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warning any such persons as are not inhabitants entering the caution or carrying them out of town, shall be defrey'd and pay'd by those who received & entertained such person or persons in their houses as aforesaid and shall be recovered as afores for the uses afores", & the town treasurer or select-men afores", are hereby directed and ordered, before they bring their action to exhibit to such who receive and entertain any person or persons in their houses as afores an acco' of the charges arising thereby and upon refusing to pay the same within five days they shall be liable to pay said charges and be deprived of their benefit by their notification tho' given within the twenty days as afores", (this act to continue and be in force for the term of five years and no longer.] *
In 1771 an Act was passed providing that the time within which warning out would defeat a settlement be extended to twelve months, as follows:
WHEREAS in and by an act or law of this province made and passed in the fifth year of the reign of King George the First it is among other things enacted that if any person or persons come to sojourn or dwell in any town within this province or precinct thereof, and be there received and entertained by the space of three months, not having been warned by the constable or other person whom the select-men shall appoint for that end, to leave the place and the names of such persons with the time of their abode there, & when such warning was given them returned unto the court of general sessions of the peace; every such person shall be reputed an inhabitant of such town or precinct of the same, to be relieved by such town in case of need—which time or space of three months is found to be too short for the purposes aforesaid, the select-men in many instances not being able to discover such poor person or persons within that time. For remedy whereof
Be it enacted by the governor, council and assembly that from and after the first day of july next no person or persons shall gain a settlement in any town or parish within this province by dwelling therein without being warned out according to law: For any term of time less than one year.
* Acts and Laws of Province of New Hampshire in New England, edition 1771, Appendix, p. 25.
April 9, 1777, this Act was revived and re-enacted by the State of New Hampshire by “An Act for the re-establishing the general system of laws heretofore in force in this State.” *
February 15, 1791, in “An Act for the punishment of idle and disorderly persons, for the support and maintenance of the poor, and for designating the duties and defining the powers of overseers of the poor,” it was provided among other things that
Every person who hath lived one year in any town or place, shall be deemed an inhabitant of such town or place, unless some time within such year, and before the expiration thereof, such person shall have been by warrant from the selectmen of such town or place directed to any constable thereof (or other person to whom they may think proper to direct the same) warned to depart from such town or place, and the said warrant and the return of such warning made by the person to whom directed, within the time aforesaid, returned to the clerk of the court of general sessions of the peace in the same county, and put on file, which shall always be done by the said clerk, and a minute thereon made of the time of receiving the same. And the said clerk shall receive six pence therefor. Provided always, That nothing in this section contained, shall be construed to extend to persons committed, or lawfully restrained in any town, or to such as shall be sent for education, or to any physician to be healed or cured.
Then followed a provision that the taxing or assessing of any person (warned to depart) for such lands, property, and ratable estate as he might have used, occupied, or possessed, during his residence in such town, should not be considered or construed as entitling the person so taxed or assessed to the rights and privileges of an inhabitant, or operate in any wise to “injure or lessen the full force, validity and effect of such warning.”ť
* Perpetual Laws of New Hampshire, Melcher's edition, 1789, p. 160.
† New Hampshire Laws, 1792, Melcher's edition, p. 304. See also New Hampshire Laws, 1805, p. 300.
On December 20, 1797, an Act was passed with regard to the removal of persons of vicious character having no visible means of support and no settlement.
This provided that such persons might by warrant from the selectmen directed to a constable be warned to depart from a town or place, and, if they neglected to do so for the space of fourteen days after warning, they might be carried to the town or place in which they were last settled. And, if any person so removed should voluntarily return to the town from which they were first carried and remain seven days, they might be apprehended by order of a justice, and on conviction the justice might “sentence him or her to be publicly whipped, not exceeding ten stripes.” The form of warning was set forth in the statute, and stated that the person was “of vicious character, or has no visible means of support,” * as the case may be.
This Act, it will be observed, made a distinction between persons who were merely warned to depart to prevent their obtaining a settlement and those who were of vicious character or had no visible means of support.
The practice under these Acts is shown by the following cases:
In Littleton it was the practice to warn out the newcomers, whether desirable persons or not. This record shows the form of procedure:STATE of New HAMPSHIRE | To LEVI ALDRICH Constable of GRAFTON SS
the town of Littleton Greeting. In the name of the State You are Required to go forthwith to the house of Samuel Underwood now residing in this town and warn the following persons (viz.) Samuel Underwood, Beulah
* New Hampshire Laws, 1805, p. 306.
Underwood, Junior Israel Underwood to Depart out of Town (as they came in without leave) and Trespass no more in said Town. Given under our hands this 29th day of August 1769.
ANSAL HATCH In Henniker all persons coming into town were warned to depart within a specified time. It is said, however, that but little attention was paid to the warning, and in most cases it was hoped there would be no attention paid to it. Occasionally, however, persons took the matter seriously and left the town.*
In Peterboro warning out was practised against all new-comers. The town record shows that December 23, 1763, a warning was issued and served, as follows: PROVINCE OF
December ye 23d 1763 NEW HAMPSHIRES
To James Templeton Constable of this town of Peterborough in His Majesty's name, we command you forthwith warn Jean Culberson now in this place forthwith to Depart out of this town, hereof fail not as you will answer the Contrary At yr Perill. Thomas Cunningham Alexr Robbe Hugh Gregg Selectmen, etc.
December ye 24th 1763, according to the within request, I have Warned Jean Culberson forthwith to depart out of this town etc.
James Templeton, Constable for the Town of Peterborough.†
In Rindge warning out was practised as early as January, 1769, the warrant of warning being issued before the Revolution in his Majesty's name and served and recorded upon the town books.
On June 12, 1776, the town records show that £2 138. 4d. were paid to a constable of the town “for warning forty persons out of the town,” and that in October of the same year 10s. 8d. was paid for warning eight persons out of the town. In 1772 and 1773 fifty-nine persons were warned out by Constable Jonathan Parker, Jr. The learned historian of the town, Ezra S. Stearns, says that many of the persons who were warned to depart became prosperous in business, honored as townsmen, and their descendants have been useful and esteemed citizens.*
* Cogswell, History of Henniker, p. 342. † Smith, History of Peterboro, p. 176.
In Antrim, beginning in 1783, warning out was practised generally, a warrant from the selectmen directed to the persons ordered to depart being served by constable and returned and recorded upon the town records. The historian of the town alludes to this custom as a curiosity at the present time, and says that notwithstanding the warning the parties might remain, and generally were desired to remain, only, in case they became a public charge, the town where they had resided was held for their support. And then he adds, “Happily this law has long since passed away.”+
In Exeter it was ordered in 1665 that all persons who should hire any servant should be chargeable for his support “if it happened that he should be lamed or any way unserviceable made in work during the time for which he was hired, so the town may be free from such charges.”
In August, 1671, it was ordered
That no man shall receive any person or persons into town without the consent of the Selectmen, or security to free the town from any charge that may ensue thereby, upon twenty shillings a month forfeiture; and that no man shall come to inhabit, by purchase or otherwise, without the consent of the Selectmen upon the same penalty. I
* Stearns, History of Rindge, p. 88 et seq.