SCHEME, &c.

clerk, by order of the deputation in the journal of their proceedings. And if any cafe shall occur, wherein the faid overfeer may not find himself sufficiently authorised to determine, he shall apply to the deputation at their next meeting, who shall fend two of their number to his afflirtance, who shall decide such matter according to law, sign their decision, and give it in to the deputation, leaving a signed copy thereof with the faid overfeer.

Art. V. In the general, and all other meetings of the justices and commissioners, held in consequence of this law, the clerk of the fupply for the time being, shall serve as their clerk, take the oath de fideli, keep a regular journal of their proceedings, and a book wherein he shall state their accompts; both which shall be open for the perusal of any heritor in the county. In consideration of which, and for such other fervices, as he may be required to perform by this law, he shall at the general meeting in April, receive an order for the payment of pounds fterling, as his Salary for the preceding year.

Art. VI. The minifter of every parifh shall make up a lift of all men therein, from the age of fixteen years to fixty, containing the name, occupation, and place of abode of each perfon. Which lift he shall sign and transmit to the parifh overfeer, on, or immediately before the fifteenth day of May yearly, under the penalty of fterling for each day the fame shall remain undelivered after that date.

And if the faid lift shall be found to be defective, as not containing the names, &c. of all fuch perſons living within the parifh, as are fubject to the statute labour, the faid minifter ſhall be liable to a penalty of fterling.

And if the church ſhall happen to be vacant, ſo that there is no parifh minifter, the conftables refiding within ſuch parifh ſhall makeup, and give in the faid lift to the parifh overfeer, on, or immediately before the fifteenth day of May as aforefaid.

Art. VII. Every tenant, cottar, day labourer, manufacturer, tradeſman, or dealer, their fons, men ſervants, and lodgers, from the age of fixteen years to fixty, ſhall, by themselves, or others for them, work on

OBSERVATIONS and QUOTATIONS, &c.

Receive an order for the payment of, &c.) It is thought reafonable, Art. V. that the clerk ſhould be paid for his trouble and attendance in the execution of this law, without regard to what he may receive as clerk of fupply.

The minifter of every parifh, &c.) The minifter of the parifh, by Art. VI. virtue of his office, is obliged to enquire into the religious principles of his parifhioners, and to keep a lift of thate who are fit for examination, which comprehending all ſuch as come under the defcription of this law, he is therefore thought to be the moſt proper perſon to make up the lift for the parifh overfeer, without which, as the people cannot be ſummoned to the work, ſo neither can the parifh overfeer make the proper diſtribution thereof.

Under the penalty of, &c.) The fine propoſed for not delivering the lift in proper time, is 5 s. fterling per day.

Shall be liable to a penalty of, &c.) Many inconveniencies will follow, if the lift be not drawn up with care and accuracy; and the public will be defrauded of the labour of thate perſons who are omitted, or not rightly deſigned therein; for which reaſon, it is propoſed to make the penalty 2 l. fterling in this cafe.

D

Witbin

12

SCHEME, &c..

overfeer, that he means to perform that work next day, in defect of which performance, if the fine be not punctually paid, it shall be levied by virtue of a warrant, under the hand of the parifh overfeer, for poinding the readieſt of his goods, which being appriffed on the ground where found, ſhall be offered to fale at the appreſtiate value; proclamation being made thereof before they are fold, the Sunday following at the parifh church door, that fuch goods are to be rouped on the Monday immediately following, that the party may appear and pay the penalty; which having done, the goods ſhall be reſtored; but if fold, the fine, and the charges of the diſtrefs being deduced, the overplus, (if any be) ſhall be returned to the owner.

The money arifing from fines, for work unperformed, ſhall be confidered in law as a fund in the overfeer's hands, sufficient to pay for executing the fame; which if not completed before the day appointed by law for the laſt meeting of the deputation for the year, the parifh overfeer ſhall incur the penalty for neglect of duty.

If, after the work is performed, there is any overplus remaining of fuch fines, it ſhall be paid to the clerk at the next ensuing meeting of the deputation.

ART. XI.

ANY perſon working on the roads, under the direction of an overfeer, of whatever denomination, who ſhall diſobey his orders, give him abuſive language, or otherwife moleſt or interrupt him in the execution of his office, ſhall, upon proper proof of the fact taken on the spot, be ſent, conducted by two or more labourers, to the neareſt prifon; where the keeper thereof, or any magiftrate, upon receiving the information from the faſd overfeer, ſhall be authoriſed and required to detain and commit ſuch offender, for the ſpace of twenty four hours; he ſhall also be ſubject to a penalty of *ſlering* for every ſuch offence; which if not paid within the ſpace of three days after his releafe, the fame ſhall be levied by diſtrefs, and fale of his goods, as directed in the preceeding article, and the charges of the diſtrefs being deduced, the overplus ſhall be returned to the owner.

And if any labourer, or labourers, ſhall refuse to conduct ſuch offender to prifon, or ſuffer him to eſcape, they ſhall be fined in one ſhilling *ſlering* each, to be levied as aforefaid, if not further paid to the parifh overfeer.

FINES

12

OBSERVATIONS and QUOTATIONS &c.

Perform that work next day, &c.) It may be proper upon many occafions to grant this indulgence, which will render poinding leſs frequent, and ſave much trouble and expence.

For poinding the readieſt of his goods, &c.) *Aino 5. George I.*
*chap. 30.*

The money arifing from fines, &c.) To take away the poſſibility of arbitrary proceedings in the overfeers, either in the divifion or execution of the work; if the labourer finds himſelf injured, he may pay the penalty, which being ſomewhat more than the common wages for a man and horſe, the parifh overfeer is fully enabled thereby to pay for performing the work, which might otherwise be left neglected, to the great prejudice of the public.

Any perſon working, &c.) It is abſolutely neceſſary for the public ſervice, that overfeers, of every denomination, be ſupported by the laws in the diſcharge of their duty.

*Subject to a penalty of* *ſlering*, &c.) It is imagined that five ſhillings *ſlering* will be a ſufficient penalty in this cafe.

15

SCHEME, &c.

AN. XII. FINES from justices of the peace; commissioners of supply; heritors, their eldest sons and apparent heirs; such persons as have borne office in the magistracy, or council of boroughs, or market towns; parishes ministers and session clerks; shall be regularly entered by the clerk in the book for keeping the publick accounts, of the true date of their being incurred; together with the name, designation, and residence of the person, and by what breach of the law he has been subjected to the penalty.

Which fines, if not paid within fourteen days after being incurred, shall be funded for at the inftance of the clerk, by fummar action before the judge ordinary; but if not duly entered as aforesaid, and funded for, if not paid within the ſpace of twelve months thereafter, shall preſcribe, and the clerk become reſponſible for the ſum loſt, to the general meeting, or to any heritor in the county.

All other penalties, when not punctually paid, shall be levied by ſummar poinding, as directed in the case of deficient labour, by the overfeer of the parifh where they are incurred, who ſhall account for the fame to the clerk at the next meeting of the deputation.

AN. XIII. THE perſons to whom the execution of this law is entruſted, shall be authoriſed and required, to new make, alter, or repair the high ways, in the manner which ſhall be found moſt advantageous for the public ſervice. They ſhall order thate roads to be made in the firſt place, which lead from the ſeveral parifhes, towards the market towns, and ſea ports of the neighbouring counties.

The ſaid roads ſhall be made and kept in repair by the parifhes through which they are to pafs; and being carried on, and completed to the limits of the county, the overſeer of the parifh thro' which ſuch roads laſt went, ſhall signify the fame to the ensuing meeting of the deputation, to be by them communicated to the deputation of the neighbouring county, who, in conſequence thereof, ſhall illue out orders to the parifhes, thro' which the ſaid roads are intended next to pafs, to carry forward the fame with all convenient ſpeed, to the ſaid market towns, and ſea ports; which being completed, ſhall alſo be kept in repair by the ſaid parifhes, and that none ſhould be obli-ged to work without their own parifh, till all the roads within the fame be completed.

The

OBSERVATIONS and QUOTATIONS, &c. 13.

Which fines, if not paid, &c.) If the penalties are not punctually levied, the law will fall into contempt: To obviate which inconvenience, and to take off the odium which might fall on the clerk, it is proposed to compel him to procure:

Shall preſcribe.) Anno 5. Geo. I. chap. 30.

The perſons to whom, &c.) By Charles II. Parl. 2. Seſſ. 1. ch. Art. XIII.
16. the justices of the peace are empowered to change roads; but it is thought neceſſary, that they should alſo have powers to make new roads; and that the commiſſioners of ſupply be joined with them therein, as they are joint commiſſioners for executing this law.

The ſaid roads ſhall be made, &c.) When the loſs of time, and other inconveniencies and diſadvantages, in carrying the people to work on the roads out of their own parifhes, are duly weighed, it will be found for the advantage of the public, that each parifh make, and repair the roads within their own limits: For tho' by this means, one parifh or county will be oftentimes employed in making roads for another, yet being affiſted in turn, upon the whole, no more will fall to the share of any one parifh or county, than its due proportion of the public roads through-out the kingdom.

F

And

15

SCHEME, &c.

each other, and hold a joint meeting on the ground; and having viewed and considered the fame, shall divide the work in the manner which to them shall appear most equitable, giving to the bordering parishes next adjacent, in each county, their due proportion on thereof, to be performed by the said parishes, under the direction of their respective overseers.

Art. XVIII. WHERE a road is to pass through a bog, or morass, or grounds subject to be overflowed, it shall be lawful to make such a road sixty feet wide, in order to afford materials to raise the fame to a proper height above the common level.

Art. XIX. WHERE stones, gravel, or other materials are wanted, proper for making a road, they shall be taken from that place, from whence they may be transported to such road with the least expence or inconveniency; and the damage incurred by the proprietors, or occupiers of the lands from which such materials are taken, shall be apprised by two parishes overleers to be named by the deputati- on, who shall give immediate orders to the clerk, to pay the sum of the appreciation to the peroffs having right; provided always, that when materials are wanted for making a road, it shall not be lawful to search for, or take the fame from gardens, gravel walks, or policy, without a permission in writing from the proprietor thereof for doing.

Art. XX. IN making a new road towards any place, through grounds where there has been no road before, the old road thereby rendered un- necessary, together with the new one to be made, shall be sepa- rately apprised by two parishes overleers, to be named by the de- putation: The old road shall become the property of the heritor of the lands through which it passes, for which he shall pay the ap- prised value to the clerk, who shall pay for the fame before the judge ordinary, failing payment by such proprietor, within fix months from the date of the appreciation: And the deputation, at their first meeting after the said appreciation is made, shall or- der the clerk to pay to the proprietor of the ground for the new road, the apprised value thereof, as full compensation.

Art. XXI. NO ROAD shall be made nearer than three hundred yards to the house or gardens of any heritor, liferenter, or wadfetter, with- out his or her permission in writing. And if any of the said per- fons shall incline to remove a road already made, they may ap- ply

15

division of the work, in a cafe where different counties may be concerned, the deputations of such counties are appointed to meet on the ground, and divide the work themselves: But if, notwithstanding of this precaution, any peroffs shall find they are injur- ed, they may first lay their complaint before thate to whom the execution of this law is committed, and afterwards, before the court of Jeflion, or the Lords of Juiticiary, at their circuit.

In making a new road, &c.) If by changing the old for a new road, the property of any perfon is encroached upon, by Charles II. Parl. 2. Seff. 1. ch. 16. the damage being estimated upon oath, by three justices of the peace, is to be paid out of the money to be levied from the county. The security to the property of the lieges, is much greater by the prefent scheme; which, besides re- quiring the reftimony of two parifh overleers in the valuation to be made of ground taken for the use of the public, allows also of an appeal, firft before a court of justices, and afterwards, be- fore the fupreme judges of the nation.

No road, &c.) By Charles II. parl. 2. Seff. 1. chap. 41. any he- Art. XXI. ritor, wadfetter, or liferenter, upon application to the justices of the peace, may have a road removed two hundred ells from his planting and inclosures, provided such road be continued within his

G

[ 24 ]

REASONS and OBSERVATIONS.

Observation
on art. I.

BY the British Statute, George I. ann. 1. Seff. 1. Ch. 48. Vill and Hamlet not being words used in this kingdom, it is proposed to add to the description made by the law of the persons subject to the penalties, " Those persons also who occupy or possess " lands or houfes." The lateft penalties enacted in Scotland, are James VII. Parl. 1. Seff. 1. Ch. 39.

Reason for
art. II.

The inhabitants of the neighbourhood, if they are not the actual destroyers themselves, are most likely to know those who are. If they are subjected to the penalties, they are thereby interested in the safety of the trees, and the recourse takes off the feeming hardship.—After the experience of a few prosecutions, it is probable the parish will refund without proceeds. The above mentioned act of George I. seems to appoint the same penalties in Scotland as in England, but ordains such damages to be recoverable in Scotland, in the same manner and form, as damages in other cases of riot are to be recovered by the laws there: But it is greatly to be wished, as the law seems to admit of a double interpretation in this case, that the penalties were fixed, by making the proper reference to the Scots Statute, by which the said penalties are to be determined, and that it were clearly said, whether the parish, occupiers and possessors of lands, be liable for the same, or only for the real damage incurred.—The penalty ordained by the British Statute, would seem to be no more than the present value of the trees cut, damaged or destroyed: The present value may be a mere trifle, tho' the future may be of great importance: Such is the aversion of the common people in Scotland to planting and inclosures, that nothing but high penalties, and strict and speedy execution of the laws, can make the raising or defending them practicable.

Reason for
art. III.

Suits at law before inferior courts in Scotland being extremely tedious, dispatch will make the law respected, discourage riot and such crimes.

Reason for
art. IV.

Intimation at the parish church is the usual and most effectual method of informing the people: To be subjected to penalties without knowing their danger, might be justly thought a hardship.