The former were first ordained by the statute of Winchester, as
before-mentioned; and are appointed at the court leets of the
franchise or hundred over which they preside, or, in default of that,
by the justices at their quarter sessions; and are removeable by the
same authority that appoints them[y]. The petty constables are
inferior officers in every town and parish, subordinate to the high
constable of the hundred, first instituted about the reign of Edward
III[z]. These petty constables have two offices united in them; the
one antient, the other modern. Their antient office is that of
headborough, tithing-man, or borsholder; of whom we formerly spoke[a],
and who are as antient as the time of king Alfred: their more modern
office is that of constable merely; which was appointed (as was
observed) so lately as the reign of Edward III, in order to assist the
high constable[b]. And in general the antient headboroughs,
tithing-men, and borsholders, were made use of to serve as petty
constables; though not so generally, but that in many places they
still continue distinct officers from the constable. They are all
chosen by the jury at the court leet; or, if no court leet be held,
are appointed by two justices of the peace[c].
[Footnote y: Salk. 150.]
[Footnote z: Spelm. Gloss. 148.]
[Footnote a: pag. 110.]
[Footnote b: Lamb. 9.]
[Footnote c: Stat. 14 & 15 Car. II. c. 12.]
THE general duty of all constables, both high and petty, as well as of
the other officers, is to keep the king's peace in their several
districts; and to that purpose they are armed with very large powers,
of arresting, and imprisoning, of breaking open houses, and the like:
of the extent of which powers, considering what manner of men are for
the most part put upon these offices, it is perhaps very well that
they are generally kept in ignorance. One of their principal duties,
arising from the statute of Winchester, which appoints them, is to
keep watch and ward in their respective jurisdictions. Ward, guard, or
_custodia_, is chiefly intended of the day time, in order to apprehend
rioters, and robbers on the highways; the manner of doing which is
left to the discretion of the justices of the peace and the
constable[d], the hundred being however answerable for all robberies
committed therein, by day light, for having kept negligent guard.
Watch is properly applicable to the night only, (being called among
our Teutonic ancestors _wacht_ or _wacta_[e]) and it begins at the
time when ward ends, and ends when that begins; for, by the statute of
Winchester, in walled towns the gates shall be closed from sunsetting
to sunrising, and watch shall be kept in every borough and town,
especially in the summer season, to apprehend all rogues, vagabonds,
and night-walkers, and make them give an account of themselves. The
constable may appoint watchmen at his discretion, regulated by the
custom of the place; and these, being his deputies, have for the time
being the authority of their principal. But, with regard to the
infinite number of other minute duties, that are laid upon constables
by a diversity of statutes, I must again refer to Mr Lambard and Dr
Burn; in whose compilations may be also seen, what duties belong to
the constable or tything-man indifferently, and what to the constable
only: for the constable may do whatever the tything-man may; but it
does not hold _e converso_; for the tithing-man has not an equal power
with the constable.
[Footnote d: Dalt. just. c. 104.]
[Footnote e: _Excubias et explorationes quas wactas vocant._
_Capitular. Hludovic. Pii._ _cap._ 1. _A.D._ 815.]
V. WE are next to consider the surveyors of the highways. Every parish
is bound of common right to keep the high roads, that go through it,
in good and sufficient repair; unless by reason of the tenure of
lands, or otherwise, this care is consigned to some particular private
person. From this burthen no man was exempt by our antient laws,
whatever other immunities he might enjoy: this being part of the
_trinoda necessitas_, to which every man's estate was subject; viz.
_expeditio contra hostem, arcium constructio, et pontium reparatio_:
for, though the reparation of bridges only is expressed, yet that of
roads also must be understood; as in the Roman law, _ad instructiones
reparationesque itinerum et pontium, nullum genus hominum, nulliusque
dignitatis ac venerationis meritis, cessare oportet_[f]. And indeed
now, for the most part, the care of the roads only seems to be left to
parishes; that of bridges being in great measure devolved upon the
county at large, by statute 22 Hen. VIII. c. 5. If the parish
neglected these repairs, they might formerly, as they may still, be
indicted for such their neglect: but it was not then incumbent on any
particular officer to call the parish together, and set them upon this
work; for which reason by the statute 2 & 3 Ph. & M. c. 8. surveyors
of the highways were ordered to be chosen in every parish[g].
[Footnote f: _C._ 11. 74. 4.]
[Footnote g: This office, Mr Dalton (just. cap. 50.) says, exactly
answers that of the _curatores viarum_ of the Romans: but, I should
guess that theirs was an office of rather more dignity and authority
than ours, not only from comparing the method of making and mending
the Roman ways with those of our country parishes; but also because
one Thermus, who was the curator of the Flaminian way, was candidate
for the consulship with Julius Caesar. (_Cic. ad Attic._ _l._ 1. _ep._
1.)]
THESE surveyors were originally, according to the statute of Philip
and Mary, to be appointed by the constable and churchwardens of the
parish; but now[h] they are constituted by two neighbouring justices,
out of such substantial inhabitants as have either 10_l._ _per annum_
of their own, or rent 30_l._ a year, or are worth in personal estate
100_l._
[Footnote h: Stat. 3 W. & M. c. 12.]
THEIR office and duty consists in putting in execution a variety of
statutes for the repairs of the highways; that is, of ways leading
from one town to another: by which it is enacted, 1. That they may
remove all annoyances in the highways, or give notice to the owner to
remove them; who is liable to penalties on noncompliance. 2. They are
to call together all the inhabitants of the parish, six days in every
year, to labour in repairing the highways; all persons keeping
draughts, or occupying lands, being obliged to send a team for every
draught, and for every 50_l._ a year, which they keep or occupy; and
all other persons to work or find a labourer. The work must be
completed before harvest; as well for providing a good road for
carrying in the corn, as also because all hands are then supposed to
be employed in harvest work. And every cartway must be made eight feet
wide at the least[i]; and may be increased by the quarter sessions to
the breadth of four and twenty feet. 3. The surveyors may lay out
their own money in purchasing materials for repairs, where there is
not sufficient within the parish, and shall be reimbursed by a rate,
to be allowed at a special sessions. 4. In case the personal labour of
the parish be not sufficient, the surveyors, with the consent of the
quarter sessions, may levy a rate (not exceeding 6_d._ in the pound)
on the parish, in aid of the personal duty; for the due application of
which they are to account upon oath. As for turnpikes, which are now
universally introduced in aid of such rates, and the law relating to
them, these depend entirely on the particular powers granted in the
several road acts, and therefore have nothing to do with this
compendium of general law.
[Footnote i: This, by the laws of the twelve tables at Rome, was the
standard for roads that were straight; but, in winding ways, the
breadth was directed to be sixteen feet. _Ff._ 8. 3. 8.]
VI. I PROCEED therefore, lastly, to consider the overseers of the
poor; their original, appointment, and duty.
THE poor of England, till the time of Henry VIII, subsisted entirely
upon private benevolence, and the charity of welldisposed christians.
For, though it appears by the mirrour[k], that by the common law the
poor were to be "sustained by parsons, rectors of the church, and the
parishioners; so that none of them dye for default of sustenance;" and
though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the
poor are directed to be sustained in the cities or towns wherein they
were born, or such wherein they had dwelt for three years (which seem
to be the first rudiments of parish settlements) yet till the statute
27 Hen. VIII. c. 26. I find no compulsory method chalked out for this
purpose: but the poor seem to have been left to such relief as the
humanity of their neighbours would afford them. The monasteries were,
in particular, their principal resource; and, among other bad effects
which attended the monastic institutions, it was not perhaps one of
the least (though frequently esteemed quite otherwise) that they
supported and fed a very numerous and very idle poor, whose sustenance
depended upon what was daily distributed in alms at the gates of the
religious houses. But, upon the total dissolution of these, the
inconvenience of thus encouraging the poor in habits of indolence and
beggary was quickly felt throughout the kingdom: and abundance of
statutes were made in the reign of king Henry the eighth, for
providing for the poor and impotent; which, the preambles to some of
them recite, had of late years _strangely_ increased. These poor were
principally of two sorts: sick and impotent, and therefore unable to
work; idle and sturdy, and therefore able, but not willing, to
exercise any honest employment. To provide in some measure for both of
these, in and about the metropolis, his son Edward the sixth founded
three royal hospitals; Christ's, and St. Thomas's, for the relief of
the impotent through infancy or sickness; and Bridewell for the
punishment and employment of the vigorous and idle. But these were far
from being sufficient for the care of the poor throughout the kingdom
at large; and therefore, after many other fruitless experiments, by
statute 43 Eliz. c. 2. overseers of the poor were appointed in every
parish.
[Footnote k: c. 1. Sec. 3.]
BY virtue of the statute last mentioned, these overseers are to be
nominated yearly in Easter-week, or within one month after, by two
justices dwelling near the parish. They must be substantial
householders, and so expressed to be in the appointment of the
justices[l].
[Footnote l: 2 Lord Raym. 1394.]
THEIR office and duty, according to the same statute, are principally
these: first, to raise competent sums for the necessary relief of the
poor, impotent, old, blind, and such other, being poor and not able to
work: and, secondly, to provide work for such as are able, and cannot
otherwise get employment: but this latter part of their duty, which,
according to the wise regulations of that salutary statute, should go
hand in hand with the other, is now most shamefully neglected.
However, for these joint purposes, they are empowered to make and levy
rates upon the several inhabitants of the parish, by the same act of
parliament; which has been farther explained and enforced by several
subsequent statutes.
THE two great objects of this statute seem to have been, 1. To relieve
the impotent poor, and them only. 2. To find employment for such as
are able to work: and this principally by providing stocks to be
worked up at home, which perhaps might be more beneficial than
accumulating all the poor in one common work-house; a practice which
tends to destroy all domestic connexions (the only felicity of the
honest and industrious labourer) and to put the sober and diligent
upon a level, in point of their earnings, with those who are dissolute
and idle. Whereas, if none were to be relieved but those who are
incapable to get their livings, and that in proportion to their
incapacity; if no children were to be removed from their parents, but
such as are brought up in rags and idleness; and if every poor man and
his family were employed whenever they requested it, and were allowed
the whole profits of their labour;--a spirit of chearful industry
would soon diffuse itself through every cottage; work would become
easy and habitual, when absolutely necessary to their daily
subsistence; and the most indigent peasant would go through his task
without a murmur, if assured that he and his children (when incapable
of work through infancy, age, or infirmity) would then, and then only,
be intitled to support from his opulent neighbours.
THIS appears to have been the plan of the statute of queen Elizabeth;
in which the only defect was confining the management of the poor to
small, parochial, districts; which are frequently incapable of
furnishing proper work, or providing an able director. However, the
laborious poor were then at liberty to seek employment wherever it was
to be had; none being obliged to reside in the places of their
settlement, but such as were unable or unwilling to work; and those
places of settlement being only such where they were born, or had made
their abode, originally for three years[m], and afterwards (in the
case of vagabonds) for one year only[n].
[Footnote m: Stat. 19 Hen. VII. c. 12. 1 Edw. VI. c. 3. 3 Edw. VI. c.
16. 14 Eliz. c. 5.]
[Footnote n: Stat. 39 Eliz. c. 4.]
AFTER the restoration, a very different plan was adopted, which has
rendered the employment of the poor more difficult, by authorizing the
subdivision of parishes; has greatly increased their number, by
confining them all to their respective districts; has given birth to
the intricacy of our poor-laws, by multiplying and rendering more easy
the methods of gaining settlements; and, in consequence, has created
an infinity of expensive lawsuits between contending neighbourhoods,
concerning those settlements and removals. By the statute 13 & 14 Car.
II. c. 12. a legal settlement was declared to be gained by birth,
inhabitancy, apprenticeship, or service for forty days; within which
period all intruders were made removeable from any parish by two
justices of the peace, unless they settled in a tenement of the annual
value of 10_l._ The frauds, naturally consequent upon this provision,
which gave a settlement by so short a residence, produced the statute
1 Jac. II. c. 17. which directed notice in writing to be delivered to
the parish officers, before a settlement could be gained by such
residence. Subsequent provisions allowed other circumstances of
notoriety to be equivalent to such notice given; and those
circumstances have from time to time been altered, enlarged, or
restrained, whenever the experience of new inconveniences, arising
daily from new regulations, suggested the necessity of a remedy. And
the doctrine of certificates was invented, by way of counterpoise, to
restrain a man and his family from acquiring a new settlement by any
length of residence whatever, unless in two particular excepted cases;
which makes parishes very cautious of giving such certificates, and
of course confines the poor at home, where frequently no adequate
employment can be had.
THE law of settlements may be therefore now reduced to the following
general heads; or, a settlement in a parish may be acquired, 1. By
birth; which is always _prima facie_ the place of settlement, until
some other can be shewn[o]. This is also always the place of
settlement of a bastard child; for a bastard, having in the eye of the
law no father, cannot be referred to _his_ settlement, as other
children may[p]. But, in legitimate children, though the place of
birth be _prima facie_ the settlement, yet it is not conclusively so;
for there are, 2. Settlements by parentage, being the settlement of
one's father or mother: all children being really settled in the
parish where their parents are settled, until they get a new
settlement for themselves[q]. A new settlement may be acquired several
ways; as, 3. By marriage. For a woman, marrying a man that is settled
in another parish, changes her own: the law not permitting the
separation of husband and wife[r]. But if the man be a foreigner, and
has no settlement, her's is suspended during his life, if he be able
to maintain her; but after his death she may return again to her old
settlement[s]. The other methods of acquiring settlements in any
parish are all reducible to this one, of forty days residence therein:
but this forty days residence (which is construed to be lodging or
lying there) must not be by fraud, or stealth, or in any clandestine
manner; but accompanied with one or other of the following concomitant
circumstances. The next method therefore of gaining a settlement, is,
4. By forty days residence, and notice. For if a stranger comes into a
parish, and delivers notice in writing of his place of abode, and
number of his family, to one of the overseers (which must be read in
the church and registered) and resides there unmolested for forty days
after such notice, he is legally settled thereby[t]. For the law
presumes that such a one at the time of notice is not likely to
become chargeable, else he would not venture to give it; or that, in
such case, the parish would take care to remove him. But there are
also other circumstances equivalent to such notice: therefore, 5.
Renting for a year a tenement of the yearly value of ten pounds, and
residing forty days in the parish, gains a settlement without
notice[u]; upon the principle of having substance enough to gain
credit for such a house. 6. Being charged to and paying the public
taxes and levies of the parish; and, 7. Executing any public parochial
office for a whole year in the parish, as churchwarden, &c; are both
of them equivalent to notice, and gain a settlement[w], when coupled
with a residence of forty days. 8. Being hired for a year, when
unmarried, and serving a year in the same service; and 9. Being bound
an apprentice for seven years; give the servant and apprentice a
settlement, without notice[x], in that place wherein they serve the
last forty days. This is meant to encourage application to trades, and
going out to reputable services. 10. Lastly, the having an estate of
one's own, and residing thereon forty days, however small the value
may be, in case it be acquired by act of law or of a third person, as
by descent, gift, devise, &c, is a sufficient settlement[y]: but if a
man acquire it by his own act, as by purchase, (in it's popular sense,
in consideration of money paid) then[z] unless the consideration
advanced, _bona fide_, be 30_l._ it is no settlement for any longer
time, than the person shall inhabit thereon. He is in no case
removeable from his own property; but he shall not, by any trifling or
fraudulent purchase of his own, acquire a permanent and lasting
settlement.
[Footnote o: 1 Lord Raym. 567.]
[Footnote p: Salk. 427.]
[Footnote q: Salk. 528. 2 Lord Raym. 1473.]
[Footnote r: Stra. 544.]
[Footnote s: Foley. 249.]
[Footnote t: Stat. 13 & 14 Car. II c. 12. 1 Jac. II. c. 17. 3 & 4 W. &
M. c. 11.]
[Footnote u: Stat. 13 & 14 Car. II. c. 12.]
[Footnote w: Stat. 3 & 4 W. & M. c. 11.]
[Footnote x: Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31
Geo. II. c. 11.]
[Footnote y: Salk. 524.]
[Footnote z: Stat. 9 Geo. I. c. 7.]
ALL persons, not so settled, may be removed to their own parishes, on
complaint of the overseers, by two justices of the peace, if they
shall adjudge them likely to become chargeable to the parish, into
which they have intruded: unless they are in a way of getting a legal
settlement, as by having hired a house of 10_l._ _per annum_, or
living in an annual service; for then they are not removeable[a]. And
in all other cases, if the parish to which they belong, will grant
them a certificate, acknowleging them to be _their_ parishioners, they
cannot be removed merely because _likely_ to become chargeable, but
only when they become _actually_ chargeable[b]. But such certificated
persons can gain no settlement by any of the means above-mentioned;
unless by renting a tenement of 10_l._ _per annum_, or by serving an
annual office in the parish, being legally placed therein: neither can
an apprentice or servant to such certificated person gain a settlement
by such their service[c].
[Footnote a: Salk. 472.]
[Footnote b: Stat. 8 & 9 W. III. c. 30.]
[Footnote c: Stat. 12 Ann. c. 18.]
THESE are the general heads of the laws relating to the poor, which,
by the resolutions of the courts of justice thereon within a century
past, are branched into a great variety. And yet, notwithstanding the
pains that has been taken about them, they still remain very
imperfect, and inadequate to the purposes they are designed for: a
fate, that has generally attended most of our statute laws, where they
have not the foundation of the common law to build on. When the
shires, the hundreds, and the tithings, were kept in the same
admirable order that they were disposed in by the great Alfred, there
were no persons idle, consequently none but the impotent that needed
relief: and the statute of 43 Eliz. seems entirely founded on the same
principle. But when this excellent scheme was neglected and departed
from, we cannot but observe with concern, what miserable shifts and
lame expedients have from time to time been adopted, in order to patch
up the flaws occasioned by this neglect. There is not a more necessary
or more certain maxim in the frame and constitution of society, than
that every individual must contribute his share, in order to the
well-being of the community: and surely they must be very deficient in
sound policy, who suffer one half of a parish to continue idle,
dissolute, and unemployed; and then form visionary schemes, and at
length are amazed to find, that the industry of the other half is not
able to maintain the whole.
CHAPTER THE TENTH.
OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.
HAVING, in the eight preceding chapters, treated of persons as they
stand in the public relations of _magistrates_, I now proceed to
consider such persons as fall under the denomination of the _people_.
And herein all the inferior and subordinate magistrates, treated of in
the last chapter, are included.