Sometime during my life as an historian of Kenya I read Whigs and Hunters and became indignant that scholars of Mau Mau had so missed the comparative boat that they did not use the history of the Black Act as a model. I thought the law and its history seemed tailor-made for the history of the Kenya in the 1950s. I was wrong in many ways, but the history of the Act is evocative nonetheless. In England, after years of farmers and forest officers being engaged in active, if low intensity, conflict over deer and trees, the Black Act of 1723 made poaching on the lands of royals and propertied gentry a capital offense. It was illegal for anyone, as an individual or as a member of a group, to go armed – with guns or swords or knives – with his face blackened in a park or a forest or any enclosed ground or land owned by nobles or notables on which deer were kept. Within a very short time, the Act was extended to make blacking up and being armed in a forest capital crimes in and of themselves. Over the next decade new capital offenses were added: breaking a fishpond, maiming cattle, cutting down trees that had been planted in ‘avenues’ and plantations, setting fire to a barn or haystack, sending anonymous letters demanding money or venison, and forcibly rescuing anyone from a country jail already in custody for one of these offenses.

For all this, the blackened men seemed unorganized apart from the specifics of a night's hunt or their combined effort of rescuing one of their fellows. Such gangs were not only difficult to identify but may not have had much to do with each other. It is not possible to say for sure as these gangs did not leave much in the way of contemporary records, other than the documents produced by a legal overreaction that was to outlast the gangs and their actions by decades. They issued no manifestos, made no statements from the dock, and seemed to blend back into the countryside once they took off their camouflage. The best known gangs seemed to have been extortion rings that were at the same time casual operations, the most concrete aspect of which was how easily they were bundled into a Robin Hood narrative. Thompson suggested that these men shared many of the characteristics of social bandits and agrarian rebels, but they were not the rebellious peasants of the previous century. The poachers and the wood thieves of the early eighteenth century were forest partisans, men and women who saw the forest as one resource available to them. In the case of Windsor Forest, at least, squatters asserted the same rights as did their neighbors. These gangs were men of some substance, or employees of men of some substance, whose raids on forest products were not based on hunger and need as much as an attack – and often a profitable one – on the wealthy, mostly urban Whigs who bought or were given forests and parks as their own property. And best of all for African historians looking for easy parallels, these blackened men were accused of being under the influence of political ideologies. In the case of England they were said to be Jacobites – largely Catholic supporters of King James II and his heirs as the rightful kings of Britain – which did not seem to be true, or even likely, but it was a way to arrest even more of them.

In the fall of 2014 I taught Whigs and Hunters in a graduate seminar on historiography, in large part because I worried that the book had fallen off the map, that Thompson's body of scholarship had been narrowed to The Making of the English Working Class.Footnote ¹ My students – all studying US history – needed to be convinced that this book described the indeterminate nature of what we call insurgencies and the repression thereof. This further convinced me that everyone had strayed from the true path of mid-1970s social history, so when I was invited to a workshop on Thompson and African history I had every intention of writing a paper that would gently scold the other participants by summarizing Whigs and Hunters, and explaining the truths therein. When I sat down to read the book again, however, I found other stories.

These stories, which I read as an historian of other regions of Africa, were about people and laws and animals. I will make three main arguments. First, if The Making of an English Working Class describes the struggle of Britons not to become a working class, Whigs and Hunters describes the struggle of a ruling group to imagine the laws they demanded for their immediate benefit as having emerged out of an invented concept of the universal rights of private (as in not royal) property. Second, conflicts over that property, in both Britain and twentieth- and twenty-first-century Africa, were about who had what rights over different kinds of property, particularly animals. Third, relations between humans and animals in Africa have become as layered as they are complicated and they have also come to be enforced with considerably more precision and violence than the Black Act was. Whether in a single-family home or a national park, wild animals can now be possessed in a very intimate way. Individuals might adopt orphaned lion cubs and rescue and rehabilitate injured cheetahs and eagles, but as I write this armed guards (foreign or national, depending on the company supplying them) in game parks in the Central African Republic and South Africa are tasked with shooting citizens who might harm rhinoceroses or elephants.Footnote ²

Let me take these points in order. What made the Black Act so critical, and such a departure from earlier laws was that it did not criminalize offenses between men, or between men and their communities, but offenses against property. Why property? Because this was what this ruling group had; they had no real bureaucratic or institutional legitimacy. In an era in which the king was enthroned through parliamentary mechanisms, the elites who ran eighteenth-century England had inherited a political rhetoric with which they were never fully at ease (‘like fancy dress’); their authority came from their self-presentation as the only alternative to anarchy and civil war. Thompson likened the political life of 1720s England to ‘the sick quality’ of a banana republic, assuring his readers that this was a recognized phase of commercial capitalism in which predators fight for the spoils of their work without having agreed on the rules by which these spoils would be allocated.Footnote ³ The newly propertied Whigs were men who got where they were through nepotism, corruption, and unbridled economic predation: they cherished their new wealth. Homes and lands derived from speculation, exploration, and political favors quickly offered up ostentatious displays that made their status concrete and extended the definition of property in new ways. These men and their kings did not simply own the grounds on which the stately homes and castles were built, grounds they had enclosed or made into parks. They owned the grasses, peat, the trees, their seeds, and all the animals therein: they owned the deer on the grounds and the fish in the ponds.Footnote ⁴ Canonical banana republic or not, these homes and lands required bureaucratic procedures to keep them safe and these newly propertied men demanded and received laws that made property as important in everyone's life as it was to them. Property was given the status of a universal value.

This newfound importance of property itself does not explain the absolute brutality of the Act and its subsequent amendments. Why did killing a deer suddenly become a capital crime? Only five years earlier, stealing deer or cattle were not even felonies, although stealing a horse had long been punishable by death. But horses were domestic stock; they were property the movements of which were constrained. Besides, they worked for their owners. Wild animals like deer belonged to no one; even deer introduced to an estate by its owner were free to leave its boundaries. Deer offered nothing more than food (if that) and proof that something wild could be owned, but by 1710 deer were property; there was a fine for being caught taking a deer from an estate. That fine was almost twice a laborer's annual income – it could be and was often paid with a year in jail – but it was unimaginable that the penalty for killing a deer would be the same as for killing a man (or a horse).Footnote ⁵ What changed? Not jails. Whatever passed for jails in the English countryside in the 1720s and 1730s is not clear, but whether prisoners were kept in rooms in houses or structures near a park entrance or the magistrate's home, they were guarded by locals, some of whom may have been part of forest gangs themselves. It was easy enough to free the men held there, continuing the back-and-forth low intensity conflict that characterized the forests in the years before the Act came into being.Footnote ⁶ Instead, what changed was the meaning of crime, a story of transformation most historians now understand to be have been constructed and contested, largely thanks to Thompson.Footnote ⁷ The forest was the site of customary rights and common ground, where peasant farmers could hunt deer without fear of reprisal and punishment. Once the forest became the land of the king or one of his clients, the hunting of deer by men without license to do so became a crime; such visits to the forest and hunts therein asserted customary rights to be sure, but they were capital offenses nonetheless.

Based on the evidence available to Thompson we see the greatest contestation over the Act in trees. Before the Royal Navy became the largest and most lucrative market for timber in the late 1770s, there were almost fifty years in which farmers and nobles struggled over questions of how much of a tree was timber and how much belonged to the estate on which it grew. Forest tenants, for example, were allowed to cut enough timber to repair their dwellings, but how much timber was enough? If customary allocations of firewood were denied or even fell short of the amount allocated in the previous year, it was likely that some blackened gang would destroy trees in the park. Beyond the trees, however, we mainly see the back-and-forth struggles in which poachers killed deer, broke their fellow felons out of jail, and attacked trees and fishponds in order to damage the land to which they no longer had access. Because the labor of such men was now free, and could be sold far from home and forest, what was a crime and how crimes were punished changed as well. There were no longer whips and auction blocks or stocks and pillories, but courts and jails and gallows. Again, this is pretty much standard issue for African colonial history, mainly because of Thompson: men and women might not rebel because their land has been taken, their cattle culled, and their rights to the trees curtailed, but they did claim what they still consider rightfully theirs. Whether we speak of wakf land in urban colonial Zanzibar or coconut theft in rural colonial Zanzibar, historians are identifying a notion of defensible customary rights.Footnote ⁸

Let me take this in two directions. First, why did a conflict between customary and property rights in eighteenth-century England end in a law that became a covenant of death, a law that piled capital offense on capital offense, as if its earliest version had been negligent in its scope. Obviously the ‘emergency’ that generated the Act was not a real emergency or even a panic, but a watershed moment in which men whose privileged and propertied status had grown in importance and judicial clout so as to create laws that were nothing less than structures that would defend their property and the status ownership bestowed on them. Demanding laws that made infringements on property capital offenses elevated the ownership of property above all other values – ‘a Whig state of mind’.Footnote ⁹ But something else is at play here, something that comes in and out of this text, that capital offenses made laws visible: the power of the state, not the king, made tangible laws that could take lives. I cannot stress this point too forcefully. The newly rich did not demand the right that they themselves were allowed to punish those who ventured onto their estates but they pressured the apparatus of the state to make laws that punished those men.Footnote ¹⁰ Something Thompson does not talk about, however, is that there was not a wider realm of punishment available to Whigs or anyone else in the 1720s.Footnote ¹¹ Penitentiaries were at least fifty years in the future, and whatever passed for the jails from which Blacks rescued their fellows did not seem to be a convincing punishment or deterrent to crime, so that in an era too enlightened to whip or maim felons taking a life demonstrated the full power of law. Except that it didn't. The capital provisions of the Black Act were infrequently enforced. There was not the legal apparatus to arrest everyone who had entered a forest in disguise, and had even half of the men charged with felonies under the Black Act been executed there would have been open rebellion, not to mention considerably fewer farmers and butchers. Indeed, more men convicted of capital offenses were pardoned than were hanged. If the Act was a deterrent, it was one that made prosecutors and juries reluctant to sentence farmers and butchers to death.Footnote ¹² Such commonplace hesitation at committing judicial murder underscores the power of the law: it was understood to be fearsome and thus used sparingly. Less fearsome were sentences of transportation: the power of law could send a pickpocket or a debtor to Georgia or South Carolina without taking his life. All this reveals the growing power of the state in which law was the mechanism by which it decided who lived and who died, who was sent away and who was set free.

Second, if the rule of law gained authority in the eighteenth century, was customary law submerged or marginalized or only practiced by those who shared such customs? Thirty years ago Martin Chanock reminded us that in twentieth-century Africa, colonial law and customary law were in dialogue: when colonial law was used to define new relationships it could be used to defend old ones, and in doing so carved out new rights.Footnote ¹³ But over those same thirty years African historians may have made customary law do too much work, making it almost a residual category for what was not colonial.Footnote ¹⁴ We need to ask what it was about eighteenth-century English customs that explained the historical specificity of the Black Act. Deer were a reliable source of meat for consumption or sale. But if the value of deer remained fairly constant and if the demography of forest deer was such that there were more than enough deer for kings and nobles to hunt, why did poaching deer become a capital offense in 1723 and not before? Thompson shows how difficult it is to prove or disprove any crisis over forest resources, but he is clear about what perpetrated the Black Act. There was not a shortage of land or of deer, the farmers and quarrymen who lived in the forest did not impinge on royal profits, but they impinged on the nobles and the new, super-rich gentry who saw the forest as their own. The crisis was over who could use the available land and how they would use it. The nobles turned to forest officials and parliament to legislate older, supposedly feudal but possibly made-up ideas about land use, legislation that privileged the deer's economy over that of the forest's inhabitants. The deer, Thompson insisted, were simply ‘a screen behind which to advance their own interests’.Footnote ¹⁵ Doubtless they were, but the protection of forest deer seems to me a critical import of the Act, that in its definition and protection of property it was able to create new categories of property over which the owners of land and stately homes had the same rights they had over flowerbeds and tapestries. We tend not to worry too much about the trees any more – but see Kas Maine (fn. 4) – and even less about the peat and the deer, but if we are making any parallels to Africa then we have to include the Big Five of hunters’ and conservationists’ lore, endangered species, invasive species, and all the lion cubs adopted by well-informed and well-intentioned white people who return them to the wild.

What was behind the screen of deer? Real poachers – men who hunted specifically for food – probably snared rabbits far more frequently than they hunted deer. They are only one part of the question; the other is, what is being hunted. Let me address this and the deer question by way of Africa. When land is owned by an individual, or a state, or a resort company, what lives on it or in it is also owned. So the proprietary idea behind, say, those colonial governments that railed against proposals to cull antelopes and buffalo to prevent the spread of sleeping sickness lives on in the animals declared to be part of a postcolonial patrimony, some of which are declared endangered species in need of protection and some of which are licensed to be hunted.Footnote ¹⁶ If a deer or an elephant belongs to an eighteenth-century park or a twenty-first-century nation, it is property, utilized, and protected by laws governing property. Animals can be hunted or rented out for hunting or they can be protected. ‘Animals are now much freer than we are’, an elderly Bisa in the Luangwa Valley told Stuart Marks in 2006. ‘They have more protection and rights than we do. We are restricted.’Footnote ¹⁷ An animal taken without the proper fees or fealty is a stolen animal, whether from a rich man's land or a national patrimony.

There seem to be two important, postcolonial exceptions to this. First, as Clapperton Mavhunga has shown, the criminalization of poaching has created great ingenuity and inventiveness on the part of poachers.Footnote ¹⁸ Second – and arguably the opposite of poaching – there is the occasional (or so one assumes) and well publicized practice of a white man, often a game ranger but sometimes just a game lover, adopting a lion or lioness cub, raising it as almost a member of his family, and then returning it to the wild. Certainly this is a gentle practice but it depicts proprietary rights over animals far beyond anything imagined in the eighteenth century. The Elsas and the Tommys and the Dayans – Jan Breytenbach named a lion cub after the Israeli general – had to be taught to hunt before their human families could allow themselves to let go, and it is in this ability to possess hearth and home and wilderness at the same time that we see notions of property extended in emotional ways. I do not want to diminish the love the Adamsons and Carrs and Breytenbachs had for their young lions but their capacity to bring the wilderness into their homes and release them after they had taught them how to hunt moves the ‘Whig state of mind’ into another dimension altogether.Footnote ¹⁹ The rescue and rehabilitation of wild animals and the efforts taken to reunite them with their prides and pods does something more: it breaks down any distinction between what is owned and what is not and it attempts to improve on the wild.Footnote ²⁰

Of course, deer meant something more in the Black Act as well. Deer were both a synecdoche of property and a specialized kind of social life, both epitomized by the hunt. After the Black Act, royal forests and Whigs’ estates were made more hospitable to game so as to provide better – by which Thompson means easier – hunting grounds. These were canned hunts. Once the conflict over who had rights over the available land was resolved, it was possible to reshape the animals that lived on the land. Pheasants were plump, and woods were planted and maintained to keep deer well fed and easily available to be flushed out for a hunting party.Footnote ²¹ And if the animals in owned land could be made available for sport hunting, their hunting could also be proscribed. The same legal sensibility made deer property and created endangered species and protected rhinos and tuskers.

As I wrote and revised this, I had misgivings about my title. Was the premise of this article wrong, was I too eager to hector my fellows? Did I really think African historians had not followed the example of Whigs and Hunters or did I miss the larger picture, that African historians followed the path perhaps too far into the rain forest and could not see our way out through the trees? Did we pounce on the changing definition of crime and not see the ways the laws transformed the category of property and relations within that category of property? And were we so enamored with the idea of customary rights that we didn't always acknowledge the degree to which the enforcement of laws created a new and vital way to defend custom? After several drafts and re-reading several texts, I now think that the general arguments about the relationship between property and the rule of law had such a hold over African social history that we didn't always see the ways that the idea of property had been extended to include the field and the beasts of that field, and how hunters and poachers and landowners understood these categories. It's not only that the criminalization of cutting peat or of breaking the banks of a fishpond literally inscribed ownership on the land; it allowed for animals that were called ‘wild’ or at least undomesticated to become property as well.Footnote ²²

All if this may be beside the point for writing about a forty-year-old book: the question isn't ‘did we get it right or wrong’, or ‘did we get enough out of it’, but ‘how do we use it in our history writing?’ And how did we do that? The Making of the English Working Class still sits like a nesting eagle on top of the varieties of African social history, and Whigs and Hunters is critically influential in the study of law in colonial Africa. Thompson was in the air African historians breathed. The ideas were bundled into our work in the 1970s and beyond, even if the references were not. (At the Ann Arbor workshop several people admitted they had not read more than an essay or two by Thompson and certainly had not read Whigs and Hunters or The Making of the English Working Class.) All of this, I submit, may have made Thompson's ideas about work and leisure and custom and rights a little more rigid in our application than they were in Thompson's own work. By the early 1990s he hadn't backtracked in any way – indeed, he published a spirited and cranky defense of ‘The moral economy of the English crowd in the eighteenth century’ – but his thinking was infused with more anthropological theory than he is usually credited with. ‘Agrarian custom was never fact’, Thompson wrote in 1993. ‘It was ambience.’ Widening Bourdieu's ‘habitus’, Thompson describes custom as lived practices and inherited expectations that are shaped and limited not only by law but community pressures.Footnote ²³ He wrote that literacy and the mobility of literate men and women probably extended the range in which customs were a reliable basis from which to claim rights. He wrote a brief and salutary defense of fragments: however partial and enigmatic evidence was, it allowed us to open a small window into the past, to see the ‘sensibility of a lost culture, and into the interior crises of the poor’.Footnote ²⁴

My argument here is not original. More than twenty years ago Frederick Cooper wrote that Thompson's followers tended to be all too willing to tie up loose ends and eccentric evidence to construct a singular working class or Whig ruling group or poachers. They were less willing to take up some of Thompson's later concerns about the various articulations of power and culture in preindustrial Britain.Footnote ²⁵ That said, I don't want to demand that we take the older Thompson more seriously than the younger one, or that we privilege the younger Thompson over all his later writings. Instead I want to revive the original premise of this article and admit that yes, African historians have strayed from the truths of mid-1970s Thompsonian social history, but so did Thompson. So if I can return to scolding my fellows one more time, let me remind us all that if Thompson could loosen up his analytical field, so can we.