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and strive, by accommodating his skill, to eke out a scant existence.

To the law of settlement, the destruction of the abodes of the poor, and the accumulation of landed estates, have we to attribute the fact that the town population in England so vastly outweighs that of the country. In 1841 from fifty-nine to sixty per cent. of the entire population of England dwelt in towns.* Unable to gain a livelihood in the country, the farm-labourer had betaken himself to the town as a mere artizan; but even there he was persecuted by the dominant gentry; first, by the law of settlement, and next from the fact that the gentry, down to 1846, by means of the bread-tax, made the very bread he earned in the town harder to procure. The condemnatory sentence which the great commentator of English law has launched against the legislative measures for the poor will serve as a fitting termination to the dreary subject:-"Notwithstanding the pains that have been taken about them, they still remain very imperfect and inadequate for 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. 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 the parish to continue idle, dissolute, and unemployed, and at length are amazed to find that the industry of the other half is not able to maintain the whole."+

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CHAPTER VII.

SURVEYORS OF HIGHWAYS.

Their Nomination.-Powers.-Highway Rate.-Turnpike Roads.

HIGHWAYS are public roads which every subject has a right to use. They either exist by prescription, by the authority of local acts, or by dedication to the use of the public. The liability to keep highways in repair, in whatever way they may have first originated, is of common right, incumbent, generally, upon the parishes in which they lie. In some cases it attaches by prescription to particular townships or other divisions of parishes, and, occasionally, to private individuals, ratione tenure.

The parish is bound to keep the roads which traverse it in good order; whereas since 22 Hen. VIII. c. 5, the repairing of bridges has been transferred from the parish to the county. Since 2 and 3 Philip and Mary, c. 8, special surveyors have been appointed. They were originally selected by the churchwardens and constables of the parish, and subsequently were appointed by two neighbouring justices of the peace, at special sessions holden for the highways. The burthen of constructing the roads was formerly discharged in kind; gradually, however, money payments were substituted. The highway-rate is levied upon the same principle and is chargeable on the same property as the poor-rate. The rate is to be made and signed by the surveyor, who keeps the accounts, which may be examined at all reasonable times by the rated inhabitants, without fee or reward. The yearly account is laid before the vestry, and passed and examined by justices of the peace.* The surveyors of highways are elected annually since 5 and 6 Will. IV. c. 50, by the inhabitants, in vestry assembled. If they omit to elect, the justices may appoint, under the regulations prescribed by that act. The surveyors are bound to keep the roads in good order.

Turnpike-roads are constructed by private companies, empowered by certain local acts of parliament, called Turnpike Acts, * 3 Step. Com., 233.

to levy tolls according to a fixed tariff. These roads, dating from the last century, are managed by trustees or commissioners. The justices of the peace in any district interested are, ipso jure, trustees. The special sessions of the justices of the peace exercising a right of supervision both in regard to the roads and the employés ; from their decisions appeal lies to the quarter sessions. Any parish, county, or other party bound to repair a road or bridge, and neglecting the duty is liable at common law to an indictment.

CHAPTER VIII.

CONSTABLES.

High Constables.-Petty Constables.-Official Duties.--Nomination of Petty Constables. Special Constables.

THE Constable was originally a civil and a military administrative functionary. The statute of Winchester, 13 Edw. I. st. ii., c. 6, directs that in each hundred two constables shall have supervision. of the arms and crossbows of the residents. These were the high constables chosen by the court-leet of the franchise or hundred over which they presided, or, in the absence of any such courtleet, to be appointed by the justices at their special sessions. The authority appointing might also dismiss them; they have supervision over all the petty constables, and are, in a certain measure, responsible for their acts.* Their office is purely ministerial; in such character they are the head functionaries of their district and guardians of the peace. They were charged, formerly, with the collection of the county-rates. They are bound to appear at the special sessions of their district, and to make a report at the quarter sessions.†

The petty constables are the ancient head-men of the tithing. The statute of Winchester ordered them to give assistance to the high constables, to keep watch and ward within their jurisdiction, and to preserve the peace. In certain localities the office of head borough and tithing man is held separately from that of constable; as a rule, however, the constable is the head-man of the district; "where there is a constable, there is a township." The office towards the close of the middle ages had almost everywhere subsided to the level of a mere police functionary.

Each parish must have at least one constable; every resident in such parish is bound to discharge the office for one whole year, the

* Blackstone, i., 355. + Gneist, ii., 49.

"Ward (custodia) is chiefly applied to the day-time, in order to apprehend rioters and robbers on the highways.

Watch is applicable to the night only, being called among our Teutonic ancestors wacht, and begins at the time when ward ends."

nobility and almost the whole of the gentry being released from such obligation. Any person appointed to the office of constable may serve either in person or by substitute. Every parish, if the vestry so resolve, may have constables appointed with a salary payable out of the poor rate.

The official duties of petty constables are the watch and ward of the parish, the duty of watching generally referring to the night-time; the high constable may, however, appoint special night watchmen. The petty constables are subject to the orders of the justices of the peace; they may arrest persons in flagranti, as well as suspected persons, if there be reasonable ground for suspecting that a felony has been committed; they may also break into suspected houses, for the prevention of felonies or the pursuit of felons.* Their principal duty is the preservation of the peace and the service of summonses and execution of the warrants of justices of the peace; in regard to the latter the petty constable enjoys certain protections similar to those conferred on the justices themselves. Thus an action cannot be brought against him for what he does as constable, after the expiration of six months from the commission of the act.t

If an action be brought against a constable for anything done in obedience to the warrant of a justice of the peace, a demand in writing of the perusal and copy of the warrant, signed by the plaintiff or his attorney must, by 24 George II. c. 44, s. 6, be made or left at his usual place of abode; the effect of which is, that if such perusal and copy be not granted within six days, the plaintiff may commence his action against the constable alone; but, if it be granted within six days, he cannot sue the constable without joining the justice who made the warrant as a co-defendant; and then the mere production and proof of the warrant at the trial will entitle the constable to a verdict, notwithstanding any defect of jurisdiction in the magistrate.‡ "Of the extent of the power of

constables, considering what manner of men are, for the most part, put into the office, it is, perhaps, very well that they are generally kept in ignorance."§

Constables are generally appointed by two justices of the peace at special sessions, provided no court-leet or lord of the manor has the right of nomination; but even in the latter case they are subSmith's Action at Law, 51, 52. Bl. i., 356.

*Bl. i. 351.

Step. Bl. ii, 659.

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