Introduction: a history of forgetting

It may seem rather obvious to state that: ‘Poor law was law’; nevertheless, this basic legal truth has slipped from the consciousness of those researching and publishing nationally and internationally on the history of welfare in England and Wales; internationally as English poor law is ‘understood’ as the historical foundation of North American relief systems. As a result of this slippage, the legal underpinnings of that system of relieving poverty have been marginalised, misunderstood and forgotten. Although most current welfare textbooks make reference to welfare’s poor law past, few acknowledge that England and Wales (Scotland and Ireland have a different welfare history) possess the oldest continuous surviving legal system of welfare relief in Europe; a 400-year-old common law (later administrative law) locally funded and administered system of relieving poverty. This positive cultural norm deserves celebrating. In addition, the weight of such a socio-legal history ensures that many echoes of that past resonate in modern welfare law. In particular, these comprise some elements of localism and an acceptance, albeit sometimes grudgingly by both governments and citizens, that the poor will be relieved of their poverty. These aspects predate the modern welfare state by hundreds of years. One consequence of this neglect, the ‘forgotten’ of the title, is that many

scholars are unaware of the extent of those legal foundations that ensured poor law was not simply local custom, able to mutate over time in response to changing circumstances as other unofficially negotiated ‘social rules’. Rather, it constituted a slowly evolving fixed legal point of reference, which sometimes failed to adapt to significant social shifts. Indeed, once in place that law in turn fixed or hardened existing duties, roles and responsibilities that in the day-to-day negotiations of ordinary life normally modify and mutate over time. In this fashion, those legal aspects of poor law discussed in this book became entrenched within society creating long-term, if often unrecognised, legal norms. The most significant of these, discussed more fully in later

chapters, is the largely forgotten, often denied and hence underestimated legal right to relief. Such denial extends to legal scholars of welfare law (see below) who might, at the very least be expected to return to contemporary legal textbooks and precedents for clarification, but prefer instead to rely upon the expertise of social and other historians for their legal knowledge. Such is the level of ‘forgetting’ that this book’s fundamental assertion, that poor law encompasses a legal right to relief, remains controversial as counter to current orthodoxy amongst historians and in consequence a denial of this right has been followed in academic legal texts.2 Nonetheless, this work will set out legal ‘proofs’, supported by archival and other research, to reveal those legal obligations, rights and duties that account for and underpin all poor law activities. Those primary archival primary sources consulted by the author are from the North West of England but, as will become clear later, a broader survey is not required as legal answers provide an explanation for local and regional differences. On one level, this work constitutes a legal opinion that the law of settlement

and removal is at the heart of the poor law, that its doctrines encompass rights, duties and obligations by all citizens of England and Wales and that the settled poor possessed a legal right to relief. This conclusion emerges from research conducted in two dimensions. The first is concerned with small stories, microhistories of ordinary people and how they experienced law. The second dimension reconstructs law’s pervasiveness, its theoretical and doctrinal nature, development and influences. This produces meta-narratives of an overarching legal framework and the legal opinion with proofs, that the law of settlement and removal is the legal basis of poor law. Such an approach, involving often contradictory methodologies, destabilises an orthodox approach to legal history, hence the title of this work is a socio-legal rather than a social or legal history. The second level of the work constitutes a revisionist reconstruction of current orthodox interpretations of poor law’s history in order to [re] place that legal right correctly within its historical framework. In addition, Chapters 2 and 3 trace those contemporary juristic and contingent elements that have contributed to poor law historians adopting their incorrect legal stance. Chapters 5-9 reconstruct poor law’s legal past from a number of perspectives: that of reformers, protestors, the excluded, those who administer relief and those who receive it. In adopting a socio-legal analysis, this work demonstrates that poor law his-

tories and empirical research, viewed through the lens of law, fully substantiate the existence of a right to relief. This remains so even where historians themselves, as we shall see in Chapter 4, believe that they are revealing cultural or political patterns of social negotiation and not a legal framework. Finally, it is important to underline that despite much resonance and some survivals, poor law is not the same as modern welfare law. That consists of public administrative law operating within a central bureaucratic framework funded by a system of national taxation and directed by whichever government is currently

in power. On the contrary, poor law, until 1865 and in some aspects beyond, constitutes an overarching common law legal ‘system’ that encompasses local autonomy, local financial obligations, duties and responsibilities with ad hoc relief patterns. Within this ‘system’ the localities manifest individual characteristics according to specific and contingent financial, social and propertyowning circumstances. Nevertheless, all local parishes share two common elements. The first, that the Justices at Sessions annually ratify and supervise their poor law activities. The second, that all relief decisions are made in the context of a legal framework comprising the common law of settlement and removal, the right to relief, other legal ‘rules’ and established legal processes. This is not that model of exclusion, control and ‘undeserving’ that is increasingly popular as an academic reading of poor law; rather it reveals a complex, nuanced and sophisticated system based upon rights. In summary, this work maps one topographical layer of the long history of

the relief of poverty in England and Wales. It reconstructs poor law to 1865, by which time the centralised bureaucratic elements of modern welfare are established and poor law bears a markedly public-law character. This is, of course, not the final word; in challenging conventional non-legal assumptions about poor law the writer wishes to reopen a closed discussion. It is timely to refocus both lawyers and historians’ intellectual attention upon those rightsbased elements that socio-legal research reveals as a fundamental element of welfare’s past. For their part, historians have concentrated on discovering the nature, operation and changing social impact of the poor law from the archives rather than undertaking legal reconstructions. As we shall see in Chapter 4, they list statutes and name cases, but generally not according to appropriate legal methodologies, language and techniques. To take one example from 2000, Steven King includes a chapter on the ‘Legal Framework’ of poor law in his reconstruction.3 Here he asserts that: ‘Case law supported, modified or invalidated [sic] statute law’.4 A lawyer reading this would look for the word ‘interpret’. More esoterically but equally to the point, one of the most fascinating aspects of judicial interpretation until the twentieth century, and equally true of poor law, is its formalism; a topic that will be discussed in Chapter 2. In consequence, there is no legal basis for King’s suggestion that case law over-ruled poor law statutes, that is declared them ‘invalid’. This is possible today, for example under the legal authority of the terms of the Human Rights Act 1998, but is a modern development. Thus King’s ‘legal framework’ opens with a legal solecism. His law chapter is largely constructed around a narrative account of statutes sourced from the work of other historians, not legal texts. The overall effect explains why the legal history of poor law often repels historians; but it is considerably more than: ‘one damn statute after another’. In spite of the above comments, this absence of legal knowledge does not

represent academic failure. It is rather a manifestation of a lack of ‘law mindedness’; no different from that ‘history blindness’ afflicting many legal

academics. This lack, however, does partially explain why so many historians deny the existence of a legal right to relief. Of course, this writer acknowledges that historians produce detailed and scholarly analyses. These are derived from reconstructions undertaken within that abundance of surviving poor law archival materials. These records are held in the National Archives at Kew; in all local record offices; in many church vestries and in numerous other archives and private collections throughout England and Wales. Paradoxically, the explanation for the continued survival of these records is found in their legal nature, that they record poor law legal duties, rights and responsibilities. In consequence, both the existence and survival of these archives are evidence of the power and significance of that overarching framework of substantive legal rules surrounding the relief of poverty. More specifically, at base all these records owe their origins to three legal

imperatives contained within poor law. First, that every parish and vestry in England and Wales had a legal duty to raise a rate to maintain its poor under the authority of an Act for the Better Relief of the Poor 1601.5 Second, a common law presumption underpinning that Act and so understood and expressed in all subsequent case law, that every person born in England and Wales possessed a settlement somewhere and in that place a settled person was legally entitled to relief if destitute. That precise geographical place could only be established via legal interpretation of the ‘rules’ and precedents contained within the law of settlement and removal. The settlement entitlement was codified and first expressed in statute in 1662, whose formal title is An Act for the Better Relief of the Poor.6 For some reason, historians persistently cite this as the ‘Settlement Act’, one of a number of solecisms that will be noted and not followed throughout this work.7 The third imperative was that a poor person could only be removed to their settlement parish by operation of law if they appeared likely to, before 1795 (see Chapter 3), or actually sought poor relief. Thus, it was not social altruism and custom that motivated the provision of poor relief, rather long-standing legal ‘rules’. In short, underpinning all poor law documents recording the activities of officials administering the system, setting and collecting a poor rate, recording details of those relieved, indeed the very system of poor law itself, is the legal right of the settled poor to relief when destitute. From a lawyer’s perspective it appears perverse that this legal ‘truth’, constantly attested to in case law and stated within contemporary legal texts and Justices’ manuals, is rejected by historians and thus lost to legal and other academics who follow their lead. This book aims to undermine this incorrect yet persistent stance. One explanation for that law-blindness (more will be explored in Chapter 3) may be found in assumptions concerning the legal nature of the reforms implemented via the terms of the Poor Law Amendment Act 1834. This initiated the new poor law, a baby born of Benthamite positivism and Whiggish reformist theories of political economy. The birth of this baby heralded the arrival of the hated new poor law with its national system of prison-like workhouses. Although settlement law remained

after 1834 as did the right to relief, the manner of that relief became bureaucratised and the poor a problem to be contained, controlled and stigmatised out of their state of poverty. This direction cast the die for English welfare, pathologising poverty, and may have served to further influence historians’ continuing rejection of the existence of legal rights possessed by the poor. What is more, so influential and pervasive were the negative social effects of

those reforms that a cultural stigma surrounding poverty persists today despite the establishment of the Welfare State in 1948. This work reconstructs how elements of that new poor law mind-set developed and continue as negative assumptions and presumptions concerning the poor today. Such persistent deformation, dichotomising welfare values, represents a problem that continues to profoundly affect the modern application of welfare law, thus forming part of the inspiration for this book. For this reason, the work is not intended as a study of an historical curiosity but rather an exploration of when, how and why such negativity arose and how it continues to hold sway despite the ‘abolition’ of the last of those hated poor law remnants by the Beveridge reforms. In consequence of that past, the horrors of the post-1834 poor law system are well known, although not those positive rights-based aspects whose origins lie much earlier. There are other factors that may have contributed to current mis-

understanding of welfare’s legal past. The first is the persistence of a negative ideology prevalent within Sidney and Beatrice Webb’s poor law histories, prompted by their political agenda that saw little good in the poor law.8 Their works remain influential and although they have been subject to criticism they remain part of the poor law canon, for many scholars both in Britain and North America; they provide a wealth of detail unsurpassed in quantity and coverage. The second problematic is that the ‘abolition’ of poor law in 1948, swept away by the new broom of Beveridge, left a message that nothing in welfare’s past had value for society and the poor. The third is a result of that legal abolition; namely that poor law as a legal subject has utterly disappeared from legal practice and legal memory. Although the right to relief was diluted operationally by those many administrative and bureaucratic reforms from 1834 yet until abolition in 1948 all contemporary lawyers understood that the right existed and was so stated in all legal texts and sources. The fourth element derives from that last point; such legal knowledge was by the time of abolition a technical esoteric doctrinal matter and not an immediate matter of concern to poor law administration. It appears likely that all these factors helped to obscure the right to relief. That forgotten right is the focus of this study. In ‘forgetting’, hence dis-

missing, the legal, personally enforceable right to relief located within the possession of a legal settlement, historians have underestimated its role and significance within the lived experience of the poor. As a result, a ‘history of poverty’ has developed which denies the power and legal formality of that right or, at best, seriously underestimates its significance for the poor, local ratepayers and those who administered the system. This book aims to redress that

imbalance to provide an historical reconstruction of a ‘legal’ history of welfare placed within a wider traditional historical context. As a result, it is one reply to that rhetorical question posed by Richard Evans: ‘What has law to say to history?’ This writer suggests that for poor law studies at least, an interdisciplinary historico-socio-legal approach viewing welfare’s past through the lens of law opens other windows to that past to disclose an alternative landscape. Examining its topography reveals that poor law was law, that a legal framework informs all poor law activity and that there was a common law right to relief. Such rights, enforceable by the poor themselves are rare indeed and deserve to be remembered and celebrated. That is the purpose and function of this book. This aspect of welfare’s past will require further analysis once the legal

nature of poor law is acknowledged and returned to its rightful place within legal and other scholarship. Indeed, as Peter Bartlett suggests, the socio-legal project itself must recognise the fundamental challenge that history poses to academic law. Chief amongst these is an acceptance by doctrinal legal scholars that:

The message from history, however is that the rights of Englishmen … [and others] … are in fact not transcendent at all, but contingent, flowing from political and social factors in the past. In part this reenforces an important lesson for lawyers, socio-legal and otherwise: the rights we have, such as they are, were won through political struggle and they are therefore always at risk. Complacency is not an option.9