Mask ban to deal with undesirables

It was while watching the riots across England following the awful tragedy in Southport that I noticed a common denominator among the supposedly far-right protesters – the vast majority of the troublemakers wore masks of one sort or another in a bid to hide their identities.

So intellectually minuscule were they that they did not get the irony of protesting about, and indeed attacking, women wearing the burqa, niqab or hijab while they themselves were masked up.

As I watched in disgust, from somewhere in the vast labyrinth of trivia that occupies my brain pan there emerged a thought from history – we’ve seen this before in Britain. Maybe, just maybe, there might be a historical lesson for our politicians as they seek to grapple with this ongoing crisis which I don’t think will descend into civil war but which the far right will continue to exploit for their own perverted interests.

READ MORE: Inside Scotland’s disturbing far-right groups since English riots

Oh, and don’t think Scotland will be exempt … we have our share of nutcases, too, though what I am about to relate did not happen in Scotland because we definitely did have a separate legal system after the 1707 Act of Union.

Back in the early 1720s, a criminal phenomenon emerged in the south of England. It began with poaching by a group of men in the Bishop’s Waltham area of Hampshire.

During the reign of George I and following the South Sea Bubble economic disaster of 1720, many landowners became angry at the poaching of deer and other animals from their estates. In response, people mired in poverty increased their poaching activities but at Bishop’s Waltham, a poaching gang organised themselves in almost para-military style, blackening their faces and snatching deer from the local estates.

The masked gang idea spread around the Home Counties with Windsor also becoming a focus for the deer hunters who were unable to be identified because they blackened their faces. The poaching gangs began to become a national problem in October 1721, when 16 disguised men raided the Farnham deer park of the Bishop of Worcester, carrying off three deer and killing two others.

Four poachers were charged, and two were found guilty and sentenced to be pilloried and jailed for a year and a day. The “Waltham Blacks”, as they became known as, retaliated by raiding the Bishop’s property again, taking many more deer, before raiding other estates.

The authorities knew they had a worsening problem, but with few organised police forces and local militias being irregular, there was little that could be done to deter the activities of the masked gangs which spread to other forms of criminality, such as an early form of protection racket.

There was also a fear on the part of the Hanoverian government that the Blacks were associated with the Jacobites who were still active across Britain. No hard evidence was ever produced to prove any sort of a link, but MPs swallowed the propaganda, and the Waltham Blacks did espouse a political anti-landowner cause.

The legislation as passed by Parliament clearly emphasises that the perpetrators who wore masks or blackened their faces were the real target for the law. Its introduction states that it was: “An Act for the more effectual punishing of wicked and evil-disposed persons going armed in disguise and doing injuries and violence to the persons and of His Majesty’s subjects, and for the more speedy bringing the offenders to justice.”

Later in the Act, it stated specifically that the new law applied to “any person or persons, from and after the first day of June in the Year of our Lord one thousand seven hundred and twenty-three, being armed with swords, firearms, or other offensive weapons, and having his or their faces blacked, or being otherwise disguised”.

READ MORE: Scottish far-right ‘will try to use English riots to aid recruitment’

According to the Act, any such disguised person convicted of being found in a deer park or orchard, or who set fire to property or shot at people in their homes or tried to extort money would face the fullest force of the law – “being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy”.

The key element of the law was that it effectively made it a felony to wear a mask or blacken the face in the commission of a criminal act. That is why the Act is more usually known as the Black Act or the Waltham Black Act.

It also gained another name – the Bloody Code, as the Act made 50 offences punishable by death. The result was not what was intended by Parliament – juries became reluctant to convict poor people caught poaching or committing minor crimes in case the accused were hanged or deported.

James Morton, writer and former criminal defence solicitor, summed up what happened in an excellent article in the Law Society Gazette on March 28.

He wrote: “The Black Act was the most heavy-handed piece of legislation of the 18th century, introducing 250 capital offences. Villagers who did not surrender a suspect could be ordered to pay a communal fine. Trials could be held anywhere in the country and suspects who did not give themselves up within 40 days were deemed guilty and could be executed without trial, or at best transported.”

The Act stayed in force for 100 years, and the unintended consequences of the Black Act are why I am NOT suggesting that legislation should be swiftly passed to criminalise the wearing of masks at protests and demonstrations, but given what has been happening in England and Northern Ireland, some sort of targeted mask ban must be considered.

After all, if governments could enforce the wearing of masks for Covid-19, they could also stop criminal activity by enforcing a ban on masks.