This Little Britain: How One Small Country Changed the Modern World. Harry Bingham
to previous acts of parliament, but to the entire area covered by the common law. And what was the common law? Quite simply this: it was the laws of the land as judges had found and interpreted them. Edwardian judges looked at the precedents laid down by Victorian judges, who in turn had looked at the precedents set by Georgian judges, who in turn had looked at the precedents set by their predecessors, who in their turn…
Although the unbroken chain of precedent does not run as far back as the courts of the twelfth century and Henry II, the mode of deciding cases has always looked to the past. Questions of fact were decided by juries or by ordeal; questions of law always relied on a kind of collective memory of the unwritten law, the laws and customs of the land. In effect, those judges of Henry’s court determined that theft was illegal because theft had been illegal for as long as anyone could remember. As with theft, so with most other offences. It wouldn’t even be true to say that the origins of English law are lost in the mists of time. That implies that if we only knew more, we’d be able to locate a source. And we wouldn’t. No such unitary source has ever existed. Little wonder that by the time of the 1916 Larceny Act, the law of theft had become a tangled jungle almost too dense to pierce.
Because we’re used to it, the oddness of all this is easy to miss. A modern parliament is a huge law-passing machine, and the cases adjudicated by today’s courts are constantly bumping up against the rules laid down by some act of parliament. Yet this modern rule-making is a very recent phenomenon. When did parliament first outlaw theft in its most general form? In 1300?; 1500?; some time in the seventeenth century? Not a bit of it. The first really general attempt to outlaw theft was in that Theft Act of 1968—everything else had just been an attempt to get old common law practices and the mish-mash of parliamentary statutes into some sort of order.
Even now, there are giant areas of law where common, not statute, law rules entirely. I’m on the point of selling the house I’m now writing in. When my buyer and I sign the contract of sale, that contract will be binding on us both, and enforceable through the courts. That does not mean, however, that I’m protected by some act of parliament. I’m not. There simply is no basic law of contract on the statute books. It doesn’t exist, and most likely never will. My fundamental protection is that when Henry’s royal judges came to systematize the law, they thought that contracts should be honoured and made sure that they were.
No one would ever choose to build from scratch a legal system that looks like ours, any more than you’d choose to build a skyscraper by starting with a henhouse and then just improvising. Britain, however, is a country where very few of our most important institutions have been built from scratch. They tend to be ramshackle affairs: cobbled together, patched, altered, repaired, made to last another few years. At the heart of most institutional skyscrapers in Britain—the law, parliament, the monarchy—you’ll find splintering timbers and a handful of feathers. No one in their right minds would set out to do things like this. But—as long as you’re British—it’s an approach that works.
There’s a joke doing the rounds which, in one of its versions, goes something like this. In a recent survey, those living in England/Wales/Scotland were asked whether they thought of themselves primarily as British or as English/Welsh/Scots. An overwhelming 68 per cent of respondents replied, ‘Polish.’
Five hundred years ago, similar jokes wouldn’t have involved the answer ‘Polish’, but they might well have named the Welsh, or Cornish, or Irish, or any other regional grouping. Then as now, migration was feared. Then as now, migrants were seen (by some people, some of the time) as bearers of disease, crime and immorality; speakers of funny-sounding English; thieves of jobs and women; scroungers too idle to work. Inevitably also, then as now, there were people keen to make a bob or two by exploiting these fears.
One such person was a Kentish tax-collector, Thomas Harman, who in 1566 published his Caveat or Warning for Common Cursetors, vulgarly called Vagabonds. The book, which seems to have been something of a publishing sensation, categorized the scams, frauds and deceptions of these wandering migrants. Among many other types, Harman identified:
ABRAM MEN (or Abraham men, Bethlem men, Poor Toms)
Those feigning madness and claiming to have been resident in Bedlam.
PALLIARDS (or Clapperdudgeons)
Those begging alms, but selling what they’re given. Often Irish with false passports, or Welshmen using herbs to raise wounds on their legs, thus counterfeiting infirmity.
UPRIGHT MEN
Skilled professional thieves and beggars, though both able-bodied and experienced at a trade or in service.
JARKMAN (or Patrico)
Forger of licences.
WHIPJACKS
Those pretending to be shipwrecked sailors on their way home.
PRIGGERS OR PRANCERS
Horse thieves.
DUMMERERS
Beggars pretending deafness.
COUNTERFEIT CRANKS
Those pretending to suffer from the ‘falling sickness’. Often use false testimonials from Shropshire.
Harman’s categorization of women was particularly complex. Kinchin morts were young female rogues, dells virginal ones, doxies those who had had their virginity taken by an upright man. Walking morts were unmarried female rogues, autem morts their married (but still promiscuous) equivalents. Bawdy baskets were female pedlars of any marital status.
Most of the concerns that Harman was keenest to fan into life are recognizable to us today. Foreignness was much feared. Egyptians or gypsies were probably the scariest outsiders, the Irish next, then perhaps the Welsh. Harman gives a lot of prominence to accusations of crime, fraudulent claims on charity, and immorality. The unreliability of identity documents strikes a chord today, as does the deep unease of the settled at the presence of the mobile in their midst. Harman also sounds another note, however, so disconcertingly contemporary that we hardly expect to find it in the mid-sixteenth century. The opening sentence of the book’s dedication reads:
As of auncient and long tyme there hath bene, and is now at this present many good godly profitable lawes and actes made and set forth in this most noble and flourishing realme, for the reliefe, succour, comfort and sustenacion of the pore, nedy, impotent and miserable creatures, beeing and inhabiting in all partes of the same.
Harman (who never used one word when half a dozen would do) goes on to make the point that the rogues outlined in the book are preying on these ‘good godly’ laws to the detriment of everyone else. The upright men, for instance, know ‘Sommerset shyre, Wyll shyre, Barke shyre, Oxforde shyre, Harforde shyre, Myddilsex, Essex, Suffolke, Northfolke, Sussex, Surrye, and Kent as the chiefest and best shyres of relief’, and ‘have so good lyking in their lewde lecherous loyteringe’ for these places that they’ll brave any possible punishment to remain. At its core, in fact, Harman’s book is an attack on benefit fraud.
Eh? We tend to think of benefit fraud as being very much a by-product of the twentieth-century welfare state. To the extent that there were any measures at all for the relief of the poor in centuries before that, we think of them as so utterly awful—all gruel, whippings and the workhouse—that the idea that anyone might seek out such relief seems far fetched to the point of loopy. Not so. Although Harman (like his modern-day descendants) is hardly a reliable guide to the social scene he claims to describe, he was absolutely right to suggest that the Tudor welfare state was very much alive and kicking.
Its roots ran