Commentaries on the Laws of England Part 30

[Footnote n: See bishop Fleetwood's calculations in his _chronicon pretiosum_.]

[Footnote o: Stat. 18 Geo. II. c. 20.]

AS the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown; that is, in six months after[p]. 2. By express writ under the great seal[q], discharging any particular person, from being any longer justice. 3. By superseding the commission by writ of _supersedeas_, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a _procedendo_. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner[r]. Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[s] it is provided, that notwithstanding a new t.i.tle of dignity, the justice on whom it is conferred shall still continue a justice.

[Footnote p: Stat. 1 Ann. c. 8.]

[Footnote q: Lamb. 67.]

[Footnote r: Stat. 1 Mar. st. 1. c. 8.]

[Footnote s: Stat. 1 Edw. VI. c. 7.]

THE power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it's proper place. And as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[t]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are ent.i.tled to double costs.

[Footnote t: Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c.

44.]

IT is impossible upon our present plan to enter minutely into the particulars of the acc.u.mulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of Mr Lambard's _eirenarcha_, and Dr Burn's _justice of the peace_; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method.

I SHALL next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.

IV. FOURTHLY, then, of the constable. The word constable is frequently said to be derived from the Saxon, koning-staple, and to signify the support of the king. But, as we borrowed the name as well as the office of constable from the French, I am rather inclined to deduce it, with sir H. Spelman and Dr Cowel, from that language, wherein it is plainly derived from the Latin _comes stabuli_, an officer well known in the empire; so called because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horseback. This great office of lord high constable hath been disused in England, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII[u]: but from his office, says Lambard[w], this lower constables.h.i.+p was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester[x], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to _arms_ and _armour_.

[Footnote u: Philips's life of Pole. ii. 111.]

[Footnote w: of constables, 5.]

[Footnote x: 13 Edw. I. c. 6.]

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 inst.i.tuted 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, t.i.thing-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 a.s.sist the high constable[b]. And in general the antient headboroughs, t.i.thing-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 princ.i.p.al 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 princ.i.p.al. 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 t.i.thing-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 inc.u.mbent 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 consuls.h.i.+p 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 const.i.tuted 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 paris.h.i.+oners; 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 princ.i.p.al resource; and, among other bad effects which attended the monastic inst.i.tutions, 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 princ.i.p.ally of two sorts: sick and impotent, and therefore unable to work; idle and st.u.r.dy, 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. --. 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 princ.i.p.ally 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 princ.i.p.ally by providing stocks to be worked up at home, which perhaps might be more beneficial than acc.u.mulating 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 a.s.sured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be int.i.tled 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 furnis.h.i.+ng 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, apprentices.h.i.+p, 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 circ.u.mstances of notoriety to be equivalent to such notice given; and those circ.u.mstances 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 b.a.s.t.a.r.d child; for a b.a.s.t.a.r.d, 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 circ.u.mstances. 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 circ.u.mstances 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.]