alive. Then, if so, the clause (1) only applies to persons who are themselves born in Ireland, which he was not. (2) Two justices removed Hannah the wife of T. Robinson English child and their children from L. to A. The sessions, on appeal, Scottish fapassed with discharged 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 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 consent. (1) 59 Geo.III. c. 12. s. 33. (2) Rex v. Great Clacton, 3 B. & A. 410. in Scotland, &c. to be brought before them. Now these are words of compulsion on the magistrates to institute proceedings in cases like the present. The act then provides that the justices shall enquire into the settlement of the head of the family and his and her children, in order, as it seems to me, to ascertain, whether any of those children have been emancipated. It then enacts, That such justices shall and are thereby empowered to cause such poor person, his wife, and such of his children as have not gained a settlement in England, to be removed by a pass to Scotland. Now it is to be observed, that the wife is thus the first time introduced in the latter part of this clause, which is perfectly silent in the prior part of it, as to any enquiry to be made by the justices respecting her settlement. I think, therefore, that the magistrates have no discretion given to them of removing the wife to her maiden settlement, and thereby of separating her and her family from the husband. If the magistrates remove at all, they must remove the whole family together to Scotland, under the provisions of this act of parliament. Holroyd J. The words of this clause are imperative on the magistrates, in case they make any order, to remove the whole family to Scotland, and not as they have done here, to remove the wife and family to the place of her maiden settlement. By the act, if the husband becomes chargeable by himself or his family, he may be removed; and it seems to me to be altogether immaterial, provided the head of the family be born in Scotland, whether the children be born in England or not. The only exception is as to those children who have gained settlements in England in their own right. Then as a power is now given to remove the husband, the wife must be removed with him; for the power of removing her to her maiden settlement was allowed to exist only from the necessity of the case, and must cease with it. It seems to me that we cannot narrow the construction of the words of this statute, unless in so doing we clearly saw that we should further the intention of the legislature. And as I do not think that their intention was to prevent the removal of the whole family together, I am of opinion that the decision of the settlement was right. (1) But it has been held, that the chargeability contem- Must be actuplated by the legislature in 59Geo.III. c.12. s. 33. was the ally chargeable. actual asking for parish relief, and not the constructive chargeability created by 35 Geo.III. c.101. s.6. A girl born in England, and the daughter of Irish parents, who had gained no settlement there, being with child, became thereby chargeable. At the time of her removal she was above twenty-one, unemancipated, and living with her parents as part of their family; but neither she nor her father had asked for or received relief for themselves or any part of the family. The court held, that she was properly removed to the place of her birth-settlement, and sustained the order which sent her thither. (2) SECT. IX. Of returning after Removal. c. 12. The 13&14 Car.II. c.12., which enabled two justices to 13 & 14 Car.II. remove persons intruding into parishes, excepted by sect.3. persons going to work in another parish, with a certificate from the minister of the parish, one churchwarden, and one overseer, certifying that they were inhabitants of that place, and had left part of their family behind. The section proceeds to direct, that they shall return when the work is finished; and that if they do not, or if they fall sick, or become impotent, they shall be removed to the certifying parish. After which it goes on to provide, "and if such person or persons shall refuse to go, or shall not remain in such parish where they ought to be settled as aforesaid, but shall return of his own accord to the (1) Rex v. Leeds, 4 B. & A. 498. pa 17 Geo.II. c. 5. Illegal commitment. rish from whence he was removed, it shall and may be lawful for any justice of the peace of the city, county, or town corporate, where the said offence shall be committed, to commit him to the house of correction, there to be punished as a vagabond; or to a public workhouse in the parish, as hereafter mentioned, there to be employed in work or labour." As the act contained no other provision, by which persons coming into parishes without these certificates could be punished in a summary way for returning after removal, it seems to have been formerly thought, that the power of commitment was general, notwithstanding the words of reference, and extended to all cases of removal under the statute. (1) But the court appear to have been of opinion, ultimately, that its operation was confined to the certificated persons described in the section itself. (2) This defect is remedied by 17 Geo.II. c.5. which extends to all cases of removal under 13&14 Car. II. c.12. Sect. 1. provides "that all persons who shall unlawfully return to such parish or place from whence they have been legally removed by order of two justices of the peace, without bringing a certificate from the parish or place whereunto they belong, shall be deemed idle and disorderly persons, and it shall and may be lawful for any justice of the peace to commit such offenders (being thereof convicted before him, by his own view, or by their own confession, or by the oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding one month." The following case will serve as a material comment upon the clauses of both statutes. (1) See the opinions of Lord Mansfield C. J., Foster and Wilmot Js., Baldwin v. Blackmore, 1 Burr. 601., and Rex v. Hall, post, 257. (2). (2) Lord Mansfield's judgment, ib. et infra. there must not 2. Whether a convicted who returns with The plaintiff and his wife, being paupers, were regularly removed from M. to B. as the place of their last legal settlement, which order was not appealed from. They returned of their own accord, and without bringing any certificate with them from B. to M. Complaint of this being made in writing, upon oath, by the overseers of M. to the defendant, who was a magistrate of the county, he committed both the paupers to the house of correction, till they should be discharged by due course of law. An action being brought against him by the paupers, a case was reserved at the trial, stating these facts, and two questions Quære, were afterwards made in the court of King's Bench. First, 1. Whether whether there ought to have been a previous conviction of be a conviction vagrancy? Secondly, whether the wife could be convicted of vagrancy previous to of vagrancy, or be liable to be sent to the house of commitment correction, for returning without a certificate, as she only for returning? accompanied, and resided with her husband? Lord Mans- wife can be field delivered the resolution of the court. There are two acts of parliament, the 13&14 Car.II. c.12. and the her husband? 17 Geo.II. c.5. upon one of which this warrant must be founded; though it does not appear upon which of the two the justice proceeded. Now this warrant is not within this Car.II. c.12.or 17 Geo.II. c.5. former act of 13&14 C.II. nor is the case itself within it. "These persons did not go to any parish, carrying with them a certificate of their being inhabitants of their proper parish; nor is the commitment made to the house of correction, there to be punished as a vagabond;" nor "to a public workhouse, there to be employed in work and labour," as that statute directs. So that the warrant is not at all agreeable to the directions of that act, which specifies the particular manner of sending the offender to the house of correction, or to a public workhouse; for it is only, "to remain till discharged by due course of law." Neither can this warrant be good upon the 17 Geo.II. c.5. because, though this is indeed a commitment to the house of correction, which the latter act directs, yet it is "to remain there till discharged by due course of law;" whereas, by this act, the power given to the justice is, "to commit such offenders to the house of correction, there to be kept to Commitment must be either under 13 & 14 |