Dan Snow's History Hit - Britain's Oldest Laws

Episode Date: October 22, 2020

Joanna McCunn joined me on the podcast to discuss the history of some of Britain's oldest and strangest laws. From shooting Welshmen with longbows, to Oliver Cromwell banning mince pies, we also discussed 19th century policing and vagrancy acts.Subscribe to History Hit and you'll get access to hundreds of history documentaries, as well as every single episode of this podcast from the beginning (400 extra episodes). We're running live podcasts on Zoom, we've got weekly quizzes where you can win prizes, and exclusive subscriber only articles. It's the ultimate history package. Just go to historyhit.tv to subscribe. Use code 'pod1' at checkout for your first month free and the following month for just £/€/$1.

Hi everybody, welcome to Dazno's History. I'm just in the lee of a smokestack on a 1950s container ship. It was built in Germany to plough the iron grey seas between northern Germany and Heligoland, the island which has been the source of much controversy, much competition, and the source of a few podcasts over the years. Go back and check those out. It was then sold to the Brits and we now use it to go from North Devon to the island of Lundy in the Bristol Channel. It's a howling westerly gale in the Bristol Channel. This is the last passenger carrying passage of the year and I can see why, because it's pretty grim. This podcast features Joanna McCunn. She is a brilliant legal scholar. She is at the University of Bristol and she's here to tell us all about Britain's old laws, the bizarre laws that people think are still in existence in Britain

and frankly might be. Who knows? She's got her kind of top 10. So this is Britain's ancient, ancient legal code. It's a fascinating episode. I love this one. She's brilliant. Now if you're interested in medieval history, early modern history, any history frankly, please go to historyhit.tv. It's my new Netflix for history. If you use the code Trafalgar, it's still Trafalgar week. Trafalgar. You get a month for free and then you get next three months just one pound euro or dollar for each those three months by which stage the days will be lengthening again and this mighty ship will once again be heading out taking holiday makers to the isle of lundy but in the meantime everyone enjoy joanna mccann Joanna McCann.

Joanna, thank you very much for coming on the podcast. Thank you for having me. This is the conversation I've been wanting to have since I was a kid. And I went to practice doing longbow with this kind of guy. And he said it was still legal to shoot someone on a Sunday with a longbow if it was part of a registered training session. And ever since then, I've been obsessed with the subculture. Part of it is that Britain has a almost uninterrupted tradition of legislation that stretches back arguably as far as Magna Carta and beyond. So it actually goes back a little further than Magna Carta. The oldest statute currently

enforces the Statute of Marlborough from 1267, which post-dates Magna Carta as a royal charter. Magna Carta didn't become an act of parliament until the end of the century. So, yeah, lots of people think Magna Carta is the oldest statute, but there's actually one that sneaks in a couple of decades before. Well, there you go. And because of that, unlike the US, Japan, where they started afresh, France, we do have all these heritage laws sitting around, and you're the person that's going to untangle it. So tell me about some of the most popular ones that you've come across

in terms of people confidently assert that we have an ancient right to do X. So the longbow ones are always very popular. Everyone likes stories about it's fine to shoot Welshmen in Chester with longbows or in Hereford or Scotsman in Yorkshire. I mean, the first thing to say about those is that that's not currently true. You should not try shooting people with longbows. Did they ever exist, do we think, any of those? It's a little bit murky. It's possible. Of course, England and Wales were at war for a long time. So it's possible that at one point you could get away with shooting Welshmen with impunity. The source people tend to point to is a city ordinance from Chester from 1403,

which says that no Welshmen are to be found there between sunset and sunrise on pain of death. Though the death that the ordinance actually specifies is execution by decapitation. So definitely it was a very, it was a hostile place for the Welsh. It's not clear if you could take it into your own hands with your own longbow, but yeah, it wasn't a great place to be. Well, 1403 was the height of Eoghan Glyndwr's revolt, so yeah, not a great place.. It's a war zone, really. Talk to me about some of the other ones that you've identified. So I sometimes get asked about Oliver Cromwell banning mince pies.

That tends to come up around Christmas time. Essential. That one does have some basis in reality. So Puritans were obviously very anti-Christmas. It was a sort of sign of poopish idolatry and immoral excesses. The first blow against Christmas was struck in 1644. So every last Wednesday of the month was a legally mandated fast day, and that was going to fall on Christmas Day. And people said to Parliament, well, surely you can't mean we have to fast on Christmas Day. And Parliament said,

well, on the contrary, you should be spending your time in even more solemn humiliation, repenting of your sins in bringing carnal and sensual delights to Christmas in times past. And then in 1647, they went even further, they banned all celebrations of Christmas and Easter, and other religious holidays. So if you had mince pies, they weren't specifically singled out, but it was probably a sign that you might be about to commit some sort of Christmas celebration, and they might be confiscated from you. But thankfully, that's not the case anymore either. So after the restoration of the monarchy, all statutes that were passed during the interregnum were said to be void because they hadn't been given royal assent, because of course,

there was no monarch to give them assent. So they just fell away naturally. So since 1660 mince pies have been pretty safe again. Well there's you know thank god for that is all I can say. Eternal vigilance is the price of mince pie enjoyment. Okay so let's go with some others that people may have heard of that are complete nonsense. Let's come to ones that are true perhaps later on, but what is complete nonsense? There's one that seems to be very popular about not letting boys under 10 see naked mannequins in shop windows or something like that. It seems recently to have been attached to Scotland, but it's sort of been around the blocks a few times. It crops up in relation to most US states, I think. And I've never really seen any evidence that it's true. Of course, it's really hard to prove a negative,

but yeah, I haven't found much basis for it. The most convincing story I've seen was about a guy called Anthony Comstock, who was a member of the New York Society for the Suppression of Vice in the early 20th century. So a super fun guy to be around. And he apparently once tried to prosecute a department store for having naked mannequins in its window,

but that was thrown out of court. He was unsuccessful. So I'm not quite sure if that's where the story began, but as far as I've seen, that's probably not true. Well, Comstock, I mean, we were lucky to dodge Comstock because Congress passed a law known as the Comstock Act that defined contraceptives illegal and illicit, which was, yeah, that deeply unhelpful. OK, where else are we? Give me a few other false ones. So, I mean, there are a few laws that used to be true, but are now no longer true.

There are some acts about impersonating people. There was the Seaman and Soldiers False Characters Act about impersonating ex-members of the military. There was an act about impersonating Chelsea pensioners. But those have all been repealed now because they've basically come under more general fraud legislation. So we don't need those more specific, which is, yeah, they were more picturesque, it's fair to say. So strippers can go about their business with confidence? Well the legislation that still exists is about impersonating police officers but your costume has to be calculated to deceive people so if it's very clear that you're just wearing a costume I think you're

probably fine. Okay let's come on to some of the true ones. One's involving the Queen. Everyone's got theories about eating swans and all sorts of nonsense around the Queen and royal family. Are there any of those that you've found? Yeah, so the swans one is actually true. The Queen owns all wild mute swans in open water, although she only actually exercises her right on certain bits of the Thames. So if you go at the right time of year, you can see this lovely ceremony called swan upping, where all of these people on skiffs wearing the Queen's uniform go and check up on all of the swans. Since the 14th century, the crown has also had the right to all whales and great sturgeon taken within the realm. So if a fisherman catches a sturgeon, they should phone up Buckingham Palace and tell them about it and see what the Queen wants

them to do with it. I find a report from the 1980s saying that the Queen actually did sometimes accept sturgeon from people and, you know, as loyal subjects they were very glad to hand it over. The most recent case that got press attention was from 2004 when a sturgeon was caught in Swansea Bay, I think, and they very properly phoned up Buckingham Palace and offered the sturgeon to the Queen, and she said she didn't really want any sturgeon, but thanks. So then they tried to sell the sturgeon, but unfortunately sturgeon is also a protected species,

so you can't sell it, which means that the police then got involved. It all got a bit murky. The sturgeon disappeared from police custody, but it finally ended up in the Natural History Museum, so it all had a happy ending. The Queen does have some odd rights to different animals. Speaking of animals, there's quite a lot of laws around animals in London, aren't there? So there's a story about people driving sheep over London Bridge. If you're a freeman of the

City of London, it's sometimes said you have the right to do that. So previously, when you were a freeman, that meant you had the right to trade in the city and you could bring your livestock into London without paying tolls. Now, strictly speaking, it doesn't really give you many rights except accessing some funds and charities and things. But they do sometimes let people drive their sheep over London Bridge for publicity stunts and charity events and things. And talk to me about the one I saw you tweeting about, which was the knocking on the door and running away. Yes, this is the Metropolitan Police Act 1839, which is just a fantastically killjoy piece of legislation. It criminalises all these different nuisances you

can commit and it's basically everything fun. So knocking on doors and running away, flying kites, singing obscene ballads, sliding on ice or snow in the street, rolling barrels in the streets. It's just this astonishing list that someone has sat down and thought about, you know, what really annoyed them. And yeah, technically within the Metropolitan Police District in London, these are all still offences. And I think you can get a fine of up to £500, which, yeah, it really makes you want to go out and ring some doorbells, I think. land a viking longship on island shores scramble over the dunes of ancient egypt and avoid the poisoner's cup in renaissance florence each week on echoes of history we uncover the epic stories that inspire assassin's creed we're stepping into feudal japan in our special series, Chasing Shadows, where samurai warlords and shinobi spies

teach us the tactics and skills needed not only to survive, but to conquer. Whether you're preparing for Assassin's Creed Shadows or fascinated by history and great stories, listen to Echoes of History, a Ubisoft podcast brought to you by History Hits. There are new episodes every week. So all those things are still offences that you mentioned? Within London, yeah. What usually happens to these kind of crazier laws? Are they just superseded?

Are they deliberately repealed? What tends to, like in the case of these ones, when will we be allowed to not ring on doorbells and run away again? So there are two things that can basically get rid of a law. It can either be expressly repealed by Parliament, so they pass another law and say, it's okay, you can ring doorbells again. Or they can repeal it by implication, they can pass other legislation that's contrary to it, and the most recent legislation takes precedence. So a body called the Law Commission, which I used to work for, is a body that was set up to advise Parliament on law reform and that can be proposing new acts but it can also be getting rid of old outdated acts. So sometimes the Law Commission will propose lists of acts that it thinks we

don't need anymore and Parliament will sweep a whole bunch away. So how is the Metropolitan Police Act of 1839 sticking around? I know, yeah. There was a similar act, the Town Police Clauses Act 1847 for towns outside London and that was repealed, those sort of nuisance provisions in 2015. But I think perhaps nobody noticed the Metropolitan Police one or perhaps the Metropolitan Police said that they thought it was still useful. What about drinking? Because obviously we're Brits, we do a lot of drinking. Presumably there are some amusing alcohol-related statutes on the book. So the Licensing Act 1872 has some pretty strict rules. It says it's an offence to be drunk in any public place.

It's also an offence to be drunk in charge of a carriage, I think, which has been held to include mobility scooters recently. It's an offence to be drunk in charge of a horse or a cow or a steam engine. So if you were planning on driving around any steam engines while intoxicated, that's a really bad idea. For people listening abroad, the Brits have got a reputation for lining up, standing in line, queuing. Is there anything that you've discovered about that? The TFL bylaws, which apply on the tube and other TFL premises, and the very first one is that if you're told to queue, you have to queue, you have to join the back of the queue, you can't jump the queue. So they're very definite about how exactly you should be queuing on the tube. The bylaws also say that you have to stand on the right and that you

have to let people out of the tube before you, you know, go into the train, which of course, you know, people do anyway. But I don't think I'd ever realised that that was actually sort of legally enforceable before. Do you find that these kind of legacy laws are a product of bad legislation like this Metropolitan Police Act that you mentioned? It's kind of responding to outcry in the press or a kind of moment. Or often are those laws just as durable as other laws? It all depends on technology and societal mores. And is there a link between the longevity of a law and the kind of thought that went into its genesis? I mean, if you look at the laws that have survived a long time, some of them do seem to sort of be responding to a constant problem.

So there's the 1313 statute against bearing arms and armour into parliament. And that was passed because parliamentarians were all getting a bit hostile. They were worried fights were going to break out. People kept turning up in full suits of armour with swords and everything was getting a bit tense. So this was sort of the attempt to de-escalate and say, no, we have to keep things peaceful in Parliament, let's not bring armour there anymore. So you can see how that's perhaps something that we still need today. Before I let you go, I have to ask, of course, you mentioned the Statute of Marlborough, and that's still on the books. Is that the oldest piece of legislation that still has force?

What is it? What's it about? So it's about debt collection, essentially, and techniques that you can use to extract debts from other people. So, you know, are you allowed to take their stuff and hold it hostage until they pay you back? What kind of steps you're allowed to take to recover debts? So there are a few provisions of that that are still in force saying, you know, you can't act unreasonably if you're taking other people's stuff to try and get your money back from them. Can you still be killed in Britain for trying to kill the Queen? No, that went with the abolition of the death penalty. Okay, okay, good, right. These all these distant pub conversations I'm finally putting to rest.

This is so exciting. And then I guess maybe a big question to finish on. What is your kind of personal opinion on this often bizarre nature of the British legal system that we do have this remarkable unbroken legal tradition? And do you think it would have been better if in 1945, like so many other countries, we just tossed it all away and codified a bunch of new rules

that we'd all sat down and had a good think about at the time? I have very mixed feelings about it. So on one hand, from a historical point of view, it's just lovely to have this really visceral link with the past and really see how history impacts our lives today. And all of these sort of ancient curiosities cropping up is really interesting. On the other hand, I think quite often people have the idea that the law is arbitrary and irrational and outdated and oppressive. And a lot of these laws probably aren't really doing anything to help. So you can think, for example, about the Vagrancy Act 1824. That's even older than the Metropolitan

Police Act, and it makes it a crime to sleep in a public place. And that's being used for hundreds of prosecutions every year against homeless people. So some of these laws you might think aren't really great laws. Perhaps they were passed for a very different society, but they're still on the books. And in many ways, it would be good if we could, you know, update a lot of our laws for modern society. But I do love all of the quirky old things. Now, speaking of quirky old things, this week, I'm sorry to throw this at you, but this week, of course, we've just had the, was it the Belgian ambassadors throwing Charles II's fishing treaty of the 1660s into the debate about Brexit?

Because Charles II, who, let's be honest, should never have given away Dunkirk, separate podcast anyway, he allowed the people of Bruges to fish in English waters until the end of time, apparently. That is obviously not, doesn't have the strength of statute behind it. So does the King's word matter? I mean, I think probably that would be superseded by country legislation. But yeah, I've also been told, I live in Bristol, I've also been told that citizens of Bristol have some kind of ancient rights to live in Dublin. And everyone got quite excited that this might allow some sort of exemption from Brexit. So, yeah, there are all these ancient charters hanging around that I suppose have just never really been officially got rid of.

But they're all obviously superseded by statute law. Yeah, I assume that is the case. Well, there's a lesson there, isn't there? To go back like you've done on so many occasions and look at the actual legislation. Where can people do that? So it's actually quite difficult. There are currently well over 4,000 statutes in force.

So looking through them is quite hard. And some of the oldest ones were originally written in other languages, in French and Latin, and they're kept on big vellum rules in the Houses of Parliament that take all day to unroll because they're so long. You can find copies of legislation online on the legislation.gov.uk website. It's not the most user-friendly always. Lawyers sometimes have access to big commercial databases that are much easier to search through, but it's more difficult if you're a normal citizen just trying to find out what the law is. It ain't exactly the Ten Commandments chiselled into stone, is it? Yeah, the other

problem is that even when you see the text of a statute, you don't always know what it means. So someone on Twitter was asking about a statute that says it's unlawful to use your phone when driving and whether that applies to paying at a drive-thru. And it's really hard to tell because what's using a mobile phone? Is it paying on a mobile phone? Is it filming with it? Is it just talking on it? And then what counts as driving? Are you driving if you're stuck in traffic and haven't moved for half an hour? Or if you've cut off your engine or if you got out of the car to stretch your legs during that time? So even when you can see the words of the act, you sometimes don't know what it means until you look at all these court cases applying it. That's where you get so-called judicial activism.

That's where judges will have to rule. And then that precedent is sort of you have to understand the statute and then judges go. But by the way, you can use it at McDonald's if you're paying for drive-thru or something. Yeah, so judges have to interpret what the statute means and then say how that applies in real life. So just knowing what the statute says isn't enough without knowing what that looks like in reality. And that's what judges' role is to say. Well, this has been very useful indeed for me. Thank you very much. You are an excellent tweeter. J-H-M very useful indeed for me. Thank you very much. You are an

excellent tweeter. J-H-M-C-C-U-N-N. Tell us how people can stay in touch with you and your book or anything like that. So I don't have a book just yet. I finished my PhD last year. So hopefully that will be turned into a book at some point. Looking at legal documents and legal language in Tudor England. But yeah, I'm on Twitter and I've got my university email address as well. So if anyone does have any information about naked mannequins and dogs mating with royal pets, I'd be really genuinely interested to know. And that's an offer you don't get very often. Exactly. Please get in touch with Joanna.

And remember, folks, all the longbow ones are all nonsense. I'm sorry about that. Joanna, thank you so much for coming on the podcast. Thank you for having me. Hope you enjoyed the podcast. Just before you go, a bit of a favour to ask. I totally understand if you don't want to become a subscriber or pay me any cash money, makes sense. But if you could just do me a favour, it's for free. Go to iTunes or wherever you get your podcast. If you give it a five-star rating and give it an absolutely glowing review, purge yourself, give it a glowing review, I'd really appreciate that. It's tough weather, the law of the jungle out there, and I need all

the fire support I can get. So that will boost it up the charts. It's so tiresome, but if you could do it, I'd be very, very grateful. Thank you.