Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83), sec. 77, enacts—“If any poor person born in England, Ireland, or the Isle of Man, and not having acquired a settlement in any parish or combination in Scotland, shall be in the course of receiving parochial relief in any parish or combination in Scotland, then and in such case it shall be lawful for the sheriff, or any two justices of the peace of the county in which such parish or any portion thereof is situate, to cause such poor person, his wife, and such of his children as may not have gained

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a settlement in Scotland, to be removed by sea or land, by and at the expense of the complaining parish, to England or Ireland, or the Isle of Man respectively, according as such poor person shall belong to England, Ireland, or the Isle of Man.”

The Poor Removal Act 1862 (25 and 26 Vict. cap. 113), sec. 2. enacts—“Such warrant of removal shall be granted … in Scotland only on the application of the inspector of the poor of the parish or combination, or other officer appointed by the parochial board of such parish or combination where such poor person shall have become chargeable, and shall contain the name and reputed age of every person ordered to be removed by virtue of the same, and the name of the place in Scotland or England or Ireland (as the case may be) where the justices or magistrates, or sheriff or justices, shall find such persons to have been born, or to have last resided for the space of … three years in the case of a poor person to be removed to England or Ireland; … provided that, in the case of any native of England, Ireland, or Scotland, where the justices or magistrate, or sheriff or justices (as the case may be), shall not be able to ascertain, upon the evidence before them, the place of birth or of such continued residence as aforesaid, they shall order the pauper to be removed to the port or union or parish in England or Ireland (as the case may be), or port or parish in Scotland, which shall, in the judgment of such justices or magistrate, or sheriff or justices (as the case may be), under the circumstances of the case be most expedient.”

Sec. 4—“Such warrant shall order the removal of the poor person to be made to the place mentioned therein as aforesaid, and shall order the persons charged with the execution thereof to cause such poor person, with his family (if any), to be safely conveyed to such place in England, Ireland, or Scotland (as the case may be), to be delivered … in the case of a removal to England or Ireland, at the workhouse of such place, or of the union or parish containing the port or place nearest to the place mentioned in the warrant as the place of the pauper's ultimate destination.”

Andrew Thomson Alston, Inspector of Poor for the Parish of New Monkland, brought a petition in the Sheriff Court of Lanarkshire at Airdrie, praying the Sheriff, “it being proved” that Mary Ann Thomson or Bartlett, or her husband William Bartlett, “last resided for three years in Whitechapel, and has not acquired, or if acquired has not retained, a settlement in any parish in Scotland, and that the said Mary Ann Thomson or Bartlett has actually become chargeable to the said parish of New Monkland, and that the health of the said Mary Ann Thomson or Bartlett is such that she would not suffer bodily or mental injury by her removal, to grant the necessary order for her removal to the workhouse of the Guardians of the Union of Whitechapel, Mile End Road, London East.”

Mary Ann Thomson or Bartlett, presently an inmate of Hartwood Asylum, was born in France, and was the wife of William Bartlett, 343 Commercial Road, London, a native of England, who last resided for three years in the parish of Whitechapel, within the Union of Whitechapel in London. She had become chargeable to and was receiving parochial relief from the parish of New Monkland. Her reputed age was forty nine years. She had for years lived separate from her husband, who now refused to maintain her on the ground that she had been guilty of adultery, and that he was therefore free from the obligation of affording her aliment.

The petitioner averred that Mrs Bartlett had not acquired a settlement in any parish or combination in Scotland, or if she had acquired had not retained such settlement. The petition set forth or referred to the Poor Law (Scotland) Act 1845, sec. 77; the Poor Removal Act (25 and 26 Vict. cap. 113). secs. 1, 2, and 4; the Local Government Act 1894 (57 and 58 Vict. cap. 58), sec. 21; and the Poor Law Act (61 and 62 Vict. cap. 21), sec. 6.

From the depositions it appeared that Mrs Bartlett's parents were of Scottish birth, although she herself was born at Boulogne.

A medical certificate was produced that the health of Mrs Bartlett was such as to admit of her removal, as craved, either by land or water.

On 19th March 1903 the Sheriff-Substitute ( A. O. M. Mackenzie) pronounced this interlocutor—… “Finds in fact that Mary Ann Bartlett, who has become chargeable to and is in course of receiving relief from the parish of New Monkland, was born in France: Finds in law that, as the said Mary Ann Bartlett was not born in England, the petitioner is not entitled to an order for her removal to that country: Therefore refuses the petition, and decerns.”

Note.—[After narrating the facts.] … “The question is, whether in these circumstances it is competent for me to pronounce an order for the removal of Mary Ann Bartlett to England.

“The enactment primarily founded on is section 77 of the Poor Law Act of 1845. That section enacts ‘that if any poor person born in England, and not having acquired a settlement in any parish or combination in Scotland, shall be in the course of receiving parochial relief in any parish or combination in Scotland,’ he may be brought before the sheriff, who is authorised to examine such person or any witness touching the place of birth or last legal settlement of such person, and to take such other evidence … as may … be deemed necessary for ascertaining whether he has gained any settlement in Scotland;’ and if it shall be found by such sheriff that the person so brought before him ‘was born in England … and has not gained any settlement in Scotland, and has actually become chargeable to the complaining parish or combination either by himself or his family,’ then the sheriff is empowered ‘to cause such poor person, his wife, and such of his children as may not have gained a settlement in Scotland’ to be removed to

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England. It is clear that by this section power to order the removal of a poor person to England is only given where such poor person was born in England, and that it cannot be applied to the case of Mrs Bartlett, unless her husband and not she is in the sense of the section the person who is receiving parochial relief, and ‘has become chargeable to the parish.’

Is it then possible to hold that the husband is really the person in receipt of relief? I am of opinion that it is not. A man is not pauperised by the fact of his wife being admitted to an asylum as a pauper lunatic. This was admitted in argument, and in view of the authorities the admission could not have been withheld— Palmer v. Russell, 10 Macph. 185; Milne v. Henderson, 7 R. 317. That being so, I am unable to see how Mrs Bartlett's husband can be held, in the sense of the above section, to have become chargeable to the parish of New Monkland.

I am of opinion, accordingly, that, so far as section 77 of the Act of 1845 is concerned I have no power to grant the order craved.

It was argued, however, that the power of granting orders of removal was extended by section 2 of the Poor Law Removal Act 1862 to the case of poor persons receiving relief in Scotland, and not having a settlement there, who had a residential settlement in England although not natives of that country. Now the purpose of this Act, as declared by the preamble, is to provide better means for the safe conveyance to their destination of poor persons ordered to be removed from England, Ireland, or Scotland in pursuance of previous Acts of Parliament, and therefore, so far as its main object is concerned, the Act is not intended to enlarge the power of magistrates to grant warrants of removal. It may be, however, that section 2 contains provisions which go beyond the declared purpose of the Act, but if its provisions are susceptible of two constructions, one in accordance with, and one out of harmony with, the declared purpose of the Act, the former would of course fall to be preferred. The section enacts that the warrant of removal shall contain certain particulars, and, inter alia, ‘the name of the place in Scotland, England, or Ireland (as the case may be) where the justices or magistrate, or sheriff or justices, shall find such person to have been born, or to have last resided for the space of five years, in the case of a poor person to be removed to Scotland, and three years in the case of a poor person to be removed to England or Ireland,’ and that it shall be addressed to the inspector of poor or guardians of the parish or union to which the poor person is to be removed; provided that, ‘in the case of any native of England, Ireland, or Scotland,’ where the justices or magistrate, or sheriff or justices, cannot ascertain the place of birth, or of such continued residence, they shall order the poor person to be removed to the port or union or parish which they shall think most expedient. I am quite unable to hold that this section authorises the granting of a warrant of removal from Scotland in any case to which the former Act did not apply. It does not purport to set forth the grounds upon which an order of removal may be granted, but merely provides what the order for removal, assuming it to be granted, shall contain, and to whom it shall be addressed. There was an obvious reason for enacting that the place of birth or continued residence should be inserted in the warrant, and that it should, as was evidently intended, be addressed to the inspector or guardians of the parish or union in which such place was situated, as it was clearly desirable that the pauper should as soon as possible be brought to the parish ultimately liable to maintain him. Under the Act of 1845 the warrant did not require to specify the place in England or Ireland to which the pauper was to be removed, and when no particular place was specified the duty of the removing parish was fulfilled when it had conveyed the pauper to the nearest port or place in England or Ireland. It then became the duty of the parish or union within which that port or place was situated to maintain him, and it could only obtain relief from the burden of his maintenance by ascertaining the parish or union of his settlement. It is obvious, I think, that this system must have been unduly burdensome to the parishes and unions within which certain ports and places were situated, and the provisions of section 2 of the Act of 1862 were, in my opinion, intended to remove so far as possible the hardships from which such parishes or unions suffered, and to facilitate the conveyance of the pauper to the parish or union ultimately liable to maintain him. This construction of the section seems to me to be not only in accordance with the declared purpose of the Act, but with the plain meaning of the section itself, and I am confirmed in my view that it was not intended to make the possession of an industrial settlement in England or Ireland a ground for the removal of a pauper from Scotland by the terms of sections 4 and 5 of the Poor Law (Scotland) Act 1898, which appear clearly to contemplate English or Irish birth as the only ground upon which a warrant of removal could be granted.

I am accordingly of opinion that I have no power to grant the order craved.

It was argued on the authority of the recent case of Rutherglen Parish Council v. Glasgow Parish Council, decided in the House of Lords on 15th May 1902, that Mrs Bartlett's settlement was that of her husband, but in the view I take of my statutory powers it is unnecessary for me to consider whether the case falls under the principle of that decision.”

The petitioner appealed, and argued—For the purpose of the poor law the parochial settlement of the husband continued to be that of the wife although he had deserted her— Parish Council of Rutherglen v. Parish Council of Glasgow, May 15, 1902, 4 F. (H.L.) 19; 39 S.L.R. 621, prœsertim per Lord Robertson, at pp. 26, 28, and 30. The doctrine of derivative settlement

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owed its origin not to statute but to construction— Barbour v. Adamson, March 30, 1853, 1 Macq. 376, per Lord Cranworth, at pp. 377, 380, and 389. The doctrine was, as explained in M'Rorie v Cowan, March 7, 1862, 24 D. 723, per Lord Justice-Clerk Inglis, at p. 730, the necessary application to the statutory system of established common law rules. The fundamental principle was that the whole family should be kept to the settlement of the head of the family. If the narrow reading taken by the Sheriff of the statutory provisions as to removal were adopted, the result would be the breaking up of the family. As this woman, though she had been born in France, had been married to an Englishman, she must be taken for all the purposes of the Poor Law Acts as having been born in England— Beattie v. Wilson, January 25, 1861, 23 D. 412; Hay v. Skene, June 13, 1850, 12 D. 1019, per Lord Moncreiff, 1025, 1026. Accordingly Mrs Bartlett fell under section 77 of the Poor Law Act 1845. Further, the power of removal to England was extended by section 2 of the Poor Removal Act 1862 to the case of persons receiving relief in Scotland and not having a settlement there who had a residential settlement in England although they were not natives of England. Section 4 of the Act was important as showing that the family were not to be separated. It was admitted that in England the husband of a woman who had been guilty of adultery, which had not been condoned, was not liable to aliment her— Culley v. Adamson, 1881, 7 Q.B.D. 89.