1827. The KING บ. LYTCHET pauper was emancipated at the time when his father ac quired the settlement at Poole, because he was then under age; and it is submitted, first, that the doctrine of relation MATRAVERS. is at all events confined to cases where the child has entered into such a contract, as wholly and permanently excludes the parental control, which he has not done here; and secondly, that that doctrine ought not to be allowed to operate in any case. First,-Rex v. Cowhoneybourne (a), is decisive to shew that the emancipation will not, in this case, relate back to the period of the separation of the pauper from his father during minority. There, the father, upon the death of his wife, broke up housekeeping, and his daughter, then eleven years old, was taken by her uncle, and continued to live with him as one of his family, doing the work of a servant, until she was 27 years old; her uncle supplying her with clothes and pocket-money. It was held that the daughter, living away from her father before, and after she was 21, the father having no house of his own, nor giving her any support, she ceased (in the words of Le Blanc, J.), "after she became of age," to be part of her father's family. Now there was quite as much, if not more, exclusion of the parental control in that case than in the present, and yet it was held that the daughter was not emancipated before she attained the age of 21. Rex v. Rotherfield Greys, and the other cases of soldiers and marines, are perfectly distinguishable from the present. When a person enlists as a soldier or a marine, he enters into a contract for life, and with the crown, whose authority and control over him are paramount to, and absolutely supersede, those of his father. If the doctrine of emancipation were to be extended to the degree contended for on the other side, the parental control would, in consequence, be withdrawn from one third part of the infant population of the country, at the age of eight or ten years. Rex v. Huggate (b), is an express authority for this case. The fact of the master 1827. The KING บ. LYTGHET being a certificated man, made no difference; the only question was, whether the parental control had been wholly and permanently excluded during the child's minority; and the Court held that it had not. The broad principle is this: MATRAVERS. that the domicile of an infant is always in the country of his nativity, and in the house of his father, unless there is some positive law to alter it. Here the domicile of the pauper continued to be in England, and in his father's house, although he himself was at Newfoundland. If the doctrine of relation applies here, it would equally have applied in the case of Rex v. Huggate; and if it had applied there, the result would have been that the pauper was emancipated at the age of eighteen, whereas the Court held that he was not emancipated until he was 21. But secondly, the doctrine of relation ought not to be allowed to operate in any case, or at least, the question whether it ought, deserves more grave consideration than it has hitherto received. The dictum attributed to Bayley, J., in Rex v. Rotherfield Greys (b), was extra-judicial; the question, whether the emancipation would relate back to the period of minority, was not raised in the case: therefore, the expression of that learned Judge cannot be considered as a deliberate judgment upon the point. There is no case in which it has been solemnly and judicially decided, that the emancipation of a child will relate back to the period of his minority; and the inconveniences with which such a decision would be attended are so numerous and so heavy, that the Court will before they impose them. pause Cur. adv. vult. Judgment was afterwards delivered by BAYLEY, J.The question in this case, was, whether the pauper was emancipated at the time when his father acquired a settlement in Poole; or, whether the settlement of the son shifted with that of the father, as being a member of his family. The father was originally settled at Lytchet (a) 2 D. & R. 628. 1 B. & C. 345. 1827. The KING บ. LYTCHET Matravers. The son, being then 20 years old, hired himself upon a voyage to Newfoundland, which he performed, and at the termination of which, he was more than of full age. MATRAVERS. There was no evidence that the father exercised any species of control over the son, during any part of the period of the voyage. Before the son attained the age of 21, the father acquired a new settlement in Poole, and the question is, whether that new settlement of the father extended to the son. It is perfectly clear, that so long as the child continues actually or virtually a member of the father's family, his settlement shifts with that of his father; but that when the child ceases altogether to belong to his father's family, he is considered in the language of the law as emancipated : and the question is, what circumstances are sufficient to constitute his emancipation. In Rex v. Offchurch (a), it was held, that the settlement of a child five years old, leaving the father's family, and living with different relations till ten, followed that of the father; the child not having gained any settlement in his own right. In Rer v. Witton cum Twambrookes (b), it was held, that a child was not emancipated so as to lose the benefit of any settlement his father might gain, till 21, or marriage, or till he had gained a settlement in his own right, or till he had contracted a relation inconsistent with the idea of his being part of his father's family. It has been contended in this case, that the pauper contracted such a relation, and that having continued in it till he was of full of age, he was emancipated; and an observation of mine, in Rer v. Rotherfield Greys (c), has been relied on, as supporting the argument. But, the case of a minor enlisting in the army, appears to us very different from all other cases upon subject; and the observations of my brother Holroyd, and of Lord Chief Justice Best, in the case last mentioned, are very important upon that point. Holroyd, J., said, "the father has by law, a right to the control of his child, until (a) 3 T. R. 114. this (c) 2 D. & R. 628. 1 B. & C. 345. 1827. The KING บ. LYTCHET he is of age, unless some other engagement entered into deprives him of such right. Entering into the army may be considered as an engagement for life, inasmuch as no definite period is mentioned at the time of enlistment, and MATRAVERS. the party could not leave without the consent of the crown. If the soldier remained in the service until 21, he would then be completely separated from his father's family, and a perfect emancipation effected; but the ground on which we decide, that there is no emancipation in this case, is, that before 21 the pauper was discharged from his engagement, and returned again to the father's control, so that by mere enlistment, the father's control is not wholly gone; it only remains in abeyance; and therefore if by any accident the infant is released from his engagements to, the crown before 21, the father's control revives, and the emancipation is not effected." Best, J., said, "by the policy of English law, the parental authority continues until the child attains 21; but by the policy of the same law, if the country requires the services of the infant, he is at liberty to contract an engagement paramount to the parental control, and subject himself to the dominion of those persons who are put in authority over him. That engagement may, or may not last for life; but if it is dissolved before 21, the parental authority comes again into operation, and the son continues, for the purpose of settlement law, a member of his father's family." So, in Rex v. Roach (a), Lawrence, J., said, "in these cases, if the sons had quitted the army, and returned home before 21, they would have been considered as part of the father's family, and participated in any subsequent settlement acquired by him, until their complete emancipation." So, Mr. Justice Blackstone, in his Commentaries (b), says, "the power of a father over the persons of his children ceases at the age of 21, for they are then enfranchised by arriving at years of discretion, or that point which the law has established, when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the (b) 1 Bl. Com. 453. (a) 6 T. R. 247. 1827. The KING บ. LYTCHET A father continues, even after his death; for he may by will appoint a guardian for his children. He may also delegate part of his parental authority, during his life, to the tutor MATRAVERS. or schoolmaster of his child, who is then in loco parentis. All these authorities shew that, generally speaking, the authority of a parent over his child subsists until the age of 21, though it may be transferred, or delegated for a time. But the case of a soldier is a peculiar one. minor may be taken as a soldier by the act of the state. The rights of the state are paramount to those of a parent; and therefore, an infant is capable of enlisting, and thereby binding himself to the public service. By so doing he becomes severed from his family, and submits himself to a paramount control, which while it lasts, supersedes and releases him from the control of his father. But this is a very different case, and the question here is, whether the pauper, in the words of Lord Kenyon, in Rex v. Witton cum Twambrookes (a), "contracted a relation inconsistent with the idea of his being part of his father's family." We are of opinion that he did not. There may be a double control existing over an infant: that of the father for some purposes, and that of the master for others: but still the father's, while it subsists at all, is paramount, and emancipation cannot take place until that is wholly destroyed. In the case of a soldier, the contract entered into by the minor is paramount to the father's control, and if it lasts to the age of 21, the party may be emancipated from the period of the enlistment: here the contract was subordinate to the father's control, which subsisted until the son attained his full age of 21. of 21. We are, therefore, of opinion, that the pauper in this case was not emancipated when his father acquired his settlement in Poole ; but that his settlement shifted with that of his father: and, consequently, that the sessions were wrong in their opinion, and that their Order must be quashed. Order of Sessions quashed. (a) 3 T. R. 355. |