• 幪面人不是幪面賊|戴啟思
  • 2019-10-16    

 

Anti-Mask Laws 1723 Style-the Waltham Black Act



When the new law restricting the wearing of masks and face coverings came into force a few days ago, commentators were casting about for precedents.

Legislation existed in some European countries which appeared directed to the wearing of niqabs and burqas. Other laws were directed more generally so that any face-covering in public places would be caught.

My attention was drawn to a piece in Xinhua about the new laws. Some keen journalist working for that agency had researched the subject and reported that even Great Britain had anti-mask laws. It dated from 1723.

It is worth exploring this law from three hundred years ago to show that the concerns that motivated the lawmakers then were very different from today's problems in some respects, but there are some similarities.

In 1723 there was no question of a new law impinging on the right to demonstrate-always assuming that people thought such a right existed then. The new law was all about combating organised crime.

In 1723 the political system in England was severely stressed. There were still supporters of the ousted Stuart line of monarchs that wanted to see the Hanoverian King George-a German import chosen for his Protestantism-kicked out. Conspiracies abounded to bring in James Stuart as king and with him the old Roman Catholic faith. At the same time, some landowners were enlarging their holdings and squeezing ordinary farmers and peasants.

Poaching wildlife-deer, fish, boars, rabbits and hares-was a feature of rural life and had been so for centuries. The activity was mainly a solitary one, but sometimes two or three men, usually farmhands and other agricultural workers, would get together to make the night-time enterprise more efficient. Poaching was an irritation to most landowners but not a source of great social concern.

In 1720 a grand Ponzi type scheme which had been underpinned by the Government collapsed. It had promised perpetual dividends through investing in dubious projects in the South Seas.

The collapse of the South Sea Bubble as it was called affected a lot of people. Mainly the lower middle classes and skilled workers who had invested in the scheme just as it collapsed. They were hit the hardest.

There was resentment at the fact that some rich people had escaped the worst consequences of the financial collapse. A way of getting back at the 'haves' by the 'have nots' was to reinvigorate poaching enterprises and taking wildlife at night on an industrial scale.

Gangs of poachers began to raid estates in the South of England methodically. They included small shopkeepers and tradesmen. Their tactics included intimidating gamekeepers and persons who might be able to identify them. They extorted money from farmers and peasants. Sometimes they beat up potential informers and caused them severe injury.

Apart from beating and intimidating people, the gangs would occasionally destroy property such as fishponds, barns, outhouses and orchard trees.

A trademark tactic of these gangs was that members blackened their faces to avoid identification.

The degree of organisation behind these raids on members of the ruling classes suggested to some that the gangs might be against the Government and for the restoration of the Stuart monarchy. There had been unsuccessful military attempts in 1715 and 1719 to bring over James Stuart.

The response of the Government was to enact the so-called 'Waltham Black Act' in 1723. The Act got its name from the village of Waltham in Hampshire in the South of England. Poachers in that area were particularly bold and daring.

The description of the Act was: An act for the more effectual punishing wicked and evil-disposed persons going armed in disguise, and doing injuries and violences to the persons and properties of his Majesty's subjects, and for the more speedy bringing the offenders to justice.

The Act made it a capital offence to carry out these depredations of private property when the perpetrator's face was blackened, or they were 'otherwise disguised'.

When Parliament passed the Act in May 1723, there were arrests, trials and executions before the end of the year. Justice was swift in those times. Seven men tried in mid-November 1723 were hanged on 4 December the same year.

The prosecutions revealed that there was no high-blown political motive behind the defendants who were known as 'blacks'. They were not would-be revolutionaries but sophisticated and ruthless criminals worthy of the extreme punishment that they suffered according to the standards of the day.

The trouble with the Waltham Black Act was that Parliament did not re-examine the need for it to stay on the statute book after it had served its purpose of addressing the problem of organised rural crime at a time of national nervousness in the early 1720s. It was left to cast a dark shadow over rural crime for another 100 years before its repeal.

In that century, it saw many people hanged or transported if lucky enough to be reprieved for carrying out poaching and related crimes without the organisation and cruelty that the original blacks had shown. In the early 1800's, when attitudes to crime and punishment had softened somewhat, penal reformers demonstrated that the 1723 Act operated barbarously and should be repealed.

That is always a problem with laws enacted to meet a pressing concern through strict measures. The fears may pass, but the emergency law is overlooked too once the emergency passes.

It is worth remembering that regulations made under the Emergency Regulations Ordinance in 1967 to combat a Communist threat to the safety of Hong Kong were still on the statute book until the 1990s. When the current troubles subside, as they must, will the current anti-mask laws be reviewed to see if they are really indispensable or will they be allowed to linger?



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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