[362] 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 places 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, 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 the subdivision of parishes (19); has • 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. (19) This is by the statute of 13&14 Ch. 2. c.12.; but as it can only be done where the parish consists of two or more distinct vills or townships, and cannot from its size reap the full and ordinary benefit from the statute of Elizabeth, it does not seem to be open to the objection which the au thor 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 10l. (20) 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 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 thor makes against it. By the statute of Elizabeth, there could be no more than four overseers appointed, and they might be found in many cases inadequate to the careful inspection and employment of the poor of extensive parishes. (20) The words of the statute are," where he was last legally settled, either as a native, householder, sojourner, apprentice, or servant, for the space of forty days at the least;" so that a residence of forty days even as a sojourner was sufficient to give a settlement. The statute is rather a statute of removal than of settlement, and applies to persons likely to be chargeable, who come to settle in a tenement under the yearly value of ten pounds. These might be removed within forty days after their coming; but then it must have been to a parish or township maintaining its own poor, in which they were born, or had last resided forty days in any of the specified capacities. If the persons had no such settlement, there was no power of removal. The law remains unchanged in this respect, except with regard to natives of Scotland, Ireland, the isles of Man, Jersey, &c. who by the 59 G. 3. c.12. may now be removed with their families from any parish, in which they are chargeable to the place of their birth. See R. v. Leeds, 4 B. & A. 498. 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. (21) 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 birth; for, wherever a child is first known to be, that is always primâ facie the place of settlement, until some other can be shewn 9. This is also generally the place of settlement of a bastard child; for a bastard, having [363] in the eye of the law no father, cannot be referred to his settlement, as other children may. But, in legitimate children, though 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. (22) 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 ". 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'. (23) The other methods of acquiring settlements in (21) See post. p. 365. (n. 27.) (22) The parish in which the father is settled is the settlement of the legitimate child; but if the father has no settlement, that, which the mother had previously to marriage, must be looked to. See R. v. St. Botolph's, Burr. S.C. 367. (23) In the case of the King v. Eltham, 5 East. 113. it was determined, that where the husband had no settlement, the wife by their mutual consent might be separated from him, and removed to the place of her maiden settlement. But this case was a good deal reflected on in that of the King v. Leeds, 4 B. & A. 498., and it was said to be against public policy and good morals, to permit the separation of husband and wife, even with their consent. : 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 (23) 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 [ 364 ] for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice, upon the principle of having substance enough to gain credit for such a house. (24) 6. Being charged to and paying the public taxes and levies of the parish (excepting those for scavengers, highways, and the duties on houses W w Stat. 13 & 14 Car. II. c. 12. 1 Jac. II. c.17. 3&4 W. & M. c.11. * Stat. 13 & 14 Car. II. c.12. consent. It may be doubted therefore, whether such a removal would now be sanctioned under any circumstances, and it is clear that unless with mutual consent it would not be permitted. (23) This head of settlement is taken away by the 35 G.3. c.101. s.3. see post. p.365. n.(22). (24) This principle was entirely lost sight of in the numerous decisions on this head of settlement; the result of which was that a party might gain a settlement by a residence of forty days in a parish on a tenement of however small a value, taken for however short a time, not less than forty days, without actual payment of any rent, even without stipulation for the payment of any, if at the same time he occupied in that or any other parish any other tenement or tenements for forty days, the united annual values of which amounted to 10%. In the principle of such decisions it is clear that the party's credit, or substance, could have no place. A recent statute however (the 59 G.3. c. 50.) has endeavoured to bring the law back to it; and enacts that to give a settlement the tenement must be one, a house, or building, land, or both; within the parish; bona fide hired at 10l. per annum; for one whole year; and occupied, and the rent actually paid for that time. and windows (25); and, 7. Executing, when legally appointed, any public parochial office, for a whole year in the parish, as church-warden, &c. are both of them equivalent to notice, and gain a settlement, 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 (26); and, 9. Being bound an apprentice, give the servant and apprentice a settlement without notice, 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: but if a man acquire it by his own act, as by purchase, (in it's popular sense, in consideration of money paid,) then unless the consideration advanced bona fide be 30l. it is no settlement for any longer z Stat. 21 Geo. II. c. 10. 18 Geo. III. c. 26. a Stat. 3 & 4 W. & M. c. 11. b Stat. 3 & 4 W. & M. c.11. 8 & 9 W. III. c. 30. 31 Geo. II. c.11. c Salk. 524, (25) To these exceptions must be added the assessed taxes by virtue of the 43 G.3. c.161. s. 59. This head of settlement was considered to be virtually destroyed by the operation of the 35 G.3. c.101., which prevented the acquisition of a settlement by the payment of rates, and levies in respect of a tenement of less value than 10l. per annum; because a settlement being gained by the occupation of a tenement of that value for 40 days, a condition more easily, and in a vast majority of cases more speedily, performed, as well as more simply proved, than the payment of rates; it never became necessary in fact to claim a settlement in respect of such payment. But as the 59 G.3. c. 50. has made a year's renting and occupation necessary to the gaining a settlement, whatever the value be, this head has been revived in cases where the value exceeds 10l. annually, and the poor's rates have been paid, but the occupation has fallen short of a year. R. v. St. Pancras, 2 B. & C.122. (26) It would be vain to attempt any analysis of the numberless cases which have been decided on minute distinctions as to this head of settlement; but I will only observe, that by a childless person in the text is to be understood a person who has no unemancipated children, that is, none who having acquired no substantive settlement for themselves, may become chargeable to the parish by taking derivatively their father's settlement; and that the service may continue legally the same, though there be various hirings and different masters, if any part be under a hiring for a year, if all the parts be uninterruptedly connected, and if the new masters be the legal representatives of the old one. |