Friday, May 30, 2008

Blackstone ss37

"Section 37. Part 3 of Chapter 9 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 9, Part 3"

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

These surveyors were originally, according to the statute of
Philip and Mary, to be appointed by the constable and church-*wardens
of the parish; but now[h] they are constituted by two
neighbouring justices, out of such substantial inhabitants as have
either 10l. per annum of their own, or rent 30l. a year, or are
worth in personal estate 100l.

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 50l.
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
6d. 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.

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.

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].

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[**typo for cheerful?] 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 fre-
quently 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].

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 law-*suits
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 10l. 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 30l. 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.

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
10l. 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 10l. 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].

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, not-*withstanding[**P3:w/o hyphen elsewhere]
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.

End of section 37