If we wish to understand fully the predicament of the labourer, we must remember that he was not free to roam over England, and try his luck in some strange village or town when his circumstances became desperate at home. He lived under the capricious tyranny of the old law of settlement, and enclosure had made that net a much more serious fact for the poor. The destruction of the commons had deprived him of any career within his own village; the Settlement Laws barred his escape out of it. It is worth while to consider what the Settlement Laws were, and how they acted, and as the subject is not uncontroversial it will be necessary to discuss it in some detail.
Theoretically every person had one parish, and one only, in which he or she had a settlement and a right to parish relief. In practice it was often difficult to decide which parish had the duty of relief, and disputes gave rise to endless litigation. From this point of view eighteenth-century England was like a chessboard of parishes, on which the poor were moved about like pawns. The foundation of the various laws on the subject was an Act passed in Charles II.’s reign (13 and 14 Charles II. c. 12) in 1662. Before this Act each parish had, it is true, the duty of relieving its own impotent poor and of policing its own vagrants, and the infirm and aged were enjoined by law to betake themselves to their place of settlement, which might be their birthplace, or the place where they had lived for three years, but, as a rule, ‘a poor family might, without the fear of being sent back by the parish officers, go where they choose, for better wages, or more certain employment.’[155] This Act of 1662 abridged their liberty, and, in place of the old vagueness, established a new and elaborate system. The Act was declared to be necessary in the preamble, because ‘by reason of some defects in the law, poor people are not restrained from going from one parish to another, and therefore do endeavour to settle themselves in those parishes where there is the best stock, the largest commons or wastes to build cottages, and the most woods for them to burn and destroy; and when they have consumed it, then to another parish; and at last become rogues and vagabonds; to the great discouragement of parishes to provide stock, when it is liable to be devoured by strangers.’ By the Act any new-comer, within forty days of arrival, could be ejected from a parish by an order from the magistrates, upon complaint from the parish officers, and removed to the parish where he or she was last legally settled. If, however, the new-comer settled in a tenement of the yearly value of £10, or could give security for the discharge of the parish to the magistrates’ satisfaction, he was exempt from this provision.
As this Act carried with it the consequence that forty days’ residence without complaint from the parish officers gained the new-comer a settlement, it was an inevitable temptation to Parish A to smuggle its poor into Parish B, where forty days’ residence without the knowledge of the parish officers would gain them a settlement. Fierce quarrels broke out between the parishes in consequence. To compose these it was enacted (1 James II. c. 17) that the forty days’ residence were to be reckoned only after a written notice had been given to a parish officer. Even this was not enough to protect Parish B, and by 3 William and Mary, c. 11 (1691) it was provided that this notice must be read in church, immediately after divine service, and then registered in the book kept for poor’s accounts. Such a condition made it practically impossible for any poor man to gain a settlement by forty days’ residence, unless his tenement were of the value of £10 a year, but the Act allowed an immigrant to obtain a settlement in any one of four ways; (1) by paying the parish taxes; (2) by executing a public annual office in the parish; (3) by serving an apprenticeship in the parish; (4) by being hired for a year’s service in the parish. (This, however, only applied to the unmarried.) In 1697 (8 and 9 William III. c. 30) a further important modification of the settlement laws was made. To prevent the arbitrary ejection of new-comers by parish officers, who feared that the fresh arrival or his children might somehow or other gain a settlement, it was enacted that if the new-comer brought with him to Parish B a certificate from the parish officers of Parish A taking responsibility for him, then he could not be removed till he became actually chargeable. It was further decided by this and subsequent Acts and by legal decisions, that the granting of a certificate was to be left to the discretion of the parish officers and magistrates, that the cost of removal fell on the certificating parish, and that a certificate holder could only gain a settlement in a new parish by renting a tenement of £10 annual value, or by executing a parish office, and that his apprentice or hired servant could not gain a settlement.
In addition to these methods of gaining a settlement there were four other ways, ‘through which,’ according to Eden, ‘it is probable that by far the greater part of the labouring Poor ... are actually settled.’[156] (1) Bastards, with some exceptions, acquired a settlement by birth[157]; (2) legitimate children also acquired a settlement by birth if their father’s, or failing that, their mother’s legal settlement was not known; (3) women gained a settlement by marriage; (4) persons with an estate of their own were irremovable, if residing on it, however small it might be.
Very few important modifications had been made in the laws of Settlement during the century after 1697. In 1722 (9 George I. c. 7) it was provided that no person was to obtain a settlement in any parish by the purchase of any estate or interest of less value than £30, to be ‘bona fide paid,’ a provision which suggests that parishes had connived at gifts of money for the purchase of estates in order to discard their paupers: by the same Act the payment of the scavenger or highway rate was declared not to confer a settlement. In 1784 (24 George III. c. 6) soldiers, sailors and their families were allowed to exercise trades where they liked, and were not to be removable till they became actually chargeable; and in 1793 (33 George III. c. 54) this latter concession was extended to members of Friendly Societies. None of these concessions affected the normal labourer, and down to 1795 a labourer could only make his way to a new village if his own village would give him a certificate, or if the other village invited him. His liberty was entirely controlled by the parish officers.
How far did the Settlement Acts operate? How far did this body of law really affect the comfort and liberty of the poor? The fiercest criticism comes from Adam Smith, whose fundamental instincts rebelled against so crude and brutal an interference with human freedom. ‘To remove a man who has committed no misdemeanour, from a parish where he chuses to reside, is an evident violation of natural liberty and justice. The common people of England, however, so jealous of their liberty, but, like the common people of most other countries, never rightly understanding wherein it consists, have now, for more than a century together, suffered themselves to be exposed to this oppression without a remedy. Though men of reflexion, too, have sometimes complained of the law of settlements as a public grievance; yet it has never been the object of any general popular clamour, such as that against general warrants, an abusive practice undoubtedly, but such a one as was not likely to occasion any general oppression. There is scarce a poor man in England, of forty years of age, I will venture to say, who has not, in some part of his life, felt himself most cruelly oppressed by this ill-contrived law of settlements.’[158]
Adam Smith’s view is supported by two contemporary writers on the Poor Law, Dr. Burn and Mr. Hay. Dr. Burn, who published a history of the Poor Law in 1764, gives this picture of the overseer: ‘The office of an Overseer of the Poor seems to be understood to be this, to keep an extraordinary look-out to prevent persons coming to inhabit without certificates, and to fly to the Justices to remove them: and if a man brings a certificate, then to caution the inhabitants not to let him a farm of £10 a year, and to take care to keep him out of all parish offices.’[159] He further says that the parish officers will assist a poor man in taking a farm in a neighbouring parish, and give him £10 for the rent. Mr. Hay, M.P., protested in his remarks on the Poor Laws against the hardships inflicted on the poor by the Laws of Settlement. ‘It leaves it in the breast of the parish officers whether they will grant a poor person a certificate or no.’[160] Eden, on the other hand, thought Adam Smith’s picture overdrawn, and he contended that though there were no doubt cases of vexatious removal, the Laws of Settlement were not administered in this way everywhere. Howlett also considered the operation of the Laws of Settlement to be ‘trifling,’ and instanced the growth of Sheffield, Birmingham, and Manchester as proof that there was little interference with the mobility of labour.
A careful study of the evidence seems to lead to the conclusion that the Laws of Settlement were in practice, as they were on paper, a violation of natural liberty; that they did not stop the flow of labour, but that they regulated it in the interest of the employing class. The answer to Howlett is given by Ruggles in the Annals of Agriculture.[161] He begins by saying that the Law of Settlement has made a poor family ‘of necessity stationary; and obliged them to rest satisfied with those wages they can obtain where their legal settlement happens to be; a restraint on them which ought to insure to them wages in the parish where they must remain, more adequate to their necessities, because it precludes them in a manner from bringing their labour, the only marketable produce they possess, to the best market; it is this restraint which has, in all manufacturing towns, been one cause of reducing the poor to such a state of miserable poverty; for, among the manufacturers, they have too frequently found masters who have taken, and continue to take every advantage, which strict law will give; of consequence, the prices of labour have been, in manufacturing towns, in an inverse ratio of the number of poor settled in the place; and the same cause has increased that number, by inviting foreigners, in times when large orders required many workmen; the masters themselves being the overseers, whose duty as parish officers has been opposed by their interest in supplying the demand.’ In other words, when it suited an employer to let fresh workers in, he would, qua overseer, encourage them to come with or without certificates; but when they were once in and ‘settled’ he would refuse them certificates to enable them to go and try their fortunes elsewhere, in parishes where a certificate was demanded with each poor new-comer.[162] Thus it is not surprising to find, from Eden’s Reports, that certificates are never granted at Leeds and Skipton; seldom granted at Sheffield; not willingly granted at Nottingham, and that at Halifax certificates are not granted at present, and only three have been granted in the last eighteen years.
It has been argued that the figures about removals in different parishes given by Eden in his second and third volumes show that the Law of Settlement was ‘not so black as it has been painted.’[163] But in considering the small number of removals, we must also consider the large number of places where there is this entry, ‘certificates are never granted.’ It needed considerable courage to go to a new parish without a certificate and run the risk of an ignominious expulsion, and though all overseers were not so strict as the one described by Dr. Burn, yet the fame of one vexatious removal would have a far-reaching effect in checking migration. It is clear that the law must have operated in this way in districts where enclosures took away employment within the parish. Suppose Hodge to have lived at Kibworth-Beauchamp in Leicestershire. About 1780, 3600 acres were enclosed and turned from arable to pasture; before enclosure the fields ‘were solely applied to the production of corn,’ and ‘the Poor had then plenty of employment in weeding, reaping, threshing, etc., and could also collect a great deal of corn by gleaning.’[164] After the change, as Eden admits, a third or perhaps a fourth of the number of hands would be sufficient to do all the farming work required. Let us say that Hodge was one of the superfluous two-thirds, and that the parish authorities refused him a certificate. What did he do? He applied to the overseer, who sent him out as a roundsman.[165] He would prefer to bear the ills he knew rather than face the unknown in the shape of a new parish officer, who might demand a certificate, and send him back with ignominy if he failed to produce one. If he took his wife and family with him there was even less chance of the demand for a certificate being waived.[166] So at Kibworth-Beauchamp Hodge and his companions remained, in a state of chronic discontent. ‘The Poor complain of hard treatment from the overseers, and the overseers accuse the Poor of being saucy.’[167]
Now, at first sight, it seems obvious that it would be to the interest of a parish to give a poor man a certificate, if there were no market for his labour at home, in order to enable him to go elsewhere and make an independent living. This seems the reasonable view, but it is incorrect. In the same way, it would seem obvious that a parish would give slight relief to a person whose claim was in doubt rather than spend ten times the amount in contesting that claim at law. In point of fact, in neither case do we find what seems the reasonable course adopted. Parishes spent fortunes in lawsuits. And to the parish authorities it would seem that they risked more in giving Hodge a certificate than in obliging him to stay at home, even if he could not make a living in his native place; for he might, with his certificate, wander a long way off, and then fall into difficulties, and have to be fetched back at great expense, and the cost of removing him would fall on the certificating parish. There is a significant passage in the Annals of Agriculture[168] about the wool trade in 1788. ‘We have lately had some hand-bills scattered about Bocking, I am told, promising full employ to combers and weavers, that would migrate to Nottingham. Even if they chose to try this offer; as probably a parish certificate for such a distance would be refused; it cannot be attempted.’ Where parishes saw an immediate prospect of getting rid of their superfluous poor into a neighbouring parish with open fields or a common, they were indeed not chary of granting certificates. At Hothfield in Kent, for example, ‘full half of the labouring poor are certificated persons from other parishes: the above-mentioned common, which affords them the means of keeping a cow, or poultry, is supposed to draw many Poor into the parish; certificated persons are allowed to dig peat.’[169]