United Kingdom House of Lords Decisions

I therefore concur in the judgments of the Lord Ordinary and of the Judges of the Second Division of the Court of Session, both upon the main point and on the special averments mentioned in those judgments.

Lord Robertson—The clear argument presented by the learned counsel brought the question before us to a very narrow point. This woman resided three years continuously in the appellants’ parish, and during that period had not recourse to common begging and did not receive or apply for parochial relief. Her subsistence was derived from the funds of the charitable institution in whose home she resided; but it was not argued that this circumstance of itself excluded the application of the disputed section. The question proposed by the appellants was the much narrower one, whether the fact (for this is to be assumed) that the woman suffered from “mental weakness and chronic physical disease which made her incapable of maintaining herself” takes her out of the enactment. The words in the section relied on by the appellants are “shall have maintained himself”; but the (disappointingly) limited contention is that while a person may be within the section who de facto does not ( e.g., through laziness) maintain himself while able to do so, another person whose failure to maintain himself is due to mental and bodily weakness is outside the provision.

Now, if the words in question had to be construed for the first time, there is, to say the least, much plausibility in the broader view that to come within the enactment at all a person must during the three years have derived his maintenance from his own property or labour. This view goes of course a great deal further than the appellants do now, and would render the fact of maintenance not being found by the person himself but by others the crucial fact, while the cause of that fact, e.g., bodily or mental unfitness for self-maintenance, would be irrelevant to the question.

The construction of the statute, however, which as matter of history was put on this section by the very able Judges who developed the law on this subject from 1845 to 1898, was entirely different. They held that from the point of view of the poor law all persons fell into two categories, according as they did or did not live off or try to live off the public by rates or begging; and that if people did not live off or try to live off the public in those ways it was immaterial whether they lived on their own resources or on the resources of their friends, or people who acted as their friends. Accordingly if a man did not ask parochial relief or beg, it was of no consequence whether he lived on his own means or wages or on other people's; and equally little did it matter whether the charity on which he subsisted was administered to him by individuals or by organisations. Obviously this is an entirely tenable theory, although it is open to the objection that it reduces the emphatic and energetic words “support himself” to a synonym of “live,” and finds the effective enactment in the qualification introduced by the word “without.” But it seems to me unnecessary to be anxious over the intrinsic merits of this construction, because the Legislature adopted it in 1898. By that time repeated judicial decisions in Scotland had completely established this construction; and in that year Parliament, while (for a different purpose) repealing the section containing the words “maintain himself,” re-enacted those words as part of the new formula of residential settlement. In my opinion it must be held that in so doing the Legislature deliberately and of choice re-enacted them in the sense which they had been authoritatively held to possess, and that they must therefore be read in that sense.

This being so, there is nothing in the present case except the comparatively easy question whether the result is affected by the fact that the pauper was disabled from maintaining herself by bodily and mental weakness not involving insanity. For the reason given by the Lord Ordinary I think the averment insufficient and irrelevant. Whether the authorised construction of the words “maintain himself” will stand the strain of a condition of insanity is a question which has not arisen and does not arise to-day. It is a question generically different from that before the House.

Lord Atkinson—I have had the advantage of reading the judgment which has just been delivered by my noble and learned friend and I entirely concur.

Their Lordships dismissed the appeal with expenses.