Joanna McCunn, Lecturer, Law School, University of Bristol
Have you heard that it’s illegal to die in Parliament? Or to eat mince pies on Christmas Day? Are you a Welshman who’s been nervously avoiding Chester, and do you fret about committing treason by posting a letter with an upside-down stamp? Perhaps you look back with horror on those childhood crime sprees of ringing doorbells and running away…
Articles about ‘funny old laws’ were once a staple of the tabloid silly season, and now run riot across the internet. The Law Commission gets so many enquiries about strange old English laws that it has a page dedicated to busting legal myths. I recently experienced the power of these stories first-hand, when a hastily-composed late-night Twitter thread led to an appearance on a history podcast to explain the ins–and–outs of the Queen’s relationship with sturgeon.
Alas, many of these ‘funny old laws’ are little more than urban legends. Perhaps unsurprisingly, there is no legal right to shoot Welshmen in Chester or Scotsmen in York. Nor is there a law against dying in Parliament, and we are entirely at liberty to eat mince pies every day of the week and stamp letters in whatever devil-may-care fashion we please. Why, then, are so many of us willing to believe otherwise?
Firstly, of course, some strange and antiquated laws really are in force in England and Wales. The Queen owns all of the whales in the realm, as well as certain kinds of swan. Nineteenth-century legislation still criminalises some surprising activities: being drunk in charge of a steam engine; driving cattle through London without permission; and, yes, ringing doorbells and running away (though only within the Metropolitan Police District).
Against this admittedly peculiar backdrop, even the more outré legal myths start to seem all too plausible, especially since some have a small grain of truth to them. In 1403, Welshmen breaking curfew in Chester risked execution, though ordinary citizens weren’t allowed to shoot them (and definitely aren’t now). Christmas celebrations were banned during the Interregnum, making mince pies deeply suspect; thankfully, this law lost its effect on the restoration of Charles II.
It can, then, be difficult to sort the real laws from the fakes, especially without undertaking detailed legal research. And many people just don’t have the resources for this kind of work. Even modern statutes can be difficult to access, and the older the laws are, the more problems stack up. In 1916, the Irish revolutionary Roger Casement was ‘hanged on a comma’ in the Treason Act 1351: as the judges explained, they had ‘been to the Record Office’ and ‘read the original of this Statute in Norman-French,’ finding ‘a mark which we looked at very carefully with a magnifying glass.’ They determined that it was a comma, crucial to the meaning of the Act and bringing Casement within its scope. If old laws cannot be understood without trips to the archives, armed with magnifying glasses and a working knowledge of archaic French, they are hardly accessible to the average citizen.
This inaccessibility isn’t good for the law, and it naturally makes people suspicious. Fake old laws may seem harmless, but they do have a darker side. Even if nobody seriously thinks that rules about mince pies and upside-down stamps would be enforced today, these myths position the law as absurd, arbitrary, outdated and oppressive.
As a result, they open the door to other, less funny, legal myths. If the law of murder can be manipulated with arcane technicalities about bows–and–arrows and the city limits of Chester, why not believe that obscure clauses in a centuries-old royal proclamation give you a get-out-of-jail-free card for criminal offences? If you think that the law is so irrational that it criminalises dying in Parliament, you might be more willing to accept that judges are enemies of the people and that criminals cannot be deported if they have pet cats.
These myths are also red herrings, distracting attention from absurd and oppressive laws that are all too real. For example, the Vagrancy Act 1824, passed in the aftermath of the Napoleonic Wars, makes it a crime to beg or to sleep rough. It was used to prosecute over a thousand people in 2018, and informally to intimidate many more. The leader of Windsor council wielded it when threatening to clear the town of homeless people before Prince Harry’s wedding.
Sometimes the law really is an ass. But it’s important to find the right targets for our ire, instead of being distracted by legal myths. Fake old laws encourage a public discourse that runs on baseless claims about ‘ludicrous’ laws instead of well-informed debate. We need to clear away the detritus before we can have much-needed conversations about which strange laws are picturesque amusements and which are really in need of reform.
There are, though, reasons to be hopeful. The fact that so many people engage with these articles should itself be cause for celebration amongst legal historians: it demonstrates that there is public interest in our law and its history. The improved quality of these articles in recent years is also encouraging, as media outlets increasingly fact-check, rather than repeat, legal myths.
There is a real opportunity here for lawyers and legal historians to counteract the inaccessibility of the law. The success of the Secret Barrister’s recent book on ‘fake law’ shows that there is public appetite for reliable information about the law, while legal bloggers regularly debunk myths about sentencing policy or the lockdown regulations. Bristol academics are also involved in these conversations, dispelling misconceptions about everything from whiplash claims and Brexit negotiations to the history of women’s rights.
Lawyers and academics have an important role to play in ensuring that accurate legal information is made more widely available, whether it concerns days-old criminal offences or some of the most ancient statutes on the book. After all, what could be better than letting people enjoy their mince pies with complete peace of mind?