elected to an assembly to take oaths against
transubstantiation and the supremacy of the Pope. This
proclamation which was very clumsily framed in the opinion
of lawyers created a great deal of dissatisfaction, not only for
the reason just given but on account of its loose reference to
the system of laws that should prevail in the conquered
country. As a matter of fact the ordinances issued by the
governor and executive council that now governed Canada,
practically went to establish both the common and the criminal
law of England to the decided inconvenience and dissatisfac-
tion of the French Canadians accustomed to the civil law of
France. But events were shaping themselves in favor of the
French Canadians or " new subjects " as they were called in
those days. The difficulty that had arisen between England
and the old thirteen colonies led her statesmen to pay more
attention to the state of Canada and to study the best methods
of strengthening their government in the French colony, where

* Issued 7th October, 1763. See text at the end of third volume of Cart-
wright's Cases on the British North America Act.

471] Federal Government in Canada. 15

the English element was still relatively insignificant though
holding practically the reins of ix>wer by means of the execu-
tive council and the public offices. In 1774 the parlia-
ment of Great Britian was for the fii*st time called upon
to intervene in the affairs of Canada and passed the act
giving the first constitution to Canada, generally known
in our history as the Quebec act.* During the same session
were passed a series of acts with the object of bringing the
colonists of New England into a more humble and loyal state
of mind ; for the cargoes of tea, inopportunely despatched to
different colonial ports, had been already destroyed, and the
discontent that prevailed generally in the colonies, especially
in Massacliusetts, had reached a crisis. The Quebec act was
in the direction of conciliating the French Canadians, who
naturally received it with much satisfaction. The English,
on the other hand, regarded it with great disfavor, and the
same may be said of the people of the old thirteen colonies,
who subsequently, through their Congress, stated their objec-
tions in an appeal to the people of Great Britain, and declared
it to be "unjust, unconstitutional, and most dangerous and
destructive of American rights." The act established a legis-
lative council nominated by the crown, and the project of an
assembly was indefinitely postponed. The French Canadians
were not yet prepared for representative institutions of whose
working they had no practical knowledge, and were quite
content for the time being with a system which bix)ught smne
of their leading men into the new legislative boily. All theii
experience and traditions were in favor of a governing Ixxly
nominated by the king, and it required time to show them the
advantage of the English system of popular assemblies. But
what made the act so popular in Lower Canada was tiie fact
that it removed the disabilities under which the French Cana-
dians, as Roman Catholics, were heretofore placed, guaranteed
them full freedom of worship, and placed the church, with the

>IiDp. Act, 14th Geo. Ill, cap. 83.

16 Federal Govenwumt in Canada. [472

exception of the religious orders, the Jesuits and Sulpitians/
in comi)lete possession of their valuable property. The old
French law was restored in all matters of controversy relating
to projierty and civil rights. The criminal law of England,
which was, in the opinion of the French Canadians, after an
experience of some years, preferable to their own system on
account of its greater mildness and humanity, was to prevail
throughout the country. The hostile sentiment that existed
in Canada, and the old thirteen colonies arose in a great
measure from the fact that the civil law of France was
applied to the English residents not only in the French section,
but to the large area of country extending to the Mississippi
on the west, and the Ohio on the south, so as to include the terri-
tory now embraced by the five States northwest of the Ohio.
While this act continued in force various causes were at
work in the direction of the extension of popular government.
The most important historical fact of the period was the com-
ing into British North America of some forty thousand persons,
known as United Empire Loyalists, who decided not to remain
in the old thirteen colonies when these foreswore their allegi-
ance to the king of England. Few facts of modern times
have had a greater influence on the destinies of a country than
this immigration of sturdy, resolute and intelligent men, united
by high principles and the most unselfish motives. They laid
the foundations of the provinces now known as New Bruns-
wick and Ontario, and settled a considerable portion of Nova
Scotia. From the day of their settlement on the banks of the
St. John, Niagara and St. Lawrence rivers, and in the vicinity
of Lakes Ontario and Erie, they have exercised by themselves
and their descendants a powerful influence on the institutions

^ The Sulpitians, who are a very wealthy corporate body, were left in
possession of their property, but it was not until 1839 that they received
legal recognition. The Crown took formal possession of the property of the
Jesuits in 1800 on the death of the last representative of the order in
Canada. See Lecture II, and Lareau, Histoire du Droit Canadien, II,
pp. 195-200.

473] Federal Govtniinait in Canada, 17

of Canada, not unlike that exercised by the descendants of the
New England pioneers throughout the American Union ; and
it is to them we owe much of that spirit and devotion to
England which has always distinguished the Canadian people
and aided to keep them, even in critical periods of their history,
within the empire.

In view of the rapidly increasing English population of
Canada and of the difficulties that were constantly arising
between the two races, — difficulties increased by the fact that
the two systems of law were constantly clashing and the
whole system of justice was consequently very unsatisfactorily
administered, — the British government considered it the
wisest policy to interfere again and form two separate pro-
vinces, in which the two races could work out their own future,
as far as practicable, apart from each other. This was a very
important change in its far-reaching consequences. It was
not merely another remarkable step in the political develop-
ment of Canada, but it was to have the effect not only of
educating the French Canadians more thoroughly in the
advantages of self-government but of continuing the work
which the Quebec Act practically commenced, and strength-
ening them as a distinct nationality desirous of perjjetuating
their religion and institutions.

The passage of the Constitutional Act of 1791* is the
b^inning of the Third Period in the political history of
Canada, which lasted for half a century until it was found
necessary to make another important change in the constitu-
tion of the provinces. This Act extended the jwlitical liber-
ties of the people in the two j)rovinccs of UpiKT Canada and
Lower Canada — now Ontario and Quebec — organized under
the Act, since it gave them a complete legislature, composed
of a governor, a legislative council nominated by the crown, and
an assembly elected by the i)eople on a limited franchise, prin-
cipally the old forty shilling freehold system so long in vogue

* Imp. Act, 81 Qeo. II, Otp. 81«

18 Federal Government in Canada. [474

in English speaking colonies. The object was, as stated at
the time, to separate the two races as much as possible and to
give both a constitution resembling that of England as far as
the circumstances of the country would permit.

The history of the two provinces, especially of French
Canada, under the operation of the Constitutional Act of 1791,
is full of instruction for the statesman and political student.
It illustrates the fact which all history teaches, that the political
development of a people must be always forward the juouient
their liberties are extended, and that the refusal of franchises
and privileges necessary to the harmonious operation of a
gov^ernment is sure sooner or later to breed public discontent.
I do not purpose to dwell on well-known historical facts,
but there are a few considerations bearing on this review of
political development which I shall briefly mention. In the
first place the constitution of 1791, though giving many con-
cessions and privileges to the provinces, had an inherent weak-
ness, since it professed to be an imitation of the British
system, but failed in that very essential principle which the
experience of England has proved is absolutely necessary to
harmonize the several branches of government; that is the
responsibility of the executive to parliament, or more strictly
speaking to the assembly elected by the people. The English
representatives in the province of Upper Canada soon recog-
nized the value of this all important principle of parliamentary
government according as they had experience of the practical
operation of the system actually in vogue ; but it is an admitted
fact that the French Canadian leaders in the assembly never
appreciated, if indeed they ever understood, the constitutional
system of England in its full significance. Their grievances,
as fully enumerated in the famous resolutions of 1834, were
numerous, but their principal remedy was always an elective
legislative council, for reasons quite intelligible to the student
of those times. The conflict that existed during the last
thirty years of this i^eriod was really a conflict between the
two races in Lower Canada, where the French and elective

475] Federal Government in Canada, 19

element predominateil in the Assembly, and the English
and oflBcial or ruling element in the legislative council. The
executive government and legislative council, both nominated
by the crown, were virtually the same body in those days.
The ruling spirits in the one were the ruling spirits in the
other. The English speaking people were those rulers, who
obstinately contested all the questions raised from time to time
hj the {X)pular or French party in the assembly. In this
contest of race, religion and politics the passions of men
became bitterly inflamed and an impartial historian must dep-
recate the mistakes and faults that were committed on both
sides. But looking at the record from a purely constitutional
point, it must be admitted that there was great force in the
arguments presente<l by the assembly against many anomalies
and abuses that existed under the system of government.
They were right in contending for having the initiation and
control of the public expenditures in accordance with the prin-
ciples of parliamentary government. The granting of supply
is essentially the privilege of a people's house, though no
measure can become law without the consent of the upper
house, which may reject, but cannot amend a revenue or
money bill. Another grievance was the sitting of judges in
both houses. While the British government soon yielded
to the remonstrances of the assembly, and instructed the
governor to consent to the passage of an act to prevent the
continuance of this public wrong — for it cannot be considered
otherwise — of judges having a scat in the assembly, they were
permitted to remain both in the executive and legislative
councils for nearly the duration of the constitutional act. It
was not until the assembly endeavored to impeach the jutlgc^
year after year, and deluged the imperial parliament with
addresses on the subject, that this grievous defect disappeared
from the j)olitical system.

In Upper Canada the iK)litical difliculties never assumed
so formidable an aspect as in the French Canadian section.
No difference of race could arise in the Western province, and

20 Federal Government in Canada. [476

the question of supplies gradually arranged itself more satis-
factorily than in Lower Canada, but in course of time there arose
a contest between officialism and liberalism. An official class
held within its control practically the government of the pro-
vince. This class became known in the parlance of those
days as the " family compact," not quite an accurate designa-
tion, since the ruling class had hardly any family connection,
but there was just enough ground for the term to tickle the
taste of the people for an epigrammatic phrase. The clergy
reserves question grew out of the grant to the Protestant
Church in Canada of large tracts of land by the constitutional
act, and was long a burning dominant question in the contest
of parties. The reformers, as the popular party called them-
selves, found in this question abundant material for exciting
the jealousies of all the Protestant sects who wished to see the
Church of England and Church of Scotland deprived of the
advantages which they alone derived from this valuable source
of revenue.

The history of this period, however full of political mis-
takes, is interesting since it shows how the people, including
the French Canadians, were learning the principles on which
parliamentary government must rest. It was history repeat-
ing itself, the contest of a popular assembly against preroga-
tive, represented in this case by the governor and executive
which owed no responsibility to the people's house. Those
times of political conflict have happily passed and the domi-
nant body now is the people's house, where the council only
holds power by the will of the majority. If there is cause for
complaint, or danger in the present system, it is in the too
great power assumed by the executive or ministry and the
tendency to yield too much to its assumptions on the part of
the political majority.

I have endeavored, as briefly as possible, to show the
principal causes of irritation that existed in Canada during the
third period of our history. All these causes were intensified
by the demagoguisni that is sure to prevail more or less in

477] Federal Government in Canada. 21

times of popular agitation, but the great peril all the while in
Lower Canada arose from the hostility of the two races in
the political arena as well as in all their social and public
relations. The British government labored to meet the
wishes of the discontented people in a fair and conciliatory
spirit but they were too often ill advised or in a quandary from
the conflict of opinion. No doubt the governors on whom
they naturally depended for advice were at times too much
influenced by their advisers, who were always fighting with
the people's representatives and at last in the very nature of
things made advocates of the unpopular party. Too gener-
ally they were military men, choleric, impatient of control,
and better acquainted with the rules of the camp than the
rules of constitutional government and sadly wanting in the
tact and wisdom that should guide a ruler of a colony.
Exception must be made of Lord Dorchester who, like
Wellington and even Marlborough, was a statesman who
would have been found invaluable had fate given him to
Canada at a later period of her history when the political
discontent was at last fanned into an ill-advised rebellion in
the two provinces, a rebellion which was promptly suppressed
by the prompt measures immediately taken by the authorities.
In Lower Canada the constitution was suspended and the
government of the country from 1838-1841 was administered
by the governor and a special council. The most important
fact of this time was the mission of Lord Durham, a distin-
guished English statesman, to inquire into the state of the
country as governor-general and high commissioner. Few
state papers in English history have had greater influence
on the practical development of the colonies than the elaborate
report which was the result of his review of the situation.
It was a remarkably fair summary of the causes of discontent
and suggested remedies which recommend themselves to us in
these days as replete with political wisdom. The final issue
of the inquiries made into the <M)ndition of the oouiitrv was
the intervention of parliament once more iu the affairs of

22 Federal Government in Canada. [478

Canada and the passage of another Act providing for a very
important constitutional change.

The proclamation of the Act of 1841 ^ was the inauguration
of the Fourth Period of our political development which
lasted until 1867. The discontent that existed in Canada for
so many years had the effect, not of diminishing but of en-
larging the political privileges of the Canadian people. The
Imperial government proved by this measure that they were
desirous of meeting the wishes of the people for a larger grant
of self-government. The French Canadians, however looked
upon the Act with much disfavor and suspicion. The report
of Lord Durham and the union itself indicated that there was
a feeling in England that the separation of the two races in
1791 had been a political mistake, since it prevented anything
like a national amalgamation ; and it was now proposed to
make an effort in the opposite direction and diminish the
importance of the French Canadian section with its distinct
language and institutions. The fact that the French language
was no longer placed on the same footing as English, in offi-
cial documents and parliamentary proceedings, together with the
fact that Upper Canada had the same representation as Lower
Canada in the assembly, despite the larger population of the
latter section, was considered an insult and an injustice to the
French Canadians, against which they did not fail to remon-
strate for years.

But in my studies and personal experience of the times in
which I live, I have been often struck by the fact that the logic
of events is much more forcible than the logic of statesmen.
So far from the act of 1841, which united the Canadas,
acting unfavorably to the French Canadian people it gave
them eventually a predominance in the councils of the country
and prepared the way for the larger constitution of 1867 which
has handed over to them the control of their own province, and
afforded additional guarantees for the preservation of their lan-

* Imp. Act 3 and 4 Vic, Cap. 35.

479] Federal Government in Canada. 23

guage and institutions. French soon became again the official
language by an amendment of the union act, and the clause
providing for equality of representation proved a security
when the upi)er province increased more largely in j)opulation
than the French Canadian section. The act was framed on
the principle of giving full expansion to the capacity of the
Canadians for local government, and was accompanied by
instructions to the governor-general, Mr. Poulett Thomson,
afterwards Lord Sydenham, which laid the foundation of
responsible government. It took severalyears to give full effect
to this leading principle of parliamentary government, chiefly
on account of the obstinacy of Lord Metcalfe during his term
of office ; but the legislature and the executive asserted them-
selves determinately, and not long after the arrival in 1847 of
Lord Elgin, one of the ablest governors-general Canada has
ever had, the people enjoyed in its completeness that system of
the responsibility of the cabinet to parliament without which
our constitution would be unworkable. More than that, all
the privileges for which the people had been contending dur-
ing a quarter of a century and more, were conceded in accord-
ance with the liberal policy now laid down in England for the
administration of colonial affairs. The particular measure
which the French Canadians had pressed for so many years on
the British government, an elective legislative council, was
conceded. When a few years had passed the Canadian Leg-
islature was given full control of taxation, supply and
expenditure in accordance with English constitutional princi-
ples. The clergy reserves difficulty was settled and the lands
sold for public or municipal puri^scs, the interests of existing
rectors and incumbents being guarded. The great land ques-
tion of Canada, the seigniorial tenure of Lower Canada, was
disposed of by buying off the claims of the seigniors. With
the abolition of a system, which had its advantages in the early
French times, since it forced both seignior and habitant to
settle and clear their lands within a certain period, a relic of
feudal days, foreign to the free spirit of American civilization,

24 Federal Government in Canada, [480

disappeared from our civil system and the people of lower
Canada were freed from exactions which had become not so
much onerous as vexatious, and were placed on the free foot-
ing of settlers in all the English communities of America.
Municipal institutions of a liberal nature especially in the
province of Ontario, were established, and the people of the
provinces enabled to have that control of their local affairs in
the counties, townships, cities and parishes which is necessary
to carry out public works indispensable to the comfort, health
and convenience of the community, and to supplement the
efforts made by the legislature, from time to time, to provide
for the general education of the country ; efforts especially suc-
cessful in the province of Upper Canada where the universi-
ties, colleges and public schools are so many admirable
illustrations of energy and public spirit. The civil service,
which necessarily plays so important a part in the administra-
tion of government, was placed on a permanent basis and has
ever since afforded a creditable contrast with the loose system
so long prevalent in the United States, where the doctrine,
" To the victors belong the spoils,"^ — which was established in
the time of President Jackson, though the phrase originated
with a New York politician, W. L. Marcy — was found neces-
sary and very convenient to satisfy the great body of office-
seekers who naturally grew up in a country where elections
are so frequent and professional politicians so numerous. In
addition to those progressive measures, we may mention the
acts securing the independence of parliament, the codification
of the French civil law, the consolidation of the public statutes,
the improvement of the election laws so as to ensure greater
purity at elections, as among the legislation of a period replete
with usefulness and admirably illustrating the practical char-
acter of Canadian public men.

The union of 1841 did its work and the political conditions
of Canada again demanded another radical change comraen-

* Sumner's Life of Andrew Jackson, in American Statesmen series, p. 162.

481] Federal Government in Canada. 25

Borate witli the material and political development of the
country, and capable of removing the difficulties that had
arisen in the operation of the Act of 1841. The claims of
Upper Canada to larger representation, equal to its increasetl
population since 1840, owing to the great immigration which
naturally sought a rich and fertile province, were steadily
resisted by the French Canadians as an unwarrantable inter-
ference with the security guaranteed to them under the Act.
This resistance gave rise to great irritation in Upper Canada
where a powerful party made representation by population
their platform, and government at last Ix^came practically
impossible on account of the close political divisions for years
in the assembly. The time had come for the accomplishment
of a great change foreshadowed by Lord Durham, Chief
Justice Sewell, Mr. Howe, Sir Alexander Gralt, and other
public men of Canada : the union of the provinces of British
North America. The leaders of the different governments in
Canada and the maritime provinces of Nova Scotia, New
Brunswick, and Prince Edward Island, to whose political
history I shall refer in a later lecture, after negotiations into
which I need not enter here, combined with the leaders of the
opposition with the object of carrying out this great measure.
A convention of thirty-three representative men was held in
the autumn of 1864 in the historic city of Quebec, and after
a deliberation of several weeks the result was the unanimous
adoption of a set of seventy-two resolutions embodying the
tenuB and conditions on which the provinces through their
delegates agreed to a federal union in many respects similar
in its general features to that of the United States federation,
and in accordance with the principles of the English constitu-
tion. These resolutions had to be laid before the various
legislatares and adopted in the shape of addresses to the queen
whose sanction was necessary to embody the wishes '»r tho
provinces in an imperial statnte.

It is an important fact that the consent of the legislature
was deemed sufficient by the governments of all the provinces
3

26 Federal Government in Canada. [482

except one, though the question had never been an issue at the
polls before the election of the legislative bodies which assumed
the complete responsibility of this radical change in the con-
stitutional position and relations of the countries affected. In
New Brunswick the legislature was dissolved twice on the
issue, and the opposition in the Nova Scotia assembly retarded
the accomplishment of the measure, but finally both these
provinces came into accord with the Canadian parliament,
where only a relatively small minority urged objections to the
proposed union. In the early part of 1867 the imperial par-
liament, without a division, passed the statute known as the
"British North America Act, 1867,'' which united in the
first instance the province of Canada, now divided into
Ontario and Quebec, with Nova Scotia and New Brunswick
and made provisions for the coming in of the other provinces
of Prince Edward Island, Newfoundland, British Columbia,
and the admission of Rupert's Land and the great North-
west.

Between 1867 and 1873 the provinces just named, with the
exception of Newfoundland, which has persistently remained
out of the federation, became parts of the Dominion and the
vast North-west Territory was at last acquired on terms emi-
nently satisfactory to Canada and a new province of great
promise formed out of that immense region, with a complete
system of parliamentary government.

I have endeavored in the preceding pages to review within
as brief a space as possible the salient features in the political
development of Canada, and it is my intention in the lec-
tures that follow to direct attention to the framework and
operation of the constitutional system. I shall not treat the
questions that arise from a mere technical or legal view, but
from the standpoint of one who has many opportunities of
observing its practical working. I shall refer to the various
important changes that have occurred in the legislation of
the country affecting the various branches of government,
and try to point out what appear, according to the expe-

483] Federal Government in Canada, 27

rience the country has gained within a quarter of a century,
to be defects in the system requiring amendment sooner or
later in order to give it more elasticity, efficiency and per-
manency.

So far as I have gone my readers will see even from this
very imperfect summary of the political history of Canada for
two hundred and sixty years since the foundation of Quebec,
and one hundred and four years since the treaty of Paris, that
there has been a steady development ever since England, the
birth-place of free institutions, took the place of France, so
long the home of an absolute, irresponsible autocracy. It took
a century to bring about the changes that placed Canada in
the serai-independent position she now occupies, but as we
review the past we can see there was ever an undercurrent
steadily moving in the direction of political freedom. Poli-
ticians might wrangle and commit the most grievous mistakes ;
governments in England and Canada might misunderstand
public sentiment in the colony, and endeavor to stem the
stream of political progress, but the movement was ever
onward and the destiny that watches over peoples as well as
over individuals was shaping our political ends, and, happily,
for our good.

The results of these many years of political agitation
through which Canada has passed have been eminently favor-
able to her interests as a political community. No country in
the world enjoys a larger measure of political liberty or greater
opportunities for happiness and prosperity under the liberal
system of government which has been won by the sagacity and
patience of her people.

Somewhere I have seen it said that the tree of liberty, like
the oak or the maple, cannot spring suddenly into existence
and attain full maturity in a day, but grows slowly and must
bend at times beneath the storms of faction. But once it has
taken deep root in a congenial soil, passion beats in vain
against its trunk and the j)eoplefind safety and shelter beneath
its branches. The tree of liberty was long ago brought into

28 Federal Government in Canada. [484

this country from the parent state, and has now developed into
goodly proportions amid the genial influences that have so long
surrounded it.

Of Canada we may now truly say that it is above all others
" a laud of settled government " resting on the vital principles
of political freedom and religious toleration, and all those
maxims which, experience has shown the world, are best calcu-
lated to make communities happy and prosperous.

LECTURE II.

GENERAL FEATURES OF THE FEDERAL
SYSTEM.

The Dominion* of Canada now consists of seven provinces
regularly organized and of an immense area of undeveloped
and sparsely settled territory extending from Ontario to the
base of the Rocky Mountains, and temporarily divided into
four large districts, for the purposes of government. The area
of the whole Dominion is only thirty thousand English square
miles less than that of the United States,* including the vast

* " The history of the circumstances under which the name of the ' Domin-
ion ' came to be given to the united provinces shows the desire of the Cana-
dians to give to the confederation, at the very outset, a monarchical like-
ness in contnulistinction to tlie republican character of the American federal
union. We have it on the best authority that in 1866-()7 the question arose
during a conference between the Canadian delegates and the Im|>erial au-
thorities what name should be given to the confederation of the provinces,
and it was first proi>06ed that it should bo allied 'The Kingdom of Canada;'
but it is said that the Earl of Carnarvon, then secretary of state for the colo-
nies, thouglit 8uch a designation inadvisable, chiefly on the ground that it
would be probably objectionable to the government of the Unilal States,
which had so recently expressed its disapprobation of the attempt of
the Emperor Napoleon to establish an imperial £uro|)ean dynasty in
Mexico The Canadian delegates made due allowance for the deli-
cacy of the sentiments of the minister and agreed, as a comproouse, to the
leas ambitious title, Dominion of Canada, — a designation recalling that
'Old Dominion,' named by Raleigh in honor of the virgin Queen." See
article by author in the SootUak Bmm for April, 1886.

'The United States hae an area of 8,601,404 square miles, indosive dt
Alaska (577,390); Canada, 8,470,892, or about the wime area as Bnudl;
Euro{)c 3,800,000 square milee.

29

30 Federal Government in Canada. [486

territory of Alaska. Its total population is about five millions
of souls, of whom probably two millions and a quarter live in
Ontario, nearly a million and a half in Quebec, and the re-
mainder in the smaller provinces and in the territories. Out
of the North-west has already been carved the province of
Manitoba which has made remarkable progress, while a stream
of population is now steadily flowing over the rich prairies
and grazing lauds of the territories. The Maritime Provinces
are inhabited by an English people, with the exception of cer-
tain districts, especially in New Brunswick, where there is a
small Acadian population still speaking the French language.
Quebec has a French population of at least a million and a
quarter of souls, professing the Roman Catholic religion and
clinging with remarkable tenacity to their language and insti-
tutions, and commencing to swarm over certain portions
of the Western Province. The population of Ontario is
mainly English and Protestant ; and the same may be said of
the other provinces. In the territories and British Columbia
there is a large Indian population, whose interests are care-
fully guarded by the government of Canada. The industrial
pui-suits of Nova Scotia and New Brunswick, both washed by
the Atlantic ocean, are principally maritime, mining and com-
mercial. Prince Edward Island is chiefly agricultural. The
St. Lawrence is the natural artery of communication, by the
aid of a magnificent system of canals, between the ocean and
the provinces of Quebec and Ontario, and as far as the city of
Port Arthur at the head of Lake Superior. Railways reach
from Halifax to the growing city of Vancouver on the Pacific
coast, and afford great facilities of commercial intercourse
between the new territories and the markets of the old prov-
inces and the rest of the world. The wealth of Ontario arises
from her agricultural products, aided by a large system of
manufactories. Quebec has varied interests, farming, manu-
facturing and commercial. The territories promise to be the
principal granary of the continent, while British Columbia
has large undeveloped wealth in her mountains and in the

487] Federal Government in Canada. 31

that wash her coast. To unite and give a community of
interest to all these territorial divisions of the Dominion — the
Maritime Provinces, Quebec, Ontario, the North-west and
British Columbia — and harmonize the ethnological and other
<lifferences that now" exist within the limits of the confederation,
is the very serious responsibility thrown upon the central and
the local governments which derive their j>owers from the Brit-
ish North America Act of 1867. How far the system which
this act provides is likely to promote these objects, I shall
attempt to show in the course of this and succeeding lectures.

When the terms of the Union came to be arranged between
the provinces in 1864, their conflicting interests had to
be carefully considered and a system adopted which would
always enable the Dominion to expand its limits and bring in
new sections until it should embrace the northern half of the
oontinent, which, as we have just shown, now constitutes the
Dominion. It was soon found, after due deliberation, that
the most feasible plan was a confederation resting on those
principles which experience of the working of the federation of
the United States showed was likely to give guarantees of
elasticity and permanency. The maritime provinces had been
in the enjoyment of an excellent system of laws and represen-
tative institutions for many years, and were not willing to
yield their local autonomy in its entirety. The people of the
province of Quebec, after experience of a union that lasted
from 1841 to 1867, saw decidedly great advantages to them-
selves and their institutions in having a provincial government
under their own control. The people of Ontario recognized
equal advantages in having a measure of local government,
apart from French Canadian influences and interference. The
consequence was the adoption of the federal system, which
now, after twenty-six years' exi)erience, we can truly say
appears on the whole well devised and equal to the local and
national requirements of the |)eople.

We owe our constitution to the action of the i*arliament of
Great Britain, before whom, as ihe supreme authority of the

32 Federal Govet-mneiit in Canada. [488

Eaipire, the provinces of Canada had to come and express
their desire to be federally united. In the addresses to the
Queen embodying tlie resolutions of the Quebec conference of
1864 tlie legislatures of the provinces respectively set forth
that in a federation of the British North American provinces^
" the system of government best adapted under existing cir-
cumstances to protect the diversified interests of the several
provinces, and secure harmony and permanency in the working
of the Union would be a general government charged with
matters of common interest to the whole country, and local
governments for each of the Canadas, and for the provinces of
Nova Scotia, New Brunswick and Prince Edward Island,
charged with the control of local matters in their respective
sections."

In the third paragraph the resolutions declare that "in
framing a constitution for the general government, the confer-
ence, with a view to the perpetuation of our connection with
the mother country, and the promotion of the best interests of
the people of these provinces, desire to follow the model of the
British constitution so far as our circumstances permit." In
the fourth paragraph it is set forth : " The executive authority
or government shall be vested in the sovereign of the United
Kingdom of Great Britain and Ireland, and be administered
according to the well-understood principles of the British con-
stitution, by a sovereign personally, or by the representative
of the sovereign duly authorized." ^

In these three paragraphs we see tersely expressed the lead-
ing principles on which our system of government rests : a
federation with a central government exercising general powers
over all the members of the union, and a number of local gov-
ernments having the control and management of certain mat-

' The preamble of the B. N. A. Act of 1867 sets forth that " the provinces
of Canada, Nova Scotia and New Brunswick have expressed their desire to
be federally united into one dominion under the Crown of the United
Kingdom of Great Britain and Ireland, with a constitution similar in prin-
ci})le to that of the United Kingdom."

439] Federal Govemvieni in Qmada, 3S

ters Daturally and conveniently falling within their defined
jurisdiction, while each government is administered in accord-
ance with the British system of parliamentary institutions.
These ai*e the fundamental principles which were enacted into
law by the British North America Act of 1867.

Before I proceed to refer to the general features of the fed-
eral system I may here appropriately observe that the practical
operation of the government of Canada affords a forcible illus-
tration of a government carried on not only in accordance with
the legal provisions of a fundamental law, but also in con-
formity with what has been well described by eminent writers
BS conventions or understandings which do not come within
the technical meaning of laws since they cannot be enforced by
the courts. It was Professor Freeman * who first pointed out
this interesting and important distinction, but Professor Dicey
lias elaborated it in a recent work, in which he very clearly
shows that " constitutional law " as we understand it in Eng-
land and in this country, consists of two elements : " The one
element, which I have called the * law of the constitution ' is a
body of undoubted law ; the other element which I have called
the * conventions of the constitution,' consists of maxims or
practices which, though they regulate the ordinary conduct of
the Crown and of Ministers and of others under the constitu-
tion, are not in strictness law at all."^ In Canada this
distinction is particularly noteworthy. We have first of all
tlie British Nortli America Act* which lays down the legal
rules for the division of powers between tlie respective federal
and provincial authorities, and for the government of the fed-
eration generally. But it is a feature of this government that,
apart from the written law, tliere are practices which can only
be found in the usages and conventions that have originated
in the general operation of the British constitution — that maas

' Freeman's Growth of the English ConHtitution, pp. 114, 116.
■Dicej'H I^w of the Coiwtitution, p. 25.
•Imp. Act, 30-31 Vict. v. 3.

34 Federal Government in Canada. [490

of charters, statutes, practices, and conventions, which must be
sought for in a great number of authorities. For example, if
we wish in Canada to see whether a special power is given to
the dominion or to the provincial governments we must look
to the written constitution — to the ninety-first and ninety-sec-
ond sections, to which I shall refer later on — but if we would
understand the nature of the constitutional relations between
the governor-general and his advisers we must study the con-
ventions and usages of parliamentary or responsible govern-
ment as it is understood in England and Canada. The courts
accordingly will decide w^hether the parliament or the legisla-
tures have a power conferred upon them by the constitutional
law whenever a case is brought before them by due legal pro-
cess ; but should they be asked to adjudicate on the legality of
a refusal by a government to retire from office on an adverse
vote of the people's house, they could at once say that it was a
matter which was not within their legal functions, but a
political question to be settled in conformity with political con-
ventions with which they had nothing whatever to do. Or if
Parliament should continue to sit beyond the five years' term,
to which it is restricted by law, and then pass certain acts, the
constitutionality of such legislation could be questioned, and
the courts could declare it null and void. Or again, the con-
stitutional act requires that every vote of money must be first
recommended formally by the governor-general, and if it
should appear that parliament had passed an act without that
legal formality, the courts could be called upon to consider the
legal eifect of this important omission. On the other hand, it
is a well-understood maxim that no private member can ini-
tiate a measure imposing a tax on the people, but it should
come from a minister of the Crown — a rule rigidly observed
in parliament — but this is not a matter of legal enactment
which the courts can take cognizance of though it is a conven-
tion of the unwritten constitution which is based on well-
understood principles of ministerial responsibility. I might
pursue this subject at greater length, but I think I have said

491] Federal Government in Canada, 35

enough to show you how interesting is the study of our con-
stitution and what a wide field of reflection it opens up to the
student. We have not only a written constitution to be inter-
preted whenever necessary by the courts, but a vast store-house
of English precedents and authoritative maxims to guide us —
in other words, an unwritten law which has as much force
practically in the operation of our political system as any legal
enactment to be found on the statute book.

The British North America Act gave l^al effect to the
wishes of the people of Canada, as expressed in the addresses
of their l^islatures, and is consequently the fundamental law,
or constitution of the Dominion, only to be amended in its
material and vital provisions by the same authority that
enacted it.* Power is only given in the act itself to the
Canadian legislature for the amendment or alteration of cer-
tain provisions which are of a merely temporary character, or
affect the machinery with which the parliament or legislatures
have to operate — such as the readjustment of representation,
the elections and trial of controverted elections, the constitution
of executive authority in Nova Scotia and New Brunswick,
and other matters which do not really affect the fundamental
principles of the constitution. All those provisions which con-
stitute the executive authority of the Dominion, regulate the
terms of union, and define the limits of the jurisdiction of the
several governments, are unalterable except by the supreme
legislature of the empire.

We have now to consider, in the first place, the position
that the Dominion of Canada occupies in the Empire, and
then the relations its government occupies towanls the govern-
ments of the provinces, with such remarks on the powers and

* The act of 1867 has been amended bj two acta, Imp. Stat 88-^ Vict,
c. 88, to remove certain doubts with respect to the power of tlie Canadian
parliament under section 18; and 34 and 85 Vict., c. 28, to remove doubts
as to the powers of the Oinadian parliament, to esublish provinces in the
territories.

36 Fidetal Government in Oanada, [492

functions and practical operation of the Constitution as are
necessary to make the system intelligible.

The Queen is the head of the executive authority and gov-
ernment of Canada.* She is as much the sovereign of Canada
as of England or Scotland, and her supremacy can be alone
acknowledged in all executive or legislative acts of this
dependency. As she is unable to be present in person in
Canada, she is represented by a governor-general appointed by
Her Majesty in council. In the following chapter I shall
refer to his duties in Canada, and it is therefore pertinent here
to make only a few necessary references to his imperial position.

This high functionary, generally chosen from public men of
high standing in England, has dual responsibilities, for he is
at once the governor-in-chief of a great dependency, who acts
under the advice of a ministry responsible to parliament, and
at the same time the guardian of imperial interests. He is
bound by the terms of his commission, and can only exercise
such authority as is expressly or impliedly entrusted to him.^
He must report regularly on all those imperial and other mat-
ters on which the secretary of state for the colonies should be
informed. For instance, in the negotiations for the recent
fishery treaty he was the avenue for all communications be-
tween the Canadian and imperial governments. Canada being
a colony, and not a sovereign state, cannot directly negotiate
treaties with a foreign power, but must act through the inter-
mediary of the imperial authorities, with whom the governor-
general, as an imperial officer, must communicate on the part
of our government not only its minutes of council, but his
own opinions as well, on the question under consideration. In
case of bills reserved^ for the consideration of the imperial

* B. N. A. Act, sec. 9. " The executive government and authority of and
over Canada is hereb; declared to continue and be vested in the Queen."

* Musgrove v. Pulido, 5 App. Cas., 102.

*A bill affecting the fishery dispute between Canada and the United
States was formally reserved in 1886.

493] Federal Government in Canada. 37

government he forwards them to the secretary of state with
his reasons for reserving them. The British North America
act provides indeed that copies of all acts of the Canadian
parliament should be transmitted to the secretary of state
for the colonies, that they may be duly considered and disal-
lowed within two years* in case they are found to conflict with
imperial interests and are beyond the legitimate powers of
Canada as a dependency, still in certain essential respects
under the control of the imperial state. The commission and
instructions, which the governor-general receives from the
Queen's government, formerly contained a list of bills which
should be formally reserved, divorce bills among other meas-
ures ; but since the passage of the British North America Act,
and the very liberal measure of self-government now conceded
to Canada, these instructions have been materially modified,

^ B. N. A. Act, 1867, sec. 55. Where a bill passed by the houses of the par-
liament is presented to the governor-general for the Queen's assent, he shall
declare, according to his discretion, but subject to the provisions of this act
and to her majesty's instructions, cither that he assents thereto in the
Queen's name, or that he withholds the Queen's assent, or that he reserves
the bill for the signification of the Queen's pleasure.

56. Where the governor-general assents to a bill in the Queen's name, he
shall by the first convenient opportunity send an authentic co[)y of the act
to one of her majesty's principal secretaries of state, and if the Queen in
council, within two years after receipt thereof by the secretary of state,
thinks fit to disallow the act, such disallowance (with a certificate of the
necretary of state of the day on which the act was received by him) being
signified by the governor-general, by speech or message to each of the
houses of the parliament or by proclamation, shall annul the act from and
after the day of such signification.

57. A bill rcserveil for the signification of the Queen's pleasure shall pot
have any force unless and until within two years from the day on which it
was presented to the govemor-genenil for the Queen's assent, the govemor-

, general signifisi^ by speech or messsge to each of the houses of the parlia-
aeoi or bjr pwwtlaiMtJon, that it has received the asseot of the Queen in
council.

An entry of every such speech, meMige, or proclamation shall be made
ia the journal of each hooss^ and a duplicate thereof duly attested shall be
delivered to the proper officer to be kept among the reoonls of Oaosda.

38 Federal Government in Canada. [494

and it is only in very exceptional instances that bills are ex-
pressly reserved. The general power possessed by the impe-
rial government of disallowing any measure, within two years
from its receipt, is considered as a sufficient check, as a rule,
upon colonial legislation. The cases where a bill is disallowed
are now exceedingly limited. Only when the obligations of
the Empire to a foreign power are aifected, or an imperial
statute is infringed in matters on which the Canadian parlia-
ment has not full jurisdiction, is the supreme authority of
England likely to be exercised.

The imperial parliament has practically given the largest
possible rights to the Dominion government to legislate on
all matters of a Dominion character and importance w^hich can
be exercised by a colonial dependency ; and the position Canada
consequently occupies is that of a semi-independent power.
Within the limits of its constitutional jurisdiction, and subject
to the exercise of disallowance under certain conditions, the
Dominion parliament is in no sense a mere delegate or agent
of the imperial parliament, but enjoys an authority as plenary
and ample as that great sovereign body in the plentitude of its
power possesses.^ This assertion of the legislative authority
of the Dominion legislature is quite reconcilable with the
supremacy of the imperial parliament in all matters in which it
should intervene in the interest of the empire. For that par-
liament did not part with any of its rights as the supreme
authority of the empire, when it gave the Dominion govern-
ment " exclusive authority " to legislate on certain classes of
subjects enumerated in the act of union, and to which we shall
later on refer at length. This point has been clearly explained
by Mr. Justice Gray of the supreme court of British Columbia,
whose opinion as an eminent judicial authority is strengthened
by the fact that he was one of the members of the Quebec con-
vention of 1864. In deciding against the constitutionality of

* See Regina vs. Burah, 3 App. Cas., 889 ; Hodge vs. the Queen, 9 lb., 117.

496] Federal Government in Canada, 39

the Chinese tax bill, passed by the legislature of his province,
he laid down that 'the British North America Act (1867)
was framed, not as altering or defining the changed or relative
positions of the provinces towards the imperial government,
but solely as between themselves." Proceeding he said that
the imperial parliament " as the paramount or sovereign au-
thority could not be restrained from fulure legislation. The
British North America Act was intended to make l^al an
agreement which the provinces decided to enter into as between
themselves, but which, not being sovereign states, they had no
power to make. It was not intended as a declaration that the
imperial government renounced any part of its authority."*

* Jadgment of Mr. Justice Gray on the Chinese tax bill, Sept. 23d, 1878.

An imperial statute passed in 1865 (28 and 29 Vict., c. 63) expressly
declares that any colonial law ** in any respect repugnant to the provisions
of any act of parliament extending to the colony to which such law may
relate," shall to the extent of such repugnancy be " absolutely void and in-
operative." And in construing an act of parliament, "it shall be said to
extend to any colony, when it is made applicable to such colony by the
express words or necessary intendment" of the same. Since the passage of
this act Canada has received a larger measure of self-government in the
provisions of the B. N. A. act, which confers powers on the Dominion and
the provincial authorities. No one can doubt that it is competent, as Mr.
Justice Gray has intimatetl, for parliament to pass any law it pleases with
respect to any subject, within the powers conferred on the Dominion or
provinces : and any enactment repugnant to that imperial statute would be
declared null and void by the courts, should the question come before them.
But the point has been raised, whether it is in t!ie power of the Canadian
parliament or legislatures to pass an act repealing an imjierial statute
passed previous to the act of 1867, and dealing with a subject within the
powers granted to the Canadian authorities. It must be here mentioned
that the imperial government refused its assent to the Canadian copyright
act of 1872, because it was repugnant, in the opinion of the law officers of
the Crown, to the provisions of an imi)erial statute of 1842 extending to
the colony (Imp. Stat., 5 and 6 Vict., c. 46 ; Can. Seas. P., 1876, No. 28).
On the other hand, in the debate on the constitutionality of the Quebec
Jesuits' bill mentioned later on, it was contended by the minister of justice
that a provincial legislature " legislating U|x>n subjects which are given it
by the B. N. A. act, has the power to repeal an imiierial statute, prior to
the B. N. A. act, affecting those subjects." In mipiM>rt of this position he

40 Federal Govemmeni in Canada, £496

But, as I have already shown, this supreme authority of
the imperial government will be exercised only in cases where
interference is necessary in the interests of the Empire, and in
the discharge of its obligations towards foreign powers. In
the case of all matters of Dominion or Canadian concern,
within the rights and privileges extended to Canadians by the
British North America Act, and in accord with the general
l^olicy now pursued towards all colonies exercising a full sys-
tem of local self-government, the imperial authorities can con-
stitutionally claim no authority whatever. That is, they can
interfere, to quote a distinguished Canadian statesman, "only
in instances in which, owing to the existence of substantial
imperial, as distinguished from Canadian, interests it is con-

referred to three decisions of the judicial committee of the privy council.
One of these, in Harris vs. Davies (10 App. Cas., p. 279), held that the leg-
islature of New South Wales had power to repeal a statute of James I.
with respect to costs in case of a verdict for slander. The second case was
Powell vs. Apollo Candle Co. (10 App. Cas., p. 282), in which the princi-
ples laid down in Regina vs. Burah (3 App. Cas,, 889) and in Hodge vs. the
Queen (9 App. Cas., p. 117) were affirmed. The third and most important
case as respects Canada was the Queen and Kiel (10 App. Cas., p. 675),
in which it was decided that the Canadian parliament had power to pass
legislation changing, or repealing (if necessary) certain statutes passed for
the regulation of the trial of offences in Rupert's Land, before it became
a part of the Canadian domain (see Sir J. Thompson's speech, Can. Hansard,
March 27, 1889). But several high authorities do not appear to justify the
contention of the minister of justice. See Hearn's Government of England,
app. II.; "The Colonies and the Mother Country;" Todd's Government
in the Colonies, pp. 188-192, etc. ; Dicey's Law of the Constitution, pp. 95,
et seq. The question is too important to be treated hastily, especially as
it will come up soon in connection with the copyright act of 1889, in which
the same conflict as in 1875 arises. No doubt the fundamental principle
that rests at the basis of our constitutional system is to give Canada as full
jxjwer over all matters affecting her interests as is compatible with imperial
obligations. The parliament and legislatures must necessarily repeal, and
have time and again repealed, imperial enactments, especially those not
suitable to the circumstances of the country. See debate of April 20, 1889,
Canadian Commons, on the new copyright bill, which by sec. 7 can onlj
come into force by a proclamation of the governor in council.

497] Federal Government in Canada. 41

sidered that full freedom of action Ls not vested in the Cana-
dian people."*

The complete freedom of action now enjoyed by Canada in
matters affecting the commercial interests of the empire, can be
understood by reference to the fiscal system now in operation
in Canada. This system, generally known as the " National
Policy," since its adoption in 1879, imposes a protective tariff,
which is in direct antagonism with the free trade policy of the
parent state, and is chiefly intended to assist Canadian manu-
factories against British and foreign comj)etition. This policy,
at the outset, was naturally received with much disfavor in
England, but when an appeal was directly made in the impe-
rial house of commons to disallow it, the secretary of state for
the colonies, on the part of the government, presented, as a
reason for non-interference, that the measure in question was
not in excess of the rights of legislation guaranteed by the
British North America Act, under which (subject only to
treaty obligations), the fiscal policy of Canada rests with the
Dominion parliament. He further stated that, however much
the government might regret the adoption of a protective sys-
tem, they did not feel justified in opposing the wishes of the
Canadian people in this matter.^

The queen^s privy council of England has also the right
to allow appeals to the judicial committee — one of the survi-
vals of the authority of an ancient institution of England —
from the courts of Canada. This right is only exercised on
principles clearly laid down by this high tribunal, but it is

* Hon. Mr. Blake in a despatch to the secretary of state for the colonies.
Can. Bess. P., 1877, No. 13, p. 8.

*"The clause with respect to differential duties, (English Hans. Deb.,
Vol. 244, p. 1311), is now left out of the govemor-general'ft inttmc-
tions, and the imperial goyemment are con lent to rely upon the prerogative
right of disallowance, as a sufficient security against the enactment of any
measure by the parliament of Canada, that should be of such character as
to call for the inter)KMition of the royal Teto." Todd's Pari. Government
in the Colonies, p. 187.
4

42 Federal Goveinimeiit in Canada. [498

emphatically a right to be claimed by the Canadian people as
forming part of the empire under the sovereignty of England.
It is a right sparingly exercised, for the people of Canada have
great confidence in their own courts, where justice is adminis-
tered with legal acumen and strict impartiality ; but there are
decided advantages in having the privilege of resorting in some
cases, especially those affecting the constitution, to a tribunal
which is generally composed of men whose great learning
illustrates all those traditions which make the decisions of
England^s courts respected the world over.

In the foregoing paragraphs I have mentioned the relations
that should naturally exist between the supreme head of the
empire and its colonial dependencies. I may here add, what
will be obvious to every one, that the power over peace and
war, and the general control of such subjects as fall within the
province of international law, are vested in the home govern-
ment, and cannot be interfered with in the least degree by the
government of the Dominion.

With these exceptions which limit the jurisdiction of the
Dominion as a dependency, Canada possesses under the British
North America Act, and in accordance with the general
policy of England towards her self-governing colonies, a prac-
tically sovereign authority within the limits of her territory,
and has assumed all the proportions of an empire. Her
constitution enables her to establish new provinces with
complete systems of government, as large as any of the
commonwealths of the American Republic. The province of
Manitoba has already been formed out of the North-west
Territories acquired in 1870 from the company of Hudson
Bay adventurers who held a charter from the days when sov-
ereigns recklessly granted their followers vast areas of lands,
larger than the great kingdoms of Europe. The territories are
regulated by the Dominion and granted from time to time
such privileges as are commensurate with their increasing pop-
ulation and capacity to carry on a system of local self-govern-
ment. The Dominion appoints the governors of the provinces

499] Federal Government in Canada. 43

and c?an dismiss them under the provisions of the consti-
tution, occupying in this respect the position that England
formerly held with reference to the provinces before the union
of 1867.

Perhaps no one fact more clearly illustrates the important
position which Canada has attained within a few years, than
the recognition by the imperial government of her absolute
right to be consulted, and have a direct voice in the negotia-
tion of all treaties which immediately affect her interests. In
the arrangement of the Washington treaties of 1871 and 1888,
which dealt with the question of the fisheries — still unhappily
unsettled owing to the refusal of the Senate to ratify the last
treaty — Canada was represented by one of her ablest states-
men in each case.^ In negotiations between Canada, France
and Spain for a commercial treaty, the imperial government
specially commissioned the Canadian high representative in
London with full powers to act. The appointment of the
high commissioner of Canada was of itself a concession to the
growing importance of Canada as a dependency of the empire
and of the consequent necessity that has arisen of having in
London a representative who would occupy a higher position
than the previous agents of the colonies. In the case of all
treaties affecting Canada directly, their ratification depends on
the assent of her parliament.^ In fact, the history of all impe-
rial legislation with respect to extradition and other treaties,
ako proves the desire of the imperial authorities to give due
scope to Canadian legislation as far as it is compatible with

*Iii 1871 bj Sir John Maodonald, then as now, Premier. In 1888 by Sir
Charles Tupper, now High Commissioner of Canada in London.

'See Can. Stat, for 1888 (treaty of Washington), c. 3, sec 3, and art. ZYI
of schedule. The 132d section of the B. N. A. Act provides : " The parlia-
ment and government of Canada shall have all powers necessary or proper
for performing the obligations of Canada or of any province thereof, as part
of the British Empire, towards foreign countries, arising under treaties
between the empire and 8uch foreign countries." Also comments of Dr.
Todd in Pari. Govt in Colonies, p. 205.

44 Federal Government in Canada. [6CK)

the interests of the empire. In some treaties it is expressly-
stipulated that they shall be only applicable to the colonial
possessions " so far as the laws, for the time being, in force in
such colonies will allow." ^ The large measure of self-govern-
ment that Canada enjoys in other particulars will be seen in
the course of these lectures.

We come now to consider the nature of the federal system,
the respective powers of the dominion and provincial govern-
ments, and the relations that they bear to one another under
the constitution. We have already seen by the three reso-
lutions of the Quebec conference that I have cited, that the
object of the founders of the union was to give to the central
authority the control over matters of general or qimsi national
importance, and to the provincial governments jurisdiction over
matters of a local or provincial nature. In arranging the
details of the union the framers were naturally called upon to
study carefully the American constitution in its origin and
development. In 1864 the civil war was not yet brought to
a close, and statesmen, the world over, were naturally in doubt
as to its effects on the constitution and union at large. Cana-
dian statesmen saw that ever since the foundation of the weak
confederation of 1 775, and of the constitution that was subse-
quently adopted in 1787, to give efficiency, strength and
permanency to the union, — " to form a more perfect union,''
in the language of its preamble, — a great struggle had been
going on between the national and the state governments for
the supremacy. They saw that certain states had persistently
asserted the doctrine of State sovereignty, and the right of
nullifying or refusing to be bound by certain acts of the
national government. Nullification and secession, it was seen,
were justified by lawyers and statesmen, as the last resort of
sovereign states, when what was believed to be their inherent
rights were invaded by the national government. The states-
men that assembled at Quebec believed that it was a defect in

See treaty with Russia in Can. Statutes for 1887.

501] Federal Government in Canada. 46

the American cx)nstitution to have made the national govern-
ment alone one of enumerated powers, and to have left to the
States all the powers not expressly taken from them.*

For these reasons mainly the powers of both the Dominion
and the Provincial governments are stated, as far as practicable,
in express terms with the view of preventing a conflict between
them ; the powers that are not within the defined jurisdiction
of the provincial governments are reserved in general terms to
the central authority. In other words " the residuum of
power is given to the central instead of to the state authori-
ties.'' In the British North America Act we find set forth
in express words :

1. The powers vested in the Dominion government alone;

2. The powers vested in the provinces alone ;

3. The powers exercised by the Dominion government
and the provinces concurrently ;

4. Powers given to the Dominion government, in general
terms.

The powers vested in the parliament of Canada are set forth
in the ninety-first section of the constitution, which enacts that
the Queen with the advice and consent of the Senate and
House of Commons may " make laws for the peace, order and
good government of Canada, in relation to all matters not
coming within the classes of subjects by this act assigned
exclusively to the legislatures of the provinces ; and for greater
certainty, but not so as to restrict the generality of the fore-
going terms of this section, it is hereby declared that (notwith-
standing anything in this act) the exclusive legislative
authority of the parliament of Canada extends to all matters
coming within the classes of subjects next hereinafter enumer-
ated, that is to say :

1. The public debt and proj)erty.

2. The regulation of trade and commerce.

'See remarkit of Sir John Maodonald, then attorney-genend, now pre-
mier of Canada : Confederation debatei» p. 88.

46 Federal Government in Canada. [502

3. The raising of money by any mode or system of taxation.

4. The borrowing of money on the public credit.
^ 5. Postal service.

6. The census and statistics.

7. Militia, military and naval service and defence.

8. The fixing of and providing for the salaries and allow-
ances of civil and other officers of the government of Canada.

9. Beacons, buoys, lighthouses and Sable Island.

10. Navigation and shipping.

11. Quarantine and the establishment and maintenance of
marine hospitals.

12. Sea-coast and inland fisheries..

13. Ferries between a province and a British or foreign
country, or between two provinces.

14. Currency and coinage.

15. Banking, incorporation of banks and the issue of paper
money.

16. Savings banks.

17. Weights and measures.

18. Bills of exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens.

26. Marriage and divorce.

27. The criminal law, except the constitution of the courts
of criminal jurisdiction, but including the procedure in crimi-
nal matters.

28. The establishment, maintenance, and management of
penitentiaries.

29. Such classes of subjects as are expressly excepted in the
enumeration of the classes of subjects by this act assigned
exclusively to the legislatures of the provinces."

503] Federal Government in Canada, 47

And the section concludes, with the view obviously of giv-
ing more definiteness to its provisions and to lessen the
chances of conflicts of jurisdiction with the provincial authori-
ties, that "any matter coming within any of the classes of
subjects enumerated in this section shall not be deemed to come
within the class of matters of a local or private nature com-
prised in the enumeration of the classes of subjects by this act
assigned exclusively to the legislatures of the provinces."

Having, as they believed, definitely stated the general jwwers
that appertain naturally to a central government, exercising
jurisdiction over the whole Dominion, the framers of the Act
defined in the ninety-second section the powers that the local
governments can exercise within their constitutional limits.

The legislature may, in each province, "exclusively make
laws" in relation to the classes of subjects enumerated as
follows :

1. The amendment, from time to time, notwithstanding
anything in this act, of the constitution of the province, except
as regards the office of lieutenant-governor.

2. Direct taxation within the province in order to the rais-
ing of a revenue for provincial purposes.

3. The borrowing of money on the sole credit of the
province.

4. The establishment and tenure of provincial offices, and
the appointment and payment of provincial officers.

5. The management and sale of the public lands belonging
to the province, and of the timber and wood thereon.

6. The establishment, maintenance and management of
public and reformatory prisons in and for the |)rovince.

7. The establishment, maintenance and management of hos-
pitals, asylums, charities and eleemosynary institutions in and
for the province, other than marine hosj^itals.

8. Municipal institutions in the province.

9. Shop, saloon, taveni, and auctioneer and other licenses,
in order to the raising of a revenue for provincial, local or
municipal purposes.

48 Federal Government in Canada, [504

10. Local works and undertakings other than such as are of
the following classes :

a. Lines of steam or other ships, railways, canals, tele-
graphs and other works and undertakings connecting the
province with any other or others of the provinces, or extending
beyond the limits of the province ;

b. Lines of steamships between the province and any British
or foreign country ;

c. Such works as, although wholly situate within the prov-
ince, are before or after their execution declared by the
parliament of Canada to be for the general advantage of
Canada, or for the advantage of two or more of the
provinces/

1 1 . The incorporation of companies with provincial objects.

12. Solemnization of marriage in the province.

13. Property and civil rights in the province.

14. The administration of justice in the province, including
the constitution, maintenance and organization of provincial
courts, both of civil and of criminal jurisdiction, and including
procedure in civil matters in those courts.

15. The imposition of punishment by fine, penalty or
imprisonment for enforcing any law of the province made in
relation to any matter coming within any of the classes of
subjects enumerated in this section.

1 6. Generally all matters of a merely local or private nature
in the province.

A careful consideration ot the foregoing section will show
how large and important a measure of local self-government
is given to all the provincial members of the confederation.
It was the object of the framers of the constitution to leave to

* In 1883 the parliament of Canada passed an act declaring certain rail-
ways to be "works for the general advantage of Canada" within the
meaning of the section. (See Bourinot's Parliamentary Practice in Can-
ada, pp. 587-589). This subject was ably argued before the Supreme
Court of Canada in 1888. See Hon. Mr. Blake's argument in the Manitoba
case.

506] Federal Government in Canada. 49

the old provinces as many of those powers and privileges that
they exercised before the confederation, as are necessary to the
efficient working of a local government and at the same time
to give the central power effective control over all matters
which give unity and permanency to the whole federal organi-
zation, of which the provincial entities form political parts
or divisions. It will be seen, however, that the all important
question of education does not fall within the enumeration of
matters belonging to provincial legislation, which I have just
given, although it is above all others a subject of local or
provincial interest. The reason for this must be sought in the
political history of the question.

While the different provinces before confederation were
perfecting their respective systems of education, the question
of separate schools attained a great prominence. The Protes-
tant minority in Lower Canada, and the Roman Catholic
minority in Upper Canada, earnestly contended for such a
separation as would give the Protestants, in the former, and
the Roman Catholics, in the latter province, control of their
own schools, and not oblige the children of the two distinct
religious beliefs to mix together. The religious instruction
which the Roman Catholics consider inseparable from any
public school system could not be accepted by the Protestants.
Non-sectarian schools are at direct variance with the principles
of the Roman Catholic Church. Finally, in all the provinces,
except New Brunswick and Prince Edward Island, separate
schools obtained at the time of the union, and it accordingly
became necessary to give the minorities guarantees for their
continuance, as far as such could be given in the constitution.
The British North America Act now provides that while the
legislature of a province may exclusively make laws on the
8ubjcx;t of education, nothing therein shall prejudicially affect
any of the denominational schools in existence lx.'fore July,
1867. An appeal lies to the governor-general in council from
any act of the provincial authority affecting any legal right
or privily that the Protestant or Roman Catholic minority

50 Federal Government in Canada. [506

enjoyed at the time of the union. In case the provincial
authorities refuse to act for the due protection of the rights
of minorities, in accordance with the provisions of the consti-
tution, then the parliament of Canada may provide a remedy
for the due execution of the law provided in this behalf.*
Parliament, so far, has not been called upon to act on the pro-
visions of this section. The questions that arose in 1872 and
in subsequent years, with respect to the New Brunswick school
act of 1871, providing for a compulsory rating and assessment
for non-sectarian schools, did not come under the law, for the
Roman Catholics of New Brunswick did not enjoy separate
privileges from other classes of their fellow-citizens previous
to confederation ; and all the authorities of the Dominion, as
well as of England, the minister of justice of Canada, the

* B. N. A. Act, 1867, sec. 93. In and for each province the legislature
may exclusively make laws in relation to education, subject and according
to the following provisions : —

(1.) Kothing in any such law shall prejudicially affect any right or pri-
vilege with respect to denominational schools which any class of
persons have by law in the province at the union ;

(2.) All the powei-s, privileges and duties at the union by law conferred
and imposed in Upper Canada on the separate schools and school
trustees of the Queen's Roman Catholic subjects, shall be and the
same are hereby extended to the dissentient schools of the Queen's
Protestant and Roman Catholic subjects in Quebec;

(3.) Where in any province a system of separate or dissentient schools
exists by law at the union, or is thereafter established by the legis-
lature of the province, an appeal shall lie to the governor-general
in council from any act or decision of any provincial authority
affecting any riglit or privilege of the Protestant or Roman Catho-
lic minority of the Queen's subjects in relation to education ;

(4.) In case any such provincial law as from time to time seems to the
governor-general in council requisite for the due execution of the
provisions of this section is not made, or in case any decision of the
governor-general in council on any appeal under this section is not
duly executed by the proper provincial authority in that behalf,
then and in every such case, and as far only as the circumstances of
each case require, the parliament of Canada may make remedial
laws for the due execution of the provisions of this section, and of
any decision of the governor-general in council under this section.

507] Federal Government in Canada. 51

courts, and the colonial secretary of state, and the judicial
committee of the privy council, concurred in the opinion that
the legislature had a right to enforce the assessments objected
to by the Roman Catholics of the province, and had acted
legally within the powers conferred upon them by the act of
confederation.*

The Dominion and Local governments also exercise cer-
tain rights in common. Among the subjects on which they
have concurrent powers of legislation are agriculture and
immigration.^ The dominion parliament may make laws on
these subjects for any and all of the provinces, and each legis-
lature may do the same for the province over which it has
jurisdiction, provided no provincial act is repugnant to any
dominion act. These provisions have so far worked in tlie
interests of the provinces separately and of the dominion as a
whole. Both these authorities are equally interested in the
promotion of matters fo deeply affecting the development of
the natural resources of all sections. The provinces, excepting
Manitoba, have the control of their lands and mines, while
the dominion is interested in the opening up of the vast terri-
torial area which it has in the north-west; and it is conse-
quently clear that these concurrent powers are wisely arranged
in the constitutional act.

If we study the two sections, enumerating the respective
powers that fall within the jurisdiction of the dominion par-
liament and the provincial legislatures, we shall see that there
are certain subjects, which may, as the operation of the act

* For history of this case see Todd's Pari. Govt, in Colonicfs pp. 346-352.

*B. N. A. Act, 1867, sec 95. In each province the legislature may make
laws in relation to agriculture in the province, and to immigration into the
province; and it is hereby declared that the parliament of Canada may
from time to time make laws in relation to agriculture in all or any of the
provinces, and to immigration into all or any of the provinces ; and any law
of the legislaluro of a province, relative to agriculture or to immigration,
shall have effect in and for the province, as long and as far only as it is not
repugnant to any act of the parliament of Canada.

52 Federal Government in Canada. [508

proves, fall, under certain limitations, within the province of
both. For instance, there is insurance, on which both the
dominion government and provincial authorities have fully
legislated — the former under the general provision giving it
the jurisdiction over " the regulation of trade and commerce;''
the latter under the very wide right to incorporate companies
"with provincial objects/' The question of jurisdiction has
been decided by the courts of Canada, and affirmed by the
privy council, and principles laid down of much importance
since they serve to prevent conflict of authority on other sub-
jects and give each jurisdiction that power which it should
exercise in accord with tlie general spirit of the constitution.
It is now authoritatively decided that the terms of the eleventh
paragraph of the ninety-second section are sufficiently com-
prehensive to include insurance companies, whose object is to
transact business within provincial limits.

If a company desires to carry on operations outside of the
province it will come under the provisions of the general fed-
eral law, to which it must conform and which contains special
provisions for such purposes. But the authority of the
dominion parliament to legislate for the regulation of trade
and commerce does not comprehend the power to regulate by
legislation the contracts of a particular business or trade, such
as the business of fire insurance in a single province. There-
fore while the dominion parliament may give power to
contract for insurance against loss or damage by fire, the form
of the contract and the rights of the parties thereunder, must
depend upon the laws of the country or province in which the
business is done.^

Although the Dominion parliament has exclusive jurisdic-
tion over the criminal law, the local legislatures must necessa-
rily have it within their power, as provided for in the act, to

' See Cartwright's cases on B. N. A. Act, vol. I., pp. 265-350 ; 4 App. Rep.
Ontario, 96, 103 ; 43 U. C. Q. B. 261, 271 ; Sup. Court R, vol. IV., pp. 215-
349 ; 45 L. T. N. S., 721.

509] Federal Ooffemment in Canada. 63

impose punishment by fine, penalty or imprisonment, for
enforcing any law of the province within its legislative
authority. The legislature may add " hard labor '^ to confine-
ment or restraint in prison in legislating on a subject within its
jurisdiction. Such a power is not in conflict with the authority
of the dominion parliament over criminal matters.* This
seems a necessary incident to a legislative power. It is a prin-
ciple which parliament itself applies with respect to civil rights
over which the legislatures have exclusive jurisdiction. All
the legislative authorities must act, however, within their
constitutional spheres, and not push their pretentions to
extremes. As in the insurance case just mentioned, lowers
should be sought from each legislative body within its consti-
tutional limits, ^or should parliament interfere with such
details of an organization as are wholly within the jurisdiction
of a provincial sovereignty.^

It must necessarily happen in the operation of a written
constitution like ours that conflicts of jurisdiction will arise in
cases where the respective powers of the distinct legislative
authorities are not sufficiently defined. Sometimes it is diffi-
cult, while the constitution is working itself out, to decide
where the jurisdiction rightly lies. The difficulty that may
arise in such cases can be seen by reference to the decisions of
the Canadian courts and of the judicial committee of the privy
council on questions aflectiug the traffic in intoxicating liquors.
The privy council has decided that the Canada temperance act
of 1878 which, in effect, authorizes the inhabitants of each
town, parish or county to prohibit or to regulate the sale of
liquor, and to direct for whom, or for what puriK)ses, and under
what conditions, spirituous liquors may be sold therein, does
not deal with matters of a purely local nature, nor with prop-
erty nor civil rights, nor with the raising of a revenue for pro-

' See Hodge m. the Queen, 9 App. Cos., 1 17.

' Remarks of Sir John A. Maodonald, Mr. Blake and othent, Can. Han-
said, 1888, pp. 499, 500.

64 Federal Government in Canada, [510

vincial, local or municipal purposes, as assigned exclusively to
the jurisdiction of the provincial legislatures ; but is rather
one of those subjects relating to public order and safety which
fall within the general authority of parliament to make laws
for " the order and good government '' of Canada. On the
other hand, the same body has decided that it is competent for
a legislature of a province to pass an act regulating the issue
of licenses for the sale of liquor in the municipalities of a
province, and authorizing the appointment of commissioners
to define, by resolutions, the conditions and qualifications re-
quired to obtain licenses. This learned body has pointed out
that the powers of such a provincial act are confined in its
operations to municipalities in a province, and entirely local
in its character, and in fact identical for the most part with
the powers that belonged to municipal institutions under the
laws that had been passed by the legislatures previous to con-
federation. In short, such an act was considered, by their
Lordships, as in the nature of police and municipal regulations,
calculated to preserve in the municipality peace and public
decency, to repress drunkenness and disorderly and riotous
conduct.^ These decisions, to a certain extent, dealing as they
do with cognate subjects, will perplex the ordinary lay mind
not accustomed to legal subtilties; and there are those who
say ^ that in the first decision their Lordships had not the ben-
efit of a very complete argument in favor of the contention

^ See 7 App. Cas., 829 : Legal News, January 19th, 1884.

^ The late Mr. Justice Henry, one of the authors of the confederation, in
a judgment on a cognate question, reiterated the opinion he had expressed
on the Canada Temperance act, that the British North America act, "if
read in the light which a knowledge of the subject before the passage
of that act would produce, plainly gives the power of legislation to the
local legislatures in respect of licenses." His whole argument went to show
"the right to make laws for the peace, &c., of Canada is as fully restricted
to such subjects as do not come within the classes of subjects assigned to the
legislatures of the provinces as language can make it ; " and that the privy
council did not give due consideration to the power of the legislatures
over those special subjects. Sup. Court K., vol. XI., pp. 33-39.

511] Federal Government in Canada. 55

for local jurisdiction, and hardly well appreciated the full
weight that should be given to the paragraph giving the prov-
inces complete jurisdiction over all matters of a merely local
or private nature in a province. At all events, the second
decision has recommended itself as in harmony with the gen-
eral spirit of local powers granted to the provincial legisla-
tures. As it was, the immediate effect of these decisions, in a
measure involving contradictions, was to throw the liquor-
licensing legislation of the country into much confusion ; for
the Dominion government considered itself justified in passing
a general license act, which subsequently was declared vJtra
vires, except where the act dealt with wholesale and vessel
licenses, or carried into effect certain provisions of the Canada
Temperance act.*

The conclusion we come to after studying the operation of
the constitutional act, until the present time, is that while its
framers endeavored to set forth more definitely the respective
powers of the central and local authorities than is the case with
the constitution of the United States, it is not likely to be any
more successful in preventing controversies constantly arising
on points of legislative jurisdiction. The American constitu-
tion is remarkable for its precision, the generality of its
principles, the avoidance of too many details, and the elasticity
of which it is capable when applied to the needs and exigencies
of the nation and states. The effort was made in the case of
the Canadian constitution to go in the other direction, and
more fully define the limits of the authority of the dominion
and its political parts; but while great care was evidently taken
to prevent the dangerous assertion of provincial rights, it is
clear that it has the imperfections of all statutes, when it is
attempted to meet all emergencies. Happily, however, by
means of the courts in Canada, and th^ tribunal of last resort
in England, and the calm deliberation which the parliament is

See Bonrinot's Manual of Constitutional History, pp. 189-146.

56 Federal Government in Canada. [612

learning to give to all questions of dubious jurisdiction, the
principles on which the federal system should be worked are,
year by year, better understood and the dangers of continuous
conflict lessened. It is inevitable, if we are to judge from the
working of a federal system in the United States, that there
should be, at times, a tendency either to push to extremes the
doctrine of the subordination of the provinces to the central
power, or on the other hand to claim powers on behalf of the
provincial organizations, hardly compatible with their position
as members of a confederation based on the principle of giving
complete jurisdiction to the central government over all mat-
ters of national and general import. It is obvious that in
certain legislation the Dominion parliament must trench upon
some of the powers exclusively given to the local organiza-
tions, but it cannot be argued, with a due regard to the true
framework of the constitutional act and the principles that
should govern a federal system like ours, that the powers of
the provinces should be absorbed by the dominion or central
authority in cases of such apparent conflict. Referring to this
point the privy council calls attention to the fact that the gen-
eral subject of "marriage and divorce'' is given to the
jurisdiction of the dominion parliament, and the " solemni-
zation of marriage'' to the legislature of a province. It is
evident that the solemnization of marriage would come within
the general description of the subject first mentioned ; yet no
one can doubt, notwithstanding the general language of the
ninety-first section, that this subject is still within the exclu-
sive authority of the legislatures of the provinces. "So,"
continues the privy council, "the raising of money by any
mode or system of taxation is enumerated among the classes of
subject in section ninety-one, but though the description is
sufficiently large and general to include direct taxation within
the province in order to aid the raising of a revenue for pro-
vincial purposes assigned to the provincial legislatures by the
ninety-second section it obviously could not have been intended

513] Federal Government in Canada. 67

that in this instance also the general power should override
the particular one." *

It is now laid down by the highest judicial authorities that
the dominion pariiament has the right to interfere with
" property and civil rights " in so far as such interference may
be absolutely necessary for the purjwse of legislating generally
and effectually in relation to matters confided to the parliament
of Canada. Laws designed for the promotion of public order,
safety or morals, and which subject those who contravene them
to criminal procedure and punishment, belong to the subject of
public wrongs rather than to that of civil rights. They are
of a nature which fall within the general authority of parlia-
ment, to make laws for the good order and government of
Canada, and have direct relation to criminal law, which is one
of the enumerated classes of subjects assigned exclusively to
the parliament of Canada. Few if any laws could be made by
the parliament for the peace, order and good government of
Canada which might not, in some incidental way, aifect pro-
perty and civil rights ; and it could not have been intended
when assuring to the provinces exclusive legislative authority
on the subject of proixirty and civil rights, to exclude the par-
liament from the exercise of this general power whenever any
such incidental interference would result from it.* As on the
one hand the federal parliament cannot extend its own
jurisdiction by a territorial extension of its laws, and legislate
on subjects constitutionally provincial, by enacting them for
the whole dominion ; so, on the other hand, a provincial legisla-
ture cannot extend its jurisdiction over matters constitutionally
federal, by a territorial limitation of its laws and l^islate on
matters left to the federal power, by enacting them for the
province only, as for instance, incorporate a bank for the
province.'

> L. T. N. a, 721 : Cartwright, vol I., pp. 272, 27a
«7 App.Ca8.,829.
» Can. Sup. Court R., IV., 810.
6

68 Federal Government in Canada, [514

When the British North America Act enacted that there
should be a legislature for a province, and that it should have
exclusive authority to make laws for the provinces and for
provincial purposes in relation to the matters enumerated in
the ninety-second section, it conferred powers not in any sense
to be exercised by delegation from, or as agents of, the impe-
rial parliament, but authority as plenary and as ample within
the limits prescribed by the section, as the imperial parliament,
in the plenitude of its power, possesses and could bestow.^

In short, each legislative body should act within the legiti-
mate sphere of its clearly defined powers, and the dominion
parliament should no more extend the limits of its jurisdic-
tion, by the generality of the application of its law, than a
local legislature should extend its jurisdiction by localizing
the application of its statutes.^

I might cite other opinions bearing on the same important
question, but I have already given enough to show the prin-
ciples that should generally prevail if the federal constitution
is to be efficiently carried out with a true consideration of all
the interests involved.^ The federal government should work
in harmony with provincial institutions, and by leaving them
full scope within the limits of the constitution at once give
strength and stability to the central government and confidence
to the various local organizations without which it could not
exist.

In one most important respect the dominion government
exercises a direct control over the legislation of each province.
While the imperial government can disallow any act of the

^ 9 App. Cas., 117 ; Cartwright, vol. III., p. 162.

The same power exists in the States. " When a particular power," says
Judge Cooley, "is found to belong to the States, they are entitled to the
same complete independence in its exercise as the national government in
wielding its own authority."

^ Legal News (the late Mr. Justice Kamsay) on Hodge vs, the Queen.
January 26th, 1884.

^ See Bourinot's Manual of Constitutional History, chap. xiv.

515] Federal Government in Canada, 59

Canadian parliament at variance with the interests of the
Empire, the governor in council can, within one year from
its receipt, disallow any act of a provincial legislature.
Here is one of the evidences which the constitution affords
of the subordinate position in certain particulars of the pro-
vincial authorities. It illustrates the fact that the dominion
government now occupies those relations towards the provin-
cial governments that England, before the confederation, held
with reference to the provinces, and still does in the case of
all colonies outside of Canada. This power of disallowance
is not limited in terms by the British North America Act,*
but may be exercised even with respect to an act clearly within
the constitutional jurisdiction of the provincial legislatures.
It has so far been exercised in a very insignificant number of
cases, compared with the vast amount of legislation that annu-
ally passes the provincial bodies ; but in some of these cases it
caused much irritation, notably in Manitoba, whose provincial
railway acts were vetoed on several occasions on the ground
that they were in conflict with obligations that the dominion had
assumed towards the Canadian Pacific Railway. These
restrictions were only removed after parliament had given the
Pacific railway certain privileges as compensation for the
removal of their railway monopoly in the north-west. From
these and other instances of the exercise of this political power,
the student will see that it is one to be exercised with great
discretion and judgment, as otherwise it may involve couse-

* Sec 90. The following provisions of this act respecting the parliament
of Canada, namely, — the provisions relating to appropriation and tax bills,
the recommendation of money votes, the assent to bills, the disallowance
of acts and the signification of pleasure on bills reserved, — shall extend
and apply to the legislatures of the several provinces as if those provisions
were here re-enacted and made applicable in terms to the respective pro-
vinces and the legislatures thereof, with the substitution of the lieutenant-
governor of the province for the governor-general, of the governor-general
for the Queen, and for a secretary of 8t«t«, of one year for two years, and of
the province for Oanada.

60 Federal Government in Canada. [616

quences fatal to the harmony and integrity of the confedera-
tion. This power can be properly exercised when the act
under consideration is beyond the constitutional competency of
the legislature, or when it is repugnant to dominion legislation
in cases where there is concurrent jurisdiction, or when it is
hostile to the rights enjoyed by a minority under the constitu-
tion, or when clearly hostile or dangerous to the peace and
unity of the dominion generally. Before advising the gover-
nor-general on an act of dubious import, or only partially
defective, the council must consider whether it will not be
sufficient to inform the legislative body, responsible for its
passage, of the objectionable features, and allow it to go into
operation on the understanding that they will be removed by
an amending act. Or in cases where the act is useful, though
ultra vireSj the government has recommended confirmatory
legislation by the dominion parliament, or in matters of doubt
they have been left to the courts to decide whenever a question
should arise for their determination. The cases are so
numerous when the dominion government is called upon to
exercise its power of allowance or disallowance, that it is out
of the question that I should here attempt to lay down with
any accuracy, the various reasons and principles that should
guide it in this important work of supervision. The danger
arises from the exercise of the power, on the grounds of public
policy, in the case of a question clearly within the constitu-
tional powers of a legislature. The principle that should
prevail, as a rule, is to leave to their operation all acts that
fail within the powers of the provincial legislature, which
within its legal sphere has as absolute a right of legislation as
the dominion parliament itself; and if the dominion authori-
ties, at any time, for sufficient reasons, consider it necessary to
interfere in provincial affairs, they must be prepared to justify
their action before parliament and the country, so deeply inter-
ested in the preservation of the union. Opinion is divided as
to the wisdom of a provision which gives so sovereign a
power to a political body, and it may be doubted if in this

517] Federal Government in Canada. 61

respect our constitution is an improvement upon that of the
United States. The veto is so much valued in the states that
while originally only one state^ Massachusetts, vested it in the
governor, now all but four have it. The President vetoes the
acts of Congress, which can, however, override his decision by
a two-thirds vote in each house ; and the governors in each
state, as just remarked, exercise the same power with respect
to state legislation. But the disallowance of state legislation
by the executive at Washington, has never existed, and was
never suggested in the case of the American federal system.'

The adoption of such a principle in 1787 would have been,
in all probability, fatal to the passage of the constitution of the
states, many of whom agreed to that measure with doubt and
suspicion. They agreed, wisely, as experience seems to show,
to leave the judicial branch of the constitution to determine
the constitutionality of all acts of congress or of the l^islature.

Political considerations cannot enter into this judicial
determination. As long as a statute is within the constitu-
tional jurisd iction of a body that passed it, the federal judiciary
cannot do otherwise than so declare, even if it be objectionable
at the time on grounds of public policy. The future will
soon prove whether this extraordinary supervision, given to
the dominion over the provinces, is calculated to strengthen

' " While the constitation was being framed the suggestion was made, and
for a time seemed likely to be adopted, that a veto on acts of state legisla-
tures should be conferred upon the federal congress. Discussion revealed
the objections to such a plan. Its introduction would have offended the
sentiment of the states, always jealous of their autonomy ; its exercise would
have provoked oolli&ions with them. The dis:illowance of a state statate^
even if it did really offend against the federal constitution, would have

seemed a political move, to be resented by a political counter-move

But by the action of the courts the self-love of the states is not wounded,
and the decision annulling their laws is nothing but a tribute to the
superior authority of the supreme enactment to which they were themselves
parties, and which they may themaeWes desire to see enforced against some
other state on some not remote occasion." — Prof. Bryoe's American Com-
monwealth, I., p 343.

62 Fedet-al Government in Canada, [518

the confederation, or has in it the elements of political discord
and disunion. As long as the dominion and provincial gov-
ernments are politically identified, the danger from conflict is
minimized, but it is possible to suppose the case of violent
antagonism between these governments when the central power
might in a moment of passion or arrogance use its authority
to check or thwart the government made subordinate to it in
this particular. Happily, so far, the history ^ of this large
power is not calculated to raise apprehensions that it is likely
to be recklessly exercised ; for the cases which have heretofore
created much discussion, and even discontent, have been
defended on grounds of public policy or the public faith,
though the wisdom and soundness of that policy has been
doubted by others who have looked at the whole question from
a purely provincial point of view. The sound sense of the
people must always prevail in a country like this, and keep
all governments from unduly and rashly interfering with the
constitutional rights of the different sections of the domin-
ion, to whom has been granted such a complete system of
local self-government as is compatible with the unity and per-
manency of the dominion at large.^

^ See correspondence, reports of the Ministers of Justice, and orders in
council upon the subject of provincial legislation, 18G7-1887, compiled
under direction of the Ministers of Justice, by W. E. Ilodgins, for a com-
plete history of the exercise of this important responsibility thrown upon
the dominion government.

^The inexpediency of disallowing any measure believed to be within the
constitutional jurisdiction of a province was strongly asserted in the debate
in the Canadian House of Commons in 1889, on the Quebec Statute, 51-52
Victoria, c. 13. " An act respecting the settlement of the Jesuits' Estates."
The Jesuits had been suppressed by the Pope in 1773, and their property
taken possession of in 1800 by the British government, which applied the
revenues thereof to public instruction in the province of Lower Canada ;
but the Roman Catholic Church, always through its Bishops, contended
that it should be vested with all the estates as a result of the suppression
of the society. This body, however, has been reinstated in these later
times, and an act of incorporation was granted it by the Quebec legislature in
1887. The Quebec government then carried through the first-mentioned

519] Federal Government in Canada, 63

It is on the courts of Canada, aided by the ripe judgment
and learning of the judicial committee of the privy council, we
must, after all, mainly depend for the satisfactory operation of
our constitutional act. The experience of the United States
has shown the inestimable value of the decisions given by the
judges of the ftupreme and the federal courts on questions that
have arisen, from time to time, in connection with their con-

act, authorizing the payment of $400,000 as compensation for the sale of the
estates formerly held by the Jesuits, and as a means of settling a longstand-
ing difficulty. These estates, it must be remembered, became the property
of the province after confederation and were entirely at the disposal of
the legislature.

The neguiiations with the See of Kome, and the Society are formally
8et forth in the preamble of the act in the shape of correspondence
between the Quebec government and the representatives of those reli-
gious bodies, and it is expressly stated that the agreement will be bind-
ing only in so far as it shall be ratified by the Pope and the Legisla-
ture, and the amount of comi)ensation was to remain as a special deposit
until the former had made known his wishes respecting its (distribution.
The government in treating on the question, did not " recognize any
civil obligation but merely a moral obligation.' Subsequently the funds
were distributed by the Pope — the greater part to certain educational insti-
tutions in the province, and the remainder to the Society. Out of this
settlement a heated controversy, involving old world and ancient issues,
has ari.sen in Canada, and was transferred to parliament by a resolution,
formally asserting that the government should have at once disallowed the
act as beyond the power of the legislature because, among other things, "it
recognizes the usurpation of a riglit by a foreign authority, namely. His
Holiness, the Pope, to claim that his consent was necessary" to dispose
and appropriate the public funds of a province. It was contende<l on the
other hand that the Pope, as the head of the Church, wassimply calleti upon
toact as an arbitrator between the disputantsina matter in winch theinter-
estsof the Church were involved. The inference that may be drawn from the
debate on the whole question in the House of Commons U this: that the
almost unanimous vote in favor of the course of the government in allowing
the bill when it came formally l>efore them (one hundred and eighty -eight
against thirteen) was chiefly influenced by the conviction that the
legislature of the province had an unquestionable right to disix)se of itaown
funds as it might think proper, or in the words of the minute of council,
approved by the governor-general, " the subject matter of the act is one of
proviacial coooeni, only having relation to a fiscal matter entirely within

64 Federal Government in Canada, [520

stitution. The name of Chief Justice Marshall, especially,
must be always associated with their fundamental law ; for it
is in a great measure owing to his great legal knowledge, to
his broad views, to his capacity of comprehending the true
spirit, scope and meaning of the principles laid down in the
constitution, and to his ability to apply them to the circum-
stances that surrounded him at very critical times, that the

the control of the legislature of Quebec." In the course of the learned
debate * that took place on the merits of this very vexatious issue a very
clear exposition was given by several speakers from their respective points
of view of the principles by which the relations between the dominion and
the provincial governments should be governed. But there is another
conclusion which I think may be fairly deduced from a debate of this char-
acter. An executive power which can be thus questioned in the political
arena seems obviously fraught with perilous consequences. If all questions
of the constitutionality of a provincial act could be decided only in the
courts, parliament would be saved the discussion of matters, which, once
mixed up with political and religious issues, must necessarily be replete
M'ith danger in a country like Canada, with a population nearly half
Roman Catholic. In Canada and the United States, there is so much
respect for the law and the bench that the people rarely question the
wisdom of a judicial decision on any subject of importance. Can as much
be said for the judgment of a political body, however honestly rendered it
may be ?

The following remarks of a very judicious writer. Professor Dicey, in the
Law of the Constitution, (p. 166) may well be quoted in this connection:
"The main reason why the United States have carried out the federal
system with unqualified success is that the people of the union are more
thoroughly imbued with constitutional ideas than any other existing nation.
Constitutional questions arising out of either the constitutions of the sev-
eral states or the articles of the federal constitution are of daily occurrence,
and constantly occupy the courts. Hence the people become a people ^of
constitutionalists; and matters which excite the strongest possible feeling, —
as for instance, the right of the Chinese to settle in the country, — are
determined by the judicial bench, and the decision of the bench is acqui-
esced in by the people. This acquiescence or submission is due to the
Americans inheriting the legal notions of the common law; that is, of the
most legal system of law, if the expression may be allowed, in the world."
See also Hare's American Constitutional Law, vol. L, pp. 122, 123.

1 See Canadian Hansard for April 26, 27 and 28, 1889.

521] Federal Government in Canada. 65

union gained strength diuring the years he presided over the
Supreme Court.*

The Quebec convention of 1864 appears to have fully ap-
preciated the necessity of having a Supreme Court of Canada
which would bear as much resemblance as possible to the
Americau tribunal ; for they agreed to a resolution, which is
now embodied in the section of the British North America Act
which provides "for the constitution, maintenance and organ-
ization of a general court of appeal for Canada, and for the
establishment of any additional courts for the better adminis-
tration of the laws of Canada." The Judiciary of Canada,
from the lowest to the highest, can and do constantly decide
on the constitutionality of acts, passed by the various legisla-
tive authorities of the Dominion. They do so in tlieir capa-
city as judges and expounders of the law, and not because
they have any especial commission, or are invested with any
political powers or duties by the constitution.^

Unlike the United States, Canada has no feileral courts
established in the provinces, although the section just quoted
seems to provide for some such courts, should they be consid-
ered necessary. The constitution, maintenance and organiza-
tion of the courts in the provinces will be seen, by reference

* Professor Bryce (The American Commonwealth, II., p. 1) very tersely
shows the importance of the influence that the decisions of the supreme
court have exercised on the constitution : " Hence, although the duty of the
court is only to interpret, the considerations aflecting interpretation are
more numerous than in the case of ordinary statutes, more delicate, larger
in their reach and scope. They sometimes need the exercise not merely of
legal acmnen and judicial fairness, but of a comprehension of the nature
and methods of government which one does not demand from the European
judge, who walks in the narrow path traced for him by ordinary statutes.
It is therefore hardly an exaggeration to say that the American constitu-
tion, B8 it now stands, with the mass of foregoing decisions which explain
it, is a far more complete and finished instrument than it was when it came
first new from the hands of the « unvention. It is not merely their work
but the work of the judges, and, most of all, of one man, the great Chief
Justice Manhall."

*See II. Dryce, p. 184.

66 Federal Government in Canada, [522

to the ninety-second section, to be within the matters placed
under provincial jurisdiction, though the judges are appointed
and paid by the dominion government, with the exception of
the courts of probate in Nova Scotia and New Brunswick.*

In 1875, however, it was deemed advisable to pass an act
providing for the establishment of a Supreme Court and Ex-
chequer Court of Canada.^ But the court is only a general
court of appeal for Canada in a limited sense, since the exist-
ing right of appeal in the various provinces to the privy
council has been left untouched. Nor can it be called a final
court of appeal for Canada, since the privy council entertains
appeals from its judgments by virtue of the exercise of the
royal prerogative.^ This court consists of a chief justice and
five puisne judges, two of whom, at least, must be appointed
from the bench or bar of the province of Quebec — a provision
intended to give the court the assistance of men specially
versed in French Canadian law. With certain exceptions set
forth in the act, an appeal can lie to this court and from the
highest court of final resort in a province. The governor-
general in council may refer to the supreme court for hearing
or consideration any matter which he deems advisable in the
public interest;* but in certifying their opinion, the judges,

^ Sees. 9(y-97. The Maritime Court of Ontario is, however, a federal
court.

' 38 Vict., ch. 11. The act was amended in 1887, by removing the Exche-
quer Court jurisdiction from tlie Supreme Court and giving it to a judge
especially appointed for that purpose. 50-51 Vict., ch. 16.

' Cassell's Practice of the Supreme Court of Canada, p. 4.

*iS'o such provision exists in the case of a federal judiciary. That
branch of the government can be called upon "only to decide controversies
brought before them in a legal form ; and therefore are bound to abstain
from any extra-judicial opinions upon points of law, even though solemnly
requested by the executive. President Washington, in 1793, requested its
opinion upon the constitution of the treaty with France of 1778 ; but they
declined to give any opinion for the reasons just stated." Story's Commen-
taries (Cooley's ed.), ^ 1571.

Some of the state constitutions provide for a similar reference by
the governor or legislature to the Supreme Court of the state. "The

523] Federal Government in Canada. 67

following the practice of the judicial committee, do not give
any reasons. On more than one occasion this power of refer-
ring a question, on which there is a legal or constitutional
difficulty, has been found very useful to the parties interested,
as well as to the country at large.* It is also provided that
controversies between the dominion and any province, or
between the provinces themselves, may be referred to the
exchequer court, and on api)eal from that court to the
supreme court, and cases in which the question of the validity
of a dominion or provincial act is shown to be material to the
issue, may come within the jurisdiction of the court, whenever
the l^islature of one province has passed an act — as has been
done by Ontario, Nova Scotia, and British Columbia — agree-
ing to such references. Either house of parliament may also
refer to the court any private bill for its report thereon, but
80 far the senate alone has availed itself of this provision in
the case of a bill of doubtful jurisdiction.*

It will be seen from this summary of the powers of the
court that it is intended to make it, as far as practicable, a

judges of the Supreme Court of Massachusetts suggest in their very
learned and instructive opinion delivered to the legislature, December 31,
1878, that this provision, which appears first in the Massachusetts consti-
tution of 1780, and was doubtless borrowed thence by the other states, evi-
dently had in view the usage of the British constitution, by which the
King as well as the House of Lords, whether acting in their judicial or
in their legislative capacity, had the right to demand the opinion of the
twelve judges of England. This is still sometimes done by the House of
Lords; but the opinions of the judges are not necessarily followed by that
House, and though always reporteil are not deemed to be binding pronounce-
ments of law similar to the decisions of a court." Bryoe's American Com-
monwealth, II., 48, 49.

* Ca«eir» Practice of the Supreme Court of Canada, p. 4. The latest
case of reference to the judges was one of a serious controversy between the
government of Manitoba and the Canadian Pacific Railroad, which refused
permission to a Manitoba railroad to cross its track ; but this case was re-
ferred under section 99 of the Railway Act (57 Vict., c. 29, 1888). The
question of the validity of the Liquor License Act was referred under sec.
t6 of a special act, 47 Vict., c. 32.

' Bourinot's Pari. Practice in Canada, pp. 606-607.

68 Federal Government in Canada. [524

court for the disposal of controversies that arise in the work-
ing of the constitutional system of Canada. So far its
decisions have won respect in Canada, and have been rarely-
overruled by the judicial committee of the privy council,
which, by virtue of Her Majesty's royal prerogative, enter-
tains appeals from the court where it is considered that any
error of law has been made, and substantial interests have
been involved.^

As I have in the first paragraph of this lecture referred to
the importance of this appeal to the privy council, it is not
necessary that I should dwell here on the subject.

I have now shown you the leading features of the constitu-
tional relations that exist between the dominion and the pro-
vinces, and have stated some of the principles, as I understand
them, tliat should guide the construction of the fundamental char-
ter under which each authority acts. In other lectures, I shall
review the duties and functions of the executive, administra-
tive and parliamentary bodies by which the federal system is
governed ; but there are a few other points that properly fall
within the scope of this lecture. First of all, and the most
important in many ways, are the methods that the constitution
provides for meeting the financial necessities of the dominion
and of the provinces. The ninety-second section shows that
the dominion parliament can raise money by any mode or sys-
tem of taxation, borrow money on the public credit, issue
paper money and regulate trade and commerce. Revenue is

* See Sec. 71 of Supreme Court Act, which after setting forth that the judg-
ment of tlie court shall be final, adds the proviso, "saving any right which
Her Majesty may be graciously pleased to exercise by virtue of her royal
prerogative. But by an act passed by the Canadian parliament in 1888,
(51 Vict., c. 43) it is provided that " notwithstanding any royal prerogative"
no appeal shall be brought in any criminal case from any judgment or
order of any court in Canada to any court of appeal in the United King-
dom. Exception was, I understand, taken to this act by the imperial auth r-
ities, but it does not appear to have been disallowed. This strong assertion
of Canadian judicial independence rests on the powers given to the Cana-
dian parliament by sections 91 (sub-s. 27) and 101 of B. N. A. Act, 1867.

525] Federal Government in Canada, 69

accordingly raised principally from duties imposed on imports,
and on certain articles, chiefly tobacco and liquors, manufac-
tured in the dominion, and in addition to these there are cer-
tain minor revenues collected from the sale of lands in the
north-west territories, over which the dominion government
has exclusive control. All these moneys are paid into the
treasury, and form what is known in law as "the Consolidated
Revenue Fund of Canada," out of which are paid all the costs,
charges and ex()enses incident to the collection and manage-
ment of this fund, and all the expenses of government.*

' B. N. A. Act, 1867, sec. 102. All duties and revenues over which the
respective le^slatures of Canada, Nova Scotia and New Brunswick before
and at the union had and have power of appropriation, except such por-
tions thereof as are by this act reserved to the respective legislatures of the
provinces, or are raised by them in accordance with the special powers con-
ferred on them by this act, shall form one consolidated revenue fund, to be
appropriated for the public service of Canada in the manner and subject to
the charges in this act provided.

103. The consolidated revenue fund bf Canada shall be permanently
charged with the costs, charges and expenses incident to the collection,
management and receipt thereof, and the same shall form the first charge
thereon, subject to be reviewed and audited in such manner as shall be
ordered by the governor-general in council until the parliament otherwise
provides.

104. The annual interest of the public debts of the several provinces of
Canada, Nova Scotia and New Brunswick at the union shall form the second
charge on the consolidated revenue fund of Canada.

105. Unless altered by the parliament of Canada, the salary of the gov-
ernor-general shall be ten thousand pounds sterling money of the United
Kingdom of Great Britain and Ireland, payable out of the consolidated
revenue fund of Canada, and the same shall form the third charge thereon.

106. Subject to the several payments by this act charged on the consoli-
dated revenue fund of Canada, the same shall be appropriated by the par-
liament of Canada for the public service.

107. All stocks, cash, bankers' balances, and tecarities for money belong-
ing to each province at the time of the union, except as in this act men-
tioned, shall be the property of Canada, and shall be taken in reduction of
the amount of the respective debts of the provinces at the union.

108. The public works and property of each province enumerated in the
third schedule to this act shall be the property of Canada.

70 Federal Government in Canada, [626

These moneys are, in every instance, voted by parliament,
but while certain sums are authorized annually by the appro-
priation act — which comprises the annual grants voted every
session in supply — other payments are made under the sanc-
tion of statutes. These statutes, which are permanent and can
only be repealed or amended by act of parliament, provide
for salaries of the governor-general, lieutenant-governors,
ministers of the crown, judges, and other high functionaries,

109. All lands, mines, minerals and royalties belonging to the several
provinces of Canada, Nova Scotia and New Brunswick at the union, and
all sums then due or payable for such lands, mines, minerals or royalties,
shall belong to the several provinces of Ontario, Quebec, Nova Scotia and
New Brunswick in which the same are situate or arise, subject to any trusts
existing in respect thereof, and to any interest other than that of the pro-
vince in the same.

110. All assets connected with such portions of the public debt of each
province as are assumed by that province, shall belong to that province.

111. Canada shall be liable for the debts and liabilities of each province
existing at the union.

112. Ontario and Quebec conjointly shall be liable to Canada for the
amount (if any) by which the debt of the province of Canada exceeds at
the union sixty-two million five hundred thousand dollars, and shall be
charged with interest at the rate of five per centum per annum thereon.

113. The assets enumerated in the fourth schedule to this act, belonging
at the union to the province of Canada, shall be the property of Ontario
and Quebec conjointly.

114. Nova Scotia shall be liable to Canada for the amount (if any) by
which its public debt exceeds at the union eight million dollars, and shall
be charged with the interest at the rate of five per centum per annum
thereon.

115. New Brunswick shall be liable to Canada for the amount (if any) by
which its public debt exceeds at the union seven million dollars, and shall
be charged with interest at the rate of five per centum per annum thereon.

116. In case the public debts of Nova Scotia and New Brunswick do not
at the union amount to eight million and seven million dollars respectively,
they shall respectively receive, by half-yearly payments in advance from
the government of Canada interest at five per centum per annum on the
difference between the actual amounts of their respective debts and such
stipulated amounts.

117. The several provinces shall retain all their respective public pro-
perty not otherwise disposed of in this act, subject to the right of Canada to

527] Federal GovemmerU in Canada. 71

whose remuDeration it is understood should not depend on
the annual votes. All moneys are paid out of the treasury
under certain forms required by statute, and a thorough sys-
tem of audit prevents any public expenditure not authorized
by parliament, although the law permits the issue of governor-
general's warrants in certain cases of emergency, but these,
too, must at the first opportunity be laid before, and be sanc-
tioned by parliament. Large sums are, at times, borrowed on

assume any lands'or public property required for fortifications or for the
defence of the country.

118. The following sums shall be paid yearly by Canada to the several
provinces for the support of their governments and legislatures :

DOLLARS.

Ontario Eighty thousand.

Quebec Seventy thousand.

Nova Scotia Sixty thousand.

New Brunswick Fifty thousand.

Two hundred and sixty thousand ;
and an annual grant in aid of each province shall be made, equal to eighty
cents per head of the population as ascertained by the census of one thou-
sand eight hundred and sixty one, and in tlie case of Nova Scotia and New
Brunswick, by each subsequent decennial census until the population of
each of those two provinces amounts to four hundred thousand souls, at
which rate such grants shall thereafter remain. Such grants shall be in full
settlement of all future demands on Canada, and shall be paid half-yearly
in advance to each province ; but the government of Canada shall deduct
/rem such grants, as against any province, all sums chargeable as interest on
the public debt of that province in excess of the several amounts stipulated
in this act.

119. New Brunswick shall receive, by half-yearly payments in advance
from Canada, for the period of ten years from the union, an additional
allowance of sixty-thrco thousand dollars per annum ; but as long as the
public debt of that province remains under seven million dollars, a deduc-
tion equal to the interest at five per centum per annum on such deficiency
•hall be made from that allowance of sixty-three thousand dollars.

120. All payments to be made under this act, or in discharge of liabilities
created under any act of the provinces of Canada, Nova Scotia and New
Brunswick respectively, and assumed by Canada, shall, until the parlia-
ment of Canada otherwise directs, be made in such form and manner as may
from time to time be ordered by the goTemor-g«neral in ooundL

72 Federal Government in Canada. [528

the public credit, under the conditions laid down by parlia-
ment, in order to meet the heavy expenditures required for the
extensive system of public works in which the dominion is
engaged. The treasury also issues a number of notes, of which
the sum of four dollars is the highest denomination — the
banks of Canada being banks of issue for large sums within
fixed limits — but the dominion issue in any one year may not
exceed four million dollars, and the total amount issued and
outstanding, at any time, may not exceed twenty millions,
secured for redemption by gold and Canadian guaranteed
securities.^

121. All articles of the growth, produce or manufacture of any one of the
provinces shall, from and after the union, be admitted free into each of the
other provinces.

122. The customs and excise laws of each province shall, subject to the
provisions of this act, continue in force until altered by the parliament of
Canada.

123. Where customs duties are, at the union, leviable on any goods,
wares or merchandises in any two provinces, those goods, wares and mer-
chandises may, from and after the union, be imported from one of those
provinces into the other of them, on proof of payment of the customs duty
leviable thereon in the province of exportation, and on payment of such
further amount (if any) of customs duty as is leviable thereon in the
province of importation.

124. Nothing in this act shall afiect the right of New Brunswick to levy
the lumber dues provided in chapter fifteen of title three of the Revised
Statutes of New Brunswick, or in any act amending that act before or after«
the Union, and net increasing the amount of such dues ; but the lumber of
any of the provinces other than New Brunswick shall not be subject to
such dues.

125. No lands or property belonging to Canada or any province shall be
liable to taxation.

126. Such portions of the duties and revenues over which the respective
legislatures of Canada, Nova Scotia and New Brunswick had before the
union, power of appropriation, as are by this act reserved to the respective
governments or legislatures of the provinces, and all duties and revenues
raised by them in accordance with the special powers conferred upon them
by this act, shall in each province form one consolidated revenue fund to
be appropriated for the public service of the province.

' Can. Eev. Stat., chaps. 28, 29, 30, 31, 32, 33, etc.

-529] Federal GovemvierU in Canada, 73

As respects the provinces, their revenues arise fix)m the
proceeds of royalties from mines (chiefly valuable in Nova
Scotia), the sales of Crown lands and minerals, and the subsi-
dies granted by authority of the British North America Act
for the purposes of enabling them to carry on their govern-
ment. The ninety-second section authorizes the l^islatures
to impose direct taxation on the province in order to raise a
revenue for provincial purposes, to borrow money on the sole
credit of the province, and to raise money from shop, saloon,
tavern and auctioneer licenses, in order to the raising of a rev-
enue for provincial, local, or municipal purposes. When the
Quebec convention sat this question of provincial revenue was
one that gave the delegates tlie greatest diflSculty. In all the
provinces the sources of revenue were chiefly customs and
excise duties which had to be set ajmrt for the general govern-
ment. Some of the del^ates from Ontario, where there had
been for many years an admirable system of municipal gov-
ernment in existence which provided funds for education and
local improvements, saw many advantages in direct taxation ;
but the representatives of the other provinces could not con-
sent to such a proposition, especially in the case of Nova
Scotia, New Brunswick and Prince Edward Ishmd, where
there was no municipal system, and the i)eople depended al-
most exclusively on the annual grants of the legislature for
the means to meet their local necessities.* All of the delegates,
in fact, felt that to force the provinces to resort to direct tax-
ation as the only method of carrying on their g<jvernment,
would be probably fatal to the succ»ess of the scheme, and it
was finally decided to grant annual subsidies, based on popu-
lation, the relative debts, the financial position, and such other
facts as should be brought fairly into the consideration of the
case. These financial arrangements were incorporated with
the act* of union,' and necessarily entail a heavy expense

* See npcech of Hon. George Brown, Confederation Debates. 1865, p. 92.
'See Can. Rev. Stat., c 46.
6

74 Federal Gaoernment in Canada. [530

annually on the exchequer of the dominion. In consequence
of the demand that arose in Nova Scotia for " better terms,"
previous to and after the union, the parliament of the domin-
ion, in the session of 1869, legislated so as to meet the diffi-
culty that had arisen, and it was accordingly decided to grant
additional allowances to the provinces, calculated on increased
amounts of debt as compared with what they were allowed to
enter the union.*

Manitoba, British Columbia, and Prince Edwai-d Island
also obtained similar annual subsidies in accordance with the
general basis laid down in the constitution. It is from these
subsidies that the provinces derive the greater part of their
annual revenues, Ontario is in the most favorable posi-
tion from the very considerable revenue raised from lands
and timber dues. The provinces are also at times bor-
rowers on the money market, especially Quebec, in order to
meet pressing liabilities. In the maritime provinces a system
of municipal institutions, except in Prince Edward Island, has
been at last adopted, and the local treasury in a measure
relieved ; but still on account of the lavish expenditure, at
times considered necessary by the legislature, there is too often
a complaint that the local funds are insufficient for general
purposes.

From this necessarily meagre summary of the financial
methods by which* the dominion and the provinces meet the
large expense required for public purposes, it will be seen that
there is an intimate connection between the governments that
does not exist in the American union, where each state meets
all its local requirements by direct taxation and is not depen-
dent on the federal authority.

The wisdom of this policy has been more than once ques-
tioned since the union has been working itself out. As a large
portion of their revenues — in certain cases the largest portion
— is not derived from local sources, there has not been always,

> See Can. Rev. Stat., c. 46.

531] Federal Government in Canada. 76

it is believed, that effort for economical expenditure that would
probably have been made if all the funds were raised from
local sources, and from direct taxation as in the United States.
The consequence already has been that demands have been
made from time to time, on the dominion treasury for the sub-
sidizing of railway and other schemes, which are really
provincial undertakings, and which are assisted as a means of
relieving the local treasury and satisfying the representatives
from that section. Each province should be, as far as possi-
ble, in a position of local independence, and free from suspicion
of political pressure on the central government at critical
times.

The federal government executes its postal and revenue
services through its own officers; but, unlike the United
States, it has no courts of its own in the provinces for federal
objects. Still the result is practically the same, for it can use
the whole system of the administration of justice should it be
necessary to resort to it. The dominion government can
claim the allegiance of the people of the whole country to
assist it in working out efficiently and securing those great
national interests, of which it is the guardian under the con-
stitution. It has the control of the militia, and can protect
the existence of the dominion, and repress rebellion as in the
case of the unfortunate disturbances in the north-west in 1886.
The government of Canada has a quasi national character, and
is bound to maintain by all the means that the constitution
gives it the union into which the provinces freely entered in
1867. On the other hand, the province in many respects
touches more nearly the civil and tlie political side of the
people within its limits than the central authority with its
more general or national attributes of power. The exaction
of indirect taxation does not come home immediately to all
classes in every day life like the tax collector who presents
himself under the municipal system in vogue in the provinces.
Comfort and convenience, liberty and life, civil rights and
property, endless matters that daily affect a community' are

76 Federal Government in Canada. [632

directly within the jurisdiction of the provincial organisms.
If the dominion should cease to-morrow to exercise its consti-
tutional powei's, the province would still remain — for it existed
before the union — and its local organization could very soon
be extended to embrace those powers which now belong to the
central authority.

The federal structure, whatever may be its defects and weak-
nesses in certain details, on the whole seems well adapted to
meet the wants and necessities of the people. From the foun-
dation to the crowning apex it has many attributes of har-
mony and strength. It is framed on principles which, as
tested by British and American experience, are calculated to
assist national development and give full liberty to local insti-
tutions. At the bottom of the edifice are those parish, town-
ship, county and municipal institutions which are^ eminently
favorable to popular freedom and local improvement. Then
comes the more important provincial organization, divided
into those executive, legislative and judicial authorities, which
are essential to the working of all provincial constitutions.
Next comes the central government, which assumes a national
dignity and affords a guarantee of protection, unity and secu-
rity to the whole system.

The apex of the structure is the imperial power — in other
words, the Sovereign who holds her exalted position, not by
the caprice of a popular vote, but with all the guarantees of
permanency with which the British constitution surrounds the
Throne.

LECTURE III.
THE GOVERNMENT AND THE PARLIAMENT.

Sir Henry Maine, in common with other eminent writers
on government, has dwelt on the fact that the framers of the
existing Federal Union of the United States regarded the
opinions expressed by Montesquieu in the Esprit des Lois as
of paramount importance, and that none had more weight with
the writers of the Federalist, that admirable series of commen-
taries on the constitution, than that which affirmed the essen-
tial separation of the executive, legislative and judicial powers.
The lines accordingly that separate these respective depart-
ments are drawn with remarkable distinctness in the American
system. Their object was to impose every possible check upon
the several agencies of government, so that one could not com-
bine with the other, to the injury of the third. In the Cana-
dian as in all other systems that derive their origin from
England, this same wise principle is carefully carried out,
though not to the same extent as in the United States. The
judiciary has been wisely kept entirely distinct from all other
authorities since 1841, and it is now impossible for the judges
to sit in the legislative and executive councils and exercise a
direct influence in political affairs. In the case of the execu-
tive, however, as I shall show later on, there is a direct oon-
nection between it and the legislative department, which in
many respects operates in the direction of good government
and efiicicnt legislation.

As I have already shown in a previous lecture the head of
the executive authority is the Queen, who is represented by

77

78 Federal Government in Canada. [534

the governor-general advised by a privy council.^ The gover-
nor-general as the acting head of the executive of Canada,
assembles, prorogues and dissolves parliament and assents to
or reserves bills in the name of her majesty ; but, in the dis-
charge of these and all other executive duties which are within
the limits of his commission, and in conformity with the con-
stitution, he acts entirely by and with the advice of his
council who must always have the support of the house of
commons. Even in matters of imperial interest affecting
Canada, he consults with the council and submits their views
to the colonial secretary of state in England. On Canadian
questions clearly within the constitutional jurisdiction of the
dominion he cannot act apart from his advisers, but is bound
by their advice. Should he differ from them on some vital
question of principle or policy he must either recede from
his own position or be prepared to accept the great responsi-

* B. N. A. Act, 1867, sec. 10. The provisions of this act referring to the
governor-general extend and apply to the governor-general for the time
being of Canada, or other the chief executive officer or administrator for
the time being carrying on the government of Canada on behalf and in the
name of the Queen, by whatever title he is designated.

11. There shall be a council to aid and advise the government of Canada,
to be styled the Queen's Privy Council for Ciinada ; and the persons who
are to be members of that council shall be from time to time chosen and
summoned by the governor-general and sworn in as privy councillors, and
members thereof may be from time to time removed by the governor-
general.

12. All powers, authorities and functions which, under any act of the
parliament of Great Britain, or of the parliament of the United Kingdom
of Great Britain and Ireland, or of the legislature of Upper Canada, Lower
Canada, Canada, Nova Scotia or New Brunswick, are at the union vested
in or exercisable by the respective governors or lieutenant-governors of
those provinces, with the advice, or with the advice and consent, of the
respective executive councils thereof, or in conjunction with those councils,
or with any number of members thereof, or by those governors or lieuten-
ant-governors individually, shall, as far as the same continue in existence
and capable of being exercised after the union in relation to the govern-
ment of Canada, be vested in and exercisable by the governor-general, with
the advice or with the advice and consent of or in conjunction with the

535] Federal Government in Canada. 79

bility of dismissing them ; but such an alternative is an
extreme exercise of authority and not in consonance with
the sound constitutional practice of modern times, should his
advisers have a majority in the popular branch of the legisla-
ture. Should he, however, feel compelled to resort to this
extreme exercise of the royal prerogative, he must be prepared
to find another body of advisers, ready to assume the full
responsibility of his action and justify it before the house and
country. For every act of the crown, in Canada as in England,
there must be some one immediately responsible, apart from
the crown itself. But a governor, like any other subject, can-
not be " freed from the personal responsibility for his acts
nor be allowed to excuse a violation of the law on the plea of
having followed the counsels of evil advisers." * Cases
may arise when the governor-general will hesitate to come to
a speedy conclusion on a matter involving important conse-
quences, and then it is quite legitimate for him to seek advice

Queen's privy council for Canada, or any members thereof, or by the gov-
ernor-general individually, as the case requires, subject nevertheless (except
with respect to such as exist under acts of the parliament of Great Britain
or of the parliament of the United Kingdom of Great Britain and Ireland)
to be abolished or altered by the parliament of Canada.

13. The provisions of this act referring to the governor-general in coun-
cil shall be construed as referring to the governor-general acting by and
with the advice of the Queen's privy council for Canada.

14. It shall be lawful for the Queen, if her majesty thinks fit, to author-
ize the governor-general from time to time to appoint any person or
any persons jointly or severally to be his deputy or deputies within any
part or parts of Canada, and in that capacity to exercise during the pleasure
of the governor-general such of the powers, authorities and functions of the
goyemor-general as the governor-general deems it necessary or expedient to
assign to him or them, subject to any limitations or directions expressed or
given by the Queen ; but the appointment of sooh a deputy or deputies^
shall not afiect the exercise by the governor-general himself of any power,
authority or function.

15. The command-in-chief of th« land and naval militia, and of all naral
and military forces, of and in Canada, is hereby declared to continue and
be vested in the Qaeen.

* HaMn't OoTernmeiii of Eoglmod, p. 188»

80 Federal Govei^xment in Canada, [536

from his official chief, the secretary of state for the colonies,
even if it be a matter not immediately involving imperial
interests. For instance, when a question arose in 1879
whether the governor-general ought to follow the advice of his
council and dismiss the lieutenant-governor of Quebec, Lord
Lome, at the suggestion of the premier, referred the whole
matter to her majesty's government for its consideration and
instructions, as it involved important questions connected with
the relations between the dominion and the local governments
as well as the proper construction to be put on the constitu-
tion.^ This case, however, shows that the government of
England, in accordance with their fixed policy, will refrain
from expressing any opinion upon the merits of a case of a
purely Canadian interest, and will not interfere with the exer-
cise of the undoubted powers conferred upon the governor-
general by the British North America Act, for determining
the same. Indeed we may even go further and say that the
effect of the advice of the imperial government in this partic-

* I refer here to a remarkable episode in the political history of Canada^
(1878-1879) in which we find abundant evidence of the bitterness of party-
conflict in Canada. M. Letellier de St. Just was appointed lieutenant-gov-
ernor of Quebec by a Liberal administration at Ottawa, and thought proper
to dismiss his executive council, though it had a large majority in the leg-
islature. The constitutionality of his action was at once sharply attacked
in the dominion parliament by the Conservative party which was politi-
cally identified with the dismissed ministers, but it was only in the senate
where it had a majority that a resolution was passed censuring him for an
act emphatically declared to be at variance with the principles of responsi-
ble government. The conservatives soon afterwards came into power and a
similar resolution was again proposed and passed by a very large majority.
The government, who had not up to that time, thought it incumbent on
them to assume any responsibility under section 69 of B. N. A. Act which
gave them the power of dismissal, then recommended to Lord Lome that
the lieutenant-governor be dismissed ; but the governor-general, as stated in
the text, hesitated to accept the advice and preferred to ask instructions from
the imperial authorities. In consequence of their answer, he had no other
alternative than to consent to the removal of M. Letellier on the ground as
set forth in the order in council, that his usefulness was gone. The cause
assigned had not quite the merit of novelty, for similar language had been

537] Federal Government in Ckinada. 81

ular matter must be to restrain within very narrow limits the
occasions when a governor will hereafter hesitate to accept the
advice of his constitutional advisers, and refer to England a
question which is clearly among the powers belonging to the
Canadian government. In matters affecting imperial interests,
of course the governor-general is not confined by any such
limitation ; but it is impossible to lay down any rule available
for such emergencies. The truth is, as it has been well ob-
served by a Canadian statesman and constitutionalist* whose
opinions are deserving of the highest possible respect, " that
imperial interests are, under our present system of government,
to be secured in matters of Canadian executive policy, not by
any clause in a governor's instructions (which would be prac-
tically inoperative, and if it can be supposed to be operative
would be mischievous), but by mutual good feeling and by
proper consideration for imperial interests on the part of her
majesty's Canadian advisers ; the crown necessarily retaining
all its constitutional rights and powers which would be exer-
cisable in any emergency in which the indicated securities

used in the case of Governor Darling who was dismissed from the governor-
ship of Victoria by the imperial government because he "had placed him-
self in a position of personal antagonism towards almost all those whose
antecedents pointed them out as most likely to be available in case of a
change of ministry." Governor Darling's mistake, however, was not in dis-
missing his ministry, but in yielding to its pressure and consenting to the
clearly unconstitutional course of sanctioning the levy of duties on a mere
resolution of the assembly at the time in antagonism to the council. (See
EngL Commons Pap., 1866, vol. L., p. 695.) M. Lctellicr, it may be
added, obtained the aaabtance of a new council, which assumed the respon-
sibility of his acts, and appealed to tho people, who sustained them by a
bare majority, which soon disappeared, until the party with which Mr.
Letellier had brought himself into conflict came again into oflice, but not
until after he had been dismissed. The consequences of this affair were
serious, not only in creating a violent agitation for a long while but in the
effect upon the unfortonate principal actor, who felt his position nxMt
keenly, and soon afterwards died.

* The Hon. Edward Blake in a dispatch to the Secretary of State, Gkn.
Sess. P. 1887, No. 13.

82 Federal Government in Canada, [538

might be found to fail." The official communicdtions between
the imperial government and the governor-general that have
been printed since 1867 and indeed from the days of Lord
Elgin, show two things very clearly : First, that the governors-
general now fully recognize the obligation resting upon them
of following in their entirety the principles of English consti-
tutional government in all tlieir relations with their cabinet
affecting matters within its functions and authority ; secondly,
that the imperial government never intrude their instructions
on the governor-general in such matters, and while they do
not directly deprecate a reference to them for advice respecting
questions even within Canadian jurisdiction, yet they do not
encourage it but prefer that Canadians should settle all such
questions for themselves, as the logical sequence of a very
complete system of local government long since granted to the
dominion by the parent state.

It will, therefore, be evident that power is practically vested
in the ministry and that the governor-general, unless he has
to deal with imperial questions, can constitutionally perform
no executive function except under the responsibility of that
ministry. The royal prerogative of mercy is no longer exer-
cised on his own judgment and responsibility, but is adminis-
tered as it is in England, pursuant to the advice of the min-
istry.^ With respect to the allowance or disallowance of
provincial acts, ever since the coming into force of the British
North America Act, the governor-general "has invariably
decided on the advice of his ministers and has never asserted
a right to decide otherwise. He has been always con-
tent to exercise this prerogative under the same constitu-
tional limitations and restraints which apply to all other
acts of executive authority in a constitutional government." *

* In the resolutions of the Quebec convention, the prerogative of pardon
was to be exercised by the lieutenant-governors of the provinces ; but in
the British North America Act this important power is entrusted only to
the governor-general as the direct representative of the Queen.

» Todd's Pari. Gov't, of the Colonies, p. 342.

539] Federal Government in Canada. 83

Even in the exercise of the all important prerogative of
dissolution, which essentially rests in the Crown, he acts on
the advice of his advisers, and it is obvious from many exam-
ples in the recent political history of Canada he does not
hesitate t<J follow that advice as a rule/ Of course it may
be said that the more frequent are the opportunities given
to the people to express their opinions on the policy of a
government, the greater is the security granted to popular
liberty, and the more likely is parliament to represent public
sentiment. In 1882 parliament had been only four years in
session and Lord Lome accepted the advice of his council to
dissolve parliament, but there were certainly good reasons for
such a course at that time, since there had been a readjust-
ment in the representation of the House, as a consequence of
the new census taken in 1881, and the national or protective
policy had been less than three years in operation and the ear-
liest opportunity should be given to obtain thereon the verdict
of the people. The difficulties that surround a governor-gen-
eral in such cases, when there is a powerful party in power,
are very obvious, especially when we consider that he is hardly
likely to meet with support from his official superiors in Eng-
land in a matter which they would consider of purely Cana-
dian importance. Such facts obviously are the natural outcome
of parliamentary government, though, in the opinion of some
thoughtful publicists, they raise the question whether a gov-
ernor-general, as well as the sovereign whom he represents,
might not be called upon in some cases to refuse to be bound

^ Doabt has been cast upon the constitutional propriety of the course pur-
sued in 1887, when the governor-general allowed the premier to appeal to
the people, though parliament hud only held four sessions and had not
completed its constitutional existence of five years from the date of the
return of the writs in 1882. The government of the day had a large ma-
jority in the popular branch. I cite this case simply to illustrate the extent
to which the governor-general, as astute as he was able, thought himself
constitutionally bound to follow the advice of his ministry in view of all
the reasons submitted to him, and of which, no doubt, we have not yet full
knowledge.

84 Federal Government in Canada, [540

by such advice, and to consider whether it is party ambition
or the public interest that is at stake. I need, however, hardly
add that the representative of the crown must be prepared to
see his action in such a grave exercise of the prerogative fully
justified by another set of advisers in case he finds 4iimself in
irreconcilable conflict with those who give him advice which
he cannot bring himself to follow after a thorough considera-
tion of all the facts as they have been presented to him. Hap-
pily the relations that exist between the Queen's representa-
tive and her council are not likely to be strained while both
fully appreciate their respective functions and follow those
principles of action which experience and usage have shown
to be necessary to prevent undue friction and difficulty. It is
the duty of the council, through their premier, to instruct the
governor-general thoroughly on all questions that are matters
of executive action, and to keep him informed on any matter
that should properly come under his cognizance. Mutual
consultation can do everything to bring councillors of the
crown into perfect harmony with their constitutional head ;
and the circumstances must be very peculiar and extraordinary
indeed when a conflict can arise between these authorities that
is not susceptible of an amicable arrangement at last.

Occupying a position of unswerving neutrality between
opposing political parties, and having no possible object in
view ex(3ept to subserve the usefulness and dignity of his high
office, the governor-general must necessarily, in the discharge
of his important functions, have many opportunities of pro-
moting the interests of the country over whose government he
presides. While he continues to be drawn from the ranks of
distinguished Englishmen, he evokes respect as a link of con-
nection between the parent state and its dependency. In the
performance of his social duties he is brought into contact
with all shades of opinion and wields an influence that may
elevate social life and soften the asperities of public contro-
versy by bringing public men to meet on a neutral ground
and under conditions which win their respect. In the tours

541] Fedei'cd Govei-nment in Canada, 85

he takes from time to time throughout the wide territories of
the dominion he is able to make himself acquainted with all
classes and interests, and by the information he gathers in this
way of the resources of the country he can make himself an
important agent in the development of Canada.* In the en-
couragement of science, art and literature he has also a fruitful
field in which he may perform invaluable service that would
not be possible for anyone who does not occupy so exalted a
position in the country.^

The British North America Act of 1867 provides that the
council, which aids and advises the governor-general, shall be
styled the "queen's privy council for Canada.''' Here we have
one of the many illustrations that the constitutional system of
the dominion offers of the efforts of its authors to perpetuate
as far as possible in this country the names and attributes of
the time-honored institutions of England. The privy council
of Canada recalls that ancient council whose history is always
associated with that of the king as far back as the earliest days
of which we have authentic record. Sometimes it was known
as the aiUa regia or the curia regiSy which possessed ill-defined
but certainly large legislative and judicial as well as executive
powers ; but its principal duty, it is clear, was to act as an
advisory body according as the king might wish its counsel.
At all times in English history there appears to have been a
council near the king who could assist him with their advice
and be made responsible for his acts.* Too often it became

* Lord Dafierin'8 public speechefl ^luring his administration in Canada
directed large attention in P^uropc to the remarkable ca|>abilitie8 of Canada.

' During the r^ime of the Marqais of I^rne and II. R. H. the Princees
Louise, the royal academy of art« and the royal society of (^«nada were
established on a successful basis.

* The executive council of the little state of Delaware was originally called
the privy council — the only example we have of such a title in the old
colonies.

* " It is our good fortune to be the ioheritoni of institutions in which the
spirit of freedom was enshrined and to have had forefathers who knew how
to defend them. The king of England was a rex po/iVtcus, a political crea-

86 Federal Government in Canada, [542

the unscrupulous instrument of the sovereign, and by the time
of Elizabeth it had practically superseded the parliament,
except when money had to be raised by the taxation of the
people. But with the end of the Tudor dynasty, its power
began to wane and the parliament increased in strength and
influence. The Stuarts made use of it to establish a secret
star chamber to usurp the functions of the courts, and we hear
later of the formation of a committee called enviously a cabal
or cabinet, on account of the king finding it convenient from
time to time to have a small body of advisers on whose ability
to serve him he could have every confidence, and in whose
deliberations he could find that secrecy which would not have
been possible in the consultations of the privy council as a
whole. In the course of the various changes that have oc-
curred in English constitutional history its judicial functions
disappeared and now only survive in the judicial committee,
while it has been practically denuded of all former executive
functions, and exists only as a purely honorary and dig-
nified body. The cabinet council — a name originating in the
days of Charles I — is now the great executive and adminis-
trative council of state, though in no other respect does it
resemble that irresponsible creation of the Stuart king. Still
the cabinet which is the governing power of the ministry of
modern times, is a- name unknown to the law. The privy
council is the only body legally recognized, and on the for-
mation of a new ministry it is usual to inform the public
simply that her majesty has been pleased to appoint certain
members of the privy council to certain high offices of state.
The cabinet, or inner council, is only a portion of the ministry

tion, the highest functionary and servant of the state, not a merely personal
ruler, and that was his recognized capacity. In the next place, from early
times, earlier than the beginning of regular parliaments, the people of
England held a firm hold on the idea of ministerial responsibility. They
acted upon it fitfully and sometimes capriciously, but they never let it go.
If the king ruled ill, it was because he had bad advisers." Contemporary
Review, January, 1889, p. 63,

543] Federal Government in Canada, 87

and varies in numbers according to the exigencies of state.
This ministry is drawn from members of the two houses of
parliament, chiefly from the house of commons, and their
tenure of office depends upon their having and retaining the
confidence of a majority of the people's house, in accordance
with the principles of parliamentary government, w^hich were
first roughly laid down after the revolution of 1688, though
it took very many years before the present system of ministe-
rial responsibility reached its present perfection.

The terms, " cabinet," " ministry," " administration " and
" government," are indifferently applied to the privy council
of Canada ; for there is not in this country a select cabinet as
in the parent state. Privy councillors, when not in the gov-
ernment, retain their honorary rank, but it is simply one that
entitles them to certain precedence on state occasions and has
no official responsibility or meaning. When the governor-
general appoints a body of advisers to assist him in the
government he calls them to be members of the privy council
and to hold certain offices of state. It sometimes happens,
however, that ministers are appointed without a portfolio or
department, and two representatives of the government in tlie
senate are in that position at the present time. The number
of members of the ministry or privy council in office vary
from thirteen to fifteen of whom thirteen are heads of depart-
ments, whose functions are regulated by statute. One of
these officers, however, is president of the privy council, who
has practically no departmental duties, but it is a position
which the premier, as it hapjxins at the present time, may well
occupy in view of his large political responsibilities as the head
of the government. While holding this virtually honorary
office, he is often called upoft to act for ministers who are ill
or absent from the country, and it is found convenient to con-
nect with it the charge of the virtually 8ulx)rdinatedej)artment
of Indian affairs.* The otlier ministers with jwrtfolios are the

' Sir John Macdonald was prceident of the council and uuperinlendent
general of Indian affairs, an office ^nerally hold by the minister of the

88 Federal Government in Canada. [544

minister of finance, minister of public works, minister of rail-
ways and canals, minister of the interior, postmaster-general,
minister of justice, secretary of state, minister of inland reve-
nue, minister of customs, minister of militia, minister of
marine and fisheries, and minister of agriculture. When we
consider the population of Canada and its position as a colo-
nial dependency this ministry of thirteen departments (exclu-
sive of the two at present without portfolios) seems extremely
large compared with the government of the United States or
of England itself. At the inception of confederation it was
considered advisable to have all sections of the confederation
fully represented, and the practice has ever since been to
maintain the proportion from the maritime provinces, Ontario
and Quebec. In 1889 the exceptional position of the north-
west was for the first time considered by appointing the ex-
lieutenant-governor of the territories to the office of minister of
the interior, who has special charge of the affairs of that wide
region. It has been sometimes urged that it would have been
wise had it been possible in 1867 to follow the English prac-
tice and appoint a certain number of political under-secretaries
with seats in the lower house. In this way the necessity for
so large a cabinet might have been obviated, and an opportu-
nity given to train men for a higher position in the councils of
the country. A step was taken in this direction in 1887 but
the law so far has remained a dead letter on the statute book.^
As the members of a cabinet only occupy office while they
retain the confidence of the lower house, the majority necessa-
rily sit in that body, though there is always a certain repre-
sentation (two at the present time) in the upper branch. Since
the commons hold the purse strings, and directly represent the
people, all the most important departments, especially of
finance and revenue, must necessarily be represented in that

interior. He acted also for Mr. Pope, minister of railways, while suffering
from illness ending in death during the past session of parliament.
^Remarks of Sir John Macdonald, Can. Hansard, 1887, pp. 862, 863.

545] Federal Government in Canada. 89

branch. The ministry, then, is practically a committee of the
two houses. Its head is known as the premier or prime min-
ister, who, as the leader of a political party, and from his
commanding influence and ability, is in a position to lead the
house of commons and control the government of the country.
His title, however, is one unknown to the law, though bor-
rowed from the English political system. It originates from
the fact that he is first called upon by the sovereign (or in
Canada by her representative) to form a ministry. The
moment he is entrusted with this high responsibility it is for
him to choose such members of his party as are likely to
bring strength to the govern ment as a political body, and
capacity to the administration of public affairs. The gover-
nor-general on his recommendation appoints these men to the
ministry and the occasions that can arise when he may see
reasons for objecting to a particular nominee are so exceptional
— indeed we have no case in our recent history — that we may
practically consider the choice of colleagues by the premier as
final and conclusive. As a rule, on all matters of public
policy the communications between the cabinet and governor
take place through the premier, its official head. If he dies
or resigns the cabinet is ex-officio dissolved, and the ministers
can only hold office until a new premier is called to the public
councils by the representative of the crown. It is for the new
premier then to ask them to remain in office, or to accept their
resignation. In case a government is defeated in parliament,
the premier must either resign or else convince the governor-
general that he is entitled to a dissolution on tlie ground that
the vote of censure does not represent the sentiment of the
country. This is one of the occasions when the governor-gen-
eral is called u|)on to exercise an important prerogative of the
crown in circumstances of great delicacy ; but fortunately for
him the principles that have been laid down in the course of
many years in the working of the British system in England
and her dependencies can hardly fail to enable him, after a
full consideration of all the circumstances of the case before
7

90 Federal Government in Canada, [546

him, to come to a conclusion that will satisfactorily meet tlie
exigency. If the circumstances are such as to justify a disso-
lution of parliament the premier must lose no time in obtain-
ing an expression of public opinion ; and should it be
apparently in his favor he must call parliament together with
as little delay as possible ; or if, on the other hand, the public
sentiment should be unequivocally against him he should
resign ; for this course has been followed in recent times both
in England and Canada. Strictly speaking, parliament alone
should decide the fate of the ministry, but the course in ques-
tion is obviously becoming one of the conventional rules of the
constitution likely to be followed whenever there is a decided
majority against an administration at the polls.

From what precedes it will therefore be seen that while
there is a constitutional separation between the executive and
legislative authorities, still it may be said that, in Canada as in
England, parliament governs through an executive dependent
on it. The queen is at once the head of the executive autho-
rity and the first branch of the legislative department. The
responsible part of the executive authority has a place in the
legislative department. It is a committee of the legislature,
nominally appointed by the queen^s representative, but really
owing its position as a government to the majority of the leg-
islative authority. This executive dependence on the legis-
lature is an invaluable, in fact the fundamental principle of
parliamentary government. This council thereby becomes
responsible at once to crown and parliament for all questions
of public policy and of public administration. In a country
like ours legislation is the originating force and the represent-
atives of the people are the proper ultimate authority in all
matters of government. The importance then of having the
executive authority represented in parliament and immediately
amenable to it is obvious. Parliament is in a position to con-
trol the administration of the executive authority by having
in its midst men who can explain and defend every act that
may be questioned, who can lead the house in all important

547] Federal Government in Canada. 91

matters of legislation/ and who can be censured or forced from
oflBce when they do wrong or show themselves incapable of
conducting public affairs. By means of this check on the
executive, efficiency of government and guarantees for the
public welfare are secured beyond question. The people are
able, through their representatives, to bring their views and
opinions to bear on the executive immediately. Every branch
of the public service may be closely examined, every question-
able transaction sifted, and every information obtained, by the
methods of parliamentary inquiry, as ministers are present to
answer every question respecting the administration of their
departments and to justify and defend their public policy.
The value of this British system of parliamentary government
can be best understood by comparing it with the American
system which so completely separates the executive from the
legislature. In the United States the President is irremova-
ble, except in case of a successful impeachment, for four years,
and he appoints his cabinet, who are simply heads of depart-
ments responsible to no one except himself. This cabinet may
be well compared in one respect to the cabinet councils of the
Stuarts, since like them its existence does not depend on the
confidence or support of the legislature. Its members have no
seats in either the senate or house of representatives and are
in no way responsible for, or exert any direct influence on
public l^slation. A thoughtful American writer * comparing
the two systems, shows very clearly how inferior in many
respects it is to that of England or of Canada : — " It is this

*"It is therefore the executive goTemment which uhould be credited
with the authorship of Englinh legiBlation. We have thus an extraordi-
nary result. The nation whose constitutional practice suggested to Mon-
tesquieu his memorable maxim concerning the executive, l^islative and
judicial powero, has in the course of a oenturj falsified it. The formal
executive is the true source of legislation ; the formal l^islature is incee-
santly concerned with executive government." Sir II. Maine, Essaj on
the Constitution of the United Sutes, Quarterly Review, No. SIS.

'Congressional govenunent. By Woodrow Wilson.

92 Federal Government in Oanada, [548

constant possibility of party diversity between the executive
and congress which so much complicates our system of gov-
ernment. Party government can exist only when the abso-
lute control of administration, the appointment of its officers
as well as the direction of its means and policy, is given
immediately into the hands of that branch of government
whose power is paramount — the representative body. . . .
At the same time it is quite evident that the means which
congress has of controlling the departments and of exercising
any searching oversight at which it aims arc limited and
defective. Its intercourse with the president is restricted to
the executive messages, and its intercourse with the depart-
ments has no easier channels than private consultations between
executive officers and the committees, informal interviews of
the ministers with individual members of the congress, and
the written correspondence which the cabinet officers from
time to time address to the presiding officers of the two
houses at stated intervals or in response to formal resolutions
of inquiry. Congress stands almost helpless outside of the
departments." ^

^Professor Bryce (The American Commonwealth, I., p. 304) expresses
the same opinion after a thorough study of the imperfections and weak-
nesses of the American system : "In their efforts to establish a balance of
power, the framers of the constitution so far succeeded that neither power
has subjected the other. But they underrated the inconveniences which
arise from the disjunction of the two chief organs of government. They re-
lieved the administration from a duty which European ministers find exhaus-
ting and hard to reconcile with the proper performance of administrative
work, — the duty of giving attendance in the legislature and taking the lead
in its debates. They secured continuity of executive policy for four years
at least, instead of leaving government at the mercy of fluctuating majori-
ties in an excitable assembly. But they so narrowed the sphere of the
executive as to prevent it from leading the country, or even its own party
in the country. They sought to make members of congress independent,
Dut in so doing they deprived them of some of the means which European
legislatures enjoy of learning how to administer, of learning even how to
legislate on administrative topics. They condemned them to be architects
without science, critics without experience, censors without responsibility."
See also De Tocqueville, I., p. 124.

549] Federal Government in Canada, 9^

I have so far briefly explained some of the constitutional
duties and responsibilities that rest upon the head of the exec-
utive and his advisers, and must now proceed to review the
nature of the functions of the senate and house of commons,
who, with the queen, constitute the parliament of Canada.^

LEGISLATIVE POWER.

^ B. N. A. Act, 1867, sec 17. There shall be one parliament for Canada,
consisting of the queen, an upper house styled the senate, and the house of
commons.

18. The privileges, immunities and jwwers to be hehi, enjoyed and exer-
cised by the senate and by the house of commons and by the members
thereof respectively, shall be such as are from time to time defined by act
of the parliament of Canada, but so that any act of the parliament of C.anada
defining such privil^es, immunities and powers shall not confer any privi-
leges, immunities or powers exceeding those at the passing of such act, held,
enjoyed and exercised by the commons house of parliament of the United
Kingdom of Great Britain and Ireland and by the members thereof.

19. The parliament of Canada shall be called together not later than six
months after the union.

20. There shall be a session of the parliament of Canada once at least in
every year, so that twelve months shall not intervene between the last sit-
ting of the parliament in one session and its first sitting in the next session.

The SenaU.

21. The senate shall, subject to the provisions of this act, consist of sev-
enty-two members, who shall be styled senators.

22. In relation to the constitution of the senate, Canada shall be deemed
to consist of three divisions —

1 . Ontario ;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Brunswick; which
three divisions shall (subject to the provisions of this act) be equally rep-
resented in the senate as follows : Ontario by twenty-four senators ; Quebec
by twenty-four senators; and the Maritime Provinces by twenty-four sena-
tors—twelve thereof representing Nova Sootia, and twelve thereof repre-
senting New Brunswick.

In the case of Qaebec each of the twenty-four senators representing that
province shall be appointed for one of twenty-four electoral diyisions of
Lower Canada specified in schedule A to chapter one of consolidated stat-
Qtes of Canada.

23. The qualifications of a senator shall be as follows —
(1.) He shall be of the full age of thirty yearn

94 Federal Government in Canada, [650

In all countries possessing a parliamentary system, and espe-
cially in those which have copied their institutions from the
British model, an upper chamber has been generally considered
a necessary part of the legislative machinery. In the United
States the necessity of having sucli a check upon the acts of
the body directly representing the people, was recognized from
the outset in the constitution of the congress and of every
state legislature. Two houses always formed part of the pro-
vincial legislatures of British North America from 1791 until
1867, when Ontario, whose example has been followed by
other provinces of the confederation, decided to confine her
legislature to an elected assembly and the lieutenant-governor.

J

(2.) He shall be either a natural-born subject of the queen, or a subject
of the queen, naturalized by an act of the parliament of Great Bri-
tain, or of the parliament of the United Kingdom of Great Britain
and Ireland, or of the legislature of one of the provinces of Upper
Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick,
before the union or of the parliament of Canada after the union,

(3.) He shall be legally or equitably seized as of freehold for his own use
and benefit of lands or tenements held in free and common socage,
or seized or possessed for his own use and benefit of lands or tene-
ments held in franc-alleu or in roture, within the province for which
he is appointed, of the value of four thousand dollars, over and above
all rents, dues, debts, charges, mortgages and incumbrances due or
payable out of, or charged on or affecting the same ;

(4.) His real and personal property shall be together worth four thousand
dollars over his debts and liabilities ;

(5.) He shall be resident in the province for which he is appointed ;

(6.) In the case of Quebec, he shall have his real property qualification
in the electoral division for which he is appointed, or shall be resi-
dent in that division.

24. The governor-general shall from time to time, in the queen's name,
by instrument under the great seal of Canada, summon qualified persons to
the senate ; and, subject to the provisions of this act, every person so sum-
moned shall become and be a member of the senate and a senator.

25. Such persons shall be first summoned to the senate as the queen by
warrant under her majesty's royal sign manual thinks fit to approve, and
their names shall be inserted in the queen's proclamation of union.

26. If at any time, on the recommendation of the governor-general, the
queen- thinks fit to direct that three or six members be added to the senate,
the governor-general may, by summons to three or six qualified persons (as

551] Federal Government in Canada, 96

The upper house of the Canadiau parliament bears a name
which goes back to the days of ancient Rome, and also invites
i-omparison with the distinguished body which forms so im-
portant a part of the American congress ; but neither in its
constitution nor in its influence does it bear any analogy with
those great assemblies. An eminent authority on such ques-
tions, the late Sir Henry Maine, has very truly observed that
on close inspection the senates of the ancient world will be
found to answer very slightly to the conception of second
chambers of a legislature, but that the first real anticipation
of a second chamber, armed with a veto on the proposals of a
separate authority, and representing a different interest, occurs

the case may be), representing equally the three divisions of Canada, add
to the senate accordingly.

27. In case of such addition being at any time made, the governor-gen-
eral shall not summon any person to the senate, except on a further like
direction by the queen on the like recommendation, until each of the three
divisions of Canada is represented by twenty -four senators, and no more.

28. The number of senators shall not at any time exceed seventy-eight.

29. A senator 8hall, subject to the provision of this act, hold his place in
the senate for life.

30. A senator may, by writing under his hand, addressed to the gov-
emor-generai, resign his place in the senate, and thereupon the same shall
be vacant.

31. The place of a senator shall become vacant in any of the following
1868 : —

(1.) If for two consecutive sessions of the parliament he fails to give his
attendance in the senate :

(2.) If he takes an oath or makes a declaration or acknowledgment of
allegiance, obedience or adherence to a foreign power, or does an act
whereby he becomes a subject or citizen, or entitled to the rights or
privileges of a subject or citizen of a foreign power :

(3.) If he is adjudged bankrupt or insolvent, or applies for the beoetii of
any law relating to insolvent debtors, or becomes a public defkalter:

(4.) If he is attainted of treason, or convicted of felony or of any infii-
mou8 crime :

(5.) If he ceases to be qualified in respect of property or of residence:
provided that a senator shall not be deemed to have ceased to be
qualified in respect of residence by reason only of his redding at the
seat of the goyemment of Canada while holding an ofllce under that
Government reqoiiing his pretence there.

96 Federal Govei'nmeiU in Canada. [552

in that much misunderstood institutiou, the E,oman tribunate.^
Nor does the Canadian senate compare in legislative authority
with the American body of that name. The first is nominated
by the crown for life and has limited powers even of legislation,
since it cannot initiate or even amend money or revenue bills ;
the other, which is elected by the state legislatures for a limited

32. When a vacancy happens in the senate, by resignation, death or
otherwise, the governor-general shall, by summons to a fit and qualified
person, fill the vacancy.

33. If any question arises respecting the qualification of a senator or a
vacancy in the senate, the same shall be heard and determined by the
senate.

34. The governor-general may from time to time, by instrument under
the great seal of Canada, appoint a senator to be speaker of the senate, and
may remove him and appoint another in his stead.

35. Until the parliament of Canada otherwise provides, the presence of
at least fifteen senators, including the speaker, shall be necessary to consti-
tute a meeting of the senate for the exercise of its powers.

36. Questions arising in the senate shall be decided by a majority of
voices, and the speaker shall in all cases have a vote, and when the voices
are equal the decision shall be deemed to be in the negative.

147. In case of the admission of Newfoundland and Prince Edward
Island, or either of them, each shall be entitled to a representation, in the
senate of Canada, of four members, and (notwithstanding anything in this
act) in case of the admission of Newfoundland, the normal number of sen-
ators shall be seventy-six and their maximum number shall be eighty -two ;
but Prince Edward Island, when admitted, shall be deemed to be com-
prised in the third of the three divisions into which Canada is, in relation
to the constitution of the senate, divided by this act, and accordingly, after
the admission of Prince Edward Island, whether Newfoundland is admitted
or not, the representation of Nova Scotia and New Brunswick in the senate
shall, as vacancies occur, be reduced from twelve to ten members respec-
tively, and the representation of each of those provinces shall not be in-
creased at any time beyond ten, except under the provisions of this act, for
the appointment of three or six additional senators under the direction of
the queen.

^ " The Constitution of the United States," Quarterly Review, No. 313.
Mr. Goldwin Smith has said on this point : " The illustrious council from
which the name of Senate is derived was not an upper house, but the gov-
ernment of the Roman Republic, having the executive practically under its
control and the initiative of legislation in its hands." See Doutre's Consti-
tution of Canada, p. 66.

663] Federal Government in Canada, 97

term, has a veto on treaties and important appointments to
office, can amend appropriation bills so as to increase money
grants to any amount, and can sit as a court of impeachment.
In one respect, however, the senate of Canada can be com-
pared to the American house ; it is a representative of the
federal, as distinguished from the popular principle of repre-
sentation. The three great divisions of Canada, the Maritime
Provinces, Ontario and Quebec, have been each given an
equal representation of twenty-four members with a view of
affording a special protection to their respective interests — a
protection certainly so far not called into action even in the
most ordinary matters. Since 1867 the entrance of other
provinces and the division of the territories into districts has
brought the number of senators up to seventy-eight in all, but
at no time can the maximum number exceed eighty-four, even
should it be necessary to resort to the constitutional provision
allowing the addition of three or six new members — a position
intended to meet a grave emergency, such as a deadlock in a
political crisis. The senators are appointed under the great
seal of Canada by the governor-general on the recommendation
of his council, and must be of the full age of thirty years, and
have real and personal property worth four thousand dollars
over and above their liabilities. The experience that Canada
had of the working of an elective legislative council since
1854 was considered in the convention of 1864 to be such as
to justify the delegates in preferring a nominated body.
The great expense entailed by an electoral contest in the large
districts into which the province was divided was one feature
which was strongly pointed out at the conference.* It was
not deemed advisable to have two bodies elected by the people,
since the danger of legislative conflict was rendered more
imminent. While the experience of Victoria in Australia
certainly seems to support this opinion, the history of the
American congress might be considered to support an argo-

* See zeiiuurki of Hon. Q«oif« Blown in Confederation Debates, p. 89.

98 Federal Government in Canada, [554

ment the other way. The object of the framers of the consti-
tution has been, in this as in other cases, to follow the model
of the British parliamentary system as far as oilr circumstances
will permit. Hence the house of commons can alone initiate
revenue or money bills, and the senate is confined by usage to
a mere rejection of such measures — a rejection justified only by
extraordinary circumstances. In every respect it shows the
weakness of an upper house under the British system and none
of the prestige that attaches to an ancient body of hereditary
legislators and of judicial powers as a court of appellate juris-
diction like the house of lords. The senate, imitating the
lords, tries divorce cases ; ^ but this is a matter of convenience to
which the commons agrees without objection, since under the
constitution the upper house has no special privileges in this
respect. It is expressly set forth in the British North
America Act that the powers and privileges and immunities of
the senate and house of commons cannot at any time exceed
those of the English commons. As a body of legislators the
senate can compare favorably with any assembly in Canada or
other dependencies of England. It has within its ranks men
of fine ability and large experience in commerce, finance and
law ; and its weakness seems inherent in the nature of its con-
stitution. The system of the nomination by the crown —
practically by the government of the day — tends to fill it with
men drawn from one political party whenever a particular
ministry has been long in office and fails to give it that pecu-
liarly representative character which would enlarge its useful-
ness as a branch of the legislature and give it more influence
in the country. It is a question worth considering whether
the adoption of such changes as would make it partly nomina-
tive and partly elective would not give it greater weight in

* In Nova Scotia, New Brunswick, Prince Edward Island and Britiih.
Ck)lumbia the courts of law continue to try divorce cases, as before 1867, and
parliament has not interfered with those tribunals under the power con-
ferred upon it hj the fundamental law. See GemmiU's Parliamentary
Divorce, c. 4.

555] Federal Government in Canada. 99

public affairs. For instance, if the provincial l^islatures had
the right of electing a fixed number at certain intervals, and
the universities were given the same privilege, the effect would
be, in the opinion of some persons, to make it more representa-
tive of provincial interests, and at the same time add to its
ranks men of high culture and learning.*

But no doubt as long as our parliamentary system is mod-
elled on the English lines, an upper house must more or less
sink into inferiority when placed alongside of a popular
house, which controls the treasury and decides the fate of ad-
ministrations. It is in the commons necessarily that the
majority of the ministers sit and the bulk of legislation is ini-
tiated. In 1888 the two houses passed one hundred and
eleven bills and of these only three public bills and five pri-
vate bills originated in the upper house, and the same condition
of things has existed since 1867, though now and then, as in
1889, there is a spasmodic effort to introduce a few more gov-
ernment bills in the senate. In the session of 1888 twenty-six
commons bills were amended out of the one hundred and three
sent up to the upper house, and the majority of these amend-
ments were verbal and unimportant. Under these circum-
stances it may well be urged that by arrangement between the
two houses, as in the English parliament, a larger number of
private bills should be presented in the senate,* where there is
a considerable number of gentlemen whose experience and
knowledge entitle them to consider banking and financial
questions, and the various subjects involved in legislation.

' In the Pruwian upper house the universitiee are represented and the
towns of a certain number of inhabitants by their mayors. In principle it
is far more of a popular assembly thun the English hounc of lords. See an
interesting article in the Nineteenth Century (vol. XVI., No. 89) on the
federal states of the world.

'As I hare already shown, divorce bills invariablyoriginate in the senate,
which has recently adopte<i an amended set of mien under the able super-
vision of Senator Gowan, and the select committee to which all such bills
are referred is governed by the rules of evidence and other formalities of the
courts AS far as possible.

100 Federal Government in Canada, [556

For reasons already given, government measures must as a
rule be introduced in the commons, but still even in this
respect there might be an extension of the legislative functions
of the upper chamber, and the effort made in 1889 by the gov-
ernment in this direction ought certainly to be continued until
it becomes a practice and not a mere matter of temporary con-
venience. In 1887 there were only ten private bills presented
in the senate out of the seventy that passed the two houses ;
in 1888 the figures were five out of sixty-seven, and the same
state of things was shown in 1889. The majority of
these bills were of a character that could have originated
in the senate with a regard to the public interests and
the expedition and convenience of the business of the two
houses. From time to time the senate makes amendments that
show how thoroughly its members understand and are compe-
tent to consider certain subjects; and the sometimes hasty
legislation of the commons — hasty because that body is too
often overweighted with business — is corrected greatly to the
advantage of the country. This fact alone should lead to a
reform in the direction indicated.

It is in the commons house that political power rests. As I
have already shown, it has both legislative and executive func-
tions, since through a committee of its own it governs the coun-
try. Like its great English prototype it represents the people,
and gives full expression to the opinions of all classes and inter-
ests, to a greater degree indeed than in England itself, since it
is elected on a franchise much more liberal and comprehensive.
At the present time the Canadian house of commons contains
two hundred and fifteen members, or about one member for
every twenty thousand persons. The representation is rear-
ranged every decennial census by act of parliament in accord-
ance with the terms of the constitutional law. The French
Canadian province has a fixed number of sixty-five members
which forms the ratio of representation on which ^ a decennial

' At the last census the population of Canada was given as 4,382,810 per-
sons ; it is now about 5,000,000.

557]. Federal Government in Ganada. 101

readjustment is based. Each of the other provinces is assigned
such a number as will leave the same proportion to the num-
ber of its population as the number sixty-five bears to the
population of Quel)ec when ascertained by a census.* The
great province of Ontario, with two millions of people, is now
represented by ninety-two members, or fifty-eight more mem-
bers than the state of New York, with over five millions of
souls, has in the house of representatives.* Quebec has, as just

» B. N. A. Act, 1867.

{The House of Oomnuma.)

* Sec. 37. The house of commons shall, subject to the provisions of this
act, consist of one hundred and eighty-one members, of whom eighty-two
shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Sootia
and fifteen for Kew Brunswick.

38. The governor-general shall from time to time, in the queen's name,
by instrument under the great seal of Canada, summon and call together
the house of commons.

39. A senator shall not be capable of being elected or of sitting or voting
as a member of the house of commons.

(Sections 40-43 refer to electoral divisions and make temporary provi-
sions for elections. )

44. The house of commons, on its first assembling after a general election,
shall proceed with all practicable speed to elect one of its members to be
speaker.

46. In case of a vacancy happening in the office of speaker, by death,
resignation or otherwise, the house of commons shall, with all practicable
speed, proceed to elect another of its members to be speaker.

46. The speaker shall preside at all meetings of the house of commons.

47. Until the parliament of Canaila otherwise provides, in case of the
absence, for any reason, of the speaker from the chair of the house of com-
mons for a period of forty-eight consecutive hours, the house may elect
another of its members to act as speaker, and the member so elected shall,
daring the continuance of such absence of the speaker, have and execute all
the powers, privileges and duties of speaker.

48. The presence of at least twenty members of the house of commons
shall be necessary to constitute a meeting of the house for the exercise
of its powers ; and for that purpose the speaker shall be reckoned as a
member.

49. Questions arising in the house of oommons shall be decided by a
minority of the voices other than that of the speaker, and when the voioes
are equal, but not otherwise, the speaker shall have a vote.

102 Federal Government in Canada. . [558

stated, sixty-five; the maritime provinces, forty-three; and the
remaining members are distributed in Manitoba, British
Columbia and the territories. Previous to 1885 the franchise
for the several provincial legislatures was the franchise for the
house of commons ; but in that year an electoral franchise act
was passed by parliament for the whole dominion. It was
contended, after the most protracted debate that has taken
place for years in Canada on any one question, that this radical
change was not justified by any public necessity, and was sim-
ply entailing an enormous expense on the treasury without
returning any corresponding advantage to the country. It
may be argued with truth that generally in a federal system it

50. Every house of commons shall continue for five years from the day of
the return of the writs for choosing the house (subject to be sooner dissolved
by the governor-general), and no longer.

51. On the completion of the census in the year one thousand eight hun-
dred and seventy-one and of each subsequent decennial census, the repre-
sentation oftlie four provinces shall be readjusted by such authority, in such
a manner, and from such time as the parliament of Canada from time to
time provides, subject and according to the following rules : —

(1.) Quebec shall have the fixed number of sixty-five members:

(2.) There shall be assigned to each of the other provinces such a number
of members as will bear the same proportion to the number of its
population (ascertained at such census) as the number sixty -five
bears to the number of the population of Quebec (so ascertained) :

(3.) In the computation of the number of members for a province a frac-
tional part not exceeding one-half of the whole number requisite for
entitling the province to a member shall be disregarded ; but a frac-
tional part exceeding one-half of that number shall be equivalent to
the whole number :

(4.) On any such readjustment the number of members for a province
shall not be reduced unless the proportion which the number of the
population of the province bore to the number of the aggregate pop-
ulation of Canada at the then last preceding readjustment of the
number of members for the province is ascertained at the then latest
census to be diminished by one-twentieth part or upwards :

(5.) Such readjustment shall not take efiect until the termination of the
then existing parliament.

52. The number of members of the house of commons may be from time
to time increased by the parliament of Canada, provided the proportionate
representation of the provinces prescribed by this act is not thereby disturbed.

559] Federal Crovemment in Canada, 103

is desirable to use whenever practicable all the institutions of
the local government in order to bring the centre and its
members into as perfect harmony as jx)ssible with one another.
This is the practice in the United States, where congress is
elected on the franchises of the several states — a system which
has been found in every way satisfactory. However, these
and other arguments against the change were considered by the
majority in parliament as insufficient compared with the belief
that they entertained that it was expedient to have the do-
minion parliament perfectly independent of provincial control.
The franchise, though somewhat complicated in its details, is
so broad as practically to be on the very border of universal
suffrage. Every intelligent, industrious man, who is a British
subject by birth or naturalization and not a convict or insane
or otherwise disqualified by law, is now in a position to qualify
himself to vote for a member for the commons; even the
Indians in the old provinces can also avail themselves of the
same privilege if they come within the liberal conditions of
the act. Members of the house, as well as of the senate,
receive a sessional indemnity of $1,000 in case the session
extends beyond thirty days, and an allowance of ten cents a
mile for travelling expenses.* No property qualification is now
demanded from a member of the commons nor is he limited to
a residence in the district for which he is elected, as is the case
in the United States by law or usage ; and should he not be
able to obtain a seat in the locality or even in the province
where he lives he can be returned for any constituency in the
dominion. This is the British principle which tends to elevate
the representation in the commons ; for while as a rule mem-
bers are generally elected for their own district, yet occasions
may arise when the country would for some time lose the

' In the oolonj of Victorim, AnstnlU, where saUries are much higher
than in Oeneda, members of the aaembly reoeiTe $1,600 a iemoD, and after
aeyen yuan* serrice pasMe over railwajs.

104 Federal Government in Canada. [560

services of its most distinguished statesmen/ should the Amer-
ican rule prevail. The senators in Quebec, in view of the
exceptional position of that province, must reside in their own
divisions or have their property qualification therein ; but
while the constitutional law requires that in the case of the other
provinces senators must reside within the provincial limits, yet
there is no legal necessity that they should live in a particular
county or district. In a country like this, with many legislative
bodies, demanding the highest capacity, it would be unfortu-
nate were there such limitations in existence as it is admitted
tend in the United States to prevent the employment of the
highest talent in the public service.^

The house of commons may be regarded as fairly represen-
tative of all classes and interests. The bar predominates, as is
generally the case in the legislatures of this continent ; but the
medical profession, journalism, mercantile and agricultural pur-
j suits contribute their quota. It is an interesting fact that a
I large proportion of members have been educated in the uni-
versities and colleges of the provinces, and this is especially
true of the representatives from French Canada where there
are a number of seminaries or colleges which very much
resemble the collegiate institutes of Ontario, or the high
schools of the United States, where a superior education, only
inferior to that of the universities, is given to the youth of the
country. Another matter worthy of mention is the fact that
a good proportion of the house has served an apprenticeship in
the municipal institutions of Ontario — not a few of the leading
men having been wardens, reeves, or mayors.

Of the sixty-five representatives from Quebec, there are
fourteen English-speaking members, chiefly from the cities
and the eastern townships where a British population is still in

^ For instance, the present premier (Sir John Maodonald) when he lost
his seat in Kingston, Ontario, in 1878, was immediately returned for a con-
stituency in Manitoba, and subsequently for a seat in British Columbia.

* See Professor Bryce's comments on this point in the American Com-
monwealth, I,, p. 258.

561] Federal Government in Canada, 106

the majority. In Ontario, moreover, two of the constituen-
cies on the border line return two members to represent the
French population that is now living in those districts. To
this number we must add another representative from the
largely French half-breed constituency of Provencher in
Manitoba.

As a matter of fact, the house of commons comprises many
of the ablest men of the country trained in law and poli-
tics. In this resj>ect it must be compared rather with the
senate than with the house of representatives at Washington.
Rich merchants and bankers do not as a rule seek seats on its
l>enches, but still all classes of business find their representa-
tives within its walls. The man who can win success and
influence in the house has many objects of ambition to rewartl
him, though he must necessarily sacrifice the many opportuni-
ties for acquiring large wealth that offer themselves to those
who keep aloof from active politics. The executive has many
prizes in it« gift in the shape of lieutenant-governorships,
judgeships, collectorships, postmasterships, and many places in
the public service which do not fall within the provisions of
the civil service act. Thirteen or more positions in the privy
council are in view of an ambitious politician. Then thei-e is
always the senate as a place of dignity when other plans fail of
achievement. The cabinet controls the public expenditures,
and it is all-im|X)rtant to an aspiring politician to have as
much money as possible spent in his constituency. All these
influences help to strengthen the executive under a rigid sys-
tem of party government. Party lines are very closely drawn
in Canada, and the occasions are very rare and exceptional
when men can afford to break loose from the trammels that
bind them to a certain political body or set of opinions. In
these days a strong executive can exercise a powerful control
over its supporters in a legislature, perhaps more so than in
England where there always exists an independent sentiment
which shows itself at important crises in and out of parlia-
ment. The danger now-a-Kiays arises not &om the encroach -
8

106 Federal Government in Canada. [662

ment of the royal prerogative, but from the power of the
responsible executive which, nominally dependent on the
legislature, can, through the influences of party government and
individual ambition, make itself the master for the time being
as long as it has a strong majority in parliament. The
caucus ^ is an instrument that may be and is used to strengthen
a party. The strongest ministry does not pretend to deal
with important questions during a session without seeking the
advice of all its supporters in parliament from time to time.
The caucus is a place for strong speaking at crises of political
excitement, but, with careful management, party considerations,
as a rule, prevail, and occasions seldom arise when it breaks up
without an understanding to support the " party " at all haz-
ards. Dissolution is a weapon which an executive can always
threaten to unsheathe, and recalcitrant followers may prefer
that it should remain as long as possible in the scabbard. It
is better perhaps for the public interest that the government
should be strong than that it should be weak ; for in the
former case it can spare defections, and can afford to be deter-
mined in a political crisis. It is a misfortune, when, as in
France, there are numerous political cliques and sections,
incessantly warring against each other and preventing the
establishment of stable administrations.

The laws enacted for the preservation of the independence
of parliament and the prevention of corrupt practices at elec-
tions, are in principle and details practically those in operation
in the mother country. The former law derives its origin
from the statute of Queen Anne^ which established the valu-
able principle that the acceptance by a member of the house

^ Both government and opposition hold such a caucus when necessary.
We have not yet reached the perfection of the political system of primaries,
conventions and caucuses in the United States ; but conventions are now
generally held in the different electoral districts to nominate candidates for
the legislature, and there is a thorough organization of the two parties pre-
vious to a general election.

'6 Anne, c. 7, sees. 25, 26.

563] Federal Government in Canada. 107

of commons of an office of emolument from the crown, shall
thereby vacate his seat. Members of the house when called
to the government as heads of departments must at once resign
their seats and be reelected, though an exchange of offices can
take place between ministers after their election under the con-
ditions laid down in the law. All officers of the public service
and contractors with the government are forbidden to sit in
parliament — an exception being made, as in England, of officers
in the military service. Since 1874 the house has given up its
jurisdiction over the trial of controverted elections, which pre-
viously had been considered by committees exposed to all the
insidious influences of purely political bodies. The courts in
the several provinces are now the tribunals for the trial of all
such contested elections; and the results have so far in
Canada, as in the parent state, been decidedly in the public
interests. The laws for the prevention of bribery and cor-
ruption are exceedingly strict; and members are constantly
unseated for the most trivial breaches of the law, committed
by their agents through ignorance or carelessness. The expenses
of candidates must be published by their legal agents after
the election. The whole intent of the law is to make elec-
tions as economical as possible, and diminish corruption. A
candidate may be disqualified from sitting in the commons,
or voting, or holding any office in the gift of the crown for
seven years, when he is proved personally guilty of bribery,
and the voters in a constituency may be also severely punished
by fine and imprisonment when corruption is proved against
them. Yet while these grievous offences against an honest
expression of public opinion are prosecuted and punished so
severely, it would be too much to say that all elections are
run any more in Canada than in England without a heavy
drain at times on the purse of a rich candidate or on the con-
tributions of a political party. It is safe to say, however,
that our system is a vast improvement on that of the United
States, and purity of elections is largely promoted compared
with the state of things in old times.

108 Federal Government in Canada, [564

The methods of business which the houses follow are well
calculated to promote the efficiency of legislation and secure
the satisfactory administration of public affairs. Their rules
and usages are, in all essential particulars, derived from those
of the English parliament, and there has been no attempt
made to adopt the special rules and practice of congress in
any respect. On the day parliament has been summoned by
the crown to meet, the governor-general, either in person or
by deputy, proceeds to the upper chamber and there seated on
the throne, surrounded by a brilliant staff and the high officers
of state, reads in the two languages the speech, in which his
government sets forth the principal measures which they pur-
pose to present during the session. This speech, which is a
very concise and short document compared with the elaborate
message of the president, is considered as soon as possible in
the two houses and generally passes without opposition or
amendment, since it is the modern practice to frame it in
terms that will not evoke political antagonism, though of
course occasions may arise when a different course will be
pursued in order to test the opinion of the house on a par-
ticular policy of the administration. As soon as the formal
answer to the address has been passed, the houses proceed to
appoint the committees, and commence the regular business
of the session. The proceedings commence every day with
prayers, taken from the church of England liturgy, and are
read by the speaker, alternately in English and French, in
the commons, and by a paid chaplain in the senate. The
rules of the two houses do not vary much with respect to the
conduct of business, but more latitude is generally given to
members in asking questions and in other proceedings in the
senate than in the commons, where there is greater necessity
for economizing time. As it is in the popular house that
nearly all the business of importance is transacted I shall
confine myself to such a brief review of its rules and proceed-
ings as may be interesting and useful to a student of our
legislative system.

565] Federal Government in Canada, 100

While the committees are an important part of the legisla-
tive machinery of the Canadian parliament, still they do not
occupy the place they have reached in congressional govern-
ment. They are few in number, only ten, exclusive of some
small committees generally appointed to consider special ques-
tions in the course of a session. The important bodies are
these : The committee of public accounts, in which financial
inquiries are made, and particular expenditures of the gov-
ernment reviewed whenever explanation or investigation is
deemed to be necessary ; the committee of agriculture and
colonization, in which matters affecting those subjects are
fully considered ; the committee of privileges and elections,
which explains itself; and four committees to which all pri-
vate bills respecting banking and commerce, navigation and
shipping, railways and canals, telephone and telegraph lines,
bridges, insurance and the incorporation of companies for
other purposes, are referred for full consideration. There are
also two committees on which members from the two houses
sit to consider the printing of documents and the library,
which are matters of common interest and management. The
committees vary in number from twenty-six to one hundred
and sixty members. The most numerous is the railway com-
mittee which has one hundred and sixty-four members ; agri-
culture and colonization, one hundred and eight; banking
and commerce, one hundred and four; miscellaneous private
bills, seventy-five. They resemble, therefore, in this res|>ect
the grand committees of the English house of commons rather
than the small Ixxlies into which congress is divided — by the
speaker in the house of representatives and by ballot in the
senate.' Canadian committees arc appointed by a oommittce
of selection on which the government has of coarse a majority;
and both sides of the house are fully represented. The speaker

* In the house of representatives there were in 1884 fifty-four sUnding
committees; in the senate fortj-ooe. Sixteen is the highest number on
a committee in the former, eleven in the latter hooie.

110 Federal Government in Canada. [566

has no concern whatever in this important matter and acts
only as the presiding officer of the assembly, bound to main-
tain the rules and usages of parliament and to exercise the
functions of his high office irrespective of all political con-
siderations whatsoever. He is elected by the majority at the
opening of a new parliament and holds his office until it is
dissolved or he resigns. His functions are those of the
speaker in the English commons, and in no way does he per-
form the political duties of the speaker of the house of repre-
sentatives, who is now practically the legislative chief of the
party.*

All bills must go through several stages in both houses
before they can receive the assent of the governor-general and
become law. The second reading is the stage when the prin-
ciple of the measure should be properly considered, and it is
only in committee of the whole that its clauses can be regu-
larly discussed. All bills are considered in committee of the
whole ; but private bills are first sifted in one of the standing
committees just mentioned, and if reported favorably they
come again before the house for further examination. I may
as well explain here the distinction between the two classes of
bills. All measures involving questions of public interest —
the criminal law, customs, post office, militia and other matters
within the general powers of parliament — are styled public
bills. These bills are generally brought in directly on motion
by the member in charge, or on a resolution in committee of
the whole whenever a public burden is imposed, on the prin-
ciple that the house should have as long a time as possible to
consider matters of revenue and expenditure. As the govern-
ment is practically responsible for all important measures of
public policy, the great bulk of public legislation is prepared
and presented by them ; but it is competent for any one to
introduce any bill he wishes, provided it does not impose
taxes or appropriate public moneys, which are questions con-

^ Congressional Grovernment, by Woodrow Wilson, p. 108.

667] Federal Government in Canada, 111

stitutionally within the purview of the executive alone. The
order of business, laid daily on the desk of every member, ia
divided into government orders, public bills aud orders, and
private bills, besides questions put to the government, and
notices of motions, all of which are taken up on particular
days in accordance with the rules of the house. If a member
has a bill of importance on the paper, the government will
give him every assistance in passing it before the bouse is pro-
rogued and even will take charge of it themselves should it
be expedient. Certain days are set apart for the government
business and for private members ; but near the close of the'
session the administration control all the time, since theirs is
the all-important legislation. The private bills, which always
outnumber the public and government measures, are presented
aud passed in conformity with special rules which do not apply
to the other classes. Any persons who desire the incorjwration
of a banking, insurance, railway, or other comi)any, or to con-
struct a bridge, wharf or other work, must give notice in cer-
tain journals of their intention, and then come before parlia-
ment by petition. This petition must be immediately considered
by a standing committee to see if it is in accordance with the
published notice aud the standing orders of the house ; and
then, if the report is favorable, the bill is presented, read a
second time, and referred to one of the committees to which it
should properly go. Its consideration in that committee is
the most important stage to which it is submitted ; for its
promoters must now show that there is no objection to its pas-
sage, and it is the duty of the committee to see that it inflicts
no injury and is in conformity with the public interests. If
there is opposition to the bill, full opportunity is given by
the rules to the contestants to appear and set forth their case.
The house, through committees of this sort, acts in a qnum
judicial capacity. Members of the government sit on such
committees and pay particular attention to all the details of
legislation of this class. It will consequently be seen that the
administratioo becomes practically responaible for the oharac-

112 Federal Government in Canada. [568

ter of all the legislation that passes parliament. The average
number of measures that pass the two houses every session is
one hundred and ten, of which three- fourths at least are of a
private nature. The total number of bills presented as a rule
during the session does not exceed one hundred and thirty,
and it is therefore evident that very few desirable measures
fail to become law. The fact that on the average seven thou-
sand bills are brought every year into congress, of which not
more than one thirtieth^ ever becomes law, stands out in strik-
ing contrast with the limited amount of legislation in the
Canadian parliament. In both countries there are legislatures
to relieve the central authority of a great number of bills which
otherwise would come before it. The difference between
Canada and the United States with respect to population and
wealth does not by any means explain this difference in point
of legislation. In all probability the reason must be sought
in the fact that in the Canadian, as in the British parliament,
there is an administration which is immediately responsible
fur all important matters of public policy, and always bound
to give a vigilant scrutiny to every measure that comes before
the house.

The principal duty of parliament is very truly considered
to be the voting of supply. From early times in English
history the kings were obliged to resort to the nation and ask
them to provide the money necessary to meet their financial
necessities. One of the most famous statutes in England is
that of 1297, which followed the great charter wrung from
John at Eunnymede, and declares that no tallage shall be
taken without the good will and assent of archbishops, bishops,
earls, barons, knights, burgesses, and other freemen of the
land. Since that day, parliament has had the power of taxa-
tion. The three estates originally voted supply separately,
but in the course of time the right of initiating all taxation
and voting money rested with the people's representatives. In

* Professor Bryce in the American Commonwealth, I., 181, 182.

669] Federal Crovemmeni in Canada, 113

Canada, as I have already shown in the second lecture, the
commons houses in the various provinces, from the very com-
mencement of legislative institutions, asserted their claims to
full control over the public grants. Now for many years the
rules and usages that have so long obtaine^l in England with
respect to money votes and taxes prevail in Canada and govern
the relations between the two houses. The crown, with the
advice of the council, recommends all appropriations of public
money.* All measures of taxation can only be introduced by
ministers of the crown and must be shown necessary for the pub-
lic service. Appropriations and taxes are invariably first voted
in committee of the whole in the shape of resolutions which,
when agreed to at a subsequent stage of the house, are incor-
porated into bills. Permanent grants, such as ministers* or
judges* salaries, are passed in this way in ordinary committees
of the whole. All sums of money, however, for the service
of the year, are voted every session in committee of supply,
when the estimates, giving all the votes in detail, are formally
laid before the house by message from the governor-general.
These estimates contain several hundred votes arranged in the
order of the various public services. For instance, — civil
government, militia, penitentiaries, administration of justice,
immigration, Indians, public works, railways and canals, quar-
antine and the numerous other subjects for which parliament
votes annually large sums of the public money. These esti-
mates contain the ex|)enditures for the current and the pre-
vious year in parallel columns, for purposes of comparison,
and it is the duty of the minister responsible for a particular

' B. N. A Act, 1867, sec 68. Bills for appropriating aojr purt of the pub-
lic revenae, or for impoaing any tax or impost, shall originate in the house
of commons.

54. It shall not be lawful for the house of commons to adopt or pan anj
vote, resolution, address, or bill for the appropriation of an/ part of the
public revenue, or of any tax or impost, to any purpose that has not been first
recommended to that house by message of the governor-general in the tee-
sion in which such vote, resolatioD, ■ddrsas, or bill is proposed.

114 Federal Government in Canada, [570

expenditure to give full explanations on the subject when they
are demanded by the house. As every vote is carefully scanned
a very considerable part of the session is occupied by debates
on this important committee, over which a permanent chair-
man, who is also the deputy speaker, presides. When all the
votes are passed in committee, then they are reported to the
house, and a further opportunity given for debate, though
members are permitted to speak only once at this stage. Res-
olutions are next passed in committee of ways and means to
authorize the necessary payments out of the consolidated fund,
and finally the appropriation bill, containing all the votes of
supply in full, is introduced and passed through all its stages.
The committee of supply votes the money, and the committee
of ways and means provides the means of payment. It is in the
latter committee all taxes are imposed for purposes of public
revenue.

When the estimates have been brought in it is the duty of
the finance minister to make his financial statement, or, in
parliamentary phrase, present the " budget." ^ He will on this
occasion review the expenditure of the past, and estimate that
for the following year, give his opinion on the financial situa-
tion and lay before the house a statement of any scheme of tax-
ation that the government may have decided on, or of any
changes that may be deemed necessary in the existing tariif.
One of the most important and interesting debates of the ses-
sion generally takes place after the delivery of this speech.

From the beginning of the session, members ask questions
of the government on every imaginable public topic, and make
formal motions for papers relating to matters of general or
local interest. All such motions and inquiries are made after
two days' notice ; for the rules are very properly framed so as
to prevent surprises, and give the house due information of
the business to come daily before it. But in the Canadian house,

^ P'rom the old French word bougette, a bag. In making this statement, the
minister (ypcTis the money bag of the people, figuratively speaking.

571] Federal Government in Canada. 115

and in the English commons in a more limited sense under
the new r^ulations adopted since " obstruction " showed its
objectionable features, there are certain methods which enable
members to move motions or ask questions without number,
and even without notice in the Canadian commons. It is
always open to a member to bring up an important question
immediately — except, of course, when there is a subject under
consideration — and debate it at. any length on a motion for
the adjournment of the house. Then, as soon as committee of
supply is moved on any day, a member may make a motion
on any question he wishes, unless it refers to the votes to be
discussed in supply. As the rules do not permit any amend-
ment to be made to a motion at such a stage, " the previous
question," in the English parliamentary sense, is practically
in force and it is possible to get a direct vote on an issue, with-
out the evasions that amendments offer on other occasions.
While in the case of all bills and other motions, amendments
must be relevant to the question, members can here bring up
any subject they please. This is a practice which has its his-
torical origin in the fact that in old times, when the English
parliamentary system was developing itself, the people's repre-
sentatives laid down the principle that the king must redress
their grievances before they should grant him the supply he
asked from the nation. Those times have long since passed
away and the people now fully control all taxes and expendi-
tures, but the crown still asks for money through the council,
and the commons grant it in due form. It is no longer neces-
sary to threaten the crown with a refusal of supplies unless the
people's grievances are redressed ; but still they can refuse it
to an unfaithful government should the necessity arise. Asa
matter of fact, should the government be defeatc<l in a aession
before supply is voted, the house would pass only such votes
as are necessary to meet the exigencies of the public service,
and leave the whole question of supply open until the crisis is
over and there is in office a ministry whioii has the con6denoe
of the house and country. The privilege of obtaining an

116 Federal Government in Canada, [572

expression of opinion on any question of interest, and of setting
forth any public grievance is one which is often used in the
Canadian house, though it has never been abused as in Eng-
land. The practice of not giving the government and house
notice of such motions, as in England, is objectionable, and
that is practically admitted by the fact that it is now generally
considered courteous to inform the ministry privately of the
subject before it is formally proposed. It would, however,
be clearly to the public advantage were the rules to require
that the whole house should always have before it the text or
at least the substance of a motion so that it may be discussed
as intelligently as possible.

The houses have never been compelled by obstruction, as in
England, to adopt rules for the closure of a debate, nor do they
limit the length of speeches on any occasion. " The previous
question'' does not cut off a discussion, as in the United States,
but in accordance with the old English practice, only prevents
amendment to a question. The debate continues on the main
question, until a vote is taken and it is decided whether it
shall be put or not. If the house decide that the question be
not put, then the main motion disappears from the order paper
and the debate cannot continue ; but if the house decide that the
question be put, then the debate must cease and the vote be
taken immediately. The debates of the house are conducted,
as a rule, with decorum, and the occasions are relatively few
when the speaker is obliged to call a member to order for the
use of improper language. Many years have passed since a
member has been *' named " and censured by the house for
unparliamentary expressions or conduct. Expulsion or sus-
pension is unknown to these later days of Canadian parlia-
mentary history, though cases of expelling a member just as
unjustifiable as that of Wilkes can be found in the legislative
annals of French Canada and Upper Canada, from 1800 to
1836. Even when party strife runs high and the debate goes
on for weeks, the house shows great power of self-restraint.
On the occasion of the discussion in 1885 of the dominion

573] Federal Government in Canada. 117

electoral franchise bill, to which the opposition took very
strong objection, the house had a sitting which lasted over
fifty hours; but there was no exhibition of ill temper or
])a3sion, and the two contending parties simply made a great
physical effort to tire each other out. The 8|x«che8 on impor-
tant occasions, however, are sometimes unnecessarily long; for
it is not unusual for a member to take up three hours before
he closes. Debates are in such cases prolonged for days and
the house becomes too often the theatre for the utterance of
elaborate essays instead of that incisive discussion which is
best adapted to a deliberative assembly. Sometimes the house
rises to the " height of a great argument " and the debate is
confined closely to the subject, and to a few leading men on
either side. The fact is that in the majority of cases, men
speak to their constituents rather than to the house, through
the medium of the official reports which are very full and give
facilities for members to distribute their speeches ad libitum in
their electoral districts. The house, however, in the ordinary
proceedings and in committee of the whole, and in select com-
mittees, shows a very practical capacity for business, and in
this way affords some compensation for the wordiness that too
often distinguishes its debates. The opportunities for oratori-
cal displays are few, but at times there are speeches worthy of
any legislative assembly in English speaking countries, and
illustrative of the high intellectual standard of some of its
members. Some of the French members s{>eak English with
remarkable accuracy, and it is but rarely now that any other
language is heard in important debates, since the minority feel
themselves compelled to speak so as to be understood by the
great majority of which the house is composed. All the
motions, however, are nwl and all the proceedings printed,
in the two languages, in accordance with the British North
America Act and the rules of the two houses.'

* B. N. A. Act, sec. 188. Either the English or the French language imt
be used bj anj person in the debates of the houses of the parliament of

118 Federal Government in Canada, [574

In case of a division on a question, the motion is formally
put by the speaker, and he calls for the " yeas " and " nays."
If he cannot decide from the voices, and five members call for
the names, those in favor of the question first stand up and
the name of each member is called without reference to alpha-
betical order by the assistant clerk and recorded by the clerk
on a roll before him. Then the same procedure is repeated
in the case of the opposite side, and as soon as the clerk has
counted up and announced the numbers, the speaker declares
the motion carried or negatived as the case may be. The
names are invariably recorded in alphabetical order in the
journals. The whole process is very simple, and takes only
about twenty minutes from the time the members are "called
in " and the vote declared.

In concluding this lecture, I may briefly refer to the position
of that large body of permanent officials generally known as
the civil service of Canada, whose services are so valuable and
indispensable to the good government of the country at large.
Except in some of the smaller provinces — in Nova Scotia, for
instance, until recently — there has been for half a century and
more in Canada, always a general recognition of the important
principle that the public servants should be irremovable except
for sufficient cause, and that they should continue in office with-
out respect to changes of political administrations. In the days
previous to responsible government, this class was appointed
by the governors, but since the days of Lord Metcalfe, the
third governor-general of Canada after the union of 1841,
who attempted in some memorable cases to ignore the advice
of his ministers, judges and all public officials have been inva-

Canada and of the houses of the legislature of Quebec; and both those
languages shall be used in the respective records and journals of those
houses; and either of those languages may be used by any person or in any
pleading or process in or issuing from any court of Canada established
under this act, and in or from all or any of the courts of Quebec.

The acts of the parliament of Canada and of the legislature of Quebec
shall be printed and published in both those languages.

675] Federal Government in Canada, 119

riably appointed on the recommendation of the administration.
There is now a law * providing for examinations for admission
to and promotions in all the important departments of the
public service. It is still a moot question in Canada, as in
England, whether in all cases^-especially in promotions —
success in answering the questions of examiners is invariably
the best test of a candidate's capacity for filling certain public
positions — whether sometimes it does not merely illustrate an
ability to "cram." Experience in an office, in the opinion of
men qualified to speak of such a subject, can most frequently
prove the competency of an individual for the ordinary routine
duties that the majority of public officials have to fill. Betliat
as it may, the educational test has at least the advantage of
keeping out of the public service many undesirable men who,
without some such test, would be pushed into the de|)artments
for mere political reasons. The civil service act has relieved
the government to a very considerable degree of a political
pressure which had seriously interfered with the efficient organ-
ization and working of the departments. Besides the minor
officials appointed in accordance with the provisions of the law,
there are a large number of important offices, like collectors of
customs, postmasters, deputy or permanent heads of depart-
ments, which are still given as rewards for political service.
The moment, however, these men arc appointed and show
themselves capable in the discharge of their duties, they become
the servants of the people at large, and not of a particular
party or administration. Recognizing their obligations in this
respect, the public officials of the dominion generally keep aloof
from parly conflict and intrigue and confine themselves to
the legitimate functions devolving upon them. When they
have attained a certain age, and become incapacitated for |)er-
forming their duties, they are allowed a fair su|X!rannuatioQ

>See Oan. R«t. Sut., c 17 (as amended by 61 V., c. 12), which regulmUs
Uie MUariee paid to deputy ministers and clerks aooording to their grade.

120 Federal Govemmenl in Canada. [576

allowance/ in accordance with the conditions laid down in the
law. In certain political emergencies there may be sometimes
|an inclination to use the superannuation provisions to create a
vacancy to reward a follower of some political party ; but such
cases are natural temptations inseparable from a system of
popular government. On the whole, this superannuation
allowance is an inducement to men to enter and continue in
the public service, and is justified by the experience of the
parent state. So much depends on the efficiency of the per-
manent public service in a country like Canada, where govern-
ments and ministers are constantly changing, that it seems
expedient to ofi^er every possible incentive to the best class of
men to give up the greater ambitions and prizes of life, and
devote their services to the government. Whatever defects
may still exist in the rules and practices that regulate the public
service, it is not too much to say that the permanent officials
of Canada are, in general, an industrious and efficient class, in
every way reflecting credit on our system of government.

* See Can. Rev. Stat., c. 1&

LECTURE IV.

THE PROVINCIAL GOVERNMENTS AND
LEGISLATURES.

The Provinces are so many political entities, enjoying ex-
tensive powers of local government and forming parts of a
Dominion whose government possesses certain national attri-
butes essential to the security, successful working, and per-
manence of the federal union, established by the British North
America Act of 1867, which defines the respective jurisdictions
of the federal oi^nization and its members. These provinces
vary just as do the American States in population and area.
Ontario may be compared to Ohio, and Prince Edward Island
to Rhode Island. British Columbia has the area of an em-
pire, but as yet its whole population is the smallest of all the
provinces. Previous to the confederation, all the provinces,
except Manitoba, which was formed in 1870 out of the North-
west Territories, had a complete organization of government
and legislature. The political history of Ontario and Quebec
has, for convenience sake and on. account of their having
written constitutions since 1774, been briefly reviewed in a
former lecture, and it is, therefore, only necessary to refer
here to that of the smaller provinces. Nova Scotia, New
Brunswick and Prince Edward Island were formerly por-
tions of the French domain in America, but they were form-
ally ceded to England by the treaty of Utrecht in 1714^ and
the treaty of Paris in 1763. There are still in certain dis-
tricts a small population descended from the old Frencli, who
once tilled the fertile lands of Acadie, that ill-defined region,
which comprised not only Nova Sootia and New Brunswick,
9 121

122 Federal Government in Canada. [578

but a considerable part of the State of Maine, according to
the contentions of French statesmen. None of these provinces
were ever given written constitutions by the parliament of
Great Britain, as we have seen was the case with old Canada;
but to all intents and purposes they enjoyed, previous to 1867,
as complete a system of self-government as that large province.
Their constitutions must be sought in the commissions of the
lieutenant-governors, despatches of the colonial secretary of
state, imperial statutes, and various official documents, grant-
ing in the course of time a legislative system and responsible
government.

At the time of the outbreaks in Upper and Lower Canada
in 1837-8, there was still a considerable amount of dissatis-
faction in the Maritime Provinces, arising from the existence
of an irresponsible executive, the constant interference of the
imperial government in colonial matters, and the abuse of
the powers of the representative and executive bodies; but
" if there was in those sections less formidable discontent and
less obstruction to the regular course of government, it was
because in them there was a considerable departure from the
ordinary course of the colonial government, and a nearer
approach to sound constitutional practice." In New Bruns-
wick especially, "the political controversies that had been
extremely bitter between the executive and legislative authori-
ties were, to a great extent, terminated by the concession of
all the revenues to the assembly." ^ In Prince Edward Island
the political situation was aggravated by the fatal mistake,
made at the very commencement of its history, of handing
over all the lands to a few absentee landlords, a burning
question that was not satisfactorily settled until after the
island had become part of the confederation.

At the time of the confederation all the provinces enjoyed
parliamentary government in as complete a sense as Canada
itself, responsible government having been given to Nova

* Lord Durham's Report, pp. 62, 63.

679] Federal Government in Canada, 123

Scotia and New Brunswick in 1848, and to Prince Edward
Island three years later. In each province there was a lieu-
tenant-governor appointed by the crown directly, an executive
responsible to the l^islature, which was composed of two
houses, an assembly elected by the people and a legislative
council appointed by the crown, except in Prince Edward
Island, where then, as now, it was elective.

It was therefore only necessary to enact in the constitotion
that the two provinces of Nova Scotia and New Brunswick
should have the same territorial limits, and \hat their constitu-
tions should remain as at the time of the union, until altered
under the authority of the act. In the case, however, of Canada,
it was necessary to divide it, since one of the principal objects
of the federal union was to get rid of the political difficulties
that had so long complicated government in Canada and sep-
arated French Canada from the western section. Consequently
Canada was dividetl into two separate provinces as before tlie
union of 1841, with the respective names of Quebec and
Ontario, instead of Lower Canada and Upper Canada.* In

* B. N. A. Act, 1867, sec. 5. Canada shall be divided into four provinces,
named Ontario, Quebec, Nova Scotia and New Brunswick.

6. The parts of the province of Canada ( as i t exists at the passing of this act )
which formerly constituted respectively the provinces of Upper Canada and
Lower Canada, shall be deemed to be severed and shall form two separate
provinces. The part which formerly constituted the province of Upper
Canada shall constitute the province of Ontario; and the part which for-
merly c<m8titated the province of Lower Canada shall oonstitate the pro-
vince of Quebec

7. The provinces of Nova Scotia and New Brunswick shall have the same
limits as at the passing of this act

An imperial statute passed since 1867 (B. N. A. Act, 1871) provides:

8. The parliament of Canada may ftt>m time to time, with the consent of
the I^iislature of any province of the said dominion, increase, diminish, or
otherwise alter the liznits of such province, upon such terms and conditions
as may be agreed to by the said legislature, and may, with the like consent,
make provision respecting the effect and operation of any soch increase or
diminution, or alteration of territory in relation to any province aflected
thereby.

124 Federal Government in Canada, [580

view of this division, it became necjessary to make special pro-
visions for Ontario and Quebec in accordance with an address
adopted in the Canadian legislature. The representatives of
Upper Canada wished to have only one house, a legislative
assembly, while those of Lower Canada preferred the more
British and indeed the more American system of two houses.
It has been urged by an eminent judge that the British North
America Act carried out confederation " by first consolidating
the four original provinces into one body politic, the Dominion,
and then redistributing this Dominion into four provinces."*
In other words the provinces were newly created by the act of
union. But by no reasoning from the structure of the act,
can this contention, which makes the provinces the mere crea-
tions of the statutes, and practically leaves them only such
powers as are specially stated in the act, be justified. If it
was so, there must have been for an instant a legislative union
and a wiping out of all old powers and functions of the pro-
vincial organizations and then a redivision into four provinces
with only such powers as are directly provided in the act.

The weight of authority now clearly rests with those who
have always contended that in entering into the federal com-
pact the provinces never intended to renounce their distinct
and separate existence as provinces, when they became part
of the confederation. This separate existence was expressly
reserved for all that concerns their internal government ; and
in forming themselves into a federal association under political
and legislative aspects, they formed a central government for
inter-provincial objects only. Far from the federal authority
having created the provincial powers, it is from these provin-
cial powers that there has arisen the federal government to
which the provinces ceded a portion of their rights, property
and revenues.^

* Mr. Justice Strong, St. Catharine's Milling Company V8. The Queen.
Sup. Court R., Vol. 13, p. 605.

• An eminent constitutional lawyer, Hon. Edward Blake, has taken issue
with the learned judge in the course of an exceedingly able argument he

581] Federal Government in Ganada. 126

The constitutions of the four provinces, which coni)K>sed the
dominion in 1867, are the same in principle and in details,
except in the case of Ontario, where there is, as I have already
shown, only a legislative assembly. The same may be said of
the other provinces that have been brought into the union
since 1867. All the provisions of the British North America
Act that applietl to the original provinces were, as far as possi-
ble, made applicable to the provinces of British Columbia,

made before the judicial committee of privj council, in the case of the
Queen and the St. Catharine's Milling Company, and I cannot do better
than quote his exact words, which seem clearly to indicate the real char-
acter of the union : " What then was the general scheme of that act ? First
of all, as I have suggested, it was to create Vk federal as distinguished from a
Ugidcdive union, a union composed of several existing and continued enti-
ties. It was not the intention of parliament to mutilate, confound and
destroy the provinces mentioned in the preamble, and having done so, from
their mangled remains, stewed in some legislative caldron, evoke by some
legislative incantation, absolutely new provinces into an absolutely new
existence. It was rather, I submit, the design and object of the act, so far
as consistent with the re-division of the then province of United Oinada
into its old political parts, Upper and Lower Canada, and with the federal
union of the four entities, Nova Scotia, New Brunswick and the reconsti-
tuted parts of old Canada, Ontario and Quebec ; it was the design, I say, so
far as was consistent with those objects, by gentle and considerate treatment
to preserve the vital breath and continue the political existence of the old
provinces. However this may be, they were being made, as has been well
said, not fractions of a unit but units of a multiple. The Dominion is a
multiple, and each province is a unit of that multiple, and I submit that
undue streas has been laid, in the judgment of x)ne of the learned judges
l)elow, upon the form which is said to have been adopted, of first nniiing
and then dividing the provinces. I submit that the motive and cause of
that form was the very circumstance to which I have adverted, the neoee-
sity of the redivision of old Canada. Three provinces there were, 'four'
there were to be ; and the emphatic word in that clause is the word 'four.'
But for the special circumstance of the redivision of old Canada, there
would have been no such phrase. Again, consistently with and supportiqg
the loggMtod Mheine of the act, there is to be found important language
with reference to the provincial institutions and rights of property which
are spoken of as continued and retained, words entirely repugnant to the
notion of a division and a fresh creation." See argument published in
pamphlet form, Toronto, 1888.

126 Federal Government in Canada, [582

Manitoba and Prince Edward Island, just as if they had
formed part of the union in 1867.

Manitoba was given a constitution similar to that of the
older provinces by an act of Canadian parliament, and it was
expressly provided in the terms of union with British Columbia
that the government of the dominion would consent to the
introduction of responsible government into that province and
that the constitution of the legislature should be amended by
making a majority of its members elective.^ Immediately
after the union these reforms were carried out, and the province
was placed on the same footing as all the other provinces.
Consequently the local or provincial constitutions are now
practically on an equality, so far as the executive, legislative
and all essential powers of self-government are concerned ; and
all of them have the authority under the fundamental law to
amend their constitutions, except as regards the office of lieu-
tenant-governor.'^ British Columbia and Manitoba accordingly
availed themselves of their constitutional privileges, and there
is now only one house, a legislative assembly, elected by the
people in those provinces.

In all the provinces, at the present time, there is a very com-
plete system of local self-government, administered under the
authority of the British North America Act, and by means of
the following machinery :

A lieutenant-governor appointed by the governor-general
in council ;

An executive or advisory council, responsible to the legis-
lature ;

A legislature, consisting of an elective house in all cases,
with the addition of an upper chamber appointed by the
crown in three provinces, and elected by the people, in one ;

* For constitutions of provinces admitted since 1867, see for Manitoba,
Can. Stat., 33 Vict., c. 3 ; Man. Stat., 39 Vict., c. 28 ; Imp. Stat. 34, 35 Vict.,
0. 28, sec. 6.— British Columbia, Can. Stat, for 1872, p. 34, B. C. Con. Stat.,
c. 42.— Prince Edward Island, Can. Stat, of 1873, p. 11.

' See supra, p. 47.

583] Federal Government in Canada. 127

A provincial judiciary, composed of several courts, the
judges of whom are appointed and paid by the dominion gov-
ernment ;

A civil service, with officers appointed by the provincial gov-
ernment, holding office, as a nile, during pleasure and not
removed for political reasons;

A municipal system of mayors, wardens, reeves and coun-
cillors, to provide for the purely local requirements of the cities,
towns, townships, parishes and counties of every province.

The lieutenant-governor is appointed by the governor-
general in council, by whom he can be dismissed for " cause
assigned'' which, under the constitution must be communi-
cated to parliament.* He is therefore an officer of the do-
minion as well as the head of the executive council and

* B. N. A. Act, 1867, sec. 58. For each province there shall be an officer,
stjicd the lieutenant-governor, appointed by the governor-general in coun-
cil by instrument under the great seal of Canada.

59. A lieutenant-governor shall hold ofBce during the pleasure of the
governor-general ; but any lieutenant-governor appointed after the com-
mencement of the first session of the parliament of Canada, shall not be
removable within five years from his appointment, except for cause assigned,
which shall be communicated to him in writing within one month after the
order for his removal is made, and shall be communicated by message to
the senate and to the house of commons within one week thereafter if the
parliament is then sitting, and if not then within one week after the com-
mencement of the next sc&sion of the parliament.

60. The salaries of the lieutenant-governors shall be fixed and provided
by the parliament of Canada.

61. Every lieutenant-governor shall, before assuming the duties of hii
office, make and subscribe before the governor-general or some penoD
authorized by him, oaths of all^ianco and office similar to those taken bj
the governor-general.

62. The provisions of this act, referring to the lieatenani-govemor, extend
and apply to the lieutenant-governor for the time being of each province
or other, the chief executive officer or administrator for the time being
carrying on the government of the prorince by whatsoever title he to
designated.

67. The governor-general in ooancil may, fh>m time to time, appoint an
administrator to execute the office and functions of Houtenant«goTenior
during his absence, illness or other inability.

128 Federal Government in Oomada, [584

possesses, within his constitutional sphere, all the authority of a
lieutenant-governor before 1867. The essential difference now
in his position arises from the fact that his responsibility is to
the government which appoints him, just as these high officials
before the confederation were responsible immediately to the
imperial authorities. He acts in accordance with the rules
and conventions that govern the relations between the governor-
general and his privy council. He appoints his executive
council and is guided by their advice so long as they retain the
confidence of the legislature. He has "an unquestionable
constitutional right to dismiss his ministers, if, from any cause,
he feels it incumbent upon him to do so. In the exercise of
this right, as of any other of his functions, he should, of course,
maintain that impartiality towards rival political parties which
is essential to the proper performance of the duties of his office ;
and for any action he may take he is (under the fifty-ninth
section of the British North America Act) directly responsible
to the governor-general.'' ^ But it is quite clear that while the
lieutenant-governor can dismiss his ministers, it is a right only
to be exercised for a cause fully justified by the practice of
sound constitutional government ; and he should not for per-
sonal or political reasons, be induced to withdraw his confi-
dence from a ministry which has an unequivocal majority in
the popular branch, unless indeed there should arise some
grave public emergency which would compel him to call upon
another set of advisers, and ask them to support him and appeal
to the people for their judgment on the question at issue.
Doubts have been raised from time to time, though rarely now,
compared with the earlier years of the working of our system,
whether the lieutenant-governor of a province represents the
crown as before the union of 1867, but it is generally admitted
that in the discharge of all the executive and administrative
functions that devolve constitutionally upon him and require

' Despatch of secretary of state for the colonies in Lieutenant-Governor
Letellier's case, 1879, Commons Papers 1878-79, c. 2445, pp. 127, 128.

685] Federal Government in (Janada, 129

the interposition of the crown in the province, the lieutenant-
governor has all the necessary authority.

In various cases that have come before the highest courts
in Canada and in England, in which the point has been
argued, the weight of authority now goes to sustain the
general proposition I have laid down.* In one very im-
portant argument that was heard before the courts of Canada
and finally before the judicial committee of the privy council,
the question arose whether it is the provincial or the dominion
government that is entitled to the estates of persons dying
intestate and without heirs. As every legal student knows,
property which has no owner, escheats to the crown, in proper
accordance with the maxim of feudal law, and, in our day,
that means it becomes the property of the people. One able
counsel for the provincial authorities in this case laid special
emphasis on the argument that both from the legislative and
executive point of view the royal prerogatives, which in Eng-
land are not the personal appanage of tlie sovereign, but are
the property of the people, and which the sovereign holds in
trust to exercise them in the interests of the British nation,
are equally exercised in the provinces of the queen, not more,
however, to her personal profit than in the mother country,
but for the people of the provinces, with respect to whom
these prerogatives have not lost their character of a trust, and
that, not being able to exercise them herself, she has delegated
their exercise to the lieutenant-governors, who are her man-
dataries.* The judicial committee declared by implication
that escheated lands in any province went to the provincial
and not to the dominion government. Their Lordshij)s dwelt
on the clause 109,' in the constitutional act of 18G7, which
enacts that '^ all lands, mines, minerals and royalties " belongs

* 8e« opinion of Chief Jostioe Ritchie in cue of Meroer m. the attorntj-
general of OnUrio. Bup. Court Hep^ Vol. V, pp. 636, 638, 643.
'Attorney- general (now judge) Loranger. Sup. Court Rep.,Vol.V, p. 606.
"See Boorioot's Manual of Cooititoiiooal Hiitorj, pp. 147-161.

130 Federal Government in Canada. [686

ing to the provinces at the time of the union shall continue
to belong to those provinces. The real question, in their
opinion, was as to the effect of the words, "lands, mines,
minerals and royalties" taken together. The mention of
"mines" and "minerals" in this context was not enough
to deprive the word "royalties" of what otherwise would
have been its proper force. The general subject of the whole
section is " of a high political nature," it is " the attribution
of royal territorial rights, for purposes of revenue and govern-
ment, to the provinces in which they are situate or arise." ^
This decision in its entirety is properly regarded as decidedly
in the direction of strengthening provincial jurisdiction on the
point I have been considering.

The executive council, which is the name now given to
the administration of each province, a name borrowed from
the old provincial systems of government,^ comprises from
seven members to five in British Columbia, holding, as a
rule, various provincial offices as heads of departments. Their
titles vary in some cases, but generally there is in every execu-
tive council an attorney-general, a provincial secretary, and a
commissioner of lands. In the cabinet of Ontario there is a
minister of education, since that branch of the public service
is of exceptional importance in that province in view of the
great expenditure and large number of common and grammar
schools, collegiate institutes, normal and model schools, besides
the provincial university in Toronto. All the members of the
executive council, who hold departmental and salaried offices,
must vacate their seats and be reelected as in the case of the
dominion ministry. The principle of ministerial responsibility
to the lieutenant-governor and to the legislature is observed in
the fullest sense.^

» Legal News, Vol. VI, p. 244.

' The same name was applied to the old councils of the thirteen colonies.

'B. N. A. Act, 1867, sec. 63. The executive council of Ontario and

Quebec shall be composed of such persons as the lieutenant-governor from

587] Federal Government in Ckinada. 131

In my third lecture, I showed the importance of the powers
granted by the British North America Act of 1867 to the
provincial legislatures, and gave a brief statement of what I
believed, from a study of the best authorities, to be the true
relations between those bodies and the dominion government.
It is, therefore, only necessary- for me to consider here some
features of the constitution of these legislatures, the election
of members, the trial of controverted elections, the prevention
of bribery and corruption, and the great variety of subjecte
that fall within their legislative jurisdiction.

time to time thinks fit, and in the first instance of the following officers,
namely : the attorney -general, the secretary and r^istrar of the province,
the treasurer of the province, the commissioner of crown lands, and the
commissioner of agriculture and public works ; with, in Quebec, the speaker
of the legislative council and the solicitor-general.

64. The constitution of the executive authority in each of the provinces
of Nova Scotia and New Brunswick shall, subject to the provisions of this
act, continue as it exists at the union until altered under the authority of
this act.

65. All powers, authorities, and functions which under any act of the
parliament of Great Britain, or of the parliament of the united kingdom of
Great Britain and Ireland, or of the legislature of Upper Canada, Lower
Canada, or Canada, were or are before or at the union vested in or
exercisable by the respective governors or lieutenant-governors of those
provinces, with the advice, or with the advice and consent of the respective
executive councils thereof, or in conjunction with those councils or with
any number of members thereof, or by those governors or lieutenant-gov-
ernors individually shall, as far as the same are capable of being exercised
after the union in relation to the government of Ontario and Quebec,
respectively, be vested in and shall or may be exercised by the lieutenant-
governor of Ontario and Quebec, respectively, with the advice or with the
advice and consent of, or in conjunction with the respective executive coun-
cils or any members thereof, or by the lieutenant-governor individually, as
the case requires, subject nevertheless (except with respect to such u
exists under the acts of the parliament of Great Britain or of the parliament
of the united kingdom of Great Britain and Ireland) to be abolished or
altered by the respective legislatures of Ontario and Quebec

60. The provisions of this act referring to the lieutenant-goremor in
ooancil shall be construed as referring to the lieutenant-goremor of
the province acting by and with the advice of the execative ooancil
thereof.

132 Federal Government in Canada, [588

The legislatures have a duration of four years — in Quebec,
of five — unless sooner dissolved by the lieutenant-governor.
They are governed by the constitutional principles that obtain
at Ottawa. The lieutenant-governor opens and prorogues the
assembly, as in Ontario, Manitoba and British Columbia, or
the assembly and the legislative council in the other provinces,
with the usual formality of a speech. A speaker is elected
by the majority in each assembly, or is appointed by the crown
in the upper chamber.^ The rules and usages that govern
their proceedings are derived from those of England, and do
not differ in any material respect from the procedure in the
dominion parliament. The rules with respect to private bill
legislation are also equally restrictive. The British North
America Act applies to the speakership of the assemblies the
provisions that it enacts with respect to the speakership of the
commons. The legislatures of Ontario and Quebec, like the
dominion parliament, must sit once every twelve months; but
apart from the existing usage that supply has to be voted
every twelve months, the act demands an annual session. None
of the provinces have yet adopted biennial sessions in imita-
tion of the very general practice of the state legislatures. Not

' B. N. A. Act, 1867 :

1.— Ontario.
Sec. 69. There shall be a legislature for Ontario, consisting of the lieu-
tenant-governor and of one house styled the legislative assembly of Ontario.

70. The legislative assembly of Ontario shall be composed of eighty-two
members, to be elected to represent the eighty-two electoral districts set
forth in the first schedule to this act.

2. — Quebec.

71. There shall be a legislature for Quebec, consisting of the lieutenant-
governor and two houses, styled the legislative council of Quebec, and the
legislative assembly of Quebec.

72. The legislative council of Quebec shall be composed of twenty-four
members, to be appointed by the lieutenant-governor, in the queen's name,
by instrument under the great seal of Quebec, one being appointed to repre-
sent each of the twenty-four electoral divisions of Lower Canada in this act
referred to, and each holding oflBce for the term of his life, unless the legis-
lature of Quebec otherwise provides, under the provisions of this act.

589] Federal Government in Canada, 133

only does the British practice of voting annual estimates stand
in the way of this change, which would require an amendment
of the provincial constitutions, but it would be hartlly accept-
able to an opposition in a legislature, since it would greatly
strengthen an administration and lessen their responsibilities
to the assembly. In the United States there is no cabinet
with seats in the assemblies dependent on the vote of the
majority, and biennial sessions have their advantages, but it
would be in this country a radical change hardly consistent
with the principles of responsible government.

73. The qualifications of the l^islative councillors of Quebec shall be the
as those of the senators for Quebec

74. The place of a legislative councillor of Quebec shall be(t>me vacant in
the cases, mulaiUmuiandU^ in which the place of senator becomes vacant.

75. When a vacancy happens in the legislative council of Quebec by
resignation, death or otherwise, the lieutenant-governor, in the queen's
name, by instrument under the great seal of Quebec, shall appoint a fit
and qualifie<l person to fill the vacancy.

76. If any question arises respecting the qualification of a legislative
councillor of Quebec, or a vacancy, in the legislative council of Quebec, the
same shall be heard and determined by the legislative council.

77. The lieutenant-governor may, from time to time, by instrument under
the great seal of Quebec, appoint a member of the legislative council of
Quebec to be speaker thereof, and may remove him and appoint another
in his stead.

78. Until the legislature of Quebec otherwise provides, the presence of at
least ten members of the legislative council, including the speaker, shall be
Decessary to constitute a meeting for the exercise of its powers.

79. Questions arising in the legl<slutive council of Quebec, shall be decided
by a majority of voices, and the speaker shall, in all cases, have a rote, and
when the voices are equal the decision shall be deemed to be in the negative.

80. The legislative assembly of Quebec shall be composed of sixty^five
members to be elected to represent the sixty-five electoral divisions or dis-
tricts of Lower Canada, in this act referred to, subject to alteration thereof
by the legislature of Quebec ; provided that it shall not bo lawful to preeeot
to the lieutenant-governor of Quebec for assent, any bill for altering the
limits of any of the electoral divisions or districts mentioned in the second
■chedale to this act, unless the second and third readings of such bill have
been passed in the legisUtive assembly, with the ooncurrence of the ma-
jority of the members repitnsnttng all those electoral divisions or distriels,
and the asstat shall not bt gifan to aooli bill unless an addrem bad bean

134 Federal Government in Canada^ [590

The number of members varies from ninety-one in the legis-
lature of the most populous province of Ontario to twenty-seven
in British Columbia, with the smallest population. Members
of the legislative councils, where they exist, have a property
qualification, except in Prince Edward Island ; but the mem-
bers of the assemblies need only be citizens of Canada and of
the age of twenty-one years. They are elected in Ontario on
a franchise which is manhood suffrage, qualified only by resi-
dence and citizenship, and the conditions of the suffrage are
hardly less liberal in nearly all the provinces, and vary little

presented by the legislative assembly to the lieutenant-governor stating that
it has been so passed.

3. — Ontario and Quebec.

81. The legislatures of Ontario and Quebec respectively shall be called
together not later than six months after the union.

82. The lieutenant-governor of Ontario and of Quebec shall, from time
to time, in the Queen's name, by instrument under the great seal of the
province, summon and call together the legislative assembly of the province.

83. Until the legislature of Ontario or Quebec otherwise provides, a per-
son accepting or holding in Ontario or in Quebec, any office, commission, or
employment, permanent or temporary, at the nomination of the lieutenant-
governor, to which an annual salary, or any fee, allowance, emolument or
profit of any kind, or amount whatever, from the province is attached, shall
not be eligible as a member of tlie legislative assembly of the respective
province, nor shall he sit or vote as such ; but nothing in this section shall
make ineligible any person being a member of the executive council of the
respective province, or holding any of the following offices, that is to say:
the offices of attorney-general, secretary and registrar of the province,
treasurer of the province, commissioner of crown lands and commissioner of
agriculture, and public works; and, in Quebec, solicitor-general, or shall dis-
qualify him to bit or vote in the house for which he is elected, provided he
is elected while holding such office.

84. Until the legislatures of Ontario and Quebec respectively otherwise
provide, all laws which at the union are in force in those provinces respect-
ively, relative to the following matters or any of them, namely: — the quali-
fications and disqualifications of persons to be elected to sit or vote as mem-
bers of the assembly of Canada, the qualifications or disqualifications of
voters, the oaths to be taken by voters, the returning oflSicers, their powers
and duties, the proceedings at elections, the periods during which such
elections may be continued, and the trial of controverted elections and the
proceedings incident thereto, the vacating of the seats of members, and the

591] Federal Government in Oanada. l35

from each other — ^the province of Quebec imposing in a few
particulars the most restrictions and showing a decided indis-
position to adopt universal suffrage. Members are paid an
indemnity which varies from $800 in Quebec to $172 in
Prince Edward Island, with a small mileage rate, in most
cases, to pay travelling expenses. The laws providing for the
independence of the legislature and for the prevention of
bribery and corruption are fully as strict as those which are
in force in the case of the dominion elections. In all cases
the courts are the tribunals for the trial of controverted

issuing and execution of new writs in case of seats vacated otherwise than
by dissolution, shall respectively apply to elections of members to serve in
the respective legislative assemblies of Ontario and Quebec :

Provided, that until the legislature of Ontario otherwise provides at any
election for a member of the legislative assembly of Ontario for the district
of Algoma, in addition to persons qualified by the law of the province of
Canada to vote, every male British subject aged twenty-one years or up-
wards, being a householder, shall have a vote.

85. Every legislative assembly of Ontario and every l^slative assembly
of Quebec shall continue for four years from the day of the return of the
writs for choosing the same (subject, nevertheless, to either the legislative
assembly of Ontario or the legislative assembly of Quebec being sooner
dissolved by the lieutenant-governor of the province), and no longer. [Ex-
tended as respects Quebec to five years by Quebec Stat. 44-4o Vict., c. 7.]

86. There shall be a session of the legislature of Ontario and of that of
Quebec once at least in every year, so that twelve months shall not inter-
vene between the last sitting of the legislature in each province in one ses-
sion and its first sitting in the next session.

87. The following provisions of this act respecting the house of commoDB
of Canada, shall extend and apply to the legislative assemblies of Ontario
and Quebec, that is to say — the provisions relating to the election of a
speaker originally and on vacancies, the duties of the speaker, the afasenos
of the speaker, the quorum, and the mode of voting, as if those proviaioos
were here reenacted and made applicable in terms to each such legiiUUiv*
assembly.

4.~NovA Scotia akd New Bbuhswick.

88. The oonstitntion of the legislature of each of the provinces of Novm
Scotia and New Brunswick shall, subject to the provisions of this act, con-
tinue as it exists at the union until altered under the authority of this act;
and the houseof assembly of New Brunswick existing at the passing of this act
shall, unless sooner dissolved, continue for the period for which it was elected.

136 Federal Government in Canada, [592

elections. It is hardly necessary to say that the demand upon
the classes of men disposed to give up their time to the public
service is very considerable, when we reflect upon the large
representation required for the parliament and legislatures,
apart from the various municipal councils in the several
provinces. It has been questioned whether it was quite wise
at the inception of confederation to limit the services of capable
men to one legislative body, in other words, to prevent dual
representation. Be this as it may, the legislatures particularly
do not appear in any way inclined to have their members under
the influences of the dominion parliament, but prefer being
entirely independent of all other legislative authorities. It is
only in the Quebec legislative council that a member can also
sit in the senate, but this privilege is enjoyed only by one or
two men and is very different from dual representation in two
representative bodies. It is obvious, so far, that while the
house of commons naturally attracts the more ambitious men,
since it offers them greater prizes and a wider scope for their
ambition, yet the assemblies are filled, for the most part, by men
of excellent business habits and practical experience, and, in
not a few cases, of conspicuous talent. As much space is
given in the leading journals to the debates of the legislatures
as to those of the parliament at Ottawa, and it must necessarily
be so in view of the importance and variety of the questions
that come every session under their cognizance. The very
system which makes a government responsible to and depend-
ent on the legislature for its continuance in power must to a
great extent explain why these bodies exercise greater influ-
ence than do similar authorities in the American states, even
with the right of electing senators to congress.

The subjects that come under the purview of the legisla-
tures, from session to session, are multifarious, so extensive is
the scope of their legislative powers. The very section giving
them jurisdiction over property and civil rights necessarily
entails legislative responsibilities which touch immediately
every man, woman and child in the province.

593] Federal GovemmerU in Canada, 137

If we take up any volume of the statutes of a province, of
Ontario for instance, we shall see the truth of the observation
I made in the course of the third lecture, that provincial leg-
islation in every way more nearly affects our daily life and
interests as citizens of a community than even the legislation
of the dominion parliament. In the statutes for 1888 we find
laws relative to probate and letters of administration, execu-
tions, mortgages, sales of chattels, solemnization of man-iage,
married women's real estate, benevolent, provident and other
societies, liquor licenses, frauds, closing of shops and hours
of labor, prevention of accidents by fires in hotels and other
places and public buildings, protection of game and fur-bear-
ing animals, protection and reformation of n^lected children,
agricultural exhibitions, besides a large number of private and
local acts for the incorporation of insurance and other compa-
nies, for the incorporation of towns, for the issue of deben-
tures for certain local purposes, and the multiform objects
which the constitution places under provincial control. Then
every session there is the distribution of the public moneys,
which, as in the dominion parliament, are voted in the com-
mittee of supply, and included in an appropriation act. As I
have shown,* the provincial funds are provided in a great
measure from the dominion sul)sidies, the sale of public lands,
timber licenses, and mining royalties, but each province has a
potential right of direct taxation, which so far has never been
directly exercised by the legislature itself. In the case of a
wealthy province like Ontario, with a surplus revenue, the
public expenditures are very comprehensive, and illustrate the
importance of the interests involved. In 1888 there was
required for civil government, $198,746; administration of
justice, $366,476 ; education, $581,412; mainienanoe of public
institutions, $705,664; agriculture, $141,931; hospitals and
charities, $113,686; maintenance and repairs of government
and departmental buildings, $641,176; public buildings,

^Qeemtproy p. 78.
10

138 Federal GovemTneni in Canada. [594

$383,062; colonization roads and public works, $157,146,^
the total amount of expenditure being $3,205,804. From
time to time large railway subsidies are granted for the con-
struction of railways within the provincial limits, and this has
been done lavishly in the province of Quebec. The total
amount of subsidies voted by all the provinces up to 1887 for
this purpose was $19,137,720.^

The control over provincial legislation is the power of veto
allowed to the dominion government, and the judgment of the
courts in cases submitted to them in due course of law ; mat-
ters already considered in the review of the federal system.
No authority is given, however, as is the case in some Ameri-
can states to submit a question of constitutional jurisdiction
to the provincial courts, though, as I have already shown, such
a reference can be made to the supreme court of Canada.^ In
the few states where such a constitutional provision exists, the
judges regard the reference as calling upon them simply to
act in an advisory capacity and guard themselves from being
bound by their opinion, in case the same question comes up
for argument and judgment in due process of law.^ The same
principle, if I mistake not, has been laid down by the judges
of the supreme court of Canada, when they have been called
upon to give an opinion on private bill legislation of parlia-
ment and other constitutional points of controversy. The
practice has decided advantages if it can be carried out, and

^ Canadian Handbook, by George Johnson, p. 92.

*See supra, p. 66.

' In Maine, New Hampshire, Massachusetts, Florida, and Rhode Island
(Cooley, Constitutional Limitations, pp. 51, 52) "the legislative department
has been empowered by the constitution to call upon the courts for their
opinion upon the constitutional validity of a proposed law, in order that, if
it be adjudged without warrant, the legislature may abstain from enacting
it." This eminent authority doubts if such decisions can be entirely satis-
factory, since they are made without the benefit of argument at the bar.
They must, however, more or less operate as a check upon careless legisla-
tion and are entitled to every consideration as coming from reflective judicial
minds.

595] Federal Government in Canada, 139

it would be well to consider whether it caDDot be adopteil in
the case of the provincial courts. Many cases, however, con-
stantly arise in the course of law, with respect to the compe-
tency of the legislature to enact certain statutes ; and ever}'
year sees the British North America Act made clearer, and
supplemented by a number of valuable decisions which prac-
tically enter into our constitutional system and make it more
intelligible and workable.

It is not necessary to dwell at greater length on the power
of disallowance than I have already done in the third lecture,
but there is one question of some interest which requires a few
words of explanation, or rather of comment, since it is not
quite intelligible on sound constitutional principles. The
British North America Act gives the lieutenant-governor, as
well as the governor-general, the power to "reserve" and also
to "veto" a bill when it comes before him.^ The power of
reserving bills is exercised by the governor-general in very
exceptional cases affecting imperial interests, but there is no
instance in our parliamentary history since the concession of
responsible government of the exercise of the veto — a royal
prerogative, in fact, not exercised even in England since the
days of Queen Anne. Lieutenant-governors not infrequently
reserve bills, in all the provinces, for the consideration of the
governor-general in council; and this is constitutionally justi-
fiable; but the same functionaries in the maritime sections
have occasionally vetoed bills of their resj^ective legisla-
tures. Their legal right is unquestionable, but it is a right
clearly quite inconsistent with the general principles of British
oonstitational government which should govern us in all
cases.

In the United States, where the power of veto is g^ven to
the president, and to all the governors of the states, with only
four exceptions, the cabinet or executive^ officers have no
responsibility whatever in matters of legislation^ and the power

>Seoi.66,56, 90.

140 Federal Government in Canada, [596

generally operates as a useful check on the legislatures, which
otherwise would be left practically without any control on
their proceedings. In the Canadian provinces, however, the
case is very different, for the ministry in each is responsible to
the house and to the lieutenant-governor for legislation. If
any bill should pass the houses despite their opposition as an
administration, it is clear that they have more or less, accord-
ing to the nature of the measure, forfeited the confidence of
the people's representatives, and it would be a virtual evasion
of their ministerial responsibility, for them at the last moment
to advise the lieutenant-governor to intervene in their behalf
and exercise his prerogative. He might well question their
right to advise him at all, since they had shown they had not
the support of the legislature of which they were a committee.
In Ontario and Quebec no ministry has ever occupied so
anomalous a position, and the only explanation that can be
offered for the existence of the veto in the other provinces is
that by carelessness or ignorance, governments have per-
mitted legislation, which the lieutenant-governor has found to
be beyond the competency of the legislature or otherwise very
objectionable, and that he has been forced to call the attention
of his cabinet to the fact and ask their advice. An executive
council has, under these circumstances (for I am speaking from
authoritative information on this interesting point) felt itself
bound to accept the situation and advise the disallowance of
the bill. Under the peculiar circumstances that probably
existed, the veto may at times have proved advantageous to the
public interests ; but looking at the nature of our government,
it would be probably wiser to be content with the check which
the constitutional act already imposes on improper legislation
in a provincial legislature ; that is, the general power of veto
by the dominion government. It may be added that this is
one of the cases in which a superior court in a province might
well be authorized to express an opinion, as in certain American
states, on the constitutionality of a measure before it passes

597] Federal Government in Canada. 141

finally. The lieutenant-governor would then be plaoe<l m a
less invidious position.^

The judiciary, like its English prototype, evokes respect in
every province of Canada, for the legal attainments and high
character of its members. Entirely independent of popular
caprice, and removable only fur cause on the address of the
two houses of parliament, it occupies a very advantageous
position, compared with the same body in many of the United
States. While the administration of justice, including the
constitution, maintenance and organization of provincial courts,
both of civil and criminal jurisdiction, is one of the matters
within the purview of the legislatures, the government of the
dominion alone appoints and provides the salaries of the judges
of the superior, district and county courts, except those of the
probate court in Nova Scotia and New Brunswick.^ It has

*See Bourinot's Parliamentary Practice of Canada (pp. 578, 581) where
this question is more fully discussed.

'B. N. A. Act, 1867, sec. 96. The governor-general shall appoint the
judges of the superior, district and county courts in each province, except
those of the courts of probate in Nova Scotia and New Brunswick.

97. Until the laws relative to property and civil rights in Ontario, Novft
Scotia and New Brunswick and the procedure of the courts in those pro-
vinces are made uniform, the judges of the courts of those provinces ap«
pointed by the governor-general shall be selected from the respective \mn
of those provinces.

98. The judges of the courts of Quebec shall be selected from the bar of
that province.

99. The judges of the superior courts shall hold office during good behaTior,
but shall be removable by the governor-general on addrcm of the
an<l house of commons.

100. The salaries, allowances and pensions of the judges of the 8U|
district and county courts (except the courts of probate in Nova Soolla and
New Brunswick) and of the admiralty courts in cases where the jodgat
thereof are for the time being paid by salary, shall be fixed and proTidfld
l»y the parliament of Canada.

129. Except as otherwise i)rovided by this act, all laws in force in Oinada,
Nova Scotia or New Brunswick at the union, and all the ooorU of dvil and
criminal jurisdiction, and nil legal oommissioos, powers and authoritiesi and
all officers, judicial, administrative, and ministerial, existing therein at the
union, shall continue in Ontario, Quebec, Nova SooiU and New Brumwicl^

142 Federal Gcxvemment in Canada, [598

been also decided that the dominion parliament is at liberty
to create new courts, when public necessity may require it, for
the better administration of the laws of Canada, or to assign
to the jurisdiction of existing courts any further matters
appropriate to their sphere of duty. For when legislating
within its proper bounds, that parliament is clearly competent
to require existing courts in the respective provinces, and the
judges of the same, who are appointed and paid by the do-
minion, and removable only by address from the same par-
liament, to enforce their legislation. Such an "exercise of
authority constitutes no invasion of the rights of the local
legislatures.''^

In all the provinces there is a supreme court, or cou/t of
appeal ; and superior courts, known under the legal designa-
tions of high courts of justice, court of queen's bench, or
superior court. Besides these tribunals of complete civil and
criminal jurisdiction, there are various other courts with infe-
rior or special functions, known as county, district, surrogate
or probate, maritime^ and magistrates' courts, all of whose

respectively, as if the union had not been made; subject nevertheless
(except with respect to such as are enacted by or exist under acts of the
parliament of Great Britain or of the parliament of the united kingdom of
Great Britain and Ireland) to be repealed and abolished, or altered by the
parliament of Canada, or by the legislature of the respective province,
according to the authority of the parliament or of that legislature under
this act.

^This judgment was given in the case of Valin v. Langlois, in which the
validity of the dominion act imposing uppn the judges the trial of domin-
ion controverted elections was questioned. See Can. Sup. Court Rep., Vol.
Ill, p. 70. Also 5 App. Cas., 115.

* The maritime court of Ontario is a dominion court, established by act
of parliament, on account of the growing importance of the maritime busi-
ness on the lakes. See Can. Rev. Stat., c. 137 ; Canada Law Times, Vol.
Ill, pp. 1-13.

Maritime jurisdiction over the high seas is a branch of international law
which is administered throughout the British colonies by the imperial vice-
admiralty courts established therein. See Todd's Pari. Govt, in the Colo-
nies, p. 188.

599] Federal Government in Canada, 143

duties are defined by statute. So far as our circumstances
have permitted, the changes in the organization and proce-
dure of the English courts have been followed in the English-
speaking provinces ; and this is especially true of Ontario,
where the judicature act is modelled upon that of England,
and provides for a supreme court of judicature, consisting of
two permanent divisions, called the high court of justice for
Ontario, and the court of appeal for Ontario. The first divi-
sion is again divided into three parts, queen's bench, chancery
and common pleas. In Ontario, as in the other English pro-
vinces, the recent practice of England has been followed, and
though the title of chancellor, or judge in equity, still exists in
some courts, there is a fusion of law and equity ; in the high court
of justice in Ontario and in the supreme court in Nova Scotia,
for instance. The law provides every legitimate facility for ap-
peals from every inferior court in a province, and causes may be
taken immediately to the privy council of England; or, as gen-
erally happens, to the supreme court of Canada at Ottawa, previ-
ously to going before the court of the last resort for the empire
at large.^ In the organization and procedure of the courts from
the earliest times since Canada became a possession of Eng-
land, we can see how closely Canadians imitate her institutions
in all respects. The names of the courts are for the most part
identical. The justices of the peace who are still appointed
by the crown, as represented by the lieutenant-governor in the
provinces, date from the days of Edward III. As in Eng-
land, there is no limit to the number that may be appointed in
a district, and consequently in some of the provinces the priv-
ilege has been often abused by different governments, in order
to satisfy the petty ambition of their friends and supporters.
The courts of quarter or S})ecial sessions, which were held by
the magistrates for the trial of certain causes, but especially
for the imposition and expenditure of local taxes in counties,
long existed in all the provinces ; but with the establishment

* See suproj p. 66.

144 Federal Government in Canada. [GOO

of municipal institutions and the organization of county and
other courts, they have practically disappeared from the legal
structure, although relics of their powers still exist in the
province of Quebec, where the recorders of Quebec and Mon-
treal are judges of sessions, and in the general sessions of the
peace in Ontario.

The criminal law of England has prevailed in all the pro-
vinces since it was formally introduced by the proclamation of
1764, and the Quebec act of 1774. The French Canadians
never objected to this system of law, since in many respects it
was more humane and equitable than their own code. The
civil law, however, has continued to be the legal system in
French Canada since the conquest, and has obtained a hold
now in that section, which ensures its permanency as an insti-
tution closely allied with the dearest rights of the people. Its
principles and maxims have been carefully collected and en-
acted in a code which is based on the famous code of Kapo-
leon. The rules of procedure relating to the civil law have
also been formulated in a distinct code. The civil law of
French Canada had its origin like all similar systems, in the
Roman law, on which were engrafted, in the course of cen-
turies, those customs and usages which were adapted to the
social condition of France. The various civil divisions of
France had their special usages, which governed each, but
all of them rested on the original basis of the Roman law, as
compiled and codified under Justinian. The customary law
of Paris became tlie fundamental law of Canada, and despite
the changes that it has necessarily undergone in the course of
time, its principles can still be traced throughout the present
system as it has been codified of late years. The French civil
law has been materially modified since 1763, by contact with
the English laws and customs, and by the necessities and cir-
cumstances of a new country ; but still, despite all the amend-
ments and modifications it has undergone in order to make it
more in consonance with the conditions of modern life and
the needs of commerce and enterprise, it displays in their

601] Federal Government in Canada, 145

integrity all those important principles which have the sanc-
tion of ages in all those countries where a similar system pre-
vails, and which touch the civil rights of individuals, the
transfer of property, marriage and inheritance, and other mat-
ters of vital interest to all persons in a community.

In the other provinces the common law of England forms
the basis of their jurisprudence. Its general principles were
brought into this country, as into the United States, by the
early colonists as their natural heritage; but they never
adopted those parts of the law which were not suited to the
new condition of things in America. It is a system replete
with the principles of individual liberty and self-government
and giving large scope to enterprise and energy in coloniza-
tion. In addition to the body of the common law, Canada has
also availed itself of those statutes which have been framed in
England from time to time, in consonance with the condition
of things to which the old maxims of the law could not apply.
The establishment of legislatures in the provinces, we have
seen, was only a little later than the entrance of the large
British population, and it was therefore in their power to
adapt English statutes to the circumstances of this country at
the very commencement of our history, or to pass such enact-
ments as were better suited to the circumstances of the coun-
try. Thus it happens that gradually a large body of Cana-
dian statutory law has been built upon the common law base
ot the legal structure, and with a view of making the law
more intelligible, it has consequently been wisely ordered, at
different times since 1854, that all these statutes should be
revised and consolidated by commissions composed of learnetl
lawyers and judges. The people of the dominion and of all
the provinces have now easy access to the statutory law that
governs them within the res{>ective constitutional liraiU of the
parliament and the legislatures. It is also found convenient
in the intervals between the consolidations of the statutory
law to collect together, from time to time, all the enactments
on a jMirticular subject and incorporate them, with such amend-

146 Federal Government in Canada. [602

ments as are found necessary, in one statute. This has been
found especially useful in the case of laws affecting railways,
insurance companies, the territorial government, and other
matters of large public import. The other advantage of this
practice lies in the fact that it lessens the labor of a greater
consolidation at a later period. The criminal law has been
consolidated in this way and forms a distinct code.

While it is only in Quebec that there is a system of muni-
cipal or civil law distinct from the common law, there are at
the same time in all the other provinces certain differences in
the statutory law, affecting civil rights and property, that have
grown up from the commencement of their history as separate
political entities, until the present time. But as the principles
that lie at the basis of their private law are derived from the
same source of law and are in the main identical, the authors
of the constitution have granted a general authority" to the
parliament of the dominion to give uniformity, at any time, to
the laws relative to property and civil rights in Ontario, Nova
Scotia and New Brunswick ; but in case of parliament making
such provision, it shall not have any effect until it is formally
ratified by the legislatures.* No effort has been made so far in
this direction, and it is now hardly probable that the provinces
would be willing to sanction such a radical change, since it
would give parliament thenceforth unrestricted powers over
property and civil rights. The provinces having had the
enjoyment of their jurisdiction for so many years and seen how

^B. N. A. Act, 1867, sec. 94. Notwithstanding anything in this act, the
parliament of Canada may make provision for the uniformity of all or any
of the laws relative to property and civil rights in Ontario, Nova Scotia
and New Brunswick, and of the procedure of all or any of the courts in
those three provinces, and from and after the passing of any act in that
behalf, the power of the parliament of Canada to make laws in relation to
any matter comprised in any such act shall, notwithstanding anything in
this act, be unrestricted, but any act of the parliament of Canada making
provision for such uniformity shall not have effect in any province unless
and until it is adopted and enacted as law by the legislature thereon.

603] Fedei'ol Government in Canada, 147

closely it is identified with proviDcial rights and interests,
would hardly now consent to place themselves in a position of
entire subordination, in this important respect, to the dominion
government.

. The position of the judiciary of Canada may be compared
with that of the federal judiciary of the United States, since the
latter has a permanency and a reputation not enjoyed by the
courts of all the states. The president appoints, with the
approval of the senate, not only the judges of the supreme
court at AVashington, but the judges of the circuit and district
courts. In the majority of the states, however, the judges are
elected by the people, and in only four cases is there a life
tenure. The average term of a judge*s oflScial life in that
country is from eight to ten years ; but there have been no
instances of removal during that term, while they have fiiith-
fully discharged their functions. As in Canada, judges may
be removed, in thirty states, upon an address of two-thirds of
each branch of the legislature. Their salaries are not large :
the judges of the supreme court of the United States receive
$10,000 each and the chief justice $500 in addition; of the
circuit courts, §6,000 ; of the district courts, from $3,500 to
$4,000 ; of the supreme courts in the states, from $10,000 to
$2,000 ; the average being from $4,000 to $5,000.' All writers
who have studied the relative positions of the American judi-
ciary agree that the influence of the elective system, of short
tenure, and of small salaries has not been always favorable to
the standard of the bench in the several states. The small
salaries especially deter lawyers of conspicuous ability and large
practice from accepting such positions. The supreme and
circuit courts of the United States, however, occupy a vantage
ground from their i)ermanency and the nature of their functions,
which embrace a wider sphere of study and interest. On the
whole, however, with all the disadvantages under which the
state judiciary labors, it Is generally admitted that the dignity

* See Spofford'8 American Alnuuiac, 1889.

148 Federal Government in Canada, [604

of the office, and the general respect for the law — an inheritance
from their British ancestors — tend to act as a counterpoise
to the influences of which I have already been speaking.
In Canada the salaries are even less than in the United
States, and there are also inequalities between the prov-
inces, which ought to be removed, and salaries generally
increased. The judges of the supreme court of Canada receive
$7,000 each, and the chief justice $8,000 ; the chief justices in
Ontario and Quebec $6,000, and the judges of the superior court
from $5,000 to $3,500; the chief justices in the other pro-
vinces $5,000, and the judges $4,000, except in Prince Edward
Island where the amounts are $4,000 and $3,200. The county
and district judges only receive from $2,000 to $2,400 — too
small a sum for a hard worked class — but in the case of these
and other judges there are sufficient sums allowed for travelling
expenses. On their retirement they are entitled to a consider-
able annuity fixed by law. Although the salaries are small
compared with what a leading lawyer can make at the bar, yet
the freedom of the office from popular caprice, its tenure prac-
tically for life, its high position in the public estimation, all tend
to bring to its ranks men of learning and character. Since
those deplorable times in Canadian history when there was a
departure from the wise principle of having the executive and
judicial department in separate hands, the bench has evoked
respect and confidence ; and there have been no cases of the
removal of a judge on the address of the two houses. It says
much for the different governments of Canada, and especially
for the present premier^ who, more than any other Canadian
statesman, has had the responsibility of such important appoint-
ments through his long tenure of office, that they have never
been led for political reasons to lower the standard of the
bench by the elevation of improper persons. Such positions
are not necessarily given as a reward for political services ; for
in numerous instances the ablest men have been chosen from

' The Eight Honorable Sir John A. Macdonald, P. C, G. C. B.

605] Federal Government in Canada, 149

the bar without reference to their political status. The l^is-
lative arena, however, necessarily attracts not a few of the finest
intellects of the bar in all the provinces, and the very experi-
ence they there gain of legislation is undoubtedly favorable to
their usefulness, should they, as often happens, accept the dig-
nified and relatively comfortable (that is compared with active
political life) position of a seat on the bench in whose merito-
rious history all of us take a very proper pride.

I must now direct your attention briefly to the important
place occupied by local self-government in the provincial
structure. In the days of, the French regime, as I have
already shown you, a system of centralization was established
by Louis Quatorze, who so pitilessly daring his reign enforced
"that dependence which," as Saint Simon tells us, "reduced
all to subjection," everything like local freedom was stifled,
and the most insignificant matters of local concern were kept
under the direct control of the council and especially of the
intendant at Quebec. Until 1841 the legislature of Quebec
was practically a municipal council for the whole province,
and the objection of the habitants to any measure of local tax-
ation prevented the adoption of a workable municipal system
until after the union of 1841. In Upper Canada, however,
the legislature was gradually relieved of many works and mat-
ters of local interest by the adoption of measures of local gov-
ernment which infused a spirit of energy and enterprise in the
various counties, towns and cities. The union of 1841 led to
the introduction of municipal institutions in both the pro-
vinces, in conformity with the political and material develop-
ment of the country. By 1867 there was an exceedingly lib-
eral system in oj>eration in Upper and Lower Canada, but the
same thing cannot be said of the maritime provinces. It has
l>een only within a few years that the legislatures of Nova
Scotia and New Brunswick have organ ize<l an effective muni-
cipal system, on the basis of that so successfully adopted for a
long time in the larger provinces. In Prince Rlward Island,
however, matters remain pretty much as they were half a cen-

150 Federal Government in Canada. [606

tury ago, and the legislature is practically a municipal council
for the whole island. At the present time all the provinces,
with this one exception, have an excellent municipal code,
which enables every defined district, large or small, to carry
ou efficiently all those public improvements essential to the
comfort, convenience, and general necessities of the diffierent
communities tliat make up the province at large. Even in the
territories of the North-west, every proper facility is given to
the people in every populous district, or town, to organize a
system equal to all their local requirements.^

The municipal institutions of .Canada are the creation of
the respective legislatures of Canada, and may be amended or
even abolished under the powers granted to that body by the
ninety-second section of the fundamental law. The various
statutes in force establish councils composed of wardens, reeves,
mayors, and councillors or aldermen, in every county, town-
ship or parish, town and city in the provinces. These coun-
cils are representative in their nature, in accordance with the
principle that rests at the basis of our general system of local
government. The wardens and reeves are elected as a rule
by the council, and the mayors directly by the rate payers in
cities. The powers and authorities of the various municipali-
ties are regulated by general statutes, but there are also special
acts of incorporation in the case of many cities and towns.
These various municipal organizations have the power of im-
posing direct taxes for municipal purposes, including public
schools, and all other objects that fall within the legitimate scope
of their local requirements. Taxation is limited to a certain
rate on the dollar, and is imposed on real property, as well as
on bonds, stocks, and other personal property, and on incomes
in the province of Ontario. All the municipalities have large
borrowing powers, and the right to issue debentures to meet
debts and liabilities incurred for necessary improvements, or

* See Bourinot's Local Government in Canada, in Johns Hopkins Uni-
versity Studies.

607] Federal Government in Canada, 151

to assist railways of local advantage. This power of assisting
milways by subsidies has been largely used, though chiefly in
Ontario; by the end of 1884 the municipalities had already
paid §12,472,000 to secure railway communication. The
councils, however, cannot directly grant this aid, but must
pass by-laws setting forth the conditions of the grant and the
means of meeting the prosj>ective liabilities, and submit them
to the vote of the rate-payers, of whom a majority must a[)-
prove the proposition. The reference to the people at the
polls of such by-laws is one of the few examples which our
systefn of government offers of a resemblance to the referendum
of laws passed by the Swiss federal legislature to the people
for acceptance or rejection at the polls. It is a practice pecu-
liar to municipal bodies, though the same principle is illus-
trated in the case of the Canada Temperance Act, which was
passed by the dominion parliament, and can only come into
operation with the consent or at the option of the community
to which it is referred, in accordance with the provisions
laid down in the statute. Even after it has been adopted it
may also be repealed by submitting the question again to the
people immediately interested, as in fact we have seen done in
so many cases during the last few months, on account of the
unpopularity or the unsatisfactory oj)eration of the law. It
is an interesting question how far it is competent for a legis-
lative body entrusted with the power of making laws to refer
the adoption or rejection of a general law like that of the
Temperance Act to the i)eople of the whole province or of a
particular district. A very high American authority has well
said that 'Mt is not always essential that a legislative act
should be a oomiKJtcnt statute which must in any event take
effect as law at the time it leaves the hand of tlie legislative
department. A statute may be conditiofud, and Ha taking effect
may be made to depend u|K)n some 8ul)8equeht event." The
highest courts have declare<l this hnnd option law of Canada
as within the competency of parliament under the powers
granted it by the constitution, but in any caae it does not
appear to be any surrender of the law-makbg power to

152 Federal Government in Canada, [608

submit simply the question of its acceptance to the voters of the
locality especially interested in such questions. To cite again
jthe eminent author just quoted : "Affirmative legislation may in
some cases be adopted, of which the parties interested are at
liberty to avail themselves or not, at their option. A private
act of incorporation cannot be forced upon the corporation ;
they may refuse the franchise if they so choose. In these cases
the legislative act is regarded as complete when it has passed
through the constitutional formalities necessary to perfect leg-
islation, notwithstanding its actually going in operation as law
may depend upon its subsequent acceptance."

The necessity of submitting by-laws to the people in a mu-
nicipality, however, rests on the constitutional authority of
the legislature which, in the general law passed for the regu-
lation of municipalities, has thought proper to provide such
means of reference to the rate-payers of a locality. On gen-
eral principles, indeed, the powers of legislation bestowed in
this way on municipal corporations cannot be considered " as
trenching upon the maxim that legislative power must not be
delegated, since that maxim is to be understood in the light of
the immemorial practice of this country and England, which
has always recognized the propriety and policy of vesting in
the municipal organizations certain powers of local regulation,
in respect to which the parties immediately interested may
fairly be supposed more competent to judge of their needs
than any central authority. As municipal organizations are
mere auxiliaries of the state or provincial government in the
important business of municipal rule, the legislature may
create them at will from its own views of propriety or necessity
and without consulting the parties interested ; and it also pos-
sesses the like power to abolish them, without stopping to inquire
what may be the desire of the corporation on that subject."^

^All these citations are from Cooley's Constitutional Limitations (pp.
139-148) where the whole subject is fully discussed. His remarks apply
to Canada as well as to the United States.

609] Federal Govemmeivt in Canada, 153

Of the right of the provincial legislatures to delegate
powers specially given them by the constitution to any body
or authority also created by themselves, we have a decision
of the privy council in the case of the liquor license act of
Ontario (the most important yet given by that tribunal on the
constitutional jurisdiction of the provinces), which authorized
certain license commissioners to pass resolutions regulating
and determining within a municipality the sale of liquors.*
The maxim dekgoius non potest delegare was distinctly relied
upon by the opjK)nents of the measure, but the judicial com-
mittee emphatically laid down that such an objection is
founded on an entire misconception of the true character and
position of the provincial legislatures. Within the limits of
its constitutional powers "the local legislature is supreme and
has the same authority as the imj>erial parliament, or the j)ar-
liament of the dominion, would have had under like circum-
stances to confide to a municipal institution or body of its own
creation authority to make by-laws or resolutions a.s to the
subjects specifieil in the enactment, and with the object of
carrying the enactment into o^xiration and eflPect." Such an
authority is, in their opinion, "ancillary to legislation, and with-
out it an attempt to provide for varying details and machinery
to carry them out might become oppressive or absolutely fail."
A legislature in committing important regulations to agents
or delegates, it is decisively stated, does not by any means
efface itself; for "it retains its powers intact and can, when-
ever it pleases, destroy the agency it has created and set up
another, or take the matter directly into its own hands." And
how far it " shall seek the aid of subordinate agencies, and
how long it shall continue them, are matters for each legisla-
ture, and not for courts of law, to decide." *

* See mprOf p. 64.

See 9 App. Cas., 117 ; or I.egal NewH, Vol. VII, p. 23. The lewned Jodff-
ment of the Ontario court of ap{)eal in this famoiu case oontaina abandaiiw

11

154 Federal Government in Canada, [610

The power of passing by-laws and imposing taxation accord-
ingly gives to the various municipal councils of the provinces
a decided legislative character. The subjects embraced within
their jurisdiction are set forth with more or less distinctness
in the municipal acts of the provinces, especially of Ontario.
The council of every township, city, town or incorporated vil-
lage may pass by-laws for the construction and maintenance
of waterworks, the amounts required to be collected under
local improvement by-laws, licensing and regulating transient
traders, the purchase of real property for the erection of public
school houses thereon, cemeteries, their improvement and pro-
tection, cruelty to animals, fences, exhibitions and places of
amusement, planting and preservation of trees, gas and water
companies, public morals, giving intoxicating liquor to minors,
nuisances, sewerage and drainage, inspection of meat and milk,
contagious diseases, fevers, prevention of accidents by fire,
aiding schools, endowing fellowships, markets, police, indus-
trial farms, charities and numerous other subjects immediately
connected with the security and comfort of the peoj)le in every
community.^ The most important duty of every municipality,
especially in the cities, is the imposition and collection of
taxes. The burden of taxation is on real property, and the
difficulty is felt in the same measure in Canada as in the
United States of obtaining accurate returns for taxation pur-
poses, of all intangible property in the shape of bonds, mort-
gages, and other securities held by individuals. The same
may be said of returns of incomes, except in the case of
public officials and clerks, of whose salaries it is easy to
obtain information.^ The statistics of this kind of property,

of precedents for legislation entrusting a limited discretionary authority to
others, and gives many illustrations of its necessity and convenience.

^See Kev. Stat, of Ontario, 1887, chap. 184, for examples of the large
powers entrusted to municipalities in probably the best constructed muni-
cipal system in the world.

^ The official incomes of the officers of the dominion government cannot
be taxed by the provinces or the municipalities thereof. Leprohon v. City
of Ottawa, 2 App. Rep. Ont., p. 522.

611] Federal Government in Canada. 155

as given in assessment rolls, are very unreliable. For
instance, we find that while the assessed value of real prop-
erty in Ontario increased from $325,484,116 in 1873 to
§583,231,133 in 1883, the assessed value of the personal
property only increased during the same period of prosperity
from $49,010,772 to $56,471,661 ; and it must be remembered
that the assessors, especially in rural districts, generally place
the value of real property at a low rate. The exemptions
fix^m taxation comprise all government and public property,
places of worship and lands connected therewith, and a
great number of buildings occupied by scientific, educational,
and charitable institutions. In the province of Quebec, where
the Church of Rome has accumulated a vast amount of valu-
able property, especially in and near Quebec and on the island
of Montreal, the value of exemptions is estimated at many
millions of dollars. In Ontario an agitation has commenced
against the continuance of a law which restricts the assessment
in certain localities to relatively narrow limits, but the religious
and other interests that would be effected are likely to prevent
any change for a long time to come. In Quebec it is quite
impracticable.

The municipal system on the whole is creditable to the
people of Canada. It has its weaknesses, owing in some
measure to the disinclination of leading citizens, especially in
the cities and large towns, to give much of their time to mu-
nicipal duties, although every person is so deeply interested in
their eflBcient and honest performance. Jobbery and corrup-
tion are, however, not conspicuous characteristics of municii)al
organizations in the provinces; and we have no examples
happily in our history at all inviting comparison with the
utter baseness of the Tweed ring in New York. In the niral
municipalities of Ontario there is a greater readiness than in
the large cities to serve in the municipal councils, and as I
have already shown, those bfHlies have given not a few able
and practical men to parliament. On an effective system of
local self-government rests in a very considerable degree the

156 Federal Government in Canada. [612

satisfactory working of our whole provincial organization. It
brings men into active connection with the practical side of
the lifeof acoraraunity and educates them for a larger though
not more useful sphere of public life.*

The Territories of Canada, to whose organization I must
now refer, comprij=e a vast region stretching from the province
of Manitoba to the Rocky Mountains, and from the frontier
of the United States to the waters of the North. It embraces
more than two-thirds of the dominion, probably 2,600,000
square miles, and is watered by the Red, Saskatchewan, Assi-
niboine, Peace, Mackenzie and other rivers of large size and
navigable for the most })art by steamers of low draft. This
region came into the possession of Canada by a purchase of
the rights of the Hudson's Bay Company,^ who had so long
enjoyed a monopoly of the fur trade, and used their best efforts
to keep it a tei'ra incognita. The government of the dominion
now holds complete jurisdiction over the territory, out of
whose fertile lands must, sooner or later, be developed ten or
twelve provinces as rich and prosperous as any of the great
north-western states. The provisional district of Keewatin
was formed some years ago out of the eastern portion until
the settlement of the boundary dispute between Ontario and
the Dominion ; but since that question was settled it has only
a nominal existence, though it still remains under the super-
vision of the lieutenant-governor of the province of Manitoba.
In 1882 a large portion of the north-west region was divided

^ " I have dwelt," says John Stuart Mill, in Representative Government,
ch. XV, "in strong language on the importance of that portion of the ope-
ration of free institutions which may be called the public education of the
citizens. Now of this education the local administrative institutions are
the chief instruments."

^ B. N. A. Act, 1867, sec. 146, provides for admission of Territories. See
also Imp. Stat., 31 and 32 Vict., c. 105, (Can. Stat, for 1869) ; Can. Com-
mons Jour., 1869, pp. 149, 156 ; Can. Stat., 32 and 33 Vict., c. 3 ; Imp. Stat.,
34 and 35 Vict., c. 28.

613] Federal Government in Oanada, 167

into four districts for postal and other purposes.* Assiniboia,
now the most populous district, contains about 95,000
square miles; Saskatchewan, 114,000; Alberta, 100,000;
and Athabasca, 122,000. Beyond these districts lies an im-
mense and ' relatively unknown region, watered by the Peace,
Slave and Mackenzie rivers, and believed to be capable of
raising cereals and supporting a large population. The total
number of settlers, who have mostly come into the country
within six years, does not exceed forty thousaud souls,
scattered over ix wide region ; but villages and towns are
springing up with great rapidity throughout the west, and
immigration is flowing over the rich wheat-producing prai-
ries of the district of Assiniboia. The autliorities at Ottawa
control the government of the territories. Until the win-
ter of 1888, they were governed by a lieutenant-governor
and council, partly nominated by the governor-general in
council and partly elected by the people. In the session of
1888, the parliament of Canada passed an act granting the
territories a legislative assembly of twenty-two members, but
they do not enjoy responsible government like the provinces.
The lieutenant-governor, who is appointed by the governor in
council, for four years, has, however, the right of choosing
from the assembly four members to act as an advisory council
in matters of finance. Three of the judges of the territories
sit in the a&sembly as legal experts, to give their opinion on
legal and constitutional questions as they arise; but while tliey
may take part in the debates they cannot vote. The assembly

' B. N. A. Act of 1871 (amending that of 1867 in order to remoTe certftin
doubts aa to the powers of Canadian parliament) enact«:

2. The parliament of Canada may from time to time e«Uibli«h n«w pro-
vinces in any territories forming for the time being part of the Dominiooof
Canada, but not included in any province thereof, ami may at the time of
such establishment make provision for the ooDstitution and administratioa
of any inich province and for the passing of laws for the peace, order and
good government of such province, and for Its representation in the Mid
parliament.

158 Federal Government in Canada. [614

has a duration of three years and is called together at such time
as the lieutenant-governor appoints. It elects its own speaker
and is governed by rules and usages similar to those that pre-
vail in the assemblies of the provinces. Each member receives
§500, the legal experts $250, a session, besides an allowance for
travelling expenses. The parliament of Canada provides nearly
all the funds necessary for carrying on the government and meet-
ing necessary expenses for local purposes. The elections are by
open voting ; the electors must be borid fide male residents and
householders of adult age, who are not aliens or unenfran-
chised Indians, and who have resided within the district for
twelve months before the election. The civil and criminal
laws of England are in force in the terrritories, so far as they
can be made applicable; and the lieutenant-governor and
assembly have such powers to make ordinances for the gov-
ernment of the North-west as the governor-general in council
confers upon them; but their powers cannot at any time
exceed those conferred by the constitutional act upon the pro-
vincial legislatures. There is a supreme court, composed of
five judges, appointed by the Ottawa government, and remov-
able upon the address of the senate and house of commons.
The court has, within the territories, and for the administration
of the law, all such powers as are incident to a superior court
of civil and criminal jurisdiction.^ The territories are rep-
resented in the senate by two senators and in the house of
commons by four members, who vote and have all the other
privileges of the representatives of the provinces. In this
respect the territories of Canada enjoy advantages over those
of the United States territories, which are not represented in
the senate, but have only delegates in the house of representa-
tives without the right of voting. Year by year, as the popula-
tion increases, the people must have their political franchises
enlarged. The time has come for introducing the ballot, and
the inhabitants are an exceedingly intelligent class, drawn for

» Can. Rev. Stat., chs. 7, 50 ; Can. Stat., 1887, ch. 3 ; 1888, ch. 19.

615] Federal Government in Canada. 159

the most part, so far, from Ontario and the other English
provinces, and are in every way deserving of governing
themselves in all local matters, with as little interference as
possible from the central authority.

There are in the territories some 30,000 Indians, chiefly
Assiniboines, Crees, Bloods, and Blackfect, in various stages of
development. They arc the wards of the Canadian government,
which has always exercised a paternal care over them. They
are fed and clothed in large numbers. Before lands were laid
out for settlement, the Indian titles were extinguished by trea-
ties of purchase, conducted between the representatives of the
dominion and the councils of the several tribes. The Indians
live on reserves set apart for them in valuable districts; schools
and farm instruction are provided by the government, with
the creditable hope of making them more useful members of
the community. Agents live on the reserves, and inspectors
visit the agencies from time to time to see that the interests of
the In<lians are protected in accordance with the general policy
of the government. The sale of spirituous liquors is expressly
forbidden in the territories, chiefly with the view of saving the
Indians from their baneful influences.^ The liberal policy of
the government with res})ect to the Indians is deserving of
the encomiums which it has received from all those who have
studied its operation. So far as I can judge from careful in-
quiry, the effects of the policy are on the whole excellent, and
Indians generally are every way gaining greater confidence in
the government of the country. Of course it is difficult, if not
impossible, in the great majority of cases, to make a decided
radical change in the habits of the older Indians, and educate
them to become competitors of the white man in industrial
pursuits ; but it is gratifying to find that so largo a number
are already tilling the soil with a mo<lerate and, for them, an
encouraging measure of success. The schools established by
the government are well patronized, and on all sides, in short,

* See Can. Rev. Stat., o. 43, regulating all maUen reapeoUng the Indiana.

160 Federal Government in Canada, [616

I see much hope for the future generations of the Indian race
in the territories of Canada. At all events, good must con-
tinue to arise from the operation of the established policy, and
Canadians will always feel that they have done their duty
towards a race which has never in the past been treated with
similar generosity and kindness in the territories of the United
States.

A federal government controlling all matters essential to
the general development, the permanency, and the unity of
the whole dominion, and several provincial governments hav-
ing complete jurisdiction overall subjects intimately connected
with the comfort and convenience, the life and property, the
happiness and prosperity of the various communities of people
that dwell within the limits of these }ocal organizations ; these
are the dominant features of the federal structure. Elements
of weakness may exist in the financial basis on which the struc-
ture rests, and in the veto power given to the central authority
over the acts of the provincial governments. The upper houses
of the legislatures have none of the strength and influence of
the senates of the United States, and can exercise, under their
present constitution, relatively little of that control over the
legislation of a popular house which may be found useful at
critical times. Apart from what are considered constitutional
defects and sources of conflict between the central and provin-
cial authorities, there are other conditions of their political
system which may awake serious apprehensions in the minds
of thoughtful publicists and statesmen. An eminent English
thinker, Professor Seeley, has said that " there are in general
three forces by which states are held together, community of
race, community of religion, and community of interest.^
When we come to make an application of this doctrine to
Canada, we see that there is one large province under the
direct, practically unrestricted, control of a large and rapidly
increasing population, speaking a language, professing a reli-

* Expansion of England, p. 50.

617] Federal Government in Canada, 161

gion, and retaining certain institutions, different from those
of the majority of the people of the dominion. I have already
shown the remarkable influence this French race has naturally
exercised over the conditions of our iK)litical existence, and in
the formation of our constitutional system. From time to
time in our history such antagonisms as must alwavs arise
when there are racial and religious differences in a commu-
nity, have shown themselves with more or less intensity. As
I have already shown in the first lecture, this antagonism led
to unhappy results in our early annals, and left a sad blot on
our political history. In these later times, with the develop-
ment of civil liberty and with a wiser understanding of the
principles that should govern communities, living under the
same system of government, the instances have been few and
relatively unimportant, when a conflict of opinion has arisen
between the two races that inhabit Canada. Our political
history for half a century has been eminently creditable to the
good temper, patience and moderation of the leading men in
French as well as in English Canada. At critical moments
conciliatory counsels have invariably prevailed in the end
over the dictates of unreason and passion. All people and
communities within the dominion have already learned that
in the parliament they can always find every consideration
and justice given to their fair and legitimate claims. No
one can foresee the time when an amalgamation of the two
races will be possible, when the language and institutions
of French Canada will disappear. It may be there are those
in English Canada who r^ret that there are no signs as yet
of such an effacement. It seems inevitable that the great
energy and colonizing capacity of English speaking peoples
will obtain the supremacy, and open up and control the pro-
vinces that must soon 1x5 carved out of the great territories of
the North-west; and the French Canadian race will find itself
in a far smaller minority than at present. But there is no
reason to suppase that it will ever cease to be an important
influence in the confederation, which the Canadians, irrespeo-

1G2 Federal Government in Canada. [618

tive of race and religion, are establishing in a continuous line
of provinces from the Atlantic to the Pacific shores. Though
there are differences in language and certain institutions be-
tween the French and English Canadian peoples, yet there is
an equal community of interest between both. Our history
for more than a century gives us very clear illustrations of the
thorough appreciation that both races have of this identity of
interest. They have labored with equal patriotism to build
up the confederation and develop its resources. The results
of this union of races in the work of strengthening and pro-
moting the welfare of the dominion has so far been eminently
encouraging. A large intercolonial trade has been developed,
railways have spanned the continent, and public works of
equally national importance have been completed, and numer-
ous other measures passed, all in the direction of consolidating
the union. The foundations of a new nationality have been
already laid by the common efforts of the two races, united as
they are by the strong ties of a common interest ; and as long
as they continue to pursue the same wise policy of mutual
compromise and mutual forbearance on all occasions of differ-
ence, it is impossible to exaggerate the possibilities that seem
open to a dominion in the possession of institutions so fully
worthy of the respect and confidence of its people.

INDEX TO SEVENTH VOLUME

OF

Johns Hopkins University Studies

HISTORICAL AND POLITICAL SCIENCE.

Adams, Dr. H. B., 195; quoted, 199,
205, 212, 230, vii-ix,41, 110.

Adams, Judge S. W., vii-ix, 4, 5.

Agawam, visited by men from New-
town, vii-ix, 12.

Albemarle Academy, 202.

Alcalde, 82, 83, 85, 93, 101 ; functions
of, 86, 96, 97, 98, 101; office of,
abolished in San Francisco, 111;
restored, 115; abolished by charter
of 1850, 132; in Louisiana, 164.

Andrews, Judge, quoted, vii-ix, 121.

Andrews, Charles M., on the river
towns of Connecticut, vii-ix.

Assembly, legislative, of San Fran-
cisco, 107 1\\

Atkinson, 250.

Atwater, E. E., quoted, vii-ix, 65.

Auxiliary S;initary Association, in
New Cirleans, 185.

Ayuntamiento, 84, 85, 87, 88, 89, 90,
91,100; functions of, 86; abolished
in San Francisco, 108; restored,
116; abolished by charter of 1860,
132.

B

Baoon, Sir Francis, quoted, 24.
Bancroft, George, message of, to Cbm-

modore Sloat, quoted, 93.
Barbour, James, 241.

Barbour, P. P., 241 ; offered law pro-

fessorship, 311.
Barlow, Peter, 287, 296, 299.
Bamett, Bev. 8. A., 24 ; and the Uni-

versity Colony in East London, 58,

59, 00.
Bartlett, Lieut. W. A., 95, 99.
Berkeley, Bishop, 302.
Berlin, Connecticut, vii-ix, 75, 76.
Bienville, founds New Orleans, 160.
Biloxi, settled, 159.
Birkbeck, Dr. George, assists (xilmer,

285,292, 300; and the University

of London, 298.
Blaettermann, Dr. George, 292, 313;

engaged as professor in University

of Virginia, 244, 245, 246, 306.
Blake, quoted, vii-ix, 107.
Blake, Hon. Edward, quoted, 497,604,

509, 537, 580, 681.
Blok, Adrian, explores Conneciicat,

vii-ix, 10
Bloomfield, vii-ix, 76, 76.
Bond, quoted, vii-ix, 43.
Bondelier, quoted, 96.
Bonnycastle, Charlets287; made pro-
fessor in University of Virginia,

299; arrives, 311; transfemd to

Key's chair, 313.
Boston Courier, nuoted, 307.
Bourinot, Dr. John O.. on federal

govemmeni in Canada, 467-618;

quoted, 486, 604, 611, 614, 628, 688^

697,008.

163

164

Index.

[620

Bowditch, Nathaniel, 212.
Bozman, J. L., quoted, vii-ix, 41.
Bradford, William, vii-ix, 7 ; letter of,

to Minuit, quoted, 7, 15.
Breckinridge, Mrs. K, 196.
Breckinridge, James, 209.
British Columbia, union with, 682.

(See Canada.)
British North America Act, 1867.

(See Canada.)
Brock, R. A., 217.
Brockenborough, Wm., 241.
Bronson, Dr. Henry, quoted, vii-ix,

79, 84, 86.
Brougham, Henry, 244, 245, 292, 293;

letter of, quoted, 247 ; and the Uni-
versity of London, 298.
Brown, Hon. George, quoted, 529, 553.
Bryce, James, quoted, 517, 521, 523,

548, 660, 568.
Bucareli, San Francisco founded at

command of, 76.
Buchanan, George, 269, 270.
Burke, quoted, 24.
Burnett, P. H., 126, 130; and the

San Francisco town lots, 126, 129.
Burwell, Wm. A., 220.
Butler, Chief jTistice, quoted, vii-ix,

121, 122.
Butler, Br. Samuel, 281.

Cabell, Joseph C, 203, 309; and
the University of Virginia, 203 ff. ;
quoted, 213, 237; negotiates with
Tucker, 307 •, suggestions of, as to
law professorship, 311.

Cabell, Col. Nicholas, 203.

Cabildo, established in Louisiana,
164.

California, local government of, un-
der old regime, 80 fl". ; constitu-
tional convention of 1849, 125.
(See also San Francisco.)

California Star, quoted, 97, 99, 100.

Campbell, Thomas, 303; letter of,
quoted, 297 ; and the University
of London, 298.

Campbell, Thomas Telford, 297, 298.

Canada, federal government in, J.
G. Bourinol on, 457-618 ; Frencli
period, 464-469 ; transition period,
469-473; proclamation of 1763,

470; Quebec act, 471; effect of
coming of loyalists, 472; third
period, 473-478; Constitutional Act
of 1791, 473; difficulties under it,
474; fourth period, 478-482; act
of 1841, 478 ; adoption of British
North America Act, 482 ; general
features of the federal system, 485-
532 ; population, etc., 486 ; leading
principles of the system, 488 ; con-
stitution partly unwritten, 489;
amendments of the act, how far
possible, 491 ; position of Canada
in the Empire, 492; relations of
dominion and provincial govern-
ments, 500-524; powers of the
parliament, 601 ; of the provincial
legislatures, 503; education, 605;
concurrent powers, 507 ; insurance,
508; criminal law, 508; temper-
ance, 609 ; disputes under the act,
compared with those under Consti-
tution of United States, 511 ; right
to interfere in cases of property
and civil rights, 613; veto power
of governor in council, 514; courts,
619; dominion and provincial rev-
enues, 524 ; general considerations,
531 ; the government and the par-
liament, 533-676; the separation
of departments, 533, 546-548 ; the
governor-general, 534; the council,
541 ; the premier, 645 ; the senate,
549 ; the lower house, 555 ; parlia-
mentary independence, 562 ; elec-
toral corruption, 663; methods of
business in parliament, 564; com-
mittees, 665; public and private
bills, 566 ; supply, 568 ; motions
and inquiries, 570; debate, 672;
voting, 574 ; the civil service, 574 ;
the provinces, 677-618; division
into provinces, 579 ; the lieuten-
ant-governor, 583 ; case of escheats,
686; the executive council, 586;
the legislature, 587 ; reference to
provincial courts, 594 ; " veto " and
"reserve" powers, 695; responsi-
bility of ministry, 596 ; judiciary,
697 ; law, 600 ; comparison with
judiciary of United States, 603;
local government, 605-612; refer-
endum, 607 ; Northwest Territo-
ries, 612; Indians, 615; conclu-
sion, 616.

621]

Index.

165

Candolle, A. de, 232.

Carl vie, quoted, 32.

Carr', Dabuey, 217, 227, 237, 238, 239,
240. 241 ; offere<l law professor-
ship, 311.

Cart Wright, Major, 249, 283, 284, 285,
294.

Cartwright, Miss Frances D., 294.

Cassell, quoted, 522, 523.

Central College, 202 ff.

Chapin, quoted, vii-ix, 76.

Chimney-viewers, in Connecticut,
vii-ix, 97, 98.

Church lands, in Connecticut^, vii-ix,
45.

Church rates, in Connecticut, vii-ix,
114.

Church Reform Union, 46.

Claiborne, W. C. C, 167.

Clergy reserves question, in Canada,
476, 479.

Cocke,Gen7JohnH.,204,209,237,241.

Coil, Stanton, 67, 68, 69; founds
Neighborhood (iuild, 65.

Colbert, 465.

Commissioner, in Connecticut, vii-ix,
102, 103.

Committee of One Hundred, in New
Orleans, 186.

Commons, proprietors', vii-ix, 63 ff.

Connecticut, a study of the river
towns of, by C. M. Andrews, vii-
ix ; Dutch and English in, 6-, early
explonitions in, 9; first settlements
in, 13 ft'.; hard winter in, 22 ; earli-
est government of, 23; new churches
in, 25; efforts to check emigration
to, 25; compared with Massachu-
setts, 27; democracy in, 28 ff.; land
system of, 32-81 ; early purchases,
82; Indian reservations, 3); grants
by the general court, 36 ; pensions,
37; subsidized industries, 39, 49;
extension of town boundaries, 39 ;
grants to schools, 40; patents of
1686, 40; early town allotments,
42 ff., new towns, 75; suffrage in,
82 ff.; freemen, 82; inhabitant**, 89;
householders, 89; proprietors, 90;
growth of the ofliciul system in,
92 ff.; townsmen, 104; constables,
110; town nieetings, 112; rates
and fines, 114; relation of towns to
colony. 1 1 8 ff. (See also Hartford,
Wethernfield, Wiudior.)

Otmnectieut Journal^ quoted, 308.
Constables, in Connecticut, vii-ix, 23,

93, 98, 101, llOff,
Constitutional Act of 1791, 473.
Cooler, Judge T. M., quoted, 514,

594, 607, 608.
Cooper, Dr. Thomas, 204, 205, 206,

209, 210, 308, 309.
Coplestone, Dr. Edward, 246.
Corr^a, Abbi, 205, 224-226, 228, 234;

letter of, quoted, 233.
Cotton, sermon bv, vii-ix, 13.
Craigie, Dr. David, 274.
Crozat, Anthony, grant to, 160.

D

Dade, Judge Wm. A. C., offered law
professorship in University of Vir-
ginia, 311.

D^gett, Chief JuatieCf quoted, vii-ix,
121.

Darling, QovemoTf case of, 637.

Davies, Rev. Llewelyn, 46.

Davitt, Michael, 50; quoted, 51.

Davy, Dr. Martin, 247, 249, 251.

Democracy, incomplete in Massachu-
setts, vii-ix, 27 ; character of, in
Connecticut, 28 ff., 125, 126.

Dicey, A. V., quoted, 489, 496, 520.

District attorney, ofllce of, establisbeil
in San Francisco, 112.

Dominion of Canada, origin of name,
485.

Dorchester, people of, settle in Con-
necticut, vii-ix, 18, 21 ; townsmen
of, 104.

Dorchester, Lord^ 477.

Doutre, quoted, 562.

I)rinkwaler-Bethune,SirJohnE,261.

Drurv, Ret\ B. H., 288.

DrurV, R^-v. Henrv J.T., 277, 286.288.

Dunglison, Ih. llobley, professor in
UniversityofVirginia, 286, 291.814.

Du Pont de Nemours, correspondflDoe
of, with Gilmer, 228-280.

Durham, Lord, report of, on state of
Unadt, 477, 678.

Dutch, early relations of, with Ea^
lish on the Oonnecticat, vil-ii,
6-0 ; iNirchaM land of the Indiana,
33 ; driven oat, 84.

Dwinelie, quoted, 84, 87, 88, 90, 92,
96,109.

166

Index.

[622

E

East Hartford, vii-ix, 75, 76, 80.

East Windsor, vii-ix, 75, 76, 77.

Education, power over, in Canada,
505.

Edwards, Timothy, vii-ix, 76.

Egleston, M., quoted, vii-ix, 40, 74,
90.

Ellington, vii-ix, 75, 76, 77.

Ellis, Jh'. George E., quoted, vii-ix,
82, 126.

Emerson, quoted, 171.

Emmett, l)r. John P., elected pro-
fessor in University of Virginia,
305, 306, 307.^

Entombment, Francia's picture of,
26.

Equivalent, vii-ix, 68, 59.

Escheat, in Canada, 685.

Pages, Pedro, 75.
Farmington, vii-ix, 75.
Felch, Judge, quoted, 79.
Fence-viewer, in Connecticut, vii-ix,

96, 97, 98, 101.
Figueroa, Jos6, 88.
Fines, in Connecticut, vii-ix, 114 fT.
Fink, J. B., leaves money to New

Orleans, 179.
Fleming, 254.
Forbes, Lord, 272, 273.
Forbes, E. S., 67.
Freeman, E. A., quoted, 489.
French, sketch of their dominion in

Canatla, 464-469 ; language, in the

Canadian parliament, 573.
Frontenac, 469.

G

Galpin, Albert, vii-ix, 6.

Galvez, part taken by, in American
Revolution, 166.

Geary, John W., 116, 125; on the
affairs of San Francisco, 117; ve-
toes salary ordinance, 140.

Gel I, P. L., on the work of Toynbee
Hall, 57-64.

Gemmill, quoted, 554.

Gilmer, Francis Walker, correspon-
dence of, 195, 317; birth, 215; early

letters, 218; enters William and
Mary College, 220 ; reads law with
Wirt, 221; his essays, 224; be-
comes acquainted with Correa, 224;
in Philadelphia, 226; botanizing
tour, 227 ; practices law at Win-
chester, 227 ; removes to Rich-
mond, 231 ; offered law professor-
ship, 236; goes to obtain profes-
sors, 241 ; arrival in England, 243;
in London, 244 ; engages Blaetter-
mann, 244; at Cambridge, 249;
letter to Peachy Gilmer, 252; to
Wm. Wirt, from Stratford, 254;
at Oxford, 257; in Edinburgh,
259 ; negotiations with Key, 259-
266; and Leslie, 267; letter to
Chapman Johnson, 268 ; to Peachy
Gilmer, 271 ; to Jefierson, 274, 282,
290; declines law professorship,
276; again in London, 277; nego-
tiations with Ix)ng, 277-281; se-
cures Dunglison, 285; and Long,
286; various negotiations, 286,
295 ; letter to Carr, 292 ; negotia-
tions with the Harwoods, 297,
299-301 ; influence on foundation
of University of London, 298 ; se-
cures Bonnycastle, 299; sails for
New York, 302; illness after ar-
rival, 304; at Norfolk, 306 ; news-
paper criticisms on importation of
professors, 307; delay in profes-
sors' arrival, 309 ; accepts law pro-
fessorship, 312; declining health,
312, 314; death, 314; literary
work, 315, 316; attainments, 316;
John Randolph on, 316; letters
to, from Ticknor, 319-329.

Gilmer, Dr. George, 215 ; described,
216; death, 217.

Gilmer, Harmer, 218, 223.

Gilmer, James, 218.

Gilmer, John, 195.

Gilmer, Mildred, 217.

Gilmer, Peachy, 217, 314, 317 ; let-
ters to, 252, 271.

Gilmer, Thomas Walker, 215.

Girod, Nicholas, leaves property to
New Orleans, 178.

Glastonbury, vii-ix, 75, 76.

" Good Hope," the, vii-ix, 8.

Gray, Mr. Justice, quoted, 495.

Green, S. A., quoted, vii-ix, 30.

Green, Prof. T. H., 11, 45, 49, 52.

623]

Index,

167

Hadley, size of lots in, vii-ix, 43.
Hall, John, explores Connecticut,

vii-ix, 10. 11.
Hampden-Sidney College, 199.
Harbor Master, office of, established

in San Francisco, 112.
Hare, J. I. C, quoted, 520.
Harrison, Dr. Gessner, 313.
Hartford, Dutch fort at, vii-ix, 8, 9,

17; English settlers at, 20, 25;

lands of, 34, 42, 50, 61, 52, 54, 55,

56, 57, 58, 60, 61, 62, 64, 74, 75;

town ofibhoots of, 75 ; laws against

strangers in, 84, 87, 88; earliei*

growth of offiaal sjstem in, 97.

(See also Connecticut, Constables,

etc.)
I larvey, George, 287, 295, 299.
Harwood, Dr. John, 288, 295, 297;

Gilmer's negotiations with, 299-

301.
Harwood, Dr. William, Gilmer's ne-
gotiations with, 299-301.
Haward, in Connecticut,vii-ix, 96, 98.
Hawes, Horace, 116, 126; address

of, quoted, 120; objections of, to

revenue ordinance, 123; demands

information on town lot question,

128; suspended from office, 130.
Hav, George, 232.
Hearn, W. E., quoted, 496, 535.
Henderson, Stephen, leaves property

to poor of New Orleans, 178.
Hennen's Digest, quoted, 179.
Henry, Mr. Jtutice, quoted, 510.
History, Toynbee's interest in, 6 ff.
Hittell, quoted, 79.
Hodgson, Adam, 286.
Holme& Captain^ expedition of, to

Windsor, vii-ix, 9, 10; purchases

land of Indians, 32, 34.
Holmes, Judge^ 227.
Hooker, Thomari, vii-ix, 12, 13 ; leads

emigration to Connecticut, 25 ;

quoted, 26, 92.
Hooker's suit, vii-ix, 91.
Horner, Leonard, 273, 274 ; and the

University of London, 298.
Howe, \Vm. W., on the municipal

history of New Orleans, 155-187.
Huj^ht'S, Thomas, 46.
Hume, Joseph, and the Univenitj

of London, 298.

Iberville, founds Biloxi, 159.

Indians, on the Connecticut, appeal
to Plymouth to found a settle-
ment, vii-ix, 7 ; to Boston, i6., 7 ;
their sales of land to the settlers,
ib., 32 ff. ; reservations for, ift., 35 ;
policy of Canadian government
toward, 615.

Industries, subsidized in Connecticut,
vii-ix, 39, 49.

Inspector, in Connecticut, vii-ix, 101.

Insurance, power over, in Canada,
508.

Ivory, James, 246, 283.

Jameson, Prof. Robert, 276, 277, 278.

Jefferson, Thomas, influence of, on
his countrymen, 200; plan for Vir-
ginia education, 202; connection
with Central College, 202 ; origin
of University of Virginia, 207 ; its
location, 208; establishment, 209;
early negotiations for professors,
209 AT. ; corresponds with Gilmer,
228 ; quoted, 232, 242, 248, 306,
306 ; asks Gilmer to be commis-
sioner to England, 236, 237 ; on
the law professorship, 238-240;
anxiety over arrival of professors,
309, 310; prescribes text- books in
government, 310; the law profes-
sorship again, 311, 312. (See also
Gilmer.)

Jeffrey, 272, 273.

Jesuits, in Canada, 472: controTerqr
over their estates, 518-620.

Johnson, Chapman, 209, 287 ; letter
to, 268.

Johnson, Edward, quoted, vii-ix, 12.

Johnson, Georse, quoted, 694.

Johnson, Dr. Sunuel, 302.

Johnston, Prof. A., his view of in-
corporation, vii-ix, 78, 94 ; on ori-
gin of townsmen, 105; his theory
of town sovereignty criticised,
120 fi:

Judd, quoted, vii-ix, 43.

Justices of the peaco, bupersede ayun-

tamiento in Cali^'omia, 91 ; in Con-

Mcticut, vii-ix, 103.

168

Ificieac.

[624

Kaye, Dr. J., 251.

Keewatin, district of, 612.

Kennedy, alters Wirt's letters, 216.

Kent, (JhanceUor, 306.

Kewen, E. J. C, letter of, quoted,
129.

Key, T. H., 259 ; Gilmer's negotia-
tions with, 259-266; secured, 282;
arrives, 311; returns, 313; subse-
quent career, 313.

King's College, attempt to secure
English professors for, 302.

Knox, Dr.y professor in Central Col-
lege, 204.

Knox, Dr. Robert, 278, 286.

Lammas fields, vii-ix, 69, 70.

Land system, in the river towns of
Connecticut, vii-ix, 32-81.

La Salle, 159.

Laussat, 167.

Laveleye, E. de, quoted, vii-ix, 72.

Law, John, 160.

Lawyers, in Connecticut, vii-ix, 103.

Lete'lher, M., case of, 536, 584.

Legar^, Hugh S., 228.

Leslie, Pr^. John, 2^9, 275, 286,
292; letter from, 267.

Levermore, Dr. C. H., quoted, vii-ix,
86, 100, 105.

Lister, in Connecticut, vii-ix, 101.

Lomax, J. T., made professor in Uni-
versity of Virginia, 312.

London, University of, Gilmer's in-
fluence on foundation of, 298.

Long, George, 291 ; offered professor-
ship in University of Virginia,
277 ; negotiations with, 277-281 ;
accepts, 286 ; arrival, 306 ; returns
to London, 313.

" Lord's Waste," vii-ix, 18, 19.

Louis XIV, decides to take the gov-
ernment of Canada into his own
hands, 465.

Louisiana, discovery of, 159 ; first
settlement in, 159; granted to
Crozat, 160 ; to the Mississippi
Company, 160; ceded to Spain,
161 ; government of, under French,
162; under Spanish, 164; ceded

to United States, 167; elective
franchise in, 182; boundaries of^
228.
Loyalists, effect of their arrival on
Canada, 472.

M

Macdonald, Sir John, 499, 543, 604;
quoted, 601, 509, 544.

Mackintosh, 292, 293, 294.

Madison, James, 202, 204, 209, 213,
214; quoted, 201; makes out list
of theological books for University
of Virginia, 301 ; chooses text-
books in government, 310, 311.

Maine, Sir Henry, vii-ix, 30; quoted,
533, 547, 551. ^

Manchester, vii-ix, 75, 76.

Manitoba, province of, formed, 577 ;
given a constitution, 582. (See
Canada.)

Marlborough, vii-ix, 75, 76.

Marshall, John, 197, 620, 521.

Martin, F. X., quoted, 159, 166, 167.

Mary, Joseph C., leaves money to
New Orleans, 178.

Mason, Qovernor E. B., quoted, 101.
103, 104.

Massachusetts Bay, and early expe-
ditions to Connecticut, vii-ix, 7,
11; opposes emigration to Con-
necticut, 13, 25, 26; General Court
of, forms provisional government
for Connecticut, 23 ; democracy m,
incomplete, 27, 85; perambulation
in, 100.

Mather, Samuel, vii-ix, 76.

Manrer, G. L. von, vii-ix, 30.

McClurg, Dr., 221.

McCosh, Dr. James, quoted, 68.

McCuUoch, J. R., 263.

McDonogh, John, donation of, to Bal-
timore and New Orleans, 179-181.

Meadow, common, vii-ix, 68 ff.

Merrimac, visited by men from New-
town, vii-ix, 12.

Messuage, vii-ix, 70.

Micheltorena, Governor, 93, 95.

Middletown, vii-ix, 79.

Mill, J. S., quoted, 612.

Milne, Alexander, leaves property
to New Orleans, 177.

Missions, in California, designed to
be temporary, 79.

625]

Index,

169

Mississippi, jetties at mouth of, 161.

Mississippi Company, 160.

Mix, manuscripts of, quoted, vii-ix,
17.

Mofras, quoted, 78, 92.

Monroe, James, 202, 208; recom-
mends professors, 303.

Montague, F. C, on Arnold Toynbee,
1-53.

Montgomery, Commodore, occupies
San Francisco, 95.

Moraga, Jos^, 76, 78.

Morell, Captain Benjamin, quoted, 87.

Morse, John T., Jr., 201.

Moses, B., on the establishment of
municipal government in San Fran-
cisco, 71-153.

Murray, John A., 247.

N

Neighborhood Guild, C. B. Stover
on, 65-70.

New Brunswick, condition of, in
1837, 578; given responsible gov-
ernment, 579. (See Canada.)

Newfoundland, remains out of feder-
ation, 482.

New Haven, vii-ix, 86, 100.

Newington, vii-ix, 75, 76.

New Orleans, W. W. Howe on the
municipal history of, 155-187 ;
founded, 160; made seat of gov-
ernment, 161 ; government of,
under French, 162; passes to
Spain, 163; resistance of inhabi-
tants, 163 ; new form of govern-
ment^ 164 ; sources of revenue,
165; in the American Revolu-
tion, 166; new government insti-
tuted by LausBat, 167 ; purchaseil
by United States, 167; charter
of 1805, 167; its provisions, 168;
charter of 1836, 169; of 1862,
170; of 1856, 170; under mili-
tary rule, 170; Administration sys-
tem introduced. 171 ; its merits,
172; abolished by present charier,
173; its provisions, 173; Fire De-
partment, 174; levees, drainase,
and paving, 175; water supplv,
176; gas supply, 177; chnritable
donations in the hands of the city,
177; history of elective fmnchiae

in, 182; restraint on taxing power,
183 ; control of citizens over polity,
184; Auxiliary Sanitary AkmkIh-
tion, 185; Committee of One Hun-
dred, 186; Young Men's Demo-
cratic Association, 187.

Newtown, inhabitants of, remove to
Connecticut, vii«ix, 12, 13, 20, 21,
26.

New York Ameriean, qooted, 309.

Norton, Frederick. 29/, 300.

Nova Scotia, condition of, in 1887,
578; given (X)nstitutionaI govern-
ment, 579. (See Canada.)

o

Ogilvie, James, 218*220; quoted, 206.

Oldham, John, in Maasachusetts vii-
ix, 10; firstjoumey of, to Connecti-
cut, 10; evidence as to settlement
of, at Wethersfield in 1634, 14-17;
land of, how held, 32.

Ontario. (See Canada.)

O'Reilly, Alexander, 168, 164, ItSO.

Palou, Father, quoted, 76.

Parkman, F., quoted, 465.

Parr, Dr. Samuel, 244, 256, 267, 272,
275, 277, 283, 292 ; letter of, quoted,
295.

Parton, James, 201.

Pauger, proposes jetties at mouth of
Mississippi, 161.

Peachy, A. C, opinion of, on owner-
ship of lands in San Franciaoo, 127.

Pensions, in Connecticut, vii-ix, 87.

Pequots, attack Indians on the Goo«
necticut, vii-ix^ 6.

Perambulation, vii-ix, 98-IOOl

Percival, J. (J.,

Philaddphia GoMUe, quoted, 806.

Pictet, 238.

Pinder, in Connecticut, Tii-ix, W, W.

Plymouth, Indtansappeel to. to found
settlement oniheOoonectic^it, vii-
ix,?; sends commi«ion to Boston,
7 ; builds fort at Windsor, 8, 9 ; die-
pnte of, with Dorebester, 18 ; per-
ambulation iiulOO.

Pope. William, 222. 802.

170

Ifkdex,

[626

Poydras, Julien, 166.

Praed,W.M., 269,271.

Pratz, Le Page du, quoted, 161.

Prefects, duties of, in California, 120.

Presidio, character of, 78.

Previous question, in Canada, 571,
572.

Prince Edward Island, absentee land-
lords in, 578 ; given responsible
government, 579. (See Canada.)

Privy council, appeals to, from Can-
ada, 497, 522, 524.

Paeblo, organization of, 80.

Q

Quakers, excluded from Connecticut,

vii-ix, 84, 85, 86.
Quebec. (See Canada.)
Quebec act, 471.

R

Randall, H. S., quoted, 208.
Randolph, John, 197, 226, 254; his

relations with Gilmer, 305; his

opinion of Gilmer, 317.
Randolph, Thomas M., 222.
Rates, in Connecticut, vii-ix, 114 ff.
Recorder, in Connecticut, vii-ix, 101.
Regidores, in California, 82, 83, 85 ;

in Louisiana, 164.
Rice, Dr., J. H., 199, 211.
Richmond Enquirer, quoted, 307.
Riley, Gen^l Bennett, proclamation

of, 114.
River towns of Connecticut, C. M.

Andrews on, vii-ix.
Rocky Hill, vii-ix, 75, 76.
Rush, Richard, 242, 244, 295.
Ruskin, John, effect of, on Toynbee,

14 ; his descriptions, 27.

S.

Saltonstall, Sir Richard, sends out
Stiles party, vii-ix, 19.

Sanchez, Francisco, quoted, 90.

San Francisco, establishment of mu-
nicipal government in, Prof. Moses
on, 71-153; discovery of, 75 ; first
settlement at, 76; appearance of,
in 1792, 77 ; government of, before

1834, 87 ; erected into a pueblo, 88 ;
new ayuntamiento, 90; effect of
Constitution of 1836, 91; syndic
and alcaldes in, 92, 93, 96, 97, 98,
99; passes to United States, 95;
new government in, 101 ; effect of
discovery of gold on, 105 ; confusion
of government of, 106 ; new gov-
ernment in, 107 ; general code
of laws in, 113; courts in, 113;
new government declared illegal
and old re-established, 114, 116;
improvements recommended by
Geary, 117; revenue ordinance,
122; the cause of confusion, 124;
trouble over land grants, 126 ; city
charter, 130; its provisions, 132;
officers, 136 ; scheme of council for
plundering treasury, 137 ; public
protests, 138; ordinance vetoed,
140; further organization, 141;
effect of California's admission as
a State, 147 ; character of city ad-
ministration, 148; new charter,
149 ; end of old council, 153.

Say, J. B., 205.

Schools, land granted to, in Connec-
ticut, vii-ix, 40; support of, 115.

Seeley, J. R., quoted, 616.

Seigniorial system, abolished in Can-
ada, 479.

Shore, John, 244.

Sickles, S. V., leaves money to New
Orleans, 179.

Simsbury, vii-ix, 75, 76, 79.

Sloat, Commodore John D., occupies
Monterey, 94.

Smith, Goldwin, quoted, 552.

Smith, Sir James Edward, 250, 251.

Smith, John, Gilmer copies MS. re-
lating to, 294.

Smith, Hon. Ralph D., quoted, vii-ix,
55.

Smith, Toulmin, quoted, vii-ix, 84, 99.

Southampton, vii-ix, 123.

South Windsor, vii-ix, 75, 76, 77.

Spain, provisions of constitution of
1812 as to local government, 82 ff.

Stewart, Dugald, 283 ; letter of, quo-
ted, 289.

Stiles, Francis, leads party to Wind-
sor, vii-ix, 19.

Stiles, Dr. H. R., quoted, vii-ix, 21,
32, 33, 35, 37, 59, 77, 88, 101, 103,
111, 114.

627]

Index,

171

Stover, C. B., on the Neighborhood
Guild in New York, 65-70.

Strong, Mr. Jtaticty quoted, 680.

Strong, Dr. Josiah, quoted, 68.

Suffrage, in Ck)nnecticut, vii-ix, 30,
82 ff.

Sulpitians, 472.

Superior Council, governs New Or-
leans, 162.

Surveyors, in Connecticut, vii-ix, 96,
98, 101.

Swift, M. I., 67, 68.

Syndic, in California, 82, 83, 85, 92,
93 ; in Louisiana, 164, 165.

T.

Talcott, MxM Mary K., vii-ix, 5.
Tax-collectors, in Connecticut, vii-ix,

93, 96, 101.

Taylor, John, of Caroline, letter of,
quoted, 200.

Taylor, Robert, 209.

Tazewell, L. W., 197, 221.

Teignmouth, Lord^ 244.

Terrell, Dabney C, 232.

Thorp. W. B., 67.

Ticknor, George, 212, 226, 228, 246;
letters of, to Gilmer, 319-329.

Tocqueville, A. de, quoted, 548.

Todd, A., quoted, 496, 497, 499, 607,
638, 598.

Torrey, John, 303, 305.

Touro, Judah, leaves money to New
Orleans, 178.

Town, the historic, vii-ix, 30.

Town meetings, in Connecticut, vii-
ix, 112, 113.

Townsmen, in Connecticut, vii-ix, 93,

94, 95, 96, 98, 101, 104 ff. ; become
selectmen, 109.

Toynbee, Arnold, F. C. Montague
on, 1-53 ; early years, 5 ; enters
Ballioi CoIl^;e, 11; personal ap-
pearance 11; conversational pow-
ers, 12; aoqoaintanoe with Ruskin,
14; ftudies political economy. 16;
relig^oos opinions, 16; takes lodg-
ings in Whitechapel, 24; inter-
Yus of rest, 26 ; his common sense,
28; appointed tutor at Ballioi, 30;
marries, 32 ; his ideas of eoooomic
methods, 33; studies the indostrial
revolution, 33; his views on com-

petition, 34 ; forms an eoon(Hnic
club, 35; gives popular lectures,
37, 51 ; his views on co-operation,
41 ; on church and state, 43 ; work
among the poor, 49; travels. 60;
last da^s, 62 ; letter of, ouoted, 66-
67 ; his ideas of 'social responsi-
bility, 67.

Toynbee, Joseph, 6.

Toynbee Hall, P. L. Gell on the work
of, 57-64. (See also Neighbor-
hood GuUd.)

Toynbee Trust, 58.

Tracy, Destutt, 205.

Trent, Wm. P., on English culture
in Virginia, 189-329.

Trumbull, Dr. B., quoted, vii-ix, 22.

Tucker, George, elected professor in
University of Virginia, 306, 307.

Tucker, H. St. George, 227, 228, 241,
311.

Turf and twig, possession by, vii-ix,
41.

Tuttle, Rev.^ quoted, vii-ix, 21.

Tweddel, John, 271.

U

Ulloa, Antonio de, 163.
Unzaga, 166.
Upshur, Abel P., 222.

Vancouver, quoted, 77.

Vau^han, Beniamin, 232.

Virginia, English culture in, W. P.
Trent on, 189-329 ; state of culture
in, at bc^nning of century, 197;
financial ruin of, 223 ; Gilmer on,
266 ; perambulation in, vii-ix, 100.

Virginia, University of, 248, 26^266;
origin of, 207; located, 208; es-
tablished, 209; first salaries in,
303; opens, 311. (See Gilmer,
Jefferson.)

w.

Walker, Francis, 215.
Walker, John, 254.
Wampum, in Conneciicat» Til-ix, 34,
35.

172

Index,

[628

Warham, vii-ix, 92 ; date of coming
of, to Connecticut, 21, 25.

Warner, public, in Connecticut, vii-
ix, 96, 99.

Washington College, 199.

Watertown, earlj exodus from, to
Connecticut, vii-ix, 13; connection
of Oldham with, 14 ; later immi-
gration from, 21 ; size of lots in,
43.

Way-wardens, in Connecticut, vii-ix,
98.

Webster vs. Harwington, citetl, vii-
ix, 121.

Western Company, 160.

West Hartford, vii-ix, 75, 76.

Wethersfield, diagram of early allot-
ments in, vii-ix, 4; earliest settle-
ment at, 13 ff. ; lands of, 34, 42, 43,
44, 45, 46, 47, 48, 49, 51, 62, 53, 54,
56, 57, 60, 61, 63, 64, 65, 66, 67, 73,
74 ; town offshoots of, 75 ; officers
chosen in, 102. (See also Connec-
ticut, Constables, etc.)

Wickham, 197.

AVilliam and Mary College, 199, 211,
248.

Williard v«. Killingworth, cited, vii-
ix, 121.

Wilson, John, 289.

Wilson, Woodrow, quoted, 547.

Windsor, settlements at, vii-ix, 9, 17
ff ; claim of, to priority of settle-
ment, 17 ; disputes over possession
of, 18 ; lands of, 34, 42, 48, 60, 51,
52, 56, 58, 59, 62, 67, 68 ; town off-
shoots of, 75, 76, 77 ; regulates ad-
mission of inhabitants, 87,88. (See
also Connecticut, Constables, etc.)

Windsor Locks, vii-ix, 75-76.

Winslow, Edward, vii-ix, 7, 18.

Winthrop, John, vii-ix, 19, 39, 49,
126; quoted, 15, 22.

Wirt, William, 197, 217, 221, 228,
230, 231, 314; quoted, 216, 220;
letter to, 254 ; offered law profes-
sorship, 312.

Wordsworth, Dr. Christopher, 251.

Young Men's Democratic Associa-
tion, in New Orleans, 187.

H Montague, Francis Charles

59 Arnold Toynbee

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