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sessions, and retained in the hands of the clerk of the peace, as a conclusive record of the settlement, where the receiving parish neglects to appeal. (1)
Of the Removal of the Poor by Pass-Warrants.
As this species of removal is not strictly a part of the law respecting the settlement and maintenance of the poor, it does not require a minute examination in the present work.
It depends upon 17 Geo.II. c.5. s.7. s.8. s.10., 32 Geo.III. Statutes reguc.45. s.l. s.3. s.4. s.5. s.6. s.7. (2), which preserve the ancient distinction already observed upon, between the vagrant and impotent poor. (3)
These laws only respect persons who are in a state of Respect only actual vagrancy, such as they describe. No other persons state of va can be sent by a pass, even at their own request (4); but they must be regularly removed to their place of settlement, by an order of two justices, under 13&14 Car.II.
others removable thereby.
The 32 Geo.III. c.45. s. 1. recites, that great abuses 35 Geo.III. are committed in conveying, from one place to another, by passes, persons who were not rogues and vagabonds, and enacts, by way of remedy, that all rogues, or vagabonds, when ordered to be passed, shall be either publicly whipped, or imprisoned in the house of correction till
(1) See ante, 147. The proper officer is the custos rotulorum. Per Holt C. J., Skin. 528, 529., the clerk of the peace being his deputy to this purpose. See 37 Hen. VIII. 1. 1W.& M. c.21. s. 5. Harcourt v. Fox, Show. 429. 506. 516. 536. Show. Par. Ca. 163. 4 Mod. 167. (2) See Vol. III.
(3) Ante, Vol. I. 268.
(4) Rex v. Welcham, 2 Bott, 658. Pl. 721.
Must be a con
viction to warrant a pass.
Distinction between passes and orders of removal.
13 Geo.II. to operate only on vagabonds.
the next sessions, or for a shorter period, at the justice's discretion, but not for less than seven days. (1)
By the express words of this statute, the party must not only have committed an act of vagrancy, but be convicted thereof, before he is removed under a pass. (2)
The distinction between passes and orders of removal is thus clearly explained by Lord C. J. Lee. have considered the question, whether, by the late act of 13 Geo.II. c.24. a pass, unappealed from, be as conclusive as an order of two justices unappealed from? and we are of opinion, that this act of parliament is not to receive such construction, or be considered in such manner, as to put a pass upon the foot of an order of two justices, in this respect. In case of an order of two justices, two other justices cannot make a different order, because the authority of each two would be equal; and therefore it would be a clashing of the same authority. But that does not seem to be the present case at all. This act of parliament of 13 Geo.II. was made only in order to secure vagabonds, and to send them to their former place of settlement or birth, if to be found; if not, then to the places from whence they came; and it operates upon such as are actually vagabonds. But the act of 13&14 Car.II. c.12. Car.II. to pre- was made with a view to prevent vagabonds, and therefore it gave power to fix them in their last place of settlement. But, the authorities given by these two acts are very different. On that act of 13&14 Car.II. c.12., though complaint may be made to one justice, yet one justice cannot act singly; here, one single justice may act. So there is a difference too as to the manner of sending them. Upon that act, the removal is to be at the expense of the parish; here, of the county. Another thing that makes one believe the parliament did not intend to put this pass-warrant, signed by a single justice, upon the foot of an order, made
Act 13 & 14
Difference between powers given under these acts.
As to number of justices. Manner of sending.
(1) But as to removal of Irish and Scotch poor, &c. see 59 Geo.III. c.11. s.32. post, 247.
(2) Sect. 1. This point was unsettled prior to this act. See Rex v. Elere Cole, 2 Bott, 670. Pl. 729.
by two justices, is, that though the reason would be the same, yet the same care is not taken as to the provision on appeal; for, upon an appeal from an order of two justices, As to appeal. there is a provision for costs, but none on this act. Here are no costs given on appeal; yet that provision would be as reasonable as in the case of an order of two justices, if it had been intended to be put upon the same footing in all other respects; but upon appeals from orders of two justices, As to costs. costs are payable. Now, it would be something extraor dinary, and cannot well be conceived to have been the sense of the legislature, that a person, being sent by one justice of peace, shall have the same effect as if sent by two, and yet that there should not be the same remedy upon appeal. Therefore, we are of opinion, that the act made in relation to vagrants, and the manner of passing them, was in a different view from that which was calculated for the fixing of settlements; and, that the act is only calculated to convey them to their settlement, if it can be found; or (in cases where their settlement is not found), only to remove them to the place of their birth, or the abode of their parents, or where last found begging, &c. there to be provided for according to law; and that provision is, "to keep them till their last legal settlement can be discovered, but no longer." And then they will be subject to a removal, by virtue of the former act, to their place of last legal settlement; on which removal an appeal will lie, subject to costs." (1)
It has been determined therefore, not only that a removal Want of apunder a vagrant-pass is not conclusive against the parish to grant-pass is which the removal is made, by not being appealed from (2), not conclusive, but that no appeal lies to the quarter sessions against it. (3) but a general appeal does For the 17 Geo.II. c.5. did not mean to give an appeal not lie against against a vagrant-pass, which is inconsistent with the it. eleventh section of it. If the sessions should, upon such
(1) Rex v. Stansfield, Burr. S. C. 205. 2 Bott, 658. Pl. 722. (2) Rex v. Stansfield, supra, (1). Rex v. Upmerden, Burr. S. C. 214. (3) Rex v. Ringwould, Burr. S. C. 840. Rex v. St. Lawrence Jewry, Cald, 18.
Quære, if made
or in case of a
appeal, enter into the merits, they could not send him back to the place where he was only a vagrant, nor to any other; he cannot be removed from the place to which the pass has sent him by any other method than an original order of two justices. The proper subject of an appeal is, an adjudication; a pass only recites, "that it appears upon examination of the vagrant:" it is not such a positive adjudication as there is in an order of removal by two justices. There is no reason for an appeal in such a case, nor hardship upon the parish to which the vagrant is passed; for as soon as they can find out where his legal settlement is, if it really is not with them, they may remove him to it by a common order of removal. (1)
The court in the foregoing decision expressly stated, that by the vagrant, the appeal before them was only a general appeal from a foreigner, un- pass; and declared, in a subsequent case, that they did not give any opinion whether it would not lie, if the vagrant himself appealed against such a pass, or if the person sent by it were a foreigner. (2)
Of suspending Orders of Removal and Pass-Warrants.
MAGISTRATES have obtained powers to suspend the execution of orders of removal and vagrant passes by the humane provisions of 35 Geo.III. c.101.
It is enacted by section 2, " And whereas poor persons are often removed or passed to the place of their settlement during the time of their sickness, to the great danger of their lives for remedy whereof, be it further enacted, by the
(1) Ib. But Rex v. Justices of Sussex, Burr. S. C. 844. seems contra; and in Rex v. Stansfield, and Rex v. Upmerden, ante, 239. (2), it appears to have been taken for granted, that an appeal would lie, although a pass unappealed from was not conclusive.
(2) Rex v. St. Lawrence Jewry, ante, 239. (3).
authority aforesaid, that in case any poor person shall from henceforth be brought before any justice or justices of the peace, for the purpose of being removed from the place where he or she is inhabiting or sojourning, by virtue of any order of removal, or of being passed by virtue of any vagrant-pass, and it shall appear to the said justice or justices, that such poor person is unable to travel, by reason of sickness or other infirmity, or that it would be dangerous for him or her so to do, the justice or justices making such order of removal, or granting such vagrant-pass, are hereby required and authorized to suspend the execution of the same, until they are satisfied that it may safely be executed without danger to any person who is the subject thereof; which suspension of, and subsequent permission to execute the same, shall be respectively indorsed on the said order of removal or vagrant-pass, and signed by such justice or justices. (1)
The words of the act are, "if any poor person shall be brought before any justice." To construe these words in their literal sense would prevent the suspension of orders of removal in cases where it is most necessary that it should take place, namely, when the pauper cannot, from sickness or other calamities, be brought before magistrates, and when it might be highly inconvenient, if not dangerous, for a justice to visit them. As this construction would be to give effect to the letter by a repeal of the very object of the statute, and expose the pauper, in cases of extreme sickness or infirmity, to the very mischief the act was intended to remedy; the Court of King's Bench has decided, that as paupers may be removed in some instances, without being brought personally before the justices (2), the operation of such an order may be suspended in the same manner, when required by the circumstances of the case. For the mean
(1) As to the expences of maintaining such paupers pending the suspension of these orders, see post, chap. xxxiv. sect. 1.
(2) But that if he can be brought, it should be done. Per Holt C. J., Comb. 478. ante, 207.