OBSERVATIONS ON THE STATE of the HIGHWAYS, AND On the LAWS for Amending and Keeping them in REPAIR;
WITH A DRAUGHT of a BILL for comprehending and reducing into one Act of Parliament the most essential Parts of all the Statutes in Force relating to the Highways, and for making Provision for the more easy and effectual Repair of the Highways.
By JOHN HAWKINS,
Esq
One of his Majesty's Justices of the Peace for the County of
Middlesex.
LONDON: Printed by his Majesty's Law-Printer; for J. WORRALL, at the
Dove
in
Bell-Yard,
near
Temple-Bar.
Sold also, By Mess. DODSLEY, in
Pall-Mall
; B. TOVEY, in
Westminster-Hall
; C. HENDERSON, under the Front, and T. HOPE, opposite the Back, of the
Royal Exchange.
M. DCC. LXIII.
TO THE RIGHT HONOURABLE
HUGH,
Earl of
Northumberland,
Lord Lieutenant and
Custos Rotulorum
of the County of
Middlesex.
MY LORD,
THE Reflections contained in the following Pages, are the Result of an Enquiry to which my Duty led me, wherein the Necessity of an Alteration is suggested in a Branch of the Statute-Laws of great Importance to the internal Interests of this Nation; and a Proposal for an Amendment of those Laws, is humbly submitted to that Authority, in which alone the Power of enacting and repealing Statutes resides.
It is not in Behalf of a Book, but as the Advocate of the industrious Poor, the Sinews, the Muscles of the Body politic, and as the Friend of Agriculture and Manufactures, the most innocent and laudable Means of national Greatness, that I presume to address your Lordship.
The Relation which your Lordship, by an Office of great Trust and Honour, bears to a County, that, without any invidious Comparison, is second to none in the Kingdom for Wealth and Grandeur, and which is honoured by the Residence of his Majesty and the Royal Family, had afforded a plausible Excuse for this Trouble; but the Consideration of that Benevolence and Zeal for the Interests of your Country, which you have exerted in many Instances, too recent to be forgotten, left no Room to doubt but that any Attempt for its Service would be favourably received.
Permit me therefore, my Lord, so far only as it shall seem likely to produce any Benefit to the Public, to intreat your Lordship's Protection for the following Proposal; as I am firmly persuaded, that if it meets with Approbation, your Lordship's Wisdom and Humanity will suggest the Means of rendering that Benefit as extensive and effectual as possible. I am with great Respect,
Your Lordship's devoted, Humble Servant, JOHN HAWKINS.
ADVERTISEMENT.
THE Bill to which the following Observations are an Introduction consists,
First,
Of those Clauses in the several Acts of Parliament now in Force which have been found most useful, with some few Variations.
Secondly,
Of such new Clauses as seemed necessary for answering the Ends now proposed: These latter are printed in a different Character from the Rest of the Bill, and are recommended to the Consideration, in the approaching Recess of Parliament, of those Members of either House, who whether in Business or Retirement are equally solicitous to promote the public Good, and who knowing that the Meaning and Operation of legal Language is one of the most evanescent Subjects that the human Mind is conversant with, will employ their Talents in detecting any of those informal Expressions which often defeat the Purposes of the best intended Laws.
The general Form of the
BILL
was suggested by a casual View of an anonymous Pamphlet, published almost Thirty Years ago, under the Title of
"A Scheme for reducing all the Laws relating to the common Highways into one Act of Parliament;"
and said in the Preface to have been written by a Gentleman in the Commission of the Peace, who had made the Amendment of the Highways his principal Care for many Years. But this Scheme consisting merely of a Draught of a Bill for that Purpose, not very artificial in its Construction, very little Assistance could be derived from it more than regarded the Selection and Arrangement of the Clauses in former Statutes, proper to be retained in any future Law; and as not only the Method of imposing and apportioning the Statute-Duty, now recommended, is widely different from that Author's, but every Section contained in his Scheme has been both formally and substantially varied, and the Preamble, and almost every one of the additional Clauses new drawn, the Author of the present Publication fears he has made himself answerable for whatever may be found amiss in the Bill as it now stands.
Perhaps, in estimating the Price of a Day's Labour at one Shilling and Six-pence, he has exceeded the usual Rate; if this should be the Case, let it be remembred that he had an Eye to the Counties adjacent to the Metropolis, and that any other Estimation, tho' it may occasion some small Alteration in the Penalties, will not affect the general Reasoning contained in the Proposal.
If it should be thought eligible, notwithstanding the Reasons within given to the contrary, to annihilate the Statute-Duty, the Bill may be easily adapted to that End: But this the Public may be assured of, that every Attempt to amend the Highway-Laws by additional or explanatory Acts, will produce great Confusion among those whose Duty it is to execute them; and that nothing can remedy the Evils at present complained of, but the Consolidation into one Act of the most efficacious Clauses contained in those now subsisting.
March 1763.
ERRATA.
Page 3. Line 3. from the Bottom, read performing
such Services,
such Person,
&c.
Page 19. Line 11. for
complete
read
competent.
Page 49. Line 1. for 30
s.
read 20
s.
OBSERVATIONS ON THE STATE of the HIGHWAYS,
&c.
THE Attention of the Public, notwithstanding it has been engaged by an Object of the utmost Importance, has of late Years been employed to a very extraordinary Degree in the Repair and Improvement of the Public Roads in this and the neighbouring Kingdom. Persons of all Ranks and Professions, the Philosopher and the Mechanic, have, with a laudable Emulation, contended who should most promote the Interest of this Country, by facilitating the Methods of conveying its Produce from one End to the other.
Nor is this to be looked upon as any other than a particular Mode of that Benevolence, which, if we do not greatly flatter ourselves, is at present the distinguishing Characteristic of the Inhabitants of this Island; a Principle which we have beheld operating in various Ways, and which even now, seeks and solicits Occasion for its Exertion.
A Disposition more favourable to any Proposal calculated either to remove a public Grievance, or produce any positive Good, is not to be wished for; and it is hoped, that that contained in the following Pages may be thought to have a Tendency to promote one or other of those Ends.
It is too obvious to need insisting on, that very little of the Concern which has of late been shewn about the Roads in general, has been directed to those which lead from Parish to Parish, and are not the ordinary Channel of Conveyance to Cities and Towns of great Trade. The Invention of Turnpikes is manifestly calculated for great Roads; which, as they are made in Favour of Commerce, produce a Revenue sufficient to keep them in Repair; but the former have been left to the Care of the Surveyors of the Highways in their respective Parishes, subject to the Direction and Controul of the Justices of Peace, whose Authority in this Branch of their Jurisdiction is of such a Nature, that it carries the Appearance of great Oppression, and can seldom be exerted to any beneficial Purpose.
In what Manner, and by whom, the Highways were anciently repaired, does not at this Time clearly appear: it is probable, that while the Feudal Law subsisted in its greatest Vigour, and the Number of Vassals was greater than it has been at any Time since the Introduction of Manufactures and Commerce amongst us, that the baser Tenures, particularly that of Villenage, might oblige the inferior Class of People to this Duty; and this Opinion seems to be warranted by a Passage of an Author of very respectable Authority, whereby it appears, that the Judges had in Charge to enquire, among other Things,
"of common Highways destroyed, or otherwise in bad Repair, who is bound to repair and amend them; and such as are presented shall be attached by personal Distress to appear; and if it be found on their Appearance in Court, that they hold certain Tenements of the King upon Condition that they repair such Way, the said Tenements are to be seised into the King's Hands, and the Sheriffs are to answer for the Issues, and to cause the Repairs to be done: and where there is no Tenement held of the King by the Performing, such Persons as are bound to repair the Ways, and have not discharged their Duty, are to be in the King's Mercy; and the Sheriff is to be commanded, that he cause them to be distrained by their Cattle and by their Chattels, and to detain the Distresses until they have amended the Defects."
Britton, cap.
20.
De plusors Tortz.
The Statute of
Winton,
13
Edw.
I. seems to have been made but in Affirmance of this Law, for thereby the Lord is
"to abate certain Nusances in the Highways leading from one Market-Town to another, or be fined at the King's Pleasure; he is also to fell the Underwoods in such Highways, and for that Purpose is to have the Aid of the Country.
But the earliest Statute of which the Law now seems to take Notice, is that of 2
&
3
Phil. & Mar. cap.
8. which, after creating an Office till then unknown to our Constitution, that of Surveyors of the Highways, proceeds to direct the Manner of their Election and Choice, in Terms which import
"That the Constable and Churchwardens of every Parish shall yearly upon
Tuesday
or
Wednesday
in
Easter
Week call together a Number of the Parishioners, and shall elect two of the Parish to be Surveyors for one Year of the Works for amending of the Highways leading to any Market-Town, which Persons shall have Authority to order and direct the Persons and Carriages that shall be appointed for the amending the Highways by their Directions, and shall take upon them the said Offices, upon Pain to forfeit 20
s.
"
The Statute then proceeds to enact,
Sect.
2.
"That the Constable and Churchwardens shall then also appoint four Days for amending the Highways before the Feast of St.
John Baptist,
and shall openly in the Church the next
Sunday
after
Easter
give Knowledge of the same four Days; and upon the said Days the Parishioners shall endeavour themselves to the Amending of the Highways, and shall be chargeable thereto as followeth,
viz.
Every Person for every Ploughland in Tillage, or Pasture, that he or she shall occupy in the Parish, and every other Person keeping there a Draught or Plough, shall send at every Day and Place appointed, one Wain or Cart furnished after the Custom of the Country with Oxen, Horses, or other Cattle; and all other Necessaries to carry Things convenient; and also two able Men with the same, upon Pain of every Draught making Default, 10
s.
And every other Housholder, Cottager, and Labourer, able to labour, and being no hired Servant by the Year, shall by themselves, or one sufficient Labourer, upon every of the said four Days, work in the Amendment of the Highways, upon Pain to lose for every Day 12
d.
and all the said Persons and Carriages shall do their Works as they shall be appointed by the Supervisors eight Hours of every of the said Days, unless they be otherwise licensed by them. And the Stewards of every Leet shall have Power to enquire, by the Oaths of the Suitors, of all Offences against this Statute, and to asssess Fines and Amerciaments as shall be thought meet by the Steward; and in Default of such Enquiry or Presentment, the Justices of Peace shall have Authority to enquire of the same Offences at their Quarter-Sessions, and to assess Fines as they or any two of them, whereof one to be of the
Quorum,
shall think meet; and the Steward of every Leet shall make estreats indented of the Fines and Amerciaments for the Defaults presented before him, and shall deliver one Part thereof sealed and signed by him to the Bailiff or High Constable of every Hundred, and the other Part to the Constable and Churchwardens of the Parish wherein the Defaults were made; the same to be yearly delivered within Six Weeks after the Feast of St.
Michael,
and the Clerk of the Peace shall make like Estreats of the Fines and Amerciaments for the Defaults presented before the Justices of the Peace, and deliver the same as aforesaid; which Estreats shall be sufficient Warrant to the Bailiff or chief Constable to levy the Amerciaments and Fines by Distress; and if no sufficient Distress can be found, or the Offender shall refuse to pay the Amerciament or Fine, and do not pay the same within twenty Days after Demand, such Person to forfeit double the Sum that he should have paid."
The Statute above cited was to continue in Force for Seven Years, but being suffered to expire, it was revived by 5
Eliz. cap.
13. and by 29
Eliz. cap.
5. it was made perpetual.
There is great reason to think that these Provisions of the Law fell very far short of producing the Ends proposed by them, since we find that the Repair of Bridges, Causways, and Highways, even after the Time of
Phil. & Mar.
was deemed a laudable Exertion of public Spirit.
Sutton,
the Founder of the
Charter-House,
bequeathed by his Will great Sums for Purposes of this Sort. The Testaments of wealthy People, who died before the Reign of
Charles
the Second, afford many other Examples of the like Nature; and many Corporations are Feoffees of Lands charged with the perpetual Repair of public Roads in different Parts of the Kingdom.
It is remarkable, that the Beneficence of this Nation, has, at successive Periods, been directed to very different Objects. The Building of Churches, and the Endowment of Monasteries, were the first Instances of public Charity of which we have any Memorials. The Dissolution of Religious Houses, and the Reformation which immediately followed, furnished Motives to the Erection of Seminaries for Learning. To this succeeded the Foundation and Endowment of Alms-Houses, after that the Building of Charity Schools, and last of all Hospitals; so that for this Reason, and perhaps, because the Law has taken them under its Care, we now seldom hear of any private Donations for repairing the Highways.
We see that by the Statute of
Phil. & Mar.
the Persons bound to contribute, either by Labour or in Money to the Amendment of the Highways are divided into two Classes; the first whereof consists of
Such as occupy a Ploughland in Tillage or Pasture within the Parish, and
Every other Person keeping there a Draught or Plough.
These are to send, at every Day and Place appointed, one Wain or Cart, with Oxen, Horses, or other Cattle, and two Men, on Pain of every Draught making Default, 10
s.
The second Class consists of
Every Housholder, Cottager, and Labourer, able to labour, and being no hired Servant by the year, who are required by themselves, or one sufficient Labourer for every of them, on every of the said Days, to work in the Amendment of the Highways, upon Pain to lose for every Day 12
d.
Thus we may observe every Individual in the Kingdom, from the yearly hired Servant upwards, is required to contribute to this necessary Work; and that those Land-Holders, who, by occupying less than a Ploughland, and keeping no Draught or Plough, are not comprehended within the first descriptive Clause, are yet reached by the second; and we may very reasonably infer, that had there been, at the Time of making the Statute, as there is now, any Rank of Men equally capable in respect of their Wealth, of contributing to the Amendment of the Highways with those described by the first Clause, and yet not included in it; that in that Case the Legislature would, by a few Words, have extended that Clause to them, and not tacitly have ranked such Persons with Housholders, Cottagers, and Labourers able to labour.
It is true, that even at the Time of making this Statute, it was not universally agreed what Quantity of Land a Ploughland contained, and that the Antiquaries and Lawyers entertained different Opinions about that Matter. My Lord
Coke
has said, that a Carve or Hide of Land, or a Ploughland, which is all one, is not of any certain Content, but so much as one Plough may plough in one Year; and so in some Countries it is more, and in others less, according to the Heaviness of the Soil. 9
Coke's Rep.
124.
Lowe's Case.
Others assert a Difference between a Hide and a Carve or Ploughland; for they say, that a Hide of Land contains four Ploughlands, or 480 Acres; whereas a Carve or Ploughland contains but 120 Acres, or four Yardlands of thirty Acres each: others again maintain a Carve or Ploughland to be an indefinite Measure,
quantum aratrum arare potest in oestivo tempore.
Vide
Skene, Minsheu,
and
Norden's Surveiour's Dialogue.
However, this Controversy is now at an End, the Statute of 7
Will.
3.
cap.
29. having settled that 50
l.
a Year shall be deemed a Ploughland.
Thus stood the Law till the Time of Queen
Eliz.
in the 5th, 18th, and 39th of whose Reign three several Statutes were made for the Repair of Highways. By that of the 5th,
cap.
13.
sect.
8. the Surveyors are required
"within one Month next after Default made contrary to the Statute of 2
&
3
Phil. & Mar.
or this Act, to present such Default to the next Justice of the Peace, upon Pain to forfeit 40
s.
and such Justice shall certify the same Presentment at the next General Sessions, upon Pain to forfeit 5
l.
and the Justices of the Peace shall have Authority to enquire of any such Default or Offence at their Quarter-Sessions, and to assess such Fines for the same as they or any two of them, whereof one to be of the
Quorum,
shall think meet."
The principal End of the Statutes of 18
&
39
Eliz.
was the Clearing up certain Doubts that had arisen upon the Construction of the former Statute, to invest the Surveyors with more extensive Powers, particularly, as to providing Materials, and to increase the Number of Days Labour from four to six. Indeed one of these Statutes,
viz.
that of the 18th of the Queen,
sect.
2. enacts, that every Person (except such as dwell in
London
) that shall be assessed to any Subsidy, to 5
l.
in Goods, or 40
s.
in Land or above, being none of the Parties chargeable for the Amendment of the Highways by any former Law, but as a Cottager, shall find two able Men yearly to labour in the Highways at such Times as by the said Statute are appointed. But how far this Law can be said to be in Force, now the Method of raising Money by Subsidy is discontinued, is Matter of Question.
But afterwards, upon Consideration, it was found, that in many Places of the Kingdom there was no Use for Carts and Teams, but that the Practice was to carry Materials on Horses Backs, or by other Kinds of Carriage; it is therefore by 22
Car.
2.
cap.
12.
sect.
8. enacted,
That in such Places the Inhabitants shall send in such their Horses as are accustomed to that Labour, and their other Carriages as by any former Statute is appointed for Carts.
Sect.
9.
"If any Person shall fail to make their Days Labour for repairing the Highways, or neglect to send their Carriages, it shall be lawful for the Surveyors to make Complaint to the next Justices of the Peace, who are required, upon Proof, by Oath of one Witness, to levy by Distress and Sale of the Goods of every Person failing as aforesaid (and not having a reasonable Excuse to be allowed by the Justices) the Penalties hereafter mentioned,
viz.
for every Day Labourer 1
s.
6
d.
for every Man and Horse 3
s.
and for every Cart with two Men 10
s.
for every Day; which Penalties shall be employed for repairing the Highways."
Also, by
Sect.
3. of this Statute, it is
"provided, that where the Highways cannot be sufficiently repaired before the Feast of St.
John Baptist
yearly, the same may be repaired before the Feast of St.
Luke,
without incurring any Penalty."
And by
Sect.
12.
"the Surveyors shall be yearly chosen by such Persons as by an Act of 2
&
3
Phil. & Mar. cap.
8. is appointed, upon some Day in the Week that
Christmas
Day shall be; which Persons so chosen shall take upon them the Office, and shall appoint six Days for the providing Materials, and for working in the Highways, giving Notice publickly before the Days; and the Surveyors shall make Return of the Defaulters within one Month to some neighbouring Justice of the Peace, who shall present the same at the Quarter-Sessions next after such Return; and the Offenders against this Act, in all Cases not particularly directed, shall incur the Penalties inflicted by the Laws now in Force for amending of Highways."
It is observable, that the Word Teams is not made use of in any of the Statutes previous to this of 22
Car.
2. and that that Appellation, instead of fixing the Meaning of the Law, has unfortunately rendered it more vague and uncertain; for admitting, after what has been said, a Possibility that a Coach, Chariot, or Post-Chaise and two Horses, might be deemed a Draught, yet that they should ever be reckoned a Team, no one can imagine.
We may reasonably enough suppose, that the former Statutes had been found defective in Respect to the Qualifications and Directions therein contained, for the Election of the Surveyors. For,
By
Stat.
3
&
4
Will. & Mar. cap.
12.
sect.
3.
"Upon the 26th of
December
in every Year, unless that Day be
Sunday,
and then on the 27th, the Constables, Headboroughs, Tything-Men, Churchwardens, Surveyors of the Highways, and Inhabitants in every Parish, shall assemble and make a List of the Names of a competent Number of Inhabitants who have Hereditaments in their own Right, or that of their Wives, of the Value of 10
l.
by the Year, or a Personal Estate of the Value of 100
l.
or are Occupiers of Tenements of the yearly Value of 30
l.
or if there shall be no such Persons in the Parish, then the List to be of the most sufficient Inhabitants, and shall return such List unto two Justices of the Peace in or near the Division, at a special Session to be held within the said Division on the 3d of
January
or within fifteen Days after. And the Justices shall then, out of the said Lists, by Warrant, appoint one, two, or more Surveyors of the Highways of every Parish within the Division for the Year ensuing, which Appointment shall, by the Constables,
&c.
be notified to the Persons appointed within six Days after such Nomination, by serving them with the Warrants, or leaving the same or a Copy thereof at their Houses, and the Persons so appointed shall be Surveyors of the Highways for the Parish for the Year ensuing, and duly execute the Office, and if the Persons so nominated and served shall neglect or refuse so to do, they shall forfeit 5
l.
to be levied on their Goods by Distress and Sale, and in Case of such Neglect or Refusal, Justices are empowered to appoint other Persons."
And by
Sect.
13. of the same Statute,
"upon Notice given by the Surveyors to the Justices at their special Sessions, and Oath made of what Money they have laid out upon amending the Highways, the Justices, or any two of them, are empowered by Warrant to cause an equal Rate to be made for reimbursing the Surveyors upon all the Inhabitants of such Parish according to the Methods prescribed in an Act of 43
Eliz. cap.
2. for Relief of the Poor, which Rate being confirmed by the Justices in their Special Sessions, shall be collected by the Surveyors."
But by
Sect.
18. such Assessment is not in one Year to exceed 6
d.
in the Pound for Lands, nor 6
d.
in 20
l.
for Personal Estate.
It has already been mentioned, that there had been a Variety of Opinions as to the Quantity of Land of which a Ploughland was supposed to consist: it was therefore by the
Stat.
of 7
Will.
3.
cap.
29.
sect.
5. declared that any Person that should have in his Occupation
Wood-Land
or
other Land
to the Value of 50
l. per Annum
should be deemed to have a Ploughland within the Statutes of Highways; notwithstanding which, the Practice is to charge the Market-Gardeners about
London,
who are very numerous, only to the lesser Statute Duty, though the Quantity of Ground that most of them occupy might justly subject them to the greater.
By the 1
Geo. stat.
2.
cap.
52.
sect.
2. All Surveyors of the Highways are required
ex Officio
"every four Months or oftener, if required, by Warrant, to give a true Account in Wriing upon Oath of the Condition of the Highways, and of such Defects as want to be repaired, and of the Neglects of Labourers, and those who are obliged to find Labourers or Teams, to the Justices at their next Special Session. And all Surveyors neglecting to give such Account shall suffer the same Penalty as if they had refused to execute the Office."
And that by the Statute of 3
Will. & Mar. cap.
12.
sect.
3. is 5
l.
By
Sect.
6. of the same Act, the Power of the Justices to make an Assessment is extended to the Case of Highways which are so far out of Order, that they cannot be repaired as they ought, without further Power than the Laws had then directed, and the Justices may cause Assessments not exceeding the Proportions limited by the Act of 3
&
4
Will. & Mar. cap.
12. and the Money to be disposed of as by the said Act is directed, though the six Days Work have not been performed; the raising Money by Assessment not to excuse the Work of any Teams or Labourers.
And here it may be proper to take Notice what the Sense of the Law appears to have been in the Construction of the Statutes above-cited; and first it seems
That a Highway may be either 1. a Foot-Way; 2. a Foot and Horse-Way, which is also a Drift-Way; or 3. a Foot, Horse, and Cart-Way.
Co. Litt.
56.
That a Ploughland, or a Carve, or Hide of Land, may contain House, Meadow, Pasture and Wood. 4
Coke's Rep.
37.
b.
9
Coke's Rep.
124.
That Persons in Holy Orders are within the Purview of these Statutes in Respect of their Spiritual Possessions. 1
Hawk. P. C.
204.
That notwithstanding the Words of the Statute of
Phil. & Mar.
extend only to the Occupiers of Lands, yet if the Owner neither occupy nor let them, but suffer them to lie fresh, he shall be charged.
Ibid.
That he who keeps several Draughts in a Parish is bound to send a Team for each Draught, whether he occupy any Land in the Parish or not.
Ibid.
Upon a very transient Retrospect to the Laws above cited, we shall see that the Legislature seem to have thought it just, that the Burthen of repairing the Highways should be borne by the several Classes of People into which it had arranged them, in Proportion to their respective Circumstances and the Use they might each of them be supposed to make of the Highways. And inasmuch as these Laws are not in the Number of those, which, as some fanciful Legists have asserted, execute themselves, it was necessary to appoint proper Officers, whose Duty should be in general to take Care of the Highways, and see that the several Laws enacted for their Preservation and Amendment from Time to Time were complied with. And with regard to the Manner in which these Laws are executed, we also find, that in pursuance of the Authority given them by the Statutes above-mentioned, particularly that of 3
&
4
Will. & Mar.
the respective Parish Officers and Inhabitants of every Parish throughout the Kingdom, do yearly at the stated Time for that Purpose, make Returns of a complete Number of Inhabitants qualified as the Act directs, to the Justices in their Sessions, who thereout do, by their Warrant, appoint the Surveyors of every Parish within their respective Divisions.—That the Money remaining in the Hands of their Predecessors is paid over to the new Surveyors.—That some Time in the Summer a general Notice is published in the Parish Church, of the Six Days on which the Inhabitants are required to work on the Highways.—That on those Days some attend, and others make Default.—That about St.
Luke
's Day in every Year a Return is made of the Defaulters to the Justices, who, if no Cause is assigned on a Summons issued by them for that Purpose, execute Distress Warrants, upon which the respective Penalties are levied; which it is supposed are applied in hiring Persons to do that Labour, which the Law in the first Instance imposes on the Defaulters themselves.
Before we proceed to point out the various Ways by which the salutary Purposes of the Legislature may be, and are defeated; it will be necessary to enquire how far the Laws now under Consideration do at this Day consist with that Justice and Equality with a View to which they were originally framed. The intelligent Reader need not be told, that the frequent Use, if not the Invention of Coaches, and all those various Species of Wheel-Carriage, the sole End whereof is the Conveyance of Persons from one Place to another, is of far less Antiquity than the first of the Statutes above cited; and it is far from being Matter of absolute certainty, that a Cart drawn by
two
Horses only, is in Construction of Law a Draught.
Dalton,
who wrote before the Year 1619, seems to make it a Question whether it is or no, when he says,
"I find that a Draught for the King's Carriages heretofore hath been sometimes with two Horses, as it seemeth by the Statute of
Magna Charta, cap.
21."
(The Words of the Statute be
"No Sheriffe,
&c.
shall take the Horses or Carts of any Person for Carriage, except he pay for one Cart with two Horses Ten-pence by the Day, and for a Cart with three Horses Fourteen-pence by the Day); and therefore I think him that usually goeth to Cart for his own Business with two Horses, to be chargeable to find a Cart and two Horses for the Amending of the Highways, and to carry such Loads as his two Horses are well able to draw."
Here we see the Author above quoted driven to the Necessity of reasoning from Analogy, in Order to shew that a Cart which is constantly used for the Purposes of Husbandry, and was an Implement in use so long ago as
Magna Charta,
if drawn but with two Horses, is a Draught within the Meaning of the Statute of
Phil. & Mar.
and after all, his Opinion does not seem (as some others of his have) to have been adopted by any subsequent Statute, or established by any Judicial Determination.
If this then is the Case in the Instance abovementioned, what are we to think of that of
Coaches, Chariots,
and
Post-Chaises,
which have no Relation to Agriculture or Husbandry, and were scarcely known at the Time of making the Statute? Or indeed, if we consider that the Occupiers of such Carriages are, throughout the Kingdom, exempted from the greater Statute-Duty, what can we think, but that there is no Law in Being, which, in respect to the Statute-Labour required of each of them, does distinguish between the highest and lowest Rank of Subjects?
It has indeed been asserted, though on very slender Authority, that this Matter did once receive the Determination of Sir
Matthew Hale,
whose Opinion is said to have been, that Coaches and Chariots were included under the Appellation of a Draught, and that such as kept them were liable to do Statute-Duty in like Manner as those who kept Teams: but we have no authentic Report of any such Determination; and the Practice throughout the Kingdom is to consider such Persons merely as Householders.
There are some Propositions so evident, that they are incapable of Demonstration; for which Reason it is sufficient to say, that as the Law now stands, a Nobleman of the highest Rank that does not occupy 50
l.
a Year in Land, or keep a Team, (and there are many who do neither) and who is continually wearing the Highways with his Horses and his Carriages, is legally chargeable with Six Days Labour in a Year, or the Payment of Nine Shillings in Lieu thereof; and that the poor Day-Labourer, the Cottager, who has a Wife, and perhaps three or four Infant Children to feed and clothe, whose only use of the public Highway is the walking on it to and from his daily Labour, is chargeable precisely to the same Amount.
My Lord
Coke
somewhere observes, that those Laws which impose a Penalty disproportionate to the Offence, are very seldom executed; and the Reason is, that in all such Cases, the general Humanity both of those that should inform, and those that should convict, interposes; and so the Offender escapes with Impunity. The same may be said of every Law that seems to be either unnecessarily or inadequately severe; and to apply this Observation to the Case now before us, we find that the lower Class of those who are charged with Six Days manual Labour, from a Sense of the Hardship of such a Burthen, either do it partially, or not at all; and in the latter Case, being Contuments, they are liable to the Penalties, and so become amenable to the Justices for their Neglect.
The Power of the Justices in mitigating the Severity of the Law, is restrained to very few Cases; the
reasonable Excuse
which the Statutes of 22
Car.
2.
cap.
12.
sect.
9. and 1
Geo. cap.
52.
sect.
2. allow, cannot operate in the Case of a Person whom the Law has expressly charged, and such as are unable to labour are specifically discharged. To whom then are the Justices to extend this their Clemency? perhaps after all, to those few Persons only, whose short Residence in a Parish would make it unreasonable to charge them with any Statute-Duty. If then the Justices are bound to issue their Warrant against every poor Defaulter for the whole of the Nine Shillings, and if every Commutation or Composition be, as undoubtedly it is, illegal; let it be considered how reluctantly this Power must necessarily be executed, and how much it is the Interest of every poor Man, rather than conform to the Law to disobey it, and trust to all the Chances in his Favour that it will never be executed against him.
With all due Deference, therefore, to the Wisdom of those concerned in framing them, we may venture to assert, that the Laws now under Consideration, are at this Day, at least, inconsistent with those general Principles of Justice and Equity, from which every Law in the Estimation of good Men, is supposed to derive its Authority.
Nor does the Statute of
Phil. & Mar.
appear at all more defensible, if we consider it in a
political
View: A Law without a Sanction is but a dead Letter, and such does that appear to be, which we are now considering. Suppose a Farmer is required by the Statute, as occupying a Ploughland, or keeping a Draught, to send a Team to work Six Days on the Highways, and that he is averse to the Performance of this Duty, what is the legal Motive to Obedience in this Case? The Answer is, the Fear of incurring the Penalty; but perhaps it may be more his Interest to incur the Penalty, than to avoid it. Let us consider whether it is or not.
The Labour of a Cart, a Team, and one Man, is in most Places estimated at Ten Shillings a Day; If the Farmer lets them out to a neighbouring Gentleman, they will earn the Owner that Money; but if he sends his Cart and Team with two Men to work on the Highways, the Labour of them all will excuse him from the Payment of no larger a Sum: so that if he lets out his Team and incurs the Forfeiture, he saves the Labour of one Man, and the Statute is so far from being penal in this Respect, that it is pregnant with a Motive to Disobedience; and this is certain, that no Man will ever send his Cart and Team to Highway-work, if he can either let them out or find Employment for them at Home.
In like Manner may the Day-Labourer argue with himself, and conclude, that if he must either actually perform, or forfeit the Price of Six Days Labour, the latter is as eligible as the former; with this Difference, that if he does his Work, it is a certain Loss to his Family of a whole Week's Subsistence; whereas, if he omits it, the Payment of the Penalty is contingent.
This Defect, it must however be confessed, is owing solely to the Diminution in the Value of Money since the enacting the Statute now under Consideration. Bishop
Fleetwood,
in his
Chronicon Pretiosum, cap.
V. has shewn, that in 1514. which was not a great many Years before this Statute was made, the Wages of a Labourer from
Easter
to
Michaelmas,
except in Harvest, were Four-pence; and from
Michaelmas
to
Easter,
Three-pence by the Day: and though he has not mentioned it expresly, we may there find Reasons to conclude, that the Labour of a Waggon and Team with two Men, was worth about Two Shillings and Eight-pence by the Day. And by the Statute it appears, that at that Time, as it is now, the Penalty for every Day's Default of those who were to send a Team, was Ten Shillings, and of those who were to labour, One Shilling: now, if we compare these Forfeitures with the respective Duties they were intended to enforce, we shall find them to have been penal to a sufficient Degree at the Time of making the Statute; but the Case is otherwise at present.
It has been urged, that whether the Person charged does actually perform, or pay the Price of his Duty, the Case is the same to the Public; inasmuch as the Forfeiture will purchase just as much Labour and Assistance as was originally required of him; and if that is done, it is nothing to the Public what Hands were employed in it.
In Answer to this, it may be said, that it seems as if the Makers of the Statute thought otherwise when they made the Penalty in both Cases more than treble the Value of the Duty required. Besides, is it of no Consequence to a State whether the Laws are obeyed or not? we all know, that the increase of penal Laws is one of the most inflaming Topics of popular Clamour, and that every additional Statute of that Sort, is an Addition to the Power of factious and designing Men to distress a Government. Is it not, therefore, of some Importance to the State whether a Law, which has solely the public Good for its Object, is constantly to wear the Face of a remedial or a penal one?
Let us now see in what Manner the Law at present under Consideration is observed in those few Parishes, where the Inhabitants are disposed to yield Obedience to the Letter of it; the Days for performing the Statute-Duty are so far from being considered as Days of Labour, that as well the Farmers as the common Day-Labourers, have long been used to look on them as Holidays, as a kind of Recess from their accustomed Labour, and devoted to Idleness and its concomitant Indulgences of Riot and Drunkenness. Besides, as this Labour, where it is performed, may in some Degree be said to be voluntary, we are not to wonder, if such as employ themselves in it are less obedient to the Directions of those whom the Law has appointed to superintend it, than is consistent with the due Discharge of their Duty. What is the Benefit arising from the Labour of twenty Men and as many Horses, occupied in four or five different Stations within an extensive Parish, compared with that of half the Number of each, working under the immediate Direction of an Officer, and executing a Plan which he himself has concerted and sees the Tendency and Advantages of?
And this naturally leads us to reflect a little how inadequate in respect of its Duration, is the Authority of the Surveyors, to the Ends proposed in the Institution of the Office: we will suppose a Surveyor to be, as the Statute of
Will. & Mar.
requires, a Man of Substance, and inclined to execute the Office faithfully; and that he is what no Statute can make him, a Judge of Roads, and the Art of making and repairing them: whatever Schemes he shall form on his taking on him the Office, he has in Effect but Six Days to execute; we must therefore suppose that he will hardly think of any Repairs, Alterations, or Amendments, but what may be done in that Time, by such of the Inhabitants as have usually preferred the doing their Statute-Duty to paying the Forfeiture. Besides this inevitable Restraint on the Officer in respect to the Latitude of his Operations, we see he can have no Dependence on those who should execute them; and in Case they should fail to assist, he, as will be immediately shewn, is destitute of a Resource. For,
Suppose him desirous of mending a foundrous Way, and that, in Pursuance of the Direction in the Statute of 22
Car.
2. and with a View of getting it done before Harvest, on the first Day of
May,
which is as soon as in many Places the Falling of the Waters will permit the Digging of Gravel, he gives Notice in the Church of the Six Days, and requires the Inhabitants to do their Statute-Work; and suppose also, that all those whom he expects to attend do not come in; and that, in Favour of his Neighbours, he repeats this Notice, indulging them with further Time, and that after all they make Default, what is to become of the intended Repair, and how is the Way to be amended?
Why, it will perhaps be said, Let the Surveyor apply the Forfeitures incurred by the several Defaults in the Hire of Teams and Men, and go on with his Work; very true, but first he is to receive them; in Order to which he is to enter upon a new Work; namely, to bring the Defaulters to Justice. And first he is to make out a List of their Names, which when completed, is to be returned to the Sessions, which may possibly be to be held either in a Week or in four Months after the Offence; the Justices upon this Return, of Course issue Summonses for the Defaulters to shew Cause in a reasonable Time, why they will not pay; after this, if they do not comply, Distress-Warrants are issued, before the Execution whereof the wet Weather sets in, and there is an End of Road-Work for that Year. The Surveyor is then busied in making up his Account against the
January
Sessions, or perhaps in defending Actions grounded on some Irregularity in the Notice, the due Publication whereof, or of the respective Defaults, not one in Fifty of them is ever prepared to prove: when
January
comes, his Account is passed, and he pays the Balance to the new Surveyor, who will have just the same Difficulties to encounter as his Predecessor.
And yet, perhaps, the worst Consequences are behind; every one knows, that the Law in general requires, that the Highways throughout the Kingdom shall be kept in Repair by the several Parishes of which they are Part. The Law has established a Form of Proceeding by Way of Indictment against the Parishioners, upon which, if the Defendants are found guilty, they shall not be discharged by submitting to a Fine, but a
Distringas
shall go
in Infinitum
till they repair. This Remedy may seem to have been founded on the Statute of
Winton;
yet by the Passage above quoted from
Britton,
it appears to have been Part of the antient Common Law of the Realm, of which the Statute is but a Recognition.
The Statute of 5
Eliz. cap.
13.
sect.
8, 9. has prescribed another Method of Proceeding, which, though seemingly different, is in Effect much the same as that of an Indictment, which is by a Presentment of the Surveyors to the next Justice, who is to certify the same at the next General Sessions, and the Sessions is immediately to enquire of the Defaulters. Now, notwithstanding the seeming Efficacy of the Word
immediately,
yet the general Opinion on that Clause of the Statute is, that the Certificate of the Justice in this Case, has not the Effect of a Presentment, but must be turned into an Indictment; to which, by the Rules of Law, the Offender may enter his Traverse, and no Trial can be had, till the Sessions after.
Each of these Methods of Proceeding seems liable to great Objection; for as to the first, the Law does not distinguish those who have done, from those who have refused to do their Statute Work, but pronounces its Judgment indiscriminately against the whole Parish; from whence follows this apparent Injustice, that the Innocent and the Guilty are involved in the same Punishment.
As to the Method of proceeding by Presentment under the Statute of 5
Eliz.
we shall soon see that it is not productive of that expeditious Justice which the Statute gives Reason to expect; for suppose twenty or thirty persons are required to work on the Highways the Week after
Easter
Sessions, and that they make Default, or refuse to work when they are out, the Surveyor in such Case is by the Statute of 5
Eliz.
to present the Defaulters to the next Justice of the Peace, who is to certify this Presentment to the next General Quarter-Sessions of the Peace, that is the Summer Sessions following, when we will suppose the Defaulters are indicted; now, if it should be
Christmas
Sessions before this Indictment can be tried, and sooner it cannot well be, here is a whole Summer lost, and nothing is done to the Repair of the Highways: for, from the Moment a Prosecution is commenced, a total Defection is sure to follow, and there is an End of all legal Obedience; and if any Mistake in the Manner of conducting it, or any Defect of Proof should occasion a Failure, the Offenders are supposed to have triumphed over the Law, and it is odds if they ever after do any Duty.
The Delay and Expence of these Methods of proceeding are Objections common to them both, and it is most ardently to be wished, that as well for these Reasons, as because of their Inefficacy, they were either totally abolished, or so regulated as to be more effectual.
And here it may be proper to take Notice of the Difficulty that the Justices are under, with respect to the Measure of their Authority in the Case of Non performance of the Statute-Duty; for though it has been said, that by the Statute of 5
Eliz.
the Surveyors are to present the Defaulters to the next Justice, who is to certify the Presentment to the Sessions, yet the subsequent Statute of 22
Car.
2.
cap.
12.
sect.
9. requires the Justice on the Oath of one Witness to levy the Penalties of 10
s.
and 1
s.
6
d.
notwithstanding which,
sect.
12 of the same Statute directs the same Method of Proceeding at the Sessions as is prescribed by the Statute of 5
Eliz.
Again, the Statute of 3
Will. & Mar. cap.
12.
sect.
9. enacts, that all Offences and Neglects respecting the publick Roads be presented by the Surveyor on Oath to some Justice of the Peace within the Division: but the Act does not direct what is to be done with the Presentment, nor can any one conclude that the Justice is to certify it, unless from the Second Section of the Statute, which enacts, that all the former Laws relating to the Highways shall be executed according to the Tenor of those Laws.
Besides all this, the Statute of 1
Geo. cap.
52. is so worded, that it seems doubtful whether all the Authority given by former Acts, as to these Matters, is not taken away, and the Jurisdiction vested in the Special Sessions.
There is an Inconvenience that attends the Discharge of the Surveyor's Office, different from those already enumerated; for, whereas they are supposed to arise from Disobedience to the Law, this is the Consequence of a Compliance with it. The Statutes direct, that a general Notice be published in every Parish, requiring the Inhabitants to come in and perform their Statute-Work on the Six several Days mentioned in such Notice; suppose then that they all attend and declare their Readiness to Work, how are the Surveyors to employ them? In most Places the getting ready the Materials is a Step necessarily previous to working in the Repair of the Highways; Gravel must be dug before it can be spread; and till that is done, not only Teams, but more than a few Hands are of no Use; and the Surveyor, by calling out the whole Parish at once, puts himself in the hopeless Situation of a Magician, who, according to the vulgar Notion, having raised a Spirit whom he cannot employ, is immediately in his Power, and in Danger of being torn in Pieces. There are a few Instances of local Statutes obtained on the Application of particular Parishes, whereby the Labour is converted into a Rate; and this Method, if it were universally practised, would undoubtedly take away this and many other Objections against the Law as it now stands: but as all the Acts of Parliament since that of
Phil. & Mar.
have proceeded to enforce the Statute-Duty, and as none of the many various Proposals for amending the Highways, which have from Time to Time been submitted to the Public, have ventured to assert the Expediency of annihilating that Duty, we may very justly conclude, that the Reasons in Favour of it lie deeper than is generally thought; and it would therefore be great Presumption in any private Person to say, that the same Advantages are to be expected from any Rate or Assessment, as are capable of being produced by a just and equitable Apportionment of the Statute-Duty.
But to return to the Duty of the Surveyor; it has hitherto been admitted, that he is what every one would wish him to be, a skillful Man in the Business of Road-making; but what must be the Consequence if we suppose him to be otherwise? A Farmer, or if he is an Inhabitant of a Town, a Tradesman, as ignorant of this kind of Business as Ninety nine Men in every Hundred throughout the Kingdom are found to be, what blessed Effects are like to follow from a Contest between Ignorance armed with Authority on the one Side, and invincible Obstinacy, to call it perhaps by a worse Name than it deserves, on the other!
These are some, and but a few of the Difficulties that attend the Execution of the Surveyor's Office; but what are these, compared to those of the Magistrates, who are to execute the Law in this Respect, as it now seems to stand? Imagine a Hundred or more of the most indigent Inhabitants of a Parish attending to assign Reasons for not doing what in natural Justice they ought never to have been required to do. Imagine these Reasons to be Poverty, a numerous Family, a Wife, and four, five, or more small Children; Sickness, Lameness, and an Income of Nine Shillings a Week to provide for them all Food, Raiment, and other Necessaries, and think whether that Authority is to be envied, which the Magistrates are sworn to exert in the enforcing Obedience to perhaps one of the most oppressive Statutes that ever yet received the Sanction of public Assent.
In the Course of the above Reflections it has been assumed, that the Surveyors are in general disposed to pursue the Directions of the Law in the Execution of their Office; but in Truth it is very seldom that they do so: one Error into which they almost universally run, is, the considering the respective Forfeitures for every Day's Default as a
Tax
or
Rate,
than which nothing can be more absurd; in Consequence whereof their Practice is, as soon as they enter into their Office to assess
ex Officio
every Inhabitant in a Sum proportionable to the Labour required of him, which they proceed to collect with as little Hesitation as the proper Officers do the Poor's Rate; whereas it is evident, that these several Sums are not due till the Persons on whom they are charged have made Default. And this Error naturally induces a general Inattention to the Manner of publishing the Notice, which they suppose is to operate against only a few, and therefore is but little more than Matter of Form.
There are two Mischiefs that attend this Practice, the one of a private, and the other of a public Nature; the one is, that every Individual of whom Money has been collected in this Manner, has undoubtedly his Action at Law against the Surveyor for the Sum so collected of him; the other is, that when the Notice has been so negligently given, as that the Publication thereof cannot be proved by an uninterested Witness, a Person not himself liable to do Statute-Work in the Parish, who can swear to the Reading it by the Clerk, and is prepared with a Copy of what he heard read, it is odds but every Shilling of the Money forfeited is lost to the Parish.
This Behaviour of Surveyors, as also that Corruption which we see daily practised by them in garbling the Inhabitants of a Parish, commuting with them for their Duty, receiving of some five, of others four Shillings, half a Crown, or what many of them like better, a Bowl of Punch, are punishable by a Fine of 5
l.
which the Justices in their Sessions have Power to impose; though a much severer Punishment-would await an Officer who should dare to abuse his Trust in such a Manner.
But this, and many other Evils of the like Nature, are in a great Measure owing to the Practice of electing Tradesmen, and Persons in a Situation necessarily dependent and subject to Influence, into parochial Offices. There are many Parishes in this Kingdom, where all the Offices of Churchwarden, Overseer of the Poor, Surveyor of the Highways, and Constable, are borne by a few of the Inferior Inhabitants in a Rotation so quick, as hardly to allow of a single Year's Respite for any one of them; while the Gentlemen, perhaps from a Contempt of an Employment which requires little more than to be able to write and keep a Year's Account, or for other Reasons, sit by and see the Public defrauded and the Law eluded. There is an Obligation which every Man is under, who participates in the Benefits that accrue to Society from Government and Laws, which will render it very difficult for those who are qualified, and are unengaged in Trades or Professions, to find an Excuse for such Supineness, those who can do it are welcome to all the Satisfaction it can afford them. A Method which has been practised in some Parishes, and is constantly pursued in a very considerable one adjacent to the Metropolis, of joining a Gentleman of large Fortune, or perhaps a Nobleman, with a Tradesman, in a parochial Office, has been found to produce considerable Advantages; and were it to become universally a Fashion, the Public would soon be sensible of its good Effects.
Such are the Inconveniencies the Public feel, and the Hardships that the lower Class of People endure in the several Particulars above insisted on; the repeated Complaints of those who are most affected by the Inequality of the Highway-Laws, have never yet prevailed further than to produce such Amendments and Alterations from Time to Time as the immediate Exigencies of the Case suggested. How far the Laws in this Respect are even now short of that Degree of Perfection which they are capable of being wrought up to, we may in some Measure collect from the Sentiments of Mr.
Burn,
who says that
"Most of the Books are remarkably confused under this Title, occasioned by a Multiplicity of Statutes standing unrepealed, and yet altered perhaps five or six Times or oftener, by succeeding Statutes."
Burn's Justice,
Tit.
Highways,
at the Beginning.—He afterwards gives his Sense of this Matter more at large in the following Terms;
"Notwithstanding that the Wisdom of the Nation hath been employed for above Two hundred Years in redressing the great Evil of bad Roads, yet, excepting in some Cases, where Turnpikes have been erected, the Roads are as bad now as they were in the Days of
Philip & Mary;
and the Defect is in many Places not so much the Want of Hands, as of proper Direction. The same Multitudes which assemble to demolish a Turnpike at the Hazard of their Liberty and Lives, are able, and I doubt not would be willing, if rightly instructed, to make the Roads good without paying Turnpike-Tolls: but the Misfortune is this, although the Laws have provided that the Surveyors shall be chosen out of the more substantial Inhabitants, yet when that is done, scarce one of them in Five hundred knows how to make a good Road; and if he does, his Power continues in Effect but Six Days, and his Successor probably hath other Schemes and Notions, and the Road is made never the better. Hence it is, that when the People assemble to repair the Highways, if indeed they do assemble, they spend the Time in Diversions and making Bargains, and other idle Amusements, and why should they not? they may as well meet and do nothing, as work hard, and to no Purpose. And from so many Years Experience the Case will never be any otherwise unless the Justices of the Peace, or others in like Manner, as the Turnpike-Trustees, shall have Power given to them by Act of Parliament to appoint general Surveyors within proper Districts, with Salaries, to lay out the Roads, and attend and direct the Work, and see the Statute-Labour well performed. And this may be effected without any new Assessment or Charge: half the present Assessment of Six-pence in the Pound, or even less than half, would be sufficient in many Places both to find Salaries, and to widen and purchase Roads where needful; and the People, when they should find the Benefit of their Labour, would work with Chearfulness.
Burn's Just. Highways.
There is nothing in the Passage above cited that indicates a Necessity for annihilating the Statute-Duty; on the contrary the Author's Proposal for an Alteration of the Laws seems to imply the Continuance of it; and indeed it is well worthy the Attention of Parliament how far it may be prudent to indulge the People in their present Belief of the Omnipotence of Wealth. The Practice of commuting with Money for Personal Services and manual Labour will ever tend to render them Scandalous.
Homer,
whose Writings are supposed to exhibit a very just Picture of the antient Modes of Living, seems to have thought it no Degradation of a Hero to make him his own Cook; on the contrary, in the present refined State of human Manners, it would be reproachful for a Person of but ordinary Rank to perform many of the Functions necessary to his own Support; the Time may come when Agriculture and other rural Employments will be as dishonourable in
England
as they have long been in
Spain;
and when the Evil of bad Roads will be more tolerable than the Disgrace of having contributed any otherwise to the Amendment of them than by a Display of that Opulence which seems now to be the most desirable Distinction between Man and Man. With good Reason therefore did the antient Policy of our Constitution render the basest Services honourable, by converting them into feudal Tenures, and requiring the Nobility to do that for their Sovereign which they would now disdain to do for themselves.
The Objections which Mr.
Burn
makes are in Truth reducible to two, the Multiplicity of the Laws in the Instance now under Consideration, and the ill Direction of the Power given by them; the latter of these Inconveniencies may undoubtedly be remedied, by committing that Power to those who have no Temptations to abuse it; but the former is an Objection of Weight, is of general Importance; and requires a very serious Attention.
The Statutes relating to the Amendment and Repair of the Highways are not fewer than twelve in Number, made at different Times as Necessity required, and abounding with Clauses which the utmost Skill in the Modes of legal reasoning will not enable us to reconcile. Clauses in the older Statutes have been suffered to stand unrepealed, though such Clauses were altered and amended by subsequent Acts; different Penalties have been inflicted for the same Transgression by different Statutes, all of which are yet suffered to subsist; and thus the Highway Laws have insensibly accumulated to such a Degree as to become a Subject of universal Complaint.
It is true, that the Multiplicity of our Statute Laws has been so long lamented, that Objections of this Sort are looked on as trite; and as they contain nothing but what has been urged before, unworthy the public Attention. It is near twenty Years since
Montesquieu
endeavoured to palliate this Misfortune by remarking, that the Multiplicity of the
English
Laws is the Price that the People of that Country pay for their Liberty; but what Equivalent can they expect for that Premium, when the Laws become so numerous, that they cannot be executed; and those whom they were intended to bind are thereby in Effect absolved from their Obedience? what Reason there is to fear that this may one Day be the Case, will appear on reflecting on the enormous Increase in the Volume of our Statute Book within these few Years. Six Years after the Revolution two Folio Volumes contained the public Statutes in Force from
Magna Charta.
By the Seventh Year of the late King they were grown to Six; and at the Expiration of the Thirtieth Year of his Reign, which was Twenty three Years after, they amounted to Nine; during which Period not a single Session passed that did not add several Statutes to that incredible Number which the Justices already had in Charge to see executed.
What a tremendous Prospect then has the Magistrate before his Eyes, who resolves to discharge his Duty by the legal and conscientious Exertion of his Authority!
Lambarde,
that learned and sagacious Writer, and faithful Servant of the Public, in his
Eirenarcha,
written so long ago as the Reign of Queen
Elizabeth,
enumerates but eight Statutes that concerned the Justices of the Peace; which, in his quaint Way of expressing himself, were then thought, a Load sufficient to break the Back of any Justice, and now those Statutes are encreased to a Number not far short of Two hundred.
Indeed the Legislature have in some few Instances yielded to the pressing Necessity of the Times, and consolidated several Statutes relating to one common Subject, particularly in the Cases of the Navy and Militia Acts, into one general Law: this Method was originally suggested by the great Lord
Verulam
to his Master
James
the First, and we find in the
Journals of the House of Commons
18
Car.
2. a Vote
"That a Committee be appointed to confer with such of the Lords the Judges and other Persons of the Long Robe, who have already taken Pains and made Progress in perusing the Statute-Laws, and to consider of repealing such former Statute-Laws as they shall find necessary to be repealed, and of Expedients of reducing all Statute-Laws of one Nature under such a Method and Head as may conduce to the more ready understanding and better Execution of such Laws."
Journals of the House of Commons, Octob.
4. 18
Car.
2. The same Proposal has been often reiterated with Respect to the Laws relating to the Poor, but without Effect; and, except the Instances above-mentioned, it has never yet been carried into Execution.
Whoever has been used to turn over our Statute Book will have other Reasons than those above assigned, to wish that some such Regulation as this may soon take Place in the Instance now before us; for, not to mention the Confusion that necessarily follows from the frequent militant Clauses to be met with in many of them, the very Language of some of our Statutes is very inartificial, and reflects but little Honour on those that framed them. There is a Statute of 4
Geo. cap.
7. relating to
Button-making,
which
Burn
calls a
loose, injudicious,
and
ungrammatical
Act and adds, that it may well enough seem to have been drawn up by
Taylors
or
Buttonmakers
themselves: the Perspicuity and Precision of many of our old Statutes are standing Evidences how much our Ancestors exceeded us in the Science of Legislation.
Magna Charta,
allowing for some Barbarisms made inevitable by the Use of a Language extinct long before the Objects of that Law had any Existence, is in these Respects a model of Perfection; and the Statute
De donis conditionalibus,
the Statutes of
Uses,
and of
Frauds and Perjuries
are admirable Efforts of human Wisdom and Policy.
For the Reasons above stated, it is with all due Deference apprehended, that the several Statutes now in Force relating to the Highways stand in need of a Review; and that those Statutes may be so altered, amended, and improved, as to be clear of most of the Difficulties that at present obstruct their Execution, that half the Labour and Expence which the Public are at present at, would suffice to keep the Highways in as good Condition as the Turnpike-Roads are now in; and that the Burthen of amending them from Time to Time might be imposed in such a Manner as to do no Injury to the Rich, and take away all Possibility of Complaint from the Poor; and lastly, that an Act of Parliament calculated with these Views, might be so framed as to be as easy in its Execution, as laudable in its Design.
The principal Objects to be attended to in the framing a Law for these Purposes, are, that the Burthen thereby to be laid on the Public be proportionable to the respective Circumstances and Abilities of those who are to bear it, and that those who make the greatest Use of the Highways should contribute most to keep them in Repair. More particularly Care should be taken to extend the Qualification of 50
l.
a Year to Houses, Lands, and every other Species of Tenement and Hereditament lying, as the Law phrases it, in
Livery.
The Tax on Gentlemen of large personal Estates, and who keep Coaches, Chariots, and other Wheel-Carriages should be adjusted in a Compound
Ratio
of their Wealth, and the Use they are supposed to make of the Highways. Those who shall have the Superintendence of the Highways should be Persons of greater Property than are usually appointed to that Office; and, perhaps it might be expedient to invest the Justices with an Authority to appoint some one Person skilled in the Business of Road-making as a Kind of perpetual Surveyor, removeable nevertheless at Pleasure, and whose Business it should be for a Salary to lay out the Roads and attend and direct the Work, as those do who are appointed by Turnpike Trustees, and who shall be amenable to the Justices, and answerable at Law in like Manner as the Surveyors at present are.
The above Observations sufficiently shew the Necessity and the Justice of instituting a new Class of Contributors to the Repair of the Highways; namely, Persons who keep Coaches, Chariots, or other Wheel-Carriages. When that is done, the Proportions in which they are respectively to contribute may be adjusted thus:
Let
Ten
Days be appointed for the Amendment of the Highways instead of
Six,
and let every Person occupying two or more Ploughlands send a Draught on every of those Days, and let him that occupies only one Ploughland send a Draught five Days only, on Pain to forfeit in the first Case, and also in the other 30
s.
for every Day's Default. Persons occupying divers Ploughlands in divers Parishes, should send a Draught five Days for each Ploughland. Those who are not to send a Draught may be charged according to the following Scheme.
Persons occupying 40
l.
a Year to send a Labourer.
10 Days,
35
l.
9
or forfeit 4
s.
a Day.
30
8
25
7
20
6
15
5
12
4
9
3
6
2
3
1
But as all the Inhabitants are not to work on every one of the Ten Days, and to prevent the assembling of more of them than the Surveyors can employ, the Surveyors, besides publishing Notice in the Church, should have Power given them to call out by Summons in Writing the several Persons by such Numbers at a Time as they shall find necessary.
Persons who keep Coaches, Chariots, or Post-Chaises for their own Use, and not for Hire, and are not charged as Land-holders, should pay 10
s.
if with four Horses 15
s.
and if with six Horses 20
s.
a Year, over and above their Proportion of Labour.
This Mode of Taxation, it is to be observed, is calculated rather to preserve the Highways in a continual State of Repair, than to answer immediate Exigencies; it will therefore be necessary to continue the Power of making Assessments in the Manner prescribed by the Laws now in Force, which Power may be exercised either for immediate Improvements, or in Aid of the Statute-Duty.
Something also should be done with Respect to Evidence. It is an uncontested Rule in Law, that no Person can be a Witness to a Fact which will either directly or consequentially affect his own Interest: The Law in a general View is doubtless very reasonable that thus disqualifies a Man, and yet his Interest may be so small or so remote in a particular Instance, as to contribute no more towards determining his Evidence than a single Hair does to the Trepidation of a Scale-Beam capable of suspending a Ton Weight; notwithstanding which the Law knows no Difference in Degree, and its Care to prevent the Operation of insensible Prejudices is uniformly the same in all Cases. How great that Care is supposed to be, we may infer from the Conduct of the late Lord
Raymond,
in an Instance yet in the Memory of Persons now living, who, being Lord Chief Justice of the Court of King's Bench, because he lived in the Parish of
Abbot's Langley
in the County of
Hertford,
went off the Bench when an Order relating to that Parish came before the Court. See
Strange's Reports
1173. It is doubtless for Reasons of this Kind, that a Freeman of a corporate Town is no legal Witness to a local Custom within that Town, and the Practice is for such a one in that Case to suffer himself to be disenfranchised before he gives his Evidence. In the Case now under Consideration, a Parishioner who should swear to any of the Facts which make a Part of that Chain of Evidence requisite to justify a Distress on a Defaulter, such as the Publication of Notice of the Six Days appointed for doing the Statute Work, the Non-Attendance of the Defaulter, the Service of the Summons to shew Cause,
&c.
would by such his Evidence contribute to exonerate the Parish and himself as a Parishioner, from an Assessment which the Nonperformance of the Statute-Labour might make necessary; it is therefore apprehended, that no Parishioner is a competent Witness in this Case, and that even the Parish-Clerk could not be examined to prove the Publication in his Church of Notice of the Six Days, even though he read it himself, nor in short can any one be a Witness for this Purpose but a Stranger in the Parish, or a Servant, or other Person not liable to do Statute-Duty. We know, that in Favour of Justice, the Law has frequently interposed to remove legal Disabilities of Witnesses and others: By a late Statute, the Testimony of Persons interested in the Establishment of a Will is admissable to prove the Execution of it in particular Cases. By a Statute of 16
Geo.
2.
cap.
18. Justices may execute the Laws for punishing Vagrants, repairing the Highways, and the other Laws concerning parochial Taxes, Levies, or Rates, notwithstanding they are rated or chargeable with the Rates within any Place affected by such their Acts. And by 26
Geo.
2.
cap.
31. for licensing Ale-Houses, any Person shall be a competent Witness upon any Information or Complaint for any Offence against that Act, notwithstanding such Person be an Inhabitant of, or charged to the Payment of any Rates for the Relief of the Poor of any Parish or Place where such Offence shall be committed, and a Clause of Two or three Lines would supply the Defect here complained of, save considerable Sums, and prevent vexatious Suits in many Parishes.
The Advantages arising from the Use of broad Wheels are so apparent, that it would be needless to insist on them; this is certain, that by means of them the Price of Carriage from
York
to
London
has been reduced 40
per Cent.
Whether it be not practicable to render the Use of them still more general, may be worthy Consideration. At present they are found not to succeed so well in cross Ways as in the great Roads; the former are in most Countries so confined by the Inclosures on each Side, as to admit of but one Track; whereas, were Power given to the Justices to widen those Ways enough to allow of quartering, the Use of broad Wheels would become universal, and produce the same Benefit as in the great High Roads; where, as has often been observed, they do the Office of a Roller.
The mischievous Practice of riding in Carts is not yet sufficiently checked by the many Laws lately made to prevent it: certainly there is as much Reason to empower a Justice to convict on a View of this Offence, as in any other Case where this Power is given.
In the penning of such a Statute as is here proposed, Regard should be had to the Determinations of Courts, particularly of the King's Bench on Appeals from Sessions upon particular Points, and those Clauses that have been enforced by any such Determinations, should be carefully preserved; as on the contrary, those that have been condemned or adjudged nugatory should be amended or totally rejected.
It has been urged as a general Argument against an Alteration of the Highway-Laws, with Regard to the Proportion of the Statute-Labour, that the seeming Inequality of the Law is at last set right by the Advantages accruing to the Poor from the Cheapness and Plenty which result from good Roads, and a speedy Conveyance of the Necessaries of Life: But are these Advantages peculiar to the Poor? do not the Rich partake of them? nay, have they not by much the greatest Share? A poor Labourer, who earns 9
s.
a Week pays yearly a two-and-fiftieth Part of his Year's Income for these Advantages, whatever they are; does a rich Man pay after that Rate? Is there any Gentleman of a Thousand Pounds a Year in the Kingdom, though he keeps a Coach, and wears the Roads more in a Week, than such a Man can possibly do in ten Years, who pays Nineteen Pounds a Year to the Highways?
There are, it must be confessed, some Prejudices of a different Nature against the inferior Class of People in this Kingdom, which seem to stand in the Way of any Regulations of this Sort in their Behalf; namely, their extreme Licentiousness beyond what is seen in other Countries, their Contempt of Religion and the Laws, their Want of Respect for their Superiors, their Idleness, Profaneness, Intemperance, and a Number of other Vices.
Before we proceed to refute the Arguments commonly deduced from these Premisses, let us enquire whether the Fact has any Foundation or not. It is certain, that the lower Sort of People amongst us are neither so dissolute nor ungovernable as they have been in Times which we have been taught to look on with more Reverence than perhaps is due to them. Tumults and Insurrections are much less frequent than they were formerly; and those who magnify the Vices of the common People, and represent them as less obedient to Government than heretofore, forget that they have within these very few Years seen Thousands of these People actuated by some one common Principle, whatever it has been, forsaking their Relations and Friends, exposing their Lives in Defence of their Country, and extending the Reputation of its Courage and Humanity beyond that of any Nation in the World.
As to their Intemperance, it has never been so great as to be beyond the Power of Laws to reduce it within tolerable Limits: those lately made to restrain the Use of spirituous Liquors are Instances how much it is in the Power of a Legislature to effect.
But admitting the Justice of the above Charge, and that the lower Sort of People are ever so dissolute, shall we therefore deny them Justice? for that as far as it concerns them, is all that is now contended for; shall we refuse to discharge them from a greater Load of public Duty, than they are able to bear, at the same Time that we are, with a Zeal unequalled in any preceding Age, and with a Charity as sincere as it is wild and injudicious, anticipating their Wants, setting their selfish and social Affections at Variance, and even laying in their Way Temptations to Idleness, and those other Vices of which we accuse them?
The Truth of the Matter is, that Subjects of this Nature, strictly speaking, are Part of the grand Science of Politics, the very first Principles whereof very few are able to conceive, and which still fewer are able to reason about, who can pretend to say how much the Immorality of any People exceeds that Degree of it which seems to be interwoven in the Constitution of the moral World? All that concerns us as Men, is to discourage it as much as possible, for which Purpose it has ever been the Practice of wise Legislators to consider human Nature as it really is, rather than as what they would wish it to be, to encourage Virtue, and keep down Immorality by proper Sanctions, and so to temper the various and conflicting Appetites and Humours of Mankind, as to produce good upon the whole.
There are various Causes which contribute to produce that Licentiousness of which we so much complain; one of the most prevailing seems to be the little Attention that Men at this Day are disposed to pay to Virtue as it results from Principle; our very Modes of Expression imply our Disregard of it; we no longer say of a Man, that he is a Man of Integrity, or Probity, or that he is beneficent or charitable, but that he has a
good Heart,
is a
good Sort
of Man, or a
good Creature;
for which cant Phrases we are indebted to the fertile Invention of a deceased Wit, whose Writings, paltry and flimsy as they are, it is to be feared, may do more Mischief to Society than those of
Hobbes
or
Spinoza.
The inevitable Consequence of that loose System of Morality by which the real or supposed Goodness of a Man's Intention, and not the Dictates of those who have a Right to govern, is made the Rule of his Conduct, is the Contempt of all positive Institutions, of Law, of Religion itself.
The Law, considered as a Rule of Action, and as calculated to extend and improve the Blessings of social Life, is, next to Religion, an Object the most venerable; but such is the Temper of Mankind, that they look on it with Abhorrence, and form Confederacies to defeat its Purposes: necessary Penalties to enforce the most beneficial Statutes are considered as Infractions of private Liberty, and it is much less criminal in the Eye of the Public to offend against such a Law, than it is to assist in bringing the Offender to Justice; the Man who instead of driving, rides in his Cart, in Contempt of the Law, and at the Risque of the Lives of his Fellow subjects, is far less odious to the Populace than he who shall inform against him; and thus it may be said that the Laws and the People are in a State of perpetual Hostility.
The State of Magistracy is therefore
"a painful Pre-eminence,"
in which a Man becomes odious by doing Good; and he whose public Spirit would induce him to take upon himself the trouble of procuring Obedience to the Laws of his Country, must relinquish the Endeavour if he has not also Fortitude enough to despise the secret Malevolence of those who have formed an erroneous Judgment of the Extent of civil Liberty, and the clamourous Invectives of others who consider the slandering and traducing the Characters of all in Authority, as the Birthright of an
Englishman.
For this Reason we see so many Persons whose Knowledge and Abilities enable them to promote the Quiet, Safety, and Happiness of Mankind as Magistrates, decline that Service, and a Trust of the greatest Importance to the Lives and Liberties of
English
Subjects executed in some Instances by Mercenaries; but it is surely to be wished, that instead of indulging a selfish Indolence and Timidity, they would exert themselves in the common Cause, and endeavour to avoid the Obloquy, which so generally attends the producing remote
nd general good, by inflicting the immediate and particular Evil of Punishment, not by eluding the Duty, but by shewing that they discharge it upon Principles of true Benevolence, and that while they distinguish themselves in their public Capacity, by their Diligence and Activity to mark and to punish Offences, they would also recommend themselves in private Life, by the Exercise of those milder Virtues, which give Lustre to the most exalted Station.
The Service of the Public is indeed declined in some Instances, which admit of no Apology. Can it be thought that our early Forefathers ever imagined that a Time would come when nearly all the Freeholders of a whole County should submit to an annual Contribution, levied by the meanest of its Servants, the legal Retinue of a Sheriff, to avoid serving on Juries? or that the Legislature would ever find it necessary to hire Men of Estates to do that Duty which every Friend to Liberty should rejoice at being called to?
Instances of public spirit, however, are not wanting among us. What Difficulties, what Discouragements, have those Gentlemen surmounted, who, from the noblest Motives have laboured in the Establishment of a national Militia, a Measure to which, next to the Providence of God, this Country may be said to owe its Salvation!
But whatever are the Faults of the Times, it certainly behoves every Government to provide that the Laws are at least free from Oppression or Inequality: those which are here examined are manifestly not so; and whoever has Weight and Interest enough to procure such Alterations and Amendments of them, as upon a careful Review may be found to be necessary, will by exerting his Endeavours for that End, perform for his Country a most acceptable Service, and endear his Memory to latest Posterity.
A BILL FOR Comprehending and reducing into one Act of Parliament the several Laws now in Force, relating to the Highways within that Part of
Great Britain
called
England.
WHEREAS the necessary Intercourse between the trading and other Towns, Parishes, and Places within this Kingdom, is greatly obstructed by the Badness of such of the Highways as are not under the Direction and Management of Turnpike Trustees; and Whereas the Provisions contained in divers Statutes heretofore made for the Amendment and Repair of such Highways, have not only been found ineffectual for those Purposes, but are at this Day in many Respects a great Burthen and Hardship on the Housholders, Cottagers, and Labourers, by several of those Statutes required to work in the Amendment and Repair of the Highways. May it please your most Excellent Majesty, that it be enacted, And be it Enacted, by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same,
Inhabitants of every Parish to return the Names of the Persons to be Surveyors of Highways, and the Justices to appoint two or more for every Parish.
Vide 3 Will. & Mar. cap. 12. sect. 3.
II. That from and after the Day of next ensuing, upon the Twenty Sixth Day of
December
in every Year (unless that Day shall be
Sunday,
and then on the Twenty Seventh) the Surveyors of the Highways, Churchwardens, Overseers of the Poor, Constables, Headboroughs, Tithing-men, and Inhabitants in every Parish or Extraparochial Place, for the Time being, shall assemble together, and the Major Part of such Persons as are so assembled shall make a List in Writing of the Names of Six or more of the Inhabitants of such Parish or Place, who have an Estate in Houses, Lands, Tenements, or Hereditaments, in their own Right or that of their Wives, of the Value of Ten Pounds by the Year, or a personal Estate of the Value of Two hundred Pounds, or are Occupiers or Tenants of Houses, Lands, Tenements, or Hereditaments, of the yearly Value of Fifty Pounds; or if there be not Six such Persons in the said Parish or Place so qualified, then the said Surveyors of the Highways, Churchwardens, Overseers of the Poor, Constables, Headboroughs, Tithing-men, and Inhabitants, shall fill up the Number wanting to compleat the said List, with the Names of a proper Number of the most sufficient Inhabitants of such Parish or Place; and that in either of those Cases, the said Surveyors of the Highways, Churchwardens, Overseers of the Poor, Constables, Headboroughs, Tithing-men, and Inhabitants, shall return such Lists unto two or more of the Justices of the Peace acting in or near to the Division wherein the said Parish or Place doth lie, at a Special Session to be holden for the Amendment of the Highways of that Division, on the third Day of
January
then next following, or within twenty Days after; for which Purpose the said Justices are hereby required to hold such special Session at some convenient Place within or near to that Division wherein such Parish or Place doth lie, and to give Notice of the Time and Place where they intend to hold the same, to the Constables, Headboroughs, Tithing-men, or other Peace Officers. or Surveyors of the Highways of every Parish or Place within the said Division, and within every other Place for which such special Session shall then be held, at least ten Days before the holding the same. And the said Justices, or any two or more of them, are hereby also required, to hold such special Session every three Months, or oftener, as Occasion shall require; and to give such Notice thereof to the Constables, Headboroughs, Tithing-men, or Surveyors of the Highways, as aforesaid, or otherwise publickly to adjourn the same from Time to Time, so that all Persons concerned may have due Knowledge thereof. And the said Justices, at every special Session to be holden in the Month of
January
as aforesaid, shall, according to their Discretions and the Largeness of the Parish or Place from whence the said Return is made, by Warrant under their Hands and Seals, nominate and appoint one, two, or more of the Inhabitants of the Parish or Place, qualified as aforesaid, whether named in such List or not, to be Parish Surveyor, or Surveyors of the Highways in every Parish or Extraparochial Place within the Division, or for every Hamlet, Precinct, Liberty, Tithing, Town or Place in the same Division for the Year ensuing, which Nomination shall, by the Constables, Headboroughs, Tithing-men, or other Peace-Officers, or the Surveyors of the Highways for the Time being, or by such of them as the said Justices shall direct, be notified to the Person and Persons so nominated and appointed by the said Justices within Six Days after such Nominatioin, by serving him or them with the said Warrant or Warrants, either personally, or by leaving the same or a true Copy thereof at his or their dwelling House or Houses, or most usual Place or Places of Abode, and from thenceforth the Person and Persons who shall be so nominated and appointed, and have Notice thereof as aforesaid, shall be Parish-Surveyor or Surveyors of the Highways for the Parish, Hamlet, Precinct, Liberty, Tithing, Town, Village or Place, for which he or they shall have been so nominated and appointed as aforesaid for the Year ensuing, and until other Surveyors shall be appointed to succeed them, and shall take upon himself and themselves respectively, and duly execute the said Office according to the Directions in this Act. And if the said Persons, or any of them so nominated and appointed Parish-Surveyors of the Highways, shall neglect or refuse to take upon themselves the said Office by the Space of Six Days after they shall have been served with such Warrant, as aforesaid, every such Person shall forfeit for the said Offence the Sum of Five Pounds. And in Case it shall happen, that a Parish-Surveyor or Surveyors shall not be appointed for any Parish or Place at the special Session appointed to be held in the Month of
January,
for the Amendment of the Highways, as is herein before directed; or in Case any Parish Surveyor or Surveyors of the Highways so nominated or appointed for any Parish or Place at such special Session, shall neglect or refuse to serve the said Office, or shall die or remove out of the said Parish or Place to inhabit, or that no such Special Session shall be held in the Month of
January,
that then, and in any of the said Cases, two or more Justices of the Peace being met at any other Special Session to be holden for the Amendment of the Highways of that Division, City, Liberty or Place, are hereby impowered and required to nominate and appoint such other Inhabitant or Inhabitants to be Parish-Surveyor or Surveyors of the Highways of any such Parish, Hamlet, Precinct, Liberty, Tithing, Town, Village or Place, as they the said Justices shall, in their Discretions, think fit to serve the said Office; which said Inhabitant and Inhabitants so nominated and appointed Parish-Surveyor or Surveyors of the Highways, for any Parish Hamlet, Precinct, Liberty, Tithing, Town, Village or Place, shall take upon himself and themselves respectively, and duly execute the said Office. And if the said Persons, or any of them so nominated and appointed Parish-Surveyors of the Highways, shall neglect or refuse to take upon themselves the said Office by the Space of Six Days after he shall have been served with a Warrant for that Purpose as aforesaid, every such Person shall forfeit for the said Offence the Sum of Five Pounds. And if any of the said Parish Surveyors of the Highways, Constables, Head-boroughs, Tithing-men, or other Peace Officers shall neglect or refuse to do their Duty in any Matter or Thing required of them, or any of them, by this Act, or by the Justices of the Peace, or any two of them assembled at any such special Session as aforesaid, such Parish-Surveyor of the Highways, Constable, Head-borough, Tithing-man, or other Peace-Officer, shall, for every such Offence, forfeit any Sum not exceeding Five Pounds, nor less than Ten Shillings, as the said Justices shall think fit.
Assistants to the Parish-Surveyors to be appointed with a Salary.
III.
And be it further Enacted, by the Authority aforesaid, That the said Justices, or any two of them, assembled in their Special Session to be holden for the Amendment of the Highways, may, and they are hereby authorized and impowered from Time to Time, to appoint either for every Parish or for every Hamlet, Precinct, Tithing, Town, Village, or Place, within
their respective Divisions, at their Discretions, a Person meetly skilled in the Business of making and repairing Roads, as an Assistant to the Parish Surveyors, whose Business shall be to direct the procuring of Gravel, Stones, and other Materials, and the laying and spreading the same, and the doing and performing all other Works necessary for the Amendment and Repair of the Highways within the Parish, Hamlet, Precinct, Liberty, Tithing, Town, Village, or Place for which they shall so be appointed. And that the said Justices, or any two of them, assembled as aforesaid, shall have Power from Time to Time to remove such Assistant-Surveyors, and appoint others in their Room or Stead, and out of the Money arising by Forfeitures to be incurred under or by Virtue of this Act, and not hereby appropriated or otherwise disposed of, or by any Assessment to be made pursuant to the Power herein after given, to allow such Assistant-Surveyor such yearly Salary or Stipend as they the said Justices shall think reasonable, for the Payment of which Salary or Stipend, an Order under the Hands and Seals of two of the Justices of the Peace within the said Division, made half-yearly from Time to Time, as the same shall become due, shall be a sufficient Warrant.
Surveyors to view the Highways, and give an Account in Writing upon Oath of the State and Condition thereof, and neglecting or refusing so to do, forfeit
5
l.
Vide 1 Geo. cap. 52. sect. 2. 3 Will. cap 12. sect. 8.
IV. And be it further Enacted, by the Authority aforesaid, That all and every Parish Surveyors of the Highways to be appointed by Virtue of this Act, shall, within fourteen Days after the Acceptance of their Office (and so from Time-to Time every three Months, or oftener, if required thereto by Warrant of any two or more Justices of the Peace) view all the Highways, Bridges, Causeways Streets, Pavements Hedges, Ditches, and Water-Courses, appertaining to such Highways, together with all Nusances and Incroachments made or committed in or upon any of them within the Parish, Hamlet, Precinct, Liberty, Tithing, Town, Village or Place, where they are Parish-Surveyors of the Highways, and give a particular and true Account in Writing, and upon Oath, of the State and Condition of the Highways, Bridges, Causeways, Streets, Pavements, Hedges, Ditches, and Water-courses, and more especially of such Faults and Defects in any of them as require to be repaired or amended, and of the Neglects of Labourers, and of those that are obliged to find Labourers or Teams for the Repair of the Highways, to the Justices of the Peace at their next special Session to be holden for the Amendment of the Highways of that Division, to the End that the said Accounts may be carefully preserved, and that at all future special Sessions the Justices of the Peace of the same Division may have full Information of, and may be able to examine into the particular State and Condition of all the said Highways, Bridges, Causways, Streets, Pavements, Hedges, Ditches, and water-courses, and may the better execute the Powers in this Act. And all Parish-Surveyors of the Highways neglecting or refusing to give such Account in Writing and upon Oath as aforesaid, shall suffer the same Penalty as if they had refused to take upon them the said Office, unless they shall have some reasonable Excuse for such Neglect or Refusal, to be allowed by the Justices at such their special Session.
Justices at their special Sessions may appoint the Time and Manner of repairing Highways.
Vide 1 Geo. cap. 52. sect. 3.
V. And be it further Enacted and declared, by the Authority aforesaid, That the Justices of the Peace, or any two of them assembled at any such special Session to be holden for the Amendment of the Highways, may, by Writing under their Hands, order and appoint the Reparation of such great Roads or Highways as they shall judge most to want Repair within the Division or Place for which such special Session shall be holden, to be first amended; and may also order and appoint at what Time, and in what Manner, the same shall be so repaired, according to which Order, if such there be, all and singular the respective Surveyors of the Highways are hereby required to proceed within their respective Districts.
Highways to be repaired before Harvest.
Ibid. sect. 4.
VI. And be it further Enacted and declared, by the Authority aforesaid, That all and every the Surveyors of the Highways shall take the first and most convenient, and seasonable Time of the Year, for repairing and amending the Highways within their respective Districts, and take Care as far as is possible, that the said Work may be perfected before Harvest, and that accordingly the Teams, Labourers, and other Persons by this Act obliged to work on the said Highways, be summoned to come in upon such most early and seasonable Days as the Year shall afford, and to repair such Highways in Priority as the Justices of the Peace or any two of them assembled at such their special Session to be holden for the Amendment of the Highways shall order and direct, in the Manner herein before expressed. And in Case of no such Order from the said Justices, then that such Highways be first repaired as to the said Surveyors of the Highways shall seem most needful of Reparation.
Where cross Ways meet, a Stone or Post to be erected, with proper Indexes shewing to what next Market-Town such cross Ways lead.
Vide 8 Will. cap. 16. sect. 7.
VII. And be it further Enacted, by the Authority aforesaid, That in all Cases where two or more Highways cross or meet, the Justices of the Peace, or any two of them assembled at any such special Session as aforesaid, shall have Power and Authority by any Writing under their Hands to order and direct the respective Parish-Surveyors of the Highways of such Parish or Place wherein such cross Ways do meet, forthwith to put up and erect a Stone or wooden Post, with an Inscription thereon in large legible Letters, containing the Name of the next Market-Town to which each of the said Highways doth lead. And the said Stone or wooden Post shall be made with proper Indexes in such Manner, and be erected in such Place, as the said Justices of the Peace shall direct.
Watering of Lands; stopping up Ditches or usual Water-Courses; drawing Water-Courses from any Highway; not securing and keeping open Ditches or Water-Courses: leaving the Earth of Ditches in any Highway; not laying Bridges, Tunnels, or Trunks, before G
ways adjoining to Highways made penal.—Surveyors may make new Ditches, Drains, or Sluices, in or through the Ground of another.—Opp
sing Surveyors or Workmen, or rescuing Cattle or other Distresses, Penalty not exceeding
40
s. nor less than
5
s.
Vide 3 Will. cap. 12. sect. 12.
VIII. And whereas divers broad as well as narrow Highways, are much annoyed and injured by watering of Lands adjoining or near to the same, and by the stopping up of Ditches or usual Water-Courses, or by Neglect of scouring and keeping open such Ditches or Water-Courses, or by leaving the Earth of such Ditches so scoured in the Highways, or not laying Bridges, Tunnels, or Trunks, before the Gateways adjoining to Highways, whereby the Water may freely pass from Ditch to Ditch: Be it therefore Enacted, by the Authority aforesaid, That if any Person or Persons shall annoy or do any Injury to any broad or narrow Highway, by watering his or her Lands, adjoining or near to the same, or if any Person or Persons shall stop up any Ditch or other Work, and thereby turn any Water-Course into any Highway to the Damage thereof, or shall turn any Water-Course from any Highway by laying of Timber or other Materials across any Highway to the Damage thereof, or if any Person or Persons shall neglect to scour and keep open any Ditch, being in any Highway, and adjoining to his, her, or their Lands, or any other of his, her, or their Ditches or Water-Courses, whereby any Highway shall be injured, or shall leave the Earth of any such Ditch or Water-Course so scoured in any Highway to the Damage thereof, or shall not lay Bridges, Tunnels, or Trunks before the Gateways into his, her, or their Grounds adjoining to any Highway, sufficient to let the Water pass freely from Ditch to Ditch, whereby any Highway shall be annoyed or injured, every Person and Persons guilty of such Annoyance or Injury, and not removing the same within twenty Days after due Notice thereof given by a Parish-Surveyor of the said Highways, (which Notice the said Surveyors are hereby required to give) shall forfeit for every such Offence any Sum not exceeding Five Pounds, nor less than Ten Shillings, as the said Justices of the Peace, or any Two of them, assembled at any such special Session as aforesaid, shall think fit. And all and every the Surveyors of the Highways are hereby authorized with their Workmen to scour and keep open all such Ditches and Water-Courses, and to remove all other Annoyances and Nusances in, or to, all or any of the Highways, and where the Ditches or Drains already made are not sufficient to carry off the Water that shall lie upon, or annoy any Highway, to make Sluices or other necessary Works, or new Ditches or Drains into the Ditch of any Person, or into or through the Arable, Pasture, or Meadow Land of any Person next adjoining, or near to the Highway; and to keep the same scoured, cleansed, and open. And the said Surveyors of the Highways are hereby authorized, for the Purposes aforesaid, to go with Workmen upon the Arable, Pasture, or Meadow Land of any Person or Persons, and make such Sluices, Ditches, or other necessary Works, and from Time to Time to amend and scour the same; any Law, Right, Interest, Custom, or Usage, to the contrary notwithstanding. And all and every such Persons and Person as shall resist or make forcible Opposition against any Surveyor of the Highways, or against any Workman acting by such Surveyor's Directions in the due Execution of any Part of this Act, or shall make Rescue of any Cattle or other Goods or Chattels distrained by Virtue of this Act, shall forfeit for every such Offence any Sum not exceeding Five Pounds, nor less than Ten Shillings, as the said Justices of the Peace, or any two of them, assembled at any such special Session as aforesaid shall think fit.
Such as lay Stone, Timber, Wood, Hay, Straw, Stubble, or other Thing, Fire-Wood excepted, in any Highway not left twenty Foot wide, and such as shall make any Incroachment on the Highway, or shall commit any Nusance whereby any Highway shall be obstructed, shall forfeit not exceeding
40
s. nor less than
5
s.
Vide 3 Will. cap. 12. sect. 4. 5.
IX. And be it further Enacted, by the Authority aforesaid, That if any Person or Persons shall lay or cause to be laid, any Stone, Bricks, Brickbats, Rubbish, Timber, Wood, Hay, Straw, Stubble, or any other Thing whatsoever, in any Highway, whereby the same shall be obstructed, and not full twenty Foot wide of clear Road be left, in every such Case, if the Person or Persons laying or causing to be laid any such Stone, Bricks, Brickbats, Rubbish, Timber, Wood, Hay, Straw, Stubble, or other Thing, do not after due Notice thereof given by, or from, any Parish-Surveyor of the said Highway (which Notice all Parish-Surveyors of the Highways are hereby required to give) forthwith remove the same, every such Person and Persons laying or causing to be laid any such Stone, Bricks, Brickbats, Rubbish, Timber, Wood, Hay, Straw, Stubble, or other Thing (except Fire-Wood, which may be laid in some proper Place with the Approbation of such Surveyor, until the same can be got in) shall forfeit for every such Offence any Sum not exceeding Forty Shillings, nor less than Five Shillings, as the Justices of the Peace, or any two of them, assembled at any special Sessions to be holden for the Amendment of the Highways, shall think fit. And in Case the said Stone, Bricks, Brickbats, Rubbish, Timber, Wood, Hay, Straw, Stubble, or other Thing, shall continue and be left in any such Highway in the Manner before-mentioned, by the Space of ten Days after the Owner thereof shall have had Notice of the said Offence by or from any of the Parish-Surveyors of the said Highway, then (over and above the Forfeiture aforesaid) it shall and may be lawful for the Parish-Surveyor or Surveyors of such Highway with the Consent of any one Justice of the Peace, to carry away and sell the same, rendering the Money arising by such Sale to the Owner thereof, after the Charges of carrying away and selling the same are first ascertained upon Oath, and allowed by such Justice, and thereout deducted by the Parish-Surveyor or Surveyors of the said Highway. And if any Person or Persons shall inclose with any Fence or Ditch, or make any other Incroachment in or upon any Highway whatsoever, and not leave the Highway Sixty Foot wide from Ditch to Ditch, or if any Person or Persons shall dig any Ditch, make any Hedge, lay any Logs of Wood or other Thing, or erect any Gate overthwart any Highway, or shall do any other Act whereby any Highway shall be rendered either less safe or commodious for Travellers, the same are hereby declared to be Nusances. And if the Person or Persons committing any such Nusance, or ordering or directing any such Nusance to be committed, shall not forthwith remove the same after he, she, or they, shall have Notice so to do, by, or from, any Parish-Surveyor of the Highways of the Parish or Place wherein any such Nusance shall be committed, every such Person and Persons committing such Nusance, or ordering or directing any such Nusance to be committed, and not removing the same as aforesaid, shall forfeit any sum not exceeding Forty Shillings, nor less than five Shillings, as the Justices of the Peace, or any two of them, assembled at any such special Session as aforesaid shall think fit.
Penalty on the Owners of Trees, Shrubs, or Bushes, for not cutting them down, grubbing them up, and carrying them away where the Highways are not twenty Foot wide.
Vide 3 Will. cap. 12. sect. 6.
X. And be it further Enacted, by the Authority aforesaid, That no Trees, Bushes, or Shrubs, shall be suffered or permitted to stand and grow in any Highway not Twenty Foot wide between Ditch and Ditch, but the same shall be cut down, grubbed up, and carried away by the Owner or Owners thereof; and if the Owner or Owners of such Trees, Bushes, or Shrubs, shall neglect or refuse to cut down, grub up, and carry away the same within thirty Days after Notice to him, her, or them given so to do, by any of the Parish Surveyors of the said Highway (Provided always that the said Notice shall be given between the last Day of
September
and the first Day of
February
) it shall and may be lawful for the Surveyors of the said Highway, or any of them, by the Order or Consent in Writing of the Justices of the Peace, or any two of them, assembled at any Special Sessions to be holden for the Amendment of the Highways, to cut down, grub up, and carry away and sell the said Trees, Bushes, or Shrubs, rendering the Money arising by such Sale to the Owner or Owners thereof, after the Charges of cutting down, grubbing up, carrying away, and selling the same, are first ascertained upon Oath, and allowed by any one of the said Justices assembled at Such special Sessions as aforesaid, and thereout deducted by the Surveyor or Surveyors of the said Highways.
Surveyors to make Presentment of Hedges annoying the Highway to the Justices, who may order them to give Notice to the Owner to cut the same, and in Case of Neglect or Refusal, the Surveyors may cut the same within three Foot of the Bank
(
Except Trees of Oak, Ash, Elm,
&c.)
and the Charges shall be paid by the Owner.
Vide 7 Geo. 2. cap. 19. sect. 1.
XI. And be it further Enacted, by the Authority aforesaid, That in Case the Parish-Surveyor or Surveyors of any Highways, on any View or Views herein before required to be made by them within their respective Parishes or Places shall find any Highways deep and foundrous, and the Hedge or Hedges adjoining to such Highway to be so high as thereby to prevent the Benefit and Advantage which such Highway would otherwise receive from the Sun and Winds, such Surveyor and Surveyors are hereby required to make a Presentment or Complaint in Writing thereof to any one Justice of the Peace living in or near to the Division or Place wherein such Hedge or Hedges doth lie, who is hereby required by Warrant under his Hand and Seal to summon the Owner or Owners of such Hedge or Hedges to appear before two or more Justices of the Peace, who shall meet at some Special Session to be holden for the Amendment of the Highways of that Division or Place. And in Case such Owner or Owners of such Hedge or Hedges shall neglect or refuse to appear, or send some Person duly authorized to appear for them before such Justices of the Peace assembled at such special Session as aforesaid, the due Service of the said Summons being proved upon Oath, or if it shall appear upon due Examination and Proof upon Oath, before the said Justices of the Peace, that such Highway is deep and foundrous, and damaged as aforesaid by such adjoining Hedge or Hedges; the said Justices of the Peace, or any two of them, are hereby required to issue out a Precept or Warrant under their Hands and Seals to the Parish-Surveyor or Surveyors of the Highways of the Parish or Place where such Hedge or Hedges so presented or complained of is or are situated, directing such Surveyor or Surveyors to give or leave Notice in Writing at the dwelling House or Houses, or most usual Place or Places of Abode, of the Owner or Owners of such Hedge or Hedges so presented or complained of, thereby requiring him, her, or them, to new-make and cut low the said Hedge or Hedges within thirty Days after such Notice (Provided always that such Notice be given between the last Day of
September
and the first Day of
February
) and in Case of his, her, or their Refusal or Neglect to do the same, according to such Notice as aforesaid, the said Surveyor or Surveyors are hereby required to cause the said Hedge or Hedges to be new made and cut low as the said Surveyor or Surveyors shall in their Discretion think most reasonable, so as such Hedge or Hedges be left at least three Foot high above the Bank (except all Trees of Oak, Ash, Elm [
Here must be named the other Sorts of Trees that are not to be cut low
] which nevertheless shall be lopt and pruned in the Manner herein after directed) and the said Surveyor and Surveyors shall leave the Cuttings of such Hedge or Hedges within and upon the Grounds to which such Hedge or Hedges doth belong. And if the said Owner or Owners of such Hedge or Hedges so cut by the said Surveyor or Surveyors as aforesaid shall neglect or refuse to pay unto such Surveyor or Surveyors of the said Highways such reasonable Expences as he or they shall have been put to on that Occasion, within fourteen Days after the same shall have been demanded, the said Justices of the Peace, or any two of them, assembled at any such Special Session as aforesaid, on due Proof upon Oath of such Expences, shall, by Warrant under their Hands and Seals, levy the same by Distress and Sale of the Goods and Chattels of such Owner or Owners of such Hedge or Hedges, rendering the Overplus to him, her, or them, after the Charges of taking, keeping, and selling such Distress shall be ascertained upon Oath, and allowed by any one of the said Justices, and thereout deducted by the said Surveyor or Surveyors.
The Owners of certain Trees growing in Hedges adjoining to Highways not thirty Foot wide, shall lop the same from the Stem upwards, so that no Branch thereof shall hang over any Part of the Highway. And if the Owner shall not lop the same within thirty Days after Notice, the Surveyors may.
Vide 3 Will. cap. 12. sect. 7.
XII. And be it further Enacted, by the Authority aforesaid, That all and every the Owners and Owner of Trees of [
Here must be named such Trees as are above excepted
] standing or growing in the Hedges or Grounds adjoining to any Highways not being thirty Foot wide at least between Ditch and Ditch, shall lop and prune the same from the Stem upwards, so that no Bough or Branch thereof shall spread into or hang over any Part of the said Highways. And if the Owners or Owner of such Trees of [
Here the Trees excepted must be named
] shall not lop and prune the same in the Manner herein above directed, that then, and in Case two or more Justices of the Peace assembled at any Special Session to be holden for the Amendment of the Highways, shall be satisfied that such Trees or Tree ought to be lopt and pruned, the said Justices shall order the Parish-Surveyor or Surveyors of the Highways of such Parish to give Notice in Writing to the Owners or Owner of such Trees or Tree to lop and prune the same in the Manner herein before directed. And if such Owners or Owner shall not lop and prune the same in the Manner herein before directed within thirty Days after such Notice, (provided always that such Notice be given between the last Day of
September
and the first Day of
February
) that then it shall and may be lawful for the said Surveyor or Surveyors of the said Highways, and for any Workmanor Workmen by his or their Direction to lop and prune the said Trees or Tree from the Stem upwards, so that no Bough or Branch thereof shall spread into, or hang over, any Part of the Highway, the said Surveyor or Surveyors, and their Workmen, cutting off the said Boughs and Branches according to the best of their Skill and Judgment, and doing no wilful Hurt nor Damage to the said Trees or Tree, or any of them. And the said Surveyor or Surveyors shall and may sell all such Boughs and Branches so cut off and render the Money arising by such Sale to the Owners or Owner of such Trees or Tree, after the Charges and Expences of lopping, pruning, and selling the same shall be first ascertained upon Oath, and allowed by any one of the Justices who met at such Special Session as aforesaid, and thereout deducted by the said Surveyor or Surveyors.
What Ways shall be deemed Highways.
XIII. And be it further Enacted and declared, by the Authority aforesaid, That every Foot-way, Horseway, or Way for Wheel-Carriages leading directly to any Market-Town, or from Town to Town, or from Village to Village, which Way is common to all the King's Subjects shall be deemed to be a Highway by this Act to be repaired and amended; but that a Way to any Parish-Church, or to the Common Fields of any Parish or Town, or to any Village, which terminates at such Church, Common Fields or Village, shall be deemed a Private Way, and shall be repaired and amended by the Person or Persons to whom the same shall belong.
Highways hereafter to be inclosed shall be left sixty Foot wide. Persons inclosing on both Sides, or who inclose on one Side where the other had been inclosed before, shall repair the whole Way; but where the Highway shall be sixty Foot wide, the Parish shall repair it.
XIV. And be it further Enacted and declared, by the Authority aforesaid, That if at any Time or Times hereafter, any Forest, Chase, Heath, Common, or other open Place shall be inclosed, the Highways lying in or through the same shall be left sixty Foot wide between Ditch and Ditch, and in Case any Person or Persons shall inclose any Highway on both Sides, and shall not leave the same sixty Foot wide between Ditch and Ditch, every such Person and Persons shall maintain all the said Highway in perfect Repair, and the Occupiers or Occupier of the Lands so inclosed and adjoining to the said Highway, shall be chargeable with the Repairs thereof, and be subject to all the other Authorities and Penalties in this Act. And in Case any Person or Persons shall make any Inclosure on one Side only of any Highway having already an Inclosure on the other Side, and shall not leave the said Highway sixty Foot wide between Ditch and Ditch, every such Person and Persons shall keep and maintain all the said Highway in perfect Repair; and the Occupiers or Occupier of the Lands so inclosed and adjoining to the said Highway shall be chargeable with the Repairs thereof, and be subject to all the other Authorities and Penalties in this Act. Nevertheless, during all such Time as any such Person or Persons shall lay open the Inclosure which bound him, her, or them, to repair such Highway, every such Person shall, during such Time, be freed from the Charge of repairing it. And where any Highway so inclosed as aforesaid, shall hereafter be left sixty Foot wide between Ditch and Ditch, then and in such Case the Parish or Place wherein such Highway doth lie, shall repair and amend the same.
Cartways to be twelve Foot, and Horseways three Foot wide. Persons cutting down or otherwise destroying any Stone or Post placed to secure any Horse or Footway, shall forfeit
20
s. over and above the Damage.
Vide 7 Will. cap. 29. sect. 6.
XV. And be it further Enacted and declared, by the Authority aforesaid, That the Parish-Surveyors shall, and they are hereby authorized and required in every public Highway to make a Causway or raised Road for Carts, Coaches, and other Wheel-Carriages (where the same is necessary and can conveniently be done) twelve Foot wide, and to make it higher in the Middle than towards the Sides that the Water may run freely off, and to make every Causway for Horses travelling upon or in any such Highway three Foot wide at the least and to amend and keep in Repair necessary and convenient Foot-ways wherever any such there are in the Highways, and if any Person or Persons whatsoever shall pull up, cut down, remove, or otherwise injure or destroy any Post, Block, Stone, or other Thing, set up, placed or made, for securing any such Horse or Footway from Waggons, Carts, or other Wheel-Carriages, such Person or Persons shall forfeit for every such Offence the Sum of Twenty Shillings over and above the Damage he she or they shall do thereby.
Ten Days shall be appointed for the Amendment of the Highways, of which the Surveyors are to give Notice.
XVI.
And be it further Enacted, by the Authority aforesaid, That
ten
Days shall be nominated and appointed in every Year at the Discretion of the Parish-Surveyors of the Highways, for the Amendment of the Highways in their respective Parishes and Places, and that the said Surveyors shall deliver to the Parish Clerk, and to the Person officiating as Lay Clerk in every Chapel within their said Parishes and Places, a Notice in Writing of every of the said ten Days, which
said Parish or other Clerk shall, on the
Sunday
next after the Delivery of such Notice immediately after Sermon read the same in the Church or Chapel to which he belongs, upon Pain to forfeit
5l.
to be applied to the Amendment of the Highways in such Parish or Place. And the said Surveyors shall also fix on the Doors of their respective Churches, and also on the Doors of every Chapel and Place for Divine Worship within their said Parishes and Places, a Notice in Writing of the said ten Days. And where any Place shall be extraparochial, and no Place for Divine Worship shall be therein, the Surveyors shall affix such Notice in Writing in some notorious Part of such extraparochial Place, to the End that all Persons may have Knowledge thereof, and attend accordingly.
Every Person occupying a Ploughland, or keeping a Draught, shall send the same five of the ten Days.
XVII.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant occupying and having in his or her Possession one Ploughland in any Parish or Place, shall find and send on such five of the said ten Days to be appointed by the said Surveyors of the Highways as aforesaid, for amending the Highways in that Parish or Place, as the said Surveyors shall pursuant to the Power herein after given to them require, one Waggon, Cart, or other Wheel-Carriage, furnished after the Custom of the Country
with five Horses or Oxen, together with Bridles, Halters, Harness, and other Accoutrements, proper to carry Materials for amending the Highways, and shall also send two sufficient Persons to attend and manage the same, upon Pain that every Person making Default so to do on any of the said five Days, shall forfeit for every Day's Default the Sum of
Twenty
Shillings. And every Inhabitant or other Person, keeping in the same Parish or Place one Wheel-Carriage or Draught of any Kind for Profit or Hire, Coaches, Chariots, and such other Wheel-Carriages as are solely used for the Conveyance of Persons only excepted, though he or she have no Ploughland in such Parish or Place, shall send on every of the said five Days such Wheel-Carriage as he or she keepeth, except as aforesaid, furnished with so many Horses or Oxen only as he or she keepeth there for Draught, together with necessary Bridles, Halters, Harness, and other Accoutrements proper to carry Materials for amending the Highways; and shall also send one or more Persons sufficient to attend and manage the same, upon Pain that every Person making Default so to do, on any of the said five Days, shall forfeit for every Day's Default the Sum of
Twenty
Shillings.
Persons occupying two Ploughland, or keeping two Daughts, shall send two Draughts on every of the said ten Days.
XVIII.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant in any one Parish or Place, occupying and having
in his or her Possession two or more Ploughlands in the same Parish or Place, shall find and send on every of the said ten Days, to be appointed by the said Surveyors of the Highways as aforesaid, for amending the Highways in that Parish or Place, for every such Ploughland so kept and occupied, one Waggon, Cart, or other Wheel-Carriage, furnished after the Custom of the Country with five Horses or Oxen, together with necessary Bridles, Halters, Harness, and other Accoutrements proper to carry Materials for amending the Highways, and shall also send two sufficient Persons to attend and manage the same, upon Pain that every Person making Default so to do on any of the said ten Days, shall forfeit for every Waggon, Cart, or other Wheel-Carriage, which ought to have been sent furnished and provided as aforesaid, the Sum of
Twenty
Shillings.—And every Inhabitant or other Person, keeping in the same Parish or Place two or more Wheel-Carriages or Draughts of any Kind for Profit or Hire, except as before is excepted (though he have no Ploughland in such Parish or Place) shall send on every of the said ten Days to be appointed by the Surveyors of the Highways as aforesaid, for amending the Highways, all such Wheel-Carriages as he or she keepeth there, except as aforesaid, furnished with so many Horses and Oxen only as he or she keepeth there for Draught, together with necessary Bridles, Halters, Harness, and other Accutrrements proper to carry Materials for amending the
Highways, and shall also send so many Persons as shall be sufficient to attend and manage the same, upon Pain that every Person making Default so to do on any of the said ten Days, shall forfeit for every Wheel-Carriage or Draught which ought to have been sent furnished and provided as aforesaid, the Sum of
Twenty
Shillings.
Occupiers of divers Ploughlands in divers Parishes shall send a Draught for each.
XIX. And be it further Enacted, by the Authority aforesaid, That every Person that shall occupy and have in his or her Possession one or more Ploughlands in several and divers Parishes and Places, shall be chargeable to find and send on every of the said five Days, or ten Days, as the Case shall be, to be appointed by the said Surveyors of the Highways as aforesaid, for amending the Highways in every of the said Parishes and Places, for every such Ploughland so kept and occupied in any of the said Parishes and Places, one Waggon, Cart, or other Wheel-Carriage, furnished after the Custom of the Country with five Horses or Oxen, together with necessary Bridles, Halters, Harness, and other Accoutrements proper to carry Materials for amending the Highways, and shall also send two sufficient Persons to attend and manage the same, upon Pain that every Person making Default so to do on any of the said five or ten Days as the Case shall be, in any of the said Parishes or Places where he or she hath such Ploughland or Ploughlands in Occupation, shall forfeit to every such Parish or Place for every Waggon, Cart, or other Wheel-Carriage which ought to have been sent furnished and provided as aforesaid, the Sum of
Twenty
Shillings.
What shall be deemed a Ploughland.
Vide 7 Will. cap. 29. sect. 5.
XX. And be it further Enacted and declared, by the Authority aforesaid, That every Messuage, and every Parcel of Arable, Meadow, Pasture, Garden-Ground, Wood-Land, Coppice, or other Land, that shall be let at fifty Pounds by the Year, or that shall be
bona fide
worth fifty Pounds by the Year, to be let (the Timber thereon excepted) shall be deemed a Ploughland, and the Occupiers thereof shall be liable to the Repairs of the Highways in the Manner above-mentioned.
Where Wheel-Carriages cannot be used, the Justices shall settle the Duty.
XXI.
And be it further Enacted, by the Authority aforesaid, That in all Parishes and Places where Waggons, Carts, and other Wheel-Carriages cannot be made use of to Advantage in the Amendment of the Highways, and where the Usage and Practice is to carry Stones, Gravel, and other Materials for amending the Highways, upon the Backs of Horses, or by any
other Kind of Carriage, that in such Parishes and Places every Person having one or more Ploughlands in Occupation, shall find and send on every of the said five or ten Days, as the Case shall be, so many of their said Horses, Oxen, or other Kinds of Carriage, and Persons necessary to work and manage the same, and with such Tools and Implements, as two or more Justices of the Peace met at the Special Sessions to be holden for the Amendment of the Highways shall order and direct, and all and every the said Persons and Person who shall make Default to find and send such Horses, Oxen, or other Carriages, on any of the said
five
or
ten
Days, as the Case shall be provided in in such Manner as the said Justices shall order and direct, shall forfeit for every Day's Default, the Sum of
Twenty
Shillings for every Ploughland in their, his or her Occupation for which such Default shall be made.
Occupiers of 40
l.
a Year shall labour ten Days.
XXII.
And be it further Enacted by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying, and having in his or her Possession, in any one Parish or Place where he or she is not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land that shall be let at
Forty Pounds by the Year, or shall be
bona fide
worth Forty Pounds by the Year to be let, (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon every of the said ten Days, to be appointed by the said Surveyors of the Highways of that Parish or Place, in every Year, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said ten Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
Four
Shillings.
Occupiers of 35
l.
a Year shall labour nine Days.
XXIII.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land, that shall be let at thirty five Pounds by the Year, or shall be
bona fide
worth Thirty five Pounds by the Year to be let (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
nine
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said nine Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 30
l.
a Year shall labour eight Days.
XXIV.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession, in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels, of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land, that shall be let at thirty Pounds by the Year, or shall be
bona fide
worth thirty Pounds by the Year to be let (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
eight
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in
every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said
eight
Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 25
l.
a Year shall labour seven Days.
XXV.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels, of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land that shall be let at twenty five Pounds by the Year, or shall be
bona fide
worth twenty five Pounds by the Year to be let (the timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
seven
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place in every Year, as the said Surveyors shall pursuant to the Power herein after given to them
require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said
seven
Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 20
l.
a Year shall labour six Days.
XXVI.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land that shall be let at twenty Pounds by the Year, or shall be
bona fide
worth twenty Pounds by the Year, to be let (the Timber thereon excepted) shall by themselves or one sufficient Labourer, upon such
six
of the said Ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding
such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said six Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 15
l.
a Year shall labour five Days.
XXVII.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying, and having in his or her Possession, in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land; that shall be let at fifteen Pounds by the Year, or shall be
bona fide
worth fifteen Pounds by the Year to be let, (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
five
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage
or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said
five
Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 12
l.
a Year shall labour four Days.
XXVIII.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land, that shall be let at twelve Pounds by the Year, or shall be
bona fide
worth twelve Pounds by the Year to be let (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
four
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of
the said
four
Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 9
l.
a Year shall labour three Days.
XXIX.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession, in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels, of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land, that shall be let at nine Pounds by the Year, or shall be
bona fide
worth nine Pounds by the Year to be let (the Timber thereon excepted) shall by themselves, or one sufficient Labourer, upon such
three
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said
three
Days, shall forfeit for every
Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 6
l.
a Year shall labour two Days.
XXX.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels, of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land that shall be let at six Pounds by the Year, or shall be
bona fide
worth six Pounds by the Year to be let (the timber thereon excepted) shall by him or herself or one sufficient Labourer, upon such
two
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing so to do on any of the said
two
Days, shall forfeit for every Labourer whom he or she ought to have sent as aforesaid, the Sum of
four
Shillings.
Occupiers of 3
l.
a Year shall labour one Day.
XXXI.
And be it further Enacted, by the Authority aforesaid, That every Inhabitant, and every other Person whatsoever, occupying and having in his or her Possession in any one Parish or Place where he or she are not chargeable with a Ploughland, Wheel-Carriage, or Draught, an Estate consisting of a Messuage or Messuages, or a Parcel or Parcels of Arable, Meadow, Pasture, Garden-Ground, Woodland, Coppice, or other Land that shall be let at three Pounds by the Year, or shall be
bona fide
worth three Pounds by the Year, to be let (the Timber thereon excepted) shall by themselves or one sufficient Labourer, upon such
one
of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in the amending the Highways in that Parish or Place wherein such Estate doth lie (notwithstanding such Person may have a Ploughland, or be obliged to provide Wheel-Carriage or Labourers in some other Parish or Place) upon Pain that every Person failing to do his said Day's Work either by him or herself, or a Labourer as aforesaid, shall forfeit the Sum of
Four
Shillings.
Every other Inhabitant, Cottager, and Labourer, shall labour one Day.
XXXII.
And be it further Enacted, by the Authority aforesaid, that every other Inhabitant, Cottager, Labourer able to labour, or other Person, being no hired Servant by the Year, shall by him or herself, or one sufficient Labourer for every of them, upon such one of the said ten Days to be appointed by the Surveyors of the Highways of that Parish or Place wherein such Inhabitant, Cottager, Labourer or other Person, shall dwell, in every Year, as the said Surveyors shall pursuant to the Power herein after given to them require, work and travel in amending the Highways in such Parish or Place, upon Pain that every Person failing to do his or her said Day's Work, either by him or herself, or a Labourer as aforesaid, shall forfeit the Sum of
four
Shillings, except such Persons as are exempted from the usual Taxes and Payments to the Church and Poor of such Parish or Place by Reason of their Poverty, or the Smallness of their Estates.
How the particular Persons chargeable to the Repair of the Highways shall be called out.
XXXIII.
And whereas great Inconveniencies have been found to arise and happen by the Attendance of all the Inhabitants of Parishes on every of the Days appointed by Law for the Performance of their Statute-Labour; Be it Enacted, by the Authority aforesaid, that from henceforth it shall and may be lawful to and for the Parish-Surveyors of the Highways within their respective
Parishes and Places, to nominate and appoint the several and particular Days on which those Persons shall attend and work, who are by this Act chargeable with any Number less than the ten Days herein before directed to be appointed: And that the said Surveyors shall therefore give reasonable Notice in Writing to every Person so chargeable, of the particular Days whereon they are by the said Surveyors required to work: And that the said Surveyors shall make and set down in Writing a true and particular Account of the Names of the Persons so called out, and of the several Days on which they were by the said Notice required to attend, upon Pain to forfeit in like Manner as if the said Surveyors had refused to take on them the said Office.
Persons who keep Coaches,
&c.
how to be charged.
XXXIV.
And be it further Enacted, by the Authority aforesaid, That all and every Persons and Person keeping for their, his, and her own Use, and not for Hire, any Coach, Chariot, Post-Chaise, or other Wheel-Carriage, for the Conveyance of Persons, and usually drawn with two Horses only, shall be chargeable with, and yearly and every Year pay the Sum of
10s.
notwithstanding any Statute-Duty they shall or may be liable to, in respect of their occupying one or more Ploughland or Ploughlands, or keeping a Draught or Draughts, or being Inhabitants or otherwise chargeable with the Repair of the Highways by this or any other Act, and over and above all and every Penalties or Penalty,
Forfeitures or Forfeiture, for the Nonperformance thereof. And that all and every Persons and Person keeping as aforesaid any Coach, Chariot, Post-Chaise, or other Wheel-Carriage, for the Conveyance of Persons, usually drawn with four Horses, shall be in like Manner chargeable with, and yearly pay the Sum of
15s.
And that all and every Persons and Person keeping as aforesaid any Coach, Chariot, Post-Chaise, or other Wheel-Carriage, for the Conveyance of Persons, usually drawn with six Horses, shall be in like Manner chargeable with, and yearly pay the Sum of
20s.
notwithstanding their being liable to any Statute-Duty, or otherwise chargeable as aforesaid.
How each Person shall work, and with what Tools he shall be provided.
XXXV.
And be it further Enacted, by the Authority aforesaid, That all and every the Inhabitants, Cottagers, Labourers, and others, hereby required and obliged to go themselves or find sufficient Labourers to work and travel in amending the Highways; and also all and every Persons and Person hereby required and obliged to send Waggons, Carts, or other Wheel-Carriages or Draughts, and also all and every Persons and Person hereby required and obliged to send Horses or other Carriages for amending the Highways, shall have and bring with them such Baskets, Shovels, Spades, Picks, Mattocks, and other Tools and Instruments, as are commonly used for making Hedges, Fences and
Ditches, and such as are necessary and proper for the Work directed for them to do by the Surveyors of the Highways of the Parish or Place where they respectively dwell: And all and every of the said Inhabitants, Cottagers, Labourers, and others, who are obliged to go themselves or to find sufficient Labourers to work and travel in amending the Highways, and also every of the said Persons and Person who are to send Waggons, Carts, or other Wheel-Carriages, or Draughts, and also every of the said Person or Persons who are to send Horses or other Carriages for amending any of the Highways as before-mentioned, shall do and keep their Work eight hours on every of the several Days appointed by the said Surveyors for them to work respectively, that is to say, from seven o'Clock in the Morning to three o'Clock in the Afternoon, and all the said Persons shall work at such Place, and in such Manner as the said Surveyors respectively or the Assistant-Surveyors shall order or direct. And if any of the Inhabitants, Cottagers, Labourers, or others, who are obliged to go themselves or to find sufficient Labourers to work and travel in amending the Highways, or if any of the Person or Persons who are to send Waggons, Carts, or other Wheel-Carriages or Draughts, or if any Person or Persons who are to send Horses or other Carriages, shall not be provided to do their Duty as is above directed, or shall not continue to work as they ought during all the said eight hours, or shall not work at the Place appointed for them by any of the Surveyors,
or shall not work in the Manner they are ordered by any of the said Surveyors, the Person or Persons so making Default in any of the said Cases shall lose the benefit of his, her, or their Service on such Days as the said Defaults were made, and shall be liable to do Duty in amending their said Highways for the same Number of Days as if they had not done any Duty at all.
Parish-Surveyors to attend and see the Duty performed.
XXXVI.
And be it further Enacted, by the Authority aforesaid, That the Parish-Surveyors of every Parish and Place, unless prevented by Illness, or having some reasonable Excuse to be allowed of by the Justices of the Peace, shall duly attend on every of the Days to be from Time to Time appointed for the Performance of the Statute-Work within their respective Parishes and Places, and take an Account in Writing of all Defaulters, and of their respective Defaults, upon Pain that every Surveyor not attending, shall forfeit for every Day's Non-attendance the Sum of
40
s.
No Surveyor to accept any Composition for Statute-Work.
XXXVII.
And be it further Enacted, by the Authority aforesaid, That no Surveyor shall take or accept of any Gratuity or Composition whatsoever for any Statute-Labour by this act required to be done, on Pain to forfeit for the said Offence the Sum of fifty Pounds.
Surveyors may gather and carry away Stones from any Person's Ground at proper Seasons, and may dig and carry away from any Highway, Heath, Forest, or Common, any Stones, Gravel,
&c.
for amending of Highways, Bridges, or Causways.
Vide 5 Eliz. cap. 13. sect. 3.
XXXVIII. And, be it further Enacted, by the Authority aforesaid, That every Parish-Surveyor of the Highways of any Parish or Place, or any other Persons or Person by such Surveyor's Order or Direction, shall and may at proper Seasons go upon the Arable, Pasture, or common Grounds, of any other Person or Persons in the same Parish or Place, and gather and carry away with Carts or other proper Carriages such small Stones lying thereon as are proper and necessary for amending any of the Highways lying in the same Parish or Place; the said Surveyors or other Persons acting by their Direction, not doing any wilful Spoil or Damage, and such Surveyors, and other Persons by their Order and Direction, shall and may also dig, take, and carry away from any Highway, Heath, Forest or Common, in the same Parish or Place, any Stones, Gravel, Chalk, Sand, Heath, Ling, Furze, or Bushes, proper and necessary for amending any Highways, Bridges or Causways in the same Parish or Place; the said Surveyors or other Persons employed by them not doing any wilful Spoil or Damage, and causing all such Pits and Places to be filled up, and the Ground to be levelled at the Charge of the Parish or Place immediately after such Stones, Gravel, Chalk or Sand, shall be carried away.
Surveyors by the Order of the Justices may dig in any inclosed Ground for Gravel, Sand,
&c.
so as the Pit be but ten Yards over, and the same be filled up at the Charge of the Parish.
Vide 26 Geo. 2. cap. 28.
XXXIX. And be it further Enacted and declared, by the Authority aforesaid, That every Parish-Surveyor of the Highways of any Parish or Place, or other Persons by their Direction, by the Order or Direction of the Justices of the Peace, or any two of them assembled at any such Special Session as aforesaid, shall have Power and Authority, for amending any of the Highways in such Parish or Place, to dig, take, and carry away (in the several Grounds of any Person lying within the same Parish or Place, and near or adjoining to the Highway to be amended) any Gravel, Sand, Chalk, or other Materials proper and necessary to amend the said Highways, so as they dig in no House, Yard, Orchard, Garden, or Meadow, and but one only Pit, and that not to be either in Breadth or Length above ten Yards over at the most, and so as the same within one Month after the said Materials are carried away be filled up again and levelled at the Charge of the Parish or Place as the said Justices shall direct.
Where any Person hath suffered unexpected Damage by digging in his Ground, or where the Surveyors have laid out their own Money, or where any Parish shall want Materials or Labour, or where Fines or Issues shall have been levied on any one or more of the Inhabitants, or shall be made payable by the Order of any Court of Law, two Justices may make an Assessment of Six-pence in the Pound.
Vide 3 Will. cap. 12. sect. 13.—1 Geo. cap. 52. sect. 6.
XL. And be it further Enacted, by the Authority aforesaid, That where the Justices of the Peace, or any two of them met at any such Special Session as aforesaid, shall be satisfied by the Oath of any Parish-Surveyor of the Highways or other Credible Person or Persons, that any Person or Persons hath suffered more Damage than was expected by digging such Pit or Pits, in any inclosed Grounds as aforesaid, or shall be satisfied that any Parish-Surveyor or Surveyors of the Highways of any Parish or Place hath laid out his own Money in Paying for Workmanship, or in purchasing Materials necessary for repairing any Highways, Bridges, or Causways, in the same Parish or Place, or shall be satisfied on the Complaint of any Parish-Surveyor or Surveyors of the Highways or otherwise, that Workmanship or Materials are wanting for the necessary Repairs of the Highways, Bridges, or Causways, in any Parish or Place, or that Fines, Issues, or Forfeitures, for not repairing any Highway, have been levied on any one or more Inhabitant or Inhabitants of such Parish or Place, by the Order or Authority of any Court of Law or Justice, or shall be imposed or made payable by the Order or Determination of any such Court of Law or Justice, that in all or any of the said Cases, the said Justices, or any two of them, assembled at any such Special Session as aforesaid, shall hereby have Authority to order one or more Rates or Assessments to be equally made by the Parish-Surveyor or Surveyors of the Highways of such Parish or Place, upon all the Inhabitants and others of such Parish or Place, according to the Rules and Methods prescribed in and by an Act of Parliament made in the three and fortieth Year of the Reign of the late Queen
Elizabeth,
intituled,
An Act for the better Relief of the Poor of this Kingdom;
which Rate or Assessment so made shall be allowed and confirmed by the said Justices or any two of them, either in or after any such special Session, and shall be collected and gathered by the Parish-Surveyor or Surveyors of the Highways of such Parish or Place. And if any Person or Persons shall make Default in Payment of the Sum or Sums of Money so rated or assessed on him, her, or them, by the Space of ten Days after the same shall have been demanded of him, her, or them, by the said Surveyor or Surveyors, that then the said Justices of the Peace, or any one of them, who allowed and confirmed such Rate or Assessment (after hearing or duly summoning such Persons to shew Cause to the contrary) may, if he or they think it reasonable, relieve such Person or Persons, or may grant a Warrant under his or their Hands and Seals, for the Parish-Surveyor or Surveyors of the Highways of such Parish or Place to levy the Sum and Sums of Money so rated or assessed as aforesaid, by Distress and Sale of the Goods and Chattels of such Person or Persons so making Default rendering the Overplus to the Owner thereof after the said Sum and Sums and the Charges of taking, keeping, and selling the said Distress is allowed by any of the said Justices, and thereout first deducted. And for want of sufficient Distress the said Justices or Justice of the Peace may commit such Person or Persons to the common Gaol or House of Correction, there to remain until the Sum and Sums on him or her so rated or assessed shall be fully paid and satisfied, unless sooner discharged by the Justices in their General Quarter-Session of the Peace, provided always that no such Rates or Assessments for the Repairs of any Highways, Bridges, Causways, Streets, or Pavements, shall (over and above their Statute-Work) in any one Parish or Place, and in any one Year, exceed the Rate of Six-pence in the Pound of the Yearly Value of the Houses, Lands, Tenements, Hereditaments, and other yearly Profits thereof in any such Parish or Place, unless where any such Parish or Place shall be presented on the Knowledge and View of a Justice of the Peace in the General Quarter-Sessions of the Peace, or shall be fined by any Judge of Assize.
The Inhabitants of any Part of a Parish having done their Statute-Work, and laid out the Money raised by an Assessment, if the Highways are not thereby sufficiently repaired, the whole Parish shall contribute.
Vide 7 Will. cap. 29. sect. 4.
XLI. And be it further Enacted, by the Authority aforesaid, That if the Inhabitants of any Inship, Liberty, Precinct, Vill, Hamlet, Tithing, or other Part of any Parish, having usually repaired their own Highways, Bridges, and Causways, shall in any one Year have performed their Statute-Work as herein before is directed, and shall also have levied and laid out a Rate or Assessment of Six-pence in the Pound on the yearly Value of all Houses, Lands, Tenements, Hereditaments, and other yearly Profits thereof in the Repair of their said Highways, Bridges, or Causways; and yet their Highways, Bridges, or Causways, or some of them, shall not then be sufficiently repaired, then, and in all such Cases, the Justices of the Peace, or any two of them, assembled at any such special Session as aforesaid, shall and may order the whole Parish to contribute to the Repairing thereof, and the Surveyor and Surveyors of every such Parish are hereby required to repair the same accordingly.
Where the Occupiers or Occupier of any extraparochial Place shall refuse to repair the Highways,
&c.
the Justices may order the same to be repaired, and may levy the Money expended by Distress and Sale.
XLII.
And be it further Enacted, by the Authority aforesaid, That if the Occupier or Occupiers of any extraparochial
Place or Parcel of Lands, (having no Inhabitants therein to be appointed Surveyors of the Highways) shall neglect or refuse well and sufficiently to repair and amend any Highway, Bridge, or Causway, lying within any such extraparochial Place, and which the Occupiers of such extraparochial Place ought to repair, by the Space of thirty Days after Notice in Writing shall have been given to any of the Occupiers thereof to repair and amend the same by the Order or Direction of any one Justice of the Peace, that then it shall be lawful for the Justices of the Peace, or any two of them, assembled at any such special Session as aforesaid, (such Occupier or Occupiers being first summoned to attend and be heard at such special Session) to order and appoint the repairing and amending such Highways, Bridges, and Causways, in such Manner as they shall think proper, and to contract with any Person or Persons for the doing thereof, and by Warrant under their Hands and Seals to levy by Distress and Sale of all or any of the Corn, Grain, Hay, Straw, or any other Produce (Timber Trees excepted) of such extraparochial Place (when the said Corn, Grain, Hay, Straw, or other Produce shall be severed from the Ground) all such Sum and Sums of Money as shall have been expended in repairing or amending such Highways, Bridges, or Causways, or by Means thereof. Provided always, that the Sum or Sums of Money so ordered to be levied by the
said Justices for repairing any such Highways, Bridges, or Causways, shall not in any one Year (where the Statute-Work has been done and performed as in this Act is directed) exceed the Rate of Six-pence in the Pound, of the yearly Value of the Houses, Lands, Tenements, Hereditaments, and other yearly Profits thereof, in any such Extraparochial Place. And in all Cases where no Corn, Grain, Hay, Straw, or other Produce (Timber-Trees excepted) can be had from the Premisses as aforesaid, sufficient to reimburse the Charges of repairing and amending such Highways, Bridges or Causeways as aforesaid, that then and in that Case the Expences of repairing and amending such Highways, Bridges, and Causways, or so much thereof as shall be wanting shall be certified by the said Justices of the Peace or any two of them assembled at any such special Session as aforesaid, to the Treasurer or Treasurers of the County, City, Liberty, or Place, wherein such extraparochial Place doth lie, who are hereby impowered and required to pay the Sum or Sums of Money so certified to such Person or Persons as the said Justices or any two of them shall order or direct, and the Sum or Sums of Money so certified and paid by the Treasurer or Treasurers of any County, City, Liberty, or Place, for the Purposes aforesaid, shall be allowed in such Treasurers Account, and shall be assessed, collected, and levied on such County, City, Liberty, or Place, in the same Manner as other Monies are, for the Repairs of
County Bridges. And all such Sum or Sums of Money so certified and paid by the Treasurer or Treasurers of any County, City, Liberty, or Place as aforesaid, shall be a Charge on such extraparochial Estate, and deemed a just Debt to such County, City, Liberty, or Place, and recoverable before the Judges of Assize in their Circuits, or in any of the Courts of Law or Equity.
Sessions may enlarge Highways and make Assessments.
Vide 8 & 9 Will. 3. Cap. 16. Sect. 1.
XLIII. And be it further Enacted, by the Authority aforesaid, That the Justices of the Peace of any County, City, Riding, Division, Liberty or Place, or the major Part of them, being five at the least, at their Quarter Sessions, shall have Power to enlarge or widen any Highways in their respective Counties, Ridings, Divisions, Liberties or Places, so that the Ground to be taken into the said Highways do not exceed eight Yards in Breadth, and that the said Power do not extend to pull down any House, or to take away the Ground of any Garden, Orchard, Court or Yard: and for the Satisfaction of the Persons who are Owners of, or may be interested in the said Ground that shall be laid into the said Highways, the said Justices are hereby impowered to impannel a Jury before them, and to administer an Oath to the said Jury, that they will assess such Damages to be given, and Recompence to be made to the Owners and others interested in the said Ground-Rent or Charge respectively, for their respective Interests, as they shall think reasonable, not exceeding thirty Years Purchase for Lands so laid out, and likewise such Recompence as they shall think reasonable, for the making of a new Ditch and Fence to that Side of the Highway that shall be so enlarged, and also Satisfaction to any Person that may be otherwise injured by the enlarging of the said Highways; and upon Payment of the said Money so awarded, or leaving it in the Hands of the Clerk of the Peace of the respective County, for the Use of the Owner, or of others interested in the said Ground, the Interest of the said Persons, in the said Ground-Rent or Charge, shall be for ever divested out of them: And the said Ground, and all other Grounds that shall be laid into any Highway by Virtue of this Act, shall be esteemed and taken to be a public Highway to all Intents and Purposes whatsoever: and the said Justices of the Peace for any County, City, Riding, Division, Liberty, or other Place, or the major Part of them, being five at the least, shall have Power to Order one or more Assessment or Assessments to be made, levied or collected, upon all and every the Inhabitants, Owners, or Occupiers of Lands, Houses, Tenements or Hereditaments in their respective Parishes or Places that ought to repair the same, to such Person and Persons, and in such Manner as the said Justices at such Sessions shall direct and appoint; and the Money thereby raised shall be employed and accounted for, according to the Order and Direction of the said Justices, for and towards the purchasing of the Land to enlarge the said Highways, and for the making the said Ditches and Fences: and the said Assessment shall, by Order of the said Justices, be levied by the Overseers of the Highways, by Distress and sale of the Goods of Persons so assessed, not paying the same within ten Days after Demand, rendering the Overplus of the Value of the Goods so distrained, to the Owner and Owners thereof (the necessary Charges of Making and selling such Goods being first deducted.)
But not to exceed
6d.
in the Pound.
Vide 8 & 9 Will. 3. Sect. 2.
XLIV. Provided nevertheless, and be it Enactacted, That no such Assessment or Assessments made in any one Year, for enlarging of Highways, shall exceed the Rate of Six-Pence in the Pound of the yearly Income of any Lands, Houses, Tenements, and Hereditaments, nor the Rate of Six-Pence in the Pound for Personal Estates.
Quarter-Sessions shall issue Precepts to Owners of Ground to shew Cause why the same should not be taken in.
Vide 8 & 9 Will. 3. Sect. 3.
XLV. And that no Person may be surprised by the Power contained in this Act, but may have timely Notice to appear to make their Complaints to the said Justices, Be it enacted by the Authority aforesaid, That the Justices of the Peace of any County, City, Riding, Division, Liberty or Place, or the major Part of them, being five at the least, at their Quarter-Sessions at the Request of any Person for the putting in Execution the Powers contained in this Act for the enlarging of Highways, shall issue out their Precepts to the Owner or Owners of Ground, or others interested in the same, that are to be laid in to the said Highways, to appear at the next Quarter-Sessions, or shew Cause why the said Highways should not be enlarged; any thing in this Act contained to the contrary notwithstanding.
Liberty for such Owners to cut down Wood growing thereon.
Vide 8 & 9 Will. 3 Sect. 4.
XLVI. Provided also, and be it Enacted by the Authority aforesaid, That if any Order or Decree shall be made by the said Justices for the laying out of Ground for the enlarging of Highways, that the Owners or Proprietors of the said Ground have hereby free Liberty, within eight Months after such Order, to cut down any Wood or Timber growing upon the said Ground, or upon the Neglect thereof, that the same shall be sold by Order of the said Justices, and the Owners of such Wood or Timber shall receive the full of what shall be made of such Wood or Timber (the Charges of working the same being first deducted.)
Appeal to Judges of Assize.
Vide 8 & 9 Will. 3. Sect. 5.
XLVII. And be it further Enacted, by the Authority aforesaid, That it shall and may be lawful for any Person aggrieved by the Order or Decree of the said Justices, to appeal to the Judges of Assize at the next Assize only to be held for the County where such Decree or Order shall be made, and any of the said Judges are hereby impowered to re-examine, affirm or reverse the said former Order and Decree, as in Judgment they shall think fit, and if affirmed, to award Costs against such Appellants for their Vexation and Delay, and to cause the same to be levied by Distress and Sale of the Appellants Goods, rendering the Overplus (if any such be) to the said Appellants.
Appeal from Inquisitions on Writs of
Ad quod Damnum. Vide 8 & 9 Will. 3. Sect. 6.
XLVIII. Provided also, and be it Enacted, That where any common Highway at any Time hereafter shall be enclosed, after a Writ of
Ad quod Damnum
issued, and Inquisition thereupon taken, it shall and may be lawful to and for any Person or Persons injured or aggrieved by such Inclosure, to make their Complaint thereof by Appeal to the Justices at the Quarter-Sessions to be held for the same County next after such Inquisition taken, who are hereby authorized and impowered to hear and determine such Appeal, and whose Determination therein shall be final; and if no such Appeal be made, then the said Inquisition and Return entered and recorded by the Clerk of the Peace of such County at the Quarter-Sessions, shall be for ever afterwards binding to all Persons whatsoever, without any further or other Appeal; any Law or Statute to the contrary notwithstanding.
Powers and Authorities for rendering this Act effectual given to the Justices, w
h an Appeal to the Quarter-Sessions.
XLIX.
And be it further Enacted, and declared, by the Authority aforesaid, That the Justices of the Peace, or any two of them assembled at any such special Session as aforesaid, shall hereby have Power and Authority to summon, hear, adjudge, and determine by the Oath of one or more credible Witness or Witnesses, which are, and which are not Highways, Bridges, Causways, Streets, or Pavements to be by Virtue of this Act repaired and amended, and who ought to repair and amend the same, and to order accordingly. And the said Justices of the Peace or any two of them assembled at any such Special Session as aforesaid, shall also have the like Power and Authority on the Oath of one or more credible Witness or Witnesses, or the Confession of the Defendant before the said Justices, to summon, hear, adjudge, and determine and convict or acquit all such Persons and Person as shall refuse to pay to any Rate, Assessment, or other Payment required by Virtue of this Act, or who shall be charged with any Neglect of Duty, causing any Nusances, or committing any of the Offences, Defaults, or Misdemeanors
mentioned in this Act. And the said Justices of the Peace, or any two of them, assembled at any such special Session as aforesaid, shall also have Power and Authority to levy by Distress and Sale of the Goods and Chattels of all and every such Persons and Person as shall refuse to pay any Sum or Sums of Money that shall be rated, assessed, or charged on him, her, or them, by Virtue of this Act, and also to levy by Distress and Sale of the Goods and Chattels of all and every Persons and Person convicted of such Neglects, Nusances, Offences, Defaults, or Misdemcanors, all such Forfeitures, Penalties, Demands, Fees, and Payments, as are or shall be declared, required, inflicted, or incurred by Virtue of this Act.—And the said Juslices of the Peace, or any two of them assembled at any such special Session as aforesaid, shall also have Power and Authority to commit to the common Gaol or House of Correction all such Person or Persons as shall not have Goods and Chattels sufficient whereon to levy by Distress such Rates, Assessments, or other Payments, or such Forfeitures, Penalties, Damages, Fees, or other Payments as are or shall be declared, required, inflicted or incurred by Virtue of this Act.—And to the End that all and every of the Powers and Authorities in this Act may be executed in a regular Manner, and with as little trouble and Expence to the Subject as may be; and that no Man may be adjudged to suffer in his Person or Property without an Opportunity of being heard for himself;—Be
it Enacted and declared by the Authority aforesaid, That all and every of the Neglects, Nusances, Offences, Defaults, Misdemeanors, Rates, Assessments, and Payments whatsoever mentioned in this Act, and also all other Disputes and Differences, Matters and Things in this Act contained, shall be beard, adjudged, and determined before the Justices of the Peace or any two of them assembled in their Special Session to be holden from Time to Time for the Amendment of the Highways by Way of Information or Complaint, and not otherwise (unless in Cases under this Act where
is otherwise directed, or where the Offend
present before the said Justices of the Peace, assembled as aforesaid) which said Information or Complaint shall first be made in Writing signed by the Person informing or complaining, and delivered to any one Justice of the Peace of the County City, Liberty, or Place wherein the Cause or Matter of such Information or Complaint shall arise, which said Justice is hereby authorized and required to issue out his Summons under his Hand and Seal, reciting the Substance or Matter of the said Information or Complaint, or so much thereof as shall be material, and requiring such Person and Persons as shall appear to him to be any Way interested or concerned in the Matter of such Information or Complaint to appear before him and such other Justices of the Peace as shall meet at some subsequent Special Sessions to be holden for the Amendment of the Highways of that Division,
City, Liberty, or Place, at a Time and Place in such Summons to be named and appointed to answer to the said Information or Complaint, which said Summons, or a true Copy thereof shall be delivered to the Person or Persons themselves, or left at his or her Dwelling House or usual Place of abode at least forty-eight hours before the Time appointed for hearing the Matter of such Information or Complaint, and if the Person or Persons so summoned as aforesaid shall appear at such special Sessions, or if such Person or Persons so summoned as aforesaid, shall not appear at such special Sessions, the due Service of the said Summons being proved before the said Justices upon Oath, the said Justices or any two of them, shall or may on the Oath of one or more credible Witness or Witnesses, or the Confession of the Defendant before them, proceed to hear, adjudge, and determine and convict or acquit on the said Information or Complaint, and shall or may make such Order or Orders therein as they shall think agreeable to the Intention of this Act. Nevertheless, all Persons who shall think themselves aggrieved by any such Order or Orders made by the said Justices assembled at such special Session as aforesaid, may appeal against such Order or Orders (first delivering a Notice in Writing to the said Justices then met of such their Intention so to do) to the Justices of the Peace at the next General Quarter-Sessions of the Peace to be holden for the County, City, Liberty, or Place wherein such Order or Orders shall be made, which said
Justices of the Peace in such their General Quarter-Sessions of the Peace, shall on the Oath of one or more credible Witness or Witnesses, or the Confession of the Defendant, re-hear, re-adjudge, and re-determine the Matter of the said Information or Complaint, and shall make such Order or Orders therein as they or the major Part of them shall think agreeable to the Intention of this Act, which Order or Orders so made shall be final, without any further or other Appeal whatsoever. And the said Justices, or the major Part of them, at such General Quarter-Sessions of the Peace shall hereby have Power to give Costs in all such Appeals as they shall Judge to be vexatious, and shall levy all such Sum and Sums of Money as they shall so adjudge and order; and also all such Costs as they shall give on such vexatious Appeals, by Distress and Sale of the Goods and Chattels of all such Persons as shall neglect or refuse to pay the same. And for Want of sufficient Distress they shall commit every such Person to the common Gaol or House of Correction, there to remain for such Time as they shall think fit, unless such Sum and Sums of Money by them adjudged and ordered to be paid together with the Costs of them given, shall be sooner paid and satisfied. But if any Person or Persons so heard adjudged, determined, or convicted on any such Information or Complaint before two or more Justices of the Peace assembled at any such special Sessions to be holden for the Amendment of the Highways as aforesaid, shall neglect or refuse before
the said Justices to deliver Notice in Writing of their Intention to appeal against such Order or Orders by them made, to the Justices of the Peace at the next General Quarter-Sessions of the Peace to be holden for that County, City, Liberty or Place wherein such Order or Orders shall be made as aforesaid, then the said Order and Orders made by the said Justices of the Peace or any two of them met at any such special Sessions as aforesaid, shall be final without any other Appeal whatsoever, and the said Justices, or any two of them, either in or after any such special Sessions as aforesaid, shall or may further proceed to put the same in Execution, and by Warrant under their Hands and Seals, may authorize and direct the Surveyors of the Highways, Constables, Headboroughs, Tithing-men, or other Peace Officers of the Parish or Place where the matter of such Information or Complaint shall arise, or where the Person so adjudged or convicted by them as aforesaid, doth inhabit, to seize and distrain the Goods and Chattels of such Person or Persons so heard, adjudged, or convicted as aforesaid, and if the Sum or Sums of Money, ordered to be by him or her paid, together with the Charges of taking and keeping the said Distress, be not tendered or paid within five Days, such Parish Surveyors of the Highways, Constables, Headboroughs, Tithing-men, or other Peace-Officers, shall and may make public Sale thereof, or of so much thereof as will satisfy such Sum and Sums of Money as the said Justices of the
Peace had by their said Warrant directed to be levied, together with such reasonable Charges for making, keeping, and selling the said Distress as the said Justices or any one of them shall allow, after which the Overplus (if any there be) shall be rendred to the Owner thereof, and for want of sufficient Distress, it shall be lawful for any one of the said Justices of the Peace, before whom any such Person shall be so heard, adjudged, or convicted as aforesaid, to commit such Person or Persons to the common Gaol or House of Correction, there to remain, until the Sum or Sums of Money so ordered to be paid by the said Justices of the Peace, or any two of them assembled at such special Session as aforesaid, shall be fully paid and satisfied, unless sooner discharged by the Order of the Justices in their General Quarter-Sessions of the Peace.
All Matters of Dispute to be determined in the County where they arise, and no
Certiorari
shall remove the proceedings of the Justices or the Quarter-Sessions into any Court at
Westminster. Vide 22 Car. Cap. 12. Sect. 4. 3 Will. Cap. 12. Sect. 27.
L. And be it further Enacted and Declared by the Authority aforesaid, That all Matters of Dispute and Difference whatsoever concerning any Highways, Bridges, Causways, Streets or Pavements, by Virtue of this Act to be repaired and amended, or concerning any Offence, or other Matter or Thing to be heard and determined by the Authority of this Act, shall be finally heard and determined in the County, City, Liberty or Place wherein such Matter of Dispute or Difference shall arise, and in the Manner in and by this Act directed, and not elsewhere or otherwise. And no Order, Judgment, Conviction, or other Proceeding in Pursuance of this Act made or had by the Justices of the Peace, or any two or more of them assembled, at any special Sessions to be holden for the Amendment of the Highways as aforesaid, nor any Order, Judgment, Conviction or other Proceeding, in Pursuance of this Act made or had by the Justices of the Peace, or the major Part of them, in their General Quarter-Sessions of the Peace, nor any other Proceeding of any Justice or Justices of the Peace out of Sessions in Pursuance of this Act, shall be removed by
Certiorari,
or other Form or Process of Law, into any Court at
Westminster
or elsewhere; any Thing herein or in any other Act or Acts of Parliament contained to the contrary notwithstanding.
☞
Here, if it should be thought advisable, might be inserted a Clause to amend the Stat.
30 Geo. 2. cap. 22. sect. 9.
by impowering a Justice to convict on his View the Driver of any Waggon,
&c.
for riding on the same, causing any Hurt by Misbehaviour, obstructing the Passage, or refusing to give Way, contrary to that Statute. But it is to be noted, that as every Conviction of that kind must by the Rules of Law be grounded on a Summons, the Offender in that Case is amenable to that
Justice only in whose View the Offence was committed; what seeming Irregularity therefore there may be in issuing a Summons into a Division remote from that where the Offender is to appear, must be obviated by express Words. The Penalty on a Driver refusing to discover his Name and Place of Abode must also be extended to the Case of a Justice requiring the same, on a View of the above Offences.
All Forfeitures and Penalties, to be paid into the Hands of the Surveyors, who are to apply the same in the Amendments of the Highways. Surveyors to account to the Justices, for all Monies received and expended by them, and the Balance in their Hands to be paid to their Successors. If any Surveyor shall refuse to account, the Justices may commit him, and levy the Amount of the Balance by Distress, and may examine Persons as to Monies misapplied, or fraudulently concealed, and levy by Distress double the Sum so misapplied or concealed, and Persons refusing to be examined, shall ferfeit
10l. Vide 3 W. & Mar. Cap. 12. Sect. 11, 14.
LI. And be it further Enacted by the Authority aforesaid, That all Fines, Forfeitures and Penalties by this Act inflicted or imposed, and also all Rates, Assessments or other Payments for the Amendment of any Highway, shall be paid into the Hands of the Parish-Surveyor or Surveyors of the Highway of the Parish or Place where the said Fines, Forfeitures, Penalties, Rates, Assessments, or other Payments shall arise, be incurred, or become payable, who shall apply the same in the Repair and Amendment of the Highways, Bridges, Causways, Streets or Pavements in such Parish or Place, and the Surveyors of the Highways shall make and set down in Writing a true and perfect Account of all such Fines, Forfeitures, Penalties, Rates, Assessments and other Payments as they, or any of them, shall from Time to Time receive by Virtue of their Office, and also of all their Disbursements; and shall deliver such Account, signed by every such Surveyor, to the Justices of the Peace, or two of them assembled, at some special Session to be holden for the Amendment of the Highways; and no Surveyor shall be allowed any Article of Expence in his Accounts but such as he shall have paid for Labour or Materials employed or used in the Repair of the Highways of the Parish or Place for which he is Surveyor; and if any Surveyor of the Highways shall refuse to make and set down in Writing such Account of his Receipts and Disbursements during the Time he shall be Surveyor, or shall not deliver the same so signed as aforesaid, to two or more such Justices of the Peace assembled at such special Session as aforesaid, then the said Justices, or any two of them, are hereby authorized and impowered to commit every such Surveyor to the common Gaol, there to remain until he shall set down in Writing and deliver such Account as aforesaid, and shall pay all such Sum and Sums of Money to his Successor as the said Justices shall adjudge to be in his Hands; and if any Surveyor of the Highways shall not within three Days after he shall be discharged from his Office pay, or cause to be paid, unto such Person or Persons as shall be appointed to succeed him in the said Office, all such Sum and Sums of Money as the said Justices of the Peace, or any two of them, assembled at such special Session as aforesaid, shall adjudge to be in his Hands at the Time of his Discharge, and also all and every or any such Fines, Forfeitures or Penalties, as shall have been inflicted or imposed on him or them by the Authority of this Act, or which he or they shall have incurred under or by Virtue of the same; then the said Justices, or any two of them, shall and may levy all and every such Sums and Sum of Money, Fines, Forfeitures and Penalties, by Distress and Sale of the Goods and Chattels of every such Surveyor or Surveyors of the Highways. And if any Fines, Forfeitures, Penalties, Rates, Assessments or other Payments by this Act directed to be applied in the Repair and Amendment of any Highway, shall be fraudulently concealed, or wilfully misapplied by, or by the Order or Direction, or the Privity or Connivance of any Surveyor or Surveyors of the Highways, upon Proof thereof by one or more credible Witness or Witnesses upon Oath before the said Justices, or any two of them, assembled at any such special Session as aforesaid, every such Surveyor and Surveyors so fraudulently concealing or wilfully misapplying such Money, or ordering, directing or conniving at such Concealment or Misapplication thereof, shall forfeit for the said Misdemeanor double the Sum of Money so concealed or misapplied as aforesaid. And the said Justices of the Peace, or any two of them, so assembled at any such special Session as aforesaid, shall hereby have Power and Authority to summon and examine upon Oath all Persons inhabiting within the Jurisdiction of their Commission, whom they shall have reason to believe can give an Account of any Fines, Forfeitures, Penalties, Rates, Assessments or other Payments that have been or shall be so fraudulently concealed or misapplied as aforesaid; and if any Person or Persons so summoned to be examined as aforesaid, shall neglect or refuse to appear before any of the said Justices assembled at any such special Session as aforesaid, the due Service of the said Summons being proved upon Oath; or if any such Person or Persons so summoned do appear, and shall refuse to be examined upon Oath, then and in either of the said Cases the Person or Persons so neglecting or refusing to appear, being duly summoned, and the Person and Persons so appearing and refusing to be examined upon Oath, shall forfeit the Sum of ten Pounds.
Surveyors of the Highways, Parish Clerk, or other Inhabitant, to be a good Witness.
LII.
And be it further Enacted by the Authority aforesaid, That any Surveyor of the Highways, Parish
Clerk, or other credible Inhabitant of any Parish, shall in all Cases in this Act be and be deemed a competent Witness, and the Oath of such Surveyor, Parish Clerk, or other Inhabitant, shall and may be received as Evidence accordingly; any Law or Usage to the contrary notwithstanding.
Feoffees or Trustees of Lands or Money, for the Maintenance of the Highways, may demise the same for the most improved Value without Fine, and the Quarter-Sessions may inquire into the Value thereof, and in case the Feoffees or Trustees shall have been negligent, may order the Imployment of the Rents and Profits, according to the Will of the Doner
(
except the case of Lands,
&c.
given to any college or Hall in either of the Universities, having a Visitor
). Vide 22 Car. 2 Cap. 12. Sect. 2.
LIII. And be it further Enacted, by the Authority aforesaid, That where any Lands have been or shall hereafter be given for the Maintenance of Highways, Bridges, Causways, Streets or Pavements, all such Persons as are or shall be enfeoffed or trusted with any such Lands, shall and may demise or let the same to Farm at the most improved yearly Value, without Fine; and the Justices of the Peace, in their open General Quarter-Sessions of the Peace, or the major Part of them, shall and may inquire by such Ways and Means as they think fitting, into the Value of all such Lands so given or to be given, and order the Improvement thereof, or Employment of the Rents and Profits thereof, according to the Will and Direction of the Donor of such Lands, if they find that the Persons intrusted with the Care thereof have been negligent or faulty in the Performance of their Trust, (except such Lands have been given for the Uses aforesaid to any College or Hall in the Universities of
Oxford
or
Cambridge,
which has Visitors of their own); any Law, Statute, Usage or Custom to the contrary notwithstanding.
Presentment of Justices on View.
Vide 2 & 3 Phil.
and
Mar. Cap. 8. Sect. 3. 5 Eliz. Cap. 13. Sect. 9.
LIV. Whereas it hath been found by Experience, that Presentments of Parishes, Places, and Persons, for not repairing their respective Highways on the Knowledge and View of a Justice of the Peace, have in many Cases proved effectual, to compel such Parishes, Places, or Persons, to repair their Highways, in order to regulate such Presentments, and make them more effectual; Be it therefore enacted by the Authority aforesaid, that every Justice of the Peace, of any County, City, Liberty, or Place, shall have Authority upon his own Knowledge and View, in the General Quarter-Sessions of the Peace to be holden for such County, City, Liberty, or Place, to make Presentment under his Hand and Seal, of all and every, or any Highways, Bridges, Causways, Streets, or Pavements of such County, City, Liberty, or Place, not being in good and sufficient Repair (provided that such Justice of the Peace shall have given sufficient Notice in Writing, of his intention, so to do to any one or more of the Persons chargeable with the Repairs of such Highways, Bridges, Causways, Streets or Pavements, by him intended to be presented to appear, and be heard at the said General Quarter-Sessions of the Peace, and that then, and in that Case, every Presentment so made by any such Justice of the Peace upon his own Knowledge and View, and allowed by the said Court, shall be as good, and of the same Force, Strength, and Effect in the Law, as if the same had been found and presented by the Grand Jury, and afterwards upon a Trial adjudged to be true by the Verdict of a petit Jury of twelve Men upon Oath, and that for every such Default so presented and allowed, the Justices of the Peace in the same General Quarter-Session of the Peace, shall hereby have Authority immediately to assess on the Persons chargeable with such Repairs, such a Fine, as to them or the major Part of them shall be thought sufficient to repair and amend such Highways, Bridges, Causways, Streets or Pavements, and also to order and direct the Repair and Amendment thereof, with such Materials, and in such Manner, and within such Time, as the said Court shall think proper, provided always, that the Fine or Fines so to be assessed by the said Justices, shall not (over and above the Statute-Work, to be done and performed as in this Act is before directed) in any one Parish or Place, and in any one year, exceed the Rate of Six-pence in the Pound, of the yearly Value of the Houses, Lands, Tenements or Hereditaments, chargeable to the Repairs of the said Highways, Bridges, Causways, Streets or Pavements, so presented and allowed as aforesaid, and the Clerk of the Peace of the said County, City, Liberty or Place, shall make out Estreats indented, of all such Fines so assessed, and shall deliver one Part thereof to the Bailiff, High Constable, or other Peace-Officer of the Hundred, Liberty, or Place, wherein such Highways, Bridges, Causways, Streets, or Pavements lie, who shall Demand such Fine or Fines, of some one or more of the Occupiers of the Houses, Lands, Tenements, or Hereditaments, in such Parish, or Place, and chargeable to the Repairs of such Highways, Bridges, Causways, Streets, or Pavements, so presented and allowed as aforesaid, and on their Neglect, or Refusal, to pay the same within ten Days after such Demand, the said Bailiff, High Constable, or other Peace-Officer, shall levy the same by Distress and Sale of the Goods and Chattels of any such Person or Persons, so neglecting or refusing to pay the same, rendering the Overplus, if any there be to the Owner and Owners, thereof, after the Charges of taking, keeping, and felling the said Distress or Distresses, are thereout first deducted and allowed by any one Justice of the Peace, and no Traverse, or other Plea shall be allowed on any such Presentment, but to prove to the same general Quarter-Sessions of the Peace, that such Parish, Place, or Person, ought not to repair such Highways, Bridges, Causways, Streets, or Pavements so presented, or otherwise to prove by two credible Witnesses upon Oath, to the Satisfaction of the same Court, that the said Highways, Bridges, Causways, Streets or Pavements, so presented, have been repaired since the Day on which they were viewed by the Justice who presented them, and are then in good and sufficient Repair.
Upon Presentment of any Highway, by a Justice, if the Want of Repairs shall be owing to Neglect of the Surveyors, the Justices may fine them.
LV.
And be it further enacted, by the Authority aforesaid, That in all Cases where any Parish, or Place, having a Surveyor or Surveyors of the Highways appointed for such Parish, or Place, shall be presented on the Knowledge and View of any Justice of the Peace, or the Inhabitants thereof shall be fined by any Judge of Assize, for not repairing their Highways, Bridges, Causways, Streets, or Pavements, the Justices of the Peace, or any two of them, assembled at any special Session, to be holden, for the Amendment of the Highways of the Division, City, Liberty, or Place, wherein the said Parish, or Place, so presented or fined, doth lie, shall on the Complaint of any one Person, chargeable to the Payment of the said Fine
examine upon Oath, into the Cause and Reason, why such Highways, Bridges, Causways, Streets, or Pavements so presented, or fined, were not in good and sufficient Repair, and if they shall find that the same was owing to the Neglect of such Surveyor, or Surveyors of the Highways, that then, and in that Case, such Surveyor or Surveyors of the Highways, guilty of such Neglect, shall forfeit any Sum not exceeding Five Pounds, nor less than Twenty Shillings, as the said Justices shall think fit.
Justices of the Peace in Cities, Corporations, Boroughs, and other Places are impowered to put in Execution any Part of this Act, and Justices of Peace for Cities, Boroughs, and Market Towns, may appoint Scavengers, and make an Assessment of 6d. in the Pound, for cleansing and repairing the Streets and Pavements.
Vide
1
Geo. Cap.
52.
Sect.
9. 9
Geo.
2.
Cap.
18.
Sect.
3.
LVI.
And be it further enacted, by the Authority aforesaid, that the Justices of the Peace, of all Cities, Corporations, Boroughs, and other Places, having Justices of the Peace, of their own, shall have Power, and they are hereby authorized to put in Execution, any Part of this Act, relating to any Highways, Bridges, Causways, Streets, or Pavements, within their respective Jurisdictions, and where the Justices of the Peace, of any City, Borough, or Market-town, (not having already any particular Provision made for them therein by Law) or the major Part of them at their General or Quarter-Sessions of the Peace,
shall judge it necessary to appoint a Scavenger, or Scavengers for cleaning the Streets, the said Justices shall and may from Time to Time nominate and appoint such Person or Persons, as they shall think fitting for that Purpose, and also may order the Repairing such Streets therein, as they shall judge necessary; and for defraying the Charges thereof, an Assessment or Assessments, not exceeding Six-pence in the pound in any one year, shall and may from Time to Time, be equally made upon all and every of the Occupiers of Houses, Lands, Tenements, and Hereditaments, in such Cities, Boroughs, or Market Towns, and such Assessment or Assessments shall and may from Time to Time be made by such Person or Persons, and levied and collected in such Manner as the said Justices by their Order, at such Sessions, shall direct and appoint in that behalf, and the Money thereby raised, shall be imployed and accounted for, according to the Orders and Directions of the said Justices, for and towards the repairing and cleansing the said Streets from Time to Time, and the said Assessments being allowed under the Hands and Seals of the said Justices, shall and may be levied by Warrant under their Hands and Seals, by Distress and Sale of the Goods and Chattels of all such Person or Persons, as shall not pay the same within eight Days after the same shall be duly demanded of them, rendering the Overplus, if any there be, to the Owner thereof, after the Charges of taking, keeping, and selling such Distress,
shall be thereout first deducted and allowed, by any one such Justice of the Peace.
Fees to be taken by the Clerks and Servants of Justices for Business in the Execution of this Act done out of the Quarter-Sessions.
LVII.
And be it further Enacted, by the Authority aforesaid, That no Clerk or Servant to any Justice of the Peace or other Person shall demand, take or receive of or from any Person or Persons for any Surveyor's Warrant, Information or Complaint, Summons, Order, Determination, Bond, Warrant of Distress or Commitment in the Execution of this Act, by or before any one or more Justice or Justices of the Peace out of the General Quarter-Sessions, any other Fee, Gratuity or Reward than is hereafter allowed, (that is to say) For every Information or Complaint taken in Writing against one or more Persons, one Shilling; For every Summons in Writing, one Shilling; For every Order or Judgment in Writing, made on hearing any Information or Complaint at any special Session, one Shilling; For every Warrant of Distress, one Shilling; For every Rate or Assessment made on any Parish or Place allowed and confirmed by two or more Justices, two Shillings; For every Warrant appointing one or more Persons Surveyor or Surveyors of the Highways of any Parish or Place, two Shillings; For the Bond of a Person appealing from any Order or Determination of the Justices met at any special
Session to the General Quarter-Sessions of the Peace, one Shilling and Sixpence, over and above the Stamp-Duty; For every Commitment to the Gaol or House of Correction of any Person for want of sufficient Distress, one Shilling. For every Copy of any Information or Complaint in Writing, Summons, Order or Judgment, Warrant of Distress, Rate or Assessment, Commitment or Warrant appointing Surveyors, one Shilling each, if the same are demanded; but if no such Copy is required, then no Fee shall be taken; and if any Clerk or Servant to any Justice of the Peace, or any other Person, shall take and receive any greater Fee, Gratuity or Reward for any Business to be done in the Execution of this Act, by or before any one or more Justice or Justices of the Peace out of the General Quarter-Sessions, such Clerk, Servant or other Person, shall forfeit the Sum of ten Pounds, to be levied by Warrant under the Hands and Seals of any two or more Justices of the Peace, assembled at any special Session to be holden for the Amendment of the Highways, by Distress and Sale of the Goods and Chattels of such Clerk, Servant or other Person offending as aforesaid, rendring the Overplus, if any there be, to the Owner thereof, after the Charges of taking, keeping and selling the said Distress, shall be thereout first deducted and allowed by any one Justice of the Peace. And all the said Fees, Gratuities and Rewards shall be paid by the Offender, or by the Persons, Parishes or Places for whose Benefit the
same were made or done, as the said Justices, or any two of them, assembled at any such special Session as aforesaid shall order and direct.
Prosecutions for Neglects, Nusances or other Offences to be commenced within six Months; and no Person punished under this Act shall be punished for the same Offence by Virtue of any other Law whatsoever.
LVIII. And be it further Enacted by the Authority aforesaid, That no Person or Persons shall be punished for any Neglect, Nusance, Misdemeanor, or other Offence against this Act, unless such Person or Persons be prosecuted for the same within six Months after such Offences shall be committed; and no Person who shall be punished for any such Neglect, Nusance, Misdemeanor, or other Offence by Virtue of this Act, shall be punished for the same by Virtue of any other Act or Law whatsoever.
General Issue.
LIX. And be it further Enacted by the Authority aforesaid, That if any Action or Suit shall hereafter be commenced or prosecuted in any Court at Law in
Westminster,
or elsewhere, against any Person or Persons for putting in Execution any Part of this Act, every Person or Persons so sued may plead the General Issue, and give this Act and the special Matter in Evidence; and if the Plaintiff shall become nonsuit, or for fear of further Prosecution shall suffer Discontinuance, or if a Verdict pass against him or her, the said Defendant or Defendants shall recover double Costs for which he, she or they shall have the like Remedy as in Cases where Costs by Law are given to Defendants.
Nothing in this Act shall make void any Determination heretofore made as to the Burthen of Repairing particular Highways.
LX. And be it further Enacted by the Authority aforesaid, That nothing in this Act contained shall alter or make void any Decree or other Determination in any Court of Justice heretofore made as to the Burthen of Repairing any particular Highway, but the same Decree or other Determination shall be and remain valid, as if this Act had never been made.
It may be found necessary to engraft into the above Bill the following Clauses contained in former Acts, but it must be previously known whether or no any other Provisions have been made since those Acts for the Purposes of such Clauses.
Sect.
10
&
11 of 18
Eliz. cap.
10. relating to the King's Ferry in the Isle of
Sheppey.
Sect.
5. of 22
Car.
II.
Cap.
12. relating to the City of
London.
Sect.
16. of 3
W.
III.
cap.
12. about Carts in
London.
Sect.
22. of 3
W. cap.
12. for the Paving of
Kensington.
Sect.
24. of the same Statute relating to the Rates of Carriage.
Sect.
15. of 1
Geo.
1.
Statute
2.
cap.
52. relating to the City of
London.
When this is done, it is presumed that no Inconvenience can follow from the Repeal of
13
Edw.
I.
stat.
2.
cap.
5.
2
&
3
Phil. & Mar. cap.
8.
5
Eliz. cap.
13.
18
Eliz. cap.
10.
29
Eliz. cap.
5. so far only as it makes the Statute of
Phil. & Mar.
perpetual.
22
Car.
II.
cap.
12.
3
Will. & Mar. cap.
12.
7
&
8
Will.
III.
cap.
29.
8
&
9
Will.
III
cap.
16.
1
Geo. stat.
2.
cap.
52.
7
Geo.
II.
cap.
9.
9
Geo.
II.
cap.
18.
sect.
3.
26
Geo.
II.
cap.
28.
FINIS.