The Waltham Black Act of 1723

In The Ladies’ Tale I mention this Act, with Edwin’s father setting him as a child to learn the crimes it covered. This was a formidable piece of homework, as the initial Act covered over fifty criminal acts, and by the end of the century this had been added to, with a total of more than 225 criminal offences now being covered, many of them trivial, all of them earning the death penalty.

Before I talk about the Act, which became known as the Bloody Code, it’s worth explaining that in the early eighteenth century there was no police force or crime detection service, and, due to recent economic issues, an increase in poverty. Although people constantly complained about criminals and how afraid they were to go out at night (some things never change), the population would not countenance the establishment of a police force to combat this, in the same way that they were against a standing army, fearing that both could be used against them rather than for them. At the same time the land-owning elite worked hard to ensure that the legal system, while claiming to be fair to all, in fact protected them alone. In the main, with very few exceptions, it targeted the poor and protected the wealthy, not least because the poor had no influence and could not afford to either bribe their way out of trouble or take legal advice as the rich could.

One of the greatest examples of an act to protect the land-owning wealthy was the Waltham Black Act, passed in 1723. This Act was initially aimed at poachers, not just organised poaching gangs, but also the very poor who were so desperate for food that they were willing to kill animals in private parks owned by the wealthy, who wished to preserve the animals for their friends to hunt as a pastime. In fact so biased were the laws regarding poaching that a farmer could be prosecuted for taking game that had strayed from the landowners’ grounds onto his fields. However, if the landowner was hunting a fox, for example, it was quite legal for him and his friends to ride onto the farmer’s land and trample his crops in pursuit of the animal.

Obviously this caused a good deal of resentment, and in October 1721 sixteen poachers, their faces blackened by way of camouflage and concealment, blatantly poached deer from the Bishop of Winchester’s land by way of protest at the unfairness of the laws. Four of the poachers were caught, but the others returned and took more deer. Other poaching gangs of the same view set themselves up in Windsor Forest and around London. Finally one gang intercepted a shipment of wine intended for the royal family.

 Clearly this rebellion against laws protecting the wealthy could not be endured, hence the passing of the Waltham Black Act, something of a knee-jerk reaction to the protest, designed initially to combat poaching. Walpole, head of the Whig government at the time, also accused the poachers of being Jacobites in an attempt to gain public sympathy for the draconian measures, but I’ve found no evidence that the poachers were particular supporters of the Stuarts.

Rather than being a misdemeanour, it now became a hanging offence to go on a hunt in disguise, ie with blackened faces, and poaching deer, rabbits or fish were now capital crimes. In fact even damaging orchards or gardens became a hanging offence. Over time, numerous other crimes were added, many of them remarkably minor, not just to our eyes, but to eighteenth century eyes as well.

For example, the following were just a few of the crimes punishable by death under the Act:

Cutting down trees, being out at night with a blackened face (I’m not sure if chimney sweeps would be exempt!) forgery, arson, stealing goods worth a shilling or more, taking a rabbit from a warren, being unmarried and concealing a stillborn child, damaging a fishpond, possessing snares or hunting dogs, burning a haystack…. In fact you did not have to have actually committed any of the crimes above – merely being found guilty of conspiring to commit one was enough.

In those days people accused of a crime were expected to defend themselves, and in fact most people would not have been able to afford to obtain even legal advice, let alone anyone to defend them. The judge was supposed to help the accused if necessary, but as the poor person would likely have been petrified by being on trial for their life for a crime they quite possibley hadn’t committed, in a completely alien environment, the chances are they would have been gibbering wrecks. You would expect, therefore the majority to be found guilty, and public hangings to have mushroomed in this period as a result. 

Surprisingly, this was not the case, and the evidence suggests that in fact there were fewer hangings after the Black Act was passed than before it. This has been attributed to the fact that many jurors would be extremely reluctant to convict someone of what was clearly a relatively minor crime, knowing that the poor person would lose their life as a result. Had the punishment been more lenient, they may well have convicted, particularly when it seemed clear the person was guilty. But even eighteenth century people had consciences, and many would balk at the idea of condemning someone on the edge of starvation to die for stealing a few paltry items. Instead they would either acquit, or convict the person of stealing an amount worth less than a shilling, ensuring that the person would be branded rather than hung.

This compassion by juries had in fact been going on before the Black Act was passed,  but proliferated after the Black Act was passed, which must have been frustrating for the wealthy trying to ensure their property was protected at all costs.

One thing the Act certainly was successful in doing was in causing the tension between gamekeepers and the general population to increase dramatically, resulting in a number of extremely violent encounters, even murders taking place between them. This resentment was not confined to poachers or the very poor, but also included farmers and what we would now call the middle-classes, who were reasonably wealthy, but did not earn £100 a year income from freehold property and were therefore unqualified to hunt.

As jurors, especially in rural areas almost always consisted of farmers and tradesmen, respectable members of society with an axe to grind against arrogant landlords, they were very unlikely to convict anyone accused of a crime under the game laws, no matter how compelling the evidence.

As a result of this, in effect by the middle of the century the Waltham Black Act had become relatively ineffective at combating poaching as well as other crimes, due to it being too blunt an instrument. The problem had not gone away, in spite of even more Acts being passed, and more and more minor offences becoming capital ones.  

Later in the century this led to a great deal of discussion about the efficacy of such draconian legal measures, and of how effective a deterrent against committing crime such extreme sentences were. However the Act was not actually repealed until 1823.