ABSTRACT
Thus far, this reconstruction of the juristic foundations of poor law has concentrated upon the law of settlement and removal, the legal right of the settled poor to relief and the rights duties and legal obligations of the parish; those ‘forgotten’ elements of the title. In short, in considering how law is experienced by participants in the poor law ‘system’ the work has focused upon those who possessed such rights and obligations. This chapter will reconstruct the legal position of the marginalised and excluded, for the right to relief did not protect all equally. In its juristic nature, poor relief epitomises Norrie’s legal antinomy:2 visible at the margins of society and law where poor people are stigmatised, excluded and some criminalised. The most unfortunate of these individuals are ‘lawfully’ redefined outside the poor law system although not left to starve. This chapter will closely examine some of those outsiders concentrating upon vagrants and the Irish (in England and Ireland). The importance of the right to relief is underlined by a brief discussion concerning the poor law system imposed upon Ireland in 1838, one that specifically excluded a legal right to relief. There were other ‘groups’ marginalised under the poor law and the reader
might wonder why they are not receiving equal treatment. There are a number of reasons for this; for some, their legal status within poor law has been considered throughout the work. The second is that many academic issues raised by legal ‘marginalisation’ require critical and theoretical consideration outside the immediate remit of this work and in fact have been the subject of scholarship within many disciplines; for example, moving beyond law and history into cultural and feminist studies. The largest of these marginalised groups is women. However, as discussed for Amy Dorrit, initially women possess all the rights of men under the rules of settlement, they may acquire a settlement in their own right and legitimate daughters, like sons, are born possessing their father’s settlement. This alters upon marriage, for then a woman takes her husband’s settlement and her previous settlement ceases to exist. This structural subservience is a legal rule absolutely of its time; remembering that women did not have a vote until the late nineteenth century. Moreover, for women, legal ‘rules’ concerning property, marriage, divorce, custody of children, education, work and inheritance were also structurally unequal by modern values. The past is what it was; women’s lesser legal rights reveal how law is created and perpetuated within a contemporary context that is forever
contingent. For modern welfare lawyers, however, it is worth emphasising that before marriage the rules of settlement are the same for men and women, rich and poor. In widowhood, once more a woman may acquire a new settlement in her own right; but not pass it to her children who kept their father’s settlement, if he possessed one; this specific topic of settlement law has created much legal complexity.3 It must be emphasised, at a time when most of the population, male or female, did not possess a vote, all men and women born in England and Wales possessed a legal settlement somewhere and hence the right to be relieved when destitute. That still leaves a sub-group who suffered inequalities, abuse and punitive
treatment embedded within the administration of poor law; unmarried pregnant women and their children. This has been considered earlier, for example in reconstructing Arthur Clennam’s settlement entitlement and in Wordsworth’s poem ‘Alice Fell’. As noted in those discussions and more fully developed in poor law historians’ reconstructions, overseers treated pregnant unmarried women harshly. If the woman was settled, overseers attempted various strategies; one favourite was to ‘encourage’ her to marry a man settled elsewhere with the legal explanation that the parish would no longer be responsible for a (settled) woman and child (for prior to 1834 a ‘bastard’ was generally settled where he or she was born). If the mother were nonsettled, then before 1834 the prudent overseer might pay the woman to leave the parish, for otherwise the child would become their legal and, hence, financial responsibility. There are many horror stories in the archives, for example of overseers transporting women outside the parish borders to give birth and thus relieve the parish of a financial responsibility. The plot of Dickens’ novel Oliver Twist echoes another legal point; after the passing of the Poor Relief Act 1814, such children born in the workhouse took their mother’s settlement. Hence, the parish beadle and matron of the workhouse search Oliver’s (unmarried) mother’s clothes for clues to her origins in an attempt to ascertain that place and thus the parish legally responsible for Oliver’s maintenance. After 1834 all such children take their mother’s settlement, but relief in the union workhouse involved separation of mother and child. There is nothing here to surprise the modern reader; unmarried ‘welfare’ mothers continue to attract stigma. Under the poor law, legal rights and financial duties attached to settlement provide one explanation for overseer’s actions, cultural norms another. The questions this raises concern the nature of those norms, did settlement rules reinforce, create or perpetuate this situation? Such questions may never be answered, but affirm the importance of recognising that the operation of law has direct effect upon both an individual’s lived experience and cultural structures. The final groups are foreigners, the sick and the non-settled poor. The
latter have been the subject of most historical reconstructions to date and figure heavily in this work. This is the group who hold certificates, appear in Removal Orders and are the subject of overseers’ and hence parochial legal
discretion. This is the group a parish may aid or seek to remove, the group who occupied much parish energy. In short, they represent the pathological element of settlement; those whose right to relief was elsewhere and whose over-representation in the legal records perpetuate historians’ misunderstanding and hence denial of the right to relief. Foreigners were unsettled; they did not possess a settlement in England and Wales and, as noted earlier, after 1803 must be relieved in any parish where they become destitute.4 The settled poor who become ill were given aid (medical treatment is too grand a term for contemporary medicine) as a matter of legal entitlement and the new union workhouses had medical officers. Both non-settled and unsettled sick were entitled to medical aid in emergency. That left the settled mentally ill and a whole other group who appear in the records in pejorative terms that are better now described as ‘special’. All these are entitled to aid if destitute; members of the last group were sometimes ‘farmed’ out or sent to a workhouse. The mentally ill were legally differentiated under the poor law and eventually required to be housed in County Asylums, each parish paying for its settled ‘lunatics’ and a share of the county rate. Peter Bartlett has reconstructed the treatment of the mentally ill under the poor law in a sophisticated socio-legal Foucaultian analysis that illuminates much negativity, some of which remain within current mental health law and in reform proposals.5
Criminalising the poor in England is an old tradition.6 Although centrally led legal methods adopted to control vagrancy date from the fourteenth century, aspects of the later legal administration of poor law share procedures and personnel in a manner that creates a symbiosis between vagrancy and poor law. It is that congruity in administering justice which appears to influence legislation, the treatment of the poor and cultural ‘understandings’ of poverty, connections that continue today. Some historians argue that, in fact, vagrancy is part of poor law, a suggestion that fails in doctrinal legal terms. However, their operative proximity created an associative antinomy which continues to resonate in modern legal measures surrounding the relief of poverty, in criminal prosecutions of welfare ‘cheats’ and in policies which emphasise fear of fraudulent claims. However, from a doctrinal perspective these two systems are legally separate, representing two very different types of law, common and criminal, with different rules and consequences. What follows reconstructs the control of the ‘criminal’ beggar placed
within or perhaps rather ‘without’ the context of the relief of poverty. Literature, a rich historical source of public opinion, contains many stories about the deceit and cunning of beggars. These range from Chaucer’s cynical view of mendicant friars written in the fourteenth century,7 to Sir Arthur Conan’s Doyle’s fanciful urban myth about a ‘rich’ beggar written in the 1890s.8
These have modern media counterparts discussed by this writer elsewhere.9
Admittedly, it is an ahistorical methodology to read the present into the past, but it is equally ahistorical to fail to recognise certain continuities. Thus any reading of the statutes against begging reveals a continuous loathing and fear of beggars. After the devastation caused to the population by the Black Death in the mid-fourteenth century, the localised social structures of society underwent upheaval as survivors moved around for many reasons, including for the poorest, a new money value upon their labour in a decimated population. For others, no doubt, the loosened bonds of society allowed licence.10
An Ordinance of 1349 instructs that stocks are to be built in every town for the punishment of runaway labourers; the sections of an Act of 1388 order the poor to repair to their birthplace in order to be maintained there. The terms of a later statute, that of 1495, directs that vagabonds and beggars are to be set in those stocks for three days and three nights with a diet of bread and water and for six days for a second offence. Stocks and whipping places were placed in all the parishes of England where they were maintained until well into the nineteenth century and some survive today as historical curiosities. As much as poor law and vagrancy are legally distinct, this socio-legal
reconstruction acknowledges both poor law administration and the measures for the punishment of vagrants involve the legal treatment of the poor by the same officials and the same decision-making bodies. The legal differentiation in the treatment of the two groups is always initiated by the subjective decisions of those officials. Paupers must have sometimes been unjustly branded in all senses vagrant, just as some may have been fortunate to escape that designation. The term vagrant has a technical meaning; a person convicted of a vagrancy offence, much as a ‘pauper’ is legally defined as a person receiving poor relief. The parish constable had a duty to bring any beggar or destitute person found in the parish before the magistrates and therefore local officials made the initial decision as to the status of that beggar – vagrant or pauper? This process separates the vagrant from the poor law system and places him or her before the criminal law to be punished; that final decision rests with the justices.11 After punishment, vagrants are returned to their place of birth, thereby avoiding the complexities of settlement. In consequence, a poor person defined as a vagrant by the criminal process is subsequently excluded from the system of settlement examinations; in being subject to an order to return to his or her birthplace there is legal continuity with those earlier provisions concerning the movement of labourers.12
