[ *429] *on the oath of a credible witness, that there is reason to apprehend some felony, tumult, or riot, and that the ordinary officers are insufficient to repress it, then they may appoint any number of persons, not legally exempt, to be sworn in and serve as special constables. Persons so appointed are bound to act, and till their services are dispensed with by the justices of the county or place within which they have been called out, they have the authority and privileges of other constables (q). The general duty of constables, high and petty, as well as of the other officers, is to keep the peace in their several districts; and for that purpose they are armed with large powers, of arresting and imprisoning, of breaking open houses, and the like;(112) nor can an action be brought against a constable for anything done in the execution of his duty, unless brought within six calendar months from the time of the act complained of(r): he is also protected from legal proceedings for anything done in pursuance of a justice's warrant, whether the justice be liable to an action for excess of jurisdiction or not(s). One of the constable's principal duties, arising from the statute of Winchester, was to keep watch and ward in his jurisdiction. Ward guard, or custodia, was chiefly applied to the day-time, in order to apprehend rioters, and robbers on the highways; the manner of doing which was left to the discretion of the justices of the peace and the constable(t): the hundred being however answerable in respect of robberies committed therein, by day-light, for having kept negligent guard. Watch was properly *applicable to the night [ *430] only (being called among our Teutonic ancestors wacht or wacta (u)), it began at the time when ward ended, and ended when that began, for, by the statute of Winchester, in walled towns the gates were to be closed from sunsetting to sun-rising, and watch was to 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 was formerly allowed to appoint watchmen, at his discretion, regulated by the custom of the place; and these, being his deputies, had for the time being the authority of their principal; but now the duties of watchmen are generally performed by constables, though it is provided by stat. 3 & 4 Will. 4, c. 90, that any parish or other place may under certain circumstances adopt the provisions of that act for watching and lighting, and, if so, elect inspectors, who may appoint such number of watchmen as they think fit for the protection of the inhabitants, houses, and property within the limits of the parish: these watchmen are however only to be appointed where there are no other means of preserving the peace, for it is enacted(v) that if the chief constable of any county in which such parish or other place is situate, give notice that he is ready to take the charge thereof upon himself, then from the time specified in his (9) By stat. 3 & 4 Vict. c. 88, s. 19, the chief constable of a county is authorised on the application of any person and at his expense to appoint constables to act at a particular place, on being convinced of the necessity thereof, and with the approval of the justices in quarter session. A like power to appoint constables is vested in the Commissioners of Metropolitan Police at their discretion by (r) 24 Geo. 2, c. 44, s. 8. (t) Dalt. Just. c. 104. (u) Du Cange, Gloss. ad verb. (112) See notes 111, ante, and 106, ante, as to the rights, duties and liabilities of constables and sheriffs. notice, the watchmen shall cease as an independent force, and there shall no longer remain any power to levy a rate for their support(x). of highways. V. We are next to consider the surveyors of highways. (113) Every parish is bound of common right to keep the high roads, that go through it, in good (V) Surveyors [*431] lands or otherwise, this *care is consigned to some and sufficient repair; unless, by reason of the tenure of particular private person. From such burthen 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 hostem, arcium constructio, et pontium reparatio(y). For, though the reparation of bridges only is expressed, yet that of roads also must be understood. 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. 8, 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. & Mary, c. 8, surveyors of the highways were ordered to be chosen in every parish. Origin of the office. These surveyors were, according to the above statute of Philip and Mary, to be appointed by the constable and churchwardens of the parish; they were afterwards constituted by two neighbouring justices, out of such inhabitants or others as were described in the statutes 3 W. & M. c. 12, s. 2, and 13 Geo. 3, c. 78, s. 1. They are now elected annually by the parishioners under the provisions of the General Highway Act(z), though the justices may appoint in default of such election(a). This act, which has been amended by various statutes (b), provides that the surveyor may be a paid officer (c), also that several parishes may unite in a district and appoint a district surveyor, who shall have like power as the surveyors of highways, except that of levying a rate(d), for which purpose each parish must appoint a surveyor of its own(e). There are statutory provisions for forming *highway districts, each [ *432] under the control of a highway board, and for appointing officers called waywardens(ƒ). Where surveyors of highways still exist, their office and duty consist in putting in execution various regulations for the repair and management of the public roads; that is, of ways leading from one town to another: Their duty. '1, they are to prevent and abate nuisances or encroachments on any highway, and remove from it obstructions(g); 2, they are to repair and (113) In all the different states there are ample statutory regulations as to the construction and repair of highways, and also as to the election of officers, for that purpose, whose powers and duties are properly declared and defined. As there is a diversity as to the details of the laws of each state, the only source of information is the statutes and decisions of the state whose laws upon this subject it is desirable to examine and understand. Keep in repair every highway (h) within the parish, and see that it is of sufficient Width, which width in a cartway leading to a market town must be at least twenty feet(i); 3, they must widen any highway which shall appear to two justices to be of insufficient width, but are not bound to make it more than thirty feet wide(); 4, for the purpose of repairs, &c., they may take materials from waste parts of the parish, or (with certain exceptions) from enclosed lands, paying to the owners thereof a reasonable compensation(); 5, when by order of justices a highway is to be shut up or diverted, the surveyors are to execute such order(m); 6, they are to erect proper direction posts and boundary stones(n); 7, they are to levy with the authority of two justices the necessary rates(0). Turnpike tolls, which were introduced in aid of highway rates, depend on local acts, and on the general provisions of 3 Geo. 4, c. 126, as explained and amended by subsequent statutes. Turnpike roads were formerly quite independent of ordinary highways and their surveyors, but, owing to the introduction of railways, the tolls taken on turnpike roads became so much reduced in amount, that the legislature interfered in their favour, and empowered the justices of the peace at special sessions, on *proof of the deficiency of the funds of any turnpike trust, to order a portion of the highway rate to [*433] be applied to the repair of the roads of such trust, and the surveyors of the highway are bound to pay over such amount to the commissioners of the trust(p). VI. I proceed, lastly, to consider the overseers of the poor; their origin, and duties.(114) (VI.) Overseers Antiquity and The poor of England, till the time of Henry VIII., subsisted entirely upon private benevolence, and the charity of well-disposed Christians. For though it appears(9), 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 sustenance;" and though by the statutes 12 Ric. 2, c. 7, and 19 Hen. 7, c. 12, the poor were directed to abide in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seems to be the first rudiment of parochial settlement), yet till the statute 27 Hen. 8, c. 25, no compulsory method was chalked out for effecting these purposes: 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 doubtful whether highway boards were liable to contribute to the repair of the turnpike roads, it was enacted by stat. 26 & 27 Vict. c. 94, that they were so. The acts relating to turnpike roads down to 1853 will be found in the tabular list at the commencement of Oke's Law of Turnpike Roads. See also Glen's Highway Laws, 2nd ed. The last acts concerning turnpike roads are 31 & 32 Vict. cc. 66 & 99. (9) Mirror, c. 1, s. 3. (114) In this country the several states have made ample provision for the relief of poor persons, but this is not the place to explain them. Resort must be had to the statutes, and the decisions of the state whose laws are to be studied or applied. 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. [*434] 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 VIII. and his children, for providing for the poor and impotent: who, the preambles to some of them recite, had then of late years greatly 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, Edward VI. 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 the statute 43 Eliz. c. 2, overseers of the poor were appointed in every parish. By virtue of the statute last mentioned, these overseers were to be nominated yearly in Easter week, or within one month after (though a subsequent nomination was valid(r)), by two justices dwelling near the parish. They were to be, and still must be, substantial householders, and so expressed to be in the appointment of the justices(s). Their office and duty, according to the same statute, were principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such others being poor, and not able to work; and secondly, to provide work for such as were able, and could not otherwise get employment; but this latter part of their duty, which, according to the regulations of that statute, *should have been performed with the other, was long neg[*435] lected. However, for these joint purposes, they were empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which was further explained and enforced by 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 were able to work: and this principally by providing stocks of raw materials to be worked up at their separate homes, instead of accumulating all the poor in one common workhouse; for, political economy being little understood in those days, it was looked upon as the duty of government to find work for all who wanted it: and the danger of interfering with trade, altering the price of labour, or underselling the industrious poor who maintained themselves without assistance, does not seem to have been thought of. Such appears to have been the plan of the statute of queen Elizabeth; in which one great defect was confining the management of the poor to small parochial districts, frequently incapable of furnishing proper work, or providing able directors for them. 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, (r) R. v. Sparrow, Stra. 1123. (8) R. v. Sheringbrooke, 2 Lord Raym. 1394. and those places of settlement being only such where they were born, or had made their abode, originally for three years(t), and afterwards (in the case of vagabonds) for one year only(u). After the Restoration a very different plan was adopted, which rendered the employment of the poor more difficult, by authorising the subdivision of parishes; which greatly increased their number, by confining them all to their respective districts: which gave birth to the intricacy of *our poor laws, by multiplying and rendering more easy the methods of gaining [ *436] settlement; and, in consequence, created an infinity of expensive law-suits between contending neighbourhoods, concerning those settlements and removals. By the statute 13 & 14 Car. 2, c. 12, a legal settlement was declared to be gained by birth: or by inhabitancy, 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 settle in a tenement of the annual value of 107. The frauds naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 Jac. 2, 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 were from time to time altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. The power given by the above-mentioned statute of Charles II., of removing persons likely to become chargeable as paupers, was found to operate prejudicially in this way, it prevented poor persons from going to a place where they might obtain work, and to obviate this mischief certificates were invented. certificate might, by stat. 8 & 9 Will. 3, c. 30, s. 1, be granted to a man by the churchwardens and overseers of the parish in which he was settled, acknowledging the fact of such settlement, and directed to the churchwardens and overseers of some other parish. Armed with this protection, the certificated person could not be removed from the parish to which he went unless he became actually chargeable, but as he was (with some exceptions) precluded from acquiring a new settlement by any length of residence, parishes were very cautious about giving such certificates, and they were *consequently very sparingly bestowed. Certificates remained, however, in use till the 35 [*437] Geo. 3, c. 101, s. 1, which, by enacting that no one should be removed from any parish till actually chargeable, rendered them practically useless. Law of settlements. The law of settlements, after many changes, may be now reduced to the following general heads; or, a settlement in a parish may be acquired: 1. By birth; for, wherever a child is first known to be, that is always prima facie the place of settlement, until some other can be shown(x). But though the place of birth be prima facie the settlement, yet it is not conclusively so; for there is, 2. Settlement by parentage, being the settlement of one's father or mother: a legitimate child being really settled in the (t) Stat. 19 Hen. 7, c. 12; 1 Edw. 6, c. 3; 3 Nicholas v. Inhabitants of Hillingdon, Salk. Edw. 6, c. 16; 14 Eliz. c. 5. (u) Stat. 39 Eliz. c. 4, s. 3. (x) Whitechapel Parish v. Stepney Parish, Carth. 433; Duke of Banbury v. Parish of Broughton, Comb. 364; Inhabitants of St. Vol. I-36 485; Hamlet of Spittlefields v. Parish of St. |