they absolutely neglected the collection, and then it belonged to the owner of the field; and it did not accrue to the poor as a donation but a legal right.
It was thought to be of so sacred a nature, that is was exempted from tithes (Seld. Hist. of Tithes, vol. vi. p. 1087).
It hath been said the established provision for the poor by the stat. 43 Eliz. hath had the effect of abolishing this right, supposing it to have existed. But Lord Hale, Gilbert, and Blackstone had no such idea; they consider it as a subsisting right, without regard to that provision.
Indeed there seems to me to be no ground to support such a notion. I think ever since the settlement of parishes, the poor inhabitants were esteemed as parishioners, and their necessities to be relieved by the parish to which they belonged.
Under the Saxon constitution, they were restrained to vills, and the inhabitants were to be in pledge, or in manupast; the policy of which was admirable, to restrain them from becoming vagabonds, in subjecting those who received them, if they suffered them to continue above three nights, to answer for their misdeeds.
After the institution of parishes, we find in that ancient treatise the Mirrour[1] this paragraph: "It was ordained that the poor should be sustained by the parsons, rectors of churches, and by the parishioners, so that none should die for want of sustenance." This necessarily supposes the residence of the poor. This is strongly enforced by the statute 15 R. 2, c. 6, which, reciting that damages happen to parishioners by approbation of benefices of the same places, enacts, that "upon a [56] licence of appropriation of a parish church, the Ordinary shall ordain a convenient sum to be distributed yearly of the profits of the church, by the appropriators, to the poor parishioners, in aid of their living and sustenance."
The effect of the 43d of Eliz. is to establish a more clear and strict obligation on parishes for the maintenance of the poor; and the very description of the officers is overseers of the poor of the same parish. Since that Act, modes of obtaining settlements in parishes, and for removing or sending the poor thither, have been introduced; but before, it seems the settlement was by birth, and the provisions were first made by the Stat. 22 H. 8 (22 H. 8, c. 12, Rastall’s edition), for sending vagrant or wandering parsons to the parish where born, if it could be known, otherwise where they last dwelled for three years; and by the 39 Eliz. (39 Eliz. c. 4, Rastall’s edition), where born, if known; if not, then to the parish where they last dwelled for the space of one year; and if neither known, then to the parish where they last passed without punishment; so that it is evident they were restrained in point of residence, and the place of birth was the primary object; and there, according to the Mirrour, confirmed by the Act of 15 Ric. 2, their wants and necessities were to be provided for. In this light the recital in the 15th R. 2 of damages to the parishioners, and the provision for future appropriations in aid of the poor, are clear and intelligible.
The Stat, 39 Eliz. rendered begging and wandering abroad inexcusable, but affords no ground for construction to take away the charitable and humane (as Blackstone calls it) provision for the poor, permitting them to gather the derelict ears of corn, after the owner bas carried away the crop. Nor is there a colour to say, that the practice has been discontinued since that statute, or that any such idea occurred to either of these lawyers whose opinions have been quoted.
The etymology of the names which this custom has received in England, plainly proves, that the custom itself was known both in Germany and France. Minshew, in voce Glean, explains them thus:—The French, Glainer, quasi Granér, ie, Colligere Grana; the Belgic, Arenlesen; the Teutonic, Abriegen, ex Abr, Spica, and Lesen, i.e. Colligere; and goes on with the Spanish, &c. Then follows—A Gleaner, or Leaser of Corn; French, Glaneur; Teutonic, Abrlesen; Belgic, Ahrenleser; English, A Leaser.
[57] It is clear to me, the word leasing was brought from the Germans, and gleaning from the Normans; and that from abr proceeds abrish, used in many parts of England for stubble.
Plato says, "Qui intelligit nomina, res etiam intelligit;" and Isidorus, "."
In the case of The King v. Price, 4 Burr. 1927, Mr. Justice Hewit says, "The right of leasing does appear in our books (he must mean in Trials per Pais, and Gilbert);
- ↑ Ch. 1, p. 14. This passage is cited in 3 Inst, 103.
