1723: The first London executions under the Waltham Black Act

3 comments December 4th, 2012 Headsman

“The law of England has displayed no unnecessary nicety, in apportioning the punishments of death …. Kill your father, or catch a rabbit in a warren — the penalty is the same! Destroy three kingdoms, or destroy a hop-bine — the penalty is the same!”

Sir Thomas Buxton, commenting on the “Bloody Code” in 1821

E.P. Thompson’s classic Whigs and Hunters: The Origins of the Black Act, has its titular legislation as “an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status”

On this date in 1723, seven Waltham Blacks were hanged at Tyburn.

These poachers were the impressive first salvo of the Black Act, a new-minted statute early in the landmark government of Robert Walpole.

This law had been enacted to combat the rise of game poaching. As we’ve noted before, poaching was a longtime conflict zone in a Great Britain emerging as distinctly capitalist.

The Black Act would not merely sharpen those conflicts — it would intentionally define them, helping to enclose a labor marketplace enforced with hemp.* The Black Act added nearly 50 capital offenses to the rolls; it was a seminal statute for the 18th century’s notorious “Bloody Code”.

“The Black Act had a much wider sweep than a statute intended merely to protect the royal forests,” Frank McLynn notes. Poaching gangs “provided the occasion for draconian legislation; they were not its cause.”

These huntsmen were, early in the 18th century, increasingly bold taking game on forest preserves in defiance of hunting restrictions that made an absurd mishmash of feudal anachronisms and latter-day statues all of which contrived to limit the hunt only to a handful of wealthy landed aristocrats. It was, per Blackstone, “a bastard slip, known by the name of the game laws … wantoning in the highest vigour.”

This vigourous wantoning actually made for a multilateral class conflict. The rural poor, being displaced by enclosures, were barred from opting out of proletarianization for a life on the forage. (Nobody was allowed to sell game meat.) Sportsmen had the run of the land, but only the very richly landed could be “sportsmen”: small farmers were forbidden to take game even on their own property, whereas those whose huge estates licensed them to hunt were entitled to tramp through neighboring crops in pursuit of their quarry.

Poaching followed these un-neighborly injuries to traditional commons rights as vigorously as hounds follow hares. The state answered with the Black Act, and did not scruple to accuse known companies of “Blacks” of being Jacobite catspaws.

So named because it targeted poachers’ practice of “blackening” their faces, the 1722 law made it a hanging crime to go on the hunt in disguise, as well as a hanging crime to poach deer, rabbits, conies, or fish. Formerly, “deer-stealing” and the like had been mere misdemeanors.

The act also mandated death for a broad range of other rustic crimes such as damaging orchards, gardens, or cattle, with like penalties attached to conspiring to commit any of these crimes or rescuing anyone imprisoned for these crimes.**

The seven hanged this date were “Blacks” who happened to be captured shortly after the Black Act took effect in mid-1723 — from Windsor forest, and elsewhere. As a show of resolve in enforcing its grim new decrees, the crown had all these men shipped to London, far from their own communities where jurymen themselves aggrieved by game laws were known to acquit.

* Lest one doubt this red-tinged historiography of the Act, its apologists were no less clear on its objectives.

“No man, however successful in the profession, can expect to get as much profit by deer-stealing, as by following his lawful business,” intoned the Newgate Calendar about today’s hangings. “[Y]oung persons cannot learn a more important maxim than that in the scripture; ‘the hand of the diligent maketh rich.’

“In this place it may not be improper to make a single remark on the game laws. These are supposed to be, possibly not without reason, severe: it is contended that those animals which are wild by nature are equally the property of every man. Perhaps this is the truth: but persons in the lower ranks of life should remember, that when laws are once enacted, THEY MUST BE OBEYED. Safety lies in acquiescence with, not in opposition to, legal institutions.” (emphasis added)

** Just for good measure, it also prescribed the noose for just about every form of arson, and for anyone who “shall wilfully and maliciously shoot at any person in any dwelling-house, or other place” regardless of injury.

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1541: Thomas Fiennes, 9th Baron Dacre

Add comment June 29th, 2010 Headsman

On this date in 1541, an English peer hanged (!) at Tyburn for an unpremeditated murder.

Thomas Fiennes, scion of an ancient title still* extant today, was more accustomed to doling out the death sentences.

Dacre sat on the jury of peers that condemned Anne Boleyn, and also helped doom plotters in the Pilgrimage of Grace and the Exeter Conspiracy.

This well-favored but evidently unrefined young rowdy had a penchant for the illicit hobby of poaching game, just becoming in this period a conflict zone in the proto-capitalist enclosure movement.

We may suppose that a callow youth of privilege didn’t have the means of production on his mind, just an overweening sense of entitlement about the forests of the next lord over. In any event, a 1537 letter to Thomas Cromwell testifies to the young Fiennes’ vice.

I have received your lordship’s letters wherein I perceive your benevolence towards the frailness of my yoyth in considering that I was rather led by instigation of my accusers than of my mere mind to those unlawful acts, which I have long detested in secret. I perceive your lordship is desirous to have knowledge of all riotous hunters, and shall exert myself to do you service therein. I beg you give credence to Mr. Awdeley, with whom I send some of my servants to be brought before you; he can inform you of others who have hunted in my little park of Bukholt.’

We don’t have the particulars of this situation, but secret detestation notwithstanding, four years’ time finds Fiennes up to similar shenanigans.

In this later, fatal case, our sportsman and a group of retainers went out to hunt deer on the lands of his neighbor, Sir Nicholas Pelham. There, they encountered some men of Pelham’s, and in the ensuing melee, one of the latter party was beaten to death. Pelham pressed the issue aggressively.

“Overpersuaded by the courtiers, who gaped after his estate,” Fiennes tried the dangerous gambit of pleading guilty and casting himself on the king’s mercy. The fact that testimony indicated that Fiennes himself had not participated in the fight might have meant an acquittal, though a guilty plea also positioned Fiennes to exculpate his mates.

Gaping courtiers may have realized better than their prey that the king’s mood this summer tended towards severity. Spurning a recommendation of clemency from the peers of the realm, Henry VIII insisted on Dacre’s execution.

The affairs of the luckless baron’s last day — which was only four days after his trial — remain a bit mysterious. Hopes for a clemency were raised by a last-minute reprieve from a scheduled morning beheading, only to have the noble led out that afternoon to the beneath-his-class death by hanging at Tyburn.

Oh, and the mates Dacre was (possibly) trying to protect? Three of them hanged this date as well, at St. Thomas a Watering on the Old Kent Road.

* It hasn’t been continuously extant, strictly speaking — in fact, it was terminated along with Thomas Fiennes, only restored in 1558 to the hanged man’s son.

These Tudor toffs are distant relations of actor Ralph Fiennes, whose turn as a hanged Nazi war criminal has already been noted in these pages.

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1816: John Allen and John Penny, poachers

5 comments April 13th, 2010 Headsman

On this date in 1816, poachers John Penny and John Allen hanged for the murder of a gameskeeper.

This wasn’t about preserving endangered elephants from the depredations of the ivory trade, but the centuries-long rural skirmish between classes over land use and property control.

The recipe to make a poacher [said an English Peer in 1825] will be found to contain a very few and simple ingredients which may be met with in every game county in England. Search out (and you need not go far) a poor man with a large family, or a poor man single man, having his natural sense of right and wrong … give him little more than a natural disinclination to go to work, let him exist in the midst of lands where the game is preserved, keep him cool in the winter, by allowing him insufficient wages to purchase fuel; let him feel hungry upon the small pittance of parish relief; and if he be not a poacher it will only be by the blessing of God.

It was the legacy of enclosure, the breaking-up of common lands and the abolition of longstanding privileges that underpinned (among other things) the traditions of English game-hunting and the livelihoods of commoners who depended upon it.

“After estates and commons were removed from public access by enclosure,” writes Babette Smith, “poaching became a manifestation of the class war — a civil war in fact, which was never declared.”

And not only a metaphorical war.


Pew pew pew.

The wholesale seizure of lands, wealth, and social rights had perforce to be upheld by violence. Here in Gloucestershire’s Vale of Berkeley, the principal landowner was one William FitzHardinge Berkeley, tetchy bastard son of an illustrious army officer who inherited the wealth of his family and the chip on his shoulder about not being admitted to the peerage due to his out-of-wedlock birth.

Landowners at this time had no compunctions about setting lethal traps to keep out those they legally defined as trespassers. Late in 1815, a poacher named Thomas Till had actually been killed by a tripwire-activated spring gun, to the outrage of his compatriots.

John Allen, charismatic local farmer and a poacher himself, had some score-settling on his mind one moonlit night in January when he rounded up 15 other poachers, swore them all to silence, and went out armed and looking for trouble.

They found it in a band of Berkeley’s gamekeepers, who confronted the poachers. Shooting broke out; one of the gamekeepers was killed and a few others wounded.

“Eleven young men, nine of whom were farmers’ sons and respectably connected,” in the characterization of the Gloucester Journal, were convicted of murder by a jury weeping as it delivered the verdict. For the real facts on the ground, this criminal justice framework made for a cruel fit, especially since the highhanded lord seems to have engineered the dangerous encounter to begin with. Dr. Edward Jenner, famous pioneer of immunology, was also a Gloucestershire magistrate involved in this case; he, too, had misgivings.

All but the ringleader Allen and John Penny, apparent author of the fatal shot, received the clemency of convict transportation to Van Dieman’s Land, Australia — although a couple got away outright and never stood trial and one of those arrested turned state’s evidence in exchange for a full pardon.

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