REX

V.

COLLETT.

[ *327 ]

Cooper and Biggs Andrews in support of the order of Sessions: very important case. First, entitled to relief under the secondly, whether they are

Three questions arise in this whether able bodied persons are provisions of the 43 Eliz. c. 2; entitled to relief unless the overseers set them to work; and, thirdly, whether they are entitled to relief without a specific order from a magistrate. As to the first, overseers may give relief to poor persons capable of working, but unable to find employment. The 43 Eliz. c. 2, s. 1, authorises the raising of "competent sums of money, for and towards the necessary relief of the lame, impotent, old, blind, and such other among them being poor and not able to work." The word "impotent" there applies to those who are unable to maintain themselves on account of being out of employment, or being unable to obtain a competent sum as wages, as well as to those who are incapable of working from the want of bodily power. In Waltham v. Sparks (1), *EYRES, J., speaking of one of the parties then before the Court, says, "Joseph having more children than he could maintain, is impotent, as much as if he had been so by lameness." And that is a reasonable construction, for it would be extremely unjust to say, that persons able and willing to work, but out of employment, are not to be relieved; inasmuch as the distress which they suffer does not arise from any fault of their own, or from any cause over which they have the slightest control. The 8 & 9 Will. III. c. 30 (Certificate Act) confirms this view of the case. The preamble begins by reciting, "Forasmuch as many poor persons chargeable to the parish, &c. where they live merely for want of work, would in any other place where sufficient employment is to be had, maintain themselves and families;" now, that plainly shows that the Legislature considered a pauper out of employment entitled to relief on that ground. And the 9 Geo. I. c. 7, which provides, that no justice shall order relief to any poor person until oath be made of some matter, which he shall judge to be a reasonable cause of having such relief, and of certain other things having been done which are there pointed out, impliedly gives power to the justice to order relief where any reasonable cause of giving it exists; and it is surely a sufficient cause for having relief, that a person able and willing to work is unable to find employment. Then, secondly, such paupers are entitled to relief although the overseers do not set them to work. For a long series of years no stock has (1) Skin. 556; Comb. 320, S. C.

1

been provided by overseers according to the mode pointed out by the 43 Eliz. c. 2, and for this plain reason, that since that statute was passed, every description of manufacture has been so much improved, that the articles manufactured under the directions of *the overseers would not be saleable; and, therefore, providing materials for the poor to work upon would only bring an unnecessary burthen on the parish. And the 43 Eliz. c. 2 is not imperative but discretionary, for it says in section first, that "the churchwardens and overseers shall take order from time to time, by and with the consent of two or more justices of peace for the county, for setting to work the children of all such whose parents shall not by the said churchwardens or overseers, or the greater part of them, be thought able to keep and maintain their children; and also for setting to work all such persons married or unmarried, having no means to maintain them, and use no ordinary and daily trade of life to get their living by." The expression "to take order," shows that they were to exercise their judgment upon the propriety of setting to work the persons pointed out. But if it be imperative, although the overseers may be indicted for disobeying the statute, still the poor are in the mean time entitled to relief. If there be no law authorising the giving of money to poor persons out of employment, there is none to authorise the giving of it to those who are fully employed, but unable to obtain wages sufficient for their maintenance. But the 9 Geo. I. c. 7, s. 2, shows that the law is not so, for it is there enacted, that "no officer of any parish shall, (except upon sudden and emergent occasions,) bring to the account of the parish any monies he shall give to any poor person of the same parish (not "monies laid out for materials,") who is not registered in the books to be kept by the parish (1), as a person entitled to receive collection, on pain of forfeiting the sum of 51." This statute *recognises a power to give money to any poor person, and does not confine those entitled within the description in the 43 Eliz. c. 2, even supposing that description is to receive the narrow construction which will be contended for on the other side. Thirdly, the overseers were justified in giving relief without a specific order from a magistrate. The case certainly is not within the last cited statute for want of such order, but it is within the 36 Geo. III. c. 23, s. 1, by which it is enacted, "That it shall be lawful for the overseers of any parish, &c. with the approbation of the parishioners, or the majority of them,

(1) See 3 & 4 W. & M. c. 11, s. 11.

REX

v.

COLLETT.

[ *328 ]

[ *329 ]

in vestry or other usual place of meeting assembled, or with the approbation in writing of any of his Majesty's justices of the peace acting for the district, to distribute and pay (plainly meaning the giving of money,) collection and relief to any industrious poor person or persons at his, her, or their homes, &c. under certain circumstances of temporary illness or distress." It is stated in this case, that the parishioners were accustomed to meet once a week at the parish work-house, at which meetings all applications for relief were received. The overseers have, therefore, complied with the first part of the alternative in the 36 Geo. III. c. 23, s. 1, and are entitled to have the sums in dispute allowed. The persons relieved are stated to have been out of work, now that was a temporary distress, the duration of which was quite uncertain; and, although it might continue for several weeks, would still be within the meaning of the Act. And as the parishioners, who have to support the poor, are also to decide upon their claims to relief, that circumstance is a sufficient check to prevent any improper expenditure of the parish funds by the overseers of the poor.

Scarlett and Eagle, contrà:

The overseers of the poor are not, by the 43 Eliz. c. 2, warranted in giving pecuniary relief to persons able to work, without requiring work from them, and that power has not been enlarged by any subsequent statutes. It has been pretty generally taken for granted, that the 43 Eliz. c. 2, was the first legislative provision for the maintenance of the poor, but that is an erroneous supposition. It certainly embraces all the former laws, and was the result of all the experience then obtained upon the subject: but there are earlier statutes, and some of them throw light upon the question now under consideration. There is not, however, in any one of them, a single expression which gives colour to the idea, that any persons are entitled to relief in money, unless as a remuneration for their labour, except those who are unable to labour, by which a physical inability must be understood. The preamble of the 5 Eliz. c. 2, is worthy of much attention; " to the intent that idle and loitering persons and valiant beggars be avoided, and the impotent, feeble, and lame, which are the poor in very deed, should be hereafter relieved and well provided for." It then enacts, "that a book shall be kept in which the names of all householders and inhabitants shall be entered, also the names of all such impotent, aged and needy persons which are not able to live of themselves,

nor with their own labour; for them a collection is to be made, and the parson and churchwardens are to appoint two able persons to be gatherers and collectors, and the collection is to be distributed to the said poor and impotent persons, after such sort, that the more impotent may have the more help, and such as can get part of their living to have the less, and by the discretion of the collectors to be put in such labour as they be fit and able to do." Here, then, was an enactment that provision should be made for the poor, and the means of making that provision are pointed out, viz. by setting to work those who were capable of working, and giving pecuniary relief to the impotent. Nothing could more clearly show the intention of the Legislature upon this point, than the provision that those not wholly impotent should do as much work as they were able. No material alteration was made by any subsequent statute, until the whole of them were incorporated in the 43 Eliz. c. 2, the first section of which enacted, "that the overseers should raise weekly or otherwise, by taxation, in the manner there specified, a convenient stock of flax, hemp, wool, thread, iron, and other necessary ware and stuff, to set the poor on work, and also competent sums of money, for and towards the necessary relief of the lame, impotent, old, blind, and such other among them, being poor and not able to work, and to do and execute all other things, as well for the disposing of the said stock, as otherwise, concerning the premises, as to them shall seem convenient." Now there is nothing in that enactment which binds the overseers to employ the poor in any particular work. The means of employing them pointed out by the Act are only to be adopted if they should be thought the best. The overseers are expressly authorised to do such other things touching the premises, that is, the employment of the poor, as to them shall seem convenient; that gives them authority to instruct the poor in trades; and if the labour of the poor becomes unnecessary in the old channels, it is the duty of the overseers to divert it into a new one. It is not contended, that a person out of employment is to be suffered to starve, because *he is able to work, or that he is not entitled to relief, but that relief must be provided by setting him to work in some way or other. The construction which has been put upon s. 7 of the 43 Eliz. c. 2, strongly corroborates the idea, that "impotent "in the first section means those physically unable to work. That section enacts, "that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, and

REX

V.

COLLETT.

[ *333 ]

impotent person, or other poor persons not able to work (being of sufficient ability), shall at their own charges relieve and maintain every such poor person in that manner and according to that rate, as by the justices of peace of that county where such sufficient persons dwell, at their General Quarter Sessions shall be assessed." The dictum of EYRES, J., in the case of Waltham v. Sparks, has been referred to, as showing that the word "impotent" includes those who cannot obtain employment; but when the case itself is examined, it appears not to justify any such conclusion. It was an action of debt on a bond, conditioned to save the parish of S. harmless from John Godion, his wife and children; defendant pleaded non damnificatus; plaintiff replied, that Joseph, son of John, born at the time of the obligation made, his wife and children, were a charge to the parish, for Joseph was impotent, and 2s. a week were paid to Joseph for the maintenance of himself and his family, of which 8d. was for the maintenance of Joseph. Defendant rejoined and traversed, that the 8d. was applied to the maintenance of Joseph. On demurrer judgment was given for the plaintiff. Now it is quite clear that the bond was forfeited, whether the money was applied to the maintenance of Joseph or his family. It was paid to him, "because he was impotent." The dictum *of EYREs, J. was quite unnecessary and extra-judicial. Then, in Rex v. Gulley (1) an order, made under 43 Eliz. c. 2, s. 7, set out, that one M. G. was in a poor, destitute condition, and that her father was able to maintain her; and the order was quashed, because it did not appear that she was lame, blind, or unable to work. So in Rex v. Litton (2), upon complaint that A. was deserted and impotent, the justices adjudged and awarded the father to pay so much a week, and the order was quashed, because there was no adjudication that she was impotent. These decisions were recognised and acted upon in Rex v. Hayworth (3), and in Rex v. Stoke Ursey (4), and Rex v. Tipper (5). The same words are used in the first section of the 43 Eliz. c. 2, to point out who are to receive pecuniary relief from the parish, as are afterwards introduced into the seventh, respecting the support of parents by children, or the reverse. The orders under those sections are made in consimili casu. Now it is clear,

(1) Foley, 47; 1 Bott. 366, S. C.
(2) 1 Bott. 366.

(3) 1 Str. 10; 1 Bott. 402, S. C.
(4) 1 Bott. 403, n.

(5) 1 Bott. 403, n. See also Kilbeck's
case, 2 Keb. 37, pl. 79; Rex v. Grant,

ib. 537, pl. 61; Rex v. Payn, ib. 643, pl. 75; Rex v. May, ib. 744, pl. 50; an Anonymous case, 5 Mod. 397, ca. 200; and Kimmalton v. Laystas, 2 Bulst. 347.