* Associate Professor and Director of the Gillis Long Poverty Law Center, Loyola University School of Law.
1. E. M. Leonard, The Early History of English Poor Relief 2 (1900).
2. Sir Frederic Eden, The State of the Poor (1797) at 5. This is a three volume work but all cites in this article are to volume 1 unless otherwise noted.
3. While some overviews of English Poor Law seek to review a longer period from antiquity to 1834, the main focus of this review of the history of English Poor Law on will be restricted to the period prior to 1776, with brief mention of major developments from 1776 to 1834.
T.W. Fowle, The Poor Law 55 (Fred B. Rothman & Co. 1980) (1893), divides the history of poor laws in England into three time periods: first, down to the death of Elizabeth in 1603, or more strictly to the famous Act which definitely established poor relief in England in 1601; second, down to a somewhat uncertain date, for which the accession of George III in 1760 may be taken as a convenient point; and third, down to the Reforms of 1834.
Major sources for research on the Poor Laws include: Ross Cranston, Legal Foundations of the Welfare State (1985); Karl de Schweinitz, England's Road to Social Security (1943); Eden, supra note 2; Fowle, supra; Leonard, supra note 1; George Nicholls, A History of the English Poor Law ) (Frank Cass & Co. Ltd., 1967) (1854); Robert C. Palmer, English Law in the Age of the Black Death 1348-1381 (1993); Robert Steinfeld, The Invention of Free Labor: The Employment Relationship in English and American Law and Culture: 1350-1870 (1991); Sidney and Beatrice Webb, English Local Government: English Poor Law History: Part I (1927); Jacobus tenBroek, California's Dual System of Family Law: Its Origin, Development, and Present Status, Part I, 16 Stan. L. Rev 257, 258-291 (1964).
For the ease of the reader, this author has taken the liberty of changing the spelling of words from the earlier English in one respect only: the older English frequently used the letter f where today the letter s would be used and, for purposes of this paper, that has been changed into s. For example, Sir Frederic Eden's book, supra note 2, at 63, contains the following sentence: "In this ftatute, and in the 12th of richard the second, we may obferve the great outlines of a fyftem of compulfory maintenance, which is commonly imagined to have originated in confequence of the Reformation." In this article the f's are switched to s's.
4. de Schweinitz, supra note 3, at v, notes the importance of this field of study:
Those who are interested in the development of social security in the United states are turning today, as they have for many years to Great Britain . . . . For more than six hundred years, English statesmen and other English leaders have been writing in statute and in literature the record of their attempts to deal with insecurity and human need. Everything we have addressed to this end derives from their experience or has been influenced by it.
Nothing in philosophy or principle that could be called our own began to develop with respect to the problem of poverty until well toward the end of last century. Only after 1930 did the discussion of the subject reach the place of importance in our national forum that it occupied in Parliament since the reign of Henry VIII. . . . So it is that the person who is interested in the expedients that have been tried in the past, in the shifts of theory and in public policy, and in the thought and action out of which the concept of social security has developed, will find his sources of basic information in the wealth of documents and books that have come to us from Great Britain.
Id.
5. Perhaps, the Parliament recognized, as did Edmund Burke, the direct, important relationship between the working poor and those of greater means:
To provide for us in our necessities is not in the power of Government. It would be a vain presumption in statesmen to think that they can do it. The people maintain them, and not they the people. It is in the power of the government to prevent much evil, it can do very little positive good in this, or perhaps anything else. It is not only so of the State and statesman, but of all the classes and descriptions of the rich; they are the pensioners of the poor, and are maintained by their superfluity. They are under an absolute, hereditary, and indefeasible dependence on those who labour, and are miscalled the poor.
Fowle, supra note 3, at first unnumbered page. As another observer noted:
The relationship between work and the payment of poor relief obsessed poor-law policy makers. The common morality, strengthened by the ethos of capitalism, was grounded in the belief that all could obtain work and success who wanted them. The unemployed were consequently classed as less deserving than the lame, impotent, aged and blind. The implication of the common morality was that the poor-law authorities should manipulate the poor-law system so as to force the poor to work.
Cranston, supra note 3, at 39. Cranston goes on to say that the workhouse and the labour tests of the New poor law embodied this idea in its most developed form. Id.
6. tenBroek, supra note 3, at 270:
Any welfare system primarily operates upon and is for the benefit of the working classes of the nation and must be regarded, in modern times no less than the Middle Ages, as an indispensable part of the overall system of labor legislation. Whatever might be said in welfare terms of the necessity to deal with the particular needs of individuals and their families, the unemployed segment of the population stands in an economic and social relationship to the employed segment. . . . At its origins and during its sixteenth century evolution, the poor law was an integral part of the overall system of labor controls, and its characteristics derive partially from that source.
7. de Schweinitz, supra note 3, at 2.
8. Cranston, supra note 3, at 14, argues "Slavery was never an accepted status in England, although English law recognized it as the valid law of other jurisdictions." Though he acknowledges that serfs in England could not freely dispose of property, leave the service of the lord without permission, could not vote or stand for election because they did not own property, could not serve on juries or be a magistrate.
9. For example, those slaves who lived on the land of the lord nearest his mansion (or Latin "villa") were called "villeins," while the collection of cottages where they lived was called the village. Nicholls, supra note 3, at 15-16. They provided services for the lord from in-house help to farming to trades. Id. While the highest ranking of these were given tracts of land designated for their own support, they and all they "possessed" remained property of the lord. Id.
10. Id. at 13-27. Long after the year 1225 they were considered as a saleable commodity.
In 1283 a slave and his family were sold by the abbot of Dunstable for 13s. 4d; in 1333 a lord granted to a charity several messuages, together with the bodies of eight natives (villeins) dwelling there, with all their cattle and offspring; and in 1339 we meet with an instance of a gift of a nief (a female slave), with all her family, and all that she possessed, or might subsequently acquire.
Id. at 26.
11. Eden, supra note 2, at 6-7. Eden further notes that people were transferrable by deed or sale; and in fact, an author of the time declared "that from the reign of King William the First to that of King John, there was scarcely a cottage in Scotland that did not possess an English slave." Id. at 7.
12. George Macaulay Trevelyan, History of England, vol I, 18 (1927)(stating that by the 14th Century "the amalgamation of the races was all but complete.").
13. Walter I. Trattner, From Poor Law to Welfare State 6-8 (5th ed. 1994).
16. Palmer,. supra note 3, 16; see also 3 William Holdsworth, A History of English Law 491 (5th ed. 1973).
The villeins were a composite class. They were made up of those slaves which were known to the Anglo-Saxon law and of those free yet dependent cultivators of the soil whose tenure was defined by Norman lawyers to be unfree. These diverse classes were thrown together by the Norman and Angevin lawyers and classed as villeins; and under the influence of conceptions borrowed from Roman law many of the rules and maxims of the Roman conception of slavery were applied to them. Their lord had absolute power over their bodies and their goods. He could sell them and treat them as he pleased; for they were his chattels.
Id.
17. Christopher Hill, Puritanism and Revolution 220 (1958).
18. 1 Nicholls, supra note 3, at 21-27. "Under these circumstances, the poor, the aged, and the impotent, were encumbrances undeserving of care or consideration; and if they could not obtain subsistence by begging or stealing, they were left to starve." Id. at 21.
19. de Schweinitz, supra note 3, at 5, points out that growth of the wool industry accelerated the movement of workers from country to city. The industry was growing so much that it was exporting cloth by the late 1300s. Id.
20. Trattner, supra note 13, at 6-8. See Palmer, supra note 3, at 16-17; Leonard, supra note 3, at 17.
21. de Schweinitz, supra note 3, at 13.
From this period forward, casual employment, underemployment, intermittent employment, seasonal employment, cyclical employment would be the portion of the worker. At the same time, an industrial civilization would be baffled by the problem of how to provide him with an equivalent of the provision against sickness, old age, and the other personal exigencies which, however inadequate, had been the corollary of serfdom.
Id. Serfdom, while never formally abolished, phased out but existed long enough that it was necessary to pass legislation in 1799 to release Scottish colliers from lifetime servitude. 39 Geo. III, ch. 56 (1799) (Eng.); see also Cranston, supra note 3, at 16.
22. Leonard, supra note 3, at 2.
23. Larry C. Backer, Of Handouts and Worthless Promises: Understanding the Conceptual Limitations of American Systems of Poor Relief, 34 B. C. L. Rev. 997 at 1032-1041 (1993).
24. It is difficult to overestimate the power of biblical texts on society's collective consciousness involving the law. For this is not simply a question of believers versus nonbelievers. Even for those many who have no belief in the sacredness of scripture, the themes and sayings of the bible permeate contemporary understandings, e.g. responsibility (Exodus 34:28, ten commandments), relationships with family (Genesis 4:1-16, Cain and Abel), and obligations to neighbors (Luke 10:33, the good samaritan).
25. The Old and New Testament include many indications of a special protective relationship with the poor.
Exodus 22: 21-22: "You must not be harsh with the widow, or with the orphan; if you are harsh with them, they will surely cry out to me, and be sure I shall hear their cry."
Isaiah 10: 1-2: "Woe to the legislators of infamous laws, to those who issue tyrannical decrees, refuse justice to the unfortunate and cheat the poor among my people of their rights, who make widows their prey and rob the orphan."
Deuteronomy 25: 14-15: "You are not to exploit the hired servant who is poor and destitute, whether he is one of your brothers or a stranger who lives in your towns. You must pay him his wage each day, not allowing the sun to set before you do, for he is poor and is anxious for it; otherwise he may appeal to Yahweh against you, and it would be a sin for you."
Psalm 10: 17-18: "Yahweh, you listen to the wants of the humble, you bring strength to their hearts, you grant them a hearing, judging in favor of the orphaned and exploited, so that earthborn man may strike fear no longer."
Matthew 25:34-40: "Then the King will say to those on his right hand, "Come you whom ny Father has blessed, take for your heritage the kingdom prepared for you since the foundation of the world. For I was hungry and you gave me food; I was thirsty and you gave me drink; I was a stranger and you made me feel welcome; naked and you clothed me, sick and you visited me, in prison and you came to see me. Then the virtuous will say to him in reply, "Lord, when did we see you hungry and feed you; or thirsty and gave you drink? When did we see you a stranger and make you feel welcome; naked and clothe you; sick or in prison and go to see you?" And the King will answer, "I tell you solemnly, in so far as you did this to one of the least of these brothers of mine, you did it to me."
26. Proverbs 3:27-28: "Do not refuse a kindness to anyone who begs it, if it is in your power to perform it. Do not say to your neighbor, 'Go away! Come another time! I will give it to you tomorrow, if you can do it now."
Tobit 4: 7-11: "Set aside part of your goods for almsgiving. Never turn your face from any poor man and God will never turn his from you. Measure your alms by what you have; if you have much, give more; if you have little, give less, but do not mean in giving alms. By doing so you will lay up for yourself a great treasure for the day of necessity. For almsgiving delivers from death and saves men from passing down to darkness. Alms is a most effective offering for all those who give it in the presence of the most high."
Matthew 19:21: "Jesus said, "If you wish to be perfect, go and sell what you own and give the money to the poor, and you will have treasure in heaven; then come, follow me."
27. There are also parts of scripture that demand that the poor exert themselves on their own behalf.
Proverbs 10: 4: "The slack hand brings poverty, but the diligent hand brings wealth." or 11:16: "The indolent lack resources, men of enterprise grow rich." or 21:17 "Pleasure-lovers stay poor, he will not grow rich who loves wine and good living." Famous also is Paul's directive in 2 Thessalonians 3:10: "We gave you a rule when we were with you; not to let anyone have food if he refused to do any work."
28. Thomas Aquinas, Summa Theologica I-II, Q. 32, Art. 5, (Fathers of the English Dominican Province, trans. 1947):
As love of our neighbor is a matter of precept, whatever is a necessary condition to the love of neighbor is a matter of precept also. Now the love of our neighbor requires that not only should we be our neighbor's well-wishers, but also his well-doers, according to 1 John 3:18: Let us love not in word, nor in tongue, but in deed and in truth. And in order to be a person's well-wisher and well-doer we ought to succor his needs: this is done by almsgiving. Therefore almsgiving is a matter of precept.
Id.
On the part of the recipient it is the requisite that he should be in
need, else there would be no reason for giving him alms; yet since it is
not possible for one individual to relieve the needs of all, we are not
bound to relieve all who are in need, but only those who could not be succored
if we did not succor them. For in such cases the words of Ambrose apply:
feed him that dies of hunger: if thou hast not fed him thou hast slain
him.
Accordingly we are bound to give alms of our surplus, as also to give alms
to one whose need is extreme; otherwise almsgiving, like any other greater
good, is a matter of counsel.
Id.
34. Brian Tierney, Medieval Poor Law: A Sketch of Canonical Theory and its Application in England 12 (1959).
35. Eden, supra note 2, at 62.
36. Tierney, supra note 34, at 15 (quoting Gratian saying "[t]he bishop ought to be solicitous and vigilant concerning the defense of the poor and the relief of the oppressed.").
37. Trattner, supra note 13, at 4-7; see also Leonard, supra note 3, at 18-20; Webb, supra note 3, at 16-19.
38. Backer, supra note 23, at 1034-35, notes the amount to be given to the poor was that "sufficient to prevent death or utter destitution."
39. There was a general obligation to contribute funds to the church in order for them to give some of them to the poor. Tithing or contributions to the church were to be divided into three equal parts and distributed to church maintenance, assistance for the priests, and the poor. de Schweinitz, supra note 3, at 17.
40. Backer, supra note 23, at 1036, points out that "The primary purpose of ecclesiastical poor relief was to prevent destitution. The notion that poor relief could actually end the dependency of the poor, however defined from time to time, was neither part of the consciousness nor even of the vocabulary of the creators of the system." Id.
41. Genesis 3:19: By the sweat of your brow you shall get to eat bread.
42. Backer, supra note 23, at 1032-37, notes Aquinas citing both to Ambrose and Augustine suggests almsgiving to those who are known and that no more than is necessary to be given. See also supra note 28-33 and accompanying text (discussing Aquinas).
43. 1 Nicholls, supra note 3, at 194; see also Eden, supra note 3, at 94-95; Leonard, supra note 3, at 63-64.
44. de Schweinitz, supra note 3, at 18-19.
45. Sidney and Beatrice Webb, English Local Government From the Revolution to the Municipal Corporations Act: The Parish and the County (1906). The parish is described in detail in several chapters. See id. at 9-279.
46. Webb & Webb, supra note 3, at 6; Tierney, supra note 34, at 2-4.
47. Webb & Webb, supra note 3, at 6-7.
48. Id. at 10-16; Max Radin, The Doctrine of the Separation of Powers in Seventeenth Century Controversies, 86 U. Pa. L. Rev 842, 843 (1938).
Now on one point there can be no controversy. There was no hint or trace of separation of powers in the common law's conception of governmental authority. The common law is first of all a special development of the medieval feudal law as it was administered in England by feudally thinking kings through agencies and commissions which grew chiefly out of the exigencies of their household management. This feudal concept was combined with the canonical concept whereby the king, as the head of the secular part of the Church, had the duty of protecting the Church and maintaining justice.
Id.
49. Webb & Webb, supra note 3, at 156.
50. Bertha H. Putnam, The Enforcement of the Statute of Labourers During the First Decade After the Black Death (1908). Putnam's was the most authoritative treatise on the Statutes of Labourers and how it was applied in the first 10 years after it was enacted. See also de Schweinitz, supra note 3, at 1-6.
51. Karl Polanyi, The Great Transformation 179 (1944) (discussing the decline of feudalism in the early fourteenth century). Palmer, supra note 3, at 3-4 (stating that the first Black Death killed approximately one-third of the population).
52. Joel F. Handler, The Poverty of Welfare Reform 10-13 (1995); de Schweinitz, supra note 3, at 2-4; Nicholls, supra note 3, at 36-42; 2 Thomas Skyrme, History of the Justices of the Peace 22-24 (1991).
53. Lewis C. Vollmar, The Effect of Epidemics on the Development of English Law from the Black Death through the Industrial Revolution, 15 J. Legal Med. 385, 387 (1994); A. R. Bridbury, The Black Death, 26 Econ. Hist. Rev. 577 (1973); Putnam, supra note 50, at 1-3.
54. 1 Nicholls, supra note 3, at 37, said: "The poorer classes suffered most, and it has been said that one-half the population were destroyed by this dreadful visitation." See also Palmer, supra note 3, at 3-4 (suggesting the death of upwards of a third of the population in the first outbreak of the Black Death).
55. Palmer, supra note 3, at 139-140.
56. Webb, supra note 3, at 24.
57. Statute of Laborers, 1349, 23 Edw. 3 (Eng.) (the first Statute of Laborers), reprinted in 2 Stat. at Large (Eng.) 26 (Danby Pickering ed., 1762); Statute of Laborers, 1350, 25 Edw. 3 (Eng.) (the second Statute of Laborers), reprinted in 2 Stat. at Large (Eng.) 31 (Danby Pickering ed., 1762); see 1 Nicholls, supra note 3, at 37-39 ("The two statutes . . . are identical in their object and must be taken as forming one enactment."); Palmer, supra note 3, at 1348-1381 (1993), and others, call the first statute the Ordinance of Laborers, the second is called the Statute of Laborers, and date the second statute to 1351. Id. at 17.
58. 2 Holdsworth, supra note 16, at 459-460; see also Leonard, supra note 3, at 3 ("After the Black death of 1348-9, labourers were scarce and wages rose rapidly; a series of enactments was therefore passed, designed to force every able-bodied man to work, and to keep wages at the old level.").
59. Statute of Laborers, preamble, 1349, 23 Edw. 3, (Eng.), reprinted in 2 Stat. at Large (Eng.) 26 (Danby Pickering ed., 1762).
60. A.L. Beier, Masterless Men: The Vagrancy Problem in England 1560-1640 22-28 (1985).
61. Steinfeld, supra note 3, at 18-19.
62. Id. at 19-20. Many of the laborers and artificers had been servants, saved up their money, got married and moved out of the master's residence to set up their own household. Id. at 34.
64. Statute of Laborers, 1349, 23 Edw 3, ch. 1 (Eng.), reprinted in 2 Stat. at Large (Eng.) 26 (Danby Pickering ed., 1763).
65. Steinfeld, supra note 3, at 3-4.
66. Statute of Laborers, 1349, 23 Edw 3, ch. 1 (Eng.), reprinted in 2 Stat. at Large (Eng.) 26 (Danby Pickering ed., 1762).
69. Steinfeld, supra note 3, at 28-32. Steinfeld indicates the evidence is unclear whether casual labor was subjected to imprisonment for premature departure before these laws. Id. at 77.
70. Statute of Laborers, 1349, 23 Edw. 3, ch. 3 (Eng.), reprinted in 2 Stat. at Large (Eng.) 26, 27 (Danby Pickering, ed., 1762).
71. Id. at ch. 5 (2 Stat. at Large at 28).
72. Id. at ch. 8 (2 Stat. at Large at 29-30).
73. 1 Nicholls, supra 3, at 38.
74. Beier, supra note 60, at 4.
75. Statute of Laborers, 1349, 23 Edw. 3, ch. 7 (Eng.), reprinted in 2 Stat. at Large (Eng.) 26, 29 (Danby Pickering ed., 1762); 1 Nicholls, supra note 3, at 36.
76. There was some controversy over whether the prohibition on the giving of alms was a statute consistent with or inconsistent with the laws of god. See Radin, supra note 48, at 854.
77. Statute of Laborers, 1349, 23 Edw. 3, ch. 8 (Eng.), reprinted in 2 Stat. at Large (Eng.) 26, 30 (Danby Pickering ed., 1762).
78. Statute of Laborers, 1350, 25 Edw. 3 (Eng.), reprinted in 2 Stat. at Large (Eng.) 31 (Danby Pickering ed., 1762).
79. Putnam, supra note 50, at 2.
80. Statute of Laborers, preamble, 1350, 25 Edw. 3 (Eng.), reprinted in 2 Stat. at Large (Eng.) 31 (Danby Pickering ed., 1762).
81. Id. at ch. 1-7 (2 Stat. at Large at 32-35).
82. Id. at ch. 2 (2 Stat. at Large at 32).
83. Id. (2 Stat. at Large at 33). Stocks were to be made for this express purpose before "the feast of Pentecost."
84. Steinfeld, supra note 3, at 34-37.
85. G. Slater, The English Peasantry and the Enclosure of the Common Fields 130 (1907), quoted in Snell, Annals of the Labouring Poor 169, quoted in Steinfeld, supra note 3, at 34:
In the open field village, the entirely landless labourer was scarcely to be found. The division of holdings into numerous scattered pieces, many of which were minute size, made it easy for a labourer to obtain what were in effect allotments in the open fields. If he had no holding, he might still have a common right, if no acknowledged common right, he might enjoy the advantage of one in a greater or less degree.
86. Steinfeld, supra note 3, at 35.
87. Statute of Laborers, 1350, 25 Edw. 3, ch. 1 (Eng.), reprinted in 2 Stat. at Large (Eng.) 31 (Danby Pickering ed., 1762).
88. Y.B. 11 Hen. 6, 1, quoted in Master and Servant in Viner, General Abridgement of Law and Equity 330, quoted in Steinfeld, supra note 3, at 36.
89. Statute of Laborers, 1350, 25 Edw. 3, ch. 2 (Eng.), reprinted in 2 Stat. at Large 31, 32-33 (Danby Pickering ed., 1762).
90. Id. at ch. 7. For examples of how these courts operated and the types of cases they handled, see Elaine Clark, Medieval Labor Law and English Local Courts, 27 Am. J. Legal Hist. 330 (1983); L.R. Poos, The Social Context of Statute of Labourers Enforcement, 1 L. & Hist. Rev. 27 (1983); Putnam, supra note 50.
91. 34 Edw. 3 (1360) (Eng.) (dated 1361 by Palmer) and 37 Edw. 3 (1363) (Eng.) (dated 1364 in Palmer), also further regulated labor. For example, the 1360 law, 34 Edw. 3, ch. 10 (Eng.), reprinted in 2 Stat. at Large (Eng.) 141 (Danby Pickering ed., 1762), allowed for branding the forehead of fugitive laborers, while the later legislation restricted craftsmen to one craft, 37 Edw. 3, ch. 6 (1363) (Eng.), and merchants to one kind of merchandise, id. at ch. 5 (2 Stat. at Large at 162-163).
12 Rich. 2, ch. 3 (1388) (Eng.) prohibited any servant or laborer from departing from his dwelling area to serve or dwell elsewhere unless he has written permission to travel outside his area under the King's seal. Servants were allowed to change jobs at the end of their term and go elsewhere as long as they had written authorization for moving about which mentioned where the worker is to be working.
2 Hen. 6, ch. 18 (1423) (Eng.) authorized justices of the peace to imprison servants for accepting excessive wages.
92. de Schweinitz, supra note 3, at 6.
93. 149 Edinburgh Review contains an article by Mr. Senior on Poor Law Reform which says the origin of the English Poor Laws "was an attempt substantially to restore the expiring system of slavery." 1 Nicholls, supra note 3, at 45. Nicholls agrees that the extensive regulation of labor may be so described, but he sees the regulation of vagabondage as "the open palpable evil of the day" and the legitimate object of part of the legislation. Id. at 45-46.
Slavery, compensated labor and the nonworking poor all impact on each other when they co-exist, and as slavery phases out. The presence of slavery obviously diminished the need to fairly compensate workers. As slavery was phasing out, there was increased upward pressure on compensation, but also an increase in the nonworking poor. Even if the poor were no longer slaves, there was no protection against forced work. The Statutes were a vigorous attempt to preserve the status quo as it existed before the Black Death, attempting to coerce both the upper and lower class to accept their obligations inherent in the prior order. Palmer, supra note 3, at 1, 17.
In the times when serfdom was breaking down, and when the statutes of labourers provided what might be regarded as a kind of substitute for it, provisions as to vagrancy were practically punishment for desertion. The labourer's wages were fixed; his place of residence was fixed; he must work where he happens to be.
James F. Stephens, A History of the Criminal Law of England 274 (1883), quoted in Harry Simon, Towns Without Pity: A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons From American Cities, 66 Tul. L. Rev. 631, 636 (1992). There was "a determined attempt to bring the labourers back, as nearly as practicable, to the servile conditions of preceding generations." Webb & Webb, supra note 3, at 25.
As tenBroek observed, "[t]he lash of necessity, the terrors of the jailhouse, and legally imposed geographical and occupational mobility were the devices used to drive men to work at wages pegged to earlier times and conditions." tenBroek, supra note 3, at 271.
94. Marc Linder, The Employment Relationship in Anglo-American Law: A Historical Perspective 45-62 (1989). Eden, supra note 2, at 37, concurs: "The object of this statute seems to have been, to benefit the master, rather than the servant, by fixing a maximum for wages . . . ."
95. tenBroek, supra note 3, at 270. There are suggestions that the point of the statues was to regulate the work force by category, no longer divided between free and unfree, but between workers already occupied and those available for work. Palmer, supra note 3, at 15.
96. Eden, supra note 2, at 40:
Parliament might, and indeed must, have known, that a limitation of
the wages of labour to the ancient rate, whilst the price of all the necessaries
of life, but more particularly of corn, the principal article of subsistence
in these times, was continually varying, must have exposed the people
frequently to great distress, and impelled them to practice every species
of evasion.
Id. While wages were capped in these laws, later actions of Parliament said wage-fixing was contrary to free-market principles, but only when the workers wanted local justices of the peace to raise the wages. Wages of Artificers, 1813, 53 Geo. 3, ch. 40 (Eng.); see also Cranston, supra note 3, at 17.
97. Palmer, supra note 3, at 24-25. The result of these Statutes of Laborers was substantial change: from no regulation to comprehensive regulation of the worker; a change from a market self-regulation to governmental regulation; change from a laissez faire approach to a paternalistic approach. Id. at 140.
98. Clark, supra note 90, at 334, 344 (1983).
99. There was concurrently a considerable amount of social legislation being enacted in other European countries. See Webb & Webb, supra note 3, at 29-42.
100. 22 Hen. 8, ch. 12 (1531) (Eng.).
101. Beier, supra note 60, at 16-17.
102. Leonard, supra note 3, at 16-17.
104. Eden, supra note 2, at 61, saw, even in 1797, the connection between progress and impoverishment:
Without the most distant idea, therefore, of disparaging the numberless benefits derived to this country from manufactures and commerce, the result of this investigation seems to lead to this inevitable conclusion, that manufactures and commerce are the true parents of our national Poor; and to justify the (by no means unreasonable, or captious) opinion of those, who think that it is particularly incumbent on persons engaged in manufactures, and commerce, to help maintain them.
Id.
105. 22 Hen. 8, ch. 12 (1531) (Eng.).
106. Justices of the peace were of critical importance to the operation of the poor laws. 2 Skyrme, supra note 52, at 94, suggests that by the end of the eighteenth century the administration of the poor laws occupied the largest portion of the justices' time, even though the day to day work was done by the overseers.
Justices had many other obligations: judicial duties, raising and collecting taxes, responsibilities in the local militia, overseeing maintenance of the highways, and police functions. Included in the police function was the quelling of rebellions and local riots. To help quell riots, the Riot Act of 1715 was passed which made it a capital offense for a crowd of 12 or more persons to remain together for more than 1 hour after the local justice of the peace had read a proclamation from the Riot Act ordering them to disperse. Id. at 93.
107. 22 Hen. 8, ch. 12 (1531) (Eng.).
109. Beier, supra note 60, at 9.
111. 22 Hen. 8, ch. 12. (1531) (Eng.).
113. Id. 1 Nicholls, supra note 3, at 120, says while this may seem extraordinary today, the sight of scholars and other begging would not have seemed unusual in that day:
The priests and inferior clergy were all, more or less, beggars or solicitors of alms, and those of the mendicant orders were professedly such; so that, partly from custom and partly from teaching and example, not only was begging tolerated, but the profession of a beggar was regarded as not being disgraceful.
Id.
114. 22 Hen. 8, ch. 12. (1531) (Eng.).
115. 1 Nicholls, supra note 4, at 118-119.
116. Trattner, supra note 13, at 8-9.
117. 12 Rich. 2, ch. 7 (1388) (Eng.) directed "the beggars impotent to serve" to abide in the towns where they were then living or move back to the town where they were born.
118. 11 Hen. 7, ch. 2 (1495) (Eng.).
119. 19 Hen. 7, ch. 12 (1504) (Eng.).
120. 27 Hen. 8, ch. 25 (1536) (Eng.), reprinted in 1 Stat. at Large (Eng.) 387 (Danby Pickering ed., 1762).
121. 28 Hen. 8, ch. 10 (1536) (Eng.); 31 Hen. 8, ch. 13 (1539) (Eng.).
122. Fowle notes that this was a very difficult time both for vagrants and laborers, and for the nation as a whole: "[a]t no time were the vagrancy laws more severe or more severely administered than in the reign of Henry VIII. . . . But during this time of social dislocation and religious strife the labourer did but share the fate which befell all that was best and worthiest in the nation. Fowle, supra note 3, at 56.
123. A quotation from the Reverend Robert Burns's Historical Dissertation on the Law and Practice with Regard to the Poor, and the Modes of Charity, p. 50, quoted in Nicholls, supra note 3, at 128.
124. 27 Hen. 8, ch. 25, § 9 (1536) (Eng.).
129. Some suggest this is the first creation of public works and also the first recognition that there may be able-bodied beggars because there is no work available. Trattner, supra note 13, at 9.
130. de Schweinitz, supra note 3, at 23.
131. 27 Hen. 8, ch. 25, § 1 (1536) (Eng.).
133. O. Kahn-Freund, Blackstone's Neglected Child:
The Contract of Employment, 93 L. Q. Rev. 508, 518 (1977); quoted
in Cranston, supra
note 3, at 21. Cranston noted that "One of the blackest parts of poor
law history was the transfer of poor children to the mills and factories
of industrial Lancashire and Yorkshire, supposedly under the provisions
of poor apprentices." Id. at 21 n.36.
134. 27 Hen 8, ch. 25, § 10 (Eng.), reprinted in 4 Stat. at Large (Eng.) 388 (Danby Pickering ed., 1762).
Ten years later, Parliament went even further and enacted a statute allowing branding of idle vagrants with the letter V and enslavement to "any person who shall demand him," and fed on bread and water. 1 Edw. 6, ch. 3 (1547) (Eng.). This law repealed the 1531 and 1536 acts but was itself repealed three years later and the 1531/1536 system of licensing beggars was reinstated. de Schweinitz, supra note 3, at 24.
135. According to Leonard, supra note 3, at 22-46, these national laws built on the experiences of cities like London and their prior attempts to regulate begging and poor relief.
136. Together, the acts of 1531 and 1536 established "the first comprehensive system of relief under governmental auspices." de Schweinitz, supra note 3, at 22. Similar principles were being established on the European continent. See id. at 30-38.
137. See Statute of Artificers, preamble, 1563, 5 Eliz., ch. 4 (Eng.), reprinted in 6 Stat. at Large (Eng.) 159 (Danby Pickering ed., 1762).
138. Poos, supra note 40, at 94; Vollmar, supra note 53, at 400 (noting a widespread influenza epidemic in 1557-1558 with "significant" mortality).
139. tenBroek, supra note 3, at 271-272.
140. Donald Woodward, The Background to the Statute of Artificers: The Genesis of Labour Policy, 1558-63, 33 Econ. Hist. Rev. 32, 42 (1980); see also Steinfeld, supra note 3, at 23.
141. Statute of Artificers, 1563, 5 Eliz., ch. 4, § 3 (Eng.), reprinted in 6 Stat. at Large (Eng.) 160-61 (Danby Pickering ed., 1762).
142. Id. at § 5 (6 Stat. at Large at 161).
143. Id. at § 17 (6 Stat. at Large at 168).
144. Id. at § 19 (6 Stat. at Large at 168-72).
145 Id. at § 15 (6 Stat. at Large at 167).
146. Id. at § 6 (6 Stat. at Large at 159).
147. Id. at § 4 (6 Stat. at Large at 160).
148. Id. at § 10 (6 Stat. at Large at 164).
149. Id. at § 6 (6 Stat. at Large at 161-62).
150. Id. (6 Stat. at Large at 162).
151. Id. at § 7 (6 Stat. at Large at 162-63). The original statutes of labourers were expanded in 1388 to prohibit servants and laborers from leaving their local community, even at the end of their term of labor, without written authorization. 12 Rich. 2, ch. 8 (1388) (Eng.).
152. Statute of Artificers, 1563, 5 Eliz., ch. 4, § 8 (Eng.), reprinted in 6 Stat. at Large (Eng.) 163 (Danby Pickering ed., 1762).
153. Id. at § 9 (6 Stat. at Large at 163).
154. Id. at § 11 (6 Stat. at Large at 164).
155. Id. at § 13 (6 Stat. at Large at 166-67).
156. Id. (6 Stat. at Large at 167).
157. 2 Holdsworth, supra note 16, at 467; see also Linder, supra note 94, at 54.
158. Cranston, supra note 3, at 17, as such, it was considered by some as progress from the feudal positioning which is set by birth or by the master alone, but only an intermediate step in the progress towards freedom to contract.
Others considered it another imposition of the usual punitive remedies on a new situation, "a system of complete paternalism" where workers "had little choice of the type of work or of employer and no chance to bargain for wages." tenBroek, supra note 3, at 272-73.
159. Linder, supra note 94, at 51.
160. 1 Nicholls, supra note 3, at 189; An Act for the Relief of the Poor, 1601, 43 Eliz., ch. 2 (Eng.), reprinted in 7 Stat. at Large (Eng.) 37-37 (Danby Pickering ed., 1762). As Trattner notes, this is actually the culmination of laws passed in 1597 and 1598, with one major addition, the extension of liability for support to grandparents. Trattner, supra note 13, at 11.
161. de Schweinitz, supra note 3, cited in Cranston, supra note 3, at 15.
162. tenBroek, supra note 3, at 258.
While little different from the Act for Relief of the Poor, 1597-98, 39 Eliz., ch. 3 (Eng.) and An Act for the Punishment of Rogues, Vagabonds, and Sturdy Beggars, 1597-98, 39 Eliz, ch. 4 (Eng.), the 1601 statute, which incorporated the principles of these two laws, stood as the definitive comprehensive statement of poor laws until the reforms of the mid 1800s.
163. Stefan A. Riesenfeld, The Formative Era of American Public Assistance Law, 43 Cal. L. Rev. 175, 178 (1955).
164. Id.; see also previous discussions by the Webbs about the parish and its evolution into a unit of government, supra notes 45-49.
165. Backer, supra note 23, at 1039-41.
166. An Act for the Relief of the Poor, 1601, 43 Eliz., ch. 2, § 1 (Eng).
176. Id. at § 6. This included erecting cottages which had only recently been outlawed. See 31 Eliz, ch. 7 (1588) (Eng.).
177. An Act for the Relief of the Poor, 1601, 43 Eliz 1 ch. 2, § 6. The goal of reducing the costs of poor relief is thought of as being a significant part of the reason for the passage of this provision. Daniel Mandelker, Family Responsibility Under the American Poor Laws, 54 Mich. L. Rev. 497, 500 (1956).
178. Riesenfeld, supra note 163, at 199.
179. An Act for the Relief of the Poor, 1601, 43 Eliz., ch. 2, § 3 (Eng.).
180. tenBroek, supra note 3, at 279.
181. 1 Nicholls, supra note 3, at 192-93.
182. Riesenfeld, supra note 163, at 178. He sees the reasons for this as "the recognition of public assistance as a new governmental function became, at the end of the sixteenth century, an economic, social and political necessity precipitated by the rise of an agricultural proletariat which was spawned by the agricultural revolution." Id. at 179.
184. 1 Adam Smith, The Wealth of Nations 61 (1776).
185. Poor Relief Act, 1662, 14 Car. 2, ch. 12, § 1, (Eng.), reprinted in 8 Stat. at Large (Eng.) 94-95 (Danby Pickering ed., 1762). This provision allows the removal of any new person who lives "in any tenement under the yearly value of ten pounds," not only if they are unemployed or a rouge or vagabond, but even if they "are likely to be chargeable to the parish." Id.
186. 1 Nicholls, supra note 3, at 281-82, notes that the 10 pound annual rental amount was proof of the metropolitan origin of the bill since country rents for laborers rarely exceeded 20 shillings and the rents for people in the skilled trades might only double or triple that amount. The concerns of the urban authorities were not only limited to having to provide relief for the poor but also overcrowding.
The dread of London becoming over-populous which prevailed from Elizabeth's days downwards, and the proclamations which were issued from time to time prohibiting the erection of new buildings, and against people resorting thither, to which the frequent outbreak of pestilence was attributed, all pointed to such power of removal, and would no doubt be urged in parliament as valid grounds for the present Act.
Id. at 282.
187. Riesenfeld, supra note 163, at 198.
188. Stephen Loffredo, "If You Ain't Got the Do, Re, Me": The Commerce Clause and State Restrictions on Welfare, 11 Yale L. & Pol. Rev. 147, 155-156 (1993).
While not the very first act promulgated to keep non-native beggars and the poor away from a local community, it was the most comprehensive and far-reaching. For example, the Act for the Punishment of Vagabonds, and for Relief of the Poor and Impotent, 1572, 14 Eliz., ch. 5, provided that all poor persons who had not either been born in the place where they now resided or lived there for the past three years should be removed to the place of their birth. Riesenfeld, supra note 163, at 189.
For a detailed discussion of prior acts of Parliament and local practices, see id. at 181-98.
189. Poor Relief Act, 1662, 14 Car. 2, ch. 12, § 1 (Eng.), reprinted in 8 Stat. at Large (Eng.) 94 (Danby Pickering ed., 1762).
190. Id. This provision allows the removal of any new person if they are unemployed or a rouge or vagabond, but also if they "are likely to be chargeable to the parish." Id.
191. Id. at § 3 (8 Stat. at Large at 95).
192. Id. at § 1 (8 Stat. at Large at 94).
193. An Act for Supplying Some Defects in the Law for the Relief of the Poor of This Kingdom, 1696-97, 8 & 9 Will. 3, ch. 30, (Eng.), reprinted in 10 Stat. at Large (Eng.) 105-09 (Danby Pickering ed., 1762).
194. Id. at § 1 (10 Stat. at Large at 105-06).
196. Id. at § 4 (10 Stat. at Large at 108).
Later judicial interpretation of this one year provision was prompted by parishes battling over who had to support paupers. Linder, supra note 94, at 57-58 points to one such decision which concluded that a 13 year old servant girl never settled in a parish even though she lived and worked there for more than a year because the one-year law did not apply to servants at all, only laborers, since servants usually resided in the home of their masters and never actually on their own to set up an abode.
197. An Act for Supplying Some Defects in the Law for the Relief of the Poor of This Kingdom, 1696-97, 8 & 9 Will. 3, ch. 30, § 2 (Eng.), reprinted in 10 Stat. at Large (Eng.) 106 (Danby Pickering ed., 1762). This is the first open legal stigma of poor people in English law, if you do not count the temporary act of being placed in the stocks, nor the branding of idle vagrants. Recall that since 1547 the law directed idle vagrants to be branded with the letter V, sent to the place of their birth and then compelled to labor as virtual slaves on bread and water for two years. 1 Edw. 6, ch. 3 (1547). Stigma has always been used to identify those who decent society must shun and this is one of the prime examples. See discussion of stigma and badging in David P. Tedhams, The Reincarnation of "Jim Crow:" A Thirteenth Amendment Analysis of Colorado's Amendment 2, 4 Temp. Pol. & Civ. Rts. L. Rev. 133, 151 (1994):
Bentham disputed the premise that badging in the poor laws was degrading, saying:
Degrading a man is turning a man down from the class in which you find him, into another class which is below it. The badge marks the class in which it finds him: and there it leaves him.
Quoted in Paul Stickler, Stigma and Social Welfare 12 (1984).
198. An Act for Supplying Some Defects in the Law for the Relief of the Poor of This Kingdom, 1696-97, 8 & 9 Will. 3, ch. 30, § 2 (Eng.), reprinted in 10 Stat. at Large (Eng.) 107 (Danby Pickering ed., 1762).
200. Cranston, supra note 3, at 35.
201. Id. at 34-39. He notes that it was not until the nineteenth century that a body of opinion emerged;
which argued that poverty was caused not only by personal weaknesses, but also by other factors such as accident (which might cause unemployment of a bread-winner), old age (associated with the loss of a capacity to earn) and economic recession (over which the individual had no control). Public policy gradually recognized this approach with measures such as workers' compensation, old-age pensions, national insurance, and state expenditures to generate employment.
Id. at 35.
202. Paul Slack, The English Poor Law 1531-1782, 37 (1990).
Parishes had to keep bundles of settlement certificates and approach justices for removal orders; sessions had to appear after appeal against removal and deal with disputes between parishes. The absurdity of removing a migrant from one parish to another in the same town, and of settlement squabbles between small, often neighbouring parishes in the countryside, was one powerful argument for larger poor-law units . . . .
Id.
203. Cranston, supra note 3, at 23.; 2 Skyrme, supra note 52, at 101.
204. The King v. Birmingham 104 Eng. Rep. 597 (K.B. 1811).
205. 1 Nicholls, supra note 3, at 282.
206. Poor Relief Act, 1662, 14 Car. 2, ch. 12, § 3 (Eng.), reprinted in 8 Stat. at Large (Eng.) 95 (Danby Pickering ed., 1762).
207. For a detailed discussion of parishes, see supra notes 45-49 and accompanying text.
208. de Schweinitz, supra note 3, at 79.
209. Fowle, supra note 3, at 63-64.
210. Two acts of parliament recognized the need in America for servants and thereby punished criminals and the poor by sending them to America as indentured servants. An Act for the further preventing Robbery, Burglary, and other Felonies, et al., 1717, 4 Geo., ch. 11 (Eng.) made two declarations: first, current laws against robbery, larceny and other felonies were not working and not deterring people from lives of crime; and secondly, the American colonies had a "great want of servants." Therefore, the law directed that those who had been sent to any workhouse or those who had been convicted of larceny or stealing may be sent to the colonies in America as indentured servants for seven years. People convicted of crimes punishable by death could be sent to America for 14 years. Returning early subjected the person to execution as a felon. Nicholls observes that for purposes of this law "pauperism and crime are thus treated as equal offences." Nicholls, supra note 3, at 4, n.1.
A subsequent law, An Act for the further Punishment of such Persons as shall unlawfully kill or destroy Deer in Parks, Paddocks, or other inclosed Grounds, 1718, 5 George, ch. 28 (Eng.), punishes deerslaying by transportation to a plantation in the American colonies where offenders were to be punished as indentured servants for 7 years.
211. 3 Stephen, supra note 93, at 204, quoted in Hicks v District of Columbia, 383 U.S. 252, 255 (1966) (Douglas J., dissenting). The laws of settlement are also faulted for stopping England from creating a national labor market. Karl Polanyi, The Great Transformation 105 (1944). "The tendency of the Act of settlement in 1662 was directly contrary to any rational system of labor exchanges, which would have created a wider market for labor . . . ." Id.
212. de Schweinitz, supra note 3, at 39. Not until Edwards v. California, 314 U.S. 162 (1941), and Shapiro v. Thompson, 394 U.S. 618 (1969), did the fundamental effects of these laws of removal and settlement truly begin to legally phase out. There remain many contemporary echoes of these laws in the current treatment of the homeless. See e.g., Simon, supra note 93, at 631 (showing the direct line from the vagrancy and settlement parts of the poor laws to current efforts to oust the impoverished).
213. The Poor Relief Act, 1722, 9 Geo., ch. 7 (Eng.).
215. An Act for the Relief of the Poor, 1601, 43 Eliz., ch. 2, §1 (Eng.).
216. 2 Skyrme, supra note 52, at 96. Outdoor relief was criticized by some as too generous and creating incentives not to work, so, for them, the workhouse system was a logical response. Consider Daniel Defoe's thoughts on the reason for poverty: "Tis the men that won't work, not the men that can get no work, which makes the numbers of our poor." Daniel Defoe, Giving Alms No Charity and Employing the Poor a Grievance to the Nation 27 (photo. reprint 1970) (1704).
217. Webb & Webb, supra note 3, at 212-13.
218. An Act for erecting of Hospitals or abiding and working Houses for the Poor, 1597-98, 39 Eliz. ch. 5 (Eng.) empowered individuals to create hospitals and "abiding places" which were authorized both "for the sustentation and relief of the maimed poor, needy or impotent people," and "to set the poor to work." 1 Nicholls, supra note 3, at 185. 21 Jam., ch. 1 (1624) (Eng.) reauthorized 39 Eliz., ch. 5 (1597-98) (Eng.) in an act entitled "An Act for the Erecting of Hospitals and Working-houses for the Poor." 1 Nicholls, supra note 3, at 233.
219. In 1697, several parishes in Bristol were allowed to form a union and have a common workhouse. 1 Nicholls, supra note 3, at 353. In 1703, 2 & 3 Anne, ch. 8 (Eng.), authorized Worcester to create a corporate workhouse. Plymouth, in 6 Anne, ch. 46 (1707) (Eng.) was similarly authorized. See also Cranston, supra note 3, 40-41. Workhouses were previously created in some other areas pursuant to the general enabling clause of the 1601 Poor Law which allowed local authorities to execute all other things which seemed convenient.
220. Fowle, supra note 3, at 60-61.
221. 2 Nicholls, supra note 3, at 17. Unfortunately, as Nicholls later notes, it was really not in the interest of those who ran the workhouses for workers to find good jobs and leave. "This was particularly the case in many of the large incorporations, the mangers of which, by endeavouring to make a profit of pauper labour, went a long way towards making all the laboring population paupers." Id. at 102.
222. Eric A. Posner, Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom of Contract, 24 J. Legal Stud. 283, 310 (1995).
223. The Poor Relief Act, 1722, 9 Geo., ch. 7, (Eng.). Not until 36 Geo. 3, ch. 23 (1796) (Eng.) was this prohibition on home relief repealed. See infra note 250.
224. The Poor Relief Act, 1722, 9 Geo., ch. 7, (Eng.).
225. See supra note 197 regarding stigma; see also Tedhams, supra note 198, at 151.
226. Eden, supra note 2, at 283.
227. Webb & Webb, supra note 3, at 219-64.
228. Rules of Kendal Workhouse, 1797, quoted in Eden, supra note 2, at 754-57, reprinted in 11 English Historical Documents (1783-1832) 446-48 (David C. Douglas, ed. 1959).
229. 2 Skyrme, supra note 52, at 97-98.
230. Martha S. West, The Case Against Reinstatement in Wrongful Discharge, 1988 U. Ill. L. Rev 1, 6.
England's poor laws supplemented the mandatory work requirements of these statutes [Statutes of Labourers and Artificers]. Under the poor laws, an unemployed person physically able to work, a "sturdy beggar," was assigned to forced labor or, later, in the 17th and 18th centuries, was sent to the workhouse. One way a propertyless person could protect himself from unemployment and the workhouse was to keep himself always bound by a one-year contract of service with a master.
Id.
231. Statutes allocating the responsibility to the parish to secure employment opportunities included An Act to amend the Laws for the Relief of the Poor, 1819, 59 George 3, ch. 12, § 12; (Eng.); An Act to amend an Act of the Fifty-ninth Year of His Majesty King George the Third, for the Relief and Employment of the Poor, 1 & 2 Will. 4. ch. 42 (1831) (Eng.); An Act for the better Employment of Labourers in Agricultural Parishes until the Twenty-fifth Day of March 1834, 1832, 2 & 3 Will. 4, ch. 96 (Eng.).
232. Susan Bennett, The Threat of the Wandering
Poor: Welfare Parochialism and Its Impact On The Use Of Housing Mobility
As An Anti-Poverty
Strategy, 22 Fordham Urb. L. J. 1207, 1209 (1995). "Poorhouses
suffered from managerial difficulties in staffing and budgeting. In addition,
theoretical conflicts over whether rehabilitation or punishment was the
proper mission of the poorhouse translated into additional problems in
programmatic implementation." Id.
233. Slack, supra note 202, at 42; see also Skyrme, supra note 52, at 98:
For a time the new institutions, which were virtually independent and which were copied in a number of areas, thrived and met with general approval, at least from the upper classes. They did not, however, achieve the high hopes of their founders and they ultimately fell into disrepute. In practice, the management of houses of industry came to be left in the hands of officials, the directors and acting governors not taking the trouble to attend meetings or to visit the houses. Moreover, outdoor relief continued to be paid and it increased as parishes came to realize that it was cheaper to proceed in this way instead of maintaining people in work in the houses. Consequently the poor rate was not reduced as it had been expected. The poor themselves preferred relief instead of being dragooned into the institutions.
Id.
234. John Scott, Observations on the Present State of the Parochial and Vagrant Poor 37 (1773), quoted in de Schweinitz, supra note 3, at 66.
235. An Act for the better Regulation of the Parish Poor Children, of the several Parishes therein mentioned, within the Bills of Mortality, 1767, 7 Geo. 3, ch. 39, (Eng.).
236. de Schweinitz, supra note 3, at 67-68.
237. An Act for the better Relief and Employment of the Poor, 1782, 22 Geo. 3, ch. 83 (Eng.).
240. Speenhamland Decision, 6 May 1795, reprinted in English Historical Documents, supra note 228, at 415.
241. 2 Nicholls, supra note 3, at 131.
242. Cranston, supra note 3, at 40-41.
243. Beier, supra note 60, at 21.
244. de Schweinitz, supra note 3, at 69-70.
245. Id. at 71; see also Raymond Cowherd, Political Economists and the English Poor Laws 11 (1977):
To equip the army and navy and to subsidize the allies, the Government's expenditures greatly exceeded its revenues. Wartime inflation, the dislocation of trade, and a bad harvest brought the country to a crisis in 1795. Rioting, hungry mobs seized grain in transit and threatened to disrupt the flow of military materials.
Id.
246. 2 Skyrme, supra note 52, at 98.
248. 2 Nicholls, supra note 3, at 132.
249. Trattner, supra note 13, at 50.
250. Poor Relief Act of 1795, 36 Geo. III, c. 23. (1795) (Eng.) (amending The Poor Relief Act, 1722, 9 Geo., ch. 7, (Eng.). Two later attempts to regulate wages nationally in accordance to the Speenhamland system failed in parliament. Bills by Mr. Whitbread in 1795 and 1800 indexed wages to the price of provisions but failed to pass. 2 Nicholls, supra note 3, at 133.
251. de Schweinitz, supra note 3, at 73.
253. Webb & Webb, supra note 3, 182-85.
254. 2 Skyrme, supra note 52, at 99.
255. Webb & Webb, supra note 3, at 185-86.
256. Polanyi, supra note 212, at 93.
257. de Schweinitz, supra note 3, at 76.
258. Polanyi, supra note 212, at 78. According to Polanyi, a national market for labor in England was first stymied by the law of settlement which effectively bound workers to the parish of their birth. Once settlement was starting to loosen in 1795, the Speenhamland scale was implemented and the creation of a national labor market was further retarded. Speenhamland, for Polanyi, was a paradox: intended to help labor, it ended up hurting labor. Employers had no incentive to raise wages since the parish would supplement them. Workers had no incentive to please their employer since wages would remain the same no matter what the employer did. While wildly popular at onset, its "result was ghastly."
Unanticipated problems included penalizing the poor who owned small parcels of land, because land ownership precluded receipt of relief, so farmers fired all help who owned land because their wages could not be supplemented by the relief rolls. Id. at 96-97.
259. de Schweinitz, supra note 3, at 77-78, notes that the parish as the unit of administration was too small to administer and supervise the wage supplementation system or to provide an adequate public works program. Remember that In 1834, for example, there were 15,000 parishes with, on average, less than 1,000 people per parish. Id. at 79.
Even Polanyi, supra note 212, at 95, no friend of Speenhamland, agrees that the "parish was too small a unit for Poor Law administration."
The Poor Law was administered locally; every parish a tiny unit had its own provisions for setting the able-bodied to work; for maintaining a poorhouse; for apprenticing orphans and destitute children; for caring for the aged and infirm; for the burial of paupers; and every parish had its own scale of rates. All of this sounds grander than it often was; many parishes had no poorhouses; a great many more had no reasonable provisions for the useful occupation of the able-bodied; there was an endless variety of ways in which the sluggishness of local ratepayers, the indifference of the overseers of the poor, the callousness of the interests centering on pauperism vitiated the working of the law.
Id. at 87; see also Webbs & Webb, supra note 3, at 156 n.1., pointing out that of the 15,000 or so parishes with separate poor law authorities in 1831, there were 6681 parishes or townships with less that 300 persons or 70 families in them; 80% of all parishes and townships had less than 200 families.
260. August 14, 1834 was the day the recommendations of the Royal Commission were enacted into law. August 14, 1935, 101 years later, Franklin Delano Roosevelt signed into law the Social Security Act.
261. Anthony Brundage, The Making of the Poor New Law: The Politics of Inquiry, Enactment, and Implementation, 1832-1839, 182 (1978).
That such a reorganization of social control became necessary and possible in the 1830s testifies to the serious crisis in the relationship between rich and poor, particularly in the countryside that was evident by 1815. From the viewpoint of landed leaders, this crisis took the form of an increasingly numerous, truculent, and work-shy peasantry who sent poor rates spiraling at a time of agricultural depression. When thwarted in the demands for relief, the poor responded by appeals to liberal magistrates, intimidation of parish officers, and, most ominously, attacks on property.
Id.
262. de Schweinitz, supra note 3, at 114.
264. R.H. Tawney, Religion and the Rise of Capitalism (1926) writes of the rise of a puritan religious perspective that valued work and industry so highly that the poor, and even those who assisted them, were at best misguided and at worst immoral. This was a reversal of the early religious duty to be charitable towards the poor. He sums up this new religious perspective as:
That the greatest of evils is idleness, that the poor are the victims, not of circumstances, but of their own "idle, irregular and wicked courses," that the truest charity is not to enervate them by relief, but so to reform their characters that relief may be unnecessary-such doctrines turned severity from a sin into a duty, and froze the impulse of natural pity with the assurance that, if indulged, it would perpetuate the suffering which it sought to allay.
Id. at 267. Remember also that Adam Smith had recently articulated the economic doctrine of laissez faire in Wealth of Nations. Smith, supra note 185.
265. Joseph Townsend, A Dissertation on the Poor Laws by a Well-wisher to Mankind, (U.C.L.A. Press 1971) (1786).
269. T. R. Malthus, First Essay on Population (1798) reprinted in 11 English Historical Documents, supra note 229, at 422-25. Malthus's argument that the poor laws enhanced population growth are evaluated and discounted in James P. Huzel, The Demographic Impact of the Old Poor Law: More Reflections on Malthus, 33 Econ. Hist. Rev. 367 (1980).
270. "To the bewilderment of thinking minds, unheard-of wealth turned out to be inseparable from unheard-of poverty." Polanyi, supra note 211, at 102.
271. 2 Nicholls, supra note 3, at 218.
272. Statutes allocating the responsibility to the parish to secure employment opportunities included An Act to amend the Laws for the Relief of the Poor, 1819, 59 George 3, ch. 12, § 12; (Eng.); An Act to amend an Act of the Fifty-ninth Year of His Majesty King George the Third, for the Relief and Employment of the Poor, 1 & 2 Will. 4. ch. 42 (1831) (Eng.); An Act for the better Employment of Labourers in Agricultural Parishes until the Twenty-fifth Day of March 1834, 1832, 2 & 3 Will. 4, ch. 96 (Eng.).
273. 2 Skyrme, supra note 52, at 105, says that those who blamed the justices of the peace for the harshness of the poor laws should look at the system rather than the justices.
It has been suggested that in the administration of the Poor Law in general during the eighteenth century the former paternalism of the justices vanished. It is true that the Poor Law was administered harshly during this period and that in settlement cases justices were often motivated by a desire to relieve their own parish of financial liability, but in fairness it should be added that the behavior of the justices was characterized by innumerable acts of compassion and philanthropy. It was the system rather than those who administered it that was at the root of the evil. The justices clearly regarded themselves as having a responsibility for the less fortunate members of society, but this was sometimes clouded by their own interests as employers and landowners.
Id.
274. Trattner, supra note 13, at 52-53. Trattner posits that the commission, which he says was dominated by interests who wanted a national pool of laborers, found the existing system was debasing the character of the English working class.
In the meantime, the poor laws had come under attack from another source-the so-called classical economists, who believed that poverty was the natural state of the wage-earning classes. The possession and accumulation of property and wealth, they argued, was a "natural right" with which the state must not interfere; the poor law, an artificial creation of the state which taxed the well-to-do for the maintenance and care of the needy, violated that right and was morally wrong.
Id. at 51. Further, the commissioners found the defects they were looking for, according to Trattner, "Based . . . upon faulty history, gross exaggeration, contemporary social philosophy, and the fears of the day . . . ." Id. at 53. Polanyi, supra note 212, at 101, sees the repeal of Speenhamland as the work of the new middle class who gained power as a result of the Parliamentary Reform Bill of 1832. Id.
275. 2 Nicholls, supra note 3, at 224.
276. Report From His Majesty's Commissioners for Inquiring Into the Administration and Practical Operation of the Poor Laws, 1834, at 13 (published 1905 by Darling & Sons, Ltd.). This is the first sentence of the substance of the report. It is preceded only by a summary of the existing poor laws.
278. The problems found include all parts of the poor law system: the officials who administered the law; outdoor relief; indoor relief; and settlement. The problems perceived by the commission included: lack of consistency and uniformity on the provision of relief; increasing financial burdens on localities; competition between localities to send poor people to other places; the deterioration of the work ethic because the benefits for not working were attractive; and the squalor and misadministration of workhouses. Fowle, supra note 3, at 75-100 (detailing the findings of the Poor Law Commission).
279. The 21 recommendations include: 1. cease all
outdoor relief to the able-bodied; 2. create a central board to control
the administration of all the poor laws; 3. empower the central board to
make uniform rules and regulations; 4, authorize parishes to create common
workhouses; 5. establish a uniform system of accounting; 6. allow parishes
to hire and pay permanent poor officers and to execute public works; 7.
central board should set minimum qualifications and methods of removal
for paid officers; 8. open competition for purchase of supplies by parishes;
9. central board authorized to prosecute complaints; 10. allowing relief
to be treated as a loan and collected by attaching subsequent wages; 11.
central and uniform regulation of children apprentices; 12. allowing better
enforcement of vagrancy laws by central board; 13. mandatory annual reporting
by the central board; 14. board allowed to appoint officers and assistants;
15. abolishing settlement by hiring and service; 16. children's settlement
follows that of their parents; 17. place of birth of children officially
designated as where first existed; 18. illegitimate children under age
of 16 follow their mother's place of settlement; 19. punishment of mothers
of illegitimate children abolished; 20. punishment of fathers of illegitimate
children abolished; and
21. parishes be allowed to pay for people who are willing to relocate.
2 Nicholls, supra note 3, at 243-60.
281. Id. at 272-81 (summarizing the act's 110 provisions).
282. Trattner, supra note 13, at 53.
283. Polanyi, supra note 211, at 101-02.
The workhouse test was reintroduced, but in a new sense. It was now left to the applicant to decide whether he was so utterly destitute of all means that he would voluntarily repair to a shelter which was deliberately made into a place of horror. The workhouse was invested with a stigma; and staying in it was made a psychological and moral torture, while complying with requirements of hygiene and decency indeed, ingeniously using them as a pretense for further deprivations.
Id.
284. Report from His Majesty's Commissioners for Inquiring into the Administration And Practical Operation Of The Poor Laws, 1834, at 228 (published 1905 by Darling & Sons, Ltd.). The less-eligibility principle that the situation of the able-bodied recipient of poor relief "on the whole shall not be made really or apparently so eligible as the independent labourer of the lowest class." Sess. Papers (Commons), "Reports of Assistant Commissioners for Inquiring into the Administration and Practical Operation of the Poor Laws," 1834, 28:228, quoted in Brundage, supra note 261, at 12-13; see also 2 Nicholls, supra note 3, at 348; Cranston, supra note 3, at 43.
285. Sidney and Beatrice Webb, The Public Organisation of the Labour Market: Being Part Two of the Minority Report of the Poor Law Commission 3-4 (1909); see also Webb & Webb, supra note 3, at 88, stating that of the 900,000 assisted by outdoor relief in 1834, only about 100,000 (or 300,000 if counting their dependents) were able-bodied.
286. Webb & Webb, supra note 285, at 7-16. E.g. Bradford estimated that two-thirds of their relief was being given to able-bodied paupers in 1842. In the Lady-day Quarter in 1843 nearly 40,000 able-bodied men, one quarter of the population were being employed in Poor Law Labour Yards. Id. at 8.
287. Polanyi, supra note 211, at 80, 102, saw this as the starting point of modern industrial capitalism "because they put an end to the rule of the benevolent landlord and his allowance system." Id. at 80. Polanyi saw clearly the problems created by the new Poor Laws:
Never perhaps in all modern history has a more ruthless act of social reform been perpetrated; it crushed multitudes of lives while merely pretending to provide a criterion of genuine destitution in the workhouse test. Psychological torture was cooly advocated and smoothly put into practice by mild philanthropists as a means of oiling the wheels of the labor mill.
Id. at 82. However, Polanyi recognized the problems of an unrestrained national labor market and compares them to the much-maligned Speenhamland system.
The bureaucratic atrocities committed against the poor during the decade following 1834 by the new centralized Poor Law authorities were merely sporadic and as nothing compared to the all-round effects of that most potent of all modern institutions, the labor market. . . . If Speenhamland had prevented the emergence of a working class, now the laboring poor were being formed into such a class by the pressure of an unfeeling mechanism. If under Speenhamland the people had been taken care of as none too precious beasts deserved to be, now they were expected to take care of themselves, with all the odds against them. If Speenhamland meant the smug misery of degradation, now the laboring man was homeless in society.
Id. at 83.
288. Trattner, supra note 13, at 54. Thenceforth, it was publicly known, to use the words of Prime Minister Benjamin Disraeli, that it was "a crime to be poor" in England. Id.
"The report certainly placed the burden of destitution upon the shoulders of the individual. Poverty was regarded as essentially an indication of moral fault in the person requiring relief. He was held very little short of exclusively responsible for his condition." de Schweinitz, supra note 3, at 126. See also Kenneth Karst, Citizenship, Race and Marginality, 30 Wm. & Mary L. Rev. 1, 4 (1988) ("For the English reformers of 1834, one central purpose of requiring paupers to live in the workhouse was to stigmatize them. Their physical separation marked them as outcasts, people who lived outside the boundaries of a society defined by the market."). Handler says that the Poor Laws "were in fact laws against the poor." Joel Handler, The Transformation of Aid to Families with Dependent Children: The Family Support Act in Historical Context, 16 N.Y.U. Rev. L. & Soc. Change 457, 458 (1987/1988).
289. While assisting the poor in their homes was criticized and reformed by punishing the poor with workhouses, in turn the excesses and abuses of indoor relief were criticized and followed by periods of reform with more generous assistance and outdoor relief; which was then followed by criticism and reform involving more workhouses; which was then followed by practical abandonment of the workhouse test.
290. M. Blaug, The Myth of the Old Poor Law and the Making of the New, in Essays in Social History, 123, 143-44 (M.W. Flinn & T.C. Smout eds., 1974). Blaug contends that the old poor law use of outdoor relief was a reasonably effective device for dealing with rural surplus labor. Id.
291. Trattner, supra note 13, at 13.
292. See Polanyi, supra note 211, at 87.
293. As Fowle, supra note 3, at 55, noted in 1893, the early Poor Laws
might more fittingly be called laws against the poor and the rights of labour. The attempt was made persistently for 250 years, so far as the passing of repressive and penal laws could accomplish it, to reduce the labourer to the state of servitude from which it is but fair to remember he was but just emerging.
Id.
294. Steinfeld, supra note 3, at 12-17.
295. 2 Holdsworth, supra note 16, at 460-61, 464-66. tenBroek, supra note 3, at 260, catalogues some of the claims, problems, and contradictions of the poor laws:
Historically it may be viewed as all of the following, whatever the apparent contradictions: the outcome of the adequacy and disruption of nongovernmental sources of charitable aid; an economic, social and political necessity in the time of the Tudors; aimed more at civil disorder than at economic distress; oriented toward the fading agrarian age than the urban industrial poverty that was its principal instigating cause; overemphasized the personal causes of poverty and sought to solve them by excessive doses of criminal law; recognized the economic causes of poverty and sought to overcome them by providing work through government-made or sheltered employment; a great code of social legislation and a landmark of social progress.
Id.; see also Michael B. Katz, In the Shadow of the Poorhouse 13-14 (1986).