Under England's Old Poor Law between 1601 and 1834 welfare activities were highly organised on a local, community basis. However, this was not reliant upon the formula of mere voluntary association. On the contrary, local parish vestries operated under the authority of legal duties and obligations, set out within and enforced by the common law of England and Wales, its Justices of the Peace, Quarter and County Sessions and senior law courts. Local communities held joint and personal legal liabilities and were subject to sanctions for misconduct, including failure to perform their duties. These sanctions ranged from fines to terms of imprisonment; with possible criminal charges including manslaughter for failure to act if a poor person died of want.
Though many of the key personnel involved, such as Poor Law Overseers, were typically not paid for their services, these actions were far from merely voluntary, and this is why the system worked. This was a world positively motivated, where the overarching framework of the common law allowed local flexibility but the assurance that the legal duties would be carried out. David Cameron's notion of a 'Big Society' of mutuality and volunteering, without careful attention to a framework of legal as well as fiscal obligations, is purely mythical, in the sense that it has no sanction in British history.
It is therefore regrettable that one of our finest legal traditions, that of the right of the poor to be relieved, is now forgotten both by scholars and by policymakers concerned with the future of welfare. This legal right, which existed long before the modern concept of human rights, was once a fundamental aspect of our legal economy. Its legacy ensures that some form of welfare for all citizens, visitors and others, is embedded within British society with an acceptance, albeit sometimes grudgingly by both governments and citizens, that the poor will be relieved. These aspects predate the post-World War II welfare state by hundreds of years. However, the forgetting of welfare's legal past has permitted many political and policy positions that do not take into account a fundamental, historical legal norm: that the poor had a right to relief within a common law structure that bound the population of England and Wales in a mutuality of rights, duties and obligations, both legal and financial. The evidence of this is overwhelming and is found in the huge numbers of cases in the Law Reports held in every legal library in England and Wales, in those statutes that amended the legal position over time, in contemporary Justices' Manuals and in legal texts dealing with all aspects of poor law.
It is important, however, to acknowledge that poor law was not the same as modern welfare law. The latter 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, until 1865 and in some aspects beyond that date, poor law constituted an over-arching common law legal system with local elements of autonomy, financial obligations, duties, responsibilities and ad hoc relief patterns based upon the parishes and townships of England and Wales. Quite lawfully within this system, the localities manifested individual characteristics according to geographical, financial, social and property-owning circumstances. However, all relief decisions were 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.
Although poor law was abolished, its cases still survive as precedents within our common law system. It is within this framework, for instance, that the Court of Appeal heard a judicial review in 1996 (R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants), which challenged a decision by the Secretary of State creating regulations to exclude asylum seekers who were designated economic migrants from claiming urgent case payments. The Court of Appeal upheld that challenge. Simon Brown LJ considered the relevant legislation and precedents but also cited as legal authority for his decision the reasoning of Lord Ellenborough in the settlement case R v Eastbourne (Inhabitants) (1803):
As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving...
In his choice of a settlement precedent we observe two matters. First, that in 1803 a right to relief had been confirmed even for those who did not belong, that is did not possess a legal settlement, a matter discussed below. Second, that poor law, its cases and presumptions, continues to be a live part of our legal present, speaking from the past to remind governments of the continuity and power of the common law and its tradition of protecting personal rights.
In spite of the above, for many of those scholars writing about the history of welfare in England and Wales, even the basic legal truth that 'poor law was law' has slipped from collective consciousness. As a result, the legal underpinnings of that system of relieving poverty have been marginalised, misunderstood, forgotten and denied. Although most current welfare textbooks make reference to welfare's poor law past, few acknowledge that England and Wales (but not Scotland and Ireland, which each have a different welfare history) possess the oldest continuous legal system of welfare relief in Europe. This is a 400-year-old locally funded and administered common law system of relieving poverty that more recently developed as a branch of public law.
Such is the degree of forgetting that the legal reality that the poor law encompassed a right to relief remains unrecognised or at best denied even among many historians. That right was founded upon the possession of a legal settlement, and to that end it may be stated as a legal opinion that the Law of Settlement and Removal was at the heart of the poor law. Its doctrines encompassing rights, duties and obligations by all persons living in England and Wales such that the settled poor possessed a legal, enforceable right to relief from their place of settlement. This is the legal foundation for hundreds of years of poor relief payments in England and Wales. Record offices all over England and Wales bear testimony to the sustained efforts of thousands of local vestries (latterly County and Borough Councils) from the sixteenth to the twentieth century, in actively dealing with the problems of the poor. Whatever the personal motives and individual methods of those participants, poverty was relieved, local taxes on property were raised and local people occupied themselves with their responsibilities within a framework of legal obligations enforced by the common law courts.
From a lawyer's perspective it appears perverse that poor law's legal foundations are underestimated by legal historians and thus lost to others in the policy arena who follow their lead. One possible explanation for this law-blindness may be found in the influence of those reforms implemented via the terms of the Poor Law Amendment Act 1834. This initiated the New Poor Law with its national system of prison-like workhouses. Although the right to relief remained and settlement law was largely unreformed, the manner of that relief became both bureaucratised and brutalised according to the terms of the Act and was only supposed to be available under conditions of 'less eligibility', that is, less favourable than those of the very poorest wage workers living off a subsistence income. Consequently, the poor came to be seen as a problem to be contained and controlled. What is more, so influential and pervasive have been the negative aspects of those reforms that a cultural stigma surrounding poverty persists today despite the establishment of the Welfare State in 1948.
In addition, other factors continue to influence current misunderstanding of welfare's legal past. The first is the persistence of a negative perception of the role of settlement in poor law, as concerned mainly with removal of persons, and not with the protection of rights. The second is that the abolition of poor law in 1948 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 disappeared from legal education, practice and legal memory. As a result, a history of poverty has developed which does not take into account the power and formality of the poor law's legal aspects, or at best seriously underestimates their significance for the poor, for local ratepayers and for those who administered the system.
The emergence of common law poor law is technically dated from the Act of 1601, which constituted the legal authority for all poor relief in England and Wales until 1948 and was so expressed in the case law. Although that Act may be read as innovative in part, it also embodied crucial legal presumptions underpinning and pre-dating it in a series of earlier, less complete poor law statutes enacted during the previous seven post-Reformation decades. Most importantly, the obligation by each parish to relieve the poor was understood as in earlier statutes but was not articulated. Secondly, who was to be relieved, was also understood or partially set out in the earlier statutes: that is a person born in the parish, or who had resided there for three years. This constituted the settlement entitlement. Finally, in its terms this Act of 1601 cloned the ecclesiastical parish into a civil parish, whose residents were instructed to appoint annually unpaid parish officials to administer the poor law, marking the birth of English local government, and the first co-opted 'Big Society'.
The terms of the 1601 Act emphasised the civil administrative aspects of poor law. In brief, each parish was responsible for raising a poor rate from each resident householder, on the progressive taxation principle of being proportionate to the value of the property they occupied, and according to local financial need. This rate was set annually taking into account any money in hand, parish assets and parish debt outstanding from the previous year's expenses; it was demand-led and essentially uncapped. This figure and the parish accounts were presented to, and ratified annually by, the Justices of the Peace, or magistrates, at Sessions. As a result each householder in a parish or township, including the poor, had a legal obligation to contribute to the poor rate and failure to do so led to the seizure of goods and imprisonment until full payment was made. Hence the system contained both financial and enforcement mechanisms supervised by all local Justices at Sessions. Finally, this structure constituted a poor law system operating under the common law. Admittedly this system was not initially fully operational, nor in any way resembled modern centrally supervised welfare bureaucracies. Nevertheless, it constituted all the necessary legal and administrative elements that were to underpin and provide legal authority for poor relief for the next three hundred and fifty years in England and Wales.
Further details of each person's settlement entitlement were clarified in an Act for the Better Relief of the Poor of this Kingdom, 1662, often erroneously titled the 'Settlement Act'. The terms of this Act confirmed that the 'settled poor' of any place were entitled to a share of the poor rate and added details of how settlement was acquired. The residence qualification set out in the terms of early post-Reformation statutes was shortened to '40 days at the least'. In juristic terms, this Act formalised the legal status of possessing a settlement and was expressed as the legal authority for such in all subsequent case law. Settlement was from then on clarified as a legal right possessed by a settled individual who had an enforceable legal claim to a share of the poor rate when destitute. In addition, the Act was concerned with the removal of those poor not possessing a settlement in the place where they lived. Their removal was achieved through formal court hearings. However, the Removal Order could only be made to a specific named parish where the Justices were satisfied, from legal proofs, that the pauper possessed a settlement.
There was a right of appeal by that named parish to Quarter Sessions, but only on the grounds that the poor person did not possess a settlement in their parish or for procedural errors. These appeals could continue to the highest level, over time creating many thousands of settlement cases in the Law Reports. To summarise, in its earliest form settlement as a common law right was acquired simply through birth or residence. However, gaining and proving a legal settlement became an increasingly technical matter. This law continued to evolve from those terms introduced and understood in the 1662 Act, via further amending statutes and developing case law, to become extremely complex and the major source of contemporary lawyers' incomes, equivalent to that earned from British criminal law practice today.
Settlement law thus protected and delineated legal civic status. It provided all individuals with legal recognition of their membership of a specific collectivity - a parish - and an undeniable right to the common wealth of that parish. An individual could only be settled in one specific geographical place. The acquisition of settled status elsewhere automatically destroyed the previous settlement and responsibility for maintaining that person then lay with the new settlement parish. Any person could exchange their place of settlement for another via the qualifying rules for each head of settlement. A woman acquired her husband's settlement upon marriage, a family's settlement always followed the father's settlement and thus they were removed as a unit by one legal action. Individuals who had qualifying status acquired a settlement wherever they resided. Anyone, including the 'better sort' could be removed by legal process if they became destitute and had not acquired a settlement in the removing parish.
In order to access aid a poor person would approach a parish official to request relief and once in receipt of relief, he/she was referred to as a 'pauper' - a legal term. The first legal requirement was to demonstrate that they were destitute, this initial decision lying within the subjective judgement of that official. It is this gateway decision that has caused much confusion and an emphasis upon conditionality, negotiation and local custom as explanations for poor relief payments. These factors may explain why officials sometimes refused relief but not why they were often overruled by the Justices. No matter how much any vestry (the governing body of each parish) wished to reduce or restrict relief, the legal position thwarted them.
Any poor person could approach a magistrate - in his court, in his home or even on the hunting field - state their destitution, explain that aid had been refused and ask for help. The magistrate could, and often did, make an Order and relief then had to be given. This was not an appeals procedure, on the contrary it represented a long-standing personal right that was eventually given a procedural formality in the terms of an Act of 1714. Parish officials were bound to assist the pauper and obey the magistrate's Order, failure to do so was contempt of court and officials incurred a personal liability. Most remarkably, this cost the applicant nothing at all.
Thus, settlement was not something imposed upon the poor; it was the source of their fundamental legal right to receive aid. It was also the explanation for the centuries of unexciting regular sums paid in relief and recorded by every vestry in England and Wales, all those uncontested payments which were annually ratified by Justices. Total expenditure on the poor law amounted by the early-nineteenth century to fully 2 per cent of GNP, at that time by far the most well-funded welfare system in Europe.
This was the position under the legal authority of the Acts of 1601 and 1662, and it remained so after the implementation of the terms of the Poor Law Amendment Act 1834. However, there were major direct changes in the lives of paupers, as the 1834 Act's draconian sections declared that the able bodied poor could only be relieved in a workhouse in regimented prison-like conditions. Equally significant was the loss of a precious personal entitlement: a poor person's right to seek an Order from a Justice for relief payments was abolished. From then on Justices could only order relief in kind or medical aid and these solely in an emergency. Technically, this did not abolish the right to relief for the settled poor, as that constituted the legal foundations of, and explanation for, poor relief provision. However, this removal of a personal enforceable right to apply for relief payments from a Justice was truly a low point in English legal history. Even the modern Welfare State has nothing as powerful in its armoury, if indeed it can be said to be rights based at all.
With this legal development, the common law of poor law began its mutation into the public law of welfare. The personal common law rights of the poor were slowly submerged under bureaucratic decision-making processes. In this shift, poor relief as a legal obligation between fellow parishioners eventually mutated into the modern public law relationship between the individual and the state. However, local vestries especially in the North of England operated around the margins of the Act to exploit continuing elements of their legal autonomy. Each parish or vestry in England and Wales paid for its settled paupers whether in or out of the Union workhouses. In addition, each parish was still required to account to its own ratepayers for poor law expenditure and have those accounts annually verified by local Justices. Consequently, in the absence of actual fraud, parishes could spend as much as they liked and how they liked; their legal responsibility was to relieve their settled poor under the continuing authority of the 1601 Act. Nothing in the 1834 Act changed this fundamental legal rule.
However, the reforms of 1834 and after made a great difference to the poor and there is sufficient evidence of poor law protest and local resistance to show how bitterly this loss of legal rights was resented. Those reforms ensured that destitution increasingly became a route into the new Union workhouses for many. Almost unanimously, those historians who consider this matter have concluded that the poor were expressing cultural and social norms, not legal rights. Poor law historians do not seem to have been prepared to listen to their witnesses, which is not only poignant and regrettable but also misleading. For the poor, the rights they claimed were indeed the legal rights they believed them to be. The poor law reforms of 1834 expressed a cultural shift in economic and thus social relations within English society, which permitted the creation of a punitive welfare system, whose basic norm was a mistrust of a large section of the poor, whom many believed - and still believe - were responsible for their own destitution.
It is evident that the workhouse and the New Poor Law are part of Britain's heritage, to the extent that the National Trust have restored Southwell Poor Law Union, Nottinghamshire for public enjoyment. Underpinning that heritage, bringing a frisson of vicarious empathy to Southwell's paying visitors, lies the social stigma and fear surrounding the New Poor Law, creating a cultural norm that survives and continues to influence aspects of modern welfare provision. It is that norm which influenced a desire for reform leading to the Beveridge Report of 1942. This in turn produced the modern Welfare State, but modern welfare is disconnected from those original pre-1834 poor law personal rights, duties and obligations protected and enforced under the law of settlement and removal.
There was no revival of the personal right to relief once possessed by the settled poor. This is unsurprising in that that right has been consistently undervalued, marginalised, denied and forgotten. This is not to minimise the subjective elements in the amounts and manner poor relief was given, nor to deny that proving destitution allowed discretion to parish officials; elements today understood as conditionality. However, the actions after 1834 of both the Government in London and local responses in Ireland during the disastrous Great Famine of the 1840s illustrates how little relief might have been given to the poor in England and Wales over previous centuries without those legal rights protected by the settlement entitlement. Irish poor law in the 1840s was implemented under the terms of the post-1834 New Poor Law in the form of the Poor Relief (Ireland) Act 1838, which introduced a financially capped scheme and specifically excluded the right to relief, with truly tragic and deplorable consequences.
Those who remain in denial concerning the legal nature of the historic right to relief, including historians, lawyers and policy-makers, necessarily focus on the relief of poverty as a gift of the state; largely reconstructing those aspects of a past where the poor supposedly existed to be judged, improved or watched constantly for fraud. This is a dire model in our current economic climate, but one which may well have appeal to the Coalition Government. Instead it is worth remembering that we have continuously relieved poverty in England and Wales for hundreds of years through many economic and political crises. A reconstruction of that legal past demonstrates that welfare is not simply the brave new world of Beveridge, but a fundamental cultural and legal norm long embedded within our society. As Britain faces financial crisis it is timely to consider how currently fashionable notions of conditional welfare rights draw upon the operative elements that were fundamental within the New Poor Law, but do not accurately reflect a longer-term and longer-lasting welfare system.
How might a future, reformed welfare system look, if based on the personal, legal and humanitarian rights which are, in fact, more consistent with the legal history and practice of welfare provision in England and Wales during the greater part of the last four centuries?
Steve Hindle, On the Parish? The Micro-Politics of Poor Relief in Rural England c.1550-1750 (Oxford: Clarendon Press, 2004).
Lynn Hollen Lees, The Solidarities of Strangers. The English Poor Laws and the People, 1700-1948 (Cambridge: CUP, 1998).
Keith Snell, Parish and Belonging. Community, Identity and Welfare in England, 1700-1950 (Cambridge: CUP, 2006).
E.P Thompson, Customs in Common (London: Penguin Books, 1991).
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