1824. A bastard child, born in an extra-parochial place, does not acquire its mother's settle ment. The KING v. The INHABITANTS of ST. NICHOLAS, BY an order of two Justices, Caroline Littlewood was The pauper is the illegitimate child of Elizabeth Littlewood, now deceased, and was born in the month of May, 1822, in an extra-parochial place, called the Black Friars, in Leicester, which is not a vill, and for which no overseers have ever been appointed. She was shortly afterwards taken by her mother to the parish of All Saints, Derby, where she remained until the death of her mother, and up to the time of making the order of removal in question. Elizabeth Littlewood, the mother, had, six years previously to the birth of the daughter, gained a settlement in the parish of St. Nicholas, and was legally settled in that parish at the time of the birth of the child, and of her own death. N. R. Clarke (with whom was Goulburn), in support of the Sessions. The question for the decision of the Court is, whether a bastard, born in an extra-parochial place, where it can acquire no settlement by birth, is removeable to the place of settlement of the mother. That question must be decided in the affirmative. The child of a British born subject must ex necessitate have a settlement somewhere. If it be an illegitimate child, and cannot acquire a birth settlement, its settlement must follow that of the mother, to which it is removeable. This principle is not new. So early as 2 Bulstrode, 358. it was resolved that if a child be born a bastard in the House of Correction, to which the mother has been sent, its settlement shall follow that of the mother, and it shall not be settled in the parish where the prison is situate. When that case was decided, there was no act of parliament respecting the settlement of bastard children; but since then various statutes have passed providing for the case of a birth pending an order of removal (a); for bastards born in lying-in hospitals (b); in a house of industry in an incorporated district (c); under a certificate from a benefit society (d); in gaol (e); and where a pregnant woman has been fraudulently removed from one parish to another (f). In the case of Whitechapel v. Stepney (g) it is laid down that the place of the birth of a bastard child is the place of its settlement; "for it gains a settlement in such place ex necessitate." But if the birth place be extra-parochial, and consequently it can have no settlement in such place, it follows of necessity that it acquires a settlement by parentage, for otherwise it cannot be provided for at all, but must perish. [Bayley, J. Every person is entitled to be provided for in the parish where he happens to be, unless the parish officers can find some other place to which he may be sent.] But suppose the case of an illegitimate child residing in an extra-parochial place, there is no mode by which such a child can obtain relief but by committing an act of vagrancy and wandering into some parish in order to obtain that support which the law considers him entitled to receive. A bastard child, born in the transit of the mother from one parish to the other, is held to be settled in the mother's parish (h). [Bayley, J. Certainly. Suppose the mother to be resident in the parish of A. being settled in the parish of B. and in the removal from A. to B. the child is born in C. there is no doubt that the child would be settled in B. because the law considers the question of settlement as if the mother had arrived at the latter parish at the time of the birth. It would be hard that the parishioners of C. should suffer from the accidental circumstance of the child being dropt in (a) 35 G. 3. c. 101. s. 6. (b) 13 G.3. c. 82. & 54 G. 3.c. 170. (c) 20 G. S. c. 56. & 54 G. 3. c. 170. (d) 33 G. 3. c. 54. (e) 54 G. 3. c. 170. (f) See 2 Bott. 2. pl. 4. & pl. 3. 1824. The KING V. ST. NICHOLAS. 1824. The KING 6. The of ST. NICHOLAS. transitu in their parish.] Then comes the question whether the child in this instance must not be relieved by its mother's parish. It can gain no settlement in the place of its INHABITANTS birth, and if it does not acquire the settlement of its mother, it will acquire no settlement any where, and will be entitled to no relief. The provisions of the statute 49 G. 3. c. 68. s. 2. afford a strong argument to shew that the child must follow the settlement of its mother. By that statute it is enacted," that if any single woman shall declare herself to be with child, and that such child is likely to be born a bastard, and to be chargeable to any parish, township, or extra-parochial place, and shall in an examination to be taken in writing, upon oath, before any justice, &c. charge any person with having gotten her with child, it shall be lawful for such justice, upon application made to him by the overseer of the poor of such parish or township, or by any substantial householder in such extra-parochial place," to issue out his warrant for the apprehension of such person, &c. Now, at first sight, it might seem from this statute, that the burthen of maintaining a bastard child, boru in an extra-parochial place, would fall upon the inhabitants of such place, and that a remedy would be given against the putative father. But neither of these consequences follows. No power whatever is given to proceed against the putative father in the case of a bastard born in an extra-parochial place; the law not having provided for such a case. It is clear that where a township or extra-parochial place does not maintain its own poor, there is no person to whom the maintenance money, which the putative father would be liable to pay, could be paid. But if the Court should hold that the child is settled in the mother's parish, there would be no difficulty in apprehending the putative father, and making him give security for the maintenance of the child. lf, on the contrary, it should hold that the settlement does not follow that of the mother, then the putative father is perfectly secure, and the child will have no settlement whatever, nor be entitled to any relief without committing an act of vagrancy (a). Nolan, contrà. It is a mistake to suppose that the statute 49 Geo. 3. c. 68. is confined in its operation to places where there are overseers to put the law in force against the putative fathers of bastard children. Undoubtedly, in places where there are overseers, they are the only persons who can make the complaint; but it is equally clear, that in extra-parochial places, where there are no overseers, any substantial inhabitant may apply to the justice and obtain a warrant to apprehend the father, and compel him to give security for the maintenance of the child. The argument on the other side, that because a bastard is not settled in the place where it happens to be born, it therefore takes the mother's settlement, cannot be supported. The law recognizes primâ facie no settlement of a bastard child, except the place of its birth, and no case has yet occurred in which it has been attempted to make a bastard follow the settlement of the mother, except it has been so provided by particular acts of parliament, as in the instances put on the other side, which are cases expressly excepted from the general rule. It appears to be perfectly clear, from the provisions of the 49 Geo. 3. c. 68., that the legislature did not intend the maintenance of bastards, born in an extra-parochial place, to be provided for by the parish in which the mother might be settled. Had such been the intention, no doubt the statute would have contained some provision to that effect; instead of which, it seems to enact the contrary, by giving a remedy against the father to the inhabitants of the extra-parochial place. It is a fallacy to say that the pauper must belong somewhere, and must be removeable to some place, or else perish, unless she be removed to the mother's settlement. It by no means follows that every person in England must have a place of settlement to which he is removeable. Hundreds of persons in (a) See Rex v. Oakmere, ante, vol. i. 427. 1824. The KING છે. The INHABITANTS of ST. NICHOLAS. 1824. The KING 0. The INHABITANTS of this country are relieved as casual poor, who have no settlement whatever, and upon this principle, that if a bastard pauper have no settlement, he must be relieved as casual poor. In Rex v. Saighton-on-the-Hill (a) a pauper, having gained a settlement in a township which afterwards ceased to mainST.NICHOLAS. tain its own poor, was removed to his previous settlement, and the removal was held bad. On that occasion, Abbott, C. J. said, "There may be many cases where a pauper having no settlement in the place where he may happen to be, may still not be removeable from it, either because he has no settlement at all, or because the parish officers are not enabled to discover the place of his settlement.” This is one of those cases in which the pauper is irremoveable. It does not come within the meaning of any of the statutes, either authorizing the removal of paupers, or establishing the various modes by which settlements may be gained, and therefore without some enactment expressly upon the subject, a bastard child cannot be removed to any place, except that of its birth, and where that place happens to be extra-parochial, it is then entirely irremoveable, and must be maintained as casual poor, by the parish in which it happens to reside. On these grounds the order of Sessions must be quashed. F. Clinton, on the same side, was stopt by the Court. BAYLEY, J.-The argument urged in support of the order of Sessions, is founded on the supposition that every person in this country must have some settlement to which he may be removed. That, however, is not so. If those circumstances, which the law says shall confer a settlement apply to the case propounded, then the party is settled; but if they do not apply, then he is not settled. Foreigners, for instance, coming to this country have no settlement whatever; and bastard children born in an extraparochial place have no settlement. The instances pressed (a) 2 B. & A. 162. |