for the relief of the impotent through infancy or sickness; and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2. overseers of the poor were appointed in every parish. 43 By virtue of the statute last mentioned, these overseers are to be nominated yearly in Easter week, or within one month after (though a subsequent nomination will be valid`,(m) by two justices dwelling near the parish. They must be substantial householders, and so expressed to be in the appointment of the justices. (n) 45 Their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other being poor, and not able to work: and secondly, to provide work for such as are able, and cannot otherwise get employment; but this latter part of their duty, which, according to the wise (43) By this statute, a parish was the only district bound or entitled to the separate maintenance of its poor, but townships and villages, whether parochial or extra-parochial, are now brought within the same system, by the construction put upon the statute 13 & 14 Car. II. c. 12. s. 21. 1 Term Rep. 374. (44) By 43 Eliz. c. 2. s. 8. officers of corporate towns, and aldermen of London, have the authority of justices of the peace for the purpose of appointing overseers. (45) In a late case, where A. B. & C., carrying on trade in partnership, had a dwelling-house, yard, and premises, in a parish in London, all the partner's were in the habit of frequenting the premises daily, for the purpose of business, but none of them resided there, the dwelling-house was inhabited by a clerk, who managed the business for them, but the rent, rates, and taxes, were paid by the firm, it was held that each of the partners was a householder, within the 43 Eliz. c. 2. and liable to serve the office of overseer. 1 B. & Cres. 178. 4 Burn J. 24th. ed. 10, 11. In another case, two day-labourers, with some land annexed to their cottages. of whom only one was a proprietor, and the other a farmer's servant, were held to be competent overscers, although the appointment of such men might be improper in a place where there were a great many opulent farmers. 2 T. R 406. 1 Bott, 5. And a woman may be appointed, where the necessity of the case requires it. 2 T. R. 395. The justices are to determine what is a case of necessity. T. R. 395. 1 Bott, 11. 1 Burr. 245. 1 Nol. 50. The court of K. B. will quash an appointment of persons not substantial householders. 2 Stra. 1261. 1 Nol. P. L. 53, 1 B. & C. 131. notis. The appointment is no longer limited of necessity to householders living in the parish or township, for by 59 Geo. III. c. 12. a power is given for the appointment of non-resident overseers; and by the 7th section of that act, assistant overseers may be appointed, and security taken. As to the manner of enforcing an appointment of overseers to be made, this may be done by mandamus from the court of K. B. 1 Nol P L. 44. If an appointment has been already made, then the overseers may be compelled to take the office by indictment, 2 Stra. 1146. 2 Sess. Ca. 187. 1 Nol. 38., or generally by obtaining a confirmation of the appointment from the court of King's Bench. 1 Bott, 68. 4 Burn J. 24 ed. 26. On the other hand, when the object is to avoid the appointment, that object may be obtained, by defending an indictment for refusal of the office, or by bringing an action of trespass or replevin for taking a distress under a rate made by illegal officers; and the appointment may be directly impeached, either by the overseers themselves, or by any of the parishioners, (Cro. Car. 92. I Boit, 32. 7 East, 1, &c. 4 Burn J. 24 ed. 26.) by appeal to the general quarter sessions (see 15 East, 207, 1 B. & A. 210.) against the appointment itself, (43 Eliz. c. 2. s 6. 17 Geo. II. c. 58. 9. 4.) or incidentally on an appeal against an order of removal made to an extra-parochial place having no officers, or to a township or other minor district, when the overseers ought to have been appointed for the parish at large, or when, having been appointed for the parish at large, they ought to have been appointed for a township, (Burr. 35. Fost. 219. 1 Bott, 35. 45. Cald. 28. 248. 2 Bott, 690.) or by an appeal against an order of removal made from a wrong district. 2 Salk. 487. And an appointment by two justices may be removed into the court of K. B. by certiorari, without appealing against it to the quarter sessions; and the court will go into the question, upon affidavit whether the place for which the appointment is made be a township or vill; and if it appear by the affidavit that it is not, and be not stated as such, or that it is reputed to be such, the court will quash the appointment. 4 M. & S. 378. 3 T. R. 38. 2 East, 244. Also the propriety of an appointment may be questioned on a mandamus to the justices, com. manding them to appoint proper overseers. 8 Mod. 39. 1 Nol. P. L. 37. n. 4. and 4 Burn J. 24 1.29. Chitty. regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes, they are empowered to make and levy rates upon the several [361] inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes. The two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them only. 2. To find employment for such as are able to work: and this principally by providing stocks of raw materials to be worked up at their separate homes, instead of accumulating all the poor in one common workhouse; a practice which puts the sober and diligent upon a level (in point of their earnings with those who are dissolute and idle, depresses the laudable emulation of domestic industry and neatness, and destroys all endearing family connexions, the only felicity of the indigent. Whereas, if none were relieved but those who are incapable to get their livings, and that in proportion to their incapacity: if no children were removed from their parents but such as are brought up in rags and idleness; and if every poor man and his family were regularly furnished with employment, and allowed the whole profits of their labour :-a spirit of busy cheerfulness would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary for daily subsistence; and the peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity), would then, and then only, be entitled to support from his opulent neighbours. This appears to have been the plan of the statute of queen Elizabeth; in which the only defect was confining the management of the poor to small parochial districts, which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the place of their settlement but such as were unable or unwilling to work, and those places of settlement being only such where they were born, or had made their abode, originally for three years, (o) and afterwards (in the case of vagabonds) for one year only. (p) After the Restoration a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing [362] the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive law-suits between contending neighbourhoods, concerning those settlements and removals. By the statute 13 & 14 Car. II. c. 12. a legal settlement was declared to be gained by birth; or by inhabitancy, apprenticeship, or service, for forty days: within which period all intruders were made removable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 101. The frauds naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 Jac. II. c. 17. which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new o Stat. 19 Hen. VII. c. 12. 1 Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5. p Stat. 39 Eliz. c. 4. regulations, suggested the necessity of a remedy. And the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had. 46 47 The law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, 1. By [363] birth; for, wherever a child is first known to be, that is always pri ma facie the place of settlement, until some other can be shewn. (9) This is also generally the place of settlement of a bastard child; (r) for a bastard, having in the eye of the law no father, cannot be referred to his settlement, as other children may. (s) But, in legitimate children, though q Carth. 433. Comb. 364. Salk. 485. 1 Lord Raym. 567. r See p. 459. s Salk. 427. (46) By 13 & 14 Car. II. c. 12. all persons who are likely to become chargeable, unless they settle upon a tenement of the yearly value of 101. may be removed to the places where they are legally settled. It has been observed, that this statute was a great infringement of magna charta and the liberty of the subject; as nothing can be more cruel or impolitic than to prevent a person from residing in that situation where, by his industry and occupation, he can best procure a competent provision for himself and his family. To alleviate, in some degree, the hardship and inconvenience introduced by that statute, the legislature had provided by the 8 & 9 W. III. c. 30. that if the major part of the churchwardens and overseers of any parish or township will grant a certificate under their hands and seals, attested by two witnesses, and allowed and subscribed by two justices, acknowledging a person and his family therein specified to have a legal settlement in their parish or township, and shall direct it to some particular parish or township: such person, having delivered this certificate to the parish officers where it is directed, then neither he nor his family are removable from thence till they are actually chargeable. 6 T. R. 552. But as the object of the certificate was to prevent him from bringing any encumbrance upon the parish where he is thus permitted to reside, by the 9 & 10 W. III. c. 11. he is restrained from gaining a settlement where he lives under the protection of the certificate by any means whatever, except by renting a tenement of the yearly value of 101. and by a residence in the parish for forty days, or by executing an annual office. But, besides these two cases mentioned in the act, it has been held, that a certificate person may gain a settlement by residing upon (or having in the parish where he resides) any estate whatever of his own, provided, if it has been actually purchased by him, he has bona fide paid 301. for it. Str. 163. 1193. Burr. S. C. 220. A certificate is conclusive upon the parish granting it, with respect to the parish to which it is granted or first delivered; but it is not so with regard to other parishes, for though it will be prima facie evidence against the parish granting it, yet it may be repelled by other evidence; and they may be permitted to shew that they gave it under a mistake, and in their own wrong. 4 T. R. 251. A certificate extends to children born after it is granted, but not to the grandchildren of the pater familias. 4 T. R. 797. But the object of granting certificates is now put an end to by the 35 Geo. III c. 101. which enacts that no person shall be removed by an order of removal till he becomes actually chargeable. But every unmarried woman with child shall be deemed to be actually chargeable, and also all persons convicted of any felony, and rogues, vagabonds, and idle or disorderly persons, and persons of evil fame, or reputed thieves not giving a satisfactory account of themselves, may be removed, as if they were actually chargeable. And where a pauper is ordered to be removed by an order of removal, or a vagrant pass in case of the sickness of the pauper, the justices making such an order may direct the execution of it to be suspended; and in the case of an order of removal, the expenses of the maintenance of the pauper during such suspension shall be borne by the parish to which the order of removal shall be made. And if an unmarried woman is delivered of a child during such suspension, it shall be settled in the parish which at the time of the birth was the legal settlement of the mother. See the late vagrant act, 5 Geo. IV. c. 73. s. 20. Chitty. (47) It may be as well here to notice a statute affecting settlements in general, viz. the 54 Geo. III. c. 171. By sec. 1. all enactments and provisions in respect of gaining settlements contained in any local acts are repealed; sec. 2. persons born in prisons, or houses licensed for the reception of pregnant women, cannot gain a settlement thereby; sec. 3. a provision is made respecting settlements by reason of birth in any poor-house or house of industry belonging to united parishes; sec. 4. prisoners for debt or contempt cannot gain settlements whilst in custody; sec. 5. no tollgate-keeper, or person residing in any tollhouse, can gain a settlement thereby; sec. 6. no person maintained in any charitable institution can gain any settlement by any re sidence therein. By 59 Geo. III. c. 12. a building pur hased or hired under the authority of that act shall be taken to be in the parish, &c. hiring it in questions of settlement. Chittu. 48 the place of birth be prima facie the settlement, yet it is not conclusively so; for there are, 2. Settlements by parentage, being the settlement of one's father or mother: all legitimate children being really settled in the parish where their parents are settled, until they get a new settlement for themselves. (t) 4 A new settlement may be acquired several ways; as, 3. By marriage. For a woman, marrying a man that is settled in another parish, changes her own settlement: the law not permitting the separation of husband and wife. (u) But if the man has no settlement, her's is suspended during his life, if he remains in England, and is able to maintain her; but in his absence, or after his death, or during (perhaps) his inability, she may be removed to her old settlement. (v) 49 The other methods of acquiring settlements in any parish are all reducible to this one, of forty days' residence therein: but this forty days' residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but made notorious, by one or other of the following concomitant circumstances. The next method therefore of gaining a settlement, is, 4. By forty days' residence and notice. For if a stranger comes into a parish and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered), and resides there unmolested for forty days after such notice, he is legally settled thereby. (w) For the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that in such case the parish would take care to remove him. But there are also other circumstances equivalent to such notice: therefore, 5. Renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, [364] u Stra. 544. w Stat, 13 & 14 Car. II. c. 12. 1 Jac. II. c. 17. 3 & 4 W. & M. c. 11. (43) If the parents acquire a new settlement, the children also follow, and belong to the last settlement of the father, or, after the death of the father, to the last settlement of the mother whilst she is unmarried, till they are emancipated or become independent of their father's or mother's family, and in that case they have that settlement which their parent had at the time of emancipation. "The cases of emancipation have always been decided on the circumstances either of the son's being twenty-one, or married, or having gained a settlement in his own right, or having contracted a relation, which was inconsistent with the idea of his being in a subordinate situaChitty. tion in his father's family." Per lord Kenyon, 3 T. R. 356. 8 T. R. 479. (49) In the absence, or after the death of the husband, in that case the wife and her children may be removed to her maiden settlement; but it seems fully determined that they cannot be separated or removed from the husband. (Burr S. C. 813.1 Stra. 544.) The consequence is, that the whole family must be supported as casual poor in the parish where they may happen to want relief. In the removal of a wife or a widow, it is sufficient in the first instance to prove her maiden settlement. Cald. 39. 236. Sir James Burrows (Burr. S C. 122.) said on a case of Shadwell v. St. John's Wapping, s. 9 Geo. I. relating to the wife's settlement being suspended, being cited, that he did not find it in any printed book, or manuscript, but that it seemed to be the same case which he had heard reported in the form of a catch to the following effect: A woman having a settlement Married a man with none; Quoth Sir John Pratt*ber settlement Living the husband; but him dead, It doth revive again. Chorus of PUISNE judges. Living the husband; but him dead, It doth revive again. Then Lord Chief Justice. See 4 Burn J. 25 ed. 315. n. Chitt gains a settlement without notice, (x) upon the principle of having substance enough to gain credit for such a house. Being charged to and paying the public taxes and levies of the parish (excepting those for scavengers, highways, (y) and the duties on houses and windows); (2) and, 7. Executing, when legally appointed, any public parochial office, for a whole year in the parish, as churchwarden, &c. are both of them equivalent to notice, and gain a settlement, (a) if coupled with a residence of forty days. 8. Being hired for a year, when unmarried and childless, and serving a year in the same service; 50 and, 9. Being bound an apprentice, give the servant and apprentice a settlement without notice, (b) in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. 10. Lastly, the having an estate of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, &c. is a sufficient settlement: (c) but if a man acquire it by his own act, as by purchase (in its popular sense, in consideration of money paid,) then unless the consideration advanced bona fide be 301. it is no settlement for any longer time than the person shall inhabit thereon. (d) He is in no case removable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement. All persons not so settled may be removed to their own parishes on complaint of the overseers by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish into which they have in truded unless they are in a way of getting a legal settlement, as [365] by having a hired a house of 101. per annum, or living in an annual service; for then they are not removable. (e) And in all other cases, if the parish to which they belong will grant them a certificate acknowledging them to be their parishioners, they cannot be removed merely because likely to become chargeable, but only when they become actually chargeable. (ƒ) But such certificated person can gain no settlement by any of the means above mentioned, unless by renting a tenement of 101. per annum, or by serving an annual office in the parish, being legally placed therein neither can an apprentice or servant to such certificated person gain a settlement by such their service. x Stat. 13 & 14 Car. II. c. 12. z Stat. 21 Geo. II. c. 10. 18 Geo. III. c. 26. y Stat. 9 Geo. I. c. 7. § 6. (50) A widower or widow with children emancipated is considered as childless, for such children cannot follow the settlement gained by their parent's service 3 Burn. 445. If an unmarried man is hired for a year, but before he enters upon the service, or during the service, marries, he may gain a settlement. 3T R. 382. But this will not extend to the continuance in the service a second year; for he was married when this new contract was expressly or impliedly entered into. Cald. 54. Hiring for any time certainly less than a year will not be sufficient; but from Whitsuntide to Whitsuntide is considered a year, though it will frequently happen to be a period less than 365 days. To gain a settlement as a servant there must be a hiring for a year, and a continued service for a year; but it is not necessary that the service should be subsequent to the hiring; for if there is a continued service for eleven months or any other part of a year, by any number or modes of hirings, or with any difference of wages, and aftewards a hiring for a year and a service to complete the year, a settlement is gained. Cald. 179. There seemed to be great reason to think that the service subsequent to the hiring for a year should at least be 40 days; but it is now decided that that is not necessary. (5 T. R. 98) The settlement of a servant and an apprentice is where they last reside 40 days in their master's employ; and where they do not reside 40 days successively at one place, but alternately in two or more parishes, and more than 40 days upon the whole in each in the course of a year, the settlement is in that parish in hich they sleep the last night. Doug. 633. Christian. |