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SECT. II.—: OF THE SCOTTISH POOR-LAWS. - Dugald Stewart, Lectures on Political Economy, vol. 2 [1856]

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Lectures on Political Economy. Now first published. Vol. II. To which is Prefixed, Part Third of the Outlines of Moral Philosophy, edited by Sir William Hamilton (Edinburgh, Thomas Constable, 1856).

Part of: Lectures on Political Economy, 2 vols.

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SECT. II.—

OF THE SCOTTISH POOR-LAWS.

I now proceed to a short statement of the Laws relative to the same subject, in our own part of the United Kingdom. The Scottish Laws with regard to the poor, merit our attention not merely on account of their more immediate reference to the concerns of our own country, but as affording an experimental proof of the good or bad effects resulting from a system which is strikingly contrasted with that of the English legislators. Of the contrast which this part of our Scottish policy exhibits to the corresponding regulations of the English code, particular notice was taken at an early period, by a very eminent man, who had enjoyed the best opportunities of observing the consequences of both. I allude to Bishop Burnet, who, in the Conclusion of his History of his Own Times, published in the year 1708, expresses himself thus:—“It may be thought a strange notion from a Bishop, to wish that the Act for charging every parish to maintain their own poor, were well reviewed, if not quite taken away; this seems to encourage idle and lazy people in their sloth, when they know they must be maintained; I know no other place in the world where such a law was ever made. Scotland is much the poorest part of the island, yet the poor there are maintained by the voluntary charities of the people. Holland is the most perfect pattern for putting charity in a good method; the poor work as much as they can; they are humble and industrious; they never ask any charity, and yet they are well relieved. When the poor see that their supply must, in a great measure, depend on their behaviour and on their industry, as far as it can go, it will both make them better in themselves, and move others to supply them more liberally; and when men’s offerings are free, (and yet are called for, every time they go to church or to sacrament,) this will oblige those who distribute them, to be exact and impartial in it, since their ill conduct might make the givers trust them with their charity no more, but distribute it themselves.”*

From the particulars which I am now to state, it will appear that Bishop Burnet had confined his attention solely to the established practice of the two different parts of the island, in their management of the poor, without taking into consideration the existing Statutes on the subject in the Scottish code, which he probably regarded as a dead letter. At the same time, it is somewhat curious, when we consider how conversant this writer was with the jurisprudence of both parts of the island, that he should have regarded the law of compulsory maintenance as altogether peculiar to the English code. This circumstance, however, does not in the least detract from the value of this very weighty testimony with regard to the opposite effects of compulsory assessments and voluntary charity.

The earliest Statute to be found in the Scottish Acts relative to this subject, was passed in the reign of James I., in the year 1424. During the minority of this Prince, it is well known that Scotland was in the most unsettled state, great numbers who had no lawful occupation subsisting entirely by rapine and plunder. The King, on his return from captivity in England, where he had enjoyed the advantage of a good education, and had witnessed the happy effects of a regular and vigilant government, turned his thoughts to the improvement of the situation of his own kingdom; and as an indispensable preliminary to his other measures, began by improving its internal police, as this seemed most likely to be effectual in protecting his peaceable and industrious subjects against the violence and rapine which were then so prevalent in every part of the kingdom. In his First Parliament, it is statuted, that “na companies passe in the countrie, to lye upon onie the Kingis lieges: or thig; or sojourne horse, outher on kirk-men, or husbands of the land;” and that “gif onie complaint be maid of sik trespassoures to the schireffe of the land; that he arreist sik folk, and challenge them, and tax the Kingis skaith upon them: and gif they be convict of sik trespasse, that they be punished, and find burrowes till assyeth (that is, to satisfy or recompense) the King and the partie complainand.”* In the same Parliament, it is ordained, that “na thiggeres be thoiled to beg, nouther to burgh nor land-wart, betwixt fourteen and threescore ten zeires, bot they be secure be the councelles of the tounes, or of the lande, that they may not winne their living uther waies.”† In James III.’s Parliament, (1425,) it is ordained, that “the scheriffe sall gar arreist idle men, and gar keepe them in fastenesse quhill it be knawin quhairupon they live. And that the countrie sall be unskaithed of them: thereupon the schireffe sall receive gude and sicker burrowes. After the quhilk burrowes founden, the scheriffe sall assigne fourtie daies to sik idle men to get them maisters, or to fasten them to lawfull craftes. And they fourties daies beand gane, gif they be founden mair idle, the schireffe sall arreist them againe, and sende them to the Kingis prison, to abide and be punished at the Kingis will.”‡

In stating these particulars, it may be thought that I enter more into detail than is necessary or proper in this place, and that the minute provisions made for the police of a barbarous country in the fifteenth century, might safely be omitted in a political speculation, which is meant to have reference to our own times. But although I am ready to acknowledge the truth of this observation, I cannot prevail on myself to omit the opportunity which the present subject affords me, of quoting a few clauses from our old Statutes, which are valuable, as throwing light on the progress of order and civilisation in Scotland. Nor will they be found altogether foreign to the principal object of our inquiry, inasmuch as they strongly illustrate the impotency of legislative interference in curing, by the mere regulations of police, disorders which originate in the general condition and habits of the country.

I have already taken notice of the rigour of some laws of James I. against beggars. In the sixth Parliament of his successor, a law still more severe than any hitherto mentioned, was passed against the same description of offenders. It is probable that the disorders which these laws were meant to remedy, had, during the King’s minority, become more prevalent. By this Act “it is ordained, for the away-putting of sornares, over-lyars, and maisterful beggars, with horse, houndes, and uther gudes, that all officiares, baith schireffes, baronnes, aldermen, baillies, as well within the burgh, as outwith, take an inquisition at ilk courte that they hald of the foresaid things: and gif ony sik be founden, that their horse, houndes, or uther gudes be escheit to the King, and their person put in the Kingis waird, quhill the King have said his will to them. And alswa that the said scheriffes, &c., inquire at ilk courte, gif there be onie that makis them fuiles, and are bairdes, or uthers sik like rinnares about. And gif onie sik be founden, that they be put in the Kingis waird, or in his irones, for their tresspasses, als lang as they have ony gudes of their awin to live upon, that their eares be nailed to the trone, or till ane uther tree, and their eare cutted off; and banished the countrie. And gif thereafter they be founden againe, that they be hanged.”* Various other laws, breathing the same spirit, were enacted during the reigns of James II., James III., and James IV. In an Act passed in the fifth Parliament of James V., (1535,) after ordaining the strict execution of the Statute of James I., it is added, that no beggars should “be thoiled to beg in ane parochin, that are borne in ane uther; and that the headesmen of ilk parochin make takinnes and give to the beggars thereof, and that they be susteined within the bounds of that parochin, and that nane uthers be served with almous within the bounds of that parochin, bot they that bearis that takinne allanerlie.”*

On an examination of the laws which were passed previous to this period, it will be found evident, from their general scope, that they were framed chiefly with the view of repressing the banditti and vagrants who had disturbed the public peace. It is probable, that the impotent poor were comparatively inconsiderable in number, or that they were easily supported by voluntary alms. In all the subsequent Acts, the laws respecting vagrants, and the idle and impotent poor, are included in one Statute; their principal object being, avowedly, to compel the idle to industry, and to provide for the indigent. In consequence of the advanced state of the country, it would appear that the banditti who had formerly been so numerous, had become less formidable; while, on the other hand, the failure of their former resources, added to the commercial progress of the country, tended at once to multiply the objects of real charity, and to impose on the Legislature the necessity of opening new sources of bounty in their favour. At the era of the Reformation, it appears that some of the leaders in that memorable cause had struggled at first to obtain, under the new system, the establishment of a plan for the support of the poor, to supply the place of those aids which they had enjoyed formerly; and in the proposal which was made to the first General Assembly, in the year 1516, it was suggested, that a fund for the support of the poor, as well as for the establishment of schools, and the endowment of the reformed clergy, should be assigned out of the old revenues of the Church. But the nobles, who had got possession of the Church’s patrimony, rejected the proposal, as John Knox informs us, as altogether visionary. The grievance, however, at length became so serious, and was so severely felt by all orders of the community, that it was necessary for the Legislature to attempt a remedy. Accordingly in the year 1579, a Statute was passed, which is the groundwork of all the subsequent enactments on this head, and which is so full, minute, and systematic, that it is justly said to constitute, with the exception of a few subsequent amendments, our code of Poor-laws. Of the history of this important Act, which does not seem to have been much attended to either by our Scottish or English antiquaries, I shall have occasion afterwards to take notice. In this Act, passed in the sixth Parliament of King James VI., it is ordained, “that the Provestes and Baillies of ilk burgh and towne, and the Justice constitute be the King’s Commission in every parochin to landwart, sall, betwixt and the first day of Januar nixt-to-cum, take inquisition of all aged pure, impotent, and decayed persones, borne within that parochin; or quhilkes war dwelling, and had their maist commoun resorte in the saide parochin, the last seven zeires by past, quhilkes of necessitie mon live bee almes: and upon the saide inquisition, sall make ane register buike, conteining their names, and surnames, to remain with the Provestes, and Baillies, or with the Justice.” And to enable them to make such a register, the poor are commanded, “under the paine to be punished as vagabondes,” to repair to the parish in which they were born, or had resided for seven years. After having thus ascertained the number and necessities of the poor, the Magistrates are commanded “to taxe and stent the haill inhabitants within the parochin, according to the estimation of their substance, without exception of persones, to sik oulkie charge and contribution, as sall be thocht expedient and sufficient to susteine the saidis pure peopil, and the names of the inhabitants stented, togidder with their taxation, to bee likewise registrate.” Collectors and overseers are likewise to be appointed to superintend the collection and distribution of the tax, and the register is ordained to be made anew every year.*

From the very exact coincidence between the provisions of this Statute, and those of the 43d of Elizabeth, Sir Frederic Eden concludes, that the latter was framed on the model of the former. His words are these:—“Although Scotland is now exempted from the heavy burthen of a Poor’s-rate, it is remarkable that a compulsory provision for the poor was established by law, in the former kingdom, two-and-twenty years before the passing of the 43d of Elizabeth. In the sixth Parliament of James VI., held at Edinburgh in 1579, an Act was passed ‘for punishment of strang and idle beggars, and reliefe of the pure and impotent;’ in which every branch of the poor system,—the punishment of vagabonds, of runaway servants;—the mode of passing soldiers and seamen to their parishes;—the regulation of hospitals for aged and impotent persons;—the settlements of the poor;—their maintenance by the parish;—the appointment of overseers and collectors;—the manner of treating those who refuse to work;—and of putting out poor children apprentices, are more fully detailed than in any English Act of Parliament. . . . I have very little doubt but that many of the provisions of English Parliaments, in the reign of Elizabeth, respecting the poor, were framed in conformity with the policy of their northern neighbours.”* In opposition to this statement with respect to the Act of the Scottish Parliament in 1579, it has been observed to me by my friend, Mr. Francis Horner, that this Act is a literal transcript of a Statute passed seven years before by the Parliament of England, (14th Elizabeth, cap. 20,) which, having been superseded by the subsequent enactments, is not printed in the modern editions of the Statutes at large, but may be found in the older collections. All its provisions, both for the relief of the poor and the repression of vagrants, are exactly the same; and even the turn of expression is scarcely varied. It would appear, therefore, that this Act of the 14th of Elizabeth, has been altogether overlooked by Sir Frederic, when he hazarded the conjecture stated above.

The fifteenth Parliament of James VI., (1597,) ratifies the former Act, with this addition, “that starke beggars, and their bairnes, be employed in commoun warkes.”† The twenty-eighth Parliament of the same King, (1617,) ordains, that “Forasmuch as there hath been divers worthy laws and statutes made by his Majesty, and his Highness’ predecessors, for restraining of idle and masterful beggars; and notwithstanding thereof, the number of the saids beggars hath daily increased more and more: and his Majesty and estates, considering that the cause of the multiplying of the saids beggars hath, and doth, proceed from this ground, that no order hath been taken, in bygone time, with the poor children and orphans, born of poor indigent parents, who being tollerated or neglected, at their first entry to begging, doth contract such a custome and habite, that hardly they can be drawn thereafter to any other calling. . . . Therefore his Majesty, with advice and consent of the estates, doth, in most earnest manner, recommend to all his Highness’ loving subjects, requesting them, as they tender the good and honour of the realme, to receive within their houses and family, and to take upon their care, intertainment, and education, some of the saids poor and indigent children, one or moe, every person according to his power and faculty, . . . . to be educate and brought up by them, either in their houses, or to be put by them to such crafts, callings, and vocations, either within the country, or without the same, as they please.”* These two Statutes fix a memorable era in the history of this branch of Scottish jurisprudence, a commencement having been then given to those important functions in the superintendence and management of the poor, which the kirk-sessions, or parochial consistories, have since exercised in a manner so creditable to themselves, and so beneficial to their country.

The sixteenth Act of the third Session of the first Parliament of King Charles II., ratifies all former Acts concerning vagabonds and poor, and farther ordains, “that it shall be leisum to all persons or societies, who have or shall set up any manufactories within this kingdom, to seize upon and apprehend the persons of any vagabonds, who shall be found begging, and who, being masterless and out of service, have not wherewith to maintain themselves by their own means and work, and to imploy them for their service as they shall see fit, the same being done with the advice of the respective magistrates of the place where they shall be seized upon,” &c.† This is a most important enactment, as we shall afterwards see, and that to which must chiefly be ascribed the advantage which Scotland possesses over the sister kingdom in this branch of her policy.

“The last Statute which in Scotland was enacted concerning the poor, bears date the 1st September 1698; and it ratifies and approves all former Acts of Parliament for repressing of beggars, and maintaining and employing the poor.”* The era at which it passed is memorable in the annals of Scotland, a severe dearth having continued from 1692 to 1699, the memory of which was preserved among the common people, within the period of my own recollection, by the name of “the seven ill years.”

Notwithstanding, however, the existence of this unrepealed Law, the fact is, that the greater part of the enactments and statutes which it sanctions, have silently fallen into desuetude, in consequence partly of their total inapplicability to the actual circumstances of the country, and partly of the manifold contradictions which they contain, and of their palpable inconsistency with each other. That the poor, however, in Scotland, do possess a legal claim to relief, is a principle placed beyond all doubt by repeated decisions of our Supreme Court. By a finding of 6th June 1744, it was decreed on a question between two parishes in Berwickshire, that residence for three years in a parish, gives the pauper a right to relief. In the case of the parish of Humbie, (13th February 1757,) with regard to the joint administration of the poor funds by the heritors or tenants, the whole system of the Scottish Poor-laws was investigated very minutely; and not only the decree, but all the arguments employed on this occasion, proceed on the supposition, that the Act 1579, with its subsequent amendments, is fully in force. Since the last scarcity, a new case, from the same parish of Dunse, has been determined by the Court of Session. The question on which it turned was this: whether, under the Scottish Poor-laws, those persons are entitled to relief, who, without any personal infirmity, are rendered unable by the high price of provisions to maintain themselves, and whether assessments are legal in times of dearth. The Court decided, 17th January 1804, that such relief and assessment are legal.

I thought it in some measure necessary to enter into these details, as Sir Frederic Eden, whose authority in those parts of English police, which relate to this matter, is generally allowed to be very safe, has been so far misled by an article in the Encyclopœdia Britannica, as to assert, that there is no law in force in Scotland on the subject of a compulsory assessment for the poor;* a mistake into which, I must, at the same time, allow that it was not unnatural for a stranger to fall, after the very loose and incorrect language which has been employed on the subject by several of our Scottish clergymen, in their Statistical Reports. With respect to the fact, there is some irregularity in different parts of Scotland, by which it is not surprising that a stranger should be perplexed in this matter. In some parishes, assessments have been made for forty years past, while in others, which still are a majority of the whole, the collections at the church-doors, the small fines levied by the kirk-sessions for petty immoralities, and the interest of the small sums accumulated or bequeathed to the poor, have rendered legal assessments superfluous. In those parishes where assessments are made, the usual plan is thus described by Dr. Sommerville, in his Statistical Account of the Parish of Jedburgh.

“The minister intimates from the pulpit, that on such a day a meeting of the heritors and elders is to be held, for the purpose of making a provision for the poor for the ensuing quarter. These meetings generally take place near the terms of Candlemas, Whitsunday, Lammas, and Martinmas. Upon the day of meeting the elders elect a preses, after which the minutes of the former sederunt, and the roll of the poor, are read by the clerk. Forming a calculation from the number already standing upon the roll, and the applications made to them, the heritors assess themselves in a certain sum to be collected from them severally, according to the proportion of their valued rents. The proprietor pays one-half of the assessment, and the tenant the other. Though the tenants are not mentioned in the summons, yet such of them as choose to attend are made welcome, and their advice and information listened to by the meeting. The sum assessed is raised by the heritors and kirksession together, in such proportions as seem adequate to the necessities of the poor. Such persons as are reduced to the necessity of applying to the heritors for charity, from any accidental transient cause, such as disease or misfortune, receive what is called an interim supply, i.e., a certain sum for that quarter only. The aged and infirm, and such as are likely to continue under the same necessity of depending upon public charity, are taken upon the poor’s-roll at a certain weekly allowance. The persons taken upon the roll are obliged to subscribe a bond or deed of conveyance, making over and bequeathing all their effects to the heritors; and though the heritors seldom exact their effects, yet the subscription of the bond serves as a check to prevent persons, who may be possessed of concealed property, from alienating the public charity. The sum assessed is levied by a collector, appointed by the heritors, and distributed by him to the persons admitted upon the roll, according to the proportions allotted to them.”*

For the information of those who are little acquainted with the institutions and phraseology peculiar to Scotland, it is necessary to add that the kirk-session, by which the greater part of the poor are relieved, is somewhat similar to an English vestry; that is, when regularly constituted, it must always consist of the minister, elders, session-clerk, and kirk-treasurer. The salaries which are allowed to the session-clerk and kirk-treasurer, who is usually the schoolmaster of the parish, seldom, if ever, exceed £2 sterling; and with this trifling exception, the whole business of the collection, superintendence, and distribution of the poor’s funds, is managed without a farthing of expense. No similar instance, I believe, of frugality and disinterested zeal in the administration of so extensive a charity, can be produced in any country of Europe.

From what has been now stated concerning the poor-rates in those parts of the country where they have been introduced, it is evident that many of the objections which are commonly urged against that tax as levied in England, do not apply to it when subjected to such checks and modifications as have hitherto restrained its abuse in this country. The chief and most essential of these, undoubtedly, arises from the manner in which the tax is imposed on this side of the Tweed, that being done by the persons who are to pay it; whereas in England it is trusted to the discretion of a few obscure individuals on whom the burden does not fall, and whose responsibility is not great. Accordingly, some very candid and intelligent writers, who acknowledge the intolerable burden which it has brought on the other part of the island, have expressed strongly their approbation of the general principle on which the tax proceeds, and their conviction of the expediency of extending the practice over Scotland, on a plan which has been so successfully exemplified in a variety of different instances. Nay, even Lord Kames himself, who has pushed the argument against compulsory maintenance to its utmost possible extent, has been almost led to admit an exception in favour of Scotland.*

With respect to the moral effects which have been experienced from poor-rates in Scotland, the following statement is given by a very candid and very competent judge, who has long had an opportunity of witnessing their practical tendency in that part of the country where he resides, Dr. Charters of Wilton. “It is alleged,” says he, “that poor-rates weaken parental and filial affection. Let the fact be fairly inquired into, and it will be found, that many children labour hard to prevent their parents from receiving an aliment; and that children in good circumstances who suffer their parents to receive it are infamous:—a proof that the case is rare. During twenty-two years’ ministry, in a pretty numerous parish, where the poor are maintained by taxation, I have known only one instance of children refusing to assist their parents; they forfeited the esteem of their neighbours, and banished themselves to America.”* In another passage, the same writer expresses himself thus:—“The desire of laying up is so strong, that the poor-rate has not yet, and probably never will, extinguish it. A spirit of independence pervades the people; they feel the humiliation of receiving alms; they discern the difference betwixt having of their own, and trusting to what is given.”†

Notwithstanding, however, these very strong statements, which cannot fail to have great weight with all who know the worth and talents of the author, I cannot help (probably from the circumstance of having lived chiefly in those parts of the country where poor-rates are unknown) feeling a decided partiality, more especially in a moral view, in favour of the old practice of supporting the poor by voluntary contributions, wherever imperious circumstances do not render this impracticable. Where the case is otherwise, the question no longer admits of discussion, and a compulsory law is the only expedient which can supply an effectual remedy. In favour of the moral effects of our good old practice, I shall only observe farther, that where a tax is imposed for relief of the poor, and where, of course, the only aid received by them is extorted from the rich without their consent, it is impossible for the objects of this compulsory beneficence to feel themselves indebted for that which is given without charity, or to consider it in the same light with that which is bestowed from generous motives. As soon as it is thought that the assistance given them is their right, the relief conceded is considered as only what is due, and the least hardship to which they may be exposed is viewed as injustice.

Independently, therefore, of all other considerations, there is intrinsically a material difference between the moral effects of voluntary contributions, and those that may be expected to result from legal assessments, however wisely regulated, and however ably and honourably administered. It ought to be carefully considered by the advocates of a compulsory assessment, whether the evils complained of in England have not been the natural and necessary, though, perhaps, slow consequences of the legal provision. While such checks, indeed, exist, as those in Scotland, it is difficult to conceive how any very gross abuses can take place in country parishes. But in great towns, the experiment is infinitely more hazardous. It does not seem to be possible, indeed, to contrive any system, which is not likely, sooner or later, to degenerate into such a state as that which we find prevalent in England. Even in country parishes, the result of past experience furnishes but too much ground for serious alarm. It is asserted by Mr. Findlater, in his very judicious and able Survey of the County of Peebles, that where poor-rates have been regularly established in Scotland, the poor have been continually on the increase.* Of this assertion, he has produced some proofs well entitled to the consideration of those who take an interest in the decision of this question, as a matter of local expediency, (for, in truth, it is nothing more,) in those parts of the country with which they may be connected.

[CHAPTER II.]

[SUBSIDIARY MEASURES FOR THE RELIEF OF THE POOR.]

To the historical sketch which has already been given concerning the Poor-laws in both parts of the United Kingdom, I think it may be useful for me to add a few remarks on certain Subsidiary Measures, for the attainment of the same ends, which have either been sanctioned by the authority of the Legislature, or have been carried into execution by the act of private individuals.

[* ] [Vol. II. p. 659, orig. edit.]

[* ] [Eden’s State of the Poor, Appendix x.; Vol. III. p. cclxxviii.]

[† ] [Ibid. p. cclxxix.]

[‡ ] [Ibid.]

[* ] [Ibid. p. cclxxx.]

[* ] [Ibid. p. cclxxxi.]

[* ] [Ibid. p. cclxxxiv., seq.]

[* ] [Ibid. Book I. chap. ii.; Vol. I. p. 131, note.]

[† ] [Ibid. Appendix X.; Vol. I. p. cclxxxvii.]

[* ] [Ibid. p. cclxxxviii.]

[† ] [Ibid. p. cclxxxix.]

[* ] [Ibid. p. ccxciii.]

[* ] [Ibid. p. ccxciv.]

[* ] [Sir John Sinclair’s Statistical Account of Scotland, Vol. I. pp. 12, 13.]

[* ] [Sketches of the History of Man, Book II. sketch x.; Vol. II. p. 58, orig. edit. 1774.]

[* ] [Sir John Sinclair’s Statistical Account of Scotland, Vol. XV. pp. 641, 642.]

[† ] [Ibid. p. 642.]

[* ] [Chap. XV. sect. vii. p. 226.]