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magistrates not being within the act, was altogether nugatory, the proper course for the sessions to have pursued would have been not to have quashed the order, but to have dismissed the appeal. However, as they have done substantially right, I think their order ought to be confirmed. (1)
Of Removals which are neither to the Place of Settlement,
under 13&14 Car.II. c. 12., nor as Vagrants by Passes under 17 Geo.II. c.5. s.7., and the subsequent Statutes.
Dr. Burn observes, “ that, besides the general form of Removals removal to the place of settlement, there may be other re- strates' ge
under magimovals, as of wives to their husbands, children to their neral power. parents, apprentices or servants to their masters; of persons brought illegally from one parish to another. But this is not in pursuance of the statute 13&14 Car.II. but of the general power of the justices in regulating matters relating to poor persons." (2)
The object of such orders is solely for the party's removal, and they should not contain an order of maintenance (3), which magistrates have no authority to make under these circumstances.
A constable without warrant brought a child from Child removed Broughton to Banbury. Two justices of Banbury made without waran order (reciting the fact) to return the child to Broughton, there to be provided for according to law. The court held the order good for returning the child to the wrong doers, and, therefore, that part of the order was affirmed; but it ought not to have said to be there pro
(1) Rex o. Chagford, 4 B. & A. 235.
(2) Burn's Just. tit. Poor Removal. This authority is seldom if ever exercised, and they seem liable to abuse, as no appeal lies from them. See also ante, 154. et seq. (3) Rex v. Banbury, Comb. 372.
vided for, but they are to be left to take their course according to law. (1)
Two justices sent S. G. from the parish of Gravesend to to her master, her master, with whom she lived as a hired servant, at the previous to her discharge. parish of Chadwell, in Essex, concluding the order, “ until
she shall be discharged.” The justices of Essex sent her back to Gravesend. It was insisted the second order was ill, being made before the time for appealing against the first order expired. Sed non allocatur ; for the first order was to send her to her master, from which no appeal lies, and not to send her to the parish of Chadwell, as the place of her settlement. (2)
Removal after Two justices removed a man from Honiton to South order quashed Beverton. The parish of S. B. appealed, and the sessions on appeal.
reversed the order; now, two justices may remove him to H. again; for it is but in execution of the order of sessions, which could not otherwise be done, because it is out of the jurisdiction of the sessions. (3)
As these orders are not made in pursuance of the 13814 Car.II. which gives a right of appeal to the parties aggrieved by removals under it, no appeal lies against them. (4)
Of the Removal of Poor Persons born in Scotland, Ire
land, and the Isles of Man, Jersey, and Guernsey, under 59 Geo.III. c.12. s.33.
The legislature has thought it expedient, by a recent enactment, to make a wide distinction between poor per
(1) Rex v. Banbury, Comb. 572.
(3) Honiton v. South Beverton, Comb. 401. See also Reg. v. Milverton, 7 Mod. So a poor woman, improperly removed by a vagrant-pass, was sent back by an order of two justices. Rex v. Welchman, 2 Bott, 658. Pl. 721. And see the reasoning of Aston and Ashhurst Js., Rex v. Ringwould, Burr. S. C. 840. ante, 239.
(4) Rex v. Gravesend, supra, (2); and see ante, 240.
sons born in Scotland and Ireland, or in the islands of Man, Jersey, and Guernsey, and all persons born elsewhere, when they have not acquired a settlement in England, and require relief as casual poor.
By 59 Geo.III. c.12. s.33. it is enacted, that, “ Whereas 59Geo.lll. poor persons born in Scotland and Ireland, and in the isles of Man, Jersey, and Guernsey, frequently become chargeable to parishes in England, and no provision is made for the removal of any such poor person, unless he or she shall have committed some act of vagrancy, and shall be adjudged to be a rogue and vagabond; and no person so adjudged can be lawfully removed without having been first publicly whipped or imprisoned in the house of correction : And whereas it is expedient to authorize the removal of such poor persons, although they may not have committed any act of vagrancy; and to authorize justices of the peace to cause such of them as may be adjudged to be rogues and vagabonds to be conveyed by a pass, without having been first whipped or imprisoned ; Be it further enacted, That it shall be lawful for two justices of the peace, and they are hereby required, upon complaint of the churchwardens and overseers of the
of any parish, that any person born in Scotland or in Ireland, or in either of the isles of Man, Jersey, and Guernsey, hath become chargeable to such parish, by himself or herself, or his or her family, to cause such person to be brought before them, and to examine such person, and any other witness or witnesses on oath, touching the place of their birth, or last legal settlement of every such person, and to enquire whether he or she, or any of his or her children, hath or have gained any settlement in that part of the united kingdom called England ; and if it shall be found by such justices that the person so brought before them was born in Scotland or Ireland, or in either of the isles of Man, Jersey, and Guernsey, and hath not gained any settlement in England; and that he or she hath actually become chargeable to the complaining parish by himself or herself, or his or her family; then such justices shall, and they are hereby em
powered, by a pass under their hands and seals, in the form, or to the effect prescribed by the act passed in the seventeenth year of the reign of His late Majesty King George the Second, to amend the laws relating to rogues and vagabonds (mutatis mutandis), to cause such poor person, his wife, and such of his or her children so chargeable as shall not have gained a settlement in England, to be removed to the place of his or her birth, or last legal settlement, in the manner by the said act directed for the removal of rogues and vagabonds to Scotland and Ireland, and the isles of Man, Jersey, and Guernsey; and all constables and other officers, and all masters of vessels, are hereby required to convey every person so to be passed in the manner by the said act directed for the conveyance of rogues and vagabonds.”
By section 35. this, with other provisions of the act, is extended to all townships, vills, and places having separate overseers of the poor, and maintaining their poor separately.
By section 37. it is enacted, “ That this act shall extend only to that part of the united kingdom called England.”
Upon this act the following determinations have occurred.
Birth in Eng- The pauper was born in England, of parents born in land; father
Ireland. His father died without acquiring a settlement dies; mother marries again. in England, but the mother after his death gained one by a
subsequent marriage in St. M., where the pauper, being about eight years old, became afterwards chargeable. The court decided, that he was properly removed to the parish in which he was born as his place of settlement. For without determining what might have been the case if the mother had been also removeable at the time, it is clear that she having acquired a settlement by marriage, the pauper's case is to be considered as if he had no parent
alive. Then, if so, the clause (1) only applies to persons
Two justices removed Hannah the wife of T. Robinson English child and their children from L. to A. The sessions, on appeal, Scottish fadischarged the order, and stated a case by which it ap- ther. peared that T. R., the husband, was a Scotchman, residing at L. with his family, and had not acquired any settlement in England. His wife and children becoming chargeable, he consented that they should be removed to A., which was the place of the wife's maiden settlement. The court of K.B. confirmed the order of sessions. Abbott C.J. The question arises out of the compulsory power formerly vested in justices of the peace of removing a wife from her husband by consent; and it is one, and that not the smallest, of the evils attendant on the poor laws, that cases should have arisen under them in which this court has held that such a removal, amounting to a temporary divorce, might lawfully be made. It is to be observed, however, that in Rex v. Eltham (3), there was the consent of both husband and wife to the separation. I am very glad that we are relieved by this act of parliament from the necessity of considering those cases. I think it impossible to read the words of the 33d clause, without seeing that the magistrates have now a power in cases like the present of sending the husband into Scotland with his wife and family by a pass; and having this power, I am of opinion that they cannot now remove the wife and family to her maiden settlement, so as to separate her from her husband. Bayley J. It is against public policy and good morals to permit the separation of husband and wife even with their consent. The question, however, turns on the construction of 59 Geo.III. c.12. s. 33., which enacts, That it shall and may be lawful for the magistrates, and they are thereby required, in certain specified cases, to cause persons born
(1) 59 Geo.III. c. 19. s.33.