1975, 269 p.
Whigs and Hunters is one of those books that appears again and again on the bibliographies of other books and articles I’ve been reading about the law in 19th century colonial societies. I read Thompson’s Making of the English Working Class many, many years ago, and have since heard it referred to many times as a seminal history text by historians I admire.
The full title of the book is Whigs and Hunters: The Origin of the Black Act. I knew that the Black Act referred to the death penalty applied to crimes like poaching and the cutting of trees. One of the first surprises of this book is that the Black Act was not so called, as I assumed, as a description of its severity. Instead, the “Black” refers to the practice of blacking faces to disguise the perpetrators undertaking the depredations under cover of night.
But the Act was certainly “black” in terms of its subversion of legal process. It was enacted in four weeks in May 1723, with little parliamentary debate. The first category of offenders was persons ‘armed with swords, fire-arms or other offensive weapons, and having his or their faces blacked’ who appeared in any forest, chase, park or enclosed ground where deer had been, or shall usually be kept, or on any high road, heath, common or down. Offences included hunting, wounding, stealing red or fallow deer, poaching of hares, conies or fish; breaking down the head of a fishpond; maliciously killing or maiming cattle; cutting down trees; setting fire to any house, barn, haystack; or forcibly rescuing any one from custody accused of any of these crimes. If any person was accused of any of these offences on information sworn by credible witnesses, he would become a ‘proclaimed man’. 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. Moreover, if any person was found to ‘conceal, aid, abet or succour’ anyone accused in this way who had not surrendered within forty days, then he too would be guilty of felony and sentenced to death.
It was, Thompson claims ” a bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges” (p. 267). There were fifty distinct offences for which capital punishment was provided, but under the different categories (e.g. principles in first or second degree; accessories etc), it gave rise to a total of 200 and 250 capital offences (p. 23). Originally passed only for three years, it was extended and enlarged over the next hundred years until its repeal in the 1820s and 30s. Its definitions became broader: the carrying of a stick and cropped unpowdered hair and the absence of a wig could be classed as “armed and disguised”. The cases were removed from the vagaries of local juries by moving the trial to the Court of the Kings Bench.
In this regard, I found myself thinking of the Anti-Terrorist legislation enacted in Western countries that otherwise pride themselves on their adherence to the “rule of law”. Our 21st century “black” acts were likewise developed in haste, with little parliamentary scrutiny, ostensibly for a prescribed period of time. They, too, removed proceedings from the conventional legal system and could be extended to people who were thought to have knowledge of the acts, or contact with the perpetrators, without actually committing them themselves. I read with disgust in October 2008 that England used anti-terrorist legislation to seize Icelandic assets in the face of Iceland’s failure to guarantee British savings. This legislation, like the Black Act, is loosely-drafted and can be used for multiple purposes beyond those stated.
Thompson writes in the preface that the book arose from his contribution of a single chapter on the Black Act to Albion’s Fatal Tree. As such, it was based in the 50 years prior to his own area of expertise (social history post 1750). He writes:
Most historians do not put themselves at risk in this kind of situation, and they are wise not to do so. One normally reads very widely into a ‘period’, before or alongside one’s researches, accepting the received context offered by previous historians, even if at the conclusion to one’s work one is able to offer modifications to this context. I decided to work in a different way. I was like a parachutist coming down in unknown territory: at first knowing only a few yards of land around me, and gradually extending my explorations in each directions. (p. 16)
He starts with deer hunters in Windsor Forest and Hampshire, then moves to forest governance through stewards and keepers, then onto the courtiers and bishops, then onto Walpole and government ministers at the highest level. Much of his evidence is, as he admits, scrappy and insubstantial, and much of it is drawn from the holdings of small historical societies and the archives of particular families and properties- the small minutiae of local and family history. He moves back from this detailed study of the perpetrators into a consideration of their connection with the large politics of Walpole, the King and the Whig ministers. He argues that the Black Act was promulgated by the supporters of the Hanoverian kings who had recently come into possession themselves of new estates, where they pulled down the old manor houses to build new Georgian buildings, surrounded not by the time-honoured forests of old, but by expansive and expensive landscaped lawns and formal gardens. The Black Act criminalized the resistance to this takeover, not only by small farmers and workers deprived of traditional wood-gathering and hunting privileges, but also by the gentry and larger farmers who had been sidelined by the accumulation and consolidation of property by this new elite.
This shift from the details of localized crime up into the higher reaches of power is the nub of his argument, but I found this part the least convincing. Perhaps he assumed a knowledge of Walpole and Hanoverian politics that I lack, but although he makes much of the “Whig state of mind” (p. 207), he doesn’t make clear what this state of mind actually is and how it manifested itself.
Thompson writes well: he has a good eye for the telling episode, he is disarmingly candid about his frustration with the limitations of his sources, and his frequent use of “we” pulls you into his argumentative undertow. But at times, the combative historian emerges- in this case in a four-page joust with Professor Pat Rogers on his article from Historical Journal XVII, 3, 1974.
Professor Pat Rogers has recently confused these questions, in the first scholarly article to appear on the origins of the Black Act. I do not wish to quibble about minor disagreements in our accounts of events, although certain points require correction…. (p. 192)
which, of course, Thompson then proceeds to do.
The confidence, and perhaps even the swagger, are (one feels) less those of the Blacks than those of Professor Rogers. He is able, from slender evidence, and from evidence which is assembled by the authorities and opponents of the Blacks, to pronounce with assurance upon the objectives, motivations, organization and moral worth of these elusive men. Although I think that I have shown some of the critical economic and social tensions aroused in the forests, I cannot share Roger’s confidence (p. 193)….I must apologize to Professor Rogers for hanging these lengthy reflections upon the hook of his article… (p. 195)
Apology or no, the exchange echoes with the clashing of rhetorical swords in the conference arena! He circles for another joust, but this time with other Marxist historians, in his final chapter where he makes an 11-page defence of the concept of the “rule of law” as an “unqualified human good” . This chapter was written, Dorothy Thompson told Daniel H. Cole for his 2001 article, as an afterword:
While conducting research for this essay, I contacted Thompson’s widow Dorothy- an renowned historian in her own right- to enquire about possible sources for her late husband’s epiphanic conversion to the Rule of Law. I received in reply a brief letter in which she sheds some light on the subject. E. P. Thompson returned to complete Whigs and Hunters after he finished co-editing with ‘fellow historians in the Marxist tradition’ Douglas Hay, Peter Linebaugh, John G. Rule, and Cal Winslow Albion’s Fatal Tree: Crime and Society in Eighteenth Century England. According to Dorothy Thompson, his collaboration on that work left him deeply pessimistic about the role of law in society. She engaged him in a ‘very heated discussion’, during which she suggested that ‘he was leaning too far in the direction taken by some of the contributors to Albion’s Fatal Tree in dismissing the law simply as an instrument of class power. He took time to re-think the question and added the famous afterword to W and H‘. (Cole, 2001, p 183).
And some afterword it is. It’s a completely different chapter in focus, voice and intent- and it’s the most heavily underlined chapter in the copy I borrowed from the library. Thomson writes:
We might be wise to end here. But since readers of this study may be provoked to some general reflections upon the law and upon British traditions, perhaps we may allow ourselves the same indulgence (p. 258).
But, he asks, is this emphasis on British tradition merely a form of narcissism or parochialism?
Alternative perspectives must diminish the complacency of national historical preoccupation. If we see Britain within the perspective of the expansion of European capitalism, then the contest over interior rights and laws will be dwarfed when set beside the exterior record of slave-trading, of the East India Company, of commercial and military imperialism. Or, to take up a bright new conservative perspective, the story of a few lost common rights and of a few deer-stealers strung from the gallows is a paltry affair when set beside the accounts of mass repression of almost any day in the day-book of the twentieth century. Did a few foresters get a rough handling from partisan laws? What is that beside the norms of the Third Reich? Did the villagers of Winkfield lose access to the peat within Swinley Rails? What is that beside the liquidation of the kulaks? (p. 259)
His use of “we” throughout the text has invited us to sit beside him, and all of a sudden we are brought to sit alongside him.
I stand on a very narrow ledge, watching the tides come up. Or, to be more explicit, I sit here in my study, at the age of fifty, the desk and the floor piled high with five years of notes, xeroxes, rejected drafts, the clock once again moving into the small hours, and see myself, in a lucid instant, as an anachronism. Why have I spent these years trying to find out what could, in its essential structures, have been known without any investigation at all? (p. 260)
I’m obviously not the only one to have 2.00 a.m. crises of confidence! But whereas I question the whole point of what I’m doing, Thompson enters the ring for another bout, this time against his erstwhile fellow-Marxists.
I am disposed to think that it does matter; I have a vested interest (in five years of labour) to think it may. But to show this must involve evacuating received assumptions- that narrowing ledge of traditional middle ground- and moving out onto an even narrower theoretical ledge. This would accept, as it must, some part of the Marxist-structural critique; indeed, some parts of this study have confirmed the class-bound and mystifying functions of the law. But it would reject its ulterior reductionism and would modify its typology of superior and inferior (but determining) structures. (p. 260)
I’m not familiar enough with Marxist explanations of law and ideology to engage with his argument. But what he does argue, and I can see why this would be so controversial, is that
there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. (p. 266)
… If we suppose that law is no more than a mystifying and pompous way in which class power is registered and executed, then we need not waste our labour in studying its history and forms. One Act would be much the same as another, and all, from the standpoint of the ruled, would be Black. It is because law matters that we have bothered with this story at all. (p. 267)…Since we hold this value to be a human good, and one whose usefulness the world has not yet outgrown, the operation of this code deserves our most scrupulous attention. It is only when we follow through the intricacies of its operation that we can show what it was worth, how it was bent, how its proclaimed values were falsified in practice…. we feel contempt for men whose practice belied the resounding rhetoric of the age. But we feel contempt not bedause we are contemptuous of the notion of a just and equitable law but because this notion has been betrayed by its own professors. (p. 268)
I find little to argue with here- but then again, I’m no Marxist. The rule of law, as I see it, is an unqualified human good in that it limits arbitrary power, and I can’t see that it can ever “wither away” in any complex society. Thompson distinguishes between the concept of the rule of law, and the content of that law, and where it is bad law, it should be challenged. Amen to that..
References:
E. P. Thompson Whigs and Hunters, Penguin Books, 1975
Daniel H Cole ” ‘An Unqualified Human Good’: E. P. Thompson and the Rule of Law” Journal of Law and Society, Vol 28, No 2, June 2001, pp. 177-203.
Pat Rogers “The Waltham Blacks and the Black Act” Historical Journal XVII, 3, 1974.
The Resident Judge of Port Phillip 