CONSTABLES are of two sorts, high constables, and petty constables.

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.

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