Vagrancy in Law and Practice under the Old Poor Law

Audrey Eccles

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409404873
• eBook ISBN: 9781317002918
• Edition: 1
• Topic: History
• Subtopic: 19th Century History
• Index: History

In eighteenth-century England, the law surrounding vagrancy was complicated, and practice stood in complex relationship to law. Drawing on extensive archival research and in-depth study of both statute law and local administrative records, this book examines the complexities of vagrancy law and the realities of its practice during the long eighteenth century. It shows how settlement law and poor law provision failed to address both the changing demographic situation and the impact of wars, leaving significant numbers without support. Focusing on the 1744 Vagrant Act, the study traces how and why the law evolved, from 1700 when vagrancy was first made a county charge, and what changes followed in the late eighteenth and early nineteenth centuries. It explores how vagrancy law was used and to what effect, how it was extended and adapted to plug gaps in both poor law provision and in dealing with petty crime not covered by statute law, and how law and practice intersected with social reality. Using the Quarter Sessions records of six counties: Westmorland, Cambridgeshire, Dorset, Hampshire, Lancashire and Middlesex, the book is able to give the first account of vagrancy law in provincial England, rather than focusing on metropolitan areas, thus also demonstrating the tensions between parishes, justices and counties over the use of law and its financial impact. By detailed reference to cases of individual vagrants, the book also shows what sorts of people were dealt with under vagrancy law, what happened to them, and how and why the justices discriminated between the unfortunate and the criminal elements among them. This analysis reveals the principal causes of the vagrancy problems and the misfit between the law and social reality, with particular emphasis on the impact of wars and immigration from Ireland and Scotland. As the first full-length study of vagrancy law and practice in the eighteenth century, this book will constitute an essential item in any collection of books on the old poor law.

Chapter 1
The History of Vagrancy Law

Vagrancy law before the eighteenth century

Vagrancy was first made a criminal offence in the reign of Edward III. In the late fourteenth century attempts to restrict the movements of labourers were prompted by the shortage of labour caused by the high mortality of the Black Death, which opened up an opportunity for labourers to move from the manor where they belonged to others where the dire need for hands might induce lords of the manor to offer better terms. By the early sixteenth century, as the feudal system broke down, discarded retainers were the problem: lacking a patron and often a craft, they posed a potential threat roaming in search of a livelihood. Later in the century groups of disbanded soldiers were much feared: on discharge they were allowed to keep their arms and uniform, and although parishes were supposed to support them there was little or no legal obligation for them to do so, hence they were alleged to be wandering about wresting what they needed from a terrorized public (Beier 1985; Slack 1974). Indeed, the almost complete failure of subsequent governments to provide financial support for discharged soldiers and seamen and their dependants remained a prominent cause of vagrancy even in the Victorian period (Trustram 1984; Brereton 1986, 8–9).

In 1572 previous vagrancy acts were repealed but fresh ferocious measures were enacted against vagrants: beggars over the age of fourteen could be committed and if found guilty at the next sessions ‘grievously whipped and burned through the gristle of the right ear with a hot iron of the compass of an inch across’ unless a householder would take them into service and they served a whole year. A third offence by anyone over the age of eighteen was felony without benefit of clergy (14 Eliz. c. 5 1572). Although these extreme punishments were rare, they were occasionally inflicted (Leonard 1900, 70). It was simply assumed that work was always available and that anybody wandering and begging must be wilfully idle. The same act, anticipating that the addition of vagrants would greatly increase the number of prisoners sent to gaol, enacted that the justices in sessions should assess a reasonable sum in each parish towards the relief of such prisoners.¹

A list of idle and suspicious characters was supplied in this act, most of whom reappeared in eighteenth-century legislation. Harbouring vagabonds was made punishable by a fine of 20s, rescuing them £5. Exceptions were made for soldiers and sailors with a licence from two justices, harvest workers, honest servants whose masters had died or turned them away, and victims of highway robbery. Licences were only valid within one county, and had to be renewed in the next. Fines were imposed on constables neglecting to apprehend vagrants. Poor refusing to do work they were capable of doing were to be whipped or set in the stocks for a first refusal, then to be rogues and vagabonds within the act.

More positively the bones of a settlement system and statutory provision for poor relief were established by the same act, administered by the justices, who were supposed to register aged and impotent poor who had been resident in their district for three years and give them an allowance, and to appoint overseers of the poor. Poor other than the leprous and bedridden were to be removed to their place of birth or where they had last lived for three years.

This act was further developed four years later (18 Eliz. c. 3 1576): reciting that, whereas by the former act vagrants were ordered to be sent to gaol at the charge of the parish where they were apprehended, and that to avoid the charge ‘many are suffered to pass and winked at’, the constables were now to pass them from one constable to the next, the cost to be shared by each parish through which they passed en route to the gaol. It may be doubted whether this was any more effective, and the system was changed again in 1700.

A very important and long-lasting innovation under this act was the establishment of houses of correction or bridewells, on the model of the London Bridewell, to be set up in every county and paid for by a county tax collected by officers appointed by the justices in Quarter Sessions, who were also directed to appoint the governors or keepers. Hitherto there had only been county gaols run by gaolers under the sheriff in the king’s name, and various private prisons; the houses of correction were the first prisons under direct county control, combining punishment and setting the poor to work. Parish officers faced with poor who would not work or spoiled and embezzled materials they were given were empowered to commit them. Individuals were allowed to make gifts and bequests towards the cost of houses of correction and for providing stocks of materials for the poor to work on; from the very start bridewells were intended to deal with both local poor and wandering rogues. Paupers were expected to manage on whatever relief they were given; if they begged they were to be whipped, and to be punished as rogues and vagabonds for a second offence. There was no appeal process.

Around the turn of the century, notably in 1597 (39 Eliz. c. 3) and 1601 (43 Eliz. c. 2), new laws further developed the embryo poor law provision. By the 1597 act impotent poor might beg for food in their own parish by permission of the parish officers, and discharged soldiers and mariners with passes might beg notwithstanding the general ban on begging of the same act (39 Eliz. c. 3 ss 10 and 15). Measures against the idle and disorderly and vagrants (chiefly 39 Eliz. c. 4 1597 and 7 James I c. 4 1609) were enacted in parallel to deal with disorderly and wandering poor.

In 1656 the Cromwellian parliament enacted measures authorizing a justice to punish as rogues and vagabonds wandering persons who in his opinion had no good reason for doing so, even if they were not begging, and any person making music, offering to make music, or entreating persons to hear them make music in any inn, alehouse or tavern (Burn 1764, 46, 126). Although all acts of the interregnum were held to be invalid on the restoration of Charles II, it is possible that the first of these laid the foundation for the power of justices to convict a person as a rogue and vagabond ‘on his own view’ and for the notorious ‘sus’ clauses of later vagrancy legislation, and the second may have been occasionally used against itinerant fiddlers.

The 1662 Settlement Act (13 & 14 Charles II c. 12) assumed forty days’ residence as grounds for settlement ‘either as a Native, Housholder, Sojourner, Apprentice or Servant’ and subsequent amendments enabled more people to gain settlements, such as yearly hired servants and apprentices. Case law established the settlement of others: for example, married women were held to take the husband’s settlement, although no statute existed to that effect (Burn 1755 vol. 2, 220). The 1662 act also instituted a reward of 2s for the apprehension of vagrants, authorized the raising of a parish rate to pay vagrancy charges, and made incorrigible rogues punishable by transportation.

By these measures the framework of the Old Poor Law was constructed and remained in force until 1834, when the New Poor Law replaced almost the entire system (4 & 5 William IV c. 76). Vagrancy laws were enacted to control disorderly poor, ensure the able bodied all worked, and keep them in their place, in every sense of the word; often the same statute combined measures to help the deserving settled poor and to punish undeserving settled poor and wandering poor. In the eighteenth century the management of vagrancy shifted from the parishes to the counties and became separate from the poor law, although linked to it by issues such as settlement and the provisions for dealing with the idle and disorderly.

The poor law and settlement law together persuaded successive governments and many contemporary writers that nobody need beg, and that therefore beggars were all dissolute, wicked and deserving of punishment, and the vagrancy laws continued to be updated well into the nineteenth century. Unhappily, attempts to set the poor on work were notoriously unsuccessful, except in a few places and in the short run, partly because there was not enough work available; other obstacles arose from the protectionist policies of trade guilds and corporations and the reluctance of parishes to fund stocks of materials and carry out supervisory tasks.

Development of vagrancy law during the eighteenth century

By 1662 therefore, a system existed whereby, theoretically, every individual had a settlement in some parish, and that parish had an obligation to relieve any settled parishioner whose circumstances required it. In practice there were a number of gaps in this provision, some of which came to be plugged using vagrancy law. Vagrancy law, like the houses of correction, was at this period squarely aimed at controlling the movements and activities of the poor; it was the stick counterbalancing the carrot of poor law and settlement law.

Often there was alternative legislation to deal with the same sorts of misbehaviour by those with means, who tended to be fined and required to find sureties and give recognizances. For example, whereas the poor deserting their families were dealt with under vagrancy law, those able to pay but refusing to do so were forced to comply by orders of distraint on their property (5 Geo. I c. 8 1718).

The 1700 Vagrant Act

By the first vagrancy legislation of the eighteenth century, the Vagrant Removal Costs Act of 1700 (11 & 12 William III c. 18), the cost of conveying vagrants with passes was no longer to be paid by the parish but by the county, out of the gaol money or a special rate. It was not clear whether the 1700 act also applied to vagrants apprehended within the county, and an amending act swiftly followed extending it to all vagrants (1 Anne stat. 2 c. 13). The aim of the act was to stop the vagrancy by returning the vagrant to his settlement, which had a duty either to put him to work or to relieve him, and to increase the likelihood that vagrants would be apprehended and punished, since the county, not the parish, would now have to pay for conveying them to the bridewell and to their settlements.

The act also initiated a system for paying constables reasonable expenses for their time and trouble: the justice was to make out a certificate noting how many were to be conveyed, where to, and whether on foot, by horse or by cart. He noted this allowance on the back, and the constable claimed the money from the chief constable on producing the certificate. He in his turn gave the chief constable a receipt to serve as his authority for claiming the money from the county treasurer.

Passes now had to be checked by a local justice in each county through which the vagrant was conveyed. This was intended to prevent the use of counterfeit passes, clearly because the exemptions of previous acts for those with passes had supplied a loophole against apprehension and punishment for vagrancy. Evidently counterfeit passes came into circulation as soon as passes were allowed for certain groups, and remained a problem in the nineteenth century.

An unintended downside of the 1700 act was that parishes, in order to transfer the cost to the county, began to treat as vagrants travelling poor and non-settled residents falling sick, lying in, or otherwise costing the parish money for looking after them. Whether this was done extensively or not, and whether the act achieved its purpose of increasing the apprehension rate, the cost of conveying vagrants was soon found to be greater than the gaol money could cover, and an act of 1706 (5 Anne c. 32) re-enacted the clause authorizing the raising of a county rate for the purpose, and also set up a procedure for appeal to Quarter Sessions against disputed constables’ expenses claims. From 1739 the cost of poor prisoners in both gaols and houses of correction was included in the general county rate and not raised by a separate rate as previously (12 Geo. II c. 29).

The 1714 Vagrant Act

The 1714 Vagrant Act (12 Anne stat. 2 c. 23 in Statutes at Large, 13 Anne c. 26 in Statutes of the Realm) repealed the acts then in force (39 Eliz. c. 4, 1 James I c. 7, and the part of 7 James I c. 4 relating to privy searches) and, developing the provisions of the 1700 act, set up the system that, with some later modifications, governed the mode of dealing with vagrants that remained in place for the rest of the century and well into the next. To address the concern that counties were oppressed by the conveyance as vagrants of persons who ought not to be, this act provided a detailed definition, largely based on Elizabethan vagrancy legislation, of those who were to be dealt with under vagrancy law. This definition included idle and disorderly poor, whether in their own parishes or wandering outside them, and a long list of frauds and unlawful entertainers.

Persons wandering and begging; all persons pretending to be patent gatherers² – that is, asking charity by brief or letters patent for some worthy cause or because of some personal disaster – or collectors for prisons, gaols or hospitals wandering abroad for that purpose; all fencers, bearwards, common players of interludes, minstrels, jugglers; all persons pretending to have skill in physiognomy, palmistry or like crafty science or to tell fortunes; those using any subtle craft, games or plays; all able-bodied persons deserting their families who, having no other source of income, loitered and refused to work for usual and common wages; and all other idle persons wandering abroad and begging, were defined as rogues and vagabonds. From 1 August 1714 when the act came into effect all these could be apprehended and taken before a justice of the peace. An exception was again made for soldiers and mariners licensed by some testimonial or writing under the hand and seal of a justice of the peace, setting down the time and place of their landing and the place to which they were to pass and limiting the time of their journey, while they continued in the direct way and during the limited time.

The same act enabled the justice to make a discretionary order for 2s reward to any person apprehending a vagrant, payable by the constable of the last parish where the vagrant was begging unapprehended. This seems to have been intended as a spur to constables since they had to pay the reward, which could be levied by distraint on the constable’s property if he did not. For the same reason any constable failing to apprehend a vagrant on a justice’s order could be fined 10s. It set up quarterly privy searches,³ laid down a model form of pass, and required the vagrant to be examined by the justice and the examination filed at Quarter Sessions. The pass itself went with the vagrant. Rogues and vagabonds might be whipped or sent to the house of correction and then passed. The act directed vagrants to be passed to their settlement, if they had gained one, or place of birth; crucially this clause enabled those without settlements, primarily the Irish and Scotch, irremovable under settlement law, to be removed as vagrants. The 1714 act introduced considerable confusion by making procedural distinctions between vagrants with and without settlements; these differences acknowledged that those with settlements had access to poor law support unavailable to those without. All those apprehended were to be examined by any justice and the examination filed at Quarter Sessions. But those with settlements were to be removed ‘by such Order and in such Manner as … Persons likely to be chargeable to the Parish are to be sent’ – that is by a pauper removal order signed by two justices – yet the cost was to be paid by the county as for other vagrants. Those without settlements were to be passed on the order of the examining justice to their place of birth, or if that was unknown back to the parish where they had last begged unapprehended. This last instruction was rarely followed but was not changed until 1744. An order of William Freke Esq. 4 May 1741 passed John and William Raynolds, apprehended in Lydlinch, to Sturminster Newton as the last parish where they begged unapprehended, because their settlement could not be known.⁴ The act also empowered the justice at his discretion to order the vagrant publicly whipped and passed forthwith or sent to the bridewell to hard labour (s. 5).

If the justice thought the vagrant dangerous and unlikely to be reformed he could commit him to hard labour either in the bridewell or gaol (ignoring the lack of provision for hard labour in gaols) until next sessions. If then a majority of the justices found him an incorrigible rogue, he could be publicly whipped on three successive market days and afterwards kept to hard labour ‘during such time as they in their Discretion shall think meet’, thus permitting a potentially unlimited term of imprisonment. Persons escaping from the house of correction or gaol were to be felons; the act did not specify whether within clergy or not, but the case was to be heard in the county where the runaway was apprehended, not where the escape happened. In 1752 (25 Geo. II c. 36) persons taken up during a general privy search and suspected of other crimes might be held six days and advertised in the newspapers.

Justices were forbidden to pass any vagrant without taking a settlement examination, or to pass anyone to his place of birth if he had gained any settlement since, on pain of £5 and costs to any person who sued for it in one of the Westminster courts of record. This clause provided some redress to an aggrieved parish, but protection of justices against such actions enacted in 1751 (24 Geo. II c. 44) meant that henceforth only the Lord Chancellor could deal with errant magistrates. There was no way in which an individual wrongly punished as a vagrant could obtain redress, not least because any punishment had already been inflicted. Any vagrant refusing to be examined or knowingly giving false information about his settlement might be summarily convicted by one justice and punished as a dangerous and incorrigible rogue, but he had to be warned of the punishment at the time of examination.

Building on the basic rules of the 1700 Vagrant Removal Costs Act, improvements to the passing system and financial control were made. Rates for maintaining vagrants and mileage allowances to constables were to be settled not by individual justices but by the justices in sessions, who were empowered to make any other rules they thought necessary to ensure regular proceedings under the act. The 1714 Vagrant Act, unlike the 1700 act, did not state that these rates were to include an element for time and trouble. Financial control was tightened: the constable must now have his certificate receipted by the receiving constable...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Plates
• Acknowledgements
• Preface
• 1 The History of Vagrancy Law
• 2 Processing the Vagrants
• 3 Vagrancy Law in Practice
• 4 Lying in Upon the Road
• 5 Vagrancy Law and Coping with Poor Sick Travellers
• 6 The Prosecution of Vagrancy Crime
• 7 The Punishment of Vagrancy Crime
• 8 Offences within the 1744 Vagrant Act
• 9 The Causes of Vagrancy
• 10 Conclusion
• Appendix: Acts of Parliament
• Select Bibliography
• Index