menu_book Chapter 1

commentaries on the laws of england by william blackstone book one chapter nine part three we are next to consider the surveyors of the highways every parish is bound of common rights 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 burden no man was exempt by our ancient 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 hostum archium constructio e 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 instructionis reperanis eterem e pontiem nullem genus hominem nullisca denitatis ec venerationis meritas cesare 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 twenty two henry the eighth see five

if the parish neglected these repairs they might formerly as they still may be indicted for such their neglect but it was not then incumbent upon any particular officer to call the parish together and set them upon this work for which reason by the statute two and three p h m c eight surveyors of the highways were ordered to be chosen in every parish 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 they are constituted by two neighbouring justices out of such substantial inhabitants as have either ten pounds per annum of their own or rent thirty pounds a year or are worth in personal estate one hundred pounds their office and duty consist 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 one that they may remove all annoyances in the highways or give notice to the owner to remove them who is liable to penalties on non-compliance two they are to call together all the inhabitants of the parish six days in every year to labour in repairing on the highways all persons keeping draughts or occupying lands being obliged to send a team for every draught and for every fifty pounds 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 and may be increased by the quarter sessions to the breadth of four and twenty feet 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 especial sessions for 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 sixpence 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 eight 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 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 the eighth subsisted entirely upon private benevolence and the charity of well-disposed christians

for though it appears by the mirror 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 die for default of substance and though by the statutes twelve richard the second see seven and nineteen henry the seventh see twelve the poor are directed to be sustained in 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 twenty seven henry the eighth see twenty six 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 particular 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 this encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom an 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 forty three elizabeth c two 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 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 one to relieve the impotent poor and them only two 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 workhouse a practice which tends to destroy all domestic connections the only felicity of the honest and industrious laborer 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 labor

a spirit of cheerful industry would soon diffuse itself through every cottage work would become very 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 entitled 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 and afterwards in the case of vagabonds for one year only

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 thirteen and fourteen charles the second c twelve a legal settlement was declared to be gained by birth inhabitant apprenticeship or service for forty days within which period all intruders were made removable from any parish by two justices of the peace unless they settled in a tenement of the annual value of ten pounds the frauds naturally consequent upon this provision which gave a settlement by so short a residence produced the statute first james the second c seventeen which directed notice in writing to be delivered to the parish officers before a settlement could be gained by such residents

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 accepted 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 one by birth which is always primifacia the place of settlement until some other can be shown 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 but in legitimate children though the place of birth be promiface the settlement yet it is not conclusively so for there are two 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 a new settlement may be acquired several ways as three 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 but if the man be a foreigner and has no settlement hers is suspended during his life if he be able to maintain her but after his death she may return again to her old settlements 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 the other of the following concomitant circumstances. The next method, therefore, of gaining settlement is, for, 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. 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, 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 church warden, etc., are both of them equivalent to notice, and gain a settlement, when coupled with a residence of forty days. Eight, being hired for a year, when unmarried, and serving a year in the same service. And nine, being bound an apprentice for seven years, give the servant and apprentice

a settlement, without notice, in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. Ten, 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 of a third person, as by descent, gift, device, etc., is a sufficient settlement. But if a man acquire it by his own act, as purchase, in its popular

sense, in consideration of money paid, then unless the consideration advance, bona fide, be thirty pounds, it is no settlement for any longer time, than the person shall inhabit thereon. He is in no case removable from his own property, but he shall not, by any trifling or fraudulent purchases 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 ten pounds per annum, or living in an annual service, for then they are not removable. And in all other cases, if the parish to which they belong will grant them a certificate, acknowledging them to be their parishioners, they cannot be removed merely because likely to become chargeable, but only when they become actually chargeable.

But such certificated persons can gain no settlement by any of the means above mentioned, unless by renting a tenement of ten pounds 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. These are the general heads of the laws relating to the poor, which by the parishioners of the courts of justice thereon within a century past

are branched into great variety. And yet, notwithstanding the pains that has been taken about them all, 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 forty-third Elizabeth 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 a 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.