Widow Rice and William Lindsay are two
very plain and poor persons, residing within the municipality of
Glasgow, and unacquainted with each other. They have been brought
before the public neither from their virtues nor their crimes, but
by their calamities; and the stubborn determination of the parochial
boards to starve as many young children as they possibly can; not
from any hatred to little boys and girls; not from any personal
inhumanity on the part of the members; for several, and it may be
all of them, are amiable and benevolent men, in their private
capacities; and it is in their public dealings alone that they bear
the slightest resemblance to those affectionate Chinese, who slay
their daughters in infancy, to save them from the miseries of an
evil world; or the superstitious Hindoo mothers, who were in the
habit of waiting their little ones into futurity on the wares of the
Ganges. The idol that the parochial boards of Glasgow fail down
before and worship is called “political economy.” It is a hardened
thing, made up of hard men’s musings, with such heart in it as the
image had, raised by the Babylonian monarch, in the plain of Dura.
This “political economy” stands in a modern. Tophet and the
parochial boards of Glasgow left little children to pass through the
furnace of affliction before it, not merely without compunction, but
they have even been at much cost to proclaim their principles before
the world, and prove their right to be cruel, according to law.
Our English and Irish readers may probably know that the poor law of
Scotland has hitherto excluded able-bodied persons from relief,
although they may be out of employment. According to the
interpretation put on the statutes respecting the poor in Scotland,
it was a calamity to any man to be in good health when out of work.
The circumstance that should hare been a comfort in difficulties,
was an aggravation of his distress. The question put by the
parochial board was not, have yon work? but can you work? In this
happy country, it was presupposed that if a man could work, he would
have no difficulty in meeting a demand for his labour. He might be
most involuntarily idle, but the misfortune was treated as a crime,
and the man was outlawed, so as the reception of public aid was
concerned. This was the undoubted opinion held regarding the law;
and the practice was to refuse assistance to all claimants who were
able to work, although no employment was afforded to them.
Widow Rice is a native of Ireland; but her children were bom in
Scotland, and they had been resident for a considerable time in
Glasgow, where, indeed, we believe, they were born. After her
husband’s death, Mrs. Rice applied to the parish for some assistance
to her children. The parochial authorities objected, on the ground
that she was an Irishwoman, whom they would return to her parish.
The applicant, however, persisted in the claim, not on her own
account, but that of her children, who were Scotch children with an
Irish mother. The law does not trace a person’s origin farther than
birth. It does not recognise races. If the lady of one of the Irish
confederates had, as in that case it wonld be esteemed, the
misfortune of being confined in England or Scotland, the law would
stamp the baby as a Sassenach baby; and its little brothers and
sisters would be then bound to hate the Saxon. Widow Rice, although
an Irishwoman, probably was not a confederate; and she was enabled
to bring her case before the various Courts for decision. The
Sheriffs found successively against the parochial boards, and
ordered interim relief to be afforded to the applicants, while the
parish went forward to the Court of Session with this poor Irish
widow and her children as their opponents. The litigation, which has
continued for two years, and passed through all the stages of the
Lord Ordinary, the Outer House and the Inner House, has at last been
heard before a full Court, and decided in the widow’s favour. If we
were not to print and preserve a very extraordinary note of Lord
Robertson’s, on a case somewhat similar, we should copy the judgment
given in this case; because we do not recollect an instance where
the conduct of powerful defendants was more properly rebuked than
that of the “guardians of the poor,” who had dragged on this action
through many stages, not at their own cost, bat at the cost of the
parish.
The decision has a legal bearing of some importance. It completely
separates the case of the parent from that of the child. This
applicant for her children has obtained relief; for herself she
could only obtain a passage to her parish. The law then, as now
interpreted, holds that the children of a poor person, may he
separated from their parent, by the Channel, and all the space in
addition, that both parties may have to travel in search of their
parish. The Irish mother may belong to Galway. Her Scotch children
may have been born in Caithness. Their father may have found a grave
in Wick; and to obtain relief, the mother and her children may have
to be separated by all the intervening space between these two
distant ends of the earth.
This inconsistency can be easily removed, if any case arises in
which its inconvenience becomes apparent. An order on the mother's
parish, for the money allowed to her, will obviate the difficulty.
In this instance no difficulty arose, as the mother sought nothing
for her own support, but only required the means to feed and clothe
her children; and we rejoice that they have been allowed to her
against all the political economy employed on the subject.
William Lindsay’s case is somewhat different. He is a
cotton-spinner. At the date of his application to the Govan
Parochial Board, one of the Glasgow parishes, he had been five weeks
out of employment. To a man who has been in regular work as a
cotton-spinner, five weeks of idleness should not be a serious
matter. It appeared, however, that William Lindsay’s employment had
been irregular for two years. He had been occasionally on short
time. He had been working at periods for only five hours daily. At
last he was thrown altogether idle. His family consisted of his wife
and four children. His wife was sick, and in the hospital. His
children were also under ten years of age. He could meet with no
employment, and the state of his family hardly enabled him to seek
it. In these circumstances he applied to the Govan Parochial Board,
not for himself, but for his children.
An application, backed by these facts, could scarcely be refused.
Those who think so, do not know political economy. Perhaps William
Lindsay had been an improvident man. Perhaps he had some remnant of
savings invested in the drawer of a chest, to be squeezed out.
Probably there was in his house some scraps of furniture— a
blanket—a bed or a bedstead—not yet at the pawnbroker’s. He may not
have sought work with sufficient activity. He may have relations who
will help him in distress. He may have neighbours who will share
their scraps and crumbs with the children rather than that they
should starve. Political economy is ingenious. Especially our Scotch
political economy is a hard article, but shrewd, very shrewd. At any
rate, political economy resisted the imputation that a parochial
board were bound to feed children whose father committed that
unnatural crime, in the midst of want and depression, of continuing
in good health. What could be thought of a father who was guilty of
that enormity? Did children deserve breakfast or supper, keeping
dinner out of view, whose father would not beoome sick? To political
economy, at least, the question seemed impertinent.
If William Lindsay could have changed places with his sick wife in
the hospital, there might have been something done; but failing
that, this board, consisting, we seriously aver, of ecclesiastical
men and of laymen, of most charitable and praiseworthy persons,
decided on going to law, rather than feeding these hungry children
in the wood of affliction. Fortunately their case came under the
cognoscence of the officers in an excellent society formed for the
protection of the poor. They brought the circumstances before two of
the Sheriffs of Lanarkshire — Sheriff Bell, who was formerly so well
known in the literary circles of Edinburgh; and then Sheriff Alison,
the accomplished historian of tho Revolution.
Both of these gentlemen are esteemed to be sound lawyers, and they
both decided in favour of feeding the children at the expense of the
parish until their father could obtain employment. That decision had
the necessary consequence of obtaining for them interim relief,
during the farther discussion of the case, for the litigation did
not terminate with this deliverance. The parochial authorities
transmitted very lachrymose circulars to most, if not all the other
Scottish parochial boards, imploring aid to carry on the war against
the four infant children of the unemployed William Lindsay, and his
sick wife.
We have the honour of the parochial boards and of political economy
at heart, and it grieves us to say that these circulars were not
returned unanswered. The indignation of many of the boards was
stirred. Eloquent speeches were made to precede patriotic or
parochialic resolutions; and there was that stern determination to
sacrifice their constituents money evinced, in resisting this
terrible invasion of William Lindsay’s four children on Govan milk
and meal, that the Danes show in preserving Schleswig.
The case, accordingly, came before the Lord Ordinary, and we subjoin
his judgment:—
“9th June, 1S48.—The Lord Ordinary having heard parties procurators
on the closed record, and whole process,—In respect it is not
denied, that, at the date of the application for relief, the
petitiouer had no means of subsistence, aud was unable to procure
work of any kind, whereby he might earn wages for the support of
himself and his children,—and in respect the said cbildrcu are, from
their youth, unable to work or earn a subsistence for theniseIves,—Finds,
that while remaining under such circumstances, they are by law
entitled to relief, to the extent of necessary sustentation, and,
therefore, adheres to the judgment of the Sheriff': Repels the
reasons of advocation, remits the cause simpliciter to the Sheriff,
and decerns. Finds the respondent entitled to expenses, and remits
the account thereof when lodged, to the auditor to tax and report.
(Signed) “P. Robertson."
The note is of more importance than the judgment. It is long, but we
wish to preserve it for several roasons, and it will most amply
repay perusal:—
“NOTE BY LORD ROBERTSON.
“The questions, here raised, are of the deepest importance in the
administration of the Poor-laws of Scotland, affecting the very
constitution of society, and the support of those belonging to the
labouring classes, whom misfortune has reduced, without any fault on
their part, to a condition of actual starvation. The petitioner
seeks relief, not for himself, but for four helpless children—the
youngest of three years of age, aud the eldest about ten. Their
mother, at the date of the application, was in the Infirmary, and is
since dead. Their father was, owing to the state of trade, out of
employment —earning no wages—but able bodied, and willing to work.
The children had no means of subsistence; and the father— although
continuing to live under the same roof with them —nothing to give
them for their support. The question is, whether they are to be
allowed to starve, but for the intervention of the voluntary charity
of those whose ears may be reached by their cry of destitution!—or,
whether they have not a right, by the Statute Law ot Scotland, to
demand relief. The plea of the Inspector is, that their father being
able-bodied, is not entitled to direct relief for himself.—that he
is not in law a pauper,—and that consequently he being bound to
support his children, and children not being entitled to relief
where the father has no such right, they cannot make any legal
claim. Precarious charity, he says, is the only source to which they
aro entitled to look for subsistence.
Now, the first question is, whether the petitioner, in respect of
his being able-bodied, is not entitled to relief under the
circumstances in which he is placed? And the second, whether,
independent of his situation, tho children are not entitled to
support, to be administered in such a way as to insure them from
sickness and death by starvation? It was well observed by the Lord
Justice-General—in the case of Watson v. The Kirk-Session of Ancrum—that
we must decide cases of this kind according to the rules of law, and
must not be influenced by feelings of compassion. It is therefore,
necessary to look closely at the provisions of the several statutes
on this head; and the Lord Ordinary thinks, that the result of such
investigation, as well as the solemn judgment of this Court in 1804,
contradict the assumption that this petitioner is not entitled to
apply for relief to himself.
[The Lord Ordinary, it w!ll be observed, enters here on a question
not before him, viz., whether the father of tho children was
entitled to relief.]
"The petitioner is, no doubt, or at least was, when he made the
application, able-bodied,—and, so far as his owu strength is
concerned, was capable of earning a subsistence, He is not entitled
to say that he is unwilling to work. He says, on the contrary, that
he is quite willing, but can get nothing to do. This the Lord
Ordinary understood the inspector to admit in the broadest sense,
and that the admission implied, the petitioner had no means of
getting employment of any kind,—that he could earn no wages from any
source. A party certainly would not be entitled to say—I am a
cotton-spinner, accustomed to the warm atmosphere of a ootton-mill,
and if I can get no work, such as that to which I am habituated, I
am not obliged to work in the cold air of winter, out of doors,
digging ditches, or breaking stones, at diminished wages. On the
contrary, being able-bodied, he is bound to work at whatever his
hand can find to do,—however foreign to his previous habits or
pursuits, and at whatever rate the market affords; and he is not
entitled to be idle, merely because he cannot find the employment
best suited to him, and to which, in happier times, he had been
accustomed. Far less does a fall in the rate of wages justify
idleness. But the respondent, in this case, desired the argument to
proceed on the assumption that no employment of any kind could be
found by or for the petitioner,—no wages could be earned. And such
is the construction put by the Lord Ordinary on the judgment of the
Sheriff-Substitute, that the petitioner, for five weeks previous to
the institution of this action, had been out of employment, and
earned nothing,—owing to the dullness of trade, his employers having
no work for him,—and that he had tried, but had beeu unable, to
procure work anywhere.’
“In this situation, it is impossible to characterise the petitioner
as a sturdy beggar, or to deal with him as idle and dissolute.
Surely the law will not award punishment against him, because he can
get nothing to do. He is plainly an object of compassion, whether,
in respect of the bodily strength he enjoyed—-(how long to coutinue
without suitable aliment is a question of serious import)—he is
entitled to statutory relief. Now, the Statute Law of Scotland
undoubtedly makes an important distinction between two classes of
poor. It suppresses and punishes, on the one hand, the sturdy
beggar—the idle and dissolute, who will not work, who willl not
labour,’ and support themselves by sorning, or in anv other lawless
manner. This class of vagabond poor is well enumerated by Baron
Hume:— In terms of those laws, there are to be held and treated as
vagabonds or masterful beggars,—all bards and jugglers, all users of
subtile, craftie, and unlawful plays, Egyptians, sorners, fen-zeit
fools (or pretended idiots), counterfeit deaf and dumb persons,
fortune-tellers, pretenders to knowledge in charms, prophecy, or
other abused sciences, all minstrels also, songster s, and
tale-tellers, not being in the service of the Lords of Parliament,
or the great burghs.’
“On the other hand, the law affords relief to the impotent, weak,
and destitute, who, unless relieved, must live by alius. The strong
arm of the law is, no doubt, directed to repress those who will not
work at an honest calling, and gain their livelihood by industry,
but who seek it by violence, or by fraud and imposition, such as
fortune-telling, unlawful games, or the like, as above enumerated.
But it is also stretched forth to succour the weak and poor, who
cannot, owing to their condition, earn their own subsistence. The
charity of the law will not allow the impotent to starve. But if
starvation be inevitable, when a willing man can earn no wages for
his support, where is the foundation of the distinction between him
who has not hands to work withal, and him who cannot get work on
which his hands may be employed? That a man is able-bodied may
afford a presumption of his being able to earn his livelihood. It
may be a good general test, that his case, in ordinary
circumstances, requires no parochial aid. But if it be conceded that
he can get no work— if, on the one hand, he prove that the labour
market is closed against him—what sort of mockery is it to be that,
if he beg, he must be punished os a masterful beggar, an able-bodied
idler; and if, on the other hand, be apply for parochial relief, his
hands are strong enough to support him, though he has nothing on
which these hands can be occupied? A man is not an able-bodied
wearer, fit to maintain himself, who has strength of limb and skill
in his trade, but who oannot get a loom whereon to work. He cannot,
like the spider, spin from his own internal resources. Nor is one an
able-bodied seaman, who shall get no aid from the parish, because he
is active and used to the sea, and anxious to buffet the waves when
there is no vessel in the port requiring hands for navigation. Nor
will the intellectual strength of genius support him who may not
wander forth as a 'minstrel’ or a 'songster’ or 'tale-teller,’ and
who cannot command types, pen, ink, and paper, for the record and
dissemination of his valuable labours.
“It is also true that, in this country, we have no
statutory-work-houses for the general employment of the able-bodied;
so that, if an able-bodied man apply for aid, he is entitled to be
at once put to work by the parish. Our system is founded on the
principle of suppressing the idle, and generally of allowing the
industrious to find work for themselves. But it by no means follows
that, if truly and bona rule—and not as a mere colourablo pretext
for idleness—able-bodied men can find no work of any kind, they are
mere objects of common charity, outcasts by the law, and not
entitled to any relief, merely because they have strength of body.
What is it to the unemployed craving for work, that he has legs and
arms, thews and sinews, if he oannot get whereon to employ his
strength, and thereby to gain that support which he is anxious to
secure by his own industry? Wherein is he, as a citizen of the
state, entitled to support, different from him whom disease has
stricken down for a season? Leave the former unsupported, and, if he
subsist at nil, he will soon be in the predicament of the latter.
But surely the law of no Christian country can enact such a
barbarous system of tardy, and perhaps useless, relief—as that the
party must become sick from total want, before he is offered that
aid which, timeously administered, would save him from sickness
altogether?
"If unemployed men, destitute not by their own will, but from the
state of the market, have no claim on the law for subsistence—it is
to be feared that, rather than starve, or allow their children to
starve, they may be led to violate that law under which they cannot
find the means of subsistence. Such, surely, cannot be its policy;
and, although undoubtedly the law is not to be stretched, on the one
hand, from the fear of outrage—on the other, the necessities of the
poor must be fairly considered; and if there be a right of relief
competent to the extent of needful sustentation—which is all that is
here asked—and which is undoubtedly required—then the wise and
humane policy of the law must be to see such relief duly and
timeously administered. It is humbly thought an examination of the
statute will show the soundness of these views.
"The first statute which has been referred to is one of King James
I.—being that of 1424, c. 6, entitled—'Of the age and marke of
beggars, and of idle men.’ This statute prohibits beggars, between
the ages of 'fourteene and three score ten yeires, but tbey be seene
by the councelles of the touues or of the lane, that they may not
winne their living uiher waies.’ Those who are allowed to beg are to
bave a certain token, and such as have no token, are to be charged
be open proclamation to labour, and passe to craftes for winning of
ibeir Jiving, under the paine of burning on the cheike, ana
banishing of the countrie.’ All this, it will be observed, does not
apply to persons under 14 years of age, and assumes, that those who
have strength to work shall be able to obtain work to perform,
because they are to pass to crafts for winning of their living. If
they do not, they are to be punished.
"The act 1503, c. 70, ordains this statute,—'Maid upon stirke
beggers,’ to be executed by Sheriffs and other officers; and enjoins
that they athoil mane to beg’ within their jurisdictions, 'except
cruiked folke, seik folke, impotent folke, and weak folke, under the
paine of payment of ano mark for ilk uther begger that beis foundin.’
"The act 1835, c. 22, in like manner, was passed 'for refraining of
the multitude of maisterful and strange beggers.’ It confirms the
statute of James 1., appoints tokens to be given to the licensed
beggars of each parish, who are entitled to bed and prohibits all
others from doing so.
"These are the statutes which precede the act 1829, c. 74, which
first introduced the system of poor-laws into Scotland. It consists
of two branches, as the title of the statute itself bears 1st, 'For
punishment of strung and idle beggars;’ and, 2d, 'Reliefs of the
pure and impotent.’ This act first confirms the prior statutes
against masterful and idle beggars, 'ink as maks themselves fules,
and are bairdes,’ and the like; ‘and, after a further preamble,
declares, that 'it is thocht expedient, statute and ordained, as
well for the utter suppressing of the saidis strung and idle beggers,
as contageous enimies to the commoun weil, as for the charitabel
releeving of aged and impotent pure people, that theordourand forme
following be observed.’ It then contains a variety of regulations
against strong, idle, and disorderly beggars, who are described as
consisting ofgeuerally— 1st, 'All idle peopel ofilling themselves
Egyptians, or any uther that feinzies them to have knawlege of
charming, prophecie, oruthers abused sciences.’ 2d, 'All persones
being haill and starko in bodie, and abill to worke, alleging them
to have beene berried or burnt in sum far pairt of the real me, or
alleging them to be banished for slauchter and uthers wicked deids,
and uthers nouther havand laud nor maisters, nor using onylauchful
merchandise, craft, or occupation, quliairby they may win their
livings, and can give na reckoning how they lauchfullie gel their
living.’—3d, 'All miustrells, sangsters, and tale-tellers,’ &c.—4th,
'All commoun labourers, being personnes abill in bodie, living idle,
and fleeing labour.*—5th, 'Aucounterfaictersof licenses to
beg.’—6th, 'All vagabond scholars of the Universities of St.
Andrews, Glasgow, and Aberdene, not licensed be the Rector and Dean
of Faculty.’—And, 7th, 'All schipmen and mariners alleging
themselves to be schipbroken without they have sufficient
testimoniallcs.’ All the persons falling under these various
descriptions are to be esteemed and punished as 4 strang beggars and
vagabonds.’
"Having thus dealt witu the classes of persons who are to be
repressed and punished, the Act next provides for those who are
unable to gain a livelihood for themselves, and who are to be
relieved. This branch of the statute is introduced by the words—‘And
seeing charitie would that the pure, aged, and impotent persones
suld be als necessarilie provided, as the vagabonds and strang
beggars repressed, and that the aged, impotent, and pure people suld
have ludgeing and abiding places throughout the realme to settle
themselves intil.’ It therefore, 1st, directs the Lord Chancellor to
inquire into the state and condition of hospitals; 2dly, It directs
the magistrates of burghs, and Justices of the Peace of each parish,
to take inquisition of all aged, pure, impotent, and decayed
persones borne within that parochine, or quhilkes war dwelling and
had their maist commoun resorte iu the saide parochine, the last
seven zeires bypast, quhilkes of necessitie mon live bee almes.’
Upon this inquisition, a register is to be made up, after full
inquiry into the circumstances of the poor; and particularly,4quhat
their ueideful susteutation will extendo to everieoulke.’ This being
arranged, the whole inhabitants of the parish are to be taxed and
stented, 'according to the estimation of their substance, without
exception of persones ro sik oulkic charge and contribution, as sail
be thocht expedient and sufficient to susteine the saidie pnre
peopil.’ Thera is a further provision, which it may be proper to
notice—'if the aged and impotent persones not being sa diseased,
lamed, or impotent, bot that they may woorke in sum manner of wark
sail be, bee the ovrcseers in ony parochin appoyntcd to wnrk and zit
refusis the same—then, first, the refuser to be scourged and put in
the stokkes; and, for the second fault, to be punished as vagabounds,
as said is.’
"The Act 1661, c. 38, containing instructions to Justices of the
Peace, has also been referred to, in so fur as regards the taking up
a list of the poor twice a year,—'into which number there shall no
person be received who are any way able to gain their own
living;’—and overseers are to bo appointed 'to make due tryal and
examination of the condition and number of such poor, aged, sick,
lame, and impotent inhabitants of the said paroch, who (of
themselves) have not to maintain them, nor are able to work for
their living; as also of all orphans and other poor children within
the said paroch, who are left destitute of all help.’ These persons
are to be enrolled in the list, and provided for; and the overseers
are to make trial of their behaviour,—that 'if any of ihem being so
provided shall go abroad to beg, or otherwayes miscarry themselves,
or shall refuse, being able to work, any manner of work that they
are able to perform in such cases, they are to-be punished.
"The Act 1053, e. 16, also contains provisions concerning" beggars
and vagabonds, ratifying the former statutes,—
'With this addition, that strong beggars, with their bairns, be
employed in common works, and that they shall continue-servants
therein during their lifetimes. ’It further narrates, that the chief
cause' that vngabouds and idle persons do yet so much abound, hath
been, that there were few or no com* mon works then erected in the
kingdom, who might take and. employ the saids idle persons in tbeir
service.’ It, therefore, authorises all persons who have
manufactories within the kingdom, to seise upon and apprehend 'the
persons of any vagabonds who shall be found begging, or who, being
masterless and out of service, have not wherewith to maintain
themselves by their own means and work, and to employ them for their
service as they shall see fit,—the same being done with the advice
of the respective Magistrate of the place where they shall be seized
upon.’ Work being thus provided, the persons by whom the provision
has been made are to be paid at a certain fixed rate by the pariah.
“Such appear to be the important provisions of the law connected
with this subject; and. assuredly, the present petitioner,—who, ex
concessis, can find no employment of any kind, and who is willing to
work, but who must not beg, and yei who has no way of obtaining
relief, but by alms,—cannot be described as a wrong doer, and be
liable in punishment. Whether the act last quoted has been carried
into execution or not, it, as well as the previous statutes, proceed
upon the necessary assumption, that parties who are unable to win
their livelihood by the labour of their hands, are entitled to
relief. Poverty, combined with idleness, does not give such a
claim,—for every one must work if he can. If he be impotent or sick,
and so cannot work, he is entitled to relief. But, if the inability
to work and the right of relief be co-exi9fcent, how can it be the
law, that a person who is sick, and so cannot work, must not be
allowed to starve,-—but that a person not yet sick, but equally
unable to work, because he can get nothing to do, shall be allowed
to starve, or at least be allowed to become sick and wasted,—and
thus more likely to continue a permanent burden,—before the time
arrives when he should be entitled to relief? Surely this is
inconsistent even with the cpulious and prudent charity of the law,
on the principle of which the relieving part of the Act 1079
proceeds. The word used, among others, is the 'impotent,’ who are
generally to be provided for;—and why?—merely because they cannot
provide for themselves. But impotency cannot mean mere want of
bodily strength,—else where is the remedy for the idiot or maniac?
Why, indeed, should strength of body be an exemption?—but because it
implies, in the ordinary case, the power of getting the means of
subsistence by industry. But if public calamity, not in any way
attributable to the party, render this impossible, he is as
'impotent' to work as if he had lost the use of his limbs, or the
use of his reason.
“On these views of the statutes the Lord Ordinary would have
proceeded, had this been an application for the direct relief of an
able-bodied person thrown out of all employment owiug to public
calamity of any kind. But it is most satisfactory to find, that the
precise point has been adjudicated by the Court, in the case of
Pollock v. Daring, 17th January, 1804, Mor. 10,091. That case, no
doubt, appears to have been carried by a narrow majority, and
against the opinion of Lord-President Campbell. But it was most
deliberately argued on informations, in a hearing in presence, and
afterwards on petition and answers;—and the Lord Ordinary is not
aware of any judicial opinions since that date, shaking its
authority. Nothing condemnatory of that judgment appears to have
fallen from the Court in the case of the Abbey Parish of Paisley,
29th November, 1821,—where it was decided that the Sheriff had no
jurisdiction to review a judgment of the Heritors and Kirk-Scssion,
refusing relief to able-bodied men. But some of the Court 'indicated
an opinion, that if the Heritors and Kirk-Scssion had refused to
meet, and to take the petition into consideration, a complaint to
tbe Sheriff would have been competent to oblige them to do so.’ No
doubt, the Court was not then called on to review the judgment of
1804; but had the relief claimed appeared to have been palpably
inconsistent with tbe genius of our law, the remark here made would
not have been one natural to arise.
“This case of Pollock has stood on the books, so far as appears,
uncontradicted for upwards of 40 years. Mr. Tait, in his work on the
powers and duties of Justices of the Peace, published in 1810,
notices it without any disapprobation, or stating that its authority
had been doubted by lawyers. He thus describes the persons to whom
relief is to be given:— ‘Cause of Poveriy.—The persons relieved are
either those who require permanent relief, whether partial or total,
who are commonly called the ordinary poor, and who form the roll
made up at the meeting already mentioned, or those who require only
temporary relief, whether partial or total—(here Pollock’8 case is
referred to)—who are commonly called the extraordinary poor, and who
are not usually entered upon that roll.' Tne question now under
consideration involves no point as to the extent to which relief is
to be given; and, of course, when employment can be found, the right
of relief of the able-bodied man, who can then procure sustentation
for himself, ceases. Mr. Hutchison,—in the third edition of his
Treatise on the Justice of Peace Lnw, vol. ii., p. 56, also
published in 1815,—notices the case fully in a note; and, instead of
disapproving of it, he quotes from Mr. Malthus in this way :— When
Mr. Mahhus, the formidable opponent of a compulsory provision for
the poor, allows the propriety of giving occasional assistance under
temporary distress.'— At tbe same time, we must not forget that both
humanity and true policy imperiously require that we should give
every assistance to the poor on there occasions that the nature of
the case will admit. If provisions were to continue at tbe price of
scarcity, the wages of labour must necessarily rise, or sickness and
famine would quickly diminish the number of labourers; and tbe
supply of labour being unequal to tbe demand, its price would soon
rise in a still greater proportion than tbe price of provisions. But
even one or two years of scarcity,—if the poor were left entirely to
shift for themselves, —might produce some effect of this kind; and,
consequently, it is our interest, as well as our duty, to give them
temponuy aid in such seasons of distress.’— 'Principles of
Population, B. III., chap. 5 of Poor Laws.’ Mr. Hutchison himself
observes, p. 54,—'As the best remedy against a# summary list of
permanent poor, it has always been tbe practice to assist persons
who, by misfortune or disease, or other circumstances, are disabled
for a time from maintaining their families. And even when the
necessary relief is not of such extent, or for such a period of
time, as makes it worth while to place the distressed individual on
the roll, still it is usual in practice to afford such supplies as
the exigency requires. By means of these seasonable supplies,
many,—who would have been irretrievably ruined, or prematurely cut
off, leaving their families a permanent burden on the public,—are
restored to the exercise of their lawful industry, and afterwards,
instead of needing further aid, sometimes thankfully repay the money
so seasonably advanced to them.’
"Mr. Dunlop indeed observes, that this case of Darling was one,—not
at the instance of the poor themselves, but of a party who had been
assessed. The Lord Ordinary cannot see the force of that
observation, as detracting from the authority of the judgment;
because, if the unemployed labourers were not by law entitled to
relief, no assessment for such a purpose could be legal; and if the
assessment was not legal, the party who complained was not bound to
pay it, and yet he was found liable. Nor was the case argued on any
such narrow grounds. Mr. Dunlop also observes, that the inexpediency
of the system sanctioned by that judgment has been generally
acknowledged—and Mr. Monypenny (a name which cannot be referred to
on this, or any other subject, without the most profound respect)
doubts the authority of the decision, as establishing a general
doctrine which he considers materially altering the character of the
Scottish system of poor-laws. Tbe Lord Ordinary, even if satisfied
of the inexpediency of the judgment (into which he does not consider
himself judicially entitled to inquire), would still hold it
binding. It does not appear to him, with due deference, to make any
alteration on the character of our system. It does not give the
able-bodied a direct and immediate claim for relief, or for work. It
does not put the able-bodied, under ordinary circumstances, on a
footing with those who are physically impotent. But merely
determines that, uuder the pressure of a public calamity—where it is
admitted or proved that a person cannot find the means of
subsistence, however anxious to labour for his daily bread —that
person who must not beg is, while the pressure of distress is upon
him, entitled, as of right, to parochial relief. He is not to be
cast aside until he become physically unable to work, when relief
would be extended to him at a time when, in all human probability,
it would come too late. It was well observed, in the case of Pollock
and Darling, that 'a general assessment alone is calculated for a
prompt, sufficient, and comprehensive relief, particularly for great
and occasional distresses. The fund must be already provided, the
system matured, aud laws proportionate to the evil must be ready,
otherwise the misery of tho labouring classes of the community will
run to such a height, that what has been refused in charity will be
taken by force; and the voice of law being drowned, the clamours of
nature, anarchy, and insurrection, will universally prevail.'
"Nor is it immaterial to observe that, if the decision in this case
bad been considered inconsistent with the genius of our law, and
that able-bodied men were, in respect of their strength of limbs, to
be excluded from parochial relief, it is somewhat remarkable that
the views of policy to which Mr. Dunlop refers were not acted on in
the recent statute, 8 and 9 Viet., c. 83, specially passed 'for the
amendment and better administration of the laws relating to the
relief of the poor in Scotland.’ Certainly that statute does not
confer any new right. But if tbe judgment of the Court, in 1804, was
disapproved of, either as unfounded in law, or as impolitic in
jurisprudence, it was strange that a privilege thus improperly
declared to belong to the able-bodied should not have been taken
away. All the provision we have on the subject, however, is
contained in the 68th section, which enacts—'That from and after the
passing of this act, all assessments imposed and levied for the
relief of tbe poor shall extend and be applicable to the relief of
occasional, as well as permanent poor: provided always that nothing
herein-contained shall be held to confer a right to demand relief on
able-bodied persons out of employment.' “II. But even if it could he
held, upon a risid interpretation of the statutes, that the
petitioner is not entitled to direct relief for himself, it by no
means follows that children under 10 years of age have no claim for
relief. These children are poor—having no means of subsistence of
their own. They are impotent—that is, unable to work. They are below
the age when the law represses idle and vagabond beggars. They
surely would be entitled to beg. if able to do so. Keeping in view
police regulations, the Inspector does not prescribe this course for
their obtaining a livelihood, and some of them are too young even to
be able to go about. The father is admitted to have no means by
which he can support them. If he desert them utterly—that is, do not
come near the hovel in which they may be—it is admitted that they
would be entitled to relief. If he be imprisoned, and so be unable,
as it is presumed, to give them aid, tbeir claim is equally clear.
And why? Not in respect of the mere fact of imprisonment —but in
respect of the presumed inability of the father, in such a case, to
give them help. Yet a tailor or shoemaker in prison, if he can get
work, maybe able to support his children. But how can this
petitioner, who has not a crust for himself, have wherewithal to
help them? They are utterly destitute—they are poor and impotent—and
thus directly within the protection, and Within the charity of the
law.
“In the very words of the preamble of the act 1579, they are
impotent and pure people whom ‘charity wnld' suld be necessarilio
provided,' and ‘suld have lodgein and abiding places throughout the
ralme to settle themselves intil.' They are also persons 'quhilksof
neccssiiie mun live be almes.’ They are in the words of the act,10.
38—‘persons who have not to ’maintain them'— 'nor are able to work
for their living'—‘poor children who are left destitute of all
help.’ To tell them, that they are to be fed upon the legal
obligation of the father to support his children when the father has
nothing—to say, that out of the church collections the Kirk-Session
may or may not, as it pleases, give them aid is no legal answer to
their demand. It is true that the benevolent occasionally establish
soup-kitchens, and large funds are sometimes raised in cases of
public calamity, and that relief may perhaps be thus obtained when
the funds last, and according to the bounty of the distributors. But
in law this is nothing. As to these occasional funds, some may think
them well administered, and some may think them ill
administered—many refuse to subscribe—and many, for reasons good or
bad, cease to continue their subscriptions. They are sometimes
neglected from caprice, or justly condemned for mismanagement. They
are raised without obligation, and may be abandoned without cause.
And to observe, that in this way these children may not utterly
perish, is only to say, that the law wilt give no helping hand to
save them, but send them adrift on the precarious waters of common
charity or harsh caprice, whose waves may cast thorn forth, or whose
sources may be dried up.
“Even if tbe father have the means, and spend them in debauchery,
his unnatural conduct will not relieve the parish in the first
instance. The law will see that the impotent and destitute children
are supported, and action will lie against the father to make good
the advances out of any means he may possess. It may be right to
keep in mind, as Lord Fullerton observed in the case of Pride v. The
Heritors and Kirk-Session of Ceres;—‘ When a pauper comes for
needful sustentation, he cannot be met with the answer that he may
go agaist relations. Sustentation must be given in the first
instance by the parish, which may seek its relief against those
bound to aliment tbe pauper.' But really, in the present case, the
right of relief against the father can be of very little importance;
for it is admitted that he has nothing, and can earn nothing. He
cannot help the children— and they cannot support themselves.
Therefore, as was well observed by Lord Jeffrey in tbe Ceros
case—‘It would be an extraordinary thing indeed, If a man should, in
a civilised community, not have a right to necessary susteniation,
which is a right to live, and lies deeper than the right of property
itself.’ But we do not need to go beyond the statutes. The statute
1579 took away the right of begging—and in lieu thereof, which was a
resource, gave clear vested right to have needful relief.' On these
grounds, the Lord Ordinary affirms the judgment of the Sheriff.'
There is, amongst all the reasons of complaint existing in this
country, one great consolation in the equitable course of justice.
The administration of the law may be slow, but it is pure. The
administrators are fallible, but their intentions are undoubted, and
the poor, when they can get into the courts, have an equal hope of
justice with the wealthiest in the land.
We have referred to the Glasgow Association for the assistance of
the poor in such cases as we have quoted. It is a useful society;
but, like many other similar societies, hampered in its operations
by the insufficiency of funds. In this last case, the parish of
Govan, aided by the parochial stamina of Scotland, has appealed from
the Lord Ordinary. In the management of such cases there are
considerable expenses incurred; and if those Scotchmen who may think
that little children should not be starved in their country because
their father happens not to be ill of fever, would assist the
society, by their subscriptions, in working out this case, they
would be doing something towards the vindication of that country
from an indelible stain of cruelty to the helpless and unfortunate
young.
We believe there is no doubt that if William Lindsay had committed
crime, and been justly banished or imprisoned for his conduct, that
the Board would not have hesitated in relieving his children. That
is the difference made in this case between an honest man and a
thief; and we think that political economy commits a great mistake
in this instance. It sets snares for drawing men into crime; because
a father, who was enabled to resist the ordinary temptations of
personal want, and so on, might not have sufficiently strong
principles to resist the knowledge that his virtue was the only
remaining barrier between his starving children and their daily
bread.
Whatever may be the ultimate decision in this case, enough is done
to shake the law, if these enormities can be legally maintained. And
it is a most vicious law. In that same city Glasgow, during 1847,
the number of deaths was over eighteen thousand, or one in twenty of
the inhabitants; and while we seek to use neither strong nor
irritating expressions, yet we shall not be withheld from signifying
our doubt, that the diseases which caused this frightful rate of
mortality might have been, in many cases, traced to a deficient
Poor-law, and an obdurate “political economy.”
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