Whigs and Hunters: The Origin of the Black Act

by E.P. Thompson

Identifies political and economic controversies that contributed to the formulation and passage of the notorious eighteenth-century law and assesses its consequences

Genres: History, Nonfiction, Law, British Literature, Politics, History and Politics, Cultural

313 pages, Paperback

First published January 1, 1975

About the author

Edward Palmer Thompson was an English historian, writer, marxist and peace campaigner. He is probably best known today for his historical work on the radical movements in the late 18th and early 19th centuries, in particular The Making of the English Working Class (1963). He also published influential biographies of William Morris (1955) and (posthumously) William Blake (1993) and was a prolific journalist and essayist. He also published the novel The Sykaos Papers and a collection of poetry.

Thompson was one of the principal intellectuals of the Communist Party in Great Britain. Although he left the party in 1956 over the Soviet invasion of Hungary, he nevertheless remained a "historian in the Marxist tradition," calling for a rebellion against Stalinism as a prerequisite for the restoration of communists' "confidence in our own revolutionary perspectives". Thompson played a key role in the first New Left in Britain in the late 1950s. He was a vociferous left-wing socialist critic of the Labour governments of 1964–70 and 1974–79, and during the 1980s, he was the leading intellectual light of the movement against nuclear weapons in Europe.

Reviews

[Paul · Rating 5 out of 5]

“We appear to glimpse a declining gentry and yeoman class confronted by incomers with greater command of money and influence, and with a ruthlessness in the use of both”

Another offering from one of my favourite historians E P Thompson. This study looks at the origins and effects of The Black Act of 1723, one of the most oppressive pieces of legislation ever passed by the British parliament, massively increasing the number of offences for which the death penalty was prescribed. The background is worth mentioning. Following the death of Queen Anne in 1714, Britain now had a German King from Hanover. There was still strong feeling for the Stuart lineage who had been displaced in 1688 and there had been a Jacobite rebellion in 1715. Jacobite feeling was common, especially in the Catholic community and there were ongoing fears of rebellion. The economic disaster of the South Sea Bubble in 1720 was still close and its effects still being felt. The prime ministerial system was just beginning and Sir Robert Walpole had assumed office in 1721 and was now busily accumulating power and protecting the guilty (his nickname being “Mr Skreenmaster General”) who had benefitted from the collapse. His hold on power was still a little shaky and needed bolstering. Enclosure was proceeding as it had been for many years, removing ancient rights and customs and causing distress and displacement. It was consequently a time of flux.
The Act was a reaction to what was felt to be an increase in lawlessness, mainly in and around the forests. The name Black Act derives from the blacking of the face that poachers used for night time activities to avoid detection. This goes back to the medieval and probably Saxon period so it was not new. The death penalty was now imposable for blacking the face, breaking the heads of fish ponds (to steal the fish), the poaching of deer (especially from Royal parks), the damaging of cattle and horses, the removal of wood from the forests, the damaging of duck ponds, cutting trees, setting fire to hayricks or barns, poaching hares. In fact there were over one hundred new capital offences. The lawlessness that it was meant to counter had complex roots often linked to the removal of previous rights in relation to the land and forest. It involved a number of levels of society from ordinary working folk, to tradespeople to minor members of the gentry and even clergy. For the authorities the fear of Jacobinism was ever present (even when there was no evidence for it). As Thompson points out the legislation was “an astonishing example of legislative overkill” and indicates that crime was now more something done to things rather than people. The use-rights over land were pre-capitalist and had to go to enable the rural economy to “modernise”.
The Act also removed the need for an awkward trial. If someone was accused of offences covered by the Act by sworn statements of credible witnesses, he would become a “proclaimed man”. At that point if he failed to surrender himself after a proclamation was read in two market towns on two market days and affixed on some public place, he could be deemed guilty and sentenced to death without further trial.
It was a time of change, old manor houses were being replaced by new more stately homes and more formal gardens and Thompson analyses the Act and its working out in some detail going through court and assize records. It’s not an easy read but it’s a proper history book and I found it well worth the effort.

[Simon Wood · Rating 5 out of 5]

"JESU!" SAID THE SQUIRE, "WOULD YOU COMMIT TWO PERSONS TO BRIDEWELL FOR A TWIG?"

The Lawyer replies to the Squires question - "Yes and with great lenity too; for if we had called it a young tree they would have been both hanged." The quotation (which sits at the beginning of this book) is from Henry Fieldings excellent "Joseph Andrews". The law under which the two persons might have been strung up for stealing a "young tree" was the infamous Black Act of 1723 which at a single go increased the number of capital crimes by about fifty. This Act and the circumstances in which it arose are the focus of E.P.Thompsons "Whigs and Hunters".

Thompson volunteered an essay for inclusion in the seminal collection on Crime in the Eighteenth century- "Albion's Fatal Tree" on the Black Act of 1723. After 5 years of research he produced not an essay but instead this extremely fascinating book which covers a number of issues relating to early 18th Century England. Rather than accept the apparently "obvious" reason for the Act which was ostensibly to deal with organised gangs who were committing depredations in the Kings Forests, stealing Deer, timber, turfs and peat Thompson digs deeper. He reconstructs from the available documents of Forest Courts, Assize Courts, private correspondence of those involved a picture of the area in which the disturbances that led to the Acts were greatest. The area in question is situated - roughly - between Windsor and Southampton including the Forest of Windsor and the Forest of Bere. Thompsons conjecture, after spending much time in the primary records, is that rather than being gangs of organised criminals those who were committing the crimes were those who had lived in the forest since time immemorial and whose customary way of life was being undermined by the Park authorities acting on behalf of the dominant Whig establishment and the King himself. The picture he paints of their way of life and their actions in defence of it are completely absorbing, and only those with a hard heart wont feel any sympathy for them in their struggle. Rather than making an honest and impartial attempt to adjudicate between overlapping property rights, the powers that be including such figures as Britains first Prime Minister Sir Robert Walpole come down firmly on the side of the Forest authorities, which given that they often had places or placemen in those authorities is hardly surprising. One might be surprised at modern politicians and their expenses paid Duck ponds, but a Duck pond is small beer indeed in comparison to a Deer park.

It's not the easiest piece of reading and when I read it 8 or so years ago I considered it as the lesser of Thompsons three major works (the others being "The Making of the English Working Class" and "Customs in Common"). Having read it a second time I wouldn't have any problem with considering it almost the equal of the other two. Its now sadly out of print, and hideously expensive 2nd hand so perhaps this is one to look for in the Library. I suspect that it will not be everyones cup of tea, but for some this will turn out to be a fascinating and memorable book.

[Peter · Rating 5 out of 5]

The Black Act passed in British parliament in 1723 mandated the death penalty for a variety of offenses ranging from deer poaching to destroying fruit trees to being in a forest in disguise. It also mandated collective punishment for villages suspected of holding people guilty of these crimes, and summary execution for anyone indicted of these crimes who did not show up for summons after forty days. In short, it made Britain’s penal codes, already harsh, much harsher.
The great social historian E.P. Thompson delves into the context of this act in this monograph, his first after “The Making of the English Working Class.” Conventional history says that the Black Act was what it said it was- a reaction to the depredations of the Blacks, gangs of poachers who rode in gangs and in disguise to steal deer and violently intimidate gamekeepers. You’d figure such a big change in the laws would be a response to a massive crisis, but Thompson shows that the Blacks made remarkably little impact and don’t show up much in the historical record outside of the Black Act and its enforcement.

At the end of the day, this is because blacking was a minor phenomenon, the act of a few dozen people in and around the royal park at Windsor and the aristocratic estates in Hampshire. If I have my English geography right, they went on to become nice outer suburbs of London. At the time, though, as Thompson shows us, these were forest communities, where traditional understandings of property rights were clashing with newer, capitalistic ones. Big money was moving in, buying up forests to turn into deer parks. The deer would then go around eating the crops of local villagers. Between that and the high price of venison, deer were irresistible targets for local men familiar with the forest. Resistance from the landowners’ gamekeepers escalated the situation and fights, sometimes deadly ones, broke out.

Why was ordinary English law — not exactly soft on property crimes to begin with — not up to the task of dealing with these small groups of bandits? Well, Thompson argues, it was- blacking was largely suppressed as a practice before the Black Act could be passed. The perpetrators of the most violent acts were executed or transported (to Maryland- this was before transportation to Australia).

But the cases inconvenienced the coming power in the land, namely the Whigs. Coming off the back of the Hanoverian succession (where they had to fob off a German king on England to avoid a Stuart restoration) and the crash of the South Seas Company bubbles, the Whigs, led by Robert Walpole, were feeling both their oats and somewhat insecure. In the cold damp banana republic that was early modern Britain, Thompson tells us, the Whigs and their backers in the city (and City) of London were pushing the bounds of fungibility of property. This entailed making things long understood as property of a less flexible kind — common lands and royal/parliamentary offices — more like cash money or negotiable instruments.

This was impossible under traditional long-standing arrangements in the countryside. So impelled by personal pique at their estates being trespassed upon (the Walpoles had estates in blacking areas, and Robert Walpole basically invented the modern role of prime minister), a small group of Whigs used their parliamentary positions to advance the clarification of property relations. If fungibility was the watchword for property, terror — replacing all previous arrangements — became the basic principle of enforcing property boundaries.

Thompson does his thing of bringing the long-ignored and despised English poor to life by building a detailed picture of the forest communities in the first three quarters of the book before moving on to the titular Whig hunters. He finds that in general the Blacks were men of small property, often backed by local gentry, against less the big landowners themselves and more their local enforcers. It’s written with characteristic verve even if the details bog down a bit. Perhaps it’s part of the point- the lifelike, chaotic welter of arrangements constructed over centuries by forest communities (which were quite hierarchical in their own right, Thompson doesn’t romanticize them) contrasted to the deadly simplicity of capitalism? Either way, a small but worthwhile installment in the canon of social history. ****’

[Lucas · Rating 4 out of 5]

Senhores e Caçadores é assumido pelo autor como um livro sobre um pormenor histórico. Trata-se da análise do significado da criação da Lei Negra, em 1723, na Inglaterra. Tal lei instituía a pena capital para crimes aparentemente pouco importantes, como recolher madeira da floresta real, abater cervos, destruir represas para criação de peixes e outras ofensas do nível. Parecia também ter como alvo um grupo de criminosos conhecido como "negros", homens organizados, armados e com a cara pintada de negro, que ameaçavam aos autoridades locais com invasões, ataques diretos ou enviando cartas ameaçadoras.

Trata-se também de obra muito original em um sentido metodológico. Thompson inicia o livro assumindo que é um tema com o qual não tem muita familiaridade, por isto pretendeu descrever o contexto pelo detalhe minúsculo que as fontes lhe revelavam e, aos poucos, ir ampliando a perspectiva para perceber um entorno cada vez maior. Esta particularidade do livro pesou sobre mim, que pouco conheço sobre a Inglaterra do século 18 e fui forçado, por vezes, a parar a leitura para pesquisar quem eram aqueles sujeitos, como se deu a disputa dinástica da coroa inglesa e afins. Pelo modo que foi construído, "Senhores e caçadores" é um livro melhor para especialistas e não para quem quiser tecer um panorama sobre a Inglaterra do século 18.

No entanto, o que salta aos olhos na análise de Thompson era como o século 18 não foi um período de consenso, mas de conflito social cuja excepcionalidade em relação aos séculos 16 e 17 era que tais conflitos não ocorriam em termos de coerção religiosa, mas pela lei. A dureza e crueldade da Lei Negra se justificava para fixar bem forte a noção de propriedade privada na plebe florestal, acostumada a relações comunais de propriedade que não mais favoreciam o grupo dominante que havia recentemente galgado ao poder: os Whigs hanoverianos.

Ao longo da investigação, os negros são revelados como compostos por pessoas comuns, cidadãos cuja subsistência havia sido ameaçada pelo imposição da nova forma de tratar a propriedade imposta pelos Whigs. A Lei Negra, que em sua criação só parecia se aplicar aos Negros, em 2 anos já passava a ser francamente aplicada a contextos muito maiores: seu alvo claro era a plebe em geral e não um grupo organizado de criminosos.

Assim, Thompson apresenta a Lei Negra, de muitas maneiras, como um instrumento para mediação das relações entre classes. Uma ferramenta ideológica que mistifica as lógicas reais do poder, fornecendo vantagens ao grupo dominante. No entanto, como não podia deixar de ser, Thompson rejeita a metáfora da estrutura x superestrutura que norteia a perspectiva marxista althusseriana muito em voga no momento da elaboração do texto. Ou seja, o direito e a lei não podem ser entendidos apenas como instrumento de dominação classista. Se assim fosse, a própria pesquisa histórica seria supérflua e o que veríamos seria uma continuidade entre o modo de produção e a superestrutura legal da sociedade. Não é isso que se vê na prática.

No capítulo final, intitulado "O domínio da Lei", Thompson tece detalhadamente considerações sobre a especificidade do Direito e da lógica legal, entendendo-as - por suas pretensões universalistas e igualitárias - como um bem humano incondicional. Percebe-se aí um paradoxo, a lei é um instrumento de classe que para cumprir seu discurso igualitário parece exigir que se transcenda a desigualdade do poder de classe. O domínio da lei estaria circunscrito a regras próprias, implicando uma obediência em certo grau a sua coerência interna. Nas palavras de Thompson, se a Lei é um máscara, é uma que foi usada em momentos de ruptura para se dirigir centenas de milhares de outros mascarados. Em certos âmbitos precisos, a lei foi uma arena de confronto autêntica para conflitos classistas. Em outros, se viu obrigada a fazer concessões, decidir contra os interesses dos grupos dominantes para garantir sua legitimidade. O povo não é burro e não é o primeiro pretexto mistificador que convence da sua justiça.

Por fim, com sua marca característica de valorização da cultura, Thompson, ao perceber a lei como o mecanismo que penetra todos níveis de relações sociais e que cumpre papel importante para definir a identidade dos homens. A Lei não pode ser percebida como uma imposição de cima para baixo sobre os oprimidos, mas como mais uma arena de conflito. A partir do século 18, as próprias relações de produção só parecem ter sentido nos termos de sua definição legal, dado que a lei passa a ser a ideologia legitimadora principal da sociedade: como o livro trata da noção de propriedade nas florestas inglesas. É claro que não há imparcialidade abstrata da lei, havendo desigualdade social, ela a refletirá, mas isso não quer dizer que se trata de um exercício de poder arbitrário.

[Thomas Ray]

Britain's Black Act of 1723 stipulated the death penalty, without trial, for anyone taking wood or hunting on land they did not own. --Thomas Piketty, /Capital and Ideology/, 2020, pp. 175-176.

[Barb Drummond · Rating 5 out of 5]

This is another gem from the wonderful E P Thompson. It deals with a period of history that is incredibly important yet rarely investigated or explained - why so many crimes were made capital offences in 18th century England. His explanation is as bizarre as it is horrific - of out of control courtesans buying up forests and prosecuting poachers. Game was considered to be free for all, so poaching them was not considered a crime by most people, but From the 1720s a whole raft of acts from blacking your face to stealing woodland produce, breaking fences, poaching and arson became hanging offences, as did aiding offenders, and much more. This behaviour is now associated with Banana Republics, but the laws were maintained for decades, and led to the filling of jails, and transportation of thousands of poor to North America and then to the founding of Australia.
Thompson goes into great detail, on the people involved, the regions affected, and the long term effect of what had all the aspects of emergency legislation. Reading this explains so much of what happened later: the enclosures acts, the evictions, the loss of livelihood and community. Without such draconian laws it is hard to imagine so many people wishing to emigrate to the industrial cities or to the colonies. It should be read in conjunction with Cobbet's Rural Rides in order to see the long term effects, and thy are truly terrifying.
This is a book that will change how you see British history, and in the wider sense, how you see notions of justice and fair play.
Definitely a must read, but not a light one.

[Ed Stoddard · Rating 5 out of 5]

I have long meant to read this book. Thompson was a towering figure in late 20th century English historiography and I am once again reminded why. The Black Act - which valued the life of a deer over that of a human - was enacted against the backdrop of changing economic relations in 18th century Britain which put a premium on property. It was not about animal welfare, but I see its ghost haunting 21st century views on wildlife and poaching ...

[Katie · Rating 5 out of 5]

This is a fascinating book in at least three ways. In the first place it offers a nuanced and intelligent analysis of what law is, and how it can function as a terrain of class struggle, whose outcome is not predetermined. In the second place, it provinces an intriguing window into the ways that property, resources, and livelihoods were managed in a pre-capitalist context. Even those of us who ought to know better can sometimes assume that non-capitalist relationships were simpler, less clearly defined, or less conflictual than the wage-and-property relations that followed in Europe. This book exposes in loving detail the complexities of resource governance in a handful of specific communities in 18th century England, and unpacks their great sophistication. Finally, because this was a context where capitalist relations were beginning to penetrate, I suspect it shows the depth and creativity of resistance against the organised mass dispossession that was involved in the transition to a wage-labour and freehold property system. It's also funny, as a bonus.

[Mark Brown · Rating 4 out of 5]

E.P.Thompson at his best; polemical and focussed on a little known piece of eighteenth century law,The Black Act,which bought the death penalty in to deal with 'wicked and evil men going armed in disguise'. Initially to address deer stealing,and poaching, the 1723 Act was used by landowners to deal with local reprisals against them,and to further their own finacial interests,at a time when customary village rights were being eroded.

[Jay Callahan · Rating 5 out of 5]

There was no better historian than Thompson. His attention to detail in research in the archives; grasp of social structure and movement; simple good sense, and humanity, and clear writing combined to produce seminal books that cast light on much more than the overt topic. This is a good book.

[Peter Harrison · Rating 5 out of 5]

This book is probably less well known than EP Thompson's magnum opus The Making of the English Working Class but is a similarly impressive feat of scholarship that follows a very similar method. Thompson uses a detailed exploration of fragmentary source material to bring to life the history of ordinary people in the eighteenth century whose story is usually lost underneath a focus on court and parliament, Hanoverians and Whigs. The basis for this work is the 'Black Act' of 1723 which harshly penalised a range of offences in the royal forests.

One of Thompson's motivations is clearly to combat a vulgar Marxist interpretation which ties the use of the law against those people in royal forests seeking to assert their ancient rights as simply the assertion of class power through the law. In the final chapter therefore he moves beyond the detailed historical analysis which makes up the bulk of the book to assess what 'the law' means in the context of class conflict. In contrast to those vulgar Marxists who see it as a simple part of some 'superstructure' determined by economic power Thompson's view is that it has its own history, and while it can be used by the powerful to dominate the poor - as it was by the Whigs against those forest residents targeted by the Black Act that forms the core of the book - it is not simply an instrument of class power.

Thompson also rails against those historians who see this period of the eighteenth century as one of enlightenment when the British political system developed towards a rational and intellectual basis, that where it was brutal that was simply because "that was the culture of the times".

In brief, a detailed assessment of a specific process in a specific period that tells a wider story of power and class in eighteenth century England.

[Robert · Rating 5 out of 5]

This book starts a little drily with a lot of statistics and details, though Thompson is an engaging and quietly funny writer, so it isn't a bore. But in the last two chapters in particular, it becomes something brilliant, an analysis of how the Black Act served to preserve the power of a particular group of people, and define property rights in a particular way. There are some wonderful turns of phrase and devastating humour in the book. Thompson ends with a strongly anti-Stalinist defence of the rule of law, which is magnificent. A late entrant to the long list of the best books I have read this year.

[Steve Shulman-Laniel · Rating 5 out of 5]

Another masterpiece by E.P. Thompson. I'm now obsessed. Really stunning peroration on the rule of law to wrap the whole thing up.

[Indumugi C · Rating 5 out of 5]

May not stop gushing about this for a while, what incredible humor and soul searching.

[Joey Mopsink]

DNF (for now)

[mallory payne · Rating 5 out of 5]

another thompson banger

[Thomas · Rating 5 out of 5]

Le Goat

[Wes Pue · Rating 5 out of 5]

Good read

[William Shep · Rating 4 out of 5]

Good history if you can get past the Marxist rant.

[Seong Min · Rating 5 out of 5]

This is not (merely) a story of a brutal law imposed on the helpless people; it is a story of those who tried to legitimate their rights by appropriating and circumventing the law.

[Josh · Rating 4 out of 5]

A lot of details. The forests, the deer. The shires. But all worth it for the gravy at the end.