Invisible Landmark: The Beginnings of Compulsory School Attendance in Massachusetts

Nicky Hardenbergh
Independent Scholar
September 7, 2014

One May morning in 1852, the Massachusetts Senate enacted more than twenty-five bills, including An Act concerning the Attendance of Children at School (the Attendance Act).[1] Governor George Boutwell signed the bill that same day. In the language of the Act, parents of children ages eight to fourteen were required to send their children to “some public school,” unless their children were “otherwise furnished with the means of education” or had satisfied one of three other requirements for exemption. With this statute, Massachusetts became the first state in the nation to enact a compulsory school attendance law.

Given the historic nature of this statute, one might expect its passage to have been the result of determined effort on the part of school reformers. Quite the opposite is true, at least according to the limited historical record sounding this legal milestone. Surprisingly, it was a different, earlier statute that engaged the efforts of well-known reformers, including Horace Mann himself. The coercive measure that Mann had suggested was embodied in the 1850 Act concerning Truant Children and Absentees from School (the Truant Act).[2] With the passage of the Truant Act, children between the ages of six and fifteen who were shown to be “habitual truants, and children absenting themselves from School, and not having any lawful and regular vocation” could be sentenced to “some house of reformation for juvenile offenders,” [3] if other methods of convincing them to attend school proved ineffective.

That truancy could be punished as a crime when school attendance was not legally required of all children seems curious to us today. We need to understand that antebellum policymakers were accustomed to an education system in which schools were provided at public expense but attendance was not compulsory. In that pre-compulsory era, parents were assumed to be fulfilling their obligations to educate their children unless proved otherwise. The Truant Act’s provisions place that law firmly in that pre-compulsory era. The 1852 Attendance Act, however, represents a significant shift in parental legal responsibility. Now, as characteristic of all modern compulsory attendance laws, the parental responsibility to provide for their children’s education was transformed into the “duty to place children in schools authorized and overseen by the state.”[4] The 1852 Attendance Act achieved this shift by placing upon local authorities the responsibility to see that all parents sent their children in public school or else explained satisfactorily the reasons for the child’s non-attendance.

Any history of the genesis of compulsory school attendance in Massachusetts and, therefore, in the nation, must take into account the existence of these two distinctive coercive statutes – their particular histories, legal structures, and enforcement patterns. The Truant Act of 1850 and the Attendance Act of 1852 should not be conflated, as they have been in historical accounts since the 1890s. A review of previous treatments of the history of compulsory attendance in Massachusetts reveals that the Attendance Act has been awarded a history that properly belongs to the Truant Act. The Truant Act possesses a rich documentary history; we can learn a great deal about the forces behind its enactment and about how it was “efficiently enforced … with the happiest effect” after its enactment.[5] The Attendance Act, by contrast, is barely documented by contemporaries. By all accounts, or, rather, lack thereof, the nation’s first compulsory school attendance act, a landmark today, was virtually invisible at the time of its passage.

Previous Treatments of the Attendance Act

The first chronicler of the history of compulsory attendance, John Philbrick, was in no danger of conflating the Attendance Act with the Truant Act. He was clear that the Truant Act was the important legal milestone in the history of compulsory attendance. Philbrick himself, as a Boston schoolmaster, had played an active role in the passage and implementation of the Truant act, as will be shown. A decade later, in 1861, as Superintendent of Boston schools, he discussed the law at length in his influential report on “Truancy and Compulsory Education,” with a sequel the following year. [6]

Philbrick devoted over 100 pages to the history of the Truant Act. To the Attendance act, he devoted only three pages, in which he reiterated the remarks of ex-Governor George Boutwell,[7] written the previous year while Secretary to the Board of Education. In a catalogue of education laws, Boutwell had described the 1852 statute as “but a reproduction” of a Puritan education law of 1642,[8] an assertion that is spurious, as we shall see, though Boutwell and Philbrick likely believed what they said. Both men had been in a position to have personal knowledge of the forces behind the enactment of the Attendance act (Boutwell even signed it, as Governor). The fact that neither of them provided any such information in their writing strongly suggests they were unacquainted with the statute at the time of its passage.

The minimal treatment of the Attendance Act in Philbrick’s report is all the more surprising because the entire purpose of his report was to discuss the “progress” made toward the goal of “compulsory education,” which he considered only “partially developed and perfected as an element of public instruction.”[9] The Superintendent deemed it “highly desirable that information respecting [compulsory education’s] progress from its beginning to this time, should be generally diffused to serve as a landmark and as an intelligent basis for future efforts.”[10] “Diffused” it was indeed; Philbrick’s work is cited, directly or indirectly, in most subsequent treatments of the topic.

Over a generation later, in the early 1890s, two men, George H. Martin, former agent of the Massachusetts Board of Education, and William Torrey Harris, United States Commissioner of Education, published histories of compulsory school attendance. Martin’s book began as a talk, entitled Compulsory Education in Massachusetts,[11] presented to a national conference in 1891. Martin explained, accurately, that a rural legislator had introduced the 1852 bill, but he claimed, erroneously, that the “evils” of non-attendance were then “most conspicuous” in small towns.[12] He further correctly observed that the law “did not emanate from the Board of Education,” but he mistakenly asserted that Mann had “eloquently pleaded” for a statute such as the Attendance act in “one of his Reports.”[13] Martin had evidently read Mann’s 1847 statements about “coercive measures,” which will be discussed later. Apparently, Martin was unaware that the compulsory measure Mann favored (and never “pleaded” for) was actually embodied in the Truant act, not the Attendance act.

William Harris attended the same conference. At the time, he was assembling his own extensive survey of “Compulsory Attendance Laws in the United States.”[14] Harris explained the 1852 act as simply the inexorable final step in a long process, asserting that “provisions for increasing school attendance were devised, which finally led up, through the truant law of 1850, to the compulsory attendance act of 1852.”[15]

Martin consolidated the Martin-Harris in his subsequent, widely reprinted book, which contained an introduction by Harris.[16] In this enlarged version of his 1891 lecture, Martin compounded his earlier error by omitting any mention of the rural legislator. Instead, he spoke of the instrumental role of Mann and the Board of Education in the passage of the 1852 Attendance act:

Before the close of [Mann’s] service he came to advise compulsion. A few years later the Board of Education urged the Legislature to come to its aid, and in 1852 the first compulsory school attendance law in the Union was enacted.[17]

Harris’ connection of the Board of Education to the 1852 statute represents another factual error. The Martin-Harris erroneous version has persisted through the decades, as shown in this passage from a 1973 textbook: “[b]y 1847 Mann had been converted to the principle of compulsory attendance, and in 1852 Massachusetts passed a law requiring children to attend school.”[18]

Two other authors whose names often appear in histories of compulsory attendance are William Perrin and Forrest Chester Ensign, and neither of them provided any new information about the 1852 statute. Perrin published his influential 1896 dissertation entitled The History of Compulsory Education in New England[19] soon after the publication of Martin’s book. Perrin’s thesis relied heavily on the accounts of Martin and Harris and contained no primary source material not included therein. Ensign, in his 1921 Compulsory School Attendance and Child Labor,[20] offered a new interpretation, though with no documentation: “forces back of the law of 1852 appear to have been political, including the influence of organized labor, and philanthropic.”[21] While organized labor and philanthropic entities may well be tied to later legislation, there is no evidence of such influences in the 1852 statute.

Modern scholarship sheds no new light on the origins of the legislation. Michael Katz, in his 1968 influential work, The Irony of Early School Reform,[22] alone among historians, noted the apparent anomaly of making truancy a crime in the absence of a compulsory attendance statute. In a footnote, Katz observed with surprise that “truancy became a punishable offense two years before attendance at school became compulsory!” [23] Yet, even in his History of Compulsory Education Laws,[24] he did not investigate the origins of the 1852 statute. Likewise, numerous scholars following Katz have examined various aspects of compulsory attendance legislation, but none explored the antecedents of the 1852 law itself.[25]

By contrast, the Truant Act has been examined in great detail, in The Culture Factory: Boston Public Schools 1789-1860, by Stanley Schultz.[26] Schultz relied heavily on Philbrick, who is a reliable source for the Truant act, and also included new primary source material. Yet Schultz, like Harris before him, seemed at a loss to explain the existence of the Attendance Act. His one sentence undocumented explanation — “[i]n 1852, the efforts of Bostonians resulted in the first statewide compulsory school law in the United States” [27] – is simply unfounded.

Schultz’ mistake of attributing the Attendance Act to the work of Boston authorities occurs again in Stephen Provasnick’s review of the Massachusetts experience in his exhaustive investigation of the enactment of the Illinois compulsory attendance statute. [28] Additionally, Provasnik seemed to assume that some 1853 truant prosecutions were the result of the Attendance Act, when those prosecutions could only be the result of the Truant Act.[29] Neither of these errors detracts from the value of Provasnik’s singular contribution to the literature. Provasnik makes an apt observation concerning the lack of studies about the origins of compulsory statutes: “scholars have left untold how one of the defining features of the modern American public school system came to be.”[30] Based on the significantly different histories of Illinois and Massachusetts, we may conclude that the full story cannot be told without investigating the records of each individual state.

Emergence of concern with the evils of non-attendance

In the 1820s, when common school reformers first began agitating for better schools, school enrollment and literacy rates were high.[31] While most school age children were enrolled in school, irregular attendance was the norm; this irregular attendance was not considered troublesome, particularly in traditional one room schools, where students worked at their own paces. The innovation of “classing” in urban schools changed the traditional order. Now students were expected to progress through a “graded” curriculum in groups, or “classes.”[32] In the new system, absent students “deranged”[33] the classroom organization, and policymakers complained about the resulting extra work generated for teachers. Reformers were concerned about full and regular attendance for reasons larger than eliminating extra work for teachers, however. Regular attendance was a cornerstone in school reformers’ plan to use the schools to train the future citizens of the still-new Republic.

Not long after Horace Mann assumed his position as Secretary to the Massachusetts Board of Education in 1837, he turned his prodigious energies toward opening “the public eye” to the “extent of non-attendance upon our schools.”[34] Although he frequently spoke of the evils of irregular attendance, it was not until his Eleventh Report, completed December 1847, that Mann raised the possibility of “coercive measures.” In that Report, he presented his plan to harness “the power of common schools to redeem the state from social vices and crimes.”[35] Having established that schools could, indeed, provide this redemptive function, and that universal attendance was necessary to achieve such redemption, Mann proceeded to discuss how to get all children to attend.

According to Mann, almost all parents could be convinced of the value of educating their children; whether they preferred to educate their children at home or in public or private school made no difference, as long the “means of education” were provided.[36] There would be some parents, however, even if offered the financial assistance Mann suggested, who would remain “impervious to those moral considerations which should impel them to train up those children in the way they should go.”[37] For “this class of parents,” Mann continued, “some coercive measures will be necessary to secure the attendance of their children at school. I admit this.” [38]

Mann discussed in some detail various precedents for “securing education, even at the expense of coercive measures.”[39] He was mindful of objections to intrusions into the parent-child relationship, observing that “there exists a well-grounded reluctance, on the part of free governments, to any such interference with parental relations that is not made necessary by the nature of the government itself, or by the criminal conduct or culpable neglect of the parents.”[40] This statement about “interference with parental relations” was made in the context of the Mill Act of 1836,[41] a law that prohibited mill owners from employing any child under the age of 15 unless that child had attended school for at least twelve weeks in the previous year. As Mann explained, such regulation of mill owners was appropriate because “those who employ other men’s children for their own profit cannot intrench themselves behind the sacredness of parental rights.”[42]

Thus, Mann did not propose the Mill Act as an appropriate model for his “coercive measure.” Rather, he turned to a precedent revered by his fellow citizens: the Puritan law of 1642.[43] Common school reformers frequently alluded to this colonial statute and the companion 1647 school law, and both statutes would have been familiar to Mann’s readers. Most Protestants in Massachusetts in the 1840s considered themselves children of the Puritans and could, in fact, trace their ancestry directly to the “Great Migration” from England (which began after the Pilgrims landed at Plymouth in 1620, accelerated greatly when the Puritans arrived in Boston in 1630, and ended in 1642, when the English Civil War commenced). To antebellum policymakers, the term “our Puritan fathers” was not a poetic metaphor, but a genealogical truth.[44]

The 1642 statute on “Youth and Children” merits attention, because both Mann and his critics invoked it to support opposite positions. This statute obliged “masters of families”[45] to educate the children or apprentices in their charge. The law’s preamble stated that many parents had proved “too indulgent and negligent of their duty” to provide a “good education.” The statute therefore required parents to train their children and apprentices in “some honest lawful calling, labour or imployment.” Transgressors could be fined and their charged could be removed and “placed out” in another household.

The Puritan requirement for training in a “lawful calling” had precedent in English vagrancy legislation, which included provision for children of vagrants to be taken from their parents and bound out to service.[46] The Puritan statute, however, contained a novel stipulation, unprecedented in England or elsewhere: masters of families were obliged to ensure that their children were able “perfectly to read the English tongue” and “the capital laws” (a one page document listing the crimes that warranted the death penalty, accompanied by scriptural justification for the penalty).[47]

In his use of the Puritan precedent, Mann overlooked the profound differences between his society and that of the Puritans 200 years previous. The Puritan colony was religiously, socially, and economically homogeneous, founded, in the main, by educated English settlers, who were generally united in dedication to a life guided by Scripture. Even the Puritan’s reading requirement stemmed from their notion that the ability to read was fundamental to proper piety.[48] Two centuries later, by contrast, Massachusetts was politically democratic, rapidly industrializing and urbanizing, with no official religion. The descendants of the Puritans[49] had been joined by a second “great migration,” composed of a very different group of immigrants: destitute, unskilled, Catholic (or nominally so) Irish settlers who were escaping the famine of the 1840s.[50] These new immigrants represented a dramatic change in the previously homogeneous composition of Massachusetts society.

Thus, Mann’s use of the Puritan law as a precedent was flawed: that law had been enacted in an earlier age in a time of Puritan hegemony. Mann mischaracterized the 1642 law when he described the provisions of the law as follows: “when the natural parent broke from the ties of consanguinity and duty, by neglecting the education of his children, the law interfered and provided a civil parent for them.”[51] Mann’s choice of the phrase “civil parent” represented a significant omission, purposeful or not, of the salient fact of the Puritans’ religious zeal, an omission that did not go unnoticed by his critics.

One outspoken critic, A. W. McClure, the editor of the Calvinist Christian Observer, took exception, in 1848, to several points in Mann’s Eleventh Report. As to the use of the Puritan precedent, McClure pointedly maintained that “the motive of our Puritan fathers in founding our free-school system” was to buttress the Puritan belief in “restraining grace, operating through the means of instruction … to keep human depravity in bounds.”[52] McClure’s use of the term “human depravity” hinted at the ongoing theological debate between the “orthodox” (Calvinists) and the Unitarians (Mann was a Unitarian). McClure objected to what he viewed as Mann’s unscrupulous use of the Puritan precedent to further “his scheme, which is to be carried out by a huge corps of semi-infidel transcendentalists in pants and pantalets; with whom ‘grace’ is either sentimentalism or a joke.” [53] According to McClure, the merely secular Board would become “the seat of all moral and intellectual power,” and Mann’s scheme would lead to “the Prussian system in all its glory.”[54]

Mann himself had avoided any reference to the Prussian system in his argument for coercive measures in the Eleventh Report. He was already acutely aware of his fellow citizens’ “very erroneous” notion that legally enforced attendance was only “the prerogative of despotism,” such as Prussia.^[55] Nonetheless, whether Mann mentioned Prussia or not, his critics routinely did, as the McClure example indicated.

Another critic of the “secular Board” was John T. Roddan, the editor of the Catholic newspaper, The Boston Pilot. Roddan, asserted that the “education of children” should be “the work of the Church, or of the Family,” not the Board of Education. He further declared that “men like Horace Mann …have been allowed by the patient people to tinker over the schools until they have nearly ruined them.”[56] McClure and Roddan both took exception to Mann’s notion that schools could teach morals in a non-sectarian way, but they would have been in accord on little else. McClure, like most Protestants at that time, would have found Roddan’s Catholicism anathema.

The Truant statute advocated, enacted, enforced

Population statistics support Bostonians’ perception of a “tide of pauper immigration … to this City.”[57] This massive infusion of immigrants created an enormous rent in the social fabric. The 1846 Boston school report contained a memorable comment on the deleterious effect of this influx: “immigration is constantly countervailing the Puritan leaven of our people, and reducing the scale of public morals and public intelligence.”[58] School reports from Boston and many other cities and towns, particularly from 1848 onward, abound with references to the crisis. School committee members worried about the future influence of these foreigners. In the words of the Dedham school committee:

What this influence shall be, whether for good or evil, is, to a great extent, to be determined by the education they receive in our schools. These are to fit them, if they are fitted at all, for exercising the rights of freemen and becoming intelligent, orderly and useful members of our great Republic.[59]

Even though school officials generally agreed on the importance of bringing all children into school and commonly complained about poor attendance, only a few school committees outside Boston, notably Lowell and Cambridge, called for coercive measures, and only after Mann had raised the topic in his Eleventh Report.[60] Boston officials alone petitioned the legislature for the Truant law.

The man spearheading this campaign against truancy was Mayor Josiah Quincy, Jr., a seasoned politician well acquainted with reform efforts. His father, Mayor Josiah Quincy Sr., had instituted Boston’s House of Reformation for Juvenile Offenders in 1826. Both Quincy Sr. and Quincy Jr. were close personal friends with Mann. In 1837, Quincy Jr., at that time a colleague of Mann’s in the senate, was instrumental in the establishment of the Massachusetts Board of Education. Upon becoming mayor in 1846, Quincy Jr. sat ex officio on school committee meetings and also on the special committee created to consider “whether any and what measures may be necessary to prevent truancy.”[61] In his January 1848 inaugural address, which would have occurred just after Mann had completed his Eleventh Report, Quincy recommended that application be made to the legislature “for such power as shall enable the city to be in loco parentis” to children who are kept from school.[62]

Since Quincy and Mann shared this concern about preventing truancy, they undoubtedly discussed the topic privately. In 1848, their conversation became public and official. As Mann related in The Common School Journal, Quincy turned to Mann in his capacity as editor of the journal and asked Mann “to communicate some plan which, without arousing the opposition of parents or of the community, should secure the great object of a regular attendance of children — especially of vagrant and abandoned children — upon the city schools.”[63] Quincy’s use of the word “vagrant” is a clue to how Quincy and Mann, both lawyers, considered the problem of truancy. Interestingly, connection between “vagrancy” and “truancy” exists etymologically; “truant” originally meant “beggar” or “vagabond.” The connection also existed legally, at least in Mann’s mind, as his recommendation for a law took the form of a “slight extension” of vagrancy law.[64] Clearly, Mann saw no legal problem with outlawing truancy in the absence of a general compulsory attendance statute.

Mann’s remarks to Quincy appear to be the Secretary’s first and last public pronouncement on the topic of compulsory legislation.[65] He soon left Boston for the federal House of Representatives, having won a special election for the Congressional seat left vacant by the death of John Quincy Adams.[66] Mayor Quincy, too, did not stay long in his post; his term ended at the close of 1848.

Their work continued, nonetheless. The “Report on Truancy,” commissioned by Quincy, was completed by the Boston marshall, Francis Tukey. Marshall Tukey’s report was made public the following year. In it, Tukey explained why a truant law was needed:

After taking a boy to School two or three times, and he finds that nothing further is done, the Police-man’s badge and staff have no terrors for him. … He is disobedient only so far as he is a truant; and there is no law against truancy. I have been into Court with a number of such cases and did not succeed in sustaining the complaint. The decision was almost fatal to the boy, and a great injury to the School to which he belonged. The only course left for us after this was to watch the boy until we could arrest him for some trifling offence known to the law and have him punished, which seemed to be necessary for the good of the boy as well as the School.[67]

Tukey’s report showed that nine out of ten truants were children of foreigners. The motivation for the law, as Tukey’s comments implied, was a desire to get recalcitrant and troublesome boys off the streets and under the salutary influence of school, or, as a last resort, of reform school. [68]

Boston officials moved purposefully to create such a Truant law. Representative Richard Soule, recently of the Boston school committee’s special committee on truancy, [69] introduced the initial bill to the legislature in February 1849. The bill offered by Soule proposed a law that would grant officials the “discretionary power to compel attendance at the public schools of habitual truants and such children, under sixteen years of age and not registered in any school, as are known to spend their time in idleness and mischief.”[70] The law proposed in 1849 was virtually identical to that passed the following year. The “idleness and mischief” wording of Soule’s proposal highlights officials’ wish for more effective social control over budding juvenile delinquents. With this legislation, a direct connection was to be drawn between school attendance and the penal system. Schools thus began to assume a custodial function, in addition to their academic and civic functions. In the words of the Boston school committee, school attendance, “by means either gentle or forcible,” served to keep children “under the good influences of school in the hope of making them good citizens.”[71]

The Truant Law was an “enabling act,” permitting, but not requiring, municipalities to adopt a truant ordinance or bylaw. Any such ordinances and bylaws were to be “conducive to [the children’s] welfare, and the good order of such city or town,” further underscoring the social welfare aspect of the legislation. In those communities that adopted such measures, law enforcement officials could arrest juveniles between the ages of six and fifteen who did not have “any lawful and regular vocation” and had been proved to be “not attending school.”[72] Magistrates were to be empowered to sentence offenders to “some house of reformation for juvenile offenders.” [73]

Soule’s bill passed the House but failed to pass the Senate, which chose to postpone consideration “indefinitely,”[74] to the great frustration of the Boston school committee, who in their next report, attributed the lawmakers’ reluctance to concerns about parental rights. Senators reportedly considered that “the evil was of a nature rather to be corrected by domestic [parental] discipline than by the sanctions of penal law” and that it was “bad precedent to entrust to the towns the power of penal legislation.”[75]

Galvanized into action by the failure of the measure to pass, the Massachusetts Teachers Association (MTA), founded in 1845,[76] voted to petition the legislature again for the same law.[77] At the next legislative session, newly elected senator George Hillard[78] presented the MTA’s petition, which received a highly favorable report from the Joint Committee on Education.[79] Proponents deemed the law to be necessary principally to deal with “the children of our foreign population,” because of the “fearful increase of crime among them.”[80] (The phrase “foreign population,” at that time in Massachusetts, invariably referred to the recent Irish Catholic immigrants.) The MTA bill was enacted in May 1850.

When discussing actions of legislators at that time, it must be remembered that legislators (as well as the Governor, mayors and school committee members) only served one-year terms. Since the measure was passed by voice vote, we have no record of how the 1850 legislators voted. Perhaps the difference from the previous year was due to newly elected legislators. Or, perhaps legislators who had rejected the bill in 1849 were prompted to overcome their initial reluctance because of lobbying on the part of the MTA. Legislators might simply have been influenced by their own observations of the city around them. Massachusetts’ lawmakers, unlike their brethren in New York (another state with a significant influx of Irish Catholic immigrants), legislated from the heart of the state’s most densely populated city, where lawmakers from rural areas could not avoid noting, on a daily basis, the vast changes wrought by the influx of immigrants.

Following the passage of the Truant Act, the MTA membership congratulated themselves on their achievement. John Philbrick, then a Boston schoolmaster, introduced a resolution proclaiming that the Truant act “meets with our hearty approbation and we earnestly recommend its adoption by the cities and towns of the Commonwealth.” The following year, shortly after Boston had passed a truant ordinance, lead author of the MTA petition, Boston schoolmaster William Swan took a hand in sending the first truant to reform school. The Boston Daily Atlas gave this account:

TRUANT CHILDREN — The first case under the new law concerning truancy came before … the Police Court, yesterday morning. Constable O. H. Spurr … brought up a lad named John O’Brien, who was clearly proved, by the testimony of W. D. Swan, the master, and others, to have been an habitual truant … whereupon the Justice ordered the boy to be committed to the House of Reformation for Juvenile Offenders, for the term of one month.[81]

This news appeared not only in Boston papers, but was repeated in other states, and a New Jersey paper provided the poignant detail that O’Brien was “a lad about ten years of age.”[82] Later that same year, Swan, together with Philbrick, was again instrumental in enforcing the truant ordinance. The Boston Daily Atlas reported two more boys sentenced for “inveterate truancy”: Thomas Sullivan, who attended the school of Master Swan, and Joseph McAllister, who attended the school of Master John Philbrick.[83]

All three convicted truants possessed recognizably Irish names, not surprisingly, indicating they belonged to the “foreign population” that proponents of the legislation had targeted. No less predictably, the journalistic advocate for these newcomers, Pilot editor John T. Roddan, strongly objected to the Truant Act. In his editorial, which was provocatively titled “A New Trap for Catholic Children,” Roddan declared the law to be a snare for “little boys and girls who are guilty of being born of poor Catholic parents.”[84] Once in reform school, the captive Catholic child would receive only Protestant religious training, as Roddan had explained earlier in a novel about a boy named, coincidentally, John O’Brien.[85]

Other editors who commented on the law, by contrast, heartily endorsed the measure. The Pennsylvania Journal of Prison Discipline commented in 1852: “We wish it were practicable to secure similar legislation in our city.”[86] The New York Times likewise extoled the law the same year: “Theoretically, the idea of compelling attendance at school seems rather anti-Republican; but, if we are to be governed by the people, the people must be made intelligent, by force of legal enactments if necessary.”[87]

Modern readers who have little knowledge of the Truant Act might easily misinterpret these references, particularly given the dates of publication, and assume the editors were alluding to the historic 1852 compulsory attendance statute. The articles were, however, lauding the Truant act, either in its original 1850 version or in the 1852 revision sought by Boston officials. The Truant act was the measure that school reformers sought and won; it is the measure that garnered extensive local and national publicity; and it is the measure that a number of cities and towns successfully implemented.[88]

The Attendance Act, by contrast, remained generally invisible and unimplemented.

Attendance statute enacted

On January 21, 1852, Representative Samuel Huntington Batchelder, Whig, of Boxford,[89] a small town north of Boston, requested that the House “inquire into the expediency of reporting a bill requiring all persons residing in this Commonwealth to send children who may be under their care to some school during a part of every year.”[90] Batchelder, who had served on his town’s school committee,[91] was not mentioned anywhere else in the House Journal during his entire two terms in the legislature; introducing this bill is his only recorded legislative act. The Boxford representative might have been influenced by two of his brothers,[92] John and Jacob Batchelder, who were educators in Lynn, Massachusetts. Both men had held office in the American Institute of Instruction and in the Essex County Teachers Association.[93] They would undoubtedly have read two relevant articles that appeared in the 1850 journal of the Massachusetts Teachers Association. The first described a utopian system in which private schools would be rendered unnecessary and all children would attend public school. [94] The second mentioned a debate held at a teachers’ convention on the topic: “should the law compel Attendance on schools?”[95] Clearly Samuel Batchelder, at least, had decided the answer to that question should be “yes.”

The first draft to come out of the Education Committee stated that parents were to send children between eight and sixteen years old to “some school within the town or city in which he resides …”[96] Exemptions were to be allowed for children who were: 1) attending school in another town; 2) being furnished at home “with the means of education for a like period of time;” or 3) prevented by “bodily health” from attending.

The final bill contained most of the elements of the first draft, with one critical change, a change that is difficult to account for, as it does not appear in any of the proposed amendments.[97] The word “public” was added, so that parents were required to cause their children to attend “some public school” [emphasis added] in their city or town. The first line of the enacted statute reads:

Every person who shall have any child under his control between the ages of eight and fourteen years, shall send such child to some public school within the town or city in which he resides, during at least twelve weeks, if the public schools within such town or city shall be so long kept, in each and every year during which such child shall be under his control, six weeks of which shall be consecutive.[98]

The status of private day schools thus became unclear. While an exemption existed for attending school in another town, there was no specific exemption for attending a private school in the same town in which the child resided. The resulting ambiguity about attendance at private day schools was remedied in 1873, in the first revision of the statute, as will be discussed in the next section.

The final bill included some other lesser changes to the initial draft,[99] but one major change was the addition of an exception for parents who could not send their children to school for “reason of poverty.” Provisions for enforcement were included: the school committee was commissioned to inquire into “all cases of violation,” and offending parents were liable to pay a fine, sizeable at that time, of $20.00. In sum, parents of a child of the requisite age who was not in public school were answerable to public authorities. These provisions made the 1852 Attendance Act far from a “reproduction” of the Puritan law of 1642, as George Boutwell would claim in 1860.[100] The Puritan law required education by parents; the 1852 law required education at school. As George Martin observed decades later, “[n]on attendance at the public schools was made prima facie evidence of parental neglect.” While “the parent was as free as ever to exercise his preference in the choice of means of educating,” the “burden of proof was on him to show that he was doing his duty by his child”[101] [emphasis added].

Martin is accurate in his description of the implications of the statute, but it seems unlikely that the legislators saw themselves as introducing any such a dramatic legal shift. Nonetheless, there is little record of what lawmakers did intend. The bill, presumably supported by the leadership, moved through the House and Senate with no recorded opposition.[102] David Tyack suggested that researchers examine the party affiliation of lawmakers who supported such bills,[103] but the Massachusetts statute was enacted by voice vote, indicating that the measure was not considered controversial enough for anyone to call for a recorded vote. Even after the bill was enacted into law, it remained uncontroversial. The Common School Journal was one of the few publications to report on it. William Fowle, Mann’s successor as editor, observed that the poverty exemption nullified the law: “[t]he children thus excused are the very ones that ought to be educated.” [104] Fowle pointed out the inconsistences in the provisions of the Truant law and the Attendance law, suggesting that legislators were not paying sufficient attention to the statutes they enacted.

Barnas Sears, Secretary to the Board of Education in 1852, indirectly agreed with Fowle. While Sears made no mention of the new statute in his Reports, he did express dismay three years later about the number of education laws that had been passed without due consideration. Sears declared it would be well “if new laws proposed for adoption should first undergo a little more scrutiny by some person, or persons, familiar with all the existing enactments on the subject, and the principles on which they are founded.”[105] Perhaps Fowle and Sears were correct, and the 1852 statute, like many pieces of legislation, educational and otherwise, was enacted without much scrutiny on anyone’s part, including prominent school reformers.

Only a few school committees discussed the new statute in their reports. The Chelsea school committee gave a relatively full account of the new law, raising the same objection as Fowle’s, that the exemption for poverty (not eliminated until 1889) made the law worthless.[106] The Framingham school committee stated that attention should be drawn to this law because “[i]ts provisions may not be generally understood [and] [i]t is certain that they are frequently violated.”[107] The Boston School Committee in 1853 cited the new law on a list of “recent legislation.”[108] It is difficult to know, from the silence of school committees in most municipalities, including Batchelder’s own town of Boxford, whether they were aware of the Attendance Act’s existence. Even twenty years later, the law was declared to be “practically unknown to the parents and guardians of the State.”[109]

Epilogue

In 1873, the legislature enacted the first revision of Section 1 of the Attendance act. The 1873 revision included a specific exemption allowing children to attend a “private day school,” but only if the school were “approved by the school committee,” though the committee could not withhold approval “on account of the religious teaching in said school.”[110] If we make the assumption, admittedly a large assumption, that the 1873 revision was needed to clarify the intent of the 1852 legislators, then the provisions of the Attendance Act appear in a new light. It becomes a statute aimed at restricting the ability of parents to send their children to sectarian schools, unless those schools had been approved by the school committee. There is some circumstantial and after-the-fact evidence to support this possibility.

Policymakers’ concerns about unregulated sectarian schools were twofold: first, that the quality of education provided in sectarian schools was regarded as decidedly substandard, not equal to that provided in the common schools; and, second, that the Catholic children who attended these sectarian schools were being indoctrinated by “the Romanists” and were also being deprived of the common school experience that would render them effective citizens of the Republic.

The issue of sectarian schools had a particular significance for school committees in mill towns, because of provision of the Mill Act, which allowed children who worked in the mills to receive their school attendance certificates by attending “some public or private day school.”[111] As George Boutwell explained in his 1860 Report:

[T}he private schools established in manufacturing towns for the reception of children employed in the mills have usually been sectarian in character, and far below the average of the public schools in their ability to impress on the minds of children and youth committed to their care “those virtues which are the ornament of human society, and the basis upon which a republican constitution is founded.” [112]

Perhaps the 1852 legislators had chosen to require all children to attend “some public school,” in order to avoid the pitfalls of the Mill Act.

Two events that occurred that same year, one national and one local, might well have served to heighten policymakers’ concerns about sectarian schools. Nationally, in May of 1852, America’s Catholic hierarchy met in Baltimore for the first Plenary Council of American Bishops. The Council meeting was national news, and Massachusetts legislators were likely aware of the impending event. One of the decrees to come out of the Council exhorted Bishops to establish a Catholic school in every parish, with teachers to be paid from the parochial funds.[113] Locally, in the fall of that same year, in Lowell, Massachusetts,[114] the Sisters of Notre Dame opened the first school in the Commonwealth to be operated by a Catholic teaching order. (Previously, all Catholic schools were operated as adjuncts of an existing parish or convent.)

To the consternation of the Lowell school committee, the opening of the Sisters’ school resulted in an immediate and dramatic decrease in girls’ enrollment in the public schools.[115] This turn of events was particularly alarming because sectarian schools were “beyond the investigation of all public school committees.”[116] This complaint serves to indicate that committee members, if they were even aware of the 1852 Attendance Act, certainly did not think its provisions gave them authority to investigate private schools.

At about the time these events were taking place in Lowell, the Know Nothing party of Massachusetts, with its strong anti-Catholic platform, achieved its meteoric rise to power in the Commonwealth. It would be anachronistic to suggest that the Know Nothings were behind the Attendance act; the party did not exist in 1852, and, in any event, the Know Nothing Legislature of 1855 comprised an almost entirely new slate of legislators from those who had served the previous year. At least one new legislator, however, had ties to the 1852 Attendance Act: John Batchelder of Lynn, the brother of the man who had introduced the 1852 legislation.

The 1855 legislature was certainly aware of the 1852 Attendance Act, for amendments to it were proposed. John Batchelder recommended amending that statute to raise the school leaving age from fourteen to sixteen years. Another legislator proposed removing the exemptions and, thus, compelling all “native and foreign” children to attend the public schools. Neither of those measures passed, perhaps because of the scandal that erupted around the infamous Nunnery Committee.

The Nunnery Committee of the Know Nothing legislature was formed in response to a flood of identical petitions seeking a law rendering all private educational institutions, including convents and nunneries, open and free to public inspection.[117] Not surprisingly, since the Speaker of the House was Daniel C. Eddy, lately of the Lowell school committee, the Nunnery committee chose to investigate the school of the Sisters of Notre Dame in Lowell, as well as two other schools. In their subsequent Report, the Committee announced that, while it would be inappropriate to regulate convents, it would be advisable to pass a law providing for inspection of Catholic and other private schools. Paradoxically, in response to criticism of their bad mannered inspection tours of the Catholic schools, [118] the committee asserted that such a right of inspection already existed in the 1852 Attendance Act, which, they claimed, implicitly granted to school authorities the “power to visit private schools and ascertain what is taught in them.”[119] The committee’s recommendations for inspections of private schools were eventually rejected by the legislature, following the committee’s fall from grace due to, among other reasons, its chairman’s spending public money on a hotel room for his mistress.[120]

The Nunnery Committee episode indicates two contradictory points. On the one hand, in 1855 some legislators, if only opportunistically, deemed that the 1852 Attendance act provided local authorities with the power to investigate sectarian schools. On the other hand, even the Know Nothing legislators were not willing to give local school committees the power to “visit private schools and ascertain what is taught in them,” nor were these legislators ready to compel all children to attend the public schools. Thus, when presented with an opportunity to enact legislation designed to regulate sectarian schools, legislators in 1855 refused. This refusal of the Know Nothing legislature makes it all the more problematic to assert that 1852 legislators had any such intent when enacting the landmark Attendance act.

Nonetheless, Robert Everhart’s 1977 speculation is undoubtedly sound: “[p]erhaps it is more than coincidental that Massachusetts, the first state to pass compulsory schooling legislation, was one of the most heavily populated Catholic states in the nation.”[121] Everhart’s statement needs to be clarified, however, in order to take into account the existence of the two distinctive coercive statutes. While the historical record surrounding the Truant Act certainly supports Everhardt’s speculation, the historical record surrounding 1852 Attendance Act is too scant to confirm much of anything, other than the fact of its passage. As a result, we are left with a non-answer about why the 1852 Massachusetts legislature endorsed the An Act concerning the Attendance of Children at School, the nation’s first general compulsory school attendance law. We can merely record that that statute was enacted without fanfare and remained virtually invisible for the next two decades.